HIS HONOUR: By summons filed on 19 December 2016 the plaintiff seeks as final relief an order that a Dr Simon Cowap be removed as a member of the professional standards committee appointed by the Medical Council of NSW on 12 July 2016 in the matter of a complaint against the plaintiff, Dr David Richardson, dated 12 May 2016.
By notice of motion filed on 3 February 2017, Dr Richardson seeks an order for the stay of an inquiry being conducted by the professional standards committee that is reconvened to continue on 22 and 23 February 2017. The notice of motion also seeks an order for the expedited hearing of the proceeding.
The plaintiff, as that description of his claims obviously implies, is a medical practitioner. On 12 May 2016 the Health Care Complaints Commission made a complaint to the Medical Council of NSW, presumably under s 145C(1)(a) of the Health Practitioner Regulation National Law (NSW) (the "National Law"), that the plaintiff was guilty of unsatisfactory professional conduct in five respects.
Under section 145B (1)(d) the Medical Council of NSW can and, in this case, it did, refer the complaint to a professional standards committee. Such a committee can be established pursuant to s 169 of the National Law.
On 12 July 2016 the Council, through its delegate, the executive officer of the Council, appointed Mr Robin Handley, Professor Donald Chisolm, Dr Simon Cowap and Honorary Professor Paul MacNeill as members of a professional standards committee for the purpose of hearing the complaint. The plaintiff's contention in this case is that Dr Cowap should have recused himself from participating in the inquiry by the committee on the grounds of apprehended bias.
Pursuant to s 171 of the National Law, the committee was required to hold an inquiry into the complaint that was referred to it. Under subdivision 3 of Part 3 of the National Law, if the committee finds that the subject matter of the complaint has been proved, it may proceed to exercise various powers, including the power to caution or reprimand the practitioner against whom the complaint has been found to be proved, or to impose conditions on the practitioner's registration, to fine the practitioner in certain cases and to make other orders. The requirements of procedural fairness apply to the conduct of the inquiry by the committee.
Under ss 158 and 158A of the National Law appeals from findings of the committee, or the exercise of a power by the committee under Subdivision 3 of Div 3, lie as an external appeal to the New South Wales Civil and Administrative Tribunal ("NCAT").
The details of the complaints made in respect of Dr Richardson are irrelevant to the present issue. The Health Care Complaints Commission, which today I have joined as a party to this proceeding, is a party to the inquiry before the committee. It has served a number of reports from a Dr Norman Walsh. He is a general practitioner and gives expert opinion evidence, to put it generally, as to the appropriateness of the plaintiff's conduct in relation to the particular matters about which complaint is made. He expresses opinions as to whether Dr Richardson has conducted himself to a standard reasonably to be expected of a practitioner of an equivalent level of training and experience. To put it generally, Dr Walsh's opinions are adverse to the plaintiff.
On 1 December 2016 an officer with the Medical Council of NSW sent an email to the parties relevantly stating as follows:
"Dr Simon Cowap, member of the Professional Standards Committee in Dr David Richardson's matter next week, has disclosed that he is acquainted with the Commission's expert, Dr Norman Walsh GP and describes this acquaintance as follows:
Our acquaintance consist[s] of infrequent minor social interactions in group settings and probably attending group educational events together. I have never socialised with him alone and have no professional, financial or other direct relationship with Dr Walsh … I have had no contact with him about this matter.
Dr Cowap also describes their acquaintance as 'very slight' and does not consider that this constitutes a conflict of interest. Dr Cowap has advised that he can bring an open and unbiased approach to the matters before the PSC [Professional Standards Committee] and he is able to prefer the evidence of another expert over that of Dr Walsh if appropriate.
Could you please advise whether or not you have any objection to Dr Cowap sitting as a member of the PSC by Monday 5 December."
The next day the plaintiff objected to Dr Cowap's sitting as a member of the committee. On 5 December 2016 DibbsBarker, who act for Dr Richardson, wrote to the relevant officer of the Medical Council stating that Dr Cowap had advised that, although there was no direct relationship between him and Dr Walsh and that they socialised on occasion in a group setting and in a professional sense, Dr Cowap had stated that, despite this, he was able to prefer the evidence of another expert over that of Dr Walsh if appropriate. DibbsBarker submitted that Dr Richardson did not rely on the evidence of another expert, that Dr Richardson would submit that Dr Walsh in his reports had gone beyond the role of an expert, and objection would be taken to his reports which would necessitate the requirement for rulings on their admissibility. They said that Dr Walsh would be cross-examined and submissions made concerning his reports. DibbsBarker submitted that:
"[I]t appears that Dr Cowap and the expert have known each other professionally and socially over a period of time. This is undesirable since there is clearly at least the potential for a conflict of interest to arise. To ensure procedural fairness the appropriate course is for Dr Cowap to be replaced by a peer not acquainted with Dr Walsh."
