Sabag v Health Care Complaints Commission

Court of Appeal (NSW)|2001-09-27|Before: Beazley JA, Sperling J, Taylor J, Mr J

CITATION : Sabag v Health Care Complaints Commission [2001] NSWCA 411 FILE NUMBER(S) : CA 40146/01 HEARING DATE(S) : 27 September 2001 JUDGMENT DATE : 16 November 2001

Juan Sabag (Appellant) PARTIES : v Health Care Complaints Commission (Respondent) JUDGMENT OF : Beazley JA at 1; Davies AJA at 2; Sperling J at 75

LOWER COURT JURISDICTION : Medical Tribunal LOWER COURT 40018/99 FILE NUMBER(S) : LOWER COURT Taylor J, Dr Child, Dr Arnold, Mr Berry JUDICIAL OFFICER :

COUNSEL : A: Mr J R Young, Mr E N Gramelis R: Mr S Rushton SC SOLICITORS : A: Bilias & Associates, Solicitors & Barristers R: D M Swain, Solicitor CATCHWORDS : Medical Tribunal determination - removal from Register of Medical Practitioners - unsatisfactory professional conduct and professional misconduct of medical practitioner - procedural fairness. Medical Practice Act 1992, ss 36, 37, 43, 63, 64, 90, 91, 165 LEGISLATION CITED : Administrative Decisions (Judicial Review) Act 1977, s 13 Administrative Appeals Tribunal Act 1975, s 28 Bannister v Walton (1993) 30 NSWLR 699 House v The King (1936) 55 CLR 499 Mummery v Irvings Pty Ltd (1956) 96 CLR 99 Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292 Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666 Water Board v Moustakas (1988) 180 CLR 491 Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183 Smith v Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 Mifsud v Campbell (1991) 21 NSWLR 725 CASES CITED: HCCC v A Medical Practitioner [2001] NSWCA 158 Ma v Federal Commissioner of Taxation (1992) 37 FCR 225 Richter v Walton (NSWCA, 15/7/93, unrep) Waterford v The Commonwealth of Australia (1987) 163 CLR 54 Yung v Adams (1997) 150 ALR 436 Clyne v New South Wales Bar Association (1960) 104 CLR 186 NSW Bar Association v Evatt (1968) 117 CLR 177 Adams v Yung (1998) 83 FCR 248 HCCC v Pham [1999] NSWCA 39 Smith v NSW Bar Association (1992) 176 CLR 256 DECISION : Set aside the decision of the Medical Tribunal. Remit the matter to a differently constituted Medical Tribunal, to be heard and decided again. Respondent to pay the appellant's costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40146/01 Med Trib 40018/99 BEAZLEY JA DAVIES AJA SPERLING J

FRIDAY 16 NOVEMBER 2001 JUAN SABAG v HEALTH CARE COMPLAINTS COMMISSION

HEADNOTE Facts: The Health Care Complaints Commission ("the Commission") brought a complaint against the appellant in the Medical Tribunal of New South Wales ("the Tribunal") alleging that he had carried out nerve block procedures without necessary safeguards, had incorrectly claimed for procedures carried out and had failed to keep adequate patient records. On 16 February 2001, the Tribunal found the appellant guilty of unsatisfactory professional conduct and professional misconduct pursuant to ss 36 and 37 of the Medical Practice Act, 1992 . The Tribunal ordered that the appellant's name be removed from the register of Medical Practitioners.

During the enquiry conducted into the complaint prior to the hearing, the appellant had maintained that he had carried out nerve block procedures as claimed in the Medicare claims.

However, during the course of the hearing before the Tribunal, the appellant took a different stance, contending he had not carried out nerve block procedures. Rather, he had "administered injections to muscle bundles generally at or near the site of pain reported by the patient" . Notwithstanding the radical change in the appellant's case, the Commission did not amend the particulars of complaint, which related to the appellant's performance of and claiming for, nerve block procedures.

The Tribunal made a number of adverse findings in respect of the appellant including that: his evidence could not be relied upon to determine what procedures he had in fact carried out; he did not have the necessary clinical skills and knowledge to adequately perform intramuscular injections and that his knowledge of the anatomy of the nerves of the neck was sketchy; he had little regard for his professional obligation to take care that claims made under the Medicare scheme were accurate; he recklessly claimed for a procedure without regard for his professional responsibility to make accurate claims; and he failed to keep adequate patient records.

On appeal the appellant claimed that the Tribunal misunderstood evidence of Dr Ditton, upon which it had relied to reach its conclusion that the appellant was incompetent to carry out the procedures he in fact carried out. The portion of Dr Ditton's evidence relied on had, relevantly, been directed to the appellant's competence to perform nerve block procedures, whereas the Tribunal's finding was as to his competence to perform injections into nerve bundles. The appellant also submitted that the Tribunal did not rely solely on the matters stated in the complaint, and that the Tribunal considered an irrelevant matter, namely the appellant's competence as a medical practitioner.

Held: (per Davies AJA, Beazley JA and Sperling J agreeing) (i) The Tribunal misunderstood Dr Ditton's evidence and brought its incorrect view of that evidence to account in finding that the appellant was incompetent to perform injections into nerve bundles, being the procedure he had carried out.

(per Sperling J, Beazley JA agreeing; Davies AJA disagreeing) (ii) The appellant was denied procedural fairness, in that the allegation that he was incompetent and that he misled community agencies were not notified to the appellant, nor were they litigated, so that the appellant did not have the opportunity of meeting those allegations.

Orders: (i) Set aside the decision of the Medical Tribunal; (ii) Remit the matter to a differently constituted Medical Tribunal, to be heard and decided again; (iii) Respondent to pay the appellant's costs of the appeal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40146/01 Med Trib 40018/99 BEAZLEY JA DAVIES AJA SPERLING J

FRIDAY 16 NOVEMBER 2001 JUAN SABAG v HEALTH CARE COMPLAINTS COMMISSION JUDGMENT 1 BEAZLEY JA: I agree with Sperling J. 2 DAVIES AJA: This appeal is brought from a decision of the Medical Tribunal of New South Wales ("the Tribunal"), given on 16 February 2001, in which the Tribunal ordered that the name of the appellant, Juan Sabag ("Dr Sabag"), be removed from the Register of Medical Practitioners of New South Wales ("the Register") and that an application for review of that order may not be made until the expiration of a period of three years. 3 Section 90 of the Medical Practice Act, 1992 ("the Act") provides, inter alia:- " 90 Appeal against Tribunal's decisions and actions (1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against: (a) a decision of the Tribunal with respect to a point of law, or

(b) the exercise of any power by the Tribunal under Division 4 (Disciplinary powers of Committees and Tribunal) of Part 4."

Section 91 provides, inter alia:- " 91 Powers of Court on appeal (1) In determining the appeal, the Supreme Court may: (a) dismiss the appeal, or

(b) make such order as it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Act." 4 The powers of the Tribunal arose under s 64 of the Act which provides, inter alia:- " 64 Tribunal can suspend or deregister in certain cases (1) The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person): (a) that the person is not competent to practise medicine, or

(b) that the person is guilty of professional misconduct, or …" 5 It is not in dispute in this appeal that, by reason of s 90(1)(a), the Tribunal's findings that Dr Sabag was not competent to practise medicine and that he was guilty of professional misconduct may only be challenged for error of law. 6 Under s 90(1)(b), however, the appeal against the disciplinary penalty imposed by the Tribunal is a general appeal which is not limited to a point of law. In general, the Court does not go beyond the facts found by the Tribunal. In Bannister v Walton (1993) 30 NSWLR 699 at 734, Priestley JA said, "The Act gives the tribunal, not this Court, the task of finding the facts in cases such as the present". However, the appeal is not limited to an error of law. As Clarke JA said in Bannister v Walton, at p 735:- "Accordingly the power to review an order made under [s 64] must be exercised upon the basis that the factual findings underlying the 'decision' of the tribunal are not open to scrutiny. It may be, however, that the tribunal may reach conclusions on a number of factual issues which while not strictly relevant to the complaint may be considered to be of importance in determining what is the appropriate order to be made pursuant to [s 64] . In cases where this occurs it would seem to me that this Court would be entitled to examine those conclusions in exercising its power to review the order under [s 90(1)(b)] ." 7 Nevertheless, as the order made by the Tribunal was discretionary in nature, the appellant must demonstrate in one of the ways referred to in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505 that the discretion miscarried. 8 The Tribunal enquired into a complaint by the Commissioner of the Health Care Complaints Commission ("the HCCC") with respect to the professional services of Dr Sabag. The Commissioner, by an Amended Complaint dated 8 September 2000, complained that Dr Sabag was guilty of unsatisfactory professional conduct and professional misconduct in that he:- "(i) has demonstrated a lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine and/or

(ii) has been guilty of improper and unethical conduct relating to the practice of medicine." 9 Particulars of that allegation were given. The Particulars, as amended on the last day of the hearing, commenced as follows:- "The practitioner at all relevant times was a general practitioner practising at rooms at Fairfield in New South Wales. Between 1 July 1994 and 30 June 1995 the practitioner performed or attempted to perform nerve block procedures and administered injections of local anaesthetic and cortisone to patients at his rooms.

