O'Sullivan v Health Care Complaints Commission of New South Wales

O'Sullivan v Health Care Complaints Commission of New South Wales - [2008] NSWCA 295 - NSWCA 2008 case summary — Zoe

[16]

13 NOVEMBER 2008 Brendan Thomas O'SULLIVAN v HEALTH CARE COMPLAINTS COMMISSION OF NEW SOUTH WALES Judgment 1 ALLSOP P: I have had the advantage of reading the draft reasons for judgment of Hodgson JA. I agree with the orders proposed by his Honour. Subject to the following comments, I agree with his Honour's reasons. 2 As to the question of the relationship between the Health Legislation Amendment (Complaints) Act 2004 (NSW), s 11 and the Medical Practice Act 1992 (NSW), s 50 and which form of s 36(1)(a) of the latter Act was applicable, it might be said that the complaint that was transferred to the Tribunal by the Board remained the same complaint as had been made to the Board and, so, the amendment did not apply because it had already been referred to the Board. Whilst that argument initially attracted me, I think the better construction is that adopted by Hodgson JA. The complaint was referred to the Tribunal; the question is whether that was done before or after the amendment. 3 As to the notice of contention, the extent that this Court should, under the Medical Practice Act, s 91, engage in assessments of a factual and evaluative character in connection with the conclusions of the Tribunal, if an error of law has been shown, is a matter of considerable importance, and is not without difficulty: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [14] ff; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [81]-[92]; Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [148]-[168]; Health Care Complaints Commission v Wingate [2007] NSWCA 326; and Saville v Health Care Complaints Commission [2006] NSWCA 298 at [11] ff. It is unnecessary to deal with the issue. 4 HODGSON JA: On 10 November 2006, the Medical Tribunal (the Tribunal) found that certain conduct of the appellant amounted to unsatisfactory professional conduct, ordered that he be reprimanded and that he comply with certain requirements, and ordered that he pay the costs of the Health Care Complaints Commission (the Commission). 5 The appellant appeals from that decision. Pursuant to s 91(a) of the Medical Practice Act 1992 (MP Act), an appeal to this Court is available against a decision of the Tribunal "with respect to a point of law".

[78]

Which definition applied? 34 According to the transitional provisions, the critical date was the date on which the complaint was referred to a Committee or Tribunal. 35 Since the proceedings in this case were before the Tribunal, in my opinion, the relevant date is the date on which the complaint was referred to the Tribunal, that is, on or about 21 June 2005. Accordingly, it was the amended definition that applied in this case. 36 The alternative view would be that, since the complaint was referred to a Committee on or about 18 August 2004, the unamended definition applied. However, that reference ceased to be effective when the Board referred the complaint to the Tribunal under s 50 of the MP Act, and the proceedings before the Committee came to an end. 37 What was in fact referred to the Tribunal was the complaint made in terms of the unamended definition, and even the amended complaint dated 29 September 2005 was in terms of the unamended definition. I have considered whether this involves any procedural or other difficulty or error; and in my opinion it does not, for the following reasons. 38 The conduct complained about remained the same, the description of the transgression remained the same, and the definition of what constituted a transgression remained very similar. For that reason, in my opinion, it could not be considered that further consultation was required under s 49 of the MP Act before there was reference to the Board. It was clearly notified to the appellant on 9 February 2006 that the complaint was of unsatisfactory professional conduct according to the amended definition; and this was again made clear before the Tribunal. 39 In my opinion, it would have been open to the Tribunal to permit a formal amendment of the document before it, pursuant to s 159 and s 161, and cl 5 of Schedule 2 of the MP Act: cf Household Financial Services Limited v Commercial Tribunal of NSW (1995) 36 NSWLR 220. However, in my opinion where the complaint dealt was substantially the same as the written complaint, and the appellant was clearly notified that the amended definition was being relied on, formal amendment was not necessary.

