Administrative Law - Judicial review at common law - Procedural fairness - Right of party affected to be heard - Nature of hearing - Opportunity to present case - Determination by Medical Council as to whether doctor had mental capacity and skill to practise - Questions referred to committee for determination - Nature and adequacy of hearing before committee -Whether entitlement to a further hearing by the Medical Council.

Medical Practitioners Registration Act 1996 (Tas), ss11(1), 39(7), 40(2).

South Australia v Shea [1987] HCA 39; (1987) 163 CLR 378, applied.

Medical Council of Tasmania: Dobson Mitchell & Allport

I am aware that the prosecutor, Dr Blackburn, has practised medicine in Launceston for a number of decades and have no doubt that under the Medical Practitioners Registration Act 1996 and the legislation it repealed, he has been registered as a medical practitioner while doing so. According to one of the exhibits, he gave his age last August as 78 years. I will deal with the evidence and the legislation in more detail later in these reasons, but at this point will summarise the nature of the procedures which were followed and which occurred before he instituted these proceedings. Under the Act, he was liable to pay to the Medical Council of Tasmania on or before 30 September 1997, a prescribed annual registration fee. In the usual course, upon payment of that fee a medical practitioner would have issued to him or her a new certificate of registration as a medical practitioner, which would entitle him or her to continue practising for another twelve months. However under the Act, the Council was empowered to refuse to issue a new certificate of registration to a medical practitioner if it was not satisfied that the practitioner inter alia had sufficient physical capacity, mental capacity and skill to practise. For the purpose of ascertaining whether the prosecutor had those capacities and skill, the Council determined to appoint under the Act a committee to investigate and advise it about the matter. In due course the prosecutor attended before the committee. He addressed it and he answered questions put to him by members of the committee, the questions being largely designed to test his knowledge of matters which the members of the committee thought ought to be known by a practising medical practitioner. The committee then reported to the Council which on 9 September 1997, without disclosing to him a copy of the committee's report and without giving him an opportunity to make submissions to the Council, resolved to refuse to issue him with a new certificate of registration because it determined that it was not satisfied that he possessed sufficient mental capacity and skill to practise as a medical practitioner. He was advised accordingly and his response was to institute these proceedings.

The prosecutor seeks a writ of certiorari to quash the decision of the Council to refuse to issue him with a new certificate under the Act and to remove his name from the Register of Medical Practitioners on 30 September 1997. The grounds upon which the writ is sought are:

1 The Council failed to afford sufficient procedural fairness to him in that it:

(a) failed to give him a copy of a report of its Committee which it established pursuant to the Act, s11;

(b) failed to give him an opportunity to respond to that report;

(c) failed to give him notice of the matters adverse to him which it took into account in making its determinations;

(d) failed to give him an opportunity to dispute or make submissions as to such matters as it took into account in reaching its determinations;

(e) failed to give him an opportunity to give evidence or make submissions to the Council as to why the determinations ought not be made;

(f) had regard to, or had before it, material which was adverse to him, namely the material contained in documents annexed to an affidavit of John Charles Stewart sworn for the purposes of these proceedings on 20 October 1997 and marked "A", "B", "E", "I" and "J", without giving the prosecutor an opportunity to examine, comment on or answer those documents.

2 The Council failed to comply with the Act, s40(2).

Under the Act the Council is constituted of eleven members, nine of whom are registered medical practitioners, one a legal practitioner and one a person who is not a medical practitioner or a legal practitioner and who represents the interests of consumers of medical services. All members are nominated by the Minister and appointed by the Governor (ss5 and 6). The Council is required to perform its functions and exercise it's powers under the Act so as to ensure that medical services provided to the public are of the highest possible standard, ensure that persons practise medicine according to the highest professional standards and guard against unsafe, incompetent and unethical medical practises (s9). One of the functions of the Council is to administer the scheme of registration under the Act (s7(a)). The Council may delegate any of its functions or powers, other than the power of delegation, to a member of the Council, the Registrar of the Council or a committee (s10). It may also establish such committees as it considers necessary for the purpose of assisting it in the performance of any of its functions or the exercise of any of its powers or advising it on any matter relating to the Act, (s11(1)). The members of such a committee may, but need not be, members of the Council.

