SAVILLE v HEALTH CARE COMPLAINTS COMMISSION & ANOR

Health Care Complaints Act 1993 (NSW), ss 90B, 90C, 90D LEGISLATION CITED: Medical Practice Act 1992 (NSW), ss 51, 52, 61, 63, 64, 87, 90, 92, 93, 94, 94A, 165, 179 Migration Act 1958 (Cth), s 501G Supreme Court Act 1970 (NSW), s 69

Campbelltown City Council v Vegan [2006] NSWCA 284 Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368 Craig v South Australia (1995) 184 CLR 163 Dinsdale v The Queen (2000) 202 CLR 321 Foster v Minister for Customs and Justice (2000) 200 CLR 442 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 CASES CITED: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 Rohatgi v Health Care Complaints Commission [No. 2] (unrep, 26 July 1996) Taylor v Health Care Complaints Commission (No. 1) (unrep, 13 September 1996) Taylor v Health Care Complaints Commission (No. 2) (unrep, 2 December 1996) Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82

Michael Saville - Appellant PARTIES: Health Care Complaints Commission - First Respondent Medical Tribunal of New South Wales - Second Respondent

M. Lynch - Appellant COUNSEL: C.E. Adamson SC/P. J. Griffin - First Respondent N/A - Second Respondent

Paul Tsaousidis - Appellant SOLICITORS: Health Care Complaints Commission - First Respondent I V Knight, Crown Solicitor - Second Respondent

LOWER COURT JURISDICTION: Medical Tribunal of New South Wales

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40974/05 Medical Tribunal No. 40023/05

HANDLEY JA TOBIAS JA BASTEN JA

2 November 2006 Michael SAVILLE v HEALTH CARE COMPLAINTS COMMISSION & ANOR

On a complaint laid by the Respondent against Dr Saville, a Professional Standards Committee imposed conditions on his registration, including conditions prohibiting him from practising as a sole general practitioner. Dr Saville appealed pursuant to s 87 of the Medical Practice Act 1992 (NSW) to the Medical Tribunal. Prior to the hearing of the appeal, the Appellant reached agreement with the Commission and consent orders were prepared to remove that constraint. The Tribunal allowed the appeal in part but rejected the consent orders proposed by the parties which would have removed that constraint.

The practitioner purported to appeal to the Court of Appeal from the order of the Tribunal. He also filed a notice of motion seeking leave to commence proceedings in the Court of Appeal by way of summons, seeking orders in the nature of prerogative relief under s 69 of the Supreme Court Act 1970 (NSW).

(i) the practitioner had a right of appeal to the Court of Appeal pursuant to s 90 of the Medical Practice Act 1992 (NSW) from an appeal to the Medical Tribunal under s 87;

(ii) the Tribunal reached its decision by way of prejudgment, prior to the hearing, so that there was a want of procedural fairness;

(iii) the Tribunal failed to take into account relevant considerations or took into account irrelevant considerations;

(iv) the Tribunal failed to give adequate reasons so as to constitute a failure to perform the mandatory preconditions to the valid exercise of the power conferred on the Tribunal.

Held in relation to (i): Per Basten JA (Handley JA agreeing & Tobias JA not deciding)

1. There is no right of appeal to the Court of Appeal under s 90(1) against the decision of the Tribunal hearing an appeal from the Professional Standards Committee under s 87 of the Medical Practice Act. The practitioner is not a person about whom a complaint 'is' referred to the Tribunal: at [13]. Taylor v Health Care Complaints Commission (No.1) (unrep, 13 September 1996); Taylor v Health Care Complaints Commission (No.2) (unrep, 2 December 1996), applied ; Rohatgi v Health Care Complaints Commission [No.2] (unrep, 26 July 1996); Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82, referred to.

2. Whatever basis there may have been for challenging the decision in Taylor was foreclosed by the addition of s 90(1A) which demonstrates acceptance by the Parliament that there is no right of appeal to the Court of Appeal from an appeal of an exercise of power by the Committee under Part 4, Division 4: at [22].

3. The right to relief in relation to the decision of the Tribunal in the present case is therefore limited to that under s 69 of the Supreme Court Act: at [23].

Held in relation to (ii): Per Basten JA (Handley & Tobias JJA agreeing)

1. The Tribunal would have failed to accord procedural fairness if, given the brief hearing anticipated, the Chairperson, had not, at an early stage, indicated the preliminary views of the Tribunal with respect to the proposed consent orders. The fact that the Tribunal adhered to those views, in the absence of a full hearing, does not mean that it prejudged the issues: at [48].

2. Procedural fairness, in the circumstance of the present case, required that the practitioner be given an adequate opportunity to present such additional material and submissions as he might be advised in order to support his appeal. There is no suggestion that, had he sought to take that course, a reasonable opportunity would not have been accorded, including adjournment of the hearing. Nothing the Tribunal said induced the practitioner to take an ill-advised position: at [49].

Held in relation to (iii): Per Basten JA (Handley & Tobias JJA agreeing)

1. The complaint was really an attempt to challenge the merits of the decision, which cannot be done in circumstances where it is a precondition of relief that error of law be demonstrated. An appropriate ground of review may be identified as manifest unreasonableness, but this was not relied upon: at [54]. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, cited.

2. To invoke error of law based on a failure to take account of relevant considerations, it is necessary to identify matters, the consideration of which is mandated by law. However, the reason that the Tribunal did not consider certain evidence was that the practitioner failed to proffer it to the Tribunal: [55]-[56]. Forster v Minister for Customs and Justice (2000) 200 CLR 442, applied.

