Qasim v Medical Council of New South Wales

Court of Appeal (NSW)|2021-05-07|Before: Bell P, Brereton JA

Background

The appellant was first registered as a medical practitioner in New South Wales on 11 December 1985, having graduated with the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of New South Wales. She was admitted as a Fellow of the College of Physicians, in Endocrinology, in 1996, and practised as an endocrinologist.

2010 complaint

On 27 October 2010, the respondent Medical Council of New South Wales ("the Council") invited the appellant to respond to a letter which it had received from Professor Roger Smith, Professor of Endocrinology at the John Hunter Hospital, and which was countersigned by four other endocrinologists, expressing concerns about the standard of medical care she was providing in her practice of endocrinology, based on letters she had sent to referring general practitioners and patients. She responded in early December 2010, not only addressing the complaints but also making serious allegations against a number of others. The Council resolved to hold proceedings to consider taking action under s 150 of the (NSW) Health Practitioner Regulation National Law ("the National Law"), which provides for interim action to protect the public. Following a hearing on 22 December 2010, the Council suspended the appellant's registration, and recommended that she be assessed by a Council-appointed psychiatrist before an application to lift the suspension was considered.

2014 proceedings

The Health Care Complaints Commission ("HCCC") brought disciplinary proceedings in NCAT. The 2014 Tribunal had before it five complaints against the appellant, alleging: 1. unsatisfactory professional conduct, in that she had engaged in conduct that demonstrated that the knowledge or judgment possessed or care exercised by her in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or practice, in ten particulars, which referred to letters sent by the appellant which were said to contain statements which were alleged not to reflect current clinical knowledge, and one which related to an allegedly inappropriate prescription; 2. unsatisfactory professional conduct, in that she had engaged in conduct that demonstrated that the judgment possessed or care exercised by her was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and had engaged in improper or unethical conduct relating to the practice or purported practice of medicine, in four particulars, two involving instances of inappropriate and unprofessional comments regarding patients in letters to general practitioners, and two involving allegedly unprofessional comments in a letter to a patient; 3. professional misconduct, in engaging in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation, or in more than one instance of unsatisfactory professional conduct that when considered together justified suspension or cancellation (particularised by reference to complaints (1) and (2)); 4. impairment, in that she had a physical or mental impairment, condition, or disorder, namely a paranoid or delusional disorder of a sufficient nature and degree to impair her mental capacity to practise the profession; and 5. incompetence to practise the profession, in that she did not have sufficient mental capacity, knowledge, and skill to do so, as she suffered from an impairment, as particularised in complaint (4), which was of a sufficient nature and degree to impair her mental capacity to practise (and the particulars of complaints (1) and (2) were also relied on, individually and cumulatively).
In the proceedings before the 2014 Tribunal, Dr Samuels gave expert opinion evidence to the effect that the appellant suffered from a paranoid delusional disorder which impaired her mental capacity to practise as a medical practitioner. His opinion was based in part on an assumption that she had a history of conflicts with others, which had involved extensive engagement in litigation, and disruption to her medical practice. In large part, those conflicts related to the appellant's interactions with other occupants of an apartment building in Randwick, including Mr Igra, Dr Sutherland, and Dr Miller, about which there were a number of disputes ("the building disputes"), including in the (then) Consumer, Trader and Tenancy Tribunal, of which NCAT was the successor. Each of Mr Igra, Dr Sutherland, and Dr Miller, who had informed the HCCC of concerns they claimed to hold about the appellant's fitness, gave evidence in the 2014 Tribunal proceedings.
The 2014 Tribunal found all five complaints to be proven. On 2 May 2014, it made orders that the appellant's registration be cancelled and that she was not permitted to apply for reregistration or review for a period of four years. [2] However, the order that her registration be cancelled was made only on the basis of complaint (5), namely that she was not competent to practise because of the impairment caused by her paranoid disorder. It was not made on the basis that she was not competent by reason of lacking sufficient knowledge and skill; nor was it made on the basis of the finding of professional misconduct: had complaints (1), (2), and (3) been the only complaints sustained, the Tribunal would have imposed conditions requiring further training and supervision. [3]
The appellant appealed to this Court. Her challenge to the finding that complaint (3) (professional misconduct) was established was upheld, on the basis that the Tribunal's reasons did not explain why any conduct which was the subject of complaints (1) and (2) was sufficiently serious to justify suspension or cancellation. [4] However, as the finding of professional misconduct did not provide the basis for the deregistration order, her success on this issue did not disturb the cancellation of her registration. [5]
Thus the basis of the appellant's deregistration was, solely, lack of competence by reason of an impairment, namely a paranoid or delusional disorder, of a sufficient nature and degree to impair her mental capacity to practise. Although allegations of sub-optimal treatment of patients were included in complaints (1) and (2), and were found proven, they did not provide the basis for the finding of unfitness on account of which her registration was cancelled.

Application for reinstatement

On 10 November 2019, the four-year preclusion period fixed by the order of 2 May 2014 having expired, the appellant applied to NCAT, pursuant to s 163A of the National Law, for reinstatement. After a number of directions hearings, the hearing of the application by the 2020 Tribunal commenced on 17 August 2020, continued on 18 August 2020, and concluded on 23 November 2020. On 19 December 2020, NCAT dismissed the application, with costs, and ordered that the appellant be precluded from making a further application for a further period of four years. [6]

The appeal

On 11 January 2021, the appellant filed a Summons by way of appeal in the Common Law Division, containing eight grounds of appeal. On 17 March 2021, the proceedings were transferred to the Court of Appeal, presumably because the 2020 Tribunal was constituted by a panel of which the Principal Member was an Acting Judge of the District Court. On 7 April 2021, the appellant filed a Notice of Appeal stating six grounds of appeal which partly overlap with the eight grounds stated in the Summons. Pursuant to cl 29(2)(b) of Schedule 5 of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act"), the appeal (being a "non-lawyer appeal") lies as of right on any question of law, or with leave of the Court on any other grounds. In other words, without leave, the appeal is limited to a question of law.
The grounds of appeal, and the appellant's written submissions, are extensive, inclusive, and discursive. In the circumstances, rather than adopting too strict and technical an approach in directing and confining consideration to the enumerated grounds, it is preferable to approach the appeal as a matter of substance, by identifying the principles that the 2020 Tribunal was required to apply and the issues it was required to decide, and then examining whether there is identifiable material error in its decision.

Re-instatement applications: principles and issues

The proceedings below were an application, by way of review under s 163A of the National Law, for reinstatement. Such an application is an inquiry into present fitness, and not a review of the original decision in which the practitioner was deregistered. Although, under earlier legislation, the Medical Tribunal could revisit the earlier decision, [7] the present legislation precludes that course, as s 163C of the National Law provides as follows: 163C Inquiry into review application (1) A review under this division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. …
In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. [8] In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, [9] the paramount consideration being the protection of the health and safety of the public. [10]
The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness. [11] An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession. [12]
Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit. In this case, given that the sole basis of the appellant's deregistration was lack of competence by reason of an impairment, what the appellant had to demonstrate was that she was no longer unfit by reason of an impairment of such a nature and degree as impaired her mental capacity to practise. On that issue, she bore the onus of proof.