The general scheme of registration under the Act is contained in Pt3. A person who has the requisite medical qualifications and training may apply to the Council to be registered as a medical practitioner (s19). An applicant for practising registration is entitled to be registered as a medical practitioner if the Council is satisfied that the applicant inter alia is eligible to be so registered, has sufficient physical capacity, mental capacity and skill to practise and is of good fame and character (s24(1)). The Council may, pursuant to s11, establish a committee of assessors to assess the entitlement to registration of an applicant for practising registration (s26(1)). A committee of assessors is to consist of three registered medical practitioners. The Registrar of the Council must give notice to the applicant in writing of the reasons for holding the assessment and the date, time and place set for the assessment (s26(4)). The committee of assessors has power to summon witnesses and documents, take evidence on oath and affirmation and require persons to answer questions (s26(3), Sch3, cl2). It must conduct its proceedings with as little formality and with as much expedition as a proper consideration of the matter before it permits, is not bound by the rules of evidence, may inform itself on any matter in any way it considers appropriate and must observe the rules of natural justice (s3, cl3). An applicant for registration is entitled to attend an assessment of the applicant's entitlement to be registered and to be represented by a legal practitioner or any other person (Sch3, cl6(1)). The Council may appoint a legal practitioner to assist the committee (Sch3, cl6(4)). After assessing the entitlement to registration of an applicant to whom s19 applies, the committee of assessors must report to the Council in accordance with s27.

If the Council is satisfied that an applicant to whom s19 applies is entitled to be registered, it must register the applicant and it may do so unconditionally or subject to conditions (s28(2)). If it is not satisfied that an applicant is entitled to be registered, the Council must refuse to register the applicant (s28(6)), in which case the Council must give notice to the applicant of the refusal, the reasons for the refusal and the applicant's right of appeal (s28(8)(a)).

Under s31(1), the Council must issue a certificate of registration to a person granted registration. The certificate of registration is evidence that, for the period or until the date specified in the certificate, the person named in it is a registered medical practitioner and entitled to practise medicine in Tasmania (s31(3)). The Council is required to keep a register called the Register of Medical Practitioners, in which are to be recorded details of the registration of medical practitioners, including the removal from the register of a person's name (s33).

There is no indication in s31 of the period for which, or the date until which, the Council may specify that registration is granted. However, it is provided by s39(1) and (2) that a registered medical practitioner must, on or before 30 September (or some other prescribed date) in each year, pay the Council the prescribed annual registration fee and give the Council any information it requires. Immediately upon payment of the fee the Council must, subject to subs(6) and (7), issue a new certificate of registration (s39(5)) for the period commencing on the day following the day upon which the fee was due and expiring on the day on which the fee will next be due. However, by subs(7)(a) the Council may refuse to issue a new certificate of registration if, in the case of a medical practitioner who holds practising registration, the Council is not satisfied that the medical practitioner complies with the requirements of s24(1). That is the section which requires the Council, before it registers an applicant for practising registration, to be satisfied that the applicant inter alia has sufficient physical capacity, mental capacity and skill to practise. By virtue of s39(10), the name of a registered medical practitioner who is refused the issue of a new certificate of registration pursuant to subs(7), is to be removed from the register. It is to be noted that s39 essentially deals with the annual renewal of registration and that subs(7) is expressed in such a way that the Council "may", not "must", refuse to issue the new certificate of registration if it is not satisfied that the medical practitioner complies with the requirements of s24(1).

During the course of the hearing, argument was addressed to whether the provisions of s40(1)(b) and (2) applied to this case. Those provisions are:

(b) the Council must remove from the register the name of a person --

(ii) who requests the Council to remove his or her name from the register; or

(iii) in respect of whom the Tribunal has made a decision under section 52(1)(a) which has taken effect: or

(iv) who ceases to be registered by virtue of section 39(9) or (10); or

(vi) whose authority to practise under a foreign medical law has been cancelled for any reason relating to the person's professional conduct or physical or mental capacity; or

(vii) who has been registered by reason of a false or misleading statement or declaration.

(2) The Council must not remove a person's name from the register under subsection (1)(a) or (1)(b)(v), (vi) or (vii) without first affording that person a reasonable opportunity to be heard."

It was submitted for the prosecutor that this was a case to which s40(1)(b)(v) applied and that, by virtue of subs(2), the Council was prohibited from removing the prosecutor's name from the register without first affording him a reasonable opportunity to be heard. Ground 2 depends for its success on it being established that the Council failed to comply with subs(2). The submission and ground 2 plainly must fail. Section 40(2) is not directed to the removal by the Council of a person's name from the register under s40(1)(b)(iv), which is the paragraph which applies to this case. Paragraph (v) has no application.