3. Similarly, in relation to irrelevant considerations, legal error is demonstrated only where a matter is taken into account which the law prohibits: at [57]. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, applied.

4. Most matters taken into account in judicial or quasi-judicial proceedings are permissible considerations. Some may be elevated to the status of mandatory considerations, so that to ignore them would demonstrate legal error, but one would rarely expect a specialist tribunal, especially when assisted by experienced counsel, to fail to take such matters into account, or be misled into giving weight to matters which lie so far beyond the purpose of its functions as to be legally irrelevant. The practitioner has demonstrated no such error in the present case: at [58].

Held in relation to (iv): Per Basten JA (Handley & Tobias JJA agreeing)

1. The brevity of the reasons was in large part a function of the brevity of the hearing before the Tribunal. The only issue was whether a condition constraining the practitioner from embarking upon psychiatry or psychotherapy was sufficient protection from future "boundary violations". The further constraints on solo general practice were thought necessary because "boundary violations" could occur in general practice. Why that was not a satisfactory explanation and justification for the position the Tribunal took was not clear: at [51].

2. The purpose underlying the obligation to give reasons is the discipline of rationality, being the antithesis of arbitrariness, together with the transparency of decision-making, which permits the parties and the public to understand the result reached: at [52]. Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme 216 CLR 212; Dinsdale v The Queen (2000) 202 CLR 321, applied.

3. The practitioner failed to avail himself of the opportunity to do more than present brief submissions which did not directly address the topic of whether restrictions on general practice were not necessary to guard against future boundary violations. The complaint based on lack of procedural fairness through inadequacy of reasons was without substance: at [53].

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40974/05 Medical Tribunal No. 40023/05

HANDLEY JA TOBIAS JA BASTEN JA

2 November 2006 Michael SAVILLE v HEALTH CARE COMPLAINTS COMMISSION & ANOR Judgment 1 HANDLEY JA: I agree with Basten JA. 2 TOBIAS JA: I agree with the orders proposed by Basten JA for the reasons articulated by him in [31] et seq of his judgment. 3 In the circumstances I do not find it necessary to consider the issues discussed by his Honour in [11] to [24] as it was common ground between the parties that the appeal was incompetent and that the only remedy available to the practitioner was an order under s69 of the Supreme Court Act. We were therefore not addressed on the issues to which I have referred and I would therefore prefer not to comment upon them. 4 BASTEN JA: On 29 September 2003 the Commissioner, Health Care Complaints Commission, made a complaint that Dr Saville ("the practitioner") had been guilty of unprofessional conduct in relation to a young woman known as Patient A. Patient A saw the practitioner in his capacity as a psychiatrist. 5 The conduct complained of was not of sufficient seriousness to warrant a referral to the Medical Tribunal, and hence the Health Care Complaints Commission ("the Commission") referred the complaint to a Professional Standards Committee, pursuant to s 51(1)(a) of the Medical Practice Act 1992 (NSW). The complaint had an unusual procedural history, which is of no present relevance, except that it provides an explanation for the delay in its resolution. On 26 April 2005, a Professional Standards Committee ("the Committee") made findings of unsatisfactory professional conduct and made orders, pursuant to s 61(1) of the Medical Practice Act, reprimanding the practitioner "in the strongest possible terms" and imposing conditions on his registration. In part those conditions constituted a prohibition on the practitioner operating as a sole practitioner, with the result that he was limited to participating in a group general practice, being a practice having three or more medical practitioners in it. Other conditions qualified his ability to practise psychiatry or psychotherapy. 6 The practitioner exercised his right to appeal from the orders of the Committee to the Medical Tribunal, pursuant to s 87 of the Medical Practice Act. His notice of appeal was in general terms, alleging that the conditions were "excessive and unnecessary in light of the nature and extent of the unchallenged findings of unsatisfactory professional conduct". However, prior to the hearing before the Tribunal, he reached agreement with the Commission that the constraints on his ability to operate as a sole general practitioner were unnecessary. A statement of agreed facts was prepared, together with consent orders which removed those conditions imposed by the Committee, limiting his rights in respect of general practice by himself. 7 The appeal came before the Medical Tribunal on 5 December 2005. The statement of agreed facts and the consent orders had apparently been filed prior to the hearing and the Chairperson advised counsel appearing for the parties that the Tribunal had considered the proposed orders and, as then advised, was not minded to vary the conditions imposed by the Committee in the manner sought. In addition to the statement of agreed facts, all of the material before the Committee was placed before the Tribunal. Following further discussion with counsel and submissions in relation to the appropriate course, the Tribunal made a determination which in effect rejected the "consent orders" proposed by the parties. However, it allowed the appeal, so as to enable it to vary the form of the orders and gave brief reasons, on the same afternoon, for its determination. 8 The practitioner then purported to appeal to this Court from the imposition from those conditions which were not contained in the proposed consent orders presented to the Tribunal and which in effect confirmed the restrictions on the practitioner's rights of general practice by himself, imposed by the Committee. 9 At some stage after the notice of appeal was filed and various other steps, including the preparation of written submissions, had been taken, a notice of motion was filed seeking leave to commence proceedings in this Court by way of summons, so as to seek orders in the nature of prerogative relief, under s 69 of the Supreme Court Act 1970 (NSW). 10 The Medical Tribunal was joined as a respondent to the appeal. That was inappropriate, but obviated the need for the Tribunal to be joined as an opponent to the summons, which was necessary. The Tribunal's submitting appearance on the appeal should be treated as extending to the summons of which it had notice.

