Pridgeon v Medical Council of New South Wales

Medical Council's first decision

1. The Medical Council received information about Dr Pridgeon's arrest, and the charges laid against him, from the Health Care Complaints Commission on 18 October 2018. The HCCC had received this information from the AFP. On 23 October 2018, the Medical Council wrote to the solicitor representing Dr Pridgeon in the criminal proceedings, indicating that the Council was considering suspending his registration as a medical practitioner based upon the information it had received. It said that Dr Pridgeon had the opportunity to give reasons to the Council as to why his registration should not be suspended. Dr Pridgeon was asked to provide a response within a matter of days.
2. Under the heading "Summary of complaint", the Council stated that it had received information that he had been charged with the offences outlined above and that the AFP alleged that he was involved in, and had provided material support to, a child abduction ring in contravention of orders made by the Family Court. Dr Pridgeon had not, in fact, been charged with providing material support to a child abduction ring.
3. The Medical Council did not identify any reason why the AFP had, or may have, provided its information to the HCCC to be passed on by the HCCC to the Medical Council. The AFP had no obvious or apparent interest in Dr Pridgeon's right to continue to practise. No complaint had been made against Dr Pridgeon by anyone under s 144 of the National Law.
4. The Medical Council's letter then continued under the heading "Council's proposal to suspend your registration" in these terms: "Council's proposal to suspend your registration The complaint and other information provided by the HCCC raise serious allegation that you have committed the serious offences of child-stealing, using proceeds of crime, and perverting the course of justice. The Council is considering suspending your registration in the public interest, under section 150 of the Health Practitioner Regulation National Law (NSW) (National Law) for the reasons summarised below. At the outset, the Council acknowledges that you are entitled to defend the charges and that you are innocent of the offences until proven guilty. The Council, in considering whether or not to take urgent action, assumes that you are innocent and it will not be making findings of fact. Nor will the Council be making any determination whether you are guilty of the offences charged. The Council's role under s 150 is protective and involves assessing whether it would be appropriate to take action in the public interest. However, you have been charged with serious criminal charge, carrying maximum sentences of imprisonment and which arise from conduct that discloses a strong element of dishonesty. This falls squarely within the concept of the 'public interest'. In section 150 which has [been] described by the NSW Civil and Administrative Tribunal in the following way: 'A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits.' Ultimately, based on the available information, it is open for the Council to be satisfied that you are not a fit and proper person to continue practising medicine and meet the high standards expected of the medical profession, which the Tribunal has described as follows: 'Those who practice medicine are required to fulfil the high standard which is expected of them, not only in respect of their technical abilities, but also as persons who enjoy the standing of medical practitioners: see Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 at 441; see also Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56]; as was stated by Basten JA in Prakash v HCCC [2006] NSWCA 153 at [91]. However the public interest includes indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and of the risks of failing to do so.' Consequences of urgent action The Council's power to take urgent action under s 150 has been described as 'draconian'. Any decision to suspend your registration will affect your ability to earn a livelihood, as well as the use and development of your professional skills. However, the Council's power to take urgent action exists for the protection of the public's health and safety, which is always the paramount consideration. Also, there is nothing to stop the Council from taking protective action, pending the resolution of the criminal charges: the NSW Supreme Court, Court of Appeal has held that criminal charges and disciplinary action against a doctor can be taken concurrently, even if both arise from the same set of facts. You are invited to make submissions The Council recognises that any decision to suspend your registration will have grave consequences for you, personally and professionally. Any suspension is likely to affect your ability to earn a livelihood, as well as use and develop your professional skills. Bearing this in mind, the Council now gives you an opportunity to make submission as to why the Council should not suspend your registration. I recommend you contact your Medical Indemnity Insurer who may be able to provide assistance in this matter. Please provide your written response by 9am on Friday 28 October 2018 [sic]."
5. Dr Pridgeon provided responses on 26 and 27 October 2018. In his first letter he admitted that he had sheltered and protected two young children at the request of their mother, and that he had done so after being asked to assist by the late Professor Freda Briggs AO. He admitted that he knew that the children had been placed in the custody of their father by the Family Court and he described the circumstances in which he had been told that they were being sexually abused and that their mother had taken the children and fled. Dr Pridgeon said: "I was acutely aware that I was breaking the law, yet I knew that the law had failed these children utterly, it was a terrible position to be in. I reflect now that these children had four years of their childhood free from terrible abuse, I must now pay the price for that. … It is true that we did deprive [the father] of his lawful custody of the twins, he was abusing them, we did what we had to, to protect these children. I have no doubt that I contravened court orders to do so, it was these same courts that absolutely ignored the children's disclosures of abuse and handed the twins to their father for years of torment. While they were in my care, I provided all their necessities of life: food, clothing, educational and other books, sports equipment, musical instruments and the like, from my own pocket."