By s61(1)(h) a person may appeal to this Court against a refusal of the Council to issue that person with a new certificate of registration under s39(7). An appeal is to be made within fourteen days after notice of the Council's decision is given to the affected person (s61(3)). At the hearing of an appeal, the Court may confirm or set aside the decision of the Council and substitute for it such other decision as the Council had jurisdiction to make, as the Court may specify (s62).

The facts of the case include the following. On 13 December 1996 the Medical Council received a letter from the Chief Medical Officer of the Department of Community and Health Services enclosing a report dated 11 December 1996 he had received from the Chief Pharmacist in the Pharmaceutical Services Branch, together with a report concerning information received relating to the death of a seventeen year old female, possibly because of drug overdosing, and a report of a visit made to the prosecutor, arising out of that death, by the Senior Pharmacist-Operations and a police detective. The reports raised concerns about the apparent extremely high level of the prosecutor's prescribing of dependency-producing drugs, the possible ease by which particularly young patients could obtain from him a prescription for such drugs, the apparent lack of adequate records kept by him concerning an attendance on him by the deceased and his claimed bad memory.

On 28 May 1997 the Council received a further letter from the Chief Medical Officer of the Department of Community and Health Services enclosing another report, dated 26 May 1997, from the Chief Pharmacist concerning the results of an investigation into the prosecutor's apparently high level of prescribing anorectic stimulants, benzodiazepines and drugs of abuse compared to the level of other medical practitioners. According to the evidence of Dr John Stewart, who was a member of the Medical Council and a member of the committee subsequently established by the Council, the matters raised in all of those documents caused the Council to become concerned about whether the prosecutor had sufficient physical capacity, mental capacity and skill to continue practising medicine. At one of its meetings, the Council directed its Registrar to write to the prosecutor asking him whether he intended to renew his certificate of registration when it expired on 30 September 1997. In the event that the prosecutor advised that he intended to continue practising, the Council resolved to form a committee comprising Dr Stewart, Dr E V R Ratcliff (a psychiatrist) and Dr A D Maclaine-Cross (a physician with a special interest in geriatric medicine) to assess whether the prosecutor possessed sufficient physical capacity, mental capacity and skill to practise.

Accordingly, on 11 July 1997, the Deputy Registrar of the Council wrote to the prosecutor asking whether he intended to apply to renew his registration and, if so, advising that he would be required "to appear before a Committee of Assessors to determine your physical capacity, mental capacity and skill to practise". On 14 July 1997 the prosecutor replied advising that he intended to renew his registration.

On 28 July 1997 the Medical Council received a letter dated 25 July 1997 from a coroner, Mr P H Wilson, who said that he was "charged with the duty of enquiring into the sudden death by apparent drug overdose" of a female on 16 August 1996. The coroner stated that one of his principal concerns related to the prosecutor's prescribing practises. He said that on the evidence then available there was no evidence as to whether the prosecutor made sufficient enquiry to ensure that a prescription he wrote for the deceased was appropriate in the circumstances. The coroner said that it appeared possible that the prosecutor was lax in that regard, to the point of failing to meet standards of professional propriety, perhaps even negligent. The coroner asked the person to whom he addressed the letter, the Secretary of the Australian Medical Council, whether he or she had any information or an opinion that would be available in a coroner's court to assist the coroner in determining the level of professional competence and ethical standards displayed by the prosecutor in this or other instances, which might demonstrate such a departure from acceptable standards as to call for censure. Enclosed with the letter from the coroner were a report by a detective of the circumstances surrounding the death of the female and of a visit made by the detective to the prosecutor, and an analyst's report on the drugs found in the deceased's body following death. The detective's report recommended that the prosecutor should be examined before the coroner in relation to his drug prescribing habits. The detective said that when the deceased first consulted the prosecutor, on the day before her death, he prescribed Rohypnol for her. The detective added that the prosecutor's notes of the consultation consisted of the letters "ROH" and nothing else, and when the detective spoke to him about his dealings with the deceased the prosecutor was completely evasive and claimed doctor/patient confidentiality. It was claimed in the report by the detective that if the prosecutor and another doctor had taken more care, the deceased may still have been alive.