Incorrectly made claims on the Health Insurance Commission for the performance of the procedure described by Item 18290 of the Medicare Benefits Schedule as Cranial nerve, other than trigeminal nerve, destruction by a neurolytic agent on 101 occasions in circumstances where he did not do so. (emphasis added)

2.(a) Performed or attempted to perform the procedure described by Item 18252 of the Medicare Benefits Schedule as Cervical plexus, injection of anaesthetic agent on diverse occasions without using an X-ray or image intensifier to ensure the needle was inserted into the right spot in circumstances where there was a risk of inadvertent vascular and/or intrathecal injection,

2(b) Incorrectly made claims on the Health Insurance Commission for the performance of the procedure described by Item 18252 of the Medicare Benefits Schedule as Cervical plexus, injection of anaesthetic agent on diverse occasions in that he did not perform a cervical plexus block on the patients for whom the service was claimed.

…" 10 Analogous particulars to those given under paragraph 2 were also given in relation to procedures described by Item 18286 of the Medicare Benefits Schedule and by Item 18276 of the Medicare Benefits Schedule. 11 Paragraph 5 of the Particulars alleged:- "5. Performed the procedures referred to in Particulars 2, 3 and 4 above in his surgery in circumstances where he: (i) did not have a tilting table, a self inflating bag for the administration of oxygen and a defibrillator,

(ii) without the presence and assistance of an assistant who was appropriately qualified and/or trained in resuscitation procedures,