Exactly why it was clear that a potential for a "conflict of interest to arise" was not explained.
On 7 December 2016 the conduct officer with the Council communicated to the parties Dr Cowap's response to DibbsBarker's letter of 5 December 2016. That response was as follows:
"I have considered the suggestion that I may be subject to what I believe is termed 'apprehended bias' in the matter of Dr Richardson owing to my prior acquaintance with Dr Walsh. To clarify matters, and I apologise if my earlier emails about this issue overstated the case, I have in fact met Dr Norman Walsh on a single occasion roughly 12 months ago. This was at a social event with numerous others present. I did engage in direct conversation with Dr Walsh at times over the course of that evening. We have had no prior or subsequent social interaction. We have no professional relationship and I have no recollection of ever encountering him at any educational or other professional events. In other words, our relationship amounts to a casual social encounter over the course of a single evening some 12 months ago, and not an ongoing social and professional relationship. I therefore feel quite confident that I can approach this matter with a perfectly open mind regarding Dr Walsh's report. I also believe it unlikely that others would attribute bias to me on the basis of such a slight and transient acquaintance, and hence I do not feel it is appropriate for me to recuse myself from this PSC."
In response on that day DibbsBarker reiterated that Dr Richardson did not rely on the evidence of another expert and that that was apparent on a review of the respondent's documents. They submitted that the inference to be drawn from Dr Cowap's advices was that, in the absence of an expert report in response to Dr Walsh, Dr Cowap would accept Dr Walsh's evidence. DibbsBarker asserted that Dr Cowap had not confirmed that he was able to undertake the task in the absence of an expert's report in response and it was too late for him to do so without at least the apprehension of bias.
The matter came before the committee on 8 December 2016. On that occasion counsel appearing for the plaintiff objected to Dr Cowap's continued participation in the hearing and on the committee. After hearing submissions the committee, through its chairman Mr Handley, stated as follows:
"First of all I'd like to emphasise that as far as the committee is concerned we have exercised our own independent judgment in taking into account the submissions of the parties and looking in particular at the wording of the email dated the 1st of December and in particular the final part of that email to which Mr Gregg has referred.
We've also taken into account the reasonable apprehension of the bias test which has been laid out by the High Court in those and I think other decisions and we of course recognise that it is the fair minded lay observer and whether or not they might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the judge. So we've looked at what Dr Cowap has said in his email. Dr Cowap's view first of all I should say is that clearly he doesn't believe he should recuse himself. As far as the committee is concerned and the other three members of the committee in particular looking at this test as it's been laid down by the High Court, we don't read the statement by Dr Cowap in quite the same way that Mr Gregg does. We don't see it as a technical statement in terms of being able to [p]refer the evidence of another expert over that of Dr Walsh. We take it that this was a fairly general statement by a person about in this case, physician with regard to evidence and he was really that as we hoped the reasonable bystander would read it as meaning that he believed he could bring an open mind to the particular evidence which was before the committee.
On that basis we therefore support the decision that's been made by Dr Cowap and therefore Dr Cowap will not recuse himself in these proceedings and the committee will continue as a presently constituted committee of four.
Can I say though with regard to Dr Walsh, prior to the commencement of the hearing today when four of us met for a short time to discuss some part of the evidence and I suppose what we made of it, we all felt, we all expressed some concerns with Dr Walsh's reports and with some of the language which was used in those reports concerning Dr Richardson's practice so we do have concerns about those matters. We do believe that the reasonable bystander would consider that Dr Cowap could bring an independent mind to those matters and we believe that the committee as a whole is well qualified to consider Dr Walsh's reports relying on our own reading of them, with the help of course of anybody, of any evidence from Dr Walsh, but in particular with the assistance of submissions from the parties about how we should take that evidence into account. I just wanted to assure, in particular Mr Gregg that we do have some concerns about those expert reports and that was something that we discussed independently prior to the commencement of the hearing today.
So on that basis we would wish to proceed. …"
On the same day Dr Richardson approached the Duty Judge in this Division, but the Duty Judge did not consider that the matter should be dealt with immediately on an urgent basis and directed that the application be made by way of summons to be dealt with in the usual way. The summons was filed on 19 December 2016. The plaintiff complains that, notwithstanding the filing of the summons, the committee has rescheduled the hearing to commence for two days on 22 and 23 February 2017. He has hence brought the notice of motion to which I referred at the commencement of these reasons.
The first issue is whether it is seriously arguable, that is, whether there is a serious question to be tried, that Dr Cowap should have recused himself, or the committee should have resolved that he not further participate in the committee's inquiries, on the ground of apprehended bias.
The principles which apply to the committee are relevantly that the committee member would be disqualified if a fair-minded lay observer might reasonably apprehend that the committee member might not bring an impartial mind to the resolution of the question about which the committee is required to make a finding (Ebner v Official Trustee (2000) 205 CLR 337; [2000] HCA 63 at 344-5, [6].)