[79]

Did the Tribunal address the statutory question? 40 It was submitted by Mr Connor SC for the appellant that the Tribunal was required to address the questions (1) What was the appellant's conduct, (2) What did this conduct demonstrate as to his knowledge, skill, judgment and care, (3) What standard was reasonably expected of a practitioner of an equivalent level of training and experience, and (4) Did the appellant's conduct demonstrate that his knowledge, etc was substantially below that standard. Mr Connor referred to Daskalopoulous v Health Care Complaints Commission [2002] NSWCA 200 at [36] and [56]-[59]. 41 In particular, he submitted that the question asked at [46] of the Tribunal's judgment, namely, were the quantities of drugs excessive and not clinically justified, was not the question posed by the statute; and the findings which the Tribunal made in finding Part 2 and Part 3 of the particulars made out did not go beyond findings that the prescriptions were excessive, and that they were for a period exceeding two months in breach of s 28 of the Poisons and Therapeutic Goods Act 1966 (PTG Act). 42 In my opinion, there would have been force in that submission if the judgment of the Tribunal had ended at [58] where the Tribunal expressed satisfaction that the Commission's case was made out. However, at [59], the Tribunal said this: 59 Dr O'Sullivan submitted that if that part of the complaint were proved it is, in any event, a technical one, or alternatively a trivial one, and not such as to warrant a finding of unsatisfactory professional conduct. We will come to consider that in a moment. 43 The Tribunal then set out certain matters concerning the conduct of the hearing, including acceptance by the Tribunal of a report of a consultant psychiatrist Dr Durrell tended by the appellant. The Tribunal then said: 66 Dr Durrell gives support for Dr O'Sullivan on the third part of the complaint. That is, he says that in the psychiatric profession the failure to seek approval as required by s 28 was not one of the more significant matters. We have taken account of what he says. Having in mind what all of the psychiatric witnesses have had to say about the breach of the section and having in mind the matters proved in parts 2 and 3 of the complaint, we are of the view that the conduct of Dr O'Sullivan does amount to unsatisfactory professional conduct and we find that in the circumstances as proved his conduct did amount to unsatisfactory professional conduct. 44 In my opinion, this makes it clear that the Tribunal did not only find that the appellant had prescribed excessive quantities of drugs and had contravened s 28 of the PTG Act, but also found that this conduct amounted to unsatisfactory professional conduct, the definition of which had been correctly set out at [3] of the judgment. 45 In my opinion, it was not necessary for the Tribunal explicitly to address the four questions set out by Mr Connor. It is sufficient that it identified the conduct and identified what was wrong with it, and addressed and determined whether this demonstrated that the knowledge, skill or judgment possessed or care exercised by the appellant was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In my opinion, the Tribunal did this.

[80]

Were the reasons adequate? 46 Mr Connor submitted that, if the Tribunal did address the question whether the conduct satisfied the statutory test, it did not give reasons, or adequate reasons, for deciding as it did. 47 He submitted that this was particularly so in circumstances where the expert opinion most relied on, that of Dr Andrews, was given without his having access to all relevant material (including extensive hospital records) and on an incorrect assumption that the patient had been hospitalised for an overdose on the drug. 48 Further, Mr Connor submitted, the Tribunal did not identify whether what was demonstrated concerned knowledge or skill or judgment or care; and it did not take into account the appellant's long experience in dealing with the patient, and the great difficulty of managing this particular patient. 49 In my opinion, the Tribunal's reasons were adequate. 50 In my opinion, it is not always necessary to specify whether the particular shortcoming was in knowledge, skill, judgment or care, although this may be desirable if it is not clear. In this case, it seems clear that the concern of the Tribunal did not go so much to knowledge and skill as to the judgment possessed by the appellant and the care exercised in this particular case. It was not in my opinion necessary that it identify the extent of its concern in relation to each of these elements. 51 The Tribunal did in its reasons refer to the fact that the patient was hard to manage. 52 It was open to the Tribunal to rely on the opinion of Dr Andrews, so long as the Tribunal considered the assumed facts were "sufficiently like" the facts which it found: Paric v John Holland (Constructions) Pty Limited (1985) 62 ALR 85 at 88. The hospital records which Dr Andrews did not have was material which the appellant himself did not have when deciding on his course of action, so it would be reasonable for the Tribunal to judge that the facts assumed by Dr Andrews were sufficiently like the facts it found. As regards the Tribunal's view that the admission to hospital was not for an overdose, it was a matter for the Tribunal to assess the significance of that. 53 The Tribunal quoted the opinion of Dr Andrews that one aspect of the appellant's conduct would invite disapproval of the general body of his colleagues, and that another aspect of his conduct was of much more concern to him. 54 In circumstances where the Tribunal was itself a body with some medical expertise, in my opinion the reasons for its decision do sufficiently appear, and there was no breach of s 165 of the MP Act.

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