(iii) in circumstances where he had not undertaken sufficient training and education to competently perform the procedures." 12 Paragraph 6 of the Particulars alleged:- "6. Failed to keep adequate patient records relating to the performance of, indications for and results of the procedures referred to in particulars 1, 2, 3 and 4 above." 13 Each of the procedures described by Items 18290, 18252, 18286 and 18276 were nerve block procedures. Injections of local anaesthetic and cortisone were not such procedures. It will be noted that the Particulars of the Complaint were somewhat equivocal in that they alleged, "the practitioner performed or attempted to perform nerve block procedures and administered injections of local anaesthetic and cortisone to patients". 14 In early enquiries into Dr Sabag's services, Dr Sabag had represented or encouraged the belief that he carried out nerve block procedures as claimed in the Medicare claims. The Tribunal said:- "Up until the hearing of this case, it would be open to conclude that the respondent performed or attempted to perform the procedures in the schedule. There are a number of circumstances that give rise to this conclusion. The fact the respondent made claims that he preformed [sic] or attempted to perform the procedures identified in the Schedule; his representations to the PSRC; his submissions through his solicitor to the Determining Officer and the PSRT and his statement of 1 March 2000. The review process, particularly its interactive nature, over a substantial period of time also gave ample opportunity for Dr Sabag to make it clear he was not performing the procedures." 15 The case before the Tribunal therefore took an unusual turn when, at an early stage, Mr J Davidson, the then counsel for Dr Sabag, informed the Tribunal that Dr Sabag's case was that he had not performed the procedures described by Items 18290, 18252, 18286 and 18276 which were the subject of paragraphs 1, 2(a), 3(a), 4(a) and 5 of the Particulars and of the claims to the Health Insurance Commission ("the HIC"). Mr Davidson said, inter alia, that Dr Sabag would give evidence demonstrating what were the procedures that he actually performed and that he was competent to perform them. 16 The word "competence" was not used, but facts relevant to a consideration of professional competence such as "the dangers associated with the procedures", "the presenting symptoms that the patient had", "the need for a procedure", "the substance … used" and "the nature of the equipment … used" were referred to. My understanding of Mr Davidson's address is that he proposed that Dr Sabag would explain the procedures which he carried out, that the procedures were undertaken because of his patients' needs and that they were properly and safely performed. I should add with respect to that last aspect that, during the course of his evidence, Dr Sabag more than once gave evidence that he had received no complaints from his patients and that the procedures he performed appeared to be effective in relieving the symptoms complained of. 17 On the evidence before it, the Tribunal concluded that Dr Sabag did not carry out the nerve block procedures which were the subject of paragraphs 1, 2(a), 3(a), 4(a) and 5 of the Particulars. The Tribunal found that:- "… Dr Sabag did not carry out the procedures identified in the Schedule. Rather he administered injections to muscle bundles generally at or near the site of pain reported by the patient." 18 This finding led Mr J R Young of counsel, with whom Mr E N Gramelis of counsel appeared for Dr Sabag in this appeal, to submit that the only Particulars on which findings could have been made by the Tribunal against Dr Sabag were the Particulars alleging that Dr Sabag incorrectly made claims on the HIC and that he failed to keep adequate patient records. It was submitted that, apart from failing to record the procedures he performed, Dr Sabag's records were not otherwise worse than those of many other medical practitioners. 19 Mr Young submitted that the Tribunal should have kept strictly to the matters stated in the Particulars and should have concentrated on the reasons why Dr Sabag made incorrect claims on the HIC whereas, it was submitted, the Tribunal entered into an irrelevant matter, namely, Dr Sabag's competence as a medical practitioner. 20 However, if a substantive allegation has been proved at a trial, the decision may follow the finding notwithstanding that particulars of the precise allegation were not given. In Mummery v Irvings Pty Ltd (1956) 96 CLR 99, Dixon CJ, Webb, Fullagar and Taylor JJ said, at p 110:- "In an action conveniently described as a negligence action the particular duty, a breach of which is relied upon to establish negligence on the part of the defendant, may be alleged to have been transgressed in a variety of ways and if the plaintiff particularises the transgression or transgressions relied upon the defendant may, subject to the discretion of the court, hold him to the issue or issues of fact so raised. But the action is still for a breach of the duty specified and the defendant will not defeat the plaintiff's claim either by establishing that the plaintiff's injuries resulted from or were consistent with some other breach of the same duty. If the facts, as proved in the case, lead to the conclusion that the injuries resulted either from one or the other the plaintiff will succeed." 21 Later, in Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292, Jacobs J said, at p 294, in a passage which has frequently been cited, after referring to the judgment in Leotta v Public Transport Commission (NSW) (1976) 50 ALJR 666:- "But the situation which arose in that case was quite different. There the plaintiff at the trial sought to have submitted to the jury a case factually different from that alleged in the pleadings and particulars. This Court stated that if in that different case there was evidence of negligence which, if accepted, established the cause of action the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence and the issue thus raised left to the jury. A failure to apply for the amendment was not fatal. But all this presupposes that the new issue or new way of particularising the existing issue has emerged at the trial and been litigated, that the plaintiff sought to have a case on the new particulars submitted to the jury. All it means is that a defendant cannot lie by as the evidence supporting the case emerged and then at the end of the trial submit that the issues of fact raised by that case should not be submitted to the jury or even wait for an appeal and then claim that the case which emerged should not have been left to the jury. It is entirely different from saying either that a judge of his own motion is bound to look out a case not only different from the facts pleaded but also different from that which the plaintiff seeks to have submitted to the jury or that a court on appeal may as of course be prepared to seek out from the evidence a case different from that which the plaintiff relied on at the trial." 22 In Water Board v Moustakas (1988) 180 CLR 491, Mason CJ, Wilson, Brennan and Dawson JJ summed the matter up in these terms, at p 497:- "In deciding whether or not a point was raised at trial no narrow or technical view should be taken. Ordinarily the pleadings will be of assistance for it is one of their functions to define the issues so that each party knows the case which he is to meet. In cases where the breach of a duty of care is alleged, the particulars should mark out the area of dispute. The particulars may not be decisive if the evidence has been allowed to travel beyond them, although where this happens and fresh issues are raised, the particulars should be amended to reflect the actual conduct of the proceedings. Nevertheless, failure to amend will not necessarily preclude a verdict upon the facts as they have emerged (See Dare v Pulham (1982) 148 CLR 658). In Leotta v Public Transport Commission (NSW) ((1976) 50 ALJR 666, at p 668; 9 ALR 437, at p 446), a case having been submitted to the jury which was factually different from that alleged in the pleadings and particulars, Stephen, Mason and Jacobs JJ observed that the pleadings should have been amended in order to make the facts alleged and the particulars of negligence precisely conform to the evidence. The failure to apply for the amendment in that case was held not to be fatal. But in Maloney v Commissioner for Railways (NSW) ((1978) 52 ALJR 291, at p 294; 18 ALR 147, at pp 151-152), Jacobs J, with whom the other members of the Court agreed, pointed out that the conclusion in Leotta was reached only upon the presupposition that the new issue or new way of particularising the existing issue had emerged at the trial and had been litigated." 23 The Particulars given were particulars, inter alia, of the allegations that Dr Sabag had demonstrated a lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine and had been guilty of improper and unethical conduct. The complaint was that Dr Sabag was not competent to practise medicine and was guilty of professional misconduct. 24 As a result of the matters stated to the Tribunal by Mr Davidson, the manner in which the case before the Tribunal developed was that there was an examination as to whether Dr Sabag had been competent to perform the services which he actually performed, rather than an examination as to whether he had been competent to perform the procedures described by Items 18290, 18252, 18286 and 18276. 25 In submissions to the Tribunal given before the calling of evidence, Mr Davidson said that he would ask Dr Sabag to explain, by reference to slides, what the doctor understood he would be doing if he were in fact carrying out the procedure contemplated by each of the four Item numbers. Mr Davidson said that Dr Sabag would be asked to identify the various dangers associated with each such procedure. Mr Davidson said that the doctor would then give evidence as to the procedures which he actually carried out. Mr Davidson said:- "The doctor will be asked to provide orally a short description of the procedure he, in fact, carried out. He will be asked to identify the presenting symptoms that the patient had, that is those symptoms that indicated the need for a procedure. He will be asked to identify firstly the substance that he used in the procedure. He will be asked to explain to the Tribunal the purpose of the procedure. He will be asked to identify the nature of the equipment that he used. Perhaps if I could flag at this point of time, I apprehend that the size of the needles that the doctor was actually using will be an issue of some significance. The doctor will be asked to describe the size of the needles he was using. After that process has been followed the doctor will then be asked on the slide to identify the actual area that he worked in and he will be asked to explain by way of reference to the slide in fact what he did. That is the approach that will be adopted to each of the item numbers and of course in accordance with the admissions or concessions that the doctor has made." 26 Mr Davidson said that Dr Sabag would then give evidence as to how it came about that the Medicare claims for the payment for incorrect Item numbers were lodged. Mr Davidson said in this respect:- "After he has explained his actions he will be asked to provide a reason why the incorrect item numbers were claimed. It is to be hoped that if the presentation of each item is compartmentalised in that fashion it will lead to greater clarity by way of understanding. I can indicate that the doctor will provide explanations in relation to each of the incorrect item numbers and it is appropriate to identify at this point in time, lest there be any misunderstanding, that the doctor clearly accepts that there is and was an obligation upon him to ensure that the item numbers that he claimed were the correct item numbers." 27 It may be seen that Mr Davidson intended that Dr Sabag would demonstrate his competence, first by speaking about the dangers associated with the itemised procedures and then by identifying the procedures he actually carried out, identifying the symptoms which indicated the need for such procedures, identifying the substance used in each procedure and the purpose of the procedure, identifying the nature of the equipment used and particularly the size of the needles. Dr Sabag was to do this in association with slides which would show the actual area of the body on which he performed each injection. 28 Because these matters were raised in Dr Sabag's defence, it was not procedurally unfair for the Tribunal to deal with them, notwithstanding that particulars of incompetence, in relation to procedures other than the itemised procedures, had not been given. 29 No amendment of the Particulars was called for. It remained the HIC's contention that Dr Sabag had performed or attempted to perform the itemised procedures. Neither the HIC nor the Tribunal was aware of the precise evidence which Dr Sabag would give. A written statement of Dr Sabag commenced with the sentence, in relation to the procedure described by Item 18290, "In injecting the cranial nerve I used hydrocortisone and local anaesthetic". It was not until after it had heard and considered all the evidence that the Tribunal concluded that Dr Sabag had administered intramuscular injections. 30 The evidence did not proceed with the clarity which Mr Davidson intended. In the first place, Dr Sabag appeared to be incapable of describing the circumstances in which any of the four itemised procedures should be used. Thus, Dr Sabag gave this evidence:- "Q. Doctor, what is your understanding of the circumstances in which one would, in fact, carry out the procedure 18290, what would be the indicators to carry out that procedure? A. In my understanding? Q. Yes? A. Being in accordance with the schedule book I read and it says --- Q. Please try and understand my question, what I am asking you, I will try and make this clear, what I want you to do is firstly identify what the item number relates to and what one would normally do if one was to carry out that item number and I wish to take you to what you actually did? A. Sorry, yes. … Q. What was your then understanding as to what presentation would require that procedure would be carried out? A. You repeat again the question please? Q. In what circumstances with your understanding back as it was back at that time would one seek to engage in the destruction of a cranial nerve other than the trigeminal nerve by a neurolytic agent, what would be the presentation that would require that procedure to be carried out, are you able to say? A. Say again?" 31 Secondly, Dr Sabag did not seem to be able to provide any clear exposition of the procedures which he in fact performed or any satisfactory explanation as to why he had claimed for the itemised procedures when the concession was that he did not perform them. For example, Dr Sabag gave this evidence:- "Q. Do you have any explanation in relation to how you came to select the wrong number for the procedure that you have described? A. When I read the item number 18290 - if I might have a copy so I can literally read the item? (Handed) Q. You have before you a copy of the item numbers? A. Yes. It reads, 'cranial nerve other than trigeminal nerve' and with the small print, 'destruction by a neurolytic agent'. My belief was that the eleventh cranial nerve being also intracranial I thought I was entitled to claim that item. Q. So far as the claim is concerned however when one reads the item number in its completeness you were not using a neurolytic agent, were you? A. No. Q. How do you explain how you could make that error when the item number clearly refers to the use of a neurolytic agent? A. I have no short explanation for that. My emphasis was placed on the fact that I was dealing with the cranial nerve. Anything within that territory I expected to be covered by the item 18290 despite using or not neurolytic agent and instead of that I have used in many instances Celestone, Triamcinolone and I thought I was doing the purpose that I wanted to obtain for treating neck pain and headaches. Q. Was your belief at the time that you were entitled to claim under that section that item number? A. Yes, I thought honestly that I was entitled to claim that number." 32 Before the Tribunal, Dr Chung, the peer reviewer, gave this evidence:- "A. I am meaning that he demonstrated to me particularly in that particular review Tribunal's interrogation of him that Dr Sabag didn't know anything about what he was doing. It didn't appear to me what he was injecting, at what concentration, what type of needle he was using and what he was doing at all. I think that he was quite ignorant of many matters which I believe that he should have been acquainted with to be treating these patients. … A. Yes. I think his treatment was not soundly based in all respects. I can not know whether he has taken any adequate history or done any adequate examination and arrived at what diagnosis. I have no knowledge of any of this. It appears from his evidence to the committee that he certainly didn't know what he was doing and what for." 33 The Tribunal accurately recorded the substance of Dr Chung's evidence. Dr Chung reported, in relation to the procedures described by Items 18252 and 18286, that Dr Sabag was either "very incompetent or fraudulent". Nevertheless, Dr Chung's evidence was coloured by the fact, as he conceded in his evidence, that he was not sure what were the procedures that Dr Sabag actually carried out and was not sure of the symptoms with which the patients presented. 34 Dr Ditton, a consultant in pain management who had earlier interviewed Dr Sabag, gave evidence as to the services which he considered Dr Sabag had in fact performed. The Tribunal summarised his view as follows:- "Dr Ditton's overview was that, were the procedures carried out in a manner appropriate to the item numbers, full resuscitation facilities should be available. In reality, he thought that Dr Sabag was injecting local anaesthetic into the muscles and ligaments adjacent to the vertebral bodies and superficial to the cervical plexus, the paravertabral [sic] nerve roots and the sympathetic chain. As such it was reasonable to carry out those procedures without full resuscitation equipment being available. The potential hazards would then depend on the exact site of the injection and Dr Sabag's knowledge of the regional anatomy. In his opinion, the procedures carried out by Dr Sabag were trigger point injections with some minor nerve blocks, all of which he would be prepared to carry out in his rooms under normal circumstances." 35 Dr Ditton was asked about Dr Sabag's competence. There was, for example, the following question and answer:- "Q. His [Dr Chung's] impression was that Dr Sabag didn't know anything about what he was doing. He went on to say: 'I think he was quite ignorant of many matters which I believe he should have been acquainted with to be treating these patients'? A. I would agree from what I have seen in that material that attempts to explain the nature of the procedures that he was carrying out were totally inadequate." 36 In its reasons for decision, the Tribunal cited the following passage from Dr Ditton's evidence when he was asked about his report of 6 June 2000:- "Q. On the next page you say, 'Although Dr Sabag has limited knowledge', at the top of the page, 'Limited knowledge of the anatomy of the neck he would appear to have avoided injections into areas which could be hazardous'. I don't wish to press you too hard but we have had evidence from the peer saying that Dr Sabag's knowledge was not adequate and I am wondering if you would like to address that matter as you have made these comments in your letter about his lack of awareness of anatomical features? A. On the basis of what I have said in this letter, that is from what was presented to me at that time and at that time it appeared to me that his …, knowledge of anatomy in the neck was less than it should have been to be carrying out those sorts of procedures."