At a meeting of the Council held on 1 August 1997 it confirmed its earlier resolution to form the committee of Drs Stewart, Ratcliff and Maclaine-Cross, to assess the prosecutor's physical capacity, mental capacity and skill to continue practising medicine. On 13 August a letter was sent to him by the Deputy Registrar of the Council formally advising that the Council was considering whether it should exercise its power pursuant to the Medical Practitioners Registration Act 1996, s39(7)(a), to refuse to issue him with a new certificate of registration when his current certificate expired on 30 September 1997, on the basis that he failed to comply with the requirements of s24(1)(b), that he have sufficient physical capacity, mental capacity and skill to practise. The letter also informed him that the Medical Council had established a committee pursuant to s11, for the purpose of assisting it in determining whether or not it ought to exercise that power. He was requested to attend before the committee on 29 August 1997 "in order that the committee may assess whether you possess sufficient physical capacity, mental capacity and skill to practise and then advise the Council of its finding".

On 26 August 1997 the Deputy Registrar of the Council sent letters to Dr Ratcliff and Dr Maclaine-Cross, with copies being sent to Dr Stewart. With the letters were enclosed certain documentation, expressed to be "as background material, relating to this matter". Drs Ratcliff and Maclaine-Cross were requested to destroy the documentation at the conclusion of the assessment of the prosecutor. The documentation consisted of the reports of the Chief Pharmacist dated 11 December 1996 and 26 May 1997, the letter dated 25 July 1997 from the coroner, and a two page document entitled Guidelines for the Rational Use of Benzodiazepines apparently issued by the Royal Australian College of General Practitioners. It was the evidence of Dr Stewart that he believed that Drs Ratcliff and Maclaine-Cross were requested to destroy their copies of the documents following the conclusion of the assessment of the prosecutor, because it was a routine procedure with sensitive documents when they were no longer required, those two persons not being Council members. Apparently Dr Stewart had his own copies of the documents and, being a member of the Council, he was not requested to destroy them.

As requested the prosecutor, on his own, attended on the committee on 29 August. He was not given, nor did he at any time see, any of the documents to which I have just referred. Dr Stewart's evidence was that he had seen them but he did not have them with him when the committee met with the prosecutor. At the beginning, the prosecutor was asked whether he understood the purpose of his appearance before the committee, and in essence his reply was to see whether he would be able to continue practising. He understood that the committee would report to the Medical Council and that it would be the Council which would make the ultimate decision. He produced two documents to the committee. They established that he was an accredited practitioner according to the Commonwealth Government's Medicare guidelines, having acquired a sufficient number of continuing education points over a three year period, and that in late 1996 he had scored 92 per cent in a program conducted by the Royal Australian College of General Practitioners. It was his evidence that he produced those documents as evidence of his fitness to practise. At some point he told the members of the committee that if he was unable to continue in practice he would have to live on the pension.

His meeting with the committee lasted about one hour fifty minutes. A recording of everything that was said was not made. Dr Stewart's evidence was that each member of the committee made notes, and in the course of cross-examination he produced his notes for inspection by the prosecutor's counsel. Presumably the prosecutor made no note of what occurred. In his affidavit sworn for the purposes of these proceedings, he simply stated that he was submitted "to a viva voce examination and other questioning". In cross-examination he agreed that he was told that concerns had been raised about his prescribing of benzodiazepines and that he told the committee that he was "aware that chemists from the department had been sniffing around the practice". He also told the committee that he had been involved in a case in which he had prescribed drugs to a patient and that patient had died from an overdose. He agreed that the members of the committee asked him questions about his practice, about his prescribing of drugs and about hypothetical cases concerning patients and various conditions, and that he answered all of those questions to the best of his ability. He added that he kept on telling the committee, but it did not appear in the committee's report to the Medical Council, that if he did not know the answers he had reference books. He said he was also asked a lot of pharmaceutical questions, "just as if I were a chemist". He agreed with counsel that the committee gave him the opportunity to say what he wanted to say to it.

Dr Stewart's evidence was that the prosecutor was asked questions about his health and about his practice, including questions concerning his prescribing of benzodiazepines. He was told in the course of the interview that concerns had been raised by the Pharmaceutical Services unit of Community and Health Services about his unusual pattern of prescribing benzodiazepines. The prosecutor said that he was aware that chemists from the department had been "sniffing around" his practice and he expressed some irritation that chemists were telling him how to prescribe. He also said that he had been involved in a case where a patient had died following an overdose of drugs. Dr Stewart said that the meeting with the prosecutor was cordial and informal. The prosecutor replied at considerable length to a number of questions and also talked at length about a number of matters associated with the questions. At no time was he cut off by a member of the committee in the course of answering questions or discussing matters. On occasions he protested that if he did not know the answer to a certain question he would find it in his books.