6. Dr Pridgeon denied the allegations that there was a "child abduction ring" or that he had been paid any money. He also clearly denied that he had any prior relationship with the children's mother. He appended a report from Professor Briggs on the abuse of children which he said helped him to understand what had happened. Dr Pridgeon also indicated that he had expended all his savings in the protection of other people's children and could no longer afford legal representation.
7. In his second letter, Dr Pridgeon made a further submission in which he observed that the Medical Council was asking him to defend allegations without his having seen the actual allegation or who made it and without any supporting evidence. He asked for a copy of the complaint. This was not provided because no complaint had ever been made. He was given the AFP statement of facts. Dr Pridgeon's letter then went on to record the following: "Our greatest public interest is to protect and nurture children. The Medical Council seems to view this through the eyes of the unnamed complainant. I sincerely believe a different lens is needed. Every patient who attended me this week shook my hand and praised me for doing what I did, for doing the right thing by standing up for innocent children whom the system betrayed. … We are told to protect children. The right and honourable thing to do was to protect, care, provide for and remove children from danger who had nowhere to turn when they came to me, Had I done anything less, it may have amount[ed] to (potentially criminal) omission in my duty of care. … Page 3 of your letter refers to the high standards required of medical practitioners. There is no allegation or evidence that I have not fully complied with professional standards or that any aspect of my medical practice is lacking. My medical proficiency has never been questioned. I am a highly experienced, highly qualified medical practitioner who enjoys the full confidence of my patients, colleagues and importantly, specialist peers. Specialist peers who regularly review my work have provided me with solid, positive feedback about my medical proficiency. The second aspect you refer to is maintaining public confidence. I urge you to consider the real community feedback for child protection advocates such as myself. I humbly submit that my actions in protecting these children - involving a contravention of court orders that was reasonable in the circumstances - has not degraded but in fact raised the standing of the medical profession."
8. The Medical Council was not persuaded. It said the following: "The panel noted that Dr Pridgeon is entitled to defend the charges summarised above and is innocent until proven guilty. It is not the role of the panel to make any findings of fact, nor a determination as to Dr Pridgeon's guilt or innocence of the offences charged. Rather, the panel must assess whether it is appropriate to take action against Dr Pridgeon in the public interest, or in order to protect the public. Dr Pridgeon, in his response to the Medical Council, provided substantial documentation. Within the documentation, Dr Pridgeon admitted to the sheltering, transporting and protection of children in contravention of court orders; depriving persons of the lawful custody of their children; and 'breaking the law'. Dr Pridgeon denies the allegations related to dealing in the proceeds of crime. Dr Pridgeon maintains his actions were his moral and ethical duty, and that he acted in order to protect the children from ongoing sexual abuse. The panel considered the serious criminal charges against Dr Pridgeon carrying maximum sentences of imprisonment and which arise from conduct that discloses a strong element of dishonesty. Whilst the panel notes Dr Pridgeon's stated motives, his admissions relating to the breaking of the law and the seriousness of the charges against him are clearly contrary to the public interest. Based on the available information, including Dr Pridgeon's own evidence, the panel is comfortably satisfied that Dr Pridgeon aided two people in abducting their children, and perverted the course of justice. Of course, the panel acknowledges Dr Pridgeon is entitled to the presumption of innocence and these matters are allegations only, not having been proven to the criminal standard in court. Nonetheless, there is nothing to prevent the panel from taking urgent action pending resolution of the criminal charges, as we are not required to make conclusive findings and can base our decision on any relevant information. … Whilst Dr Pridgeon maintains he acted out of a moral duty, the panel was of the view that the public would have an expectation that a medical practitioner should be law abiding, and not act in a manner that could be interpreted as taking the law into their own hands. … The Panel must consider all members of the public, including the children involved in the alleged 'child stealing' charges, and the parents who were allegedly denied the lawful custody of these children. Given Dr Pridgeon's clearly stated view that he believes he acted in the best interests of these children, it could be concluded that Dr Pridgeon may consider similar behaviour to be appropriate in the future, which could or would be regarded as a significant concern to the health and safety of children. As such, the panel formed the view that Dr Pridgeon does pose a risk to the health and safety of the public. … With the information available to the panel, we are satisfied that Dr Pridgeon is not a fit and proper person to continue practicing [sic] medicine and to meet the high standards of the medical profession."