Purported appeal 11 The practitioner at all stages appears to have accepted that to succeed in this Court he needed to establish jurisdictional error on the part of the Tribunal or at least an error of law appearing on the face of the record, the record for that purpose including the reasons of the Tribunal: Supreme Court Act, s 69(4). Had the practitioner been entitled to appeal pursuant to s 90 of the Medical Practice Act, he would be able to challenge the exercise of the power of the Tribunal to impose conditions, pursuant to s 61 of the Act, on a broader basis. The scope of the appeal in that respect was explained in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [81]-[92]. Those principles need not be repeated here. 12 The right of appeal to this Court is conferred by s 90 of the Medical Practice Act. As originally enacted, s 90(1) was the sole source of the right to appeal and read as follows: 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.

A complaint may be referred either to a Committee or to the Tribunal, pursuant to s 51(1)(a), as already noted. The relevant disciplinary powers contained in Part 4, Division 4, are set out in ss 60 and 61 and include the powers exercised by both the Committee and the Tribunal in the present case. 13 A person who has been suspended from practice, or deregistered, or whose registration has been made subject to conditions, may apply for review of such orders, to an "appropriate review body": s 92. Section 93 provides that the "appropriate review body" is the Tribunal, except in a case where the Tribunal, by its order, has provided that there may be review by the Medical Board. In the matter of Rohatgi v Health Care Complaints Commission [No. 2] (unrep, 26 July 1996) Handley JA considered whether an appeal could be taken under s 90(1) against the decision of the Tribunal acting as the appropriate review body, under s 92. His Honour concluded that there was no right of appeal stating (at pp 5-6): "Although Dr Rohatgi is a person about whom a complaint 'was' referred to the Tribunal under the former Act in 1988, it would not be correct to describe him as a person about whom a complaint 'is' referred to the Tribunal under the 1992 Act. … The subject matter of a review enquiry is the application for review, and not the original complaint which will only be relevant in the new enquiry to the extent that it was upheld in the decision under review." 14 This conclusion was challenged in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82. Although noting that it was strictly unnecessary to address the competency of the appeal, Mason P discussed the arguments presented at pp 101C-102A and concluded that the conclusions reached by Handley JA in Rohatgi [No. 2] were correct. His Honour conceded: "Other arguments advanced on behalf of the appellant indicate possible anomalies and apparently inexplicable discriminations in the legislative scheme but these provide no justification for the Court finding a right of appeal where none exists."

Priestley JA agreed with Mason P and added the comment that the last matter addressed "is a troublesome one and should be considered by the legislature". Powell JA also agreed with the President. One of the anomalies to which the President may have been referring is that under s 94(1) the Tribunal may conduct "an inquiry into an application for review" and may, amongst other things, vary the period of suspension, reinstate the practitioner to the record, alter the conditions to which the registration is subject (including by the imposition of new conditions) or may dismiss the application. Further, the review may extend to a review of the original order made by the Tribunal if there is significant fresh evidence produced to it: s 94A(2). If that evidence provides a basis for concluding that there was no professional misconduct in a particular case and the practitioner should not have been deregistered, but the Tribunal erroneously rejects the material, the practitioner has no right of appeal. Alternatively, if the fresh material arguably justified a different exercise of the disciplinary power, which was not undertaken, the broader rights of appeal (not limited by reference to relief available under prerogative writs), but available under s 90(1)(b), would be unavailable when the matters were raised by way of review. 15 As will be noted below, the legislature has given consideration to the matter. Before noting the relevant amendment, reference should be made to the decision of this Court in Taylor v Health Care Complaints Commission (No. 1) (unrep, 13 September 1996) a decision of Sheller JA sitting alone, which was affirmed by the Court in Taylor v Health Care Complaints Commission (No. 2) (unrep, 2 December 1996) Mahoney P, Clarke JA and Simos AJA agreeing. 16 In procedural terms, Taylor was similar to the present case. The complaint in that matter was referred to a Committee. However, the Committee considered that the practitioner should be deregistered for incapacity. It did not have the power to remove a name from the register, but it did have power pursuant to s 63 to recommend that a person be deregistered. Section 63(2) provided: (2) The Committee makes its recommendation by referring the matter with its recommendation to the Chairperson of the Tribunal or to a Deputy Chairperson nominated by the Chairperson.

The power is then exercised in the following manner: (3) The Chairperson or Deputy Chairperson may then make an order in the terms recommended or may make such other order as to the suspension or registration of the person as the Chairperson or Deputy Chairperson thinks proper based on the findings of the Committee.

The power under s 63 only arises where the Committee is satisfied that the practitioner "does not have sufficient physical and mental capacity to practise medicine". The Tribunal, dealing with a complaint referred to it under s 52, also has the power to suspend or deregister a practitioner if it finds that the person "is not competent to practise medicine": s 64. 17 Apart from questions of capacity, a committee is required to terminate an inquiry if satisfied that the complaint, if substantiated, may provide grounds for suspension or deregistration: s 179(1)(a). In that case, the Committee itself "must refer the complaint to the Tribunal unless it has already been referred to the Tribunal": s 179(3). 18 In the view of Sheller JA, where a complaint was referred to a Committee in the first instance and dealt with by the Committee, with the practitioner then appealing to the Medical Tribunal, no right of appeal to the Supreme Court arose under s 90(1) because the practitioner was not a person about whom a complaint is referred to the Tribunal. 19 In Taylor (No. 2) that conclusion was upheld, Mahoney P stating: "The structure of the legislation is, to say the least, not uncomplicated. But there is an apparent difference in the legislation between a proceeding (I again use a general term) which comes before the Tribunal by way of the reference of a complaint and one which comes before the Tribunal otherwise, for example by way of appeal pursuant to s 87(1). In s 52 of the Act, provision is made for the reference of a complaint to the Tribunal by the Board or by the Commission there referred to, and that method of coming before the Tribunal, that is by way of reference, finds analogues in various parts of the legislation. Reference is made in the legislation to a complaint proceeding by way of appeal. But, as I have said, there is a distinction evident in the drafting of the legislation between matters coming to the Tribunal upon a reference (for example, being referred to the Tribunal as in s 52(1)) and coming to the Tribunal in other ways."

