SINHA v HEALTH CARE COMPLAINTS COMMISSION

COUNSEL : Paul Byrne SC/E Pike - Claimant K L Eastman - Opponent SOLICITORS : David Brown - Claimant Health Care Complaints Commission - Opponent CATCHWORDS : APPLICATION for stay of order from Medical Tribunal of New South Wales that name of medical practitioner be removed from register pending appeal LEGISLATION CITED : Medical Practice Act 1992 Bannister v Walton (1993) 30 NSWLR 699 Wanigaratne v Health Care Complaints Commission [2000] NSWCA 204 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 CASES CITED: Bannister v Walton (unreported) 30 April 1992 Macarthur v Walton (unreported) 25 January 1995 Leicester v Walton (unreported) 13 June 1995 Huang v Walton (unreported) 10 August 1992 DECISION : 1. Extend the stay granted by the Medical Tribunal up to and including the date upon which the claimant's appeal is determined by the Court of Appeal or further order of the Court; 2. Expedite the hearing of the appeal; 3. The costs of this application are to be costs in the appeal.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40124/01 SHELLER JA

1 SHELLER JA: The claimant, Dr Shailendra Sinha, has appealed against a decision of the Medical Tribunal of New South Wales ordering that his name be removed from the register of medical practitioners and fixing a three year period before which he may not apply to be registered under the Medical Practice Act 1992 (the Act). By notice of motion, time for the service of which was abridged, the claimant seeks orders that the Medical Tribunal's order removing his name from the register of medical practitioners be stayed pending the hearing of the appeal and that the hearing of the appeal be expedited. The opponent, Health Care Complaints Commission, opposes the making of the first order but does not oppose expedition. The parties informed me that the Medical Tribunal granted a stay up to and including 16 March 2001 on condition that the claimant did not practise during the period of the stay. 2 This application is supported by the affidavit of Helen Turnbull of 7 March 2001. According to her evidence, the applicant has been in practice as a medical practitioner since 1961. He is a specialist physician. Apart from the complaint which led to the Medical Tribunal decision here under appeal, the claimant is a man of unchallenged good character and integrity established by a considerable volume of testimonial material in evidence before the Medical Tribunal. 3 On 23 July 1997 a former female patient of the claimant, to whom I shall refer as MS, lodged a complaint with the Health Care Complaints Commission in which she alleged that the claimant had had a sexual relationship with her for a period exceeding twenty years, commencing during the 1970s and terminating in 1996. The complainant alleged that during that period the claimant had sexual encounters with her on more than one hundred occasions in his surgery and in other places. At all times the claimant denied the complaint. The claimant has not been the subject of any other complaints at any time. Evidence, called on his behalf from his secretary/receptionist throughout the period covered by the complaint, contradicted that given by the complainant in material respects. 4 The Medical Tribunal heard evidence in relation to the complaint on 11 to 14 December 2000. A majority of members of the Tribunal found the complaint proved. The fourth member of the Tribunal was satisfied on the balance of probabilities that the complaint had been established and that the particulars had been made out and that the practitioner had been guilty of professional misconduct but did not find himself "comfortably satisfied"; see Bannister v Walton (1993) 30 NSWLR 699 at 711. The dissenting member gave no separate reasons. 5 The claimant contended that the majority decision of the Tribunal disclosed serious errors of law which were outlined in the grounds of appeal. Together with a copy of the Medical Tribunal's decision the claimant's written submissions before it were annexed to the affidavit. Of particular note was that before the Medical Tribunal, the Health Care Complaints Commission tendered a report prepared by Dr Childs, for the purpose of providing expert evidence from a peer reviewer, as is the normal course in proceedings before it. Dr Childs' report expressed his significant doubts as to the veracity of the complaint. 6 Dr Jonathon Phillips, a consultant psychiatrist, who examined the complainant on two occasions, expressed similar reservations regarding the reliability of the claims that had been made by her. According to the affidavit "the complaint is peculiarly one of misconduct in the form of a consensual sexual relationship with a patient for a very long period of time". 7 The claimant is now sixty-five years old. The last alleged act of misconduct occurred in 1996. At no time pending the hearing in the Medical Tribunal did the Health Care Complaints Commission seek to have the claimant suspended from practice, nor did it seek orders that conditions be imposed on him. It was submitted that the claimant did not represent a risk to the public. On the other hand, the claimant has limited years remaining in practice. It is alleged that if the orders of the Medical Tribunal stand pending the hearing of the appeal, irreparable harm will be done to the claimant's practice. The claimant as a specialist physician relies on referrals from general practitioners. If a stay is not granted and the appeal is, in due course, allowed, the deponent of the affidavit says: "I am advised and verily believe that the [claimant's] practice would never be able to be re-established to its previous state." 8 Section 90 of the Act provides, so far as presently relevant: "(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. …… (3) The Supreme Court may stay any order made by the Tribunal, on such terms as the Court sees fit, until such time as the Court determines the appeal."