Concerning the prosecutor's physical health, Dr Stewart agreed that there was no detailed medical examination of him but simply questions as to how he was, the committee accepting his answers concerning the ailments from which he suffered. For the purpose of testing his mental capacity questions were asked about a variety of subjects. Dr Stewart said that if the prosecutor gave what the committee thought was a wrong answer, he was informed of what the committee members regarded as the most appropriate answer. For example, the prosecutor said that he believed Rohypnol was a brand of Temazepam and interchangeable with Normison and Euhypnos. Someone corrected him. (What the error was I have no knowledge). The distinction was explained to him and there was a discussion about the differences in the duration of action and function. However, Dr Stewart was cross-examined about a passage in the committee's report stating that the prosecutor was unable to remember that Indocid could cause giddiness in the elderly and dismissed that risk saying "if they have side-effects they'll be back next day". Dr Stewart thought that evidence of bad judgment, significant enough for it to be mentioned in the written report, but not for a discussion with the prosecutor. So the prosecutor had not been informed that his observation about that was an inappropriate one. Dr Stewart said that not every question was answered wrongly by the prosecutor and the committee's subsequent written report to the Medical Council tended to highlight the inadequacies in his answers. I will deal with the contents of the report shortly.

Dr Stewart's evidence was that at the conclusion of the interview he asked the prosecutor whether he had anything else to say to the committee. He said he did not. He then left. The members of the committee then discussed the matter and agreed that the prosecutor possessed sufficient physical capacity to practise but lacked the mental capacity and skill required for practise. There was no discussion by them about the reports of the Chief Pharmacist or the coroner's letter. Dr Stewart prepared the committee's report and after it was approved by all members they signed it. His evidence was that it was a correct summary of what occurred with Dr Blackburn and accurately expressed the unanimous opinion reached by the committee concerning him.

The report of the committee to the Council was detailed and three pages long. It stated that although he prescribed benzodiazepines frequently the prosecutor had a poor understanding of them. I presume that the reasons for that conclusion are to be found in the report, for it detailed what was said by him in response to questions about benzodiazepines. Not having medical knowledge myself, nor having the errors to be found in his responses explained, it is not obvious to me that he had a poor understanding, although there is no reason to doubt that the members of the committee and the Medical Council, particularly its nine medical practitioners, correctly concluded that was so. The report also detailed his responses to a number of questions about some common medical conditions and some drugs which he or the committee thought might be used for their treatment. Once again my lack of medical knowledge makes it difficult to comment on his answers and what they reveal concerning his lack of knowledge, capacity and skill to practise as a medical practitioner. Concerning his mental capacity, the report stated that there was no formal testing or specific questioning but during the course of the interview considerable evidence emerged of impairment. The report stated that in response to questions to which he did not know the answer, he often responded with evasion, confabulation and circumlocution. Perseveration was apparent at times. The committee reported that loss of learning capacity could be inferred from his inability to recognise symptoms of depression despite having attended a clinical meeting on that subject, his complete ignorance of an important and widely employed group of drugs (ACE inhibitors), and his lack of any apparent awareness of changes in medical practice in the past two decades. The committee stated that no drug he mentioned was less than twenty years old and his knowledge of the drugs he prescribed was inadequate and often dangerously so. The committee stated that it was of the opinion that the prosecutor, once of superior intelligence, exhibited evidence of a decline in cognitive function to a level which, while not socially disabling, was inadequate for medical practice. Judgment, problem solving and learning capacity were all considered to be impaired. The conclusions of the committee were that the prosecutor had the physical capacity to practise, but did not have the mental capacity or the skills to practise.

In cross-examination Dr Stewart agreed that whenever the prosecutor responded with evasion, confabulation and circumlocution and whenever perseveration was apparent, nothing was pointed out to him about that. Dr Stewart thought that it could have been hurtful to do so. He agreed that no formal testing of mental state was performed, no medical diagnosis as such. Merely observations of certain characteristics were made that led the committee to conclude that there had been a decline in cognitive function. He said that it was a conclusion arrived at after nearly two hours of observing the prosecutor's behaviour and response to questions. He accepted that it was not based on formal tests of intellectual function. He disagreed that it would have been better to conduct a formal mental state examination and he pointed out that Dr Maclaine-Cross was a physician with a special interest in geriatric medicine.