His Honour also noted the terms of s 87(3), dealing with an appeal from the Committee to the Tribunal: (3) The appeal must be lodged with the Registrar who is to refer it to the Tribunal.

In relation to that provision his Honour stated: "The use of the term 'refer' may perhaps be thought to indicate that the reference to 'refer' to the Tribunal in s 90(1) should be given a wider and perhaps special meaning. But an examination of s 87(3) indicates that what is there referred to is the appeal, whereas what is referred to in s 90(1) is the complaint. I do not think that in the end s 87(3) assists in the construction of s 90(1)." 20 One consideration which might have tended towards a different construction is the nature of the "appeal" from the Committee to the Tribunal. Thus, s 87(4) and (5) provide: (4) The appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given. (5) The Tribunal may: (a) dismiss the appeal, or (b) make any finding or exercise any power or combination of powers that the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal.

These further provisions suggest that the appeal may be by way of rehearing, but may also be a hearing de novo. The proper subject matter of the hearing de novo can only be the complaint originally referred to the Committee. Accordingly, until Taylor decided otherwise, it was arguable that the Tribunal was considering a complaint referred to it when dealing with an appeal from the Committee. The fact that the Tribunal may exercise any powers it could have exercised if the complaint had originally been referred to it, without right of appeal to the practitioner, may be one of the anomalies to which the President referred in Rohatgi . It remains undetermined, on the present authorities, as to whether a complaint referred by a Committee to the Tribunal, pursuant to s 179(3) gives rise to a referral of the kind referred to in s 90(1). 21 As noted above, the Parliament has responded in part to the anomalies raised by s 90, as originally enacted. Thus, pursuant to the Medical Practice Amendment Act 2000 (NSW), s 90 was amended to insert a new sub-s (1A) in the following terms: (1A) A person who is a party to an appeal to the Tribunal against the exercise by the Chairperson or a Deputy Chairperson of the Tribunal of any power under Division 4 of Part 4 (including the complainant in respect of the matter), 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 section 87. 22 Whatever basis there may have been for challenging the reasoning in Taylor, it is foreclosed by the addition of sub-s (1A). That provision demonstrates acceptance by the Parliament that a person who is a party to an appeal to the Tribunal under s 87 does not fall within the terms of sub-s 90(1). Further, by picking up only and selectively the terms of s 87(1)(c), concerning the exercise by the Chairperson of the Tribunal's powers under Part 4, Division 4, and granting an appeal in respect of that subject matter, it demonstrates clearly that no appeal could lie to this Court from an exercise of power by the Committee under Part 4, Division 4, being the subject matter of paragraph (b) in s 87(1). Parliament has thus made it clear beyond doubt that there is no right of appeal in the present case.

Scope of powers of review under s 69, Supreme Court Act 23 Rights of relief in relation to the decision of the Tribunal in the present case are therefore limited to those available to the practitioner under s 69 of the Supreme Court Act. To that end, he seeks an order in the nature of certiorari, setting aside the decision of the Tribunal. 24 Such an order may be made on the basis of jurisdictional error, or on the basis of error of law on the face of the record. Pursuant to s 69(4), the record includes "the reasons expressed by the … tribunal for its ultimate determination". However, one error of law relied upon by the practitioner is the inadequacy of the reasons themselves. As noted by this Court in Campbelltown City Council v Vegan [2006] NSWCA 284 at [50], the purpose of the amendment to s 69 which inserted sub-s (4) was to expand the concept of the "record" beyond that identified in Craig v South Australia (1995) 184 CLR 163 at 182. The statutory provision thus reinstated the approach adopted by this Court in Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368, particularly in the judgment of Priestley JA. Nevertheless, there may be some doubt as to whether inadequacy of reasons thereby becomes a form of error of law on the face of the record, only because the record now extends to include the reasons. No doubt a failure to provide reasons will engage a power to set aside a decision, if that failure constitutes jurisdictional error. However, the extent to which that is so would require careful consideration of the reasoning in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, especially at [62]-[84] (McHugh, Gummow and Hayne JJ) addressing the obligation of the Refugee Review Tribunal to provide a written statement of its findings and reasons, pursuant to a statutory provision not materially different from s 165(1) and (2) of the Medical Practice Act: see Yusuf at [67]. Further assistance might be obtained from the joint judgment in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 at [39]-[46] (Gleeson CJ, Gummow and Heydon JJ). It was held in Palme that the Minister's failure to provide reasons for his decision did not constitute jurisdictional error which invalidated the decision: at [45]. One reason for that conclusion may be found in the express statutory statement to that effect in s 501G(4) of the Migration Act 1958 (Cth), set out in Palme at [10]. However, it seems clear from the reasons given at [45] that their Honours would have reached the same conclusion under the general law. In any event, these issues need not be resolved because, as will be seen below, the reasons given by the Tribunal in the present case did not demonstrate any inadequacy of a kind which might constitute a failure to perform the mandatory preconditions to the valid exercise of the power conferred on the Tribunal.