The 2020 Tribunal's decision

In the decision under appeal, the 2020 Tribunal reiterated that it was not its function to reconsider the circumstances which led to the cancellation of the applicant's registration. [13] The Tribunal referred to Asar v Medical Council of New South Wales, in which the Tribunal had said: [14] "It is not the function of this Tribunal to revisit the conduct which led to the cancellation of the applicant's registration. The Tribunal proceeds upon the basis that the 2016 Tribunal found that the applicant was not a fit and proper person to practise medicine. The issue before this Tribunal is whether it is satisfied, upon the evidence now before it, that the circumstances which led to the cancellation no longer prevail and that the health and public safety of the community are protected in accordance with the requirements of section 3A of the National Law. That is, the Tribunal is required to assess whether or not the deficiencies in the applicant's character have been remedied. As was stated in In Re Jason Martin [2010] NSWMT 13 at page 8: [I]t is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future"."
Thus, the Tribunal correctly identified that it must be satisfied that the appellant is now "a proper person" to be registered, against the background of the finding of the 2014 Tribunal that she was not, by reason of lack of competence for want of sufficient medical capacity or knowledge and skill to practise by reason of her alleged psychiatric disorder.
In addressing that question, the 2020 Tribunal observed that "virtually the entirety of the material relied upon by the applicant in this application consists of criticism of the 2014 Tribunal decision; a regurgitation of her claims made before the 2014 Tribunal; including claims that the 2004 decision relating to her strata building dispute was erroneous." [15] It observed that the appellant criticised the Presiding Member of the 2014 Tribunal, members of the legal profession, and Dr Samuels, and made "scandalous remarks" concerning each, and that she had tendered case histories relating to patients which were the subject of the 2014 proceedings and provided voluminous statements concerning them. [16] The Tribunal then proceeded: [17] "The applicant has produced no evidence which suggests that the impairment which was found by the original Tribunal to exist has been addressed. No psychiatric reports have been provided by the applicant; nor is there any evidence of treatment to address the condition found by the 2014 Tribunal. The applicant had consulted a psychiatrist (Dr David Sturrock) on 3 occasions commencing in November 2019. No report of Dr Sturrock has been obtained by the applicant."
The Tribunal observed that the only recent medical evidence was that of Dr Samuels, who noted that there was no evidence that the appellant had received any psychiatric or psychological treatment since the initial hearing, and that his experience of the appellant on 8 July 2020 (in an exchange which preceded a proposed interview which did not proceed) supported the conclusion that her condition continued to exist. [18] The Tribunal concluded: [19] "The Tribunal is satisfied that the impairment, as defined in s 5 of the National Law, which has been identified, is still present, and prevents this application from succeeding. The applicant is suffering from a mental impairment which is likely to detrimentally affect her capacity to practise as a medical practitioner."
The Tribunal then observed that the appellant's submissions and evidence before the Tribunal tended to confirm its conclusion (emphasis added): [20] "Such material is fixated upon proceedings which were taken in another Tribunal concerning a dispute in which the applicant was involved concerning her home unit. The applicant attacks the decision-maker, the witnesses and the experts in those proceedings. Thereafter, the applicant's material attacks the findings of the 2014 hearing. The attacks upon both the legal counsel, the presiding judge, the medical experts who supported the application against her, are vindictive, malicious and spiteful. The applicant clearly has no insight into her condition nor does she have any insight into the necessity for her to demonstrate that she is in a fit state to practise medicine. Despite the fact that this Tribunal has repeatedly drawn her attention to this requirement, no attempt has been made to address the fundamental issue in this application."
Thus the Tribunal's conclusion was that the appellant had not discharged her onus of showing that she was no longer unfit to practise by reason of impairment. The basis of that conclusion was that: 1. there was no evidence probative of the appellant's current fitness; 2. the only recent evidence relating to the appellant's fitness was that of Dr Samuels, who remained of the opinion that she was impaired; and 3. that view was confirmed by the Tribunal's own observations.
It is convenient to consider, in turn, those three elements of the Tribunal's decision.

Absence of evidence of current fitness

When asked to identify what evidence there was before the 2020 Tribunal that she was a fit and proper person in 2020, the appellant referred to "testaments of the GPs, and the patient outcomes", [21] and in particular: 1. a letter from Dr Nelapati, dated 14 December 2020, with reference to a patient EP, who Dr Nelapati had referred to the appellant in August 2009. Dr Nelapati wrote "I understand she was seen by Qasim once and appropriate advise [sic] was given at the time". He stated that "Dr Qasim's care was appropriate"; 2. a radiologist's report dated 4 August 2011, relating to the same patient; 3. her results, recorded on a document entitled "American Endocrine Society Performance Report 2017", with a total score of 91%, placing her in the 78th percentile of participants; 4. a statement of Mr Gregory Bartels, an accountant, dated 27 June 2020, who stated that the appellant had correctly diagnosed his condition and that he strongly supported her reinstatement so that he could seek ongoing treatment through her; and 5. a statement of Mr Douglas Simes, dated 23 June 2020, who stated that he was self-employed in the furniture business and strongly supported the reinstatement of the appellant, and otherwise dealt with matters relating to the building disputes.
As it transpired, Dr Nelapati's letter was not before the 2020 Tribunal; it post-dated the Tribunal proceedings. In any event, it did not address the question of current fitness, but in effect sought to contradict the 2014 decision, in which the appellant's management of EP was one of the subjects of complaint and was found to be inappropriate. [22] Likewise, the radiology report in relation to the same patient does not provide evidence of the appellant's current fitness.
The 2017 American Endocrine Society Performance Report results, although somewhat stale, at least arguably relate to her current competence, but only in an academic sense; the finding of unfitness in 2014 was not made on the basis of lacking sufficient knowledge and skill.
The appellant said that she saw Mr Bartels once, on a referral from a European orthodontist, for about half an hour in 2017; she said it was not a medical consultation. Regardless, Mr Bartels' statement of support provides no evidence that the appellant is no longer impaired in the manner found by the 2014 Tribunal. Similarly, Mr Simes' statement of support provides no such evidence.
Accordingly, subject to the "Best Practice" material next discussed, the appellant adduced no evidence before the 2020 Tribunal capable of establishing that she was no longer impaired to a degree that made her unfit for medical practice.