No further communication was made with the prosecutor prior to the Medical Council's final determination. A copy of the committee's report was not made available to him and he was given no opportunity to make submissions to the Council which met on 5 September 1997. The evidence of Dr Stewart was that at the meeting the committee's report was discussed, but there was very little discussion and it was confined to the contents of the report. The non-medical members of the Council asked a number of questions to clarify some of the medical matters referred to in the report. Although it appears that all members of the Medical Council would at some time have had given to them the reports of the Chief Pharmacist and the letter from the coroner, which are referred to earlier in these reasons, Dr Stewart said there was no discussion of their contents. Following the discussion the Council resolved to refuse to issue the prosecutor with a new certificate of registration under s39(7)(a), as it was not satisfied that he possessed the mental capacity and skill to practise medicine. On 9 September 1997 a letter was sent to him advising that having studied the report of the committee appointed by the Council to assess his physical capacity, mental capacity and skill to practise medicine, the Council had determined to refuse to issue him with a new certificate of registration pursuant to s39(7)(a) as it was satisfied that he did not comply with the requirements of s24(1). He was advised that consequent on the Council's decision, his name would be removed from the Tasmanian Register of Medical Practitioners on 30 September 1997. (Removal of his name was a requirement of s39(10) in the event of a refusal to issue a new certificate of registration.) He was advised that pursuant to s39(11), he had a right of appeal to the Supreme Court from the Council's decision.

At the time of the institution of these proceedings the prosecutor had not seen the committee's report and knew nothing of its contents. He had no knowledge of what material the Medical Council may have considered regarding him. He had been given no opportunity to directly address or make submissions to the Medical Council or to present evidence directly to it.

It is convenient to deal with pars(a) to (e) of the first ground of the order nisi at the same time and to deal separately with par(f). Paragraphs (a) to (e) essentially complain of a failure by the Council to allow the prosecutor to see the report of the committee to the Council, to give him an opportunity to challenge and respond to the report's contents and particularly its conclusions, and in any event an opportunity to present evidence and make submissions directly to the Council as to why it ought not make the determination it in fact made. In the consideration of these matters it is necessary to consider the scheme established by the Act and the nature of the processes which were adopted by the Council in this case. It is clear that the Council was not required by the Act to itself conduct an investigation of the kind conducted by the committee, into whether the prosecutor complied with the requirements of s24(1) including in particular whether he had sufficient physical capacity, mental capacity and skill to practise. The Act authorised the Council to use the provisions of s10 and delegate the necessary functions and powers to one of its members, the Registrar of the Council or a committee. Alternatively the Council was authorised by s11(1) to do what it did here, to establish a committee for the purpose of assisting it in the performance of its functions and advising it whether the prosecutor had sufficient physical capacity, mental capacity and skill to practise (see ss39(8) and 24(1)).

By virtue of s11(8) the committee was entitled to regulate its own proceedings. In this connection it should be noted that the committee was not a committee of assessors established under s26(1). Schedule 3 gives substantial powers to, imposes significant duties on and specifies a number of procedures which must be adopted by a committee of assessors established under s26. However the provisions of the Schedule do not apply to any other committee established by the Council. By virtue of s26(1), a committee of assessors is a committee of the Council which is established to assess the entitlement to registration of an applicant for practising registration, that is to say, an applicant who seeks to be registered and who is not already registered. The prosecutor was not an applicant for registration. He was a medical practitioner who was already registered and who, by paying the prescribed annual registration fee, and without making any application, was entitled as a matter of law to have issued to him a new certificate of registration (s39(5)), unless the Council refused to issue it because it was not satisfied that he complied with the requirements of s24(1). The provisions of s26(3) and Sch3 do not apply to a committee which is appointed to advise the Council whether, under s39(5) it should not be satisfied that the medical practitioner complies with the requirements of s24(1). In this particular case, it is even clearer that Sch3 did not apply to the committee of Drs Stewart, Ratcliff and Maclaine-Cross, for the committee was not established to assess the entitlement of the prosecutor to registration (see s26(1)), but merely to assess whether he had sufficient physical capacity, mental capacity and skill to practise. An applicant for registration must satisfy more criteria than that to be entitled to registration. I have mentioned these matters, but also note that it was not a ground of the order nisi that the committee failed to comply with the provisions of Sch3. Indeed the essence of the prosecutor's complaints were that it was the Medical Council itself which failed to afford him sufficient procedural fairness by giving him a reasonable opportunity to be heard by the Council.