I shall later point out that this citation misstated the effect of Dr Ditton's evidence. 37 On the issue of competence, the Tribunal also had before it Dr Sabag's explanations as to how he came to make incorrect claims. I have set out some of his evidence with respect to the procedure described by Item 18290. 38 Dr Sabag was asked questions by members of the Tribunal with a view to clarifying whether his knowledge was adequate. There were, for example, the following questions and answers:- "Q. Just while we are on that point could I clarify with you when you are referring to the eleventh cranial nerve which is also called the accessory nerve? A. Correct. Q. That the function of that nerve [is] motor, in other words it makes muscles move? A. Yes. Q. It has no sensory function, it is not involved with pain, it has no sensory fibres going to the sensory part of the brain? A. My understanding, with all respect, I might be wrong, is that it has asynapsis [sic] with the C1 ventral branch which is sensory. But however, doctor, the purpose of doing and working on this motor branch was to alleviate the contracture that originated in the trapezium. Q. Could you tell us what would happen if you were to do a nerve block or if someone were to do a nerve block on the eleventh cranial nerve, what would happen to the patient? A. It will put the head to the other side even temporarily, if it is only using local anaesthetic, or will at least produce flaccidity of the trapezium on that side where corresponding block. … Q. Doctor, I think you misunderstand the question. The question I put to you is if somebody does a nerve block on the accessory nerve what effect does that have on the patient, you said their head will go over to one side? A. That's the neurolytic agent, if it is destroyed, it will go to the other side. ARNOLD: I won't pursue it. … ARNOLD: Q. Doctor, if we go back to the question of a nerve block of the accessory nerve would that not result in a drooping of the shoulder rather than any effect on the head and neck? A. I am guiding myself for the extent of the whole muscle of the trapezium that is innervated by the eleventh cranial nerve. The elevated scapular probably if blocked will droop the shoulder as well (demonstrating). I am not sure about whether it will droop the - droop means that, right (demonstrating). I am not sure about that. DEPUTY CHAIRPERSON: The witness is indicating collapse of the shoulder. WITNESS: If it is blocking with anaesthetic and steroid I doubt that would happen. With neurolytic agent will go the head to other side. I got a biography here to prove it. DEPUTY CHAIRPERSON: We will continue at this stage."

The impression given by these questions and answers is that members of the Tribunal considered that Dr Sabag's responses were not adequate and displayed a lack of competence on his part. 39 Having regard to all the material, the Tribunal concluded:- "The Tribunal has in fact concluded that Dr Sabag was administering intramuscular injections. The Tribunal accepts Dr Ditton's evidence on this point. "

It is worth noting that the Tribunal relied heavily upon Dr Ditton's opinion as to the procedures actually performed. 40 The Tribunal made the following formal findings, inter alia:- "1. The respondent's evidence cannot be relied upon on its own to determine what procedures he in fact carried out.

Dr Sabag did not carry out the procedures identified in the Schedule to the Amended Complaint. Rather, he administered injections to muscle bundles generally at, or near the site of pain reported by the patient.

The respondent does not have the basic clinical knowledge to identify the procedures he carried out the subject of this hearing. He does not have the clinical skills to adequately perform these procedures. The practitioner's knowledge of the anatomy of the nerves of the neck is sketchy.

The respondent has little regard for his professional obligation to take great care that claims made by him under the Medicare scheme were accurate. ... … 6. The respondent recklessly claimed item 18290 without regard to his professional responsibility to make accurate claims. 7. The respondent failed to keep adequate patient records relating to the performance of the procedures carried out by him and to record indications for and results of the procedures." 41 The inquiry into the procedures which Dr Sabag performed, which were the subject of the claims to the HIC, led the Tribunal to conclude that Dr Sabag did not have adequate knowledge of what he was doing or of the dangers of performing the type of procedures which he in fact undertook. 42 It was submitted in the appeal, by Mr Young, that the Tribunal did not make any express finding as to why it found unsatisfactory professional conduct and professional misconduct. However, the Tribunal expressed its view on the principle involved as follows:- " Professional Misconduct . By s.36 of the Act unsatisfactory professional conduct includes 'lack of skill etc.' being any conduct that demonstrates a lack of adequate judgment and care. It also includes any 'other improper or unethical conduct relating to the practice of medicine.' The meaning of 'professional misconduct' is set out in s.37 of the Act as being conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the register. The principal considerations of the Tribunal in exercising its protective power are the maintenance of the standards of the medical profession and the maintenance of the public's confidence in the profession."

As an expression of general principle, this passage was adequate. 43 Mr Young submitted that the Tribunal failed to give adequate reasons for its finding of incompetence. Section 165 of the Act provides that the Tribunal must provide a written statement of its decision on an inquiry. Section 165(2) provides:- "(2) The statement of a decision must: (a) set out any findings on material questions of fact, and

(b) refer to any evidence or other material on which the findings were based, and

Section 165(2) of the Act contains provisions similar to those appearing in s 13(1) of the Administrative Decisions (Judicial Review) Act, 1977 (Cth) and in s 28 of the Administrative Appeals Tribunal Act, 1975 (Cth). The general nature of the obligation was discussed by Fisher J, Hall and Woodley in Re Palmer and Minister for the Capital Territory (1978) 1 ALD 183 at 192-194. At pp 193-194, it was said:- "Likewise in Iveagh v Minister of Housing and Local Government [1964] 1 QB 395 at 410 Lord Denning says of the same section: 'The whole purpose of the enactment is to enable the parties and the courts to see what matters he (the Minister) has taken into consideration and what view he has reached on the points of fact and law which arise. If he does not deal with the points that arise, he fails in his duty and the court can order him to make good the omission.' … By requiring the decision-maker to give not only the reasons for his decision but additionally a statement of 'the findings on material questions of fact referring to the evidence or other material on which those findings were based', Parliament certainly intended that the citizen should be fully informed. These further requirements will be satisfied by a statement setting out the findings of fact, together with a reference to 'the evidence or other material' on which the findings were based. It is important to note that neither s 28 nor s 37 requires that the relevant 'evidence or other material' be 'set out' in the statement, only that it be referred to. Moreover, the citizen's entitlement to be fully informed was not merely an incident arising in the course of and for the purpose of a review by this Tribunal. It is a right which arises consequent upon a decision being made which is capable of being so reviewed, and the reasons, when properly given, ensure that the citizen is sufficiently informed to determine whether he wishes to take the matter further, and if so whether to make representations to the Minister, proceed in the appropriate court of law or to seek a review by this Tribunal. It follows that to achieve this end the reasons must, in the words of Megaw J in Re Poyser & Mills' Arbitration [[1964] 2 QB 467] at 478, 'be reasons which will not only be intelligible but which deal with the substantial points that have been raised'. We would also refer to Elliott v London Borough of Southwark [1976] 2 All ER 781 per James LJ at 791: 'the duty to give reasons pursuant to statute is a responsible one and cannot be discharged by the use of vague general words which are not sufficient to bring to the mind of the recipient a clear understanding of why his request … is being refused'." 44 However, as Lockhart J said in Smith v Minister for Immigration and Ethnic Affairs (1984) 53 ALR 551 at 554:- "As has been said by judges of this court more than once, it is not legitimate to scrutinize reasons for decisions of government officers too finely or precisely. Such reasons should be studied carefully but sensibly, and not zealously in the pursuit of error." 45 In Mifsud v Campbell (1991) 21 NSWLR 725, Samuels JA commented at p 728 that:- "The extent of the duty to record this evidence given and the findings made depend, as the duty to give reasons does, upon the circumstances of the individual case."