The "Best Practice" material

The appellant repeatedly submitted, before us as she had before the 2020 Tribunal, that the "patient outcomes" or "Best Practice" analysis was very important. This was a reference to an analysis of her management and the outcomes in respect of a number of patients whom she had treated prior to or during 2010, and who were the subject of complaint in the 2014 Tribunal proceedings that resulted in the cancellation of her registration. The purport of this analysis was to demonstrate the appropriateness of her treatment, through the outcomes ultimately achieved, and that it accorded with "Best Practice" guidelines. Before us, the appellant characterised the relevance of this material as showing that she was "way ahead" in her treatment of patients; in this respect, there was a hint of an argument that, at least in some respects, subsequent advances or ultimate outcomes had, retrospectively, shown that the managements for which she had been criticised had been successful and appropriate.
The appellant complained that the 2020 Tribunal did not consider this evidence and argument. This raises a potential error of law, being a failure to take into account as a relevant consideration the appellant's "Best Practice" evidence and argument, which I now consider.
When the appellant sought to tender her "Best Practice" document before the 2020 Tribunal, early on the first day of the hearing, the Principal Member pointed out that "[o]n an application like this the law is quite clear and well established that we are not to go back into the previous findings of a Tribunal or a Court which has already dealt with the matter", and that "[t]hose findings cannot be challenged now". He said "I'm not going to hear argument on matters which related to the findings of the first Tribunal. That has been dealt with. That has gone to the Court of Appeal and the application now before us requires you to tell us and produce evidence before us which shows that any deficiencies or troubles which you experienced at that time have now been addressed." When pressed as to the material on which she relied to demonstrate current fitness, the appellant referred to "volume 1, 107 to 115". The document located at those pages was the "Best Practice" analysis document. The Principal Member emphasised, "[s]o what effectively you need to put before this Tribunal is evidence that you have now addressed the problems which were identified by the previous Tribunal in 2014", and after looking at the "Best Practice" document continued, "[b]ut this relates to various patients" and "[w]e're not dealing with them. I've made it very clear, doctor, we are not having anything to do with what the previous Tribunal considered", concluding "[t]he law is very clear. This Tribunal is not authorised to go and revisit the findings in relation to those patients." Throughout this exchange, the appellant had repeatedly endeavoured to rely on the "Best Practice" document. [23]
At the end of that day, a further exchange took place, when the Principal Member asked the appellant whether there was any more material she wished to tender. The appellant said, "Well I know you don't wish to visit the Best Practice that is the clear evidence of my competency in the management of those patients." The Principal Member replied, "I have said that is not really relevant because it has already been dealt with that's been appealed to the Court of Appeal …". The appellant pressed the point and took the Tribunal, again, to her "Best Practice" document, to which the Principal Member said, "[t]he answer is no, the Tribunal will not be going there doctor." The appellant was asked whether she wished to proceed the following day, and replied, "[i]f you are not considering any more material which I have you are not considering my Best Practice". The Principal Member said, "[y]our Best Practice was considered", and the appellant replied "[n]o, no, no, Best Practice is outcome has been determining in the last ten years not at the time". [24] The exchange concluded: [25] "APPLICANT: No. What Dr Fulcher is saying is correct. I think my avenue should be High Court because if you are not going to consider any more material from me, especially if you are not looking at my Best Practice, I personally think that is - Best Practice has been concluded this year. PRINCIPAL MEMBER COWDROY: Your Best Practice was considered and rejected as being not appropriate by the panel."
As I understand it, that was a reference to the 2014 Tribunal as having rejected the appellant's practice as not appropriate.
While the position that the "Best Practice" material was irrelevant was firmly articulated by the Principal Member in the course of argument, the Tribunal's reasons reveal that it received, and did not entirely disregard, it. In summarising the grounds of the application, the Tribunal noted that they included: [26] "(2) The applicant is competent to practise as a health professional to practise the profession as evidenced by Best Practice annexed at B pages 107-115 of patients ABCDEFGHI. … (4) The applicant has the knowledge and skills to practice [sic] the profession: #Best Practice, pages 107-115. Cases 1 & 2, 2018-2019, annexed at pages 134 and 135."
In cataloguing the evidentiary material proffered before it by the appellant, the Tribunal referred to her affidavit of 11 June 2020, attaching "reports relating apparently to patients of the applicant". [27] That the Tribunal did not entirely disregard the appellant's "Best Practice" material, although pointing out that it was unsupported by expert evidence, is indicated by the following passages in its decision: [28] "[84] The applicant asserted that in the years since the 2014 Tribunal hearing, the patients which were the subjects of Complaints in those proceedings have recovered, thereby vindicating her treatment of them. The applicant states that she has discussed the patients with their General Practitioners. No evidence, other than the Applicant's assertions, have been produced. [85] Apart from the assertions made by the applicant, there is no medical evidence relating to any of the patients which confirms that the patients have recovered or that her treatment of them was appropriate. There is no evidence in the way of medical reports or evidence from the General Practitioners to support the applicant's assertions."
Subsequently, the Tribunal said (emphasis added): [29] "The material supporting her submission is, in effect, identical to the material which was placed before the Tribunal. It includes material used in the 2014 Tribunal decision and material related to her building dispute which was considered in the 2014 Tribunal decision. There is no medical evidence relating to her current medical condition. The applicant however raises allegations of "Best Practice", claiming that the respondent had an obligation to file an affidavit in answer to her application. No such obligation existed where the applicant sought to challenge the correctness of the 2014 Tribunal decision. The applicant also refers to "Best Practice" repeatedly in relation to the treatment of the patients who were the subject of the 2014 Tribunal proceedings. The applicant repeatedly requested this Tribunal to also apply "Best Practice". In so far as such practice relates to the treatment of the patients in those proceedings, it is not relevant to these proceedings since a determination has already been made. In the current application, the concept of "Best Practice" does not arise, since no patients are the subject of consideration. As has been stated repeatedly to the applicant, the issue is the applicant's condition."
The asserted and apparent relevance of the "Best Practice" material was twofold: primarily, to contradict the findings of the 2014 Tribunal in respect of the patients to which it related; but also, to demonstrate that the appellant adhered to appropriate managements of patients.
The essential question which emerged is whether the 2020 Tribunal was right to regard the "Best Practice" material as irrelevant, because it was precluded by law from revisiting the findings of the 2014 Tribunal. When the law was as stated in Rohatgi and Zaidi, [30] it would have been open to a review tribunal on a re-instatement application to review the findings and order of the original tribunal. However, as Mr Fraser submitted, Rohatgi and Zaidi were effectively overruled by National Law, s 163C(2), which precludes a review of the decision and findings of the earlier tribunal. The Tribunal was right to hold that the "Best Practice" material was irrelevant, insofar as it was to be used to contest the findings of the 2014 Tribunal.
It is unnecessary in this case to determine whether s 163C(2) precludes consideration by a review tribunal in a reinstatement application of matters that were before the earlier tribunal, in a manner which does not involve impeaching the decision of the earlier tribunal. For present purposes, I am prepared to accept that, at least theoretically, the "Best Practice" material might have been relied on, not to contest the findings of the 2014 Tribunal, but independently to support an inference of present fitness by showing that the appellant's historical treatment of patients complied with current "Best Practice" guidelines. If it were contended that, as a result of advances in medical knowledge in the meantime, historical cases could now be seen to have been appropriately managed, it would appear desirable that such material should be available to a review tribunal. However, in this case, the "Best Practice" analysis related to the very same patients whose management by the appellant had been found inappropriate by the 2014 Tribunal, and thus involved a direct challenge to the findings of that Tribunal, which was made impermissible by s 163C(2). Moreover, as the Tribunal observed, and as the respondent submitted, there was no expert evidence to support the proposition that hindsight supported the appellant's management of those patients.
More importantly, such evidence could not have availed the appellant in this case, because, as has been noted, the basis of her deregistration was, solely, lack of competence by reason of an impairment, namely a paranoid or delusional disorder, of a sufficient nature and degree to impair her mental capacity to practise. The allegations of inappropriate management of the patients included in complaints (1) and (2), though found proven, did not provide the basis for the finding of unfitness on account of which her registration was cancelled. What the appellant had to demonstrate to the 2020 Tribunal was not technical competence, but that she was not longer unfit by reason of impairment. The "Best Practice" material was not capable of doing that.
Accordingly, the Tribunal did not err insofar as it treated the appellant's "Best Practice" material as irrelevant to the issues which it had to consider. It follows that the Tribunal correctly held that the appellant had adduced no evidence to establish that the impairment found by the 2014 Tribunal had resolved or improved. In circumstances where, as the Tribunal repeatedly drew to her attention, that was the crucial issue, and one on which she bore the onus, the only decision the Tribunal could have reached was that the appellant had failed to establish that she was no longer so impaired as to be unfit for medical practice.

