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[2026] NSWCA 162
respondent. To the extent required, leave to appeal was granted; the appeal was dismissed; the appellant was ordered to pay the respondent’s costs of the appeal ([107]).
The Court of Appeal upheld NCAT’s findings against Dr Schwartz. His registration condition prohibited conscious sedation by any route unless an approved anaesthetist or sedationist was responsible for the sedation and monitoring. The Court held that the condition should be understood using the guidance and context applicable when it was imposed, not a later guidance document that distinguished minimal from moderate sedation. The expert evidence gave the Tribunal a basis to find that intramuscular fentanyl caused conscious sedation. The Court also rejected the other pressed grounds, including complaints that findings based on missing medical records involved an onus reversal or inadequate reasons. It emphasised that saying a tribunal “erred in law” does not itself identify a question of law.
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7 cited instruments linked from this judgment.
Dr Gerald Schwartz was a registered medical practitioner whose registration was subject to conditions imposed by the Medical Council of New South Wales under s 150 of the Health Practitioner Regulation National Law (NSW). The appeal principally concerned a condition in force during the relevant period: “Not to administer any conscious sedation (by any route) or monitor any sedated patients” ([22]). The condition permitted procedures requiring conscious sedation where an approved specialist anaesthetist or sedationist undertook administration and monitoring, was responsible for pre-sedation assessment, and remained present through the procedure and recovery ([22]).
The condition’s history mattered. In 2015, the condition referred to conscious “intravenous” sedation ([16]). At a later hearing, the Medical Council considered concerns that Dr Schwartz had changed to intramuscular fentanyl. The material before the Court included a report expressing concern that changing the route did not make the practice safer ([18]–[20]). In January 2018 the condition was reworded to cover conscious sedation “by any route”; the Council’s stated view was that Dr Schwartz could only perform procedures requiring conscious sedation in the presence of an approved anaesthetist or sedationist ([21]–[22]).
Between August 2019 and February 2021, Dr Schwartz administered intramuscular fentanyl to eight patients undergoing procedures, principally blepharoplasty and, in two cases, liposuction. Most received 100 micrograms; two procedures involved 75 micrograms ([26]). The HCCC alleged, among other matters, that this was conscious sedation without the required approved practitioner and that Dr Schwartz did not maintain the required logbook ([27]).
The HCCC called Associate Professor Sutherland, an anaesthetist, and Dr Young, a general practitioner. Dr Schwartz did not call expert evidence ([28]–[30]). Professor Sutherland’s evidence was that fentanyl had analgesic and sedating effects, and that the intramuscular doses used would cause some sedation in most adult patients. She considered the use to fall within the 2014 ANZCA definition of conscious sedation ([31]–[37], [39]). Dr Schwartz relied on later guidance that used categories including “minimal” and “moderate” sedation ([40]–[43]).
NCAT found professional misconduct and unsatisfactory professional conduct. On appeal, Dr Schwartz advanced ten grounds, each framed as an error of law. Leeming JA dealt with them on their merits, assuming in Dr Schwartz’s favour that leave should be granted to the extent required ([104]). Adamson JA and Griffiths AJA agreed ([108]–[109]). The appeal was dismissed, with costs ordered against Dr Schwartz ([107]).
The Court’s central task was to understand the condition in its context. Leeming JA treated “conscious sedation” as technical language, not simply ordinary English. The Court explained that the meaning of non-legal technical words is generally a question of fact, while construction of a term whose meaning is established is a question of law. The judgment noted that the boundary between meaning and construction can be difficult ([66]).
The Court accepted that the Tribunal could consider material leading to the condition’s imposition. Authorities permit reference to reasons for judgment when construing an order, particularly if the language is ambiguous or capable of more than one meaning. Leeming JA saw no reason to treat a condition imposed after a hearing, with formal reasons, differently ([67]). The earlier proceedings were relevant because they concerned the same practitioner’s use of intramuscular fentanyl and the scope of the earlier condition. The rewording to “by any route” responded to the route-of-administration issue identified in that process ([18]–[24]).
The Court rejected the argument that “conscious sedation” was only a state of being and therefore not something that could be administered. It acknowledged that, in ordinary English, sedation describes a state. But the condition had for years been expressed as a prohibition on administering sedation. Leeming JA considered that wording intelligible as a metonymic way of describing the administration of a drug so as to cause sedation, comparing it to “administering pain relief” ([68]–[69]).
The Court also rejected reliance on the later distinction between minimal and moderate sedation. The condition was framed using “conscious sedation”, and the relevant 2014 ANZCA guidance was in place when the condition was imposed. The minimal/moderate distinction relied on by Dr Schwartz came later. The Court held that the condition covered all categories of sedation described by the then-applicable guidance, however achieved, unless an approved anaesthetist or sedationist was present ([70], [73]). The Court did not decide how a differently worded condition that expressly permitted minimal sedation would operate; it observed that such a condition might make the distinction material ([73]).
On the evidence, the Tribunal was entitled to accept Professor Sutherland’s opinion. She considered the doses capable of producing sedation and said that their effects aligned with the definition of conscious sedation. The Court noted that the relevant evidence had not been successfully challenged in cross-examination before the reconstituted Tribunal ([36]–[37], [71]–[72]). It therefore found no basis to interfere with the Tribunal’s conclusion ([72]–[74]).
The Court addressed the other grounds, including challenges to findings based on medical-record gaps. It took the provisional diagnosis finding as an example. The Tribunal had referred to the patient records, Dr Young’s evidence about the documentation a general practitioner would be expected to make, Dr Schwartz’s evidence, and its prior credibility findings ([93]–[99]). The Court concluded that the finding was supported by the evidence as a whole. It was open to the Tribunal to reject Dr Schwartz’s uncorroborated recollection and to treat the absence of an expected record as supporting the conclusion that the diagnosis had not been made ([100]–[101]).
A separate procedural point was important. The appeal was restricted, as of right, to questions of law. The Court reiterated that writing “The Tribunal erred in law” does not make a factual complaint a legal one. The grounds needed to identify the question of law being raised ([3]–[9]). The Court nevertheless examined the pressed grounds, proceeding on the assumption most favourable to Dr Schwartz that leave should be granted where needed ([104]).
The judgment applies existing principles rather than announcing a wholesale change in the law. Before the decision, the authorities cited by the Court already required an appellant in a restricted statutory appeal to identify the question of law. The judgment relies on earlier decisions including Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd at [13], Morsingh v Health Care Complaints Commission at [2], Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue at [32], and Medical Council of New South Wales v Mooney at [97] ([3]–[8]). The Court’s contribution is a renewed, pointed application of that requirement to the notice before it.
The judgment also applies the existing distinction between a question of law and a mixed question of fact and law. It cites Orr v Cobar Management Pty Ltd and Vitality Works Australia Pty Ltd v Yelda (No 2) for the proposition that a mixed question falls outside an appeal as of right limited to a question of law ([65]). It does not purport to settle every boundary case. It expressly acknowledges that delineating the boundary can be problematic ([65]).
For construing the registration condition, the Court applies the established approach that relevant reasons or background material may help explain an order where its language is disputed. It cites Athens v Randwick City Council and Ross v Lane Cove Council ([67]). It also discusses the distinction between technical meaning and legal construction by reference to Collector of Customs v Agfa-Gevaert Ltd and Collector of Customs v Pozzolanic Enterprises Pty Ltd ([66]). The result is a context-specific construction of this condition, not a general rule that all registration conditions take their meaning from prior reports.
After the decision, its stated application is that the condition before the Court covered all categories of sedation under the guidance in force when it was imposed, and that later terminology did not narrow it. Its practical significance for legal analysis is therefore closely tied to the wording, history, and applicable professional guidance for this particular condition. The judgment does not say that later professional guidance can never be relevant; it holds that the later categories relied on here did not displace the earlier terminology used in this condition ([70], [73]).
On appeals, the judgment reinforces rather than alters the rule that the statutory character of a ground depends on its substance, not its label. It also draws attention to the purpose of the restriction in the medical-practitioner context: the Tribunal’s statutory composition includes judicial and medical members, and the restriction reflects a legislative choice about the finality of non-legal issues ([9]).
At [3], the Court said that beginning a ground with “The Tribunal erred in law” does not cure a ground that actually complains about fact-finding. In plain English, the appeal document must identify the legal question itself. A label is not enough.