In that case, as in Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 and in Ma v Federal Commissioner of Taxation (1992) 37 FCR 225, the reasons given were held to be inadequate. 46 In the present case, the drafting of the reasons for decision was complicated by the fact that, in view of the Tribunal's conclusions of incompetence, the written particulars became largely irrelevant. The case put on behalf of Dr Sabag was that he did not perform the itemised procedures but performed other procedures, in the performance of which he was competent. The Tribunal perhaps did not recognise that, with the falling away of the particularised grounds of incompetence, it was essential that the Tribunal itself make it clear what was the basis on which it found that Dr Sabag lacked competence. 47 Nevertheless, in reading the reasons of the Tribunal as a whole, it seems to me that the Tribunal would have dealt with the issues before it adequately and in a substantial way if its citation of Dr Ditton's evidence had been accurate. 48 Early on in its reasons, the Tribunal emphasised that the principal consideration of the Tribunal in exercising its protective power was the maintenance of the standards of the medical profession and the maintenance of the public's confidence in the profession. The Tribunal referred to, inter alia, the following words of Priestley JA in Richter v Walton (NSW Court of Appeal, 15 July 1993, unreported):- "Even in regard to the most commonplace medical matters, the trust a patient places in a doctor is considerable … This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain [very] high standards; all this being very much in the public interest." 49 The Tribunal referred to the uncertainty as to exactly what procedures Dr Sabag had in fact carried out. It referred to the fact that its inquiry had been conducted, "in a context of the practitioner being an unreliable witness and his limited knowledge of anatomy and demonstrated lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine" and the fact that, "He kept poor records". 50 The Tribunal referred to Dr Chung's view that, "Dr Sabag didn't know anything about what he was doing" and to Dr Chung's evidence that, "It appears from his [Dr Sabag's] evidence to the committee that he certainly didn't know what he was doing and what for". 51 The Tribunal referred to the fact that Dr Sabag had chosen to ignore the advice of Dr Facer, the HIC's medical adviser, that the claims made by him with respect to the procedure described by Item 18290 were inappropriate. The Tribunal also referred to the fact that the descriptor for Item 18290 was clear. 52 The Tribunal referred to Dr Ditton's evidence and to his conclusion "that although Dr Sabag has limited knowledge of the anatomy of the neck, he would appear to be avoiding injections in areas that could be hazardous". The Tribunal referred to Dr Ditton's opinion that "the procedures carried out by Dr Sabag were trigger point injections with some minor nerve blocks, all of which he [Dr Ditton] would be prepared to carry out in his rooms under normal circumstances". 53 The Tribunal said that, notwithstanding that evidence, "there was telling evidence before the Tribunal as to Dr Sabag's level of expertise". The Tribunal referred to a passage between a Tribunal member and Dr Ditton in the course of which Dr Ditton said, with reference to material from the Professional Services Review Committee, that, "I would agree from what I have seen in that material that attempts [by Dr Sabag] to explain the nature of the procedures that he was carrying out were totally inadequate". 54 The Tribunal also referred to Dr Ditton's evidence that, "at that time it appeared to me that his [Dr Sabag's] … knowledge of anatomy in the neck was less than it should have been to be carrying out those sorts of procedures". 55 The Tribunal mentioned "the very limited knowledge and incompetence the doctor displayed before this Tribunal". This was a reference to the evidence given by Dr Sabag during the course of the hearing. It would have been preferable for the Tribunal to identify specific passages in the evidence supporting this finding. I have set out some relevant passages, one of which was set out in the Tribunal's reasons. However, although it would have been desirable to do so, it would, in my view, have been unnecessary in this case for the Tribunal to identify specific passages provided that its reliance upon Dr Ditton's evidence has been well founded. It is clear from the transcript that Dr Sabag had difficulty in explaining the nature of the itemised procedures, the nature of the procedures which he actually performed and why he thought those procedures came within the criteria of the itemised procedures. 56 The Tribunal expressed the conclusion that it was comfortably satisfied that Dr Sabag had demonstrated a lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine and had been guilty of improper and unethical conduct relating to the practice of medicine and that such conduct constituted both unprofessional conduct and professional misconduct. The Tribunal had earlier made clear the reasons which had led to that conclusion and the material on which the conclusion was based. 57 I find no error in the Tribunal's reasoning save in one respect, which was either not mentioned or not emphasised in the appeal. The Tribunal relied heavily upon the evidence of Dr Ditton. On reading Dr Ditton's reports and his evidence, it appears to me that Dr Ditton expressed views favourable to, rather than critical of, Dr Sabag. In his report of 6 June 2000, Dr Ditton said:- "Although Dr Sabag has limited knowledge of the anatomy of the neck, he would appear to have avoided injections into areas which could be hazardous. … The procedures carried out by Dr Sabag were trigger point injections with some minor nerve blocks all of which I would be prepared to carry out in my rooms under normal circumstances. I understand that many General Practitioners would also carry out these procedures in their rooms."

In relation to the procedure described by Item 18286, Dr Ditton said:- "He [Dr Sabag] said that he evaluated the required depth on the basis of the patient's soft tissue anatomy. He stated that he had never caused a significant complication such as a pneumothorax using this technique. Given the needle which Dr Sabag used for this procedure, it would appear that a pneumothorax would be the only serious complication which might occur as the result of the injections."

In relation to the procedure described by Item 18276, Dr Ditton said:- "Again it would appear that the procedure carried out was a trigger point injection into the muscle bundles and would have been unlikely to cause significant complications. … It is perhaps worth noting that many doctors who cannot claim to have limited knowledge of the English language appear to have claimed reimbursement relating to injections into the paravertebral muscles under item number 18276."

In his oral evidence, Dr Ditton declined to express criticism of the procedures which he considered that Dr Sabag had actually carried out. 58 I have set out in para [36] an extract from Dr Ditton's evidence which was cited and relied upon by the Tribunal. In that passage, Dr Ditton appears to have expressed the view that Dr Sabag's knowledge was "less than it should have been to be carrying out those sorts of procedures". In its reasons for decision, the Tribunal took that passage as referring to the procedures which Dr Sabag performed. The Tribunal described the passage as "telling evidence … as to Dr Sabag's level of expertise". However, in the passage set out in para [36], Dr Ditton was in fact referring to the itemised procedures which, in his view, Dr Sabag did not perform. That was made clear by the following evidence given by Dr Ditton:- "BERRY: Q. When you said you were referring to, your impression was that he had a lack of knowledge in performing this procedure, which procedure were you talking about? A. Specific nerve block procedures such as an occipital nerve block or a superficial cervical plexus block. In fact the procedures which had been claimed under the item numbers rather than perhaps what's been suggested he has been doing today.

Q. That holding true, in other words the injections were into muscle what would your comment be in terms of his knowledge of anatomy I suppose we are talking of? A. There is a fairly good margin of error if one is injecting local anaesthetic just into a muscle bundle. I haven't had the specific questions asked to go further than that." 59 Accordingly, it appears to me that the Tribunal proceeded upon a fundamental mistake as to the thrust of Dr Ditton's evidence. Dr Ditton did not criticise Dr Sabag's competence in relation to the services which he actually performed. 60 In Waterford v The Commonwealth of Australia (1987) 163 CLR 54 at 77, Brennan J said:- "There is no error of law simply in making a wrong finding of fact."