Comment

1. The Medical Council did not decide the matter on the basis of what was in the public interest, but upon the basis of whether Dr Pridgeon posed a risk to the health and safety of the public. There was no material that suggested that what Dr Pridgeon had done had endangered the health or safety of anyone. The contrary was true. The Medical Council did not seek to identify how Dr Pridgeon's actions had posed a risk to the health and safety of children who had been in his care for four years or why his actions might be regarded as a significant concern to the health and safety of children more generally. If that concern were based on the AFP allegation that Dr Pridgeon was involved in, or had provided material support to, a child abduction ring, it was ill-founded as any such allegation was never the subject of a charge and was denied by Dr Pridgeon in any event. The conclusion of the Medical Council that Dr Pridgeon posed a risk to the health and safety of the public had no evidentiary foundation and was irrational.
2. Moreover, whether Dr Pridgeon was a fit and proper person to practise medicine was never an issue before the Council. No complaint was made against Dr Pridgeon about how he practised as a doctor. Nor was there any complaint that he was not a suitable person to do so. The question of whether Dr Pridgeon was a fit and proper person to continue practising medicine was never in issue and the finding that he was not was a breach of procedural fairness.
3. On 15 January 2020, Dr Pridgeon asked the Medical Council to review the decision to suspend his registration. The Council conducted a review on the papers and resolved to affirm its earlier decision. Dr Pridgeon made another such request on 16 September 2020. On 19 October 2020, the Council again confirmed its earlier decision.