Dr Samuels' evidence

However, the 2020 Tribunal affirmatively found that the appellant remained impaired. That finding was based on Dr Samuels' evidence, reinforced by the Tribunal's own observations.
Dr Samuels, who had first reviewed the applicant in 2004, again in 2011, and again in 2012, provided a report dated 21 July 2020. On reviewing the documentary material, he observed that the appellant's application for reinstatement appeared "disorganised", and continued: "51. Of concern is Dr Qasim mentions two cases in which she gave clinical advice: one in May 2018 to a younger person with unexplained tooth loss, and advice to a senior judge in December 2018. 52. Dr Qasim traverses many of the same issues mentioned in my previous reports, stating that she has consulted with senior clinicians in Bondi whom she says disagree with my opinion and she will provide these reports. There is material related to her CPD, materials related to her property, an article about Vitamin D, and a lot of the material is repeated. 53. It seems clear from reading this material that little has changed and Dr Qasim remains of the opinion that there are no deficiencies in her practise and that she does not suffer from an impairment. She clearly is still preoccupied about the structural issues in her unit and despite being suspended it appears that she is still providing medical advice."
Dr Samuels observed that there was no medical evidence that the appellant had received any psychiatric or psychological treatment since the 2014 Tribunal hearing; that her submission did not refer to the issue of impairment, which was central to her deregistration; and that the volume of repetitive material supplied by the appellant suggested "that little has changed in regard to her mental state".
Dr Samuels recorded that he saw the applicant on 8 July 2020, providing the following account: "70. Dr Qasim was booked to see me at 10:15 am on 8 July 2020. She presented with 3 other people. I explained that because of COVID-19 restrictions we were limiting the number of people on site and I would need to see her alone. 71. Dr Qasim was neatly attired but looked anxious and seemed perplexed. Despite my explaining this to her she kept ushering the members of her group into the room. A man who did not identify himself seemed to take charge and offered her legalistic advice. This man told Dr Qasim to see me by Skype and to record the interview. I indicated I was not willing to proceed on that basis. He became quite aggressive and challenged me in regard to my reasons. 72. I asked them all to wait outside the rooms and I would speak to the Council and we would decide what to do. After a telephone discussion with Sarah Kennedy I agreed to see Dr Qasim with another person who was not a lawyer and not with her brother who had interfered in the examination process previously. 73. I went out to speak to them, they had all left. My secretary telephoned Dr Qasim only got her voice mail and left a message saying we would see her. Dr Qasim only called back late that afternoon."
Dr Samuels responded to specific questions on which his opinion was sought, as follows: "1. Please explore Dr Qasim's current attitude to the previous proceedings before the Tribunal (noting that her application for reinstatement seeks "correction of the written reasons"). Her written responses suggest nothing has changed. She continues to present as grandiose, entitled, denying deficiencies in her practice or impairment. 2. In your 1 February 2012 report you concluded that Dr Qasim was impaired and expressed the view that she was suffering from a paranoid condition. You have also previously stated that her illness is very difficult to treat, and such patients are usually reluctant to engage in treatment or take medication. They regard attempts at treatment as part of a wider conspiracy and that if their delusions are entrenched or longstanding, the prognosis is not very favourable (see Decision of Medical Council, Proceedings under s. 150A, 15 May 2012, p 13). Please explore with Dr Qasim whether she has sought any treatment of the identified impairment. Please provide any comments you may have on the type of treatment sought and its efficacy. She appears to have sought various psychiatric opinions but there is no evidence that she has engaged in any treatment. 3. In your report dated 1 February 2012, you stated that: 'It is extremely difficult to interview patients with paranoid disorders as they tend to be guarded and evasive by nature of the disorder… it is often only when they are seen for a prolonged period and placed under some pressure, as was evidence in the section 150 hearing, that their mental state and defence system decompensates and the symptoms become more evident'. From your assessment of the materials and of Dr Qasim, please provide your opinion as to whether Dr Qasim retains the paranoid disorder that you observed in your 2012 assessment. The materials are disorganised, suggest her ideation has not shifted in any way, and she remains grandiose in her self description and references to her accomplishments. She continues to make derogatory comments about the clinicians who complained about her, the Tribunal and its processes, she continues to refute my opinion and denies that she is impaired. She now is angry with the clinicians who in fact supported her in the past. 4. Do you consider that Dr Qasim currently meets the definition of "impairment" within the National Law? Please described the nature of any impairment. (Please see the definition in the enclosed information sheet for Council Appointed Practitioners.) There is nothing before me that changes the previous opinion I have given. My most recent brief interaction with Dr Qasim was similar in nature to all my other assessments with her. My impression is nothing has changed and she remains impaired and that she is suffering from a severe mental illness in the form of a paranoid disorder."
Dr Samuels considered that the impairment was likely to impact upon the appellant's ability to practise; that she did not accept that she was impaired; and that at present, the prognosis seemed "poor". He concluded: "Dr Qasim's application traverses the same issues as in the past, if anything her beliefs seem more entrenched and her hostility towards those who challenge her viewpoint more overt. The initial application was extremely chaotic, the subsequent one a bit more organised but the content in both remains unchanged. It is concerning that Dr Qasim has offered medical advice to a young person with tooth loss and to a Judge. This suggests she is not able to abide by restrictions imposed on her."
In oral evidence to the Tribunal, Dr Samuels said that more recent material provided to him reinforced his view that she has a very long-standing untreated paranoid psychotic illness, most likely schizophrenia. This conclusion was founded on what he characterised as illogical thought processes, grandiose thoughts, disordered thought form, irrelevancies and inability to filter out irrelevancies, inflexibility of thinking, and lack of insight and of judgment. He was of opinion that her condition had become more florid in recent years and that her mental state had deteriorated. He said that treatment with antipsychotic medication might have altered the course of her illness, but she now had a very severe psychosis. As to future treatment, he thought that the only option was a trial of antipsychotic medication, but that the appellant was resistant to accepting treatment. He thought it possible that there could be some improvement in her functioning over time, but he was doubtful about her returning to work as a medical practitioner, though there was a possibility of some improvement in her overall functioning if she received treatment.
In response to a question from a member of the 2020 Tribunal, Dr Samuels said that there had been a major decline in her functioning, from around 2004, and continued (emphasis added): [31] "And that's why initially I thought well perhaps she just has a paranoid disorder with sort of circumscribed beliefs about particular things but I think there is you know much more frank evidence that's accumulated over the last 16 years that her psychosis does extend beyond sort of just circumscribed delusional beliefs and there have been periods where she's told people who are coming through the roof and that was very much part of the hearing last time and she showed me evidence that the ceiling had been damaged. And also I understand that during that period she was contacting the police constantly and informing them of her whereabouts to ensure her safety and saying that she had special relationships with police officers. I think during that period she also ended up at Prince of Wales Hospital if I remember and she was briefly scheduled I think and under a care of Dr Frank Hume. I think you certainly thought she had a psychotic illness and she objected very much to that."
In response to a further question from a member of the Tribunal, he gave this evidence (emphasis added): [32] "Q. In regard to that Dr Samuels, could I ask you, she's appeared this morning at the Tribunal and she's been very calm and very measured and I wonder, you do comment on this to some degree in a number of your reports, but I wonder if you could comment today on the difference between how she might present when calm compared to how she might present when distressed or pressed on issues that distress her? A. She's obviously articulate, she's obviously highly intelligent, well educated in terms of what she says in her latest application may be true and interesting background and all those sorts of things. So she comes you know, I think one of the issues with psychotic illness is you generally see some sort of functional decline and loss of the sort of faculties and functions that you had before but if you start at a high level, as Dr Qasim did, those deficits are probably likely to be less noticeable. So you know she certainly does present quite well. I didn't really talk to her on this occasion but I must say in my brief observation of her in my office she was quite perplexed. She seemed to have difficulty understanding what I was saying and I think under stress she does unravel a lot and I think, unless there are very tight parameters, I mean I think you know one of the things that became evident in the last Tribunal hearing was that the more times she had, particularly when cross-examining me, the more thought disordered and more disorganised she became and I think that's quite common in people who have paranoid conditions. They can function quite well in circumscribed time periods and it does seem that various psychiatrists over time have seemed to outdraw the conclusion that she is okay but I think the more time you spend with her, the more you have a longitudinal view of her mental illness, the clearer the picture becomes."