At [67], the Court held that the Tribunal could consider the report leading to the imposition of the disputed condition. In plain English, a condition may sometimes need to be read alongside the process that produced it, particularly where its words are contested. The Court did not say that background material always overrides the wording of a condition.
At [68]–[69], the Court considered the argument that sedation is a state rather than an act capable of administration. It accepted the ordinary-language point but concluded that the condition could sensibly use “administer” to refer to giving a drug that causes sedation. In plain English, the condition was not confined to a practitioner deliberately administering a thing called “sedation”; it addressed administering drugs in a way that produced the prohibited effect, as the Court construed the condition.
At [70], the Court said the condition covered “all categories” of sedation under the guidance then in place, irrespective of how sedation was achieved. In plain English, the newer categories did not create a permitted lower level under this older condition.
At [101], the Court held that the Tribunal’s conclusion about the missing provisional diagnosis was open on the evidence as a whole. In plain English, the Tribunal could weigh the absence of a record, expert evidence about what should ordinarily be recorded, and its assessment of the practitioner’s testimony together. The judgment does not establish that a missing entry always proves that an act did not happen.
The appeal-ground reasoning is relevant where a statutory appeal is limited to questions of law and a notice uses general wording such as “erred in law” without stating the legal question. The judgment is particularly useful for distinguishing a legal challenge from a complaint that the tribunal drew the wrong factual inference. The Court stressed that the restriction serves a substantive function, not merely a formal one ([3]–[9]).
The condition-construction reasoning may be relevant where a professional registration condition uses technical language, the practitioner disputes its meaning, and there is a record of the proceedings or material that led to its imposition. The case illustrates the importance of the condition’s precise words, the professional guidance applicable at the time, and the history of any change in wording ([18]–[24], [66]–[70]).
The decision is also relevant where a party seeks to apply later professional guidance to earlier conduct or to a condition drafted using earlier terminology. Here, the Court treated the timing of the 2023 guidance as material and did not allow its newer categorisation to alter the earlier condition ([39]–[43], [70], [73]).
Finally, the record-keeping discussion may be relevant in disciplinary proceedings where a tribunal must decide whether an undocumented act occurred. The Court’s reasoning depended on a combination of expected documentation, expert evidence, the particular records, and credibility findings, not on the documentary gap alone ([93]–[101]).
The judgment supplied here contains no decisions made after Schwartz v Health Care Complaints Commission and therefore cannot establish how later courts have treated this decision. It records agreement by Adamson JA and Griffiths AJA with Leeming JA, making the reasons the unanimous decision of the Court of Appeal ([108]–[109]).
The judgment itself explains the earlier authorities it applied. For restricted statutory appeals, it follows and reiterates the line of authority represented by Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd, Morsingh, Thomas and Naaz, and Mooney ([3]–[8]). For using relevant background material to construe an order, it applies Athens and Ross ([67]). These are relationships identified in the judgment, not evidence of later treatment of the 2026 decision.
Accordingly, any account of subsequent judicial treatment would require sources beyond the judgment supplied here. The judgment alone supports describing its reasoning and the authorities it relied on, but not asserting that a later court has followed, distinguished, or reconsidered it.
The Court did not settle the precise boundary between a question of law and a mixed question of fact and law. It described that boundary as problematic while identifying the exclusion of mixed questions from this appeal as settled in New South Wales ([65]). Future cases may require closer analysis of whether a particular complaint concerns the legal test applied, the construction of an instrument, or the tribunal’s factual application of that test.
The Court also left open whether ambiguity is invariably a threshold requirement before material leading to an order may be considered in construing it. It noted the issue but did not decide it because the case could be resolved on the basis that any threshold was met on Dr Schwartz’s argument ([67]).
The judgment’s treatment of later professional guidance is specific to a condition using the earlier term “conscious sedation”. It does not determine how later evidence about medical terminology might bear on a differently drafted condition, or how a condition that expressly distinguishes permitted and prohibited sedation levels should be interpreted. The Court’s observation about a hypothetical condition permitting minimal sedation was expressly conditional ([73]).
Nor does the decision create a universal evidential rule for missing clinical records. It upholds the Tribunal’s finding in the context of expert evidence, the particular documentation, and credibility findings that were not challenged ([98]–[101]). The judgment does not say that absence of documentation alone proves an act did not happen, nor that a practitioner’s recollection must always be rejected where records are incomplete.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Schwartz v Health Care Complaints Commission [2026] NSWCA 162
Hearing dates: 31 July 2026
Decision date: 18 August 2026
Before: Leeming JA at [1];
Adamson JA at [108];
Griffiths AJA at [109]
Decision: (1) To the extent required, grant leave to appeal.
(2) Appeal dismissed.
(3) The appellant to pay the respondent’s costs of the appeal.
Catchwords: PROFESSIONS AND TRADES – medical practitioner – breach of conditions of registration – findings of professional misconduct and unsatisfactory professional conduct – condition “not to administer any conscious sedation (by any route)” – whether intramuscular administration of fentanyl contravened condition – whether subsequent guidance relevant to construction of condition – whether necessary for HCCC to establish depression of consciousness
APPEALS – appeal on question of law – requirement to identify question of law – criticism of practice of drafting grounds of appeal with the words “The Tribunal erred in law in” – obligations of practitioners
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), sch 5 cl 29
Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)
Health Practitioner Regulation National Law (NSW), ss 150, 165B
Supreme Court Act 1970 (NSW), s 48
Uniform Civil Procedure Rules 2005 (NSW), rr 50.4, 51.18
Cases Cited: Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2016] FCA 1129
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Capitol Carpets Pty Ltd v Schwartz Family Co Pty Ltd [2016] NSWSC 1753
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73
Health Care Complaints Commission v Robinson [2022] NSWCA 164
Medical Council of New South Wales v Mooney [2024] NSWCA 180
Morsingh v Health Care Complaints Commission [2022] NSWCA 106
Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220
OV & OW v Members of the Board of the Wesley Mission Council (2010) 79 NSWLR 606; [2010] NSWCA 155
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223
Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40
Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403; [2021] NSWCA 147
Category: Principal judgment
Parties: Dr Gerald Schwartz (Appellant)
Health Care Complaints Commission (Respondent)
Representation: Counsel:
J Sexton SC / J Sleight (Appellant)
O Jones SC / A Petrie (Respondent)
Solicitors:
Neville Hourn + Borg Legal (Appellant)
E Kwiet (Health Care Complaints Commission) (Respondent)
File Number(s): 2026/00071118
Publication restriction: Orders preventing the identification of patients were made by NCAT. These reasons comply with those orders.
[This headnote is not to be read as part of the judgment]
Dr Gerald Schwartz practised as a registered medical practitioner subject to conditions imposed by the Medical Council of NSW under s 150 of the Health Practitioner Regulation National Law (NSW). One of those conditions stipulated that Dr Schwartz was “not to administer any conscious sedation (by any route) or monitor any sedated patients”. No definition of “conscious sedation” was included.
From August 2019 to February 2021, Dr Schwartz administered intramuscular fentanyl to eight patients for blepharoplasty and liposuction procedures. The Health Care Complains Commission alleged that Dr Schwartz had failed to comply with the condition by performing conscious sedation without the administration and monitoring being undertaken by an anaesthetist or sedationist. The HCCC relied on expert evidence from Associate Professor Sutherland, an anaesthetist, and Dr Young, a general practitioner. No expert evidence was called by Dr Schwartz.
The Tribunal held that “conscious sedation” bore the meaning contained in the 2014 ANZCA guidelines, rejecting Dr Schwartz’s reliance on the successor guidelines in 2023. The Tribunal further accepted Associate Professor Sutherland’s opinion that Dr Schwartz’s use of fentanyl fell within the definition of “conscious sedation” and found that Dr Schwartz had engaged in unsatisfactory professional conduct and professional misconduct.
Before the Court of Appeal, Dr Schwartz advanced 10 grounds, contending that the Tribunal “erred in law” by misconstruing “conscious sedation” and finding that Dr Schwartz had performed “conscious sedation”, by finding breaches of ANZCA guidelines regarding venous access, informed consent and pre-sedation consultation, and in respect of the Tribunal’s findings that unrecorded acts had not occurred. The HCCC contended that most grounds raised no question of law, and that leave was required for any ground that did not.