The Tribunal's decision

1. Dr Pridgeon's appeal to the Tribunal was not decided upon the ground that he posed a risk to the health and safety of the public upon which basis the Medical Council had suspended his registration. The Tribunal instead determined to uphold his suspension on the ground of public interest.
2. The appeal to the Tribunal was an appeal de novo in which the Tribunal was to be placed in the same position as the Medical Council. Accordingly, the Tribunal was not called upon to consider whether the Medical Council's decision disclosed error.
3. The following paragraphs of the Tribunal decision should be noted: "[192] This case is most unusual for many reasons, not the least of which is that no complaint has been made about the Appellant's practice as a medical practitioner. No patient has complained about his work as a doctor. On the contrary, it seems many patients of the Appellant have extolled his action in 'saving children from abuse'. The Appellant has been very open with disclosing his actions in what he saw as rescuing two girls from the worst of abuse by their father. His case, as it has been presented to us, is that the children have been failed by police and child protection agencies in Queensland and the Family Court, the latter body making orders that the twin girls were to live with their father and spend restricted time with their mother. [193] The action sought by the Medical Council under s 150 is not based on an allegation that the Appellant's registration needs to be suspended to protect the health and safety of the public, its case is that the public interest demands such a suspension. [194] Although it seems on the Appellant's evidence that he trusted the twins' mother when she initially informed him the twins had been sexually abused by their father, the Appellant saw for himself evidence which supported a conclusion that such an allegation was at least probable. We have no doubt that the Appellant genuinely believed the children would be harmed by their father if they were returned to his care. … [199] Whether the Appellant has broken a law, as alleged by the relevant Crown bodies that now prosecute him, is yet to be determined. Even if he is acquitted or ultimately not prosecuted, because the Crown withdraws the charges, it would still need to be determined whether the Appellant is a fit and proper person to hold registration as a medical practitioner. [200] There are clearly circumstances where a medical practitioner charged with a criminal offence would not have his/her registration suspended pending the determination of any such charges. This might occur where a neighbourhood dispute led to allegations and charges of breaching an Apprehended Violence Order. Such charges could carry a sentence of incarceration if proved. In circumstances where the facts alleged are seriously denied and the denials can be seen to have merit, the Medical Council may not suspend the registration of the practitioner pending the outcome of the criminal case. It may impose conditions or take no action at all. [201] The action to be taken under s 150 clearly has to be measured by the potential seriousness of the situation presented to the Medical Council or Tribunal. In this case, the charges arise out of a circumstance which would be expected to disturb the ordinary citizens of Australia. The allegations against the Appellant are that he, with others, orchestrated the hiding of two children in order to evade the effect of orders of an Australian court. It sends a message that it is permissible to evade the orders of an Australian court, where that order is perceived to have been wrongly determined. It has the potential to empower others in society to do the same and to undermine the confidence which parents of young children are entitled to have that their children will not be removed from their lawful custody and kept from them for years. It also has the potential to undermine the rule of law and have flow on consequences for areas of law outside of family law. It is that potential which defines the risk to the public (i.e. public interest) identified in s 150 of the National Law. [202] The further risk to the 'public interest' is the erosion of the public perception that only medical practitioners 'who exhibit traits consistent with the honourable practice of an honourable profession' will be permitted to be registered by the regulatory authority. The term 'honourable practice' must, in our view, include 'to act lawfully at all times'. … [204] The determination required by s 150 in this case focuses upon the time when the matter came before the Tribunal for hearing. It must do so as it requires that in a merits appeal all relevant facts to the date of the hearing in the Tribunal are considered. The nature of the hearing is a 'hearing afresh'. [205] We consider that it is in the public interest to take action under s 150 of the National Law in this case. We accept the mandatory requirement that we must take action where we are satisfied it is appropriate to do so because it is in the public interest. [206] We also reflect upon the words 'high standard' as referred to above in the quoted portions of earlier decisions. [207] The public interest, which we find requires us to take action, is to uphold the confidence of the public in members of the medical profession. That is, that the public requires that members of the medical profession act within the law at all times and act in a manner which upholds the rule of law in this land. Confidence in the medical profession, we consider, is generally likely to be eroded where the public learn a medical practitioner has been charged with committing a criminal act carrying the possibility of incarceration for a significant time. [208] We also find that the seriousness of the circumstances presented to the Medical Council in the earlier determinations and to this Tribunal, is informed by the possible conviction of the Appellant for any of the charges he has now been committed to stand trial on. In this respect, we bear in mind the provisions of ss 55, 144 and 149C of the National Law. [209] It follows that the seriousness of the situation currently faced by the Appellant requires a significant step to be taken by the Tribunal. … [213] In order to make a final decision in this matter we have weighed the following considerations: (1) The criminal charges do not arise out of the Appellant's practice of medicine; (2) The nature of the charges is very serious and they carry a potentially lengthy sentence of imprisonment; (3) It has now been in excess of two and a half years since the Appellant was charged and released on bail; (4) The bail conditions imposed on the Appellant are very restrictive both in the geographical area in which he is permitted to be at any particular time and the contact he is restrained from having with a significant number of people; (5) The Appellant has not been engaged in any other employment since 29 October 2018 when his registration was suspended by the Medical Council; (6) The law requires that the Appellant be regarded as innocent of the charges he faces until the trial has been heard and sentence otherwise given; (7) There is evidence that a cohort of prior and possibly prospective patients would willingly engage the Appellant as their medical practitioner knowing of the charges laid against him and the circumstances out of which the charges arose; (8) The Appellant proposes to defend the charges and has stated he has a number of grounds upon which he will proceed; (9) The charges against the Appellant have changed since he was originally charged in October 2018; (10) The action of the Appellant had the potential to challenge the rule of law. The Appellant knew at the time he assisted the twin girls and their mother to travel out of Queensland (or at least away from the person who had the benefit of a residence order for them) that they were seeking to evade the ruling of a superior court of record in Australia; (11) The Appellant's involvement in assisting to hide the twin girls and their mother from authorities legitimately searching for them is well known to the public at large because of the publicity which attended his arrest and subsequent court appearances. … [218] We have already considered the motivation for the Appellant to have taken the action he did in relation to assisting the mother of the twin girls and the girls themselves. We are satisfied he was confronted with statements from the mother, the behaviour of the twin girls as observed by him, and other physical evidence, which confirmed for him the veracity of the allegations the mother had made about the father of the twins. We consider it was reasonable for the Appellant to believe the twin girls had been the subject of sexual abuse and that the abuse probably came from their father. None of that however, in our view, for the reasons set out above, can be accepted as justification for the Appellant engaging in the action he did, as he has disclosed and as set out in these reasons. That conclusion is so reached regardless of whether the Appellant is correct in his assertion that he has not committed the crimes he has been charged with. The action taken by the Appellant, in our view, has the potential to undermine the fabric of our society which is dependent upon the rule of law being effective and complied with by the citizens of this country. Challenges to decisions of our courts must be taken through the processes which are available. To take action which is motivated to defeat the ruling of a court is such a challenge to our orderly existence that this Tribunal must treat the action as extremely serious. [219] Having concluded as we have above, we now determine the provisions of the National Law, which we have set out herein, must operate to send a message to the practitioners of Australia that such action, as taken by the Appellant, is to be regarded as very serious. We conclude such action does have the potential to bring the medical profession into disrepute, if it is not clear to the public at large that the bodies that control the profession do not sanction that action. We conclude that suspension of the Appellant's registration as a medical practitioner is necessary in the public interest and should be imposed pursuant to s 150 of the National Law. Such suspension should continue until the Appellant has concluded his trial and then makes another application pursuant to s 150A of the National Law, which he may make as of right and as provided for in the National Law. It will then be for the Medical Council to determine if any further action is necessary."
4. It appears from [193] of the Tribunal's reasons that before the Tribunal the Medical Council (which took an active role as contradictor) did not seek to maintain the basis upon which it had suspended Dr Pridgeon's registration, namely that he posed a risk to the health and safety of the public, but on the ground of public interest.