Dr Samuels' evidence was impugned by the appellant, as "lies on oath", in the following respects: 1. he falsely claimed that he had a consultation with her on 8 July 2020; 2. he falsely stated that she had described having "seen two persons come through the ceiling"; and 3. he falsely stated that she had been "taken away by the police" and scheduled under one Dr Hume. 4. The appellant also complained that the 2020 Tribunal did not consider evidence she had supplied to contradict the opinions of Dr Samuels.
As the above extracts show, with respect to the appellant's attendance in his consulting rooms on 8 July 2020, Dr Samuels did not claim to have had a consultation with her, and did not suggest that an interview took place, on that date, but only that he saw her briefly, in the context of a planned consultation which did not proceed. There was a brief interaction between Dr Samuels and the appellant, as a result of which he formed the impression, referred to in his evidence, that she seemed to be perplexed and to have difficulty in understanding the conversation. There was no factual controversy about those events, and no basis for suggesting, let alone finding, that Dr Samuels' evidence was false in this respect.
As to the assertion that the appellant had previously referred to "persons coming through the ceiling", in cross-examination Dr Samuels gave this evidence: [33] "APPLICANT Q. Alright okay so I was never admitted with any psychotic reaction and secondly I have - what makes you think that I claim someone break in through the ceiling. A. Well Dr Qasim that said, we spent a long time discussing that at the last tribunal. In the last tribunal I remember it very well, you showed me a photograph, a white photograph which you claimed to be the ceiling and you asked me what I saw and I said "Well I see white" and you told me it was a ceiling and then you told me that was where the person had come through the ceiling and you also - that was actually as I understand it one of the reasons why I think - my memory is that you did go to hospital at some point because you had some ideas that there were men or someone coming through the ceiling but that was a long time ago. APPLICANT: No I'm sorry that is not correct. I have a photograph page 56 where my ceiling did collapse. I never claimed anyone came through the ceiling, I made it very clear. … APPLICANT Q. What makes you think that someone came through the ceiling? A. Because there was material that I reviewed when I first saw you suggesting that you had thoughts about that and you did re-live that issue in the tribunal. You showed me the photograph as evidence that had given specifically said in the tribunal there was people coming through the ceiling but you were reinforcing that there was an issue with your ceiling in the tribunal and I do remember that taking quite a long time and in the end the presiding member sort of had to move us along and then you became quite angry and I remember in fact you raised in your latest issues, I'll raise it again but you told me that I was paranoid and you know the process went on from there."
The appellant returned to this point later in the cross-examination: [34] Q. I just want to ask him how - what is the basis of him thinking that people came through the ceiling? A. That was material that I have reviewed in the past Dr Qasim. There were allegations that that was probably the reference to the community team. I thought Dr Hume was involved but I may have been wrong but Gary, whatever his name is, is part of the Bondi Junction Community Team, certainly at that time there were concerns you were having concerns that people were coming through your ceiling, you had concerns that people were out to harm you in some way, you told me in fact in one of my assessments a long time ago you would ring some senior police person when you went out in order to - and when I questioned you about that it was something to do with your safety and you had a special contact in the police force. There is evidence in the past that frankly some delusional sounding things and part of that was you did think seem to think that people were somehow infiltrating your apartment at the time but that was a long time ago and that doesn't appear to be a current issue for you. Q. Dr Samuels you were asked to provide, do you have your file notes on those, because I never said to you people came through the ceiling? A. I didn't say you said that to me but that is from the material that I reviewed at the time, there was documentation to that effect. And the issue, I can't quite remember the context now but the issue with the ceiling was quite prominent in the last Tribunal hearing and you indeed showed me photos of the ceiling or wide photos which you said were part of the ceiling. It was an issue of contention before when I - but be that as it may I am making my judgment in regard to your mental state on your current presentation and I am not focussed on that at the present time, I am more concerned about the way you are presenting both in your written submissions and equally what I have seen on mental state at the present time."
Thus, Dr Samuels' evidence was not that the appellant had told him in consultation that she had "seen two persons come through the ceiling", but that he had seen documentation recording that she had told others that people had come through her roof, and that the appellant had also maintained such an assertion to him in the course of cross-examining him in the 2014 Tribunal proceedings. The transcripts of the 2014 Tribunal proceedings were not in evidence before the 2020 Tribunal. However, there was in evidence the reasons for decision of the National Law, s 150, proceedings in 2010, which record: "Dr Qasim told the delegates that she was "under police protection". When asked what that involved and for what reason, Dr Qasim responded that the police protection was "not day and night but they check on my premises". She added that she would inform the local police if she goes out at night. When asked as to why she needed to do that, Dr Qasim stated that someone had tried to break in through the ceiling of her home and that she had made a complaint to the local police and had received a police report. She indicated that the break-in occurred in 2004 which places it in the period when Mr Igra made the complaint to the Medical Board. … When asked about the nature of the break-in through the ceiling, Dr Qasim said: "it collapsed", but did not expand on the detail as to how and why the ceiling collapsed."
As to the assertion that she had been scheduled, Dr Samuels accepted in cross-examination that he might have been mistaken in that respect: [35] "Q. Dr Samuels you said there was a frank psychosis under Frank Hume I wasn't given the name that was in June last year I had an allergic reaction to Phenergan and I didn't know I was allergic to Phenergan and I went to Prince of Wales Hospital casualty to seek some prednisone that's all and English doctor she scheduled me without telling me about it. I just asked her to give me the prednisone and that's all and her full recollection of that, the registrar was very kind the next morning in explaining to me "oh hasn't she told you?" I said "No", I said I didn't want to discharge myself, all I ask was some Prednisone because I had allergic reaction. I'm allergic to carpet and I didn't realise that I was allergic to Phenergan which is very uncommon and it presents with you know high blood pressure. So that's pretty interesting, I didn't do anything other than comply. I went in casualty asking for some steroid because I had allergic reaction and since the carpet has gone I'm much better, I was allergic to carpet and don't need Phenergan anymore. So that's one question and I will take-- A. If you want a response Dr Qasim, that wasn't actually the admission I was referring to, there was admission many years ago-- Q. ..(not transcribable).. years ago, never. A. Sorry? Q. I was never been admitted many years ago, it was last year June, I've never been to hospital before that. A. I may have that wrong but I think you were admitted in the context of the issues of Mr Igra, you were taken by police to Prince of Wales Hospital and you were under the care of Dr Hume. I think this was in - I can't remember when. APPLICANT: No, I'm sorry. SENIOR MEMBER FULCHER: Is that not correct? APPLICANT: Can I kindly please correct you. Mr Igra was put on notice by - caution was put on by police that he was making vexatious notifications and I was never taken to hospital. I only presented to hospital last year for the first time in my life on my own to get some help from after an allergic reaction to Phenergan. That's when she scheduled me without telling me, I didn't know and it was the Registrar was very kind and he said "Oh she should have had the manners to tell you that she was doing this". And I haven't had a chance to write to Prince of Wales Hospital and if she didn't know what to do with allergic reaction to Phenergan which is very specialised she should have asked her supervisor which she didn't."
As to the appellant's complaint that the 2020 Tribunal did not consider evidence she had supplied to contradict the opinions of Dr Samuels, reference has been made above to the evidence that was adduced by the appellant, including her "Best Practice" evidence, none of which contradicted the opinions of Dr Samuels as to her current diagnosis, prognosis, or impairment. As has been mentioned, she adduced no evidence on that issue, nor that she had had, or sought, any relevant treatment.
The Tribunal was entitled to rely on Dr Samuels' uncontradicted evidence to support the conclusion that the appellant remained impaired. While he conceded that he may have been mistaken about whether she had been scheduled in the past, this did not detract from his opinion of her current condition and impairment. Moreover, in the absence of evidence probative of fitness adduced by the appellant, rejection of Dr Samuels' evidence would not have filled the void; there would still have been no probative evidence that she was no longer impaired.