The Court (Leeming JA, Adamson JA and Griffiths AJA agreeing) held, dismissing the appeal:
Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317, Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50, applied.
Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223, Morsingh v Health Care Complaints Commission [2022] NSWCA 106, Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40, Medical Council of New South Wales v Mooney [2024] NSWCA 180, followed.
Although an appeal to the Supreme Court only lay as of right on a question of law, the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong (TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175 at 178; [1988] FCA 119; B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187; Colby Corporation Pty Ltd v Federal Commissioner of Taxation (2008) 165 FCR 133; [2008] FCAFC 10 at [13]; Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320; [2010] HCA 24 at [21]; Hoe v Manningham City Council [2011] VSC 37 at [3]–[4]; Smalley v Secretary, Department of Health and Ageing [2011] FCA 302 at [10]ff; Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]) (“Ferella”). As Leeming JA said in Ferella at [6]:
“Obviously, it is not possible, merely by the device of asking whether the Tribunal erred in law in doing something or failing to do something, to circumvent the statutory limitation on the scope of the appeal.”
As has been said on a large number of occasions, it is not sufficient merely to assert that the Tribunal erred in law in order to satisfy the limited conferral of jurisdiction. Authorities to that effect are collected in Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13], as well as in Ferella at [6] and [22] to which the Appeal Panel referred. More recently, it was said in Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57 at [21] by me, with the agreement of Bell P and White JA, that “[a]n appellant cannot convert a challenge which is wholly or partly factual to one which is on a ‘point of law’ merely by including those words in the formulation of a ground”.
In Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd, the appellant was represented by a solicitor from the firm then known as Neville + Hourn Legal, which retained Mr Sleight of counsel. The notice of appeal in the present case was signed by a solicitor at the firm now known as Neville Hourn + Borg Legal, who also retained Mr Sleight of counsel. What is more, “Dr Jerry Schwartz” was a director of Schwartz Family Co Pty Ltd and was cross-examined in that litigation: see Capitol Carpets Pty Ltd v Schwartz Family Co Pty Ltd [2016] NSWSC 1753 at [20]-[22]. That case concerned a complaint about carpet supplied to a hotel, while Dr Schwartz’s statement to the Tribunal in the present proceedings included “I have access to many hotel chains and had intended on establishing clinics in all available hotel chains that I am personally involved” [sic]. “Jerry Schwartz” is also the name used by Dr Schwartz on the records from his practice when self-treated for various medications and a cosmetic product which were the subject of one aspect of Complaint 4 (which contributed to a finding of the Tribunal at [379(3)] of unsatisfactory professional conduct to which no challenge is made).
It is regrettable that either the same barrister or the same law firm or both have failed to attend to the basic proposition for which earlier litigation involving the same counsel and law firm (and, so it would seem, for related parties), is regularly cited.
The criticism of the legal practitioners involved in drafting a notice of appeal raising a question of law has not come without advance warning. In Medical Council of New South Wales v Mooney [2024] NSWCA 180 at [97] this Court said:
These points have been made, repeatedly, by this Court in relation to various regimes where appeals are confined to questions of law: see Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22] (“necessary for the notice of appeal to identify precisely the particular question or questions of law”); Kudrynski v Orange City Council [2024] NSWCA 33 at [48] (“it is critical that an appellant clearly identify the question of law which is the subject of the appeal”); Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13] (“the respondent did not identify the questions of law that were the subject matter of the appeal, but rather asserted the magistrate erred in law in various ways. This was wrong”). Many other examples could readily be collected. A more general, but equally salient, point was made in Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 at [30]: “The first matter for legal practitioners advising potential appellants to this Court is to consider whether there is a right of appeal – including considering whether or not leave to appeal is required – and, if so, what sort of right that is”. As noted at the outset of these reasons, where sophisticated litigants, such as the Medical Council, ignore the strictures upon the nature of the appeal they seek to invoke, they and the lawyers retained by them should expect criticism. They also run this risk, in an appropriate case, of adverse orders.
Twelve years of warnings should be enough. Practitioners in this area should be aware of the basic preconditions to the jurisdiction their clients seek to invoke. (See now Uniform Civil Procedure Rules 2005 (NSW) r 50.4(2A), which requires a summons commencing an appeal to contain a statement setting out in precise terms the question(s) of law sought to be raised and UCPR r 51.18(1)(e1), which requires a notice of appeal to state the question(s) of law sought to be raised. Both these rules came into effect on 13 March 2026, i.e. after the filing of the appeal in these proceedings.)
The foregoing is not merely a complaint about form for the sake of form. The limitations upon appeals from the specialist tribunal established to regulate certain professionals are elaborate and serve an important purpose. In the case of medical practitioners, s 165B(2) of the Health Practitioner Regulation National Law (NSW) requires that the Tribunal be constituted with a senior judicial officer, two appropriately qualified medical practitioners and a lay member, and the restriction on appeals as of right to questions of law serves to emphasise the legislative decision that in the ordinary course the decisions of that body on issues other than questions of law will be dispositive.
The written submissions on behalf of Dr Schwartz in chief were signed by Mr Sleight alone. They made no attempt to identify any question of law.
The submissions in reply were signed by Mr Sexton SC as well as Mr Sleight. They did contend that “conscious sedation” was a “question of interpretation” and that whether the facts found by the Tribunal fell within it was a question of law, but did not otherwise develop any reason why leave should be granted insofar as the appeal went beyond questions of law.
In appeals from decisions for the purposes of the Health Practitioner Regulation National Law (NSW), the appeal may with leave extend to any other ground. Dr Schwartz sought a grant of leave to the extent necessary. In determining whether to grant or refuse leave, one important consideration is the strength of the case sought to be advanced. As it turns out, in light of the merits of the grounds of appeal which are sought to be raised, the most efficient course, which follows that adopted by the parties, is to attend directly to them. That may be done without recourse to the large majority of the evidence, just as the entirety of the parties’ submissions made no mention of most of the evidence (for example, the final thousand pages of three volumes of blue books occupying 1428 pages to which no specific reference was made in either side’s written or oral submissions).
Dr Schwartz is now aged 70. He has been registered as a medical practitioner in New South Wales for some 46 and a half years. For many years he conducted a multidisciplinary practice. In 2017, he sold the general practice component but retained a cosmetic surgery and travel vaccination centre. At relevant times, he had been performing various surgical procedures, without an anaesthetist, one day a week (with another day for consultations).
Section 150 of the Health Practitioner Regulation National Law (NSW) (which is a local provision added to the provisions applied by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW)) empowers the Medical Council to make orders suspending or imposing conditions upon the registration of a medical practitioner.
In the last decade, Dr Schwartz has participated in a series of hearings conducted for that purpose. In evidence were the transcripts of hearings conducted on 17 November 2015 (resulting in conditions imposed on 23 January 2016) and 5 December 2017 (resulting in further conditions imposed on 25 January 2018).
The practitioner may perform procedures which require conscious sedation when the administration of the sedation and monitoring of the patient is undertaken by a specialist anaesthetist approved by the Medical Council of NSW, who is responsible for the pre-sedation assessment of the patient, and present for the entirety of the procedure and the patient’s recovery from sedation.
Dr Schwartz remains unable to adequately assess anaesthetic risk or monitor and manage the potential complications of conscious sedation. They are concerned that his skills were inadequate without the added distraction of performing surgery. They are concerned that by changing to an oral/intramuscular route of delivery for his anaesthetic agents he is no safer than when he used an intravenous route.
Throughout these proceedings Dr Schwartz reiterated that he did not breach this condition because he had ceased to use intravenous sedation. His interpretation of this condition was that it related in its entirety to the use of intravenous sedation. This was also emphasised by the Simulation Centre assessors in the interim report.
The Medical Council expressed the view that Dr Schwartz had been in breach of the condition, because he had been practising conscious sedation. They referred to the submission made by Mr Sleight (who had appeared for Dr Schwartz at the s 150 hearing) that “as the word ‘intravenous’ was included in the first part of the statement it would normally be interpreted that anything following in the same condition would also refer to the use of intravenous sedation”.
Following a performance assessment in November 2017, the conditions on Dr Schwartz’s registration were altered, to the form they took at relevant periods for the purposes of the complaints giving rise to this litigation. The Medical Council regarded (what it considered to be) a breach of the condition as very serious, but was nonetheless satisfied that appropriate protection to the public could be achieved by a different condition:
However, we are satisfied that the imposition of a reworded condition whereby Dr Schwartz cannot administer any conscious sedation by any route or monitor any sedated patient, would provide adequate protection to the public. This would mean that Dr Schwartz can only undertake surgical procedures requiring conscious sedation in the presence of an anaesthetist or doctor sedationist approved by the Council.