It was conceded by counsel for the Council that the principles of natural justice had be to applied to the prosecutor's case, but he submitted that they were sufficiently applied. Subject to a consideration of ground 1(f), I agree. The scheme of the legislation and the processes adopted by the Council and its committee provided the prosecutor with a sufficient opportunity to present his case that he had sufficient physical capacity, mental capacity and skill for practise, so that the decision-making process, viewed in its entirety, entailed procedural fairness. See South Australia v Shea [1987] HCA 39; (1987) 163 CLR 378 at 389. I do not accept the submission of the prosecutor's counsel that what occurred before the committee was merely an examination of him and not a hearing at which he had a full opportunity to present his case. The purpose of the committee's enquiry and his attendance before it was made clear to him by correspondence beforehand. At the outset of the committee's hearing he was asked for his understanding of the purpose of his appearance before the committee and his response established that he understood it. He tendered two documents which he regarded as supporting his case that he had sufficient capacities and skill to practise. He was of course asked a great number of questions by the members of the committee, but he willingly answered them and he has not complained that some inappropriate process or pressure was applied by the committee in that connection. He was given an adequate opportunity to say what he wanted to say and to present whatever evidence he wanted to be taken into account. In his evidence he did not assert the contrary, nor did he suggest that he misunderstood the nature of the process or that in some way he was not accorded with procedural fairness.

I do not accept the submission of counsel for the prosecutor, which I understood to include that regardless of whether the committee afforded him procedural fairness, he was entitled to it in any event before the Council when it came to consider the committee's report. There is ample authority which establishes that he was not entitled to two opportunities to present his case, to present evidence and make submissions to the committee and again to the Council. In South Australia v Shea (supra) at 389 Mason CJ referred to there being many illustrations of a legislative model which entails the holding of an enquiry by a body authorised to make a recommendation to a Board or Minister which may make a decision rejecting the recommendation without conducting any further enquiry, providing that procedural fairness was accorded at the hearing before the recommending body. At 409 - 410 Brennan J explained:

"One cannot predicate of that scheme of administration that, after examination by the medical practitioners and hearing by the Board, the Governor is required to have a further hearing. It is a commonplace of modern schemes of administration that a power of decision is reserved to a Governor or Minister after an inquiry by an expert board and, unless the relevant statute so prescribes, it is not necessary for the repository of the power to have a further hearing, even though the repository is free to exercise his discretionary power in a manner contrary to a recommendation which emerges from the inquiry: Taylor v Public Service Board (NSW) [1976] HCA 36; (1976) 137 CLR 208 at 215, 217, 221 - 222, 224 and 226. This form of administrative scheme is suited to cases where the facts need to be found and evaluated -- a task entrusted often to persons with expert qualifications -- but there is an element of policy in the decision which the repository of the power is to keep in his own hands. It is not a general rule of administrative procedure as it is of judicial procedure that the person who hears should decide: Taylor v Public Service Board; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 369 - 370; Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 627 - 628. A need for a further hearing by a repository of a power after a hearing by an expert board may arise if, in the particular circumstances, the interests of a party are affected by some new fact or matter which the decision-maker proposes to take into account and which the party has had no opportunity to deal with: see Errington v Minister of Health [1935] l KB 249; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 45 - 46, 60 and 70. But there does not have to be a further hearing on matters of policy alone.

If a statute provides for the facts relevant to a decision to be ascertained and evaluated by a board and for the board to report and make a recommendation to the decision-maker, prima facie there is no room for an implication that the power to make the decision is conditioned on the giving of an opportunity for a further hearing. To impose such a condition without statutory warrant would be to force a judicial model on the administrative process. That is not the function of a court."

In Haoucher v Minister for Immigration and Ethnic Affairs (1989 - [1990] HCA 22; 1990) 169 CLR 648 at 661, Dawson J emphasised that for a single hearing to satisfy the demands of procedural fairness in a process which takes place in stages, the initial hearing must be adequate. That statement of principle is relevant to a consideration of ground 1(f) to which I finally turn. The ground complains that the Medical Council failed to afford sufficient procedural fairness to the prosecutor because it had regard to, or had certain documents before it, which were adverse to him, without giving him the opportunity to examine, comment on or answer those documents. I treat the reference to the Medical Council as embracing its committee of Drs Stewart, Ratcliff and Maclaine-Cross. Both counsel treated it in that way.