The Tribunal's own observations

In addition to Dr Samuels' evidence, the Tribunal brought to bear its own expertise, stating that Dr Samuels' opinions were consistent with its own impressions having seen the appellant and having read and heard her evidence and submissions. [36] The Tribunal is a specialist tribunal, including two medical members, one of them a psychiatrist, and was entitled to bring to bear its own expertise, in this way.

There was no material error

The appellant adduced no evidence to prove that she was no longer unfit by reason of impairment. Dr Samuel's evidence, on which the Tribunal was entitled to rely, was to the effect that she remained impaired. The Tribunal formed its own impression, on which it was also entitled to rely, to the same effect. It does not appear, even arguably, that the Tribunal's conclusion, that the appellant had failed to show that she was no longer unfit by reason of impairment, was wrong.

The remaining grounds

Below I endeavour to consider, briefly, the grounds in the Summons and the Notice of Appeal, to extent that I have been able to distil them, and insofar as they have not already been addressed.
First, many of the grounds were, in substance, complaints that the appellant had been wrongly "suspended" as a result of the National Law, s 150, proceedings, or wrongly deregistered pursuant to the 2014 proceedings. The appellant's grounds and submissions were in large part directed to endeavouring to demonstrate error in the decision of the 2014 Tribunal, from which she had already unsuccessfully appealed to this Court. This reflected the position she had adopted before the 2020 Tribunal, which observed: [37] "[70] Virtually the entirety of the material relied upon by the applicant in this application consists of criticisms of the 2014 Tribunal decision; a regurgitation of her claims made before the 2014 Tribunal; including claims that the 2004 decision relating to her strata building dispute was erroneous. The applicant, in a submission filed on 19 November 2020 submits that the respondent has been involved in those proceedings when she submits: MCNSW and later HCCC, have instigated unfair harassment of Dr Shaheen Qasim since 2004 through people living in the building, who opposed all repairs. [71] The applicant criticises the Presiding member of the 2014 Tribunal; members of the legal profession and Dr Samuels and makes scandalous remarks concerning each. Her criticisms include allegations that each did not understand the evidence; that the legal representatives were corrupt; that the 2014 Tribunal Presiding Member was lazy and did not read her material. The applicant has tendered case histories relating to patients which were the subject of proceedings in 2014 and has provided voluminous statements concerning the numerous patients."
As I have endeavoured to explain, by reason of National Law, s 163C(2), it was not permissible on the review application for the 2020 Tribunal, from which this appeal is brought, to review the findings of the 2014 Tribunal. This includes the findings of "clinical incompetence", which the appellant sought to challenge by reference to the "patient outcomes". However, even a successful challenge to those findings would not have availed her, because the finding of unfitness which the appellant had to overcome was not founded on "clinical incompetence", but on impairment alone. The Tribunal was right to refuse to embark on a review of the decision and findings of the 2014 Tribunal.
The appellant complained that the Tribunal relied on, and failed to investigate the motives of, "lay people" who had allegedly provided false evidence. This refers to the evidence given to the 2014 Tribunal by Mr Igra, Dr Sutherland, and Dr Miller. The appellant contends that these individuals were antagonistic to her, including by reason of the building disputes in which they were involved, and that their allegations ought not have been believed. However, whatever may have been the position in connection with the 2014 proceedings, these "lay people" were not witnesses in the 2020 proceedings, and it is not apparent how there could have been any error on the part of the 2020 Tribunal in failing to scrutinise their motives.
The appellant complained of "procedural irregularities", referring to "the poor conduct of the NCAT members and the NCAT panels, who were engaged in conduct and made omissions intended to deny natural justice". First, the appellant complains that the principal member "denigrated her" during the hearings, and did not read her material. This complaint appears to be directed, at least in substantial part, to the 2014 Tribunal. Insofar as it relates to the 2020 Tribunal, it appears to refer, at least chiefly, to the manner in which the "Best Practice" evidence was dealt with, which has been described above. While the Principal Member firmly articulated the position that the material was not relevant, and pressed the appellant to address the issue of current fitness, that has to be seen in the light of her apparent refusal to accept the ruling on relevance, and to address the question of current fitness. In fact, the Principal Member was endeavouring, albeit without success, to assist the appellant to focus on what was relevant and might advance her case.
Secondly, she complains that she was denied the right to cross-examine, or to have her "key witness" testify. In the 2020 Tribunal proceedings, the appellant called Mr Simes and Mr Bartels, for cross-examination; she gave evidence herself, and was cross-examined; she was permitted to cross-examine Dr Samuels, who was called by the Council; and she did not seek to call any other witness. Thus these complaints appear to relate to the 2014 Tribunal proceedings. In particular, the complaint about not being permitted to have her "key witness" testify refers to a proposal by the appellant, in the course of the 2014 Tribunal proceedings, to call Professor Jack Carmody as a witness; so far as can be ascertained from the available material, the 2014 Tribunal doubted the relevance of his evidence. In any event, neither of these complaints could be made of the proceedings before the 2020 Tribunal, and they are incapable of amounting to error by the 2020 Tribunal.