1. Not to administer any conscious sedation (by any route) or monitor any sedated patients.
a. The practitioner may perform procedures which require conscious sedation when the administration of the sedation and monitoring of the patient is undertaken by a specialist anaesthetist or sedationist approved by the Medical Council of NSW. The approved anaesthetist or sedationist is to be dedicated to the patient’s welfare, responsible for the pre-sedation assessment of the patient, and must be present for the entirety of the procedure and the patient’s recovery from sedation.
b. Any nominated sedationist is to be a registered medical practitioner who is certified in advanced life support (ASL) and experienced in the management of sedated patients and the use of sedation techniques.
c. Dr Schwartz is to maintain a logbook (in a format approved by the Council) of all procedures performed under conscious sedation listing:
• the date and nature of each procedure,
• the patient’s name
• the name and signature of the approved medical practitioner present during the course of the procedure.
• confirmation from the approved medical practitioner as to whether or not a pulse oxymeter with alarms was used to monitor the patient’s recovery.
A copy of the logbook is to be forwarded to the Council within 7 days of the end of each calendar month.
…
Irrespective of whether or not the condition in its previous form was confined to intravenous delivery of sedation, it will be seen that the prohibition upon the administration of any conscious sedation extended to conscious sedation howsoever effected.
On any view, the 2017 hearing and the reasons leading to the imposition of the reworded condition proceeded on the bases that (a) Dr Schwartz had been performing procedures on patients who were subject to conscious sedation through the intramuscular administration of fentanyl, and (b) that was regarded as a risk to patient safety which was not to occur “by any route” save in the presence of an approved anaesthetist or sedationist.
However, what was contemplated following the imposition of the conditions in early 2018 did not occur.
Dr Schwartz performed procedures upon eight patients between August 2019 and February 2021, most commonly for blepharoplasty, but also in two cases involving various forms of liposuction. Orders protecting the privacy of those patients are in place, and they will be referred to (as they were before the Tribunal) by the letters A-H. It was uncontroversial that most of the patients had 100 micrograms of fentanyl administered but that, in the case of two of the procedures, the amount was 75 micrograms. In each case, the fentanyl was administered intramuscularly.
1. Between 8 August 2019 and 18 February 2021 the practitioner contravened condition 1 of his registration in that he performed conscious sedation on Patients A - H as further particularised in Annexure A to the Complaint.
2. Between 8 August 2019 and 18 February 2021 the practitioner contravened condition 1(a) of his registration in that he performed procedures which require conscious sedation on Patients A-H, and as further particularised in Annexure A, without the administration and monitoring of the sedation being undertaken by a specialist anaesthetist or seditionist [sic].
3. Between 8 August 2019 and 18 February 2021 the practitioner contravened condition 1(c) of his registration in that he failed to maintain a log book, compliant with the particulars required by his conditions, of the procedures using conscious sedation he performed on Patients A-H, as further particularised in Annexure A, and failed to forward same to the Council within 7 days of the end of each calendar month.
In the proceedings in the Tribunal, the HCCC called Associate Professor Joanna Sutherland to give expert evidence on conscious sedation. Dr Schwartz did not rely upon any expert evidence.
Professor Sutherland’s evidence was the subject of written and oral submissions in this Court. Limited submissions in writing were made in relation to the other expert called by the HCCC, Dr Simon Young.
Dr Sutherland had been given records of the various procedures undertaken by Dr Schwartz in relation to the eight patients, in each of whom he administered fentanyl intramuscularly. She gave an opinion that in each case, the use of fentanyl fell within the definition of conscious sedation.
In the case of the first patient, her report provided as follows:
3. Please provide your opinion as to whether Dr Schwartz administered conscious sedation to Patient A during the procedure on 23 July 2020.
Patient A received 100 micrograms of fentanyl IMI (intra-muscular injection), presumably to facilitate a potentially uncomfortable procedure, despite the administration of local anaesthetic. The timing of the dose relative to the commencement of the procedure is not clear to me, as it does not appear to be recorded in the clinical record. IM use of fentanyl is described in the product information (Pl) as a recognised use, when it is used as a premedication “as an adjunct to general anaesthesia”. The Pl also refers to IM fentanyl use as an adjunct to regional anaesthesia “when additional analgesia is required”. If the fentanyl for patient A was used prior to the procedure (rather than during the procedure), it is not clear to me how the need for additional analgesia was assessed or determined. The IM fentanyl used appears to be part of a “standing order”, and potentially used routinely for such cases. Thus, in the absence of a general anaesthetic for this patient, the IM use described for patient A would, in my opinion, be consistent with “off label” use of the drug.
Also in my view, this use of fentanyl for patient A falls within the definition of conscious sedation, as defined by ANZCA in the professional document PS09 (2014).
I make this assessment for the following reasons:
In section 2.1 (2014 version) there is this statement: “The aims of procedural sedation and/or analgesia are to enhance patient comfort whilst facilitating completion of the planned procedure. In order to achieve these aims, a range of sedation options may be required during any one procedure, with a continuum from no medication, through conscious sedation and deep sedation, to general anaesthesia. While no sedation, or conscious sedation with small doses of drugs such as benzodiazepines and opioids, are options for some patients and proceduralists, many patients and proceduralists want deeper levels of sedation or general anaesthesia to be an option during the procedure”. The use of fentanyl (an opioid analgesic) via any route, will produce analgesia. I assume the intention of the opioid fentanyl in this case was to “facilitate .... the planned procedure”. Thus the use of fentanyl prior to the procedure for patient A appears to align with the ANZCA definition of conscious sedation, using an opioid medication (fentanyl), and as described in the 2014 guideline.
At the hearing, an objection was made to the whole of that evidence. The objection was overruled.
Dr Sutherland gave this evidence on 17 February 2025:
[S]edation in general anaesthesia form a continuum and conscious sedation has been described by the Australian and New Zealand College of Anaesthetists and other bodies as … a drug induced depression of consciousness during which patients are able to respond purposefully to verbal commands or light tactile stimulation.
…
[M]y understanding is [that the practitioner’s patients] had procedures performed under local anaesthesia and that they were each given intramuscular fentanyl prior to the procedure. My understanding based on the Product Information is that the two therapeutic purposes of the drug are analgesia and sedation.
… I’ve never used fentanyl intramuscularly and it’s not – I believe, it’s not commonly used intramuscularly. It’s much more commonly given intravenously and I have had 40 years’ experience of giving it intravenously. It’s likely that for each of these patients the drug produced some sedating effect but not to the extent of unconsciousness. So, in my view that aligns with the definition of conscious sedation.
Following giving that evidence, it became necessary to reconstitute the Tribunal, but it was accepted in this Court that the transcript of that evidence was before the reconstituted Tribunal.
In any event, Dr Sutherland gave substantially the same evidence again, on 16 September 2025 before the reconstituted Tribunal. In answer to questions from an anaesthetist member of the Tribunal, Dr Sutherland agreed that the principal therapeutic actions of fentanyl are analgesia and sedation. She then agreed that the administration of 100 micrograms of intramuscular fentanyl would produce some degree of sedation in most adult patients. Thirdly, she expressed the opinion that minimal sedation was a form or subset of conscious sedation, answering “Yes I do agree it is a subset of conscious sedation in my opinion”.
Dr Sutherland was not cross-examined on any of those answers, or on any other aspect of her evidence, at the second hearing.
None of the patients gave testimonial evidence. Instead, their medical records were tendered.
1.1 Procedural sedation and/or analgesia imply that the patient is in a state of drug-induced tolerance of uncomfortable or painful diagnostic or interventional medical, dental or surgical procedures. Lack of memory of distressing events and/or analgesia may be desired outcomes, but lack of response to painful stimulation is not assured.
1.1.1 Conscious sedation is defined as a drug-induced depression of consciousness during which patients are able to respond purposefully to verbal commands or light tactile stimulation. Interventions to maintain a patent airway, spontaneous ventilation or cardiovascular function may, in exceptional situations, be required. Conscious sedation may be achieved by a wide variety of drugs including propofol, and may accompany local anaesthesia. All conscious sedation techniques should provide a margin of safety that is wide enough to render loss of consciousness unlikely.