Grounds of appeal

1. Dr Pridgeon raised several grounds of appeal. As will become apparent, it is sufficient for present purposes to note that Dr Pridgeon asserts that the Tribunal improperly exercised its power by purporting indefinitely to suspend his registration as a medical practitioner pursuant to s 150 of the National Law by doing so for a purpose other than those for which the power was conferred. He also maintained that the Tribunal erred in law because it acted without any factual basis upon which the exercise of the power under s 150 depends.

Dr Pridgeon's submissions

1. Dr Pridgeon's submissions are detailed and comprehensive. They appear to have been prepared without the benefit of legal assistance. That appearance notwithstanding, Dr Pridgeon has directed specific and focussed attention on s 150, its perceived nature and purpose, and what he characterises as a failure by the Tribunal properly to give effect to it.
2. Dr Pridgeon emphasises two principal points. First, at no time has his competence as a medical practitioner been questioned. He is not the subject of any complaint or suggestion that he is neither qualified nor fit, in some specified technical or practical way, to practise as a general practitioner as he had done successfully for many years.
3. Secondly, Dr Pridgeon emphasises that s 150 deals with and is directed to suspension of medical practitioners in cases of emergency or where the circumstances call for urgent consideration of whether a medical practitioner should be permitted to retain his or her registration. Dr Pridgeon relied upon the statement of principles applying to a consideration of s 150 by the Tribunal in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [9] as follows: "[9] On such an appeal NCAT is required to exercise afresh the administrative discretion in s 150, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150. As was explained by NCAT (constituted by a tribunal in which Wright J presided) in Karimi v Medical Council of New South Wales, the approach required of NCAT on an appeal of this kind is as follows: [123] … The applicable principles derived from the relevant provisions of the National Law, as discussed in Crickitt and Hanna, may be summarised as follows: (1) Nature of the appeal The Tribunal is to conduct the appeal by way of a new hearing and may consider evidence that was not before the Council as the original decision-maker. The Tribunal's task is not to review the decision of the Council and determine whether its decision was reasonably open in the circumstances. The Tribunal is called on to exercise afresh the administrative discretion in s 150(1) having regard to the material before it. (s 159(3) of the National Law and Hanna at [17]-[18]). (2) Protective jurisdiction The jurisdiction being exercised is directed to the immediate action that may need to be taken in order to protect the health or safety of any person or persons or the public interest. (ss 3A and 150 of the National Law, Hanna at [17] and Crickitt at [47]) (3) Consequences of suspension The exercise of the power to suspend can be described as 'draconian' and will have grave consequences for a practitioner, affecting not only the ability to earn a livelihood, but also the continuing ability to use his or her professional skills. Nevertheless, this is but a consequence of any appropriate exercise of discretion, and not a determining factor. (Crickitt at [56]; see also X v NSW Medical Board (1993) 32 ALD 330 and Lindsay v NSW Medical Board [2008] NSWSC 40 at [80], which considered s 66 of Medical Practice Act 1992 (NSW), being the predecessor to s 150 of the National Law) (4) No need for a detailed enquiry The existence of the power, and the fact that it may be exercised without any formal complaint having been made against the practitioner, and without any disciplinary proceedings having been commenced, is indicative that the Tribunal need not embark upon a detailed enquiry, and may base its reasons on material which would not conventionally be considered as evidence in a strict sense as would be admissible in a court. (Crickitt at [56]; see also Lindsay at [76]) (5) Not required to make any conclusive findings Because the circumstances in which the power under s 150 is to be exercised include that there may be a continuing dispute as to precisely what occurred and why and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. (s 150 of the National Law and Hanna at [19]) (6) Pre-conditions on power to suspend The Tribunal must assess whether 'it is appropriate for the protection of the health and safety of any person or persons' or 'is otherwise in the public interest' to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. (ss 150, 159 and 159C of the National Law and Hanna at [20]) (a) Scope of 'protection of the health and safety of person or persons' The 'protection of the health and safety of any person or persons' does not require there be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of a consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. (Section 150 of the National Law and Crickitt at [48]) (b) Scope of 'public interest' The 'public interest' consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession (ss 150 of the National Law, Hanna at [18] and Crickitt at [56]) (7) No need to determine whether conduct is 'professional misconduct' or 'unsatisfactory professional conduct' Apart from what is involved in assessing the risk referred to in the preceding subparagraphs, it is not otherwise necessary for the Tribunal to determine whether the conduct under notice constitutes 'professional misconduct' or 'unsatisfactory professional conduct' or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. Those are matters that may fall to be addressed at a later stage, if and when disciplinary proceedings are taken against the appellant. (s 150 of the National Law and Hanna at [22]) (8) Nature of suspension power under s 150 An order made under s 150, including a suspension order, is in the nature of an interlocutory order and often must be made on the basis of limited information. (s 150 of the National Law and Crickitt at [51] and the authorities cited there; Lindsay at [79]) (9) Council's separate power to reconsider suspension A practitioner may also apply directly to the Council for a review of a s 150 decision to suspend a practitioner's registration. If satisfied there has been a sufficient change in the practitioner's circumstances, the Council can affirm or vary the decision or set it aside and take any action it has power to take under s 150. (s 150A(2)(b) and (3) of the National Law)."
4. Dr Pridgeon submitted that there was no emergency to warrant the use of the emergency power to suspend his registration. Moreover, the Tribunal's assessment of what was in the public interest erroneously proceeded upon the stated need to maintain confidence in the medical profession and was based upon nothing more than the fact that he faced charges that were yet to be dealt with according to law and which did not in any event raise the spectre of the safety of the community or the protection of the public. It could not be said that there was in any event a demonstrable nexus between the substance of the charges he faces and the reputation of the medical profession.