As I understood his submissions, counsel for Dr Richardson relies principally on two matters. First, that Dr Cowap had modified his description of his acquaintance with Dr Walsh between 1 December and 7 December 2016. As reported, Dr Cowap's initial description of the acquaintance was that it consisted of infrequent, minor social interactions in group settings - that is, interactions in the plural - and they probably attended group educational events together. In the second communication, Dr Cowap apologised if his earlier statement of the issue overstated the case and stated that he had, in fact, met Dr Walsh on a single occasion roughly 12 months ago at a social event with numerous others present at which time he engaged in direct conversation with Dr Walsh at times over the course of the evening.
That degree of social interaction, whether as originally stated, or as revised as reported in the email of 7 December 2016, to a fair-minded lay observer, could not give rise to a reasonable apprehension that Dr Cowap might not bring an impartial mind to the resolution of the issues. I was not referred to any authority in which such a degree of association has been found to have disqualified a decision-maker on the grounds of apprehended bias and I am aware of none. To the contrary, decisions such Emanuele v Emanuel Investment Pty Ltd (1997) 139 FLR 36 and Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 suggest to the contrary. As the High Court said in the latter case (at [33]), a reasonable apprehension of bias by reason of association may arise if the presiding judge, or in this case committee member, has a "substantial" personal relationship with a party to or a person involved in proceedings or a "substantial personal relationship with a member of the family of that party or person".
The High Court went on to say that:
"But absent such relationships or others like them, it is absurd to suggest that a reasonable apprehension of bias can exist merely because … the judge may have had professional dealings with that person in the course of professional practice."
In this case the degree of association between Dr Cowap and Dr Walsh is more remote than that. As Mason J said in Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 352:
"[I]t is important that … judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour."
The same observation applies to members of tribunals such as the professional standards committee.
I do not accept the assertion made by DibbsBarker in their letter of 5 December 2016 that there was "clearly at least the potential for a conflict of interest to arise".
The second ground relied upon, and the one that was put at the forefront of submissions, was that in his first communication Dr Cowap is reported to have advised that:
"He can bring an open and unbiased approach to the matters before the PSC and he is able to prefer the evidence of another expert over that of Dr Walsh if appropriate."
In stressing the second part of that sentence and ignoring the first, the plaintiff has submitted that Dr Cowap has indicated that it would only be where he was called upon to prefer the evidence of another expert witness, rather than a party, over the evidence of Dr Walsh, that he would be untroubled. It was submitted that an objective lay observer might apprehend that that might be the position and that this was sufficient. In support of that argument, it was submitted that by 1 December 2016 the parties had both served their evidence and provided it to the committee and that the committee members would have known, or at least should have known, that no opposing expert opinion evidence was to be called for Dr Richardson from another witness.
I do not accept this argument. I do not accept that an objective reasonable lay observer could reasonably apprehend from Dr Cowap's communications that it would only be if he were called upon to decide between Dr Walsh on the one hand and another independent expert witness on the other that he could approach the matter impartially. To the contrary, in my view, that is an unreasonable interpretation of communications coming from a doctor (it should be observed) and not from a lawyer. But whether a lawyer or a doctor were writing, on any reasonable interpretation, it would be quite wrong to ignore the opening statement that Dr Cowap is said to have made, that is, that he could bring an open and unbiased approach to the matters before the committee.
Nor is it a reasonable reading of what was communicated to say that it would only be if evidence of an independent expert witness were called to contradict Dr Walsh's opinions that Dr Cowap could approach the matter impartially. He did not say so. It is not a reasonable inference to conclude that that is what he meant. Indeed, I understand that Dr Richardson himself will rely upon his own medical opinion, apparently by reference to medical or scientific literature, in support of his case. In those circumstances one could only reasonably understand Dr Cowap to be including the evidence of Dr Richardson when referring to that of another expert.
Dr Cowap repeated that he was quite confident that he could approach the matter with a perfectly open mind regarding Dr Walsh's report. I do not think that a reasonable lay observer could reasonably entertain any apprehension to the contrary.
For these reasons, I do not consider that there is a serious question to be tried that would justify the grant of any relevant final relief.
Moreover, it is not at all clear to me what would be the power of the court to make on a final basis the orders sought in the summons as set out above. As I understood the submission for the plaintiff at the conclusion of his argument, it was that the relief sought was in the nature of an order for prohibition, to prohibit the committee, as presently constituted, from proceeding to its inquiry and determination. That is not the relief sought. If such relief were sought, there would be a very serious question as to whether it would be appropriate to grant such relief when an appeal by way of rehearing lies to NCAT.
But, for all these reasons, I order that the notice of motion be dismissed with costs. I will hear the parties as to what should happen with the summons.
[On the plaintiff's application the summons was also dismissed with costs.]
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Decision last updated: 20 February 2017