1.1.2 Deeper sedation is characterised by depression of consciousness that can readily progress to the point where consciousness is lost and patients respond only to painful stimulation. It is associated with loss of the ability to maintain a patent airway, inadequate spontaneous ventilation and/or impaired cardiovascular function, and has similar risks to general anaesthesia, requiring an equivalent level of care.
1.1.3 Analgesia is reduction or elimination of pain perception, usually induced by drugs that act locally (by interfering with nerve conduction) or generally (by depressing pain perception in the central nervous system). This may be achieved by a wide range of drugs including methoxyflurane and nitrous oxide.
Dr Schwartz relied upon more recent guidance, both Australian and international. All post-dated not only the imposition of the condition which was alleged to have been breached, but also the procedures performed on all eight patients.
A leaflet published by the Royal College of Anaesthetists in June 2021 equated “conscious sedation” with “moderate sedation”, and introduced a category of “minimal sedation”.
A 2023 guideline from the ANZCA distinguished between “minimal”, “moderate” and “deep” sedation as follows:
Sedation levels
Minimal: A drug-induced state of diminished anxiety, during which patients are conscious and respond to purposefully to verbal commands or light tactile stimulation.
Moderate: A drug-induced state of depressed consciousness during which patients retain the ability to respond purposefully to verbal commands and tactile stimulation.
Deep: A drug-induced state of depressed consciousness during which patients are not easily roused and may respond only to noxious stimulation.
The Tribunal found that the administration of 100 micrograms of fentanyl intramuscularly (and in the case of two of the patients, 75 micrograms) was a contravention of a condition of Dr Schwartz’s registration.
The Tribunal’s reasoning, which was central to the main challenge in this Court, was at [65]-[71], as follows:
Counsel for the Practitioner argues that Professor Sutherland’s reasoning is defective because she did not explicitly say in her report that the level of fentanyl used for each patient would depress that patient’s level of consciousness. We reject the submission that Professor Sutherland’s reasoning was defective. She unequivocally opined that in relation to each patient the use of fentanyl fell within the definition of conscious sedation and accordingly by definition involved a drug-induced depression of consciousness during which the patients were able to respond purposefully to verbal commands or light tactile stimulation. That opinion was consistent throughout her written and oral evidence when viewed as a whole. Her evidence was not shaken during cross examination.
The Practitioner did not rely upon his own expert evidence. As mentioned, when discussing the Practitioner’s credit, he was asked if he had made his own inquiries about whether an intramuscular administration of 100mcg of fentanyl was in breach of the condition imposed upon him on 12 December 2017. He said he had and was advised it would not. He was unable to elaborate on the circumstances of that inquiry, including when and to whom he had made that inquiry and who had provided him with that information. As indicated, we are comfortably satisfied he just made this up.
Counsel for the Practitioner submitted we should give little weight to Professor Sutherland opinion because in relation to six out of eight subject patients who were given 100mcg of fentanyl there was no evidence of the body weight of the patient but the opinion they had been administered conscious sedation by the practitioner was identical save for the name of the patient. We reject this submission. The Practitioner’s evidence was that there were no exceptional features for any of the 8 patients, including any being significantly under or overweight to require him to reconsider the dose of fentanyl to be administered. It was appropriate for Professor Sutherland, in the absence of the Practitioner having recorded each patient’s weight, to assume that each person was an adult that did not require any adjustment of the fentanyl dosage.
The Practitioner’s submission that Dr Simon Young’s evidence was fentanyl was administered as an analgesic
Dr Young is a general practitioner called by the Commission to give evidence about whether the Practitioner’s conduct of his medical practice over a range of issues fell below the requested standard. The Practitioner’s submissions assert that “His view was that 100mcg of fentanyl administered IM (a route which Prof Sutherland had no experience) had been administered as an analgesic”. We reject that submission.
Firstly, what Dr Young said in his report at [90] in relation to Patient B was “I note the THEATRE sheet (195/1266) for the operation only records local anaesthetic and 100mcg fentanyl (a narcotic painkiller) - delivery not recorded - but was recorded as IMI (= intramuscular) on the Medication order sheet.” A narcotic is a drug which both relieves pain and induces drowsiness. Dr Young in his oral evidence readily accepted that fentanyl could be used both for analgesia and sedation.
Secondly, we reject the suggestion Professor Sutherland’s evidence should be discounted because it is asserted she had no experience in administering fentanyl as a sedative. Doctor Sutherland was not successfully challenged by the practitioner as a result of her having no personal experience administering fentanyl intramuscularly. She was able to appropriately draw on her skill, experience and expertise as an anaesthetist to give an expert opinion as to the effects of administering 100mcg fentanyl intramuscularly on the 8 occasions and 75mcg Fentanyl intramuscularly on 2 occasions.
Conclusion as to whether the administration of fentanyl was conscious sedation
We are comfortably satisfied, having regard to all the evidence, the effects of administering 100mcg fentanyl intramuscularly on the eight occasions and 75mcg fentanyl intramuscularly on 2 occasions was conscious sedation.
Ground 1 was that the Tribunal erred in law in finding that between 8 August 2019 and 18 February 2021, Dr Schwartz contravened condition 1 of his registration in that he had performed conscious sedation on the identified patients.
Ground 1 was the main point on the appeal. It occupies more than half of the written submissions, and the first ten pages of a transcript of Dr Schwartz’s submissions in chief which occupied 15 pages in all. What was said in writing and orally concerning the other 10 grounds of appeal was relatively concise.
The most efficient course is to deal first with ground 1, and then to turn to the remaining grounds of appeal.
The written submissions filed on behalf of Dr Schwartz relied on dictionary definitions of “conscious” and “sedation” and said that they should be given their natural and ordinary meaning. Alternatively, the words were said to bear a technical meaning. In either case, it was said that it required “a depression of the pat[i]ent’s conscious[ness]”. It was said that “there is a distinct and separate level of sedation that is not as deep as ‘conscious sedation’ called ‘minimal sedation’. In minimal sedation there is no depression of conscious[ness]”. In light of the serious consequences for the medical practitioner, it was said that any uncertainty in the scope of “conscious sedation” should be read down in favour of Dr Schwartz, and that there was no evidence that Dr Schwartz “administered sedation that depressed the conscious[ness] of any of the identified patients”.
Turning to the later standards, it was said that the 2023 guideline “was published only two to three years after the relevant period”, and did not contain any novel terms, and reflected the development of best practice and usage. The submission identified the definition of “minimal” sedation, which fell short of “moderate” sedation, and maintained that the latter equated to what was formerly known as “conscious sedation”. It was said:
Once it is accepted that there is a level of sedation in which the consciousness is not significantly depressed then conscious sedation (drug induced) cannot be a subset of minimal sedation contra Associate Professor Sutherland .... There is no depression of the conscious mind in minimal sedation. This is consistent with an accepted school of thought.
It was said that the Tribunal had misinterpreted the 2023 definitions. It was also said that Professor Sutherland proffered no reasoning as to how each of the patients’ consciousness was depressed.
The submissions referred to Dr Schwartz’s own evidence that the patients were more comfortable, and always answered his questions, and were not sleepy. It was said that there was no evidence to support the proposition that the consciousness of any of the patients was depressed.
The HCCC observed that no explanation was given for how ground 1 gave rise to a question of law. It said that there was no error of law in the Tribunal not having regard to more recent guidance, and that if it were appropriate for the Court to go further, that its reasoning was correct. It submitted that the condition was framed in terms of “conscious sedation” rather than the later language of “minimal” or “moderate” sedation and that was a reference to the guidance in place at the time the condition was imposed.
The HCCC referred to the earlier s 150 determination, and what was there said and indeed admitted by Dr Schwartz about “conscious sedation”.
The HCCC rejected the submission that ambiguity should be read down in favour of Dr Schwartz, noting that the main guiding principle was “the protection of the health and safety of the public”.
In reply, as noted above, Dr Schwartz said that the interpretation of the condition was a question of law. It was submitted that the condition was “directed to intention or purpose”, not effect. In order to find that the condition was breached, it was said that the Tribunal had to be satisfied that Dr Schwartz had the purpose or intention to achieve conscious sedation.