Determination of Tribunal 25 In reaching its conclusion on 26 April 2005, the Committee had before it a volume of documentary material, including written statements from the practitioner, as well as oral evidence taken from the practitioner at a hearing. If that evidence was recorded, no transcript was contained in the material presented to the Medical Tribunal, or before this Court. In addition, the Committee had medical opinions from a forensic psychiatrist, Dr Bruce Westmore, who appears to have been instructed by the practitioner's professional indemnity insurer and from Dr William Andrews a consultant psychiatrist instructed by the Commission. 26 It may be noted that there were significant discrepancies between a statement given by Patient A and the practitioner's response. However, Patient A did not give evidence before the Committee and the practitioner's version was accepted. Dr Andrews stated: "Breaches of the boundaries of proper professional behaviour, regardless of the motivation of the psychiatrist, are highly likely to be interpreted as sexual advances by many patients and in my view Dr Saville should have been aware of this. At the least he shows a complete lack of understanding of what his patient was thinking and feeling about him coupled with serious errors of judgment in doing obviously risky things such as driving an attractive young female patient around in his car at night. In my opinion this demonstrates a failure to exercise professional skills (as well as common sense) at an acceptable standard. If on the other hand Dr Saville was aware of what his patient was thinking and feeling about him and acted as he did despite this then in my opinion this was unethical behaviour. Dr Saville now blames the patient and her 'multiple psychiatric disorders' for the result and accepts no responsibility for his own part - thus demonstrating a failure to learn from his experience or a lack of remorse in addition to a lack of empathy. Thus, assuming Dr Saville's version of events, in my opinion his conduct has fallen below an acceptable standard of care in the level of professional skill exercised or in unethical behaviour. I disapprove moderately of this departure and I believe this departure would invite the disapproval of the general body of my colleagues."

(This opinion was expressed without the benefit of the practitioner's oral evidence to the Committee.) 27 Dr Westmore was also critical, though more mildly, but in similar respects. In its discussion (Reasons, p 12) the Committee quoted the following extracts from his reports: "… however his statement would suggest that he has some insight and understanding into the inappropriate nature of his interaction with Patient A, he is very distressed about the possible impact the complaint will have on his career and unless there is information to the contrary he should have an ability to learn from his previous mistakes." … "… he has an ability to learn from previous mistakes and that should theoretically reduce his risks of re-offending. The principal concern I have about him is that he was an advanced trainee in psychiatry and he should have had sufficient knowledge and skills at that stage of his training to prevent him behaving as he did towards Patient A." 28 Following these extracts, the Committee continued: "The Committee considers Dr Saville's behaviour as outlined under particular 1 is a serious transgression of doctor/patient boundaries. The Committee holds some reservations as to Dr Saville's expression of insight, in that his expression of insight appears to be more about what had happened to him, rather than the effect his conduct may have had on Patient A. … The Committee is in no doubt that Dr Saville's behaviour, taken as a whole in relation to Patient A, has been a significant and serious boundary transgression. It demonstrated a lack of judgment and care on his part and was improper, especially so for a practitioner with several years experience and training in psychiatry." 29 Having made findings of unsatisfactory professional conduct, the Committee stated (Reasons, p 15): "The Committee is of the view that Dr Saville's conduct as outlined under Particular 1 is a serious and unacceptable departure from the standards expected from registered medical practitioners. Medical practitioners are expected to demonstrate the highest standards of behaviour in their relationships with patients."

Beyond that, the Committee provided no specific reasoning for the conditions which it imposed on his registration, which were as follows: "(a) he is not to engage in solo medical practice; (b) he is to only practise in a group general practice (a group having 3 or more medical practitioners); (c) he is to provide at least one other medical practitioner in any group practice in which he practises medicine, with a copy of the conditions on his registration; (d) he is to provide evidence in a form that is acceptable to the Board, and within a reasonable time limit set by the board, that he has provided at least one other medical practitioner in any group practice in which he practises medicine, with a copy of the conditions on his registration; (e) he is not to change the nature or place of his current medical practice without prior approval of the New South Wales Medical Board; (f) he is to advise the Board in the event that he decides to return to the practice of psychiatry or of psychotherapy; (g) he is to submit to supervision of his practice at a level to be determined by the Board should he return to the practice of psychiatry or of psychotherapy; (h) he is to submit to Board Review interviews at a frequency to be determined by the Board should he return to the practice of psychiatry or of psychotherapy; and (i) he is to authorise the Board to provide a copy of this Decision and Reasons to his practice supervisor or supervisors should he return to the practice of psychiatry or psychotherapy." 30 The appeal to the Medical Tribunal sought to remove the conditions at (a)-(e). Some variations were to be made to the paragraphs (f)-(i), relating to his possible return to the practice of psychiatry or psychotherapy, but nothing turns on them.

Determination of application under s 69 31 At the hearing before this Court, the practitioner placed significant emphasis on what happened at the hearing before the Tribunal on 5 December 2005. On that occasion, after Mr Lynch, counsel for the practitioner, had indicated that there was a statement of agreed facts and agreement as to the proposed orders to be made, the Deputy Chairperson noted that they had in fact been served on Tribunal members and had been considered. His Honour continued (Tcpt p 1): "We've also considered the material that was before the Professional Standards Committee and its findings and orders. There are two matters which concern the Tribunal … . The Tribunal considers it appropriate that there be added to the proposed orders (b), (c) and (d) as set out in the orders of the Professional Standards Committee and a further order that any application for review of these orders be reviewed by the Medical [Board]."