However, the circumstances of the particular mistake must be taken into account. In the present case, because the Tribunal took one of Dr Ditton's answers and applied it out of context, the Tribunal failed to have regard to the thrust of Dr Ditton's evidence, which was that the procedures which Dr Sabag carried out were not unsafe. Dr Ditton's evidence strongly supported Dr Sabag's case. There was no evidence of any complaint from a patient and Dr Sabag's evidence was that the procedures had not given rise to any problem and had appeared to alleviate the symptoms complained of. This evidence was unchallenged. 61 However, as Dr Ditton's evidence was that Dr Sabag's procedures did not appear to be unsafe or inconsistent with normal medical practice and as Dr Chung had not been sure what were the procedures which Dr Sabag carried out, it was incumbent upon the Tribunal, if it relied upon its own findings of Dr Sabag's incompetence, to specify what those findings were. The Tribunal did not do so because it relied heavily upon Dr Ditton's evidence, although it mistook the thrust of it. 62 In my view, the error made by the Tribunal was so significant that it invalidated the decision, for failure to take account of a material consideration and for lack of reasons. 63 On the issue of penalty, Mr Young submitted that the Tribunal took into account irrelevant considerations. Reference was made, inter alia, to the fact that the Tribunal said, "The situation has been aggravated by the doctor's conduct in misleading the community agencies trying to resolve issues". It was submitted that no particular was given in relation to the conduct which misled community agencies. 64 In proceedings of this type, in which a complaint is made against a medical practitioner and the practitioner is given an opportunity to put forward anything which he or she wishes to say with respect to penalty if the complaint succeeds, it necessarily follows that the practitioner's conduct, before the Tribunal and before other bodies in the processes leading up to the laying of the complaint, may be taken into account in determining whether the practitioner is a person who is fit to remain on the Register. If the medical practitioner has shown remorse in respect of his conduct and a recognition that what he did was wrong and if he has shown that he has taken steps to rectify his errors and has reorganised his practice accordingly, those necessarily are matters which the Tribunal will take into account in his favour. 65 In Yung v Adams (1997) 150 ALR 436, I discussed the nature of disciplinary proceedings as enunciated in Clyne v New South Wales Bar Association (1960) 104 CLR 186 and New South Wales Bar Association v Evatt (1968) 117 CLR 177 and said, at p 454:- "In my opinion, the determining officer was entitled to take into account matters such as whether Dr Yung had changed his ways and reformed the nature of his practice. … As those cases show, directions under s 106U with respect to a reprimand, counselling, the repayment of benefits and disqualification are not imposed as a punishment. They are imposed with a view to protecting patients and the Commonwealth against abuse of the system. Any reformation which the medical practitioner has made in the nature of his practice therefore is a highly relevant factor to which regard should be had in exercising the discretion which s 106U confers." 66 These remarks were referred to on appeal in Adams v Yung (1998) 83 FCR 248 by Beaumont J at p 273 and by Burchett and Hill JJ at p 293. In the appeal, it was unnecessary to consider the issue. However, Burchett and Hill JJ, without deciding the point, indicated their approval. 67 The very purpose of an inquiry is to ascertain not only what has occurred in the past but whether there is a likelihood that the conduct will be repeated in the future. Thus, in Health Care Complaints Commission v Pham [1999] NSWCA 39, Meagher JA, with whom Beazley and Fitzgerald JJA agreed, said:- "The seriousness of Dr Pham's misconduct and his gross abuse of his position as a medical practitioner are self-evident. Despite warning, he persisted in extremely unethical and illegal conduct over a considerable period. He was heedless of the consequences to the patients affected and plainly motivated by greed. His false testimony to the Tribunal tends to suggest a lack of remorse, and gives no cause for confidence that he will voluntarily behave properly in the future."

The facts there stated were not expressed in the particulars of complaints attached to the judgment. 68 In the present case, Dr Sabag gave conflicting explanations as to the services which he had performed and he did not pay attention to the advice which he had received on 4 January 1995 from Dr Facer, the HIC's medical adviser, that his use of Item 18290 appeared inappropriate. In assessing whether Dr Sabag was fit to carry on practice, these were relevant facts for the Tribunal to take into account. 69 Mr Young submitted that the Tribunal did not give consideration to any alternative to deregistration. He submitted that other powers were open to the Tribunal on the evidence. He submitted that the Tribunal did not expressly discuss the possibility of other disciplinary orders. However, the Tribunal made it clear, by its findings of fact, that Dr Sabag was unfit to practise. Had its finding been valid, then, and in the absence of evidence from Dr Sabag that he recognised his faults and had reorganised his practice, deregistration was the appropriate order. 70 Mr Young submitted that the Tribunal's order, that an application for review may not be made until the expiration of the period of three years, was made in error as the Tribunal referred to s 63(5) of the Act. The Tribunal's reference to s 63(5) was, however, just a slip for s 64(3). The Tribunal was fully empowered to make the order which it did. That order would have been an appropriate one, had the Tribunal's findings been valid. 71 Mr Rushton SC, counsel for the respondent, submitted that no error was shown in the Tribunal's finding that Dr Sabag lacked competence to perform the procedures he carried out. I need not further discuss this issue. Mr Rushton submitted, alternatively, that the Tribunal's reasons showed that the Tribunal found that Dr Sabag made claims on the HIC for the performance of procedures described by Items 18290, 18252, 18286 and 18276 which procedures he did not perform. Mr Rushton submitted that the Tribunal considered that the making of the incorrect claims and Dr Sabag's failure to keep adequate patient records relating to the performance of the procedures carried out by him were such gross breaches of Dr Sabag's medical responsibilities as to justify his removal from the Register. 72 I do not read the reasons of the Tribunal in that way. In its reasons for decision, the Tribunal concentrated on identifying the procedures which Dr Sabag performed and in examining whether he carried out those procedures with adequate care and skill. The Tribunal concluded that Dr Sabag did not have, inter alia, adequate skill to perform the injections which he carried out. The Tribunal did not give, to the issue of the making of incorrect claims, the attention that the Tribunal would have given if the making of incorrect claims had been the principal reason why the Tribunal considered that Dr Sabag's name should be removed from the Register. 73 Indeed, in the reasons for the Tribunal's decision, there is no sufficient discussion of the seriousness of the misconduct involved in the lodgement of false claims to enable a reader to draw a conclusion as to why the Tribunal concluded that such conduct, of itself, was professional misconduct, as distinct from unsatisfactory professional conduct, and therefore justified the making of a disciplinary order by the Tribunal, or why removal, as distinct from suspension from the Register, was the appropriate order. As the Tribunal considered that Dr Sabag lacked competence in the performance of the medical services he performed, it was unnecessary for the Tribunal to give any further explanation as to why removal from the Register was the order which the Tribunal considered appropriate. It was, as the Tribunal explained, necessary to exercise its protective power in order to maintain the standards of medical practitioners and to maintain the public's confidence in the profession. 74 For the reasons I have given, however, I am of the view that the decision of the Tribunal failed for error of law. I would set aside the decision and would remit the matter to the Medical Tribunal of New South Wales, differently constituted, to be heard and decided again. The respondent should pay the appellant's costs of the appeal. 75 SPERLING J: I have had the advantage of reading in draft the judgment written by Davies AJA in this appeal. 76 The ground on which Davies AJA proposes that the appeal be allowed is that the Tribunal misunderstood Dr Ditton's evidence in a material respect and brought its incorrect view of that evidence to account in finding that the appellant was incompetent to perform the procedures he had carried out. I agree that the appeal should be allowed on that ground and with the orders proposed by Davies AJA. 77 I am of the view that the appeal should also be allowed on the ground of denial of procedural fairness, in that an allegation of such incompetence and an allegation of having misled community agencies (also found by the Tribunal, in those terms) were not notified or litigated, so that the appellant did not have the opportunity of meeting those allegations. In these respects, I find myself in disagreement with Davies AJA. 78 My reasons for proposing that the appeal be allowed also on the additional ground of denial of procedural fairness are as follows. 79 On 16 February 2001, the Medical Tribunal of New South Wales found that the appellant was guilty of unsatisfactory professional conduct and professional misconduct. The Tribunal ordered that the appellant be deregistered. 80 Section 36 of the Medical Practice Act 1992 defines "unsatisfactory professional conduct" as including - (a) Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine, and (m) Any other improper or unethical conduct relating to the practice or purported practice of medicine. 81 Section 37 defines "professional misconduct" as - …unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register. 82 There is no hard line between "offence" and "penalty" as in criminal law and practice. The word "adequate" in paragraph (a) of the definition of "unsatisfactory professional conduct" introduces an element of degree. The phrase "improper or unethical conduct" in paragraph (m) introduces an element of judgment. The definition of "professional misconduct" involves a degree of seriousness sufficient to warrant suspension or deregistration, a matter of degree and judgment. 83 Section 43 of the statute provides that a complaint must contain particulars of the allegations on which it is founded. The primary function of particulars is to apprise the opposite party of the case to be met. There is a special need for particulars in disciplinary proceedings such as these because of the elements of degree and judgment involved in a finding of a professional offence under the legislation. The particulars of the complaint must specify the conduct relied upon sufficiently to apprise the person not only of the bare facts relied upon but also of those aspects of the conduct relied upon as satisfying the elements of degree and judgment which are involved. 84 In the present case, the complaint was as follows: The Health Care Complaints Commission, Level 4, 28-36 Foveaux Street, Surry Hills, having consulted with the New South Wales Medical Board in accordance with Section 51(1) of the Medical Practice Act ("the Act"):-