Medical Council's submissions

1. It is a basic principle of statutory construction that the Court considers the statutory text, read in light of the context of the provision, including the Act as a whole.
2. The Medical Council submitted that the text of s 150 is clear. There is no statutory requirement for a time limit to be placed on a suspension made pursuant to this section: the Medical Council must order the suspension of a registered health practitioner "if at any time it is satisfied it is appropriate to do so for the protection of the health and safety of any person … or if satisfied the action is otherwise in the public interest": s 150(1)(a). A suspension of a registered health practitioner's registration has effect until the complaint about the practitioner is disposed of or the suspension is ended by the Medical Council: s 150(2).
3. In this case, the Tribunal held at [205] that it considered it to be "in the public interest to take action under s 150 of the National Law". The Tribunal then noted the various actions it could take under s 150 at [210] including the possibility of imposing conditions on Dr Pridgeon's registration: at [212]. However, it ultimately held, after considering all the facts presented by the parties afresh, that "the suspension of [Dr Pridgeon's] registration as a medical practitioner is necessary in the public interest and should be imposed pursuant to s 150 of the National Law" and that the suspension "should continue until [Dr Pridgeon] has concluded his trial and then makes another application pursuant to s 150A of the National Law. It will then be for the Medical Council to determine if any further action is necessary": at [219].
4. The Medical Council maintained that this is consistent with the statutory requirements.
5. The Council submitted that it is not relevant that other provisions of the National Law state that a registered health practitioner's registration should be suspended for a "specified period". This is because the powers in s 150 form part of a selection of emergency powers that were introduced into the National Law by the Health Practitioner Regulation Amendment Bill 2010. In the Second Reading Speech for this Bill, Ms Carmel Tebbutt, the then Minister for Health, specifically noted that these suspension powers were not time limited.
6. Accordingly, it was submitted that imposing a suspension without a specified time limit is not contrary to the intentions of Parliament. Nor does the lack of a time limit mean that a suspension under s 150 is not an interim measure or protective in nature. In Ghosh, Brereton JA observed at [5] that: "[5] The purely protective character of the s 150(1) function, and the interim nature of action take under it, has been explained in Kirby v Dental Council of New South Wales [2020] NSWCA 99, where it was held that the touchstone for exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest."
7. His Honour then referred at [9] to the Tribunal's decision in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180.
8. With respect to the public interest grounds, the Medical Council noted that Dr Pridgeon essentially complains that the Tribunal failed to establish that it was in the public interest to suspend his registration. He also contends that there was no evidence upon which the Tribunal could satisfy itself that suspending his registration was in the public interest or alternatively, that it failed to give sufficient weight to the evidence that he provided showing that public interest favours his actions in "protecting children when systems patently failed". Finally, Dr Pridgeon contends that the Tribunal's findings were illogical/unreasonable because the only conclusion on the evidence before it was that the public supported his "acts to protect the twins… as protecting children in all circumstances augments trust and regard for the profession".
9. These submissions raise mixed questions of law and fact. There can be an error of law where there is no evidence to support a finding of fact or where the decision is so unreasonable that no reasonable decision-maker would make it. However, a complaint that a tribunal has failed to give proper weight to some aspect of the evidence in its decision-making process is a complaint about the tribunal's reasoning in determining a question of fact. Therefore, Dr Pridgeon requires leave to appeal on such ground.
10. Regardless of whether the complaint raises a question of law or a question of fact, the Medical Council submitted that none of Dr Pridgeon's complaints indicates any error on the part of the Tribunal for the following reasons.
11. "Public interest" is not defined in the National Law. However, when considering the principles for decisions under s 150, the Tribunal referred at [111]-[114] to the Court of Appeal's decision in Ghosh where Brereton JA referred at [9] to the Tribunal's decision in Karimi which set out the scope of the public interest test at [123] cited earlier.
12. The sentiment was echoed in Steel v Medical Council of New South Wales [2020] NSWCATOD 77 at [30] as follows: "…in the context of ss 3 and 3A of the National Law, the 'public interest' referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the 'competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession'…"
13. In McKinnon v Secretary, Department of Treasury (2005) 145 FCR 70; [2005] FCAFC 142, Tamberlin J held at [9]-[11] that the expression "in the public interest" "… directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances… The expression 'the public interest' is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination… The indeterminate nature of the concept of 'the public interest' means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination."
14. In the current matter, the Tribunal held that it was satisfied that it was in the public interest to suspend Dr Pridgeon's registration because: 1. The allegation that he "orchestrated the hiding of two children in order to evade the effect of orders of an Australian court… sends a message that it is permissible to evade the orders of an Australian court, where that order is perceived to have been wrongly determined…[and] has the potential to empower others in society to do the same and to undermine the confidence which parents of young children are entitled to have that their children will not be removed from their lawful custody and kept from them for years. It also has the potential to undermine the rule of law and have flow on consequences for areas of law outside of family law": at [201]; 2. Dr Pridgeon's conduct erodes "the public perception that only medical practitioners 'who exhibit traits consistent with the honourable practice of an honourable profession' will be permitted to be registered by the regulatory authority" and the term "honourable practice" must include "to act lawfully at all times": at [202]; 3. The public interest "is to uphold the confidence of the public in members of the medical profession" which "requires that members of the medical profession act within the law at all times and act in a manner which upholds the rule of law in this land. Confidence in the medical profession… is generally likely to be eroded where the public learn a medical practitioner has been charged with committing a criminal act carrying the possibility of incarceration for a significant time": at [207]; and 4. Dr Pridgeon's actions have "the potential to undermine the fabric of our society which is dependent upon the rule of law being effective and complied with by the citizens of this country. Challenges to decision of our courts must be taken through the processes which are available. To take action which is motivated to defeat the ruling of a court is such a challenge to our orderly existence that this Tribunal must treat the action as extremely serious": at [218].
15. The Medical Council submitted that, contrary to Dr Pridgeon's submissions, these findings were based on evidence, specifically the oral evidence, given by Dr Pridgeon at the hearing, where he conceded "that at the time he first helped the mother and her children he knew of a court order for the children to live with their father. He was aware that the mother took the children from their father in 2014" and "He was aware at that time there were family law proceedings on foot". The Tribunal also noted that "when it was put to him that he thought the father of the twin girls had been given custody of them by the Family Court, and that that was the wrong decision to make, Dr Pridgeon agreed". He also agreed he did not trust the Family Court. When it was put to him that he does not trust child protection agencies, "he said he didn't in the past". He also said, "I will continue to fight for those children in the Courts. I will continue to seek to expose this abuse. It is my duty and my destiny to deal with this matter."
16. There was also significant documentary evidence before the Tribunal about the criminal charges Dr Pridgeon is facing. The Medical Council submitted that together this evidence was sufficient for the Tribunal to conclude that the public interest test had been met.
17. The Council also contended that, contrary to Dr Pridgeon's other submission that the Tribunal failed to give sufficient weight to his evidence that showed there was a public interest in favour of his continuing to practise as a general practitioner, the Tribunal clearly took this into account, noting at [213(7)] that it considered the fact that "there is evidence that a cohort of prior and possibly prospective patients would willingly engage [Dr Pridgeon] as their medical practitioner knowing of the charges laid against him and the circumstances out of which the charges arose". The Council submitted that there is also no basis for the assertion that the Tribunal's decision was illogical or unreasonable as there was clearly sufficient basis for the Tribunal concluding that the public interest test had been met.
18. The Medical Council submitted that the appeal should be dismissed.