Counsel for the practitioner responded: "Your Honour, I'd seek a short adjournment to seek some instructions from Dr Saville who's present in the Tribunal of course." 32 Before the adjournment, Mr Griffin, who appeared for the Commission, tendered a bundle of documents described as "a joint bundle between the parties". They constituted the documents before the Committee. The documents were admitted without objection. Although the Tribunal appeared to have anticipated the tender by reading those documents before the hearing, nothing turns on that for present purposes. 33 The application by Mr Lynch for an adjournment was acceded to, the Tribunal suggesting that the matter stand down to 11.30, or 2pm. Mr Lynch indicated that 11.30 would give him adequate time and indeed that he would need "10 minutes at the most". Another matter was interposed, according to the transcript, and the length of the adjournment does not appear. After the adjournment Mr Lynch addressed the Tribunal in the following terms (Tcpt p 4): "Your Honour I propose to put some short submissions to your Honour and the Tribunal Members as to why the additional proposed orders outside those proposed by the parties ought not be made, in the public interest and are unnecessary for the protection of the community and the maintenance of the standards of the profession." 34 The submissions, which ran for less than two pages of transcript, addressed the following topics:

(1) the fact that the independent Director of Proceedings at the Commission consented to the orders, and would not have done so lightly;

(3) the practitioner had, before this incident, enjoyed 25 years of solo general practice without cause for complaint;

(4) when the complaint was raised, he admitted those aspects of the conduct which were considered unsatisfactory, and

(5) he had demonstrated "complete insight into the inappropriateness of his unsatisfactory conduct".

These factors, it was submitted, would lead to the conclusion that there was "no basis to require him to be limited in his general practice by in effect not being able to practise as a solo practitioner". 35 Mr Griffin indicated that the Commission did not wish to be heard further in relation to the orders or the agreed statement of facts. 36 Thereafter there was further discussion between Mr Lynch and the Deputy Chairperson in the course of which the Deputy Chairperson expressed, in more than one way, the fact that the Tribunal might "well be reluctant to foist upon you, foist upon the parties conditions to which they haven't consented": Tcpt, p 6(35). To that Mr Lynch replied: "Well your Honour I've put the matters by way of opposition to the orders that your Honour foreshadow[s], subject no doubt to considering any submissions of the parties. I don't seek to put further matters before the Tribunal and if the Tribunal affirms its earlier foreshadowed orders then it's a matter for the Tribunal." 37 The Deputy Chairperson was not willing to accept that statement and commented: "If the parties aren't prepared to consent to what the Tribunal has suggested well, I think it's a matter that should be litigated."

Mr Lynch said "there's nothing to litigate", but the Chairperson insisted that there was an appeal on foot. 38 The discussion between counsel for the practitioner and the Tribunal ended on the following noted (Tcpt p 7): "LYNCH: Your Honour the parties don't resile from the consent that was reached. I have sought to convince the Tribunal that the consent of the parties is both reasonable and appropriate. If the Tribunal maintains the foreshadowed view that additional orders are necessary then the Tribunal will no doubt articulate its reasons for those and we are left with the Tribunal's decision. DEPUTY CHAIRPERSON: The Tribunal is not going to do that Mr Lynch without giving the parties full opportunity to be heard and without giving the parties the opportunity to present such evidence as they deem fit to place before the Tribunal all of the considerations rather than the very concise and precise submissions that you've placed before us this morning. Now if those matters aren't consented to, I don't believe that the Tribunal should appropriately foist upon you conditions to which you're not consenting. LYNCH: For my part your Honour all the evidence that's relevant to the issues is before the Tribunal. I've put the submissions which I seek to put, I don't seek any further opportunity to put further matters or evidence before the Tribunal." 39 Mr Griffin then took the opportunity to inquire whether matters of concern to the Tribunal might be indicated for the consideration of the parties. The Chairperson gave the following response (Tcpt, p 8): "DEPUTY CHAIRPERSON: I'll do no more than say this, that the Tribunal members as you are well aware, there are medical practitioners on the Tribunal, have carefully considered all that was before the Professional Standards Committee. All of the material that's been placed before the Tribunal and it's considered that the additional matters are appropriate. Now I don't propose to give some explanation to the parties as to why and what the discussions between the Tribunal members consisted of. You [may] be assured that this wasn't a matter that we raised lightly." 40 In making orders, the Tribunal added to the reformulation of the consent orders, the following paragraphs as conditions of practice: "(f) The Appellant is to only practise in a group general practice (a group having three or more medical practitioners). (g) The Appellant is to provide at least one other medical practitioner in any group practice in which he practises medicine, with a copy of the conditions on his registration. (h) The Appellant is to provide evidence in a form that is acceptable to the Board, and within a reasonable time limit set by the Board, that he has provided at least one other medical practitioner in any group practice in which he practises medicine, with a copy of the conditions on this registration." 41 The reasons given by the Tribunal for its determination included the following propositions: "Whilst it agrees that some of the orders made are no longer appropriate and necessary, it does not consider that the proposed Consent Orders afford adequate protection to the public. … The practitioner, having demonstrated his fallibility with regard to boundary violations, it is important that the prospect of further such violations be minimised and guarded against. Boundary violations are not restricted to those engaged in psychiatric practice. The[y] can just as easily occur in doctors conducting a general practice. It is considered that the Practitioner be subject to the discipline and supervision which is inherent in practising in conjunction with others who will be in a position to observe possible boundary violations. Further, the Practitioner would have the advantage of guidance and counsel of those with whom he associates in practice."