HEREBY COMPLAINS that: Dr Juan Sabag of Suite 17, 4 Station Street, Fairfield NSW 2165 ("the practitioner") being a medical practitioner registered under the Act has been guilty of unsatisfactory professional conduct and professional misconduct within the meaning of section 36 and 37 of the Act in that he:

(i) has demonstrated a lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine and/or

(ii) has been guilty of improper and unethical conduct relating to the practice of medicine. Particulars followed. 85 Paragraphs (i) and (ii) in the complaint corresponded with paragraphs (a) and (m) of the definition of "unsatisfactory professional conduct" in s36. 86 I come then to the particulars. The conduct relied upon as constituting unsatisfactory professional conduct and professional misconduct was specified as follows: The practitioner at all relevant times was a general practitioner practising at rooms at Fairfield in New South Wales. Between 1 July 1994 and 30 June 1995 the practitioner performed or attempted to perform nerve block procedures and administered injections of local anaesthetic and cortisone to patients at his rooms. As will appear, the relevant nerve block procedures are different from the relevant injections of local anaesthetic and cortisone. The allegation was to be construed distributively. 87 The particulars then continued in the form of six numbered paragraphs, including subparagraphs in some instances. The conduct specified in the numbered paragraphs was conduct allegedly involved in or associated with the procedures. The conduct so specified fell into three categories: (A) Carrying out nerve block procedures, being procedures identified by four item numbers in the Medical Benefits schedule, without necessary safeguards (which were specified) and/or without proper indication for such procedures: paras (2)(a), (3)(a), (4)(a) and (5).

(B) Incorrectly claiming for procedures carried out as being procedures identified by those numbers: (1), (2)(b), (3)(b) and (4)(b).

(C) Inadequate record keeping. 88 The case under (A) and (B) was in the alternative. It was alleged that the appellant carried out the itemised nerve block procedures improperly; or, if he did not carry out such procedures, he incorrectly claimed benefits on the basis that he had done so. 89 The particulars asserting that the appellant carried out the identified nerve block procedures, without adequate safeguards and without proper indication, supported the charge in paragraph (i) of the complaint that the appellant had demonstrated a lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine. So too, the particular asserting inadequate record keeping. The particulars asserting incorrect claims supported the charge in paragraph (ii) of the complaint that the appellant had been guilty of improper and unethical conduct relating to the practice of medicine. 90 In the course of earlier investigations into what had occurred, the appellant asserted that he had in fact carried out the identified nerve block procedures. At least, he declined to admit he had not. Before the Tribunal, the appellant took a different stance. He now asserted, through his counsel, that he had carried out the less intrusive kind of procedure, being, the injection of cortisone and anaesthetic agent into the muscles. In conjunction with that assertion, he now admitted that claims made for the identified and more intrusive procedures were incorrect; but, it was said, not knowingly so. The claims were, it was said, an honest mistake. The appellant also conceded that his records were inadequate. 91 The appellant was now treading a fine line in relation to the incorrect claims. His case was that he misread the descriptors for the identified nerve block procedures in the Medical Benefits Schedule. If the appellant's understanding of the descriptors appeared to be very different from the procedures he said he carried out, there was the risk of opening up a dishonesty issue. On the other hand, if his understanding of the descriptors appeared to be very similar to the procedures he said he carried out, there was the prospect of opening up an issue of medical incompetence. Not surprisingly, some of the appellant's evidence about what procedures he in fact carried out and about how he read the Schedule was hesitant to the point of being evasive. It is clear that he made a bad impression on the Tribunal. This may be why. 92 Counsel for the complainant did not accept the appellant's denial that he had carried out the identified nerve block procedures. The complainant continued to rely on the claims made by the appellant as evidence that he did what he claimed to have done, and continued to prosecute the case that the appellant did so without necessary safeguards and/or without proper indication for such procedures. The complainant's "fall back" position continued to be that, if the procedures carried out by the appellant were not as alleged, the claims made in relation to them were incorrect. There was then inadequate record keeping in either event. 93 The Tribunal found that the appellant did not carry out the identified nerve block procedures, and that he had carried out only the less intrusive intramuscular procedure. (A finding of inadequate record keeping was made.) It was common ground that the less intrusive procedure could be done without the safeguards necessary for the identified nerve block procedures and that localised pain was a sufficient indication for the less intrusive procedure. That disposed of the complainant's primary case. 94 In relation to the complainant's alternative case based on incorrect claims, it was established as common ground, in the course of opening addresses, that the complainant's case did not involve any element of deliberate falsification. Conformably, the Tribunal's ultimate finding was that the claims were made incorrectly and, in relation to one group of claims, recklessly. 95 There is no suggestion that the Tribunal would have considered deregistration the appropriate penalty if incorrect claiming was all that was involved. Deregistration was the result because of further findings made by the Tribunal. They were a finding of incompetence to carry out the procedures which were in fact carried out, and a finding that the appellant had deliberately misled the investigating agencies at an earlier time. 96 I assume for the purpose of this judgment that there was evidence of incompetence to perform the procedures in fact carried out. The relevant evidence is quoted by Davies AJA. I make the assumption with some hesitancy. Dr Ditton's evidence went only to incompetence to perform the more invasive procedures which the Tribunal found were not carried out or attempted. Dr Chung's opinion was formed at an earlier time when the appellant was asserting to Dr Chung that he had carried out the identified nerve block procedures or, at least, was declining to admit he had not. It is not surprising that, in attempting to justify carrying out such procedures when he had in fact carried out other and less intrusive procedures, the appellant gave Dr Chung to understand that he did not know what he was talking about. 97 Some of the appellant's own evidence before the Tribunal is quoted by Davies AJA. What an expert tribunal would have made of that evidence I do not know. The only passage in the reasons for decision having any particularity in this regard was the observation that the appellant "was not able to find his way around the Medicare definitions in the Medicare Medical Benefits Schedule". The observation was made in the context of incorrect claiming. I do not know that the Tribunal attached significance to that part of the appellant's evidence as being relevant to competence. They did not say so, and I would therefore assume they did not. 98 But, however that may be, as I have said, I make the assumption that there was evidence on which it was open to the Tribunal to find incompetence. 99 The Tribunal first mentioned incompetence as a subsidiary issue. I quote the relevant passage: The Tribunal, as with the others involved in the various reviews of Dr Sabag's practices, have had to reconstruct events largely from what was inherently likely in a context of the practitioner being an unreliable witness and his limited knowledge of anatomy and demonstrated lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine. He kept poor records. 100 The finding of inadequate skill etc was in terms of the definition of "unsatisfactory professional conduct" in paragraph (a) of s36(1), as charged in paragraph (i) of the complaint. It lacked particularity at that stage. 101 The Tribunal recorded its finding that the procedures in fact carried out were intramuscular injections and not the identified nerve block procedures as charged in the complaint. It again cited incompetence on the part of the appellant for a subsidiary purpose, being one of the considerations leading it to conclude that the appellant had not carried out the more invasive procedure. I quote the passage: The Tribunal has in fact concluded that Dr Sabag was administering intramuscular injections. The Tribunal accepts Dr Ditton's evidence on this point. The Tribunal is of the firm opinion that Dr Sabag lacks the necessary clinical knowledge to carry out the procedures. Given the very limited knowledge and incompetence the doctor displayed before this Tribunal, it is inherently unlikely that he could have conducted so many procedures identified in the Amended Complaint without recorded patient complaint. A further factor is that Dr Sabag now admits he did not carry out the procedures. The Tribunal finds that Dr Sabag did not carry out the procedures identified in the Schedule. Rather he administered injections to muscle bundles generally at or near the site of pain reported by the patient. 102 The incompetence mentioned in this passage was incompetence to perform the identified nerve block procedures, which the Tribunal found the appellant did not perform or attempt. Incompetence of that kind was one of the reasons for the finding, as appears in this passage. 103 The Tribunal concluded its reasons for decision with a passage headed "Findings". This passage was presumably intended to record, at least in summary form, all relevant findings made by the Tribunal, including its ultimate findings. The passage is as follows: In considering the appropriate orders to be made by the Tribunal in this case, it takes into account the very serious nature of the proven misconduct.

