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.'"