Want of procedural fairness 42 The first ground of challenge to the orders made by the Tribunal was that they were reached by way of prejudgment, prior to the hearing. A second ground for want of procedural fairness is identified as the failure of the Tribunal to give reasons for its determination. 43 The complaint of prejudgment is misconceived. The Tribunal anticipated, with, as it turned out, complete accuracy, that there was no intention to conduct a hearing which would involve oral evidence or careful consideration of the bundle of materials which covered some 250 pages of Exhibit A before the Tribunal. It was fully aware that both parties intended that it should make orders by consent. 44 That is not to say that the parties did not appreciate the nature of the discretionary power conferred on the Tribunal to act inconsistently with the orders proposed. The final paragraph of the statement of agreed facts read: "Subject to the approval of the Medical Tribunal the parties agree that the appropriate orders would be those in the attached consent orders." 45 The disciplinary jurisdiction of the Medical Tribunal has been described in numerous cases, to which reference need not be made here. The primary purpose of disciplinary orders is protective of the public welfare, particularly for those in need of medical services. That purpose may in part be served by making orders which provide direct protection to the public (such as deregistration or suspension), but also by orders which demonstrate the need for medical practitioners, both individually and collectively, to ensure that professional standards are maintained. That may be done by way of an order which, on its face, may seem punitive rather than protective, such as a fine. Despite its appearance, its purpose, if justified, is that of protection of public welfare and maintenance of high professional standards. 46 One aspect of the powers of the Tribunal which indicates its statutory purpose, is the conferral of a power to bring its own complaint, if such a course appears appropriate having regard to matters which have arisen in the course of an inquiry: Medical Practice Act, Schedule 2, cl 5. 47 As the first submission for the practitioner before the Tribunal noted, the Commission is a statutory body which is responsible for taking proceedings in the public interest. Under Part 6A of the Health Care Complaints Act 1993 (NSW), added in 2004, there is now a Director of Proceedings on the staff of the Commission who is given express independence of direction and control by the Commission (s 90D) and who is required to determine whether and how complaints should be prosecuted: s 90B. The principal criterion to be applied by the Director is "the protection of the health and safety of the public": s 90C(1)(a). All these matters may be accepted, but they tend to enhance, rather than diminish, the importance of the independent functions undertaken by the Medical Tribunal and other bodies under the Medical Practice Act. The fact that the Director must have given his consent to the proposed orders was made clear to the Tribunal and must have been understood by it. That fact did not diminish the importance of the Tribunal carrying out its statutory function in determining the orders it thought appropriate. 48 Because the practitioner must have understood the role of the Tribunal (and Mr Lynch did not seek to suggest otherwise) he must, on advice, have understood that the power of the Tribunal was not limited to the acceptance of the orders proposed by the parties. On the other hand, the Tribunal would undoubtedly have failed to accord procedural fairness if, given the brief hearing anticipated, the Chairperson had not, at an early stage, indicated the preliminary views of the Tribunal. The fact that the Tribunal adhered to those views, in the absence of a full hearing, does not mean that it prejudged the issues. Indeed, had the Chairperson expressed the Tribunal's tentative views in less robust terms, the practitioner may have been given, unfairly, the impression that the Tribunal was wavering and that little was required on his part to persuade it to accept the proposed orders. 49 Procedural fairness, in the circumstances of the present case, required that the practitioner be given an adequate opportunity to present such material and submissions as he might be advised in order to support his appeal. He was given the opportunity, at his counsel's request, to consider his position. He was present in the Tribunal room when the Chairperson made his comments. The Chairperson's repeated reference to the matter being "litigated" was clearly a reference to the possibility that the practitioner might wish to give evidence, or to call evidence, in addition to the material before the Tribunal on the papers. There is no suggestion that, had he sought to take that course, a reasonable opportunity would not have been accorded, including adjournment of the hearing to allow him to take that course. Nothing the Tribunal said induced the practitioner to take an ill-advised position; indeed, his complaint is inconsistent with any such suggestion. 50 In these circumstances, it cannot be contended that there has been a denial of an opportunity to present whatever material and submissions he wished to in support of his appeal. Subject to consideration of the brief submissions of counsel, the initial views of the Commission were likely to be its final views, because nothing had been presented to it which might be expected to persuade it otherwise. 51 The second aspect of the failure to accord procedural fairness is said to flow from the inadequacy of the reasons given by the Tribunal for its decision. However, the brevity of the reasons was in large part a function of the brevity of the case put before the Tribunal. There was only one issue before it: was a condition constraining the practitioner from embarking upon psychiatry or psychotherapy a sufficient protection from future "boundary violations". The extension proposed by the Tribunal was, as it succinctly stated, thought necessary because "boundary violations" could occur in general practice and were not restricted to the practice of psychiatry or psychotherapy. Why that was not a satisfactory explanation and justification for the position the Tribunal took is by no means clear. 52 It has been said on more than one occasions, and in more than one context, that matters of evaluation and judgment are not readily explained in rational terms. Various imprecise and amorphous, but relevant, considerations may need to be weighed in the balance in determining where, across a range of possibilities, the appropriate result should be found. In the joint judgment in Ex parte Palme 216 CLR 212 at [40] Gleeson CJ, Gummow and Heydon JJ stated: "There are some issues for decision which are of such a nature that, as Kitto J put it [in Re Wolanski's Registered Design (1953) 88 CLR 278 at 281), with reference to statements by Lord Herschell and Eve J: '[I]t is not to be expected that [the judge] will be able, at any rate satisfactorily to the litigants or to one of the litigants, to indicate in detail the grounds which have led him to the conclusion.'"