Thirdly, in her reply submissions, the appellant listed numerous matters - exceeding 100 in number - which she complained were not referred to in the Tribunal's decision. The omissions complained of included "engineering reports, CTTT orders, the basis of notifications to MCNSW and appointment with Samuels in September 2004". The engineering reports and CTTT orders are apparently related to the building disputes, and are invoked to buttress and corroborate the appellant's position vis-a-vis Mr Igra, Dr Sutherland, and Dr Miller, who, as has been noted, were witnesses before the 2014 Tribunal, but not before the 2020 Tribunal. In substance, this involves an impermissible attempt to impeach the decision of the 2014 Tribunal, and is not demonstrative of error in the decision of the 2020 Tribunal. Moreover, these matters were not relevant to whether the appellant had proved, in 2020, that she was no longer impaired. The omissions complained of were not material, because they could not have affected the Tribunal's ultimate decision that there was no evidence that the appellant was no longer unfit by reason of impairment.
The appellant complained that, in her appeal to this Court in 2015, "the regulator" (presumably, the HCCC) misled the Court, that that information was provided to the 2020 Tribunal, and that the 2020 Tribunal did not consider it. However, even if the HCCC had misled the Court of Appeal in 2015 (as to which it is unnecessary to make any finding), that would not have been relevant to the issues before the 2020 Tribunal, and would rightly not have been considered by it. Nor could this demonstrate error in the conclusion of the 2020 Tribunal that there was no evidence that the appellant was no longer unfit by reason of impairment.
Finally, one of the grounds in the notice of appeal was: "6. Stolen files timeline. Evasive conduct of the regulators."
The appellant contends that files relating to the patients who became the subject of complaint in the 2014 proceedings "disappeared" from her practice, and were somehow obtained by the complainant Dr Roger Smith and/or the HCCC, and that the HCCC and its witnesses were untruthful or evasive in explaining, in the 2014 Tribunal proceedings, how they had obtained this material. This complaint was dealt with by the 2014 Tribunal, as follows: [38] "The next issue is in relation to missing files. The Tribunal comments that they were unable to get a satisfactory answer as to the relevance of the missing files. Obviously, the doctor would have been assisted had she had her files available to her if, indeed, they are missing. In addition, Dr. Qasim did not appear to have any difficulty in remembering everything that was in the files. Ms. Dinkelman gave evidence as to what happened to the files; that she packed the files; that she left them there and did not look at them again until they were picked up by Dr. Qasim. She denied any of the files were missing. Dr. Qasim said eighty to ninety percent of the files were missing yet she picked up four to five boxes of files which obviously represent ten to twenty percent of her files and she would have known at the time of picking them up that numerous boxes of files were not there. She would have queried that rather than taking them to her holiday house and eventually looking at them. In addition to that, a short period after picking them up, she only took issue with one file not being there. Her allegation that these files were stolen by Dr. Newman which we have found to be false and her evidence in general in relation to these files is unacceptable. However, the Tribunal does not find it a matter of importance except when the Tribunal has to assess the doctor's mental capabilities."
Whatever its potential relevance might have been in the 2014 Tribunal proceedings, the question whether the patient files were missing, or had been stolen, and if so who was implicated, had no potential relevance to the issues before the 2020 Tribunal, and would rightly not have been considered by it.

Conclusion

Although there are difficulties in distilling, from the appellant's grounds of appeal and submissions, identifiable alleged errors, of law or of fact, a review of the substance of the issues and decision of the 2020 Tribunal reveals that: 1. the Tribunal correctly held that it was not open to it to review and reconsider the decision of the 2014 Tribunal; 2. the Tribunal correctly held that the appellant had adduced no evidence to establish that the impairment found by the 2014 Tribunal had resolved or improved, such that she was no longer unfit by reason of impairment; 3. the Tribunal did not err insofar as it treated the appellant's "Best Practice" material as irrelevant to the issues which it had to consider; and 4. the Tribunal did not err in regarding Dr Samuels' opinion that she remained impaired as reliable, reinforced as it was by the Tribunal's own impression, which it formed and on which it was, as a specialist tribunal, also entitled to rely, to the same effect.
The appellant bore the onus of demonstrating to the 2020 Tribunal that she was no longer impaired and was now a fit and proper person to practise medicine. Although, in circumstances where Dr Samuels' opinion as to the appellant's current condition was not contradicted, and was reinforced by the Tribunal's own observations, the Tribunal was entitled if not bound to accept it, even if no evidence had been adduced from Dr Samuels, there was no evidence to prove the essential issue of current fitness. Thus, even absent the evidence of Dr Samuels, the appellant's application for reinstatement was bound to fail.
The conclusion that there was no evidence that that the appellant was no longer so impaired as to be unfit would not be different, even if Dr Samuels' opinion were entirely disregarded. Nor would it be affected by any other of the numerous complaints raised by the appellant. There was, therefore, no error in the Tribunal's ultimate conclusion that the appellant had not shown that she did not remain so impaired as to be unfit to practise. The appeal must be dismissed, with costs.
EMMETT AJA: I agree with Brereton JA.