It was also said that the Tribunal had erred in relying on the earlier s 150 decision, which was admitted over objection. It was said that the knowledge of Dr Schwartz was irrelevant to the meaning of “conscious sedation”.
The oral submissions made on behalf of Dr Schwartz on this ground elaborated upon those advanced in writing. The starting point was the proposition that “conscious sedation” was “not a thing to be administered” but instead was “a state of being”. Counsel noted that “It may be a result, or it may be the effect, but it’s not something which is administered”. It was said that in order for “conscious sedation” to be achieved, it was necessary for there to be a depression of the consciousness, and in order for the HCCC to establish as much in disciplinary proceedings such as these, then it was necessary for there to have been a clinical observation of the patient to that effect.
That construction gives rise to a large difficulty for a practitioner such as Dr Schwartz who is subject to the condition. On his construction of the condition, he is at liberty to administer fentanyl, by any route, so long as it does not cause a depression of the consciousness.
It was not clear whether if Dr Schwartz did not intend by his injection of fentanyl to cause a depression of the consciousness, but in fact that was the result, Dr Schwartz submitted that that would amount to breach. If that is his submission, then the condition has little work to do and is ill-suited to support the “protection of the health and safety of the public” in s 3A of the National Law. Alternatively, if the condition is breached if the patient’s consciousness is depressed, irrespective of Dr Schwartz’s intentions, then unless there is an approved anaesthetist or sedationist present, the doctor will be in breach.
This was raised at the hearing:
LEEMING JA: If what you say, which is, really, a literalistic application of the definition into the condition, is what it means in law, then until the state of depression is observed, your client doesn’t know whether he’s in breach of a condition.
SEXTON: That’s so.
Further, the construction of the condition for which Dr Schwartz now contends is difficult to reconcile with what occurred at the s 150 hearing in 2017 which led to its imposition. Conspicuous by its absence from the record of that hearing (at least insofar as it has been made available to this Court) is any suggestion that Dr Schwartz’s patients were not undergoing conscious sedation. The report states that Dr Schwartz conceded that he had been practising conscious sedation, although noting that he only did so in the final stages of the hearing. The main question at that hearing was whether the intramuscular administration of fentanyl contravened a condition which included the word “intravenous”, and the outcome was a condition which unambiguously extended to the intramuscular administration of the drug which Dr Schwartz had been using.
It was squarely accepted in oral submissions in this Court that “sedation” and “depression of the consciousness” were synonymous, but Dr Schwartz maintained that until there was evidence establishing a depression of consciousness, the complaints could not be made out. The transcript records the following exchange:
LEEMING JA: Do you say there’s a difference between sedation and depression of consciousness?
SEXTON: No.
…
LEEMING JA: There’s not?
SEXTON: There’s not.
LEEMING JA: If the evidence is there’s some degree of sedation you I think are insisting that in order for it to be conscious sedation it’s not any drug induced depression of consciousness, there’s some threshold you’ve got to get above?
SEXTON: Not a threshold. There’s a point at which there’s conscious sedation within this continuum. If you are going to bring proceedings with the intention of taking away somebody’s livelihood then you’ve got to get the evidence which establishes that what’s in [64] is the position, and the evidence doesn’t rise that high. Our point is, going back to one of the questions that was asked earlier, it’s not that there wasn’t any evidence at all on this topic; there just wasn’t the evidence which established that the defined term was satisfied. In [65] it’s said, this is between R and T, “We reject the submission that Professor Sutherland’s reasoning was defective. She unequivocally opined that in relation to each patient the use of fentanyl fell within the definition”. That’s what came from what’s set out at J above. “And accordingly by definition involved a drug-induced depression of consciousness during which the patients were able to respond”, et cetera. It’s the second part, “And accordingly”. Professor Sutherland didn’t say that.
GRIFFITHS AJA: Why isn’t the requisite evidence supplied by Professor Sutherland in terms of her answers to the questions in the first hearing at p 19O and over the page at 20H to I where plainly when she says, “It’s likely that for each of these patients the drug produced some sedating effect but not to the extent of unconsciousness”, she then says, “So in my view that aligns with the definition of conscious sedation”, that definition she has accurately stated on the previous page? Why wouldn’t on a fair reading of that evidence the tribunal not be entitled to conclude as it did?
SEXTON: Because, “Some sedating effect”, doesn’t align with the definition of conscious sedation. They’re the submissions on ground 1.
I do not accept any aspect of ground 1 is made out.
First, it was said that ground 1 “involve[s]” a “mixed question of fact and law”. The precise delineation of what is or is not an appeal on a question of law is problematic at the boundaries: see Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue at [53]. But some things are settled. In this State, there is a clear distinction between an appeal on a question of law, and one which involves a mixed question of fact and law. The latter is outside the scope of those appeals which lie as of right “on” a question of law: Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 at [60]; Vitality Works Australia Pty Ltd v Yelda (No 2) (2021) 105 NSWLR 403; [2021] NSWCA 147 at [49].
The critical words “administer any conscious sedation (by any route)” are technical words. As a general proposition, it has been said that the non-legal technical meaning of words is a question of fact, while the “construction” of a term whose meaning is established is a question of law: Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 395-396; [1996] HCA 36, being the second and fourth propositions taken from Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. The distinction between meaning and construction in this context is productive of difficulty, as was noted in OV & OW v Members of the Board of the Wesley Mission Council (2010) 79 NSWLR 606; [2010] NSWCA 155 at [4].
Secondly, I do not accept that there was error in the Tribunal having regard to the report which led to the imposition of the very condition which gives rise to the complaint, whose meaning is in dispute. It is settled that regard may be had to the reasons for judgment when construing an order, at least if the language is ambiguous or susceptible of more than one meaning, bearing in mind that orders are generally framed with a view to their being self-contained and self-explanatory: Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 at [28]-[29] and [129]-[140]; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [30]-[31]. There is no reason to think that a condition of registration imposed after a hearing, where Dr Schwartz was represented by counsel and where formal reasons were given, is any different. There may be a question whether ambiguity is a threshold requirement: see the consideration by Moshinsky J in Bob Jane Corporation Pty Ltd v ACN 149 801 141 Pty Ltd [2016] FCA 1129 at [13]. But on Dr Schwartz’s case, any threshold requirement for ambiguity was satisfied.
Thirdly, the starting point for Dr Schwartz’s submission was that “conscious sedation” was a state of being, rather than a thing to be administered. True it is that as a matter of ordinary English, “conscious sedation” is a state, rather than particular conduct. But it is far from clear that that is the proper meaning of the condition. That is especially the case because if “conscious sedation” is a state, then the condition is not grammatical, nor was it grammatical in its previous (narrower) incarnation following the s 150 proceedings in 2015. For more than a decade, the condition has required Dr Schwartz “Not to administer any conscious (intravenous) sedation” or “Not to administer any conscious sedation (by any route)”. That is to say, the condition has been expressed as though conscious sedation is something which can be administered, either intravenously or by other routes, as opposed to a state which may be achieved.
2 The Tribunal erred in law in finding that, between 8 August 2019 and 18 February 2021, the appellant had contravened condition 1 of his registration in that he had performed procedures which require conscious sedation on the identified patients.
4 The Tribunal erred in law in finding that the appellant contravened condition 1(c) of his registration in that he failed to maintain a logbook compliant with the conditions of his registration when performing procedures that required conscious sedation.
The appellant submits that that if ground 1 is allowed it follows that grounds 2-4 must also be allowed on the basis that it follows that if there was no purpose or intention for administration of conscious sedation then a necessary condition of the complaint is not made out [sic].
No other response was made in writing.
In oral submissions, senior counsel advanced a new point. It was that this aspect of the complaint was premised on conscious sedation being required for the procedures, and there was no evidence of that. Indeed, some people might be content to undergo some of the procedures without sedation.
It is difficult to conclude that the Tribunal erred on a question of law in failing to address a submission made for the first time in oral submissions in the Court of Appeal: see Dial A Dump Industries Pty Ltd v Roads and Maritime Services (2017) 94 NSWLR 554; [2017] NSWCA 73 at [110], [167] and [169]. And it may be doubted whether leave should be granted concerning a new question of construction of the particulars of a complaint raised for the first time in oral submissions. However it is unnecessary to address this issue in any further detail. Nothing substantive turns on this ground. That is because Particular 2 of Complaint 1 travels no further than Particular 1. Another way of putting this is that whether Particular 1 is made out, or whether Particulars 1 and 2 are both made out, has no bearing on whether Complaint 1 is made out, and has no bearing on the appropriate orders to be made.