The doctor's patients placed trust in the respondent and were vulnerable to his incompetence. The situation has been aggravated by the doctor's conduct in misleading the community agencies trying to resolve issues.

The principal considerations for the Tribunal in exercising its protective powers are the maintenance of the standards of the medical profession and the maintenance of the public's confidence in the profession. The conduct of the medical practitioner in this case was a grave abuse of the doctor/patient relationship.

The Tribunal has concluded and is comfortably satisfied that:

The respondent's evidence cannot be relied upon on its own to determine what procedures he in fact carried out.

Dr Sabag did not carry out the procedures identified in the Schedule to the Amended Complaint. Rather, he administered injections to muscle bundles generally at, or near the site of pain reported by the patient.

The respondent does not have the basic clinical knowledge to identify the procedures he carried out the subject of this hearing. He does not have the clinical skills to adequately perform these procedures. The practitioners knowledge of the anatomy of the nerves of the neck is sketchy. (Then follow findings relating to the incorrect claims and inadequate patient records). The Tribunal is comfortably satisfied that Dr Sabag:

(i) has demonstrated a lack of adequate skill, knowledge, experience, judgment and care in the practice of medicine and

(ii) has been guilty of improper and unethical conduct relating to the practice of medicine.

The Tribunal is also satisfied that such conduct constitutes both unprofessional conduct and professional misconduct. 104 It is reasonably clear that the finding of incompetence in the second paragraph of this passage is co-extensive with the finding of lack of sufficient knowledge and skill to carry out the procedures in fact carried out by the appellant, and co-extensive also with the ultimate finding of misconduct in terms of paragraph (a) of s36(1) and paragraph (i) of the complaint. I think it is reasonably clear that the incompetence so found was incompetence to perform the procedures carried out rather than a more general medical incompetence. But it is not necessary to resolve that question. 105 It is not only the finding of incompetence which is to be noted. There was also the finding (in the passage quoted above) that the appellant had misled community agencies in the earlier investigations. The Tribunal regarded that as an aggravating factor. In the context of professional offences involving the questions of degree and judgment to which I have referred, the finding should also be seen as having contributed to the ultimate finding of the professional offences charged, and not as having been relevant merely to what consequential order should be made. 106 There was undoubtedly evidence of the appellant having misled investigators and agencies, but that is not the point. There was nothing in the complaint giving notice to the complainant of either of these two matters - incompetence to perform the procedures carried out or having misled investigating agencies - as conduct to be relied upon as constituting or contributing to the professional offences charged. There was no such notice in the opening address by counsel for the complainant. On my reading of the opening statement made by counsel for the appellant and his later opening address before adducing evidence, there was nothing to suggest that the appellant was otherwise on notice of these matters as part of the complainant's case. (Davies AJA has a different view and I will come to that). It was not put to the appellant in cross-examination by the Tribunal that the appellant was incompetent to perform the procedures in fact carried out by him or that he was incompetent in a more general sense. Neither of the two above matters was put to the Tribunal in the closing address by counsel for the complainant, as elements of the complainant's case. Again, counsel for the appellant did not, in his closing address, recognise any such elements in the complainant's case. The Tribunal itself did not raise these matters for consideration before giving its decision. 107 In short, the appellant had no notice that these matters would be or might be relied upon by the Tribunal as constituting or contributing to its ultimate findings. The appellant did not have an opportunity to be heard in relation to those matters. 108 For the Tribunal to have made the relevant findings, in these circumstances, and to have used those findings to support its ultimate finding of the professional offences charged - as it did - was a denial of procedural fairness and an error of law on the part of the Tribunal. The appeal should accordingly be allowed on this ground, as well as on the ground proposed by Davies AJA. 109 As authority for this approach, I need only cite the decision of the High Court in Smith v NSW Bar Association (1992) 176 CLR 256. The NSW Court of Appeal had disbarred a barrister. The Court of Appeal found that the barrister had lied in his evidence in the proceedings before the court. The finding contributed to the court's decision that the barrister was guilty of professional misconduct and should be disbarred. The High Court reversed the decision on grounds which included that the barrister had not been given notice that such a finding would or might be made and used against him in that way. 110 In their joint judgment, Brennan, Dawson, Toohey and Gaudron JJ said (at 269): In these circumstances it is convenient to proceed on the assumption that his Honour also acted on a positive finding that the appellant deliberately lied. But even if the evidence was sufficient to support the findings so made and even if that finding could properly be taken into account in determining the result, considerations of procedural fairness required that the appellant be given an opportunity to be heard as to whether the finding should be made. In the first hearing before the Court of Appeal, no allegation of deliberately lying was made against the appellant before the adverse finding was made. That being so, the finding then made that the appellant had lied and the consequence of that finding then determined by Mahoney and Meagher JJA. that the appellant be disbarred were flawed. 111 In a separate judgment Deane J said (at 270 and 272): Disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner. Nonetheless, a court or other tribunal entertaining such proceedings is bound to observe the requirements of procedural fairness before making or acting upon any finding of misconduct. Two of these requirements in such proceedings are relevant for present purposes. The first is that the allegations against the particular practitioner must be specifically identified. The second is that the practitioner must be afforded an appropriate opportunity of being heard in relation to them.

The appellant could not realistically be expected, while maintaining the reliability of his evidence in relation to that issue, to have set out to establish how and why that evidence was honestly mistaken. If the Court of Appeal, after reaching the conclusion that the appellant's evidence about the car park conversation should be rejected, had thought it desirable or necessary to consider whether the appellant had been guilty of professional misconduct in that he had deliberately given false evidence before it, "at the very least a new charge would have [had] to be laid (before it could be relied upon) so that [the appellant could] then know of it, appreciate what he [had] to meet and be allowed ample opportunity to meet it". 112 In the present case, there was no finding that the appellant had deliberately lied in his evidence before the Tribunal. However, the principle as to notice applies in this case to the finding of incompetence and to the finding of having misled community agencies in prior investigations. 113 I should now refer to some aspects of Davies AJA's judgment in order to explain why I respectfully disagree with him on this issue. His Honour reads the opening address to the Tribunal by counsel for the appellant as including an acknowledgement that there was an issue as to the appellant's competence. I do not read the address that way. First, there was no reason for counsel to think this was so, there having been no such assertion in the complaint or in the opening address by counsel for the complainant. Secondly, I read the passage from the opening address by counsel for the appellant, which is quoted by Davies AJA, as no more than foreshadowing evidence on which the appellant would rely to establish what it was that he did, that is, that he carried out intra-muscular procedures and not the identified nerve block procedures which it was alleged he had performed. I do not read the passage or cognate passages as foreshadowing evidence which would be relied upon as evidence of competence to perform the less invasive procedures or as evidence of a more general medical competence. 114 I read the appellant's evidence before the Tribunal conformably. 115 As to the evidence of Dr Chung and answers given by the appellant in his evidence before the Tribunal, I have assumed that this was evidence on which a finding of incompetence was open to the Tribunal. The evidence was also relevant to whether the appellant had, as alleged by the complainant, carried out the identified nerve block procedures. It was used by the Tribunal in that way in a passage I have quoted. There was no reason for the appellant to think the evidence would be used for any other purpose. 116 The authorities cited by Davies AJA establish that, where an issue has emerged at the trial and has been litigated, it is no objection that the issue was not notified before trial. Davies AJA takes the view that the issue of competence to perform procedures in fact carried out was litigated, I take the view that it was not. That appears to be the point which has led us to different conclusions on this aspect of the appeal. 117 As stated at the outset, I agree with the orders proposed by Davies AJA and with his reason for allowing the appeal. **********

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At a glance

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Decision date

Before

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Judgment (59 paragraphs)

Parties

Cases Cited (19)