Section 91 of the Act provides: "(1) In determining the appeal, the Supreme Court may: (a) dismiss the appeal, or (b) make such order as it thinks proper having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under this Act. (2) If the Court dismisses an appeal against an order of the Tribunal, the Court may by order direct that the Tribunal's order is to be taken to include provision that an application for its review under Division 3 may not be made until after a specified time." 9 In Wanigaratne v Health Care Complaints Commission [2000] NSWCA 204, this Court emphasised and explained the limits on the scope of an appeal to this Court from a decision of the Medical Tribunal. Grounds 1 and 2 of the grounds of appeal in that case were that the Tribunal was "in error in concluding that" the appellant lacked insight into his behaviour and that the appellant's conduct was a deliberate departure from accepted standards. In para 58, Powell JA, with whose judgment Handley and Heydon JJA agreed, said: "Given the unchallenged evidence of the members of the nursing staff and of Dr Pasha as to the incident itself and the Appellant's conduct shortly thereafter, it is clear that the Tribunal's finding that the particulars ((a), (b)) in relation to the assault were made out and that the assault occurred when the Appellant 'became angry, was upset, lost control and struck out at Patient A' were findings of fact which were clearly open to it on the evidence. It is, I think, also clear that the evidence which was before it was such as to justify the Tribunal's finding that the accounts which the Appellant gave first when interviewed by Mr Kidd and Dr van Buynder and, later, during the disciplinary interview, were false and false to the Appellant's knowledge. Given that the Tribunal's findings as to the assault and the giving of the false and misleading accounts of the incident were based upon its conclusion that, at all material times, the Appellant had been aware of the true sequence of events and that the Appellant had recast his position to suit the issues before the Tribunal and as well that the Appellant had approached the incident in the context of proceedings (in the Local Court and the Tribunal) with different social objectives, it seems to me that the Tribunal's finding that, at the time of the hearing before it, the Appellant lacked insight was also a finding of fact which was open to it. In my view, Grounds 1 and 2 in the Notice of Appeal are not open to the Appellant on this appeal."

While the opponent has not made any formal application to have any of the claimant's grounds of appeal struck out, some of the grounds, for example ground 2, are arguably appeals against findings of fact. 10 The Medical Tribunal's reasons for determination extend over thirty-seven pages. My attention was drawn particularly to those parts of the reasons found under the heading "Conclusions". The Medical Tribunal said: "The practitioner was unwavering in his denials of the allegations of misconduct. Clearly he faces the difficulty experienced by all who are accused of sexual misconduct that the only real avenue open to them is to maintain their innocence. It is impossible to call positive evidence to account for all of their movements in the presence of the accuser." 11 This might be said to bring to the consideration of the claimant's evidence a consideration of what the Medical Tribunal regarded as the common experience with persons accused of sexual misconduct, something quite irrelevant. 12 Earlier the Medical Tribunal said: "This Tribunal is of the opinion that either the patient has lied or she is essentially telling the truth with regard to her claims of a lengthy sexual relationship with the practitioner. This is not a case of her memory being faulty. We do not accept that she has an uncertain memory with regard to the bandage on the doctor's thigh observed, she says, in the course of sexual activity. That is either a clever and sophisticated embellishment of a malicious lie designed to damage the practitioner, or it's the truth. Frailty or uncertainty of memory is entirely inconsistent with that sort of detail."

The claimant criticises this sort of approach to the fact finding task the Medical Tribunal had to undertake. 13 The claimant submitted that his secretary for a substantial part of the relevant period gave evidence which contradicted the complainant's evidence. The Medical Tribunal said: "The Tribunal carefully considered the evidence of Cheryl Fleming, the practitioner's secretary for a substantial part of the relevant period. Clearly this lady was a faithful employee who held Dr Sinha in high regard. We accept her evidence that she had no cause to suspect any impropriety and her belief that there was none. Nevertheless we do not find that there was any impracticability in the practitioner conducting himself in the manner described and her remaining in total ignorance. Her loyalty is a shining example of the respect he attracted as is evidenced in the glowing references referred to."