Consideration

1. Division 3 of Pt 8 of the Health Practitioner Regulation National Law (NSW) of 2009 is headed "Complaints". The heading of the Division and the Subdivisions are to be taken to be part of the Act: Interpretation Act 1987 s 35(1). The headings to the sections are not to be taken to be part of the Act but a part of the extrinsic material that can be used in the construction of the Act as allowed by ss 34, 35(2) and (5). Subdivision 1 is headed "Making complaints" and includes s 144 which sets out the grounds of complaint that can be made about a registered health practitioner: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner-- (a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) A complaint the practitioner is not competent to practise the practitioner's profession. (d) A complaint the practitioner has an impairment. (e) A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
2. It is not suggested in the present case that Dr Pridgeon has been guilty of unsatisfactory professional conduct or professional misconduct as defined in ss 139B-139E. Relevantly, the definition of unsatisfactory professional conduct includes "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession": s 139B(1). Being convicted of a criminal offence is not unsatisfactory professional conduct unless it is a conviction arising from conduct that is an offence under nominated sections of the Mental Health Act 2007, the Children and Young Persons (Care and Protection) Act 1998, the Guardianship Act 1987, the Health Insurance Act 1973 (Cth) or the Private Health Facilities Act 2007: s 139C. Professional misconduct is sufficiently serious unsatisfactory professional conduct: s 139E.
3. Dr Pridgeon is accused of none of these things.
4. Nor has Dr Pridgeon been convicted of any offence. There was no charge that he was guilty of unprofessional conduct or professional misconduct, or that he lacked competence or was impaired. There has been no charge that he was otherwise not a suitable person to hold registration as a medical practitioner, even though that is the gravamen of the findings of the Medical Council and the Tribunal.
5. If a complaint had been made to the Council or to the Health Care Complaints Commission on the basis that Dr Pridgeon was not a suitable person to hold registration in his profession, the complaint would have had to be in writing and to contain particulars of the allegations on which it was based: s 144D. Section 145D provides: 145D Serious complaints must be referred to Tribunal [NSW] (1) Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's or student's registration. (2) However, either the Council or the Commission may decide not to refer the complaint to the Tribunal if of the opinion the allegations on which the complaint is founded (and on which any other pending complaint against the registered health practitioner or student is founded) relate solely or principally to-- (a) for a practitioner, the physical or mental capacity of the practitioner to practise the practitioner's profession; or (b) for a student, the physical or mental capacity of the student to undertake clinical training in the health profession in which the student is registered. (3) If the Council decides not to refer the complaint to the Tribunal, the Council must instead refer the complaint to a Committee or Impaired Registrants Panel. (4) If the Commission decides not to refer the complaint to the Tribunal, the Commission must instead refer the complaint to the Council. (5) This section does not require the Council or the Commission to refer a complaint the Council or Commission thinks is frivolous or vexatious. Note : A referral under this section is an application made to the Tribunal for a general decision for the purposes of the Civil and Administrative Tribunal Act 2013.
6. By reason of the limitation in s 145D(1), the Medical Council could not have suspended Dr Pridgeon's registration even if a complaint had been made. If the Medical Council had formed the opinion that the complaint warranted suspension, it would have had to refer it to the Tribunal. If a complaint had been made, Dr Pridgeon would have been entitled to attend the meeting of the Medical Council at which the complaint was considered and to make submissions: s 148D(1).
7. This is the setting in which s 150 is to be found. It is contained in a Division headed "Complaints" and in the context of provisions that contemplate that if a complaint is made, it will be the Tribunal and not the Medical Council that would have the power to suspend. Section 150 is contained in Subdivision 7. The heading to that Subdivision is "Powers of a council for protection of public". .
8. Section 150 provides relevantly as follows: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest-- (a) by order suspend a registered health practitioner's … registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; … … (2) A suspension of a registered health practitioner's … registration under subsection (1) has effect until the first of the following happens-- (a) the complaint about the practitioner … is disposed of; (b) the suspension is ended by the Council. (3) … (4) A Council for a health profession may take action under this section- (a) whether or not a complaint has been made or referred to the Council about the practitioner …; and (b) whether or not proceedings in respect of a complaint about the practitioner … are before a Committee or the Tribunal. …
9. Section 150(4) makes it clear that the Medical Council was entitled to take action notwithstanding that no complaint had been made to it about Dr Pridgeon. However, a relevant question for the Council is whether it should act under s 150 where no complaint has been made.
10. The context indicates that the usual way in which a complaint against a doctor should be dealt with is by the making of a particularised complaint, which the doctor can address at an oral hearing and which, if sufficiently serious to warrant suspension, is to be referred to the Tribunal. This suggests that the power of the Medical Council to suspend a doctor's registration under s 150 should be reserved for urgent cases. This is confirmed by the Explanatory Note relating to s 150, which refers to the Medical Council's powers "to act where it is necessary to take urgent action for the protection of the public", and the Second Reading Speech for the Health Practitioner Regulation Amendment Bill 2010, which referred to cases of urgency or emergency in the following terms: "The principal definition of 'unsatisfactory professional conduct' in this bill is in proposed section 139B. Sections 139C and 139D go on to set out additional matters relevant to medical practitioners and pharmacists respectively. I further advise the House that, as with the definitions of 'unsatisfactory professional conduct', the other aspects of the existing complaints processes are to be carried over with little change. There is a small number of areas in which there will be change, and many of these changes reflect changes brought about by the national registration system. These areas of change include: changes required to reflect the registration of students in all professions and changes to the council's powers regarding emergency suspensions. … With respect to the changes to provisions concerning emergency suspensions, I advise the House that the changes proposed involve moving from emergency suspensions of not more than eight weeks in duration to emergency suspensions that are not time limited. While this is an extension of the suspension power, it must be noted that a practitioner who is subject to such a suspension may apply for a review of that suspension at any time and as frequently as he or she wishes. Of course, a council will be able to decline to accept an application that is frivolous or vexatious. However the professional and board representatives who have considered this matter agree that it is appropriate and that the right to apply for a review at any time meets any concerns about procedural fairness…" [Emphasis added]
11. Additionally, although there is no definition of "public interest", the content of the expression is informed by the heading to Subdivision 7 that the powers provided by s 150 are to be exercised for the protection of the public.