In a footnote to that passage, their Honours also referred to the passage in Dinsdale v The Queen (2000) 202 CLR 321 at [9] where Gleeson CJ and Hayne J noted that "the ground of appeal which was agitated before the Court of Criminal Appeal (manifest inadequacy) was a ground which did not require, or even admit of, expansive elaboration of a process of reasoning which leads to its acceptance or rejection". The purpose underlying the obligation to give reasons is in part the discipline of rationality, being the antithesis of arbitrariness, which follows from the exercise of justifying a conclusion, together with the transparency of decision-making, which permits the parties and the public to understand the result reached. However, this purpose must be given practical effect in particular circumstances. 53 One of the circumstances of the present case was the failure of the practitioner to avail himself of the opportunity to do more than present brief submissions to the Tribunal. Those submissions have been summarised above. Each is relevant and apposite, but none directly addressed the topic of departure relied upon by the proposed consent orders, namely that restrictions on general practice were not necessary to guard against future boundary violations. It follows that the complaint based on lack of procedural fairness is without substance.

Relevant and irrelevant considerations 54 In a sense, the complaint that the Tribunal failed to take into account certain identified relevant considerations is little more than a complaint that it did not deal with certain matters in its reasons. Thus the first matter relied upon is described as "the absence of any need for an order precluding the plaintiff from solo general practice". (Other considerations were identified in similar terms.) This complaint is, however, misconceived. Given the conditions imposed on the registration of the practitioner, being the very subject matter of the challenge in this Court, it is clear that both the Committee and the Tribunal thought that there was such a need. To say that the Tribunal failed to take into account the absence of such a need is really to assert that the Tribunal was in error in thinking that there was such a need. However, put in those terms, the complaint is revealed as an attempt to challenge the merits of the decision made by the Tribunal. That is something which cannot be done in circumstances where it is a precondition to relief that error of law be demonstrated. An appropriate ground in relation to the review of a discretionary power may be identified as manifest unreasonableness, commonly referred to as Wednesbury unreasonableness, as discussed by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [123]-[126]. No reliance was placed on that principle in this case, and it would, in any event, have been doomed to fail. 55 To invoke error of law based upon a failure to take account of relevant considerations, it is necessary to identify matters, the consideration of which is mandated by law: see generally Foster v Minister for Customs and Justice (2000) 200 CLR 442 at [22]-[23] (Gleeson CJ and McHugh J) and at [45] (Gaudron and Hayne JJ): see also at [102] (Kirby J), dissenting but not in relation to this principle. 56 A slightly different misconception is identified in the fifth consideration said by the practitioner to be relevant but ignored by the Tribunal, namely that the evidence tendered before the Tribunal did not include the oral evidence of the practitioner heard by the Committee. As a fact that assertion was undoubtedly true. The absence of that evidence may well have discouraged the Tribunal from interfering with the orders of the Committee. However, the reason that the Tribunal did not consider that evidence was that the practitioner failed to proffer it (in whatever form) to the Tribunal.

Irrelevant considerations 57 Finally, the practitioner seeks to complain that the Tribunal took into account a number of irrelevant considerations. It is not necessary to identify each of the considerations in this category either. Legal error is demonstrated only where a matter is taken into account which the law prohibits: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 (Mason J). Each of the matters identified was similar to that which said "there was a need for supervision of the plaintiff in his general medical practice". Whether, as a matter of evaluative judgment, there was such a need is a question of inference and fact, and not a question of law. If there was such a need, it was patently relevant. So much is demonstrated by the practitioner's own complaint that the absence of such a need was a relevant consideration in the sense of a mandatory consideration, albeit one said not to have been taken into account. 58 Most matters taken into account in judicial or quasi-judicial proceedings, and even in administrative decision-making, are permissible considerations. Some may be elevated to the status of mandatory considerations, so that to ignore them would demonstrate legal error, but one would rarely expect a specialist tribunal, especially when assisted by experienced counsel, to fail to take such matters into account. It will also be rare that such a tribunal, assisted by experienced counsel, will be misled into giving weight to matters which lie so far beyond the purpose of its functions as to be legally irrelevant. The practitioner has demonstrated no such error in the present case.

Conclusions 59 None of the grounds of complaint alleged in the summons (and in similar terms in the notice of appeal) have been made out. The appeal should be dismissed as incompetent; the summons should also be dismissed. 60 Although the Commission joined with the practitioner in seeking certain orders before the Tribunal, unsuccessfully, it appeared in opposition to the practitioner on this appeal. However, this appeal was not concerned with the merits of the orders of the Tribunal, but merely whether the Tribunal committed legal error in its proceedings or determination. There was no inconsistency in the Commission seeking to achieve one set of orders, but appearing to defend the orders in fact made. It was the proper contradictor. Accordingly, there is no reason why it should not have its costs of the proceedings in this Court. 61 I propose the following orders:

(1) Dismiss the appeal brought pursuant to s 90 of the Medical Practice Act as incompetent.

(2) Dismiss the summons for relief under s 69 of the Supreme Court Act .

(3) Order the Appellant/Claimant to pay the Respondents'/Opponents' costs of the proceedings in this Court, in the case of the Medical Tribunal, on a submitting basis only. **********

04/12/2006 - Typographical error - Paragraph(s) Headnote

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