The documents referred to in the ground include the reports of the Chief Pharmacist dated 11 December 1996 and 26 May 1997, the letter dated 25 July 1997 from the coroner and the two page document entitled Guidelines for the Rational Use of Benzodiazepines issued by the Royal Australian College of General Practitioners. Dr Stewart's evidence was that he had copies of them, that the Council of which he was a member had received them and he thought that the other members of the Council had them. His evidence also established that copies of the documents were provided by the Deputy Registrar of the Council to the other two members of the committee, Dr Ratcliff and Dr Maclaine-Cross, no more than three days before the prosecutor attended before the committee. It is likely that they read them, in fact extremely unlikely that they did not, and it is also likely that the contents of the documents were fresh in their minds when the prosecutor appeared before them. The Deputy Registrar described the documents, when he sent them to Dr Ratcliff and Dr Maclaine-Cross, "as background material, relating to this matter".

Nothing of the contents of the documents was disclosed to the prosecutor at any time. Dr Stewart's evidence was that when the committee discussed what it would report to the Council, after the prosecutor had left it, there was no discussion of the contents. Dr Stewart did not have his copy of the documents with him at that time. There is no evidence which enables me to establish whether Dr Ratcliff and Dr Maclaine-Cross had their copies with them. However it was Dr Stewart's recollection that at the beginning of the prosecutor's attendance before the committee, he was told that what had led the Council to form the committee was a report from the Pharmaceutical Services Branch reporting unusual prescribing habits by him with regard to benzodiazepines. Dr Stewart's evidence was:

"I think that we said that the reason for his being there at the committee was because a report of the Pharmaceutical Services Branch had indicated some unusual patterns of prescribing".

I find that the contents of the documents in question were the cause of the Council's concern that the prosecutor might not have had sufficient mental capacity and skill to practise and brought about the Council's decision to form the committee to advise it on that question. I also find that the contents of at least some of the documents were regarded by the members of the committee to be significant, sufficient for them to mention at least one of them as the reason for the Council appointing the committee.

It must be acknowledged that there is no evidence that the contents of the documents in fact influenced the members of the committee, or the members of the Council, in coming to their eventual determination that the prosecutor did not have sufficient mental capacity and skill to practise. But in the circumstances of the case, that is not to the point. In Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629, Brennan J said:

"Nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit subconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information. He will be neither consoled nor assured to be told that the prejudicial information was left out of account."

In Johns v Release on Licence Board (1987) 9 NSWLR 103 at 116, the Court of Appeal emphasised that what is important is not so much that a matter did influence the decision in question but that it could have influenced the decision. That is a consideration which plainly arises here. Similarly in Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322 at 337 - 338, the Privy Council applied the principle that a court need not inquire into whether the material kept from the person affected did work to his prejudice but whether it might have done.

Kioa's case was applied by Foster J in Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550, where at 552 his Honour said:

"Whilst a decision-maker can, by an effort of will, exclude from his conscious deliberations the effect of material of this kind and even convince himself that he has totally ignored it, the potential of influence at a subconscious level remains, with the possibility of the creation of an adverse attitude towards the party at whom the material was directed. That this can and does occur is clearly recognised in the passage cited from the judgment of Brennan J in Kioa. It is indeed a problem of which judicial decision-makers are acutely aware and against which they must constantly be on guard.

In my view, in this case, the strength of the attack, especially having regard to the quarter from which it came, was such as almost inevitably to colour the decision-maker's subconscious attitude towards the applicant. The only way of achieving confidence in a fair decision was to raise the matter with him and provide an opportunity to him to respond to it."

I intend to apply the same principle. In my view there was a real risk of prejudice to the prosecutor in the members of the committee having these documents without their contents being disclosed to him and without him being given an opportunity to respond to and make submissions concerning them. I reject the submission of counsel for the Medical Council that the contents of the documents were not prejudicial to him. It is my determination that on their face they raised considerable doubts as to the mental capacity and skill of the prosecutor to practise. Having been provided to the committee which had the duty of determining his mental capacity and skill, they ought to have been provided to him also. As a result he was not accorded natural justice or procedural fairness and the decision of the Council, based as it was on the determination and advice of the committee, must be quashed.

The Council itself had no choice but to have regard to the documents before it came to a decision to refer the question of the prosecutor's capacities and skill to a committee. If the documents had not been made available to the members of the committee, I doubt that the prosecutor could have had any ground for complaint, for the decision that he was lacking in mental capacity and skill to practise, if made, would have been made by the committee without any risk of prejudice to him from the material. My determination to quash the Council's decision is made because the committee had the documents without them being disclosed to the prosecutor.

Therefore there will be an order that the determination of the Medical Council of Tasmania on or about 9 September 1997 to refuse to issue the prosecutor with a new certificate of registration under the Medical Practitioners Registration Act 1996 is quashed.