Dr Schwartz’s oral submissions contended that the same was true of Particular 3, a point raised by ground 4. But Particular 3 makes no reference to procedures which require conscious sedation. This new point is one which is confined to Particular 2. In light of the failure of ground 1, grounds 2 and 4 must be dismissed.
3 The Tribunal erred in law in finding that the meaning of conscious sedation in the appellant’s conditions of registration was as defined in clause 1.1.1 Australian and New Zealand College of Anaesthetists Guidelines on Sedation and/or Analgesia for Diagnostic and Interventional Medical, Dental or Surgical Procedures (ANZA PS09).
Nothing was said in writing concerning ground 3, except the statement reproduced above when it was wrapped up with grounds 2 and 4.
The totality of what was said orally was as follows, at the conclusion of senior counsel’s address:
I haven’t said anything concerning ground 3, that is, that there was an error in finding that the meaning of “conscious sedation” was as defined and, as your Honours will have appreciated, whether it’s called “conscious sedation” or whether it’s called “moderate sedation”, the definitions are much the same and the point is not that there was an error in the finding that the meaning was as defined in PS09 but whether the evidence supported the interpretation which the Tribunal had put on that.
5 The Tribunal erred in law in finding that the appellant did not secure reliable venous access for the identified patients in contravention of clause 8.1 of ANZA PS09.
[T]he reason that [ground 5] turns on whether or not there is conscious sedation is because the complaint concerning failure to secure reliable intravenous access involved two aspects. One was whether or not a butterfly valve was reliable. That was dealt with as a matter of fact. There’s no complaint about that.
That complaint is at red 4D under the heading Conscious Sedation. All of these particulars on p 4 and 5 are in the context of conscious sedation. The clause of PS09 which is identified in particular 1(a) on 4F is at blue 315R, which refers to procedural sedation and, as we’ve seen at p 310, procedural sedation under the heading Definitions involves either conscious sedation, deeper sedation or analgesia. So 8.1 only applies where there’s conscious sedation.
6 The Tribunal erred in law in finding that the appellant failed to discuss and obtained informed consent for off-label use of intramuscular Fentanyl for conscious sedation in contravention of clause 8.1 of ANZA PS09.
7 The Tribunal erred in law in finding that the appellant failed to conduct and/or document adequate pre-sedation consultation for the identified patients.
8 The Tribunal erred in law by failing to give adequate reasons for the following findings:
a. that the appellant failed of failure to obtain informed consent [sic].
b. that the appellant failed to make a provisional diagnosis.
c. that the appellant failed to make a provisional diagnosis [sic].
d. that the appellant failed to check forehead lesion.
e. that the appellant failed to carry out forehead lesion
f. that the appellant failed perform ENT, respiratory [or] cardiovascular examination
g. that the appellant failed to provide appropriate pre-test counselling or obtain informed consent prior to HIV and Hepatitis serology
h. that the appellant failed to perform [an] adequate pre-operative assessment.
i. that the appellant failed to provide appropriate pre-test counselling or obtain informed consent prior to HIV and Hepatitis serology [sic]
9 The Tribunal erred in law by reversing the onus of proof in making the findings in [8] above.
10 The Tribunal erred in law by making the findings in [8] above in the absence of evidence to support those findings.
Dr Schwartz’s written submissions made it clear that the overlap in grounds 8(b) and (c), and (g) and (i), reflected separate particulars relating to similar but different procedures. It was made clear in oral submissions that “grounds 8, 9 and 10 travel together”. It was submitted in writing that none of the patients had made a complaint, or were even asked about the treatment they had received. It was said that the only evidence of these grounds was what emerged from an audit of Dr Schwartz’s medical records. The point was that the findings by the Tribunal that Dr Schwartz had failed to do particular things (obtain informed consent, make a provisional diagnosis, etc) were based on absences in Dr Schwartz’s patient records, and it was said that the reasoning process by which those findings were made was deficient, either because of an absence of evidence, or because it involved a reversal of an onus, or a failure to give reasons.
Ground 7 relevantly stands and falls with those grounds. Ground 7 as drafted is broader, because if there were no conscious sedation, then there would be no occasion to conduct or document pre-sedation consultation. However, to the extent that ground 7 was broader, it fails for the reasons given in relation to ground 1.
I shall follow the approach adopted by both sides and focus on one finding by way of illustration. This concerned the finding that Dr Schwartz had failed to make a provisional diagnosis where Dr Schwartz had carried out an operation to remove a back lesion. In light of the complaint about adequacy of reasons, it is desirable to reproduce the entirety of the Tribunal’s reasons at [121]-[128]:
The Commission alleges that the Practitioner failed to make a provisional diagnosis for a skin lesion on Patient I’s back on 2 July 2014. The Practitioner denies that he failed to make a provisional diagnosis.
Patient I’s medical records record that Patient I saw the Practitioner on 2 July 2014 and:
lesion on left forehead is just beginning to scab…advised that he will need a wider excision of his BCC.
Now presents because of lesion on back of neck, present nearly a year, and increasing in size.
Wishes → path.
Sutured with 4-0 nylon, keep dry ROS in 7 days.
Dr Young at [52] concludes that the Practitioner did not make any provisional diagnosis or diagnosis for the back lesion.
Dr Young at [32]-[33] of his report refers to the most used skin reference in Australian general practice which records that a good examination includes assessed distribution, morphology and arrangement i.e. the number, size and colour of skin lesions, which sites are involved, their symmetry, their shape and arrangement and what types of lesions are present.
He comments that a thorough GP would record all of these elements routinely in the medical record and concludes the Practitioner’s records are deficient in detailed description of size and clinical features of lesions.
Dr Young goes on to say that even if this detail is not recorded, then often the provisional diagnosis or diagnosis of lesions are recorded for some later skin lesions and the size only recorded if the lesion is abnormally large, or on an important site such as face or genitals. There is however, no recording of provisional diagnosis or diagnoses. Dr Young said he would expect such a provisional diagnosis to be recorded, particularly by a GP who specialises in surgical management of skin lesions. Failing a diagnosis, Dr Young would then alternatively expect some clinical features to be recorded, such as pigmented, nodular, crusty, verrucous and the like.
The Practitioner’s reply is that he carried out the operation so of course he made a provisional diagnosis. As we said earlier, just because the Practitioner reasoned that he would have done something does not mean that we are prepared to accept that he did.
We find that no provisional diagnosis was made by the Practitioner and that failure was conduct that demonstrated the knowledge, skill and judgment possessed, or care exercised, by the Practitioner in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Q. … Then at 37, he doesn’t include a - you have a criticism of him because he doesn’t include a provisional diagnosis?
A. Yes, it’s there in the report.
Q. But you don’t need a provisional diagnosis for continuity for patient care, do you?
A. I believe you do.
Q. Well, you certainly don’t need it when you’re going to get a pathology which is going to give you the definitive diagnosis, do you?
A. The reason - there’s a couple of reasons why a provisional diagnosis might be useful. Okay? One is actually because the patient needs to know why you’re doing it. Okay? The second is that you actually are informing the histopathologist what you think it is, and then they can correlate that with the pathology finding. So that goes back to my--
Q. Neither of those are necessary for continuity of patient care, are they?
A. I believe they are, because continuity of patient care involves patient information giving.
Q. Well, doctor, we’re splitting hairs here, aren’t we, because you can tell the patient--
A. Well, you’re the one splitting the hairs.
Q. The fact the records don’t include a provisional diagnosis doesn’t mean that Dr Schwartz didn’t express his opinion to the patient. He didn’t just say, “Come back, I’m going to take off a lesion,” did he?
A. Well, there’s no record that he did.
Q. You deny failing to make a provisional diagnosis of the lesion on his back on that date, don’t you?
A. Sorry the lesion on left forehead is beginning to scab. Then later on - so I removed the lesion on his back.
Q. You didn’t make a provisional diagnosis though did you?
A. I can’t recall, I always make a provisional diagnosis in my mind when I see a lesion but I - ten years ago and there’s nothing in the notes but I would have assumed that I made a provisional diagnosis which is why I excised it.