The seriousness of the charge made, the plaintiff submitted, required greater analysis of that contradictory evidence to explain why it was put aside. 14 In Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694 this Court (Kirby P and Hope and McHugh JJA) said: "….it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour." 15 Their Honours went on to point out that the onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties. In exercising its discretion the Court will weigh consideration such as the balance of convenience and the competing rights of the parties before it. Two further principles were mentioned. First, that where there is a risk that the appeal will prove aborted if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay. Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them in considering the specific terms of a stay that will be appropriate fairly to adjust the interests of the parties, making some preliminary assessment about whether the appellant has an arguable case. 16 Bearing in mind the very limited extent of the argument put to me on the merits, I am satisfied that the claimant does have an arguable case on the appeal. 17 Counsel for the claimant referred me to four decisions in this Court dealing with stay applications. One was Bannister v Walton (unreported) 30 April 1992. The Court comprised Mahoney, Sheller and Cripps JJA. In that case the Medical Tribunal found against Dr Bannister on two complaints related to his knowledge and skill in the practice of medicine and a third complaint of over-charging. A stay was sought on the basis, amongst others, that if were not granted and particularly if the appeal was successful there would be a substantial income loss by the doctor and irreparable detriment to his reputation. As against this it was submitted that "good character" was important in determining whether the doctor should be allowed to practice medicine since his relationship with patients touched matters such as trust, confidence, confidentiality and right conduct. Mahoney JA, who gave a judgment with which the other members of the Court agreed, concluded that on the grounds as formulated there was no strong likelihood that the appeal would be successful. Account was taken of the conclusion that the appeal should be expedited but his Honour said: "But, taking into account the findings of the Tribunal after a long and exhaustive hearing and the careful judgment given, this Court must look to the possibility that, if the stay is granted, a right of practice would be preserved during the period of the stay to a person of the character indicated by the Tribunal. This is not a matter which lightly should be granted. This is not a matter which I think should be allowed to happen. I think, balancing the considerations one against the other, in the end the proper order is that the application for stay be refused." 18 The other three decisions were of single judges of the Court of Appeal. In Macarthur v Walton (unreported) 25 January 1995, Powell JA granted a stay of a Tribunal order suspending the claimant from practice of medicine for a period of six months. His Honour did so, even though he said that unless some more substantial grounds of appeal than those set out in the existing notice of appeal were to be relied upon, the claimant's prospects of success would not be great. The critical factor in that case was that with the expected delay in the hearing of the appeal, unless a stay were granted, the period of suspension would expire before the appeal was decided. 19 In Leicester v Walton (unreported) 13 June 1995, Kirby P granted a stay of an order suspending the medical practitioner from practising for a period of six months on conditions. In Huang v Walton (unreported) 10 August 1992, Kirby P refused a stay but granted expedition. In that case the Tribunal stated that the medical practitioner fell into the category of a medical practitioner "drug pedlar". His Honour said that in the face of this finding in reasons which ran for 256 pages and followed a hearing over twenty-five days, "I cannot, consistently with the purposes of the jurisdiction, stay its order; see Bannister v Walton." 20 In the present case, as I have said, I am satisfied that the claimant's appeal is arguable. The opponent would not object to the continuance of the stay on the condition set by the Medical Tribunal. I am of the opinion that the appeal is appropriate for expedition. The Medical Tribunal's finding was that the claimant had demonstrated a lack of adequate skill, judgment or care in the practice of medicine and had been guilty of improper or unethical conduct related to the practice of medicine. In particular, the Medical Tribunal found that the practitioner engaged in a personal and sexual relationship with MS which included sexual contact and sexual intercourse during professional consultations. The Medical Tribunal said: "The Tribunal is charged with exercising a protective power for the protection of the community. The principal consideration in the exercise of this power is the maintenance of the standards of the medical profession and maintaining the confidence of the public in the profession. Having regard to the gross breaches of the standards required of a medical practitioner which involved numerous instances of misconduct over a very prolonged period, the Tribunal considers that the only appropriate order is that the practitioner's name be removed from the register." 21 Accepting as I do for present purposes that apart from the complaint the claimant was a man of unchallenged good character and integrity, that the complaint was one of misconduct in the form of a consensual sexual relationship with a patient for a long period of time, that the opponent did not seek to have the claimant suspended from practice or any conditions imposed before the matter was decided in the Medical Tribunal and that pending the hearing of the appeal the claimant may suffer irreparable harm, I have come to the conclusion that the granting of a stay other than upon the condition imposed by the Tribunal is not appropriate. I say this in the context that I propose to order that the hearing of the appeal be expedited. 22 The orders of the Court are, accordingly:

1. Extend the stay granted by the Medical Tribunal up to and including the date upon which the claimant's appeal is determined by the Court of Appeal or further order of the