12. It is apparent that the Tribunal recognised that Dr Pridgeon was, in the circumstances that faced him, in effect presented with a dilemma: see, for example, [218] of the Tribunal decision. The Tribunal considered that it was reasonable for Dr Pridgeon to believe that the twin girls had been the subject of sexual abuse and that it was probably inflicted by their father. Dr Pridgeon was therefore confronted with a choice between assisting their mother to hide the children from their father whom he reasonably believed to be abusing them or to allow them to be returned to their father because he was entitled to their custody in accordance with an order of the Family Court.
13. In his submissions to the Medical Council, Dr Pridgeon, who was at that time unable to afford legal representation, made no reference either to s 70NAE of the Family Law Act 1975 (Cth) or to s 286 of the Criminal Code (Qld). Those provisions are relevantly as follows: 70NAE Meaning of reasonable excuse for contravening an order (1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7). … (4) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if: (a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and (b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a). … 286 Duty of person who has care of child (1) It is the duty of every person who has care of a child under 16 years to - (a) provide the necessaries of life for the child; and (b) take the precautions that are reasonable in all the circumstances to avoid danger to the child's life, health or safety; and (c) take the action that is reasonable in all the circumstances to remove the child from any such danger; and he or she is held to have caused any consequences that result to the life and health of the child because of any omission to perform that duty, whether the child is helpless or not. (2) In this section - "person who has care of a child" includes a parent, foster parent, step-parent, guardian or other adult in charge of the child, whether or not the person has lawful custody of the child.
14. Dr Pridgeon ultimately made reference to s 70NAE in his submissions to the Tribunal. However, the Tribunal did not refer to it in its decision.
15. Dr Pridgeon said that he was unaware of s 70NAE when he wrote his letter relied on by the Medical Council in its first decision. Even in the absence of a defence under s 70NAE, we would not consider that Dr Pridgeon's deliberate contravention of the law or of the orders of the Family Court would warrant a finding that it was in the public interest that his registration be suspended.
16. As already noted, the Tribunal recognised that the circumstances that led to the decision of the Medical Council on 29 October 2018 were "extraordinary". It is by any measure a rare and exceptional case.
17. With respect to the Tribunal's finding at [201], this is not a case in which a doctor merely says that an order of the Family Court should be disregarded or evaded because he or she considers or perceives the order to be wrong. Dr Pridgeon was not concerned with whether the order was "right" or "wrong" but was concerned only with what he feared would be the inevitable consequences of complying with the order. The Tribunal accepted that he believed that complying with the order would have resulted in the perpetuation of further abuse of the children.
18. The Tribunal's indication at [202] and [207] that the term "honourable practice" in the phrase "honourable practice of an honourable profession" must include a requirement that members of the medical profession act within the law at all times is in our view problematic, and begs the question in light of s 70NAE of the Family Law Act and arguably s 286 of the Criminal Code (Qld). It is also not consistent with the notion that there are some circumstances in which a person can, without a stain on his or her honour, commit a felony: see, for example, In Re a Solicitor; ex parte the Incorporated Law Society (1889) 5 LT 486 at 486-487. Although there may be some circumstances where a tribunal or statutory authority may be empowered to make a finding as to the likelihood that a criminal offence had been committed as a step in taking disciplinary action (as to which, see Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [93]), it is the courts that are charged with the duty of determining guilt or innocence, not the Medical Council or the Tribunal.
19. The second sentence of [207] suggests that it was because Dr Pridgeon had been charged with committing a criminal act, carrying the possibility if convicted of a significant period of incarceration, that confidence in the medical profession might thereby be reduced and that his suspension from practice was therefore justified. We do not accept that in the circumstances of the present case. Although the Tribunal was at pains to say that it accepted the presumption of innocence, the statement that the charging of Dr Pridgeon with serious criminal offences was enough to justify his suspension from practice is entirely inconsistent with its existence. It deprives the presumption of any meaningful content.
20. The Tribunal's observations at [208]-[209] are to like effect. The fact that Dr Pridgeon faces serious criminal charges could not, without more, require the Tribunal to take the "significant step" to which it referred. The public interest is not obviously served by the suspension of a competent and experienced doctor whose medical skills are not in question and whose services are in demand simply because he has been charged with offences in respect of which he would appear to have a good arguable defence. The Tribunal's reference (at [201]) to the undermining of the rule of law proceeds, in the particular circumstances of this case, upon the unspoken assumption, possibly encouraged by his commendably guileless submissions, that Dr Pridgeon will in all likelihood be convicted. The troublesome nature of that assumption will be immediately apparent.
21. From our consideration of these matters, the following errors emerge.
22. First, in the context of Subdivision 7, the reference to the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned.
23. Secondly, and in any event, it could not (yet) be said that Dr Pridgeon's alleged defiance of the court's orders undermines the rule of law. His actions may be found to have been justified under s 70NAE(4) of the Family Law Act or he may otherwise be acquitted by a jury, in the case of the Commonwealth offences, or by a judge or jury, in the case of the State offences. For any number of reasons about which it is unnecessary to speculate, Dr Pridgeon's guilt is not a foregone conclusion. Although the Tribunal paid lip service to the presumption of innocence and did not make findings of guilt, its conclusions were patently infected by assumptions of guilt.
24. Thirdly, the context of s 150 suggests that it should only be invoked as an emergency power where the circumstances are urgent. The Medical Council's submissions specifically acknowledge and accept that the powers in s 150 form part of a selection of emergency powers that were introduced into the National Law. However, that is not this case. This implication arises from the fact that Division 3 provides for the primary mechanism for regulating the profession by way of particularised complaints, including an oral hearing if sought, to be dealt with by the Tribunal, not the Medical Council, if suspension is sought. That construction is reinforced by the Explanatory Memorandum and the Second Reading Speech. There was no urgency in this matter at any time before or during the Tribunal hearing.

Conclusions and orders

1. It follows in our opinion that leave to appeal should be granted and that the appeal should be allowed. The orders of the Tribunal and the Medical Council should be set aside.
2. The orders of the Court are: 1. Extend the time for the applicant to file his notice of appeal and application for leave to appeal to 2 November 2021. 2. To the extent necessary, grant the applicant leave to appeal. 3. Allow the appeal. 4. Set aside the orders of the Civil and Administrative Tribunal of 30 June 2021. 5. Set aside the orders of the Medical Council of New South Wales of 29 October 2018 and 2 December 2020. 6. Order that the respondent pay the applicant's costs of proceedings in this court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2022