Endnotes

Dr Samuels had earlier seen the appellant in 2004, following a notification to the then New South Wales Medical Board. Dr Samuels reported that he could find no clear evidence that the appellant suffered from any significant impairment and, specifically, "I can find no evidence that she suffers from a bipolar disorder or any other psychiatric illness". No further action was then taken.
Health Care Complaints Commission v Qasim [2014] NSWCATOD 42 at [179] (Garling ADCJ, Dr Gleeson, Dr Anderson and Prof Chisholm) ("Qasim 2014").
Qasim 2014 at [168] (Garling ADCJ, Dr Gleeson, Dr Anderson and Prof Chisholm); see also Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [32]-[33] (Meagher JA; McColl JA and Ward JA agreeing) ("Qasim 2015").
Qasim 2015 at [79] (Meagher JA; McColl JA and Ward JA agreeing).
Qasim 2015 at [80] (Meagher JA; McColl JA and Ward JA agreeing). A cross-appeal by the HCCC from the costs order made by NCAT (which was that the appellant pay 20% of its costs), was allowed: Qasim 2015 at [82]-[89] (Meagher JA; McColl JA and Ward JA agreeing).
Qasim v Medical Council of NSW [2020] NSWCATOD 136 at [100] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich) ("Qasim 2020").
Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 96 (Mason P; Priestley JA and Powell JA agreeing); [1998] NSWSC 335 ("Zaidi"); Rohatgi v Medical Tribunal of New South Wales [1994] NSWCA 270 at 16 (Mahoney AP; Meagher JA and Powell JA agreeing) ("Rohatgi").
Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [84]-[85] (N Adams J) ("Zepinic").
National Law, s 3(2)(a).
National Law, s 3A.
Zepinic at [85] (N Adams J); Ng v Health Care Complaints Commission [2018] NSWCATOD 105 at [30]-[31]; Re Zaidi [2006] NSWMT 6 at [42] (Rein DCJ, Dr Toh, Dr Mares and Member Smith).
Zepinic at [85] (N Adams J); Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24] (Principal Member Britton, Dr Stewart, Dr Lake and Member Alder).
Qasim 2020 at [63] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
[2019] NSWCATOD 132 at [40] (Cowdroy ADCJ, Dr Yeo, Dr Cox and Member Macneill).
Qasim 2020 at [70] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2020 at [71] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2020 at [72] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2020 at [73]-[74] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2020 at [75] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2020 at [76] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Tcpt, 7 May 2021, p 9(11)ff.
See Qasim 2014 at [115]-[116] (Garling ADCJ, Dr Gleeson, Dr Anderson and Prof Chisholm).
Tcpt, 17 August 2020, pp 5(22)-7(6).
Tcpt, 17 August 2020, pp 95(21)-96(7).
Tcpt, 17 August 2020, p 96(24)-(30).
Qasim 2020 at [6] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2020 at [19(4)] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2020 at [84]-[85] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2020 at [89] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Above at [16], see especially fn 7.
Tcpt, 17 August 2020, p 62(36)-(48).
Tcpt, 17 August 2020, p 63(11)-(36).
Tcpt, 17 August 2020, p 67(6)-(44).
Tcpt, 17 August 2020, pp 76(32)-77(10).
Tcpt, 17 August 2020, p 66(8)-(50).
Qasim 2020 at [76] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2020 at [70]-[71] (Cowdroy ADCJ, Dr Fulcher, Dr Arnold and Member Lovrovich).
Qasim 2014 at [107] (Garling AJ, Dr Gleeson, Dr Anderson and Prof Chisholm). 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: 13 August 2021

Solicitors: Health Professional Councils Authority (Respondent) File Number(s): 2021/76545 Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Occupational Division Citation: [2020] NSWCATOD 136 Date of Decision: 09 December 2020 Before: Cowdroy ADCJ, Dr Fulcher, Dr Arnold, Member Lovrovich File Number(s): 2019/375231

HEADNOTE [This headnote is not to be read as part of the judgment] In 2014, the appellant's registration as a medical practitioner was cancelled pursuant to an order made by the New South Wales Civil and Administrative Tribunal ("NCAT") in disciplinary proceedings brought by the Health Care Complaints Commission alleging unsatisfactory professional conduct, professional misconduct, incompetence to practise, and impairment. Although all the allegations were found to be proven, the cancellation of the appellant's registration depended solely on the finding of impairment. The appellant appealed to this Court in 2015 and successfully challenged the finding of professional misconduct, but not the finding of impairment, hence the cancellation of her registration was unaffected. In 2019, the four-year period during which she was precluded from applying for reinstatement having expired, the appellant applied to NCAT for reinstatement. In December 2020, on the bases of the absence of any evidence from the appellant demonstrating that she was no longer impaired, evidence from a psychiatrist, Dr Samuels, that she remained impaired, and the Tribunal's own observations of the appellant during the course of the hearing, that application was dismissed, and a further four-year preclusion period was imposed. The appellant now appeals against that decision. Held (per Brereton JA; Bell P and Emmett AJA agreeing), dismissing the appeal: [1] (Bell P), [75]-[77] (Brereton JA), [78] (Emmett AJA). As to the nature of a reinstatement application:

A reinstatement application under Health Practitioners Regulation National Law (NSW) ("National Law"), s 163A, involves an inquiry into present fitness to practise, and, per s 163C(2), is not a review of the original deregistration. It is for the applicant to demonstrate that she or he is no longer unfit to practise, and the 2020 Tribunal decision thus correctly identified that the appellant's task was to satisfy the Tribunal that she was suffering no ongoing impairment and was a proper person to be reregistered: [16]-[21], [41], [66]. Zepinic v Health Care Complaints Commission [2020] NSWSC 13; Asar v Medical Council of New South Wales [2019] NSWCATOD 132, applied; Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82; [1998] NSWSC 270; Rohatgi v Medical Tribunal of New South Wales [1994] NSWCA 270, distinguished. As to the 2020 Tribunal decision:
None of the various letters, academic results, and statements adduced by the appellant before the Tribunal demonstrated that the appellant was no longer impaired: [27]-[31]
The Tribunal correctly held that the appellant's "Best Practice" material - an analysis of outcomes for patients who were subject of the original complaints made against her, which purported to show that her treatment ultimately led to successful outcomes and accorded with best practice guidelines - was irrelevant insofar as it was used to challenge the original deregistration. Moreover, that the material was incapable of discharging the appellant's ultimate onus, which was not to demonstrate her professional technical competence, but to prove that she was no longer impaired: [32]-[44].
The Tribunal was entitled to rely on the evidence of Dr Samuels, who concluded that the appellant remained impaired. Moreover, even if it was wholly disregarded, that would not have remedied the absence of evidence probative of her current fitness: [45]-[61].
The Tribunal is a specialist tribunal and was entitled to rely on its own observations as to the appellant's fitness: [62]. As to the appellant's remaining complaints:
The submissions endeavouring to demonstrate error in the conduct and decision of the 2014 Tribunal were impermissible by reason of National Law, s 163C(2). Further, to the extent that there was any identifiable complaint of procedural irregularities in the 2020 Tribunal proceedings, it was misplaced, and in any event could not have affected the ultimate conclusion that there was no evidence that the appellant was no longer impaired: [64]-[74]. As to the outcome of the appeal:
The 2020 Tribunal correctly declined to review the original deregistration decision, and correctly held that the appellant did not discharge her onus of demonstrating that she was no longer impaired, based on the lack of relevant evidence adduced by her, the irrelevance of her "Best Practice" material, the evidence of Dr Samuels, and the Tribunal's own observations. Furthermore, even if, as the appellant argued, the Tribunal had erred in relying upon the evidence of Dr Samuels, the appellant still would not have discharged her onus of demonstrating, through evidence, that she was no longer so impaired as to be unfit to practise. The appeal must be dismissed: [75]-[77].

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Cases Cited (11)

Cited By (18)