Q. If you’d made a provisional diagnosis you would have recorded it in the notes Dr Schwartz wouldn’t you?
A. I would have thought so, maybe.
Q. And the reason it’s not in the notes is because you did not make a provisional diagnosis?
A. No, that’s not what I said. I said I always make a provisional diagnosis and particularly if I cut the lesion off I must have a reason for cutting the lesion out.
As previously noted, Patient I was not called.
Dr Schwartz emphasised that the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 applied because the allegations were very serious, and that the failure to document a provisional diagnosis (or any of the other matters raised in these grounds) could not be used to support the positive finding that no provisional diagnosis was made.
There is no substance to the ground that the Tribunal’s reasons are inadequate. The Tribunal summarised the competing evidence which bore on the issue. It observed that Dr Young had expressed the opinion that he would expect records to be kept, and the reasons for doing so, and that contrary to this, Dr Schwartz said that he made a provisional diagnosis before cutting out the lesion. The Tribunal relied on its earlier conclusions (including those which are not challenged on appeal) that it was not prepared to take Dr Schwartz at his word. It had earlier addressed its views on Dr Schwartz’s uncorroborated evidence at [14]-[15]:
Much of the Practitioner’s evidence about what he did in particular circumstances with particular patients, is not documented and the weight to be placed on his version relies heavily upon us accepting that he is a reliable historian. Important parts of his evidence lead us to have considerable difficulty in generally accepting what he says. Some examples of why we have that difficulty are:
• The Practitioner asserted that he treated Close Family Member C because Close Family Member C insisted upon it. The Practitioner had in fact treated Close Family Member C from infancy, including providing all vaccinations. It is fanciful to suggest that the Practitioner was compelled to treat Close Family Member C because Close Family Member C insisted upon it.
• There is a concerning instruction given by the Practitioner on 18 September 2020 when he requested other staff at his practice to sign his name to request investigations. Close Family Member D’s medical records on 18 September 2019 (recorded by Tamara Mantchakidi) read as follows:
From [the Practitioner]
[Close Family Member D] will be coming in tomorrow.
He will need an ECG.
Also FBC and MBA and urine M/C/S period.
He is having a cystoscopy and diathermy next Tuesday so we will need the results on Monday please.
Can one of you write out or print out the forms, and just sign my name?? Maybe Wendy if you are still there??
[the Practitioner]
Kim, please print out prior FBC and MBA and urine M/C/S
The Practitioner denied he wrote a note to staff to ask that a staff member place his signature on a document when the written record cannot reasonably be interpreted in any other way. His explanation that a staff member reconstructed the note from a misunderstanding of a verbal conversation with him is inherently improbable.
• The Practitioner was asked if he had made his own inquiries about whether an intermuscular administration of 100 micrograms of fentanyl was in breach of the condition imposed upon him on 12 December 2017. He said he had and was advised it would not. He was unable to elaborate on the circumstances of that inquiry, including when and to whom he had made that inquiry and whom had provided him with that information. There is no independent corroboration of his assertion. We are comfortably satisfied he just made that up.
• The Practitioner asserted that he administered an antihistamine to Patient D because she had requested him to do so. This was in circumstances where that antihistamine had the effect of increasing the sedative effect of the fentanyl that had also been administered. We do not accept that the Practitioner administered the antihistamine because the patient asked him to do so.
• The Practitioner asserted that he always made sure to inform Close Family Member B’s regular doctor of his treatment of Close Family Member B, when that was objectively false.
We do not accept any uncorroborated assertions or opinions by the Practitioner unless they are uncontroversial, inherently likely or accompanied by corroborative evidence.
No challenge was made to the above reasoning. That was, at least in part, the reasoning to which reference was made at [127] when the Tribunal said, “As we said earlier, just because the Practitioner reasoned that he would have done something does not mean that we are prepared to accept that he did”. I do not accept there is any inadequacy of reasons.
Nor is there any reversal of onus, or an absence of evidence. The foundation for the finding was the absence of any records where there was expert evidence before the Tribunal that records would be expected. Against that was the testimonial evidence of Dr Schwartz, which was regarded, to put it neutrally, as unreliable.
It was open to the Tribunal not to accept Dr Schwartz’s evidence, having seen him being cross-examined. It was open to proceed on the basis that an absence of any record of a provisional diagnosis being made sustained the conclusion that no such diagnosis was in fact made. To that conclusion the Tribunal was entitled to bring to bear its members’ expertise in appropriate record-keeping by medical practitioners, and Dr Young’s expert evidence of what would be expected to be recorded by a competent GP, let alone a GP who specialised in the surgical management of skin lesions, and their assessment that Dr Schwartz’s uncorroborated recollection was unreliable. The Tribunal’s conclusion was one which was open to be drawn from the evidence taken as a whole.
Finally, in oral submissions, not anticipated in writing, and not claimed ever to have been made to the Tribunal, it was said that an inference could be drawn from the patient consent forms. But Dr Young’s opinions were based on the whole of the patient files, including such consent forms as there were. In relation to Patient I, his report said at paragraph 62 “Consent forms are always completed for all procedures, although they are generic”. This further submission does not advance Dr Schwartz’s complaints with the fact-finding process adopted by the Tribunal.
These grounds should be dismissed. Ground 11 was not pressed.
The appeal purported to be brought as of right. I have dealt above with all ten of the grounds which were pressed on their merits, which amounts to making the assumption highly favourable to Dr Schwartz that he should have the benefit of a grant of leave.
None of the grounds is made out, although it should be noted that Particular 2 of Complaint 1 travels no further than Particular 1. That conclusion, which is favourable to Dr Schwartz, turns on the wording of the particular, and does not affect whether the complaint is made out or its seriousness.
The appeal should be dismissed. There is no reason to depart from the ordinary rule that costs follow the event.
I propose the following orders:
To the extent required, grant leave to appeal.
Appeal dismissed.
The appellant to pay the respondent’s costs of the appeal.
ADAMSON JA: I agree with Leeming JA.
GRIFFITHS AJA: I agree with Leeming JA.
**********
Schwartz
Health Care Complaints Commission
[1938] HCA 34
(2005) 64 NSWLR 58
(1938) 60 CLR 336
(1996) 186 CLR 389
(1993) 43 FCR 280
(2017) 94 NSWLR 554
(2020) 103 NSWLR 36
(2010) 79 NSWLR 606
(2014) 86 NSWLR 34
(2021) 105 NSWLR 403
(1988) 82 ALR 175
(2008) 74 NSWLR 481
(2008) 165 FCR 133
(2010) 241 CLR 320
To the extent required, leave to appeal was granted; the appeal was dismissed; the appellant was ordered to pay the respondent’s costs of the appeal ([107]).
There is nothing especially remarkable about the technical words being used in such a sense. One can speak without any straining of language of “administering pain relief” as a metonymic way of saying “administering an analgesic so as to cause pain relief”.
Fourthly, the Tribunal was correct to disregard the later distinction between “minimal” and “moderate” sedation. The condition was drafted before that different delineation was in place. When the condition was imposed, its effect was for all categories of sedation, howsoever that result was achieved, as defined in the then-applicable guidance to be prohibited save when an anaesthetist or sedationist was present.
Fifthly, let it be supposed favourably to Dr Schwartz that in order for the HCCC to establish that the condition had been breached, it was necessary to show that the patients’ consciousnesses had been depressed. The evidence of Professor Sutherland that an intramuscular injection of 75 or 100 micrograms of fentanyl would cause some sedation, which is to say, some depression of consciousness. There is no suggestion that the effect was de minimis. Having regard to the definition, Professor Sutherland formed the view that the result was conscious sedation.
An objection in the Tribunal was taken to parts of Professor Sutherland’s written evidence, but that objection was overruled and an endeavour to agitate this on appeal was abandoned. In any event, Professor Sutherland also gave the oral evidence referred to above, about which she was not cross-examined at all. I see no basis for interfering with the Tribunal’s finding, even putting aside (favourably to Dr Schwartz) the need to obtain leave to challenge findings outside the scope of a question of law.
True it is that if Dr Schwartz were subject to a condition that he not administer moderate sedation, but might administer minimal sedation, then the distinctions which are central to his submissions might have force. But on the evidence before the Tribunal, that classification of sedation did not exist when the condition was imposed or when Dr Schwartz injected fentanyl into his patients, and instead the condition was framed in terms of the then extant label of “conscious sedation”.
This ground, the main ground of the appeal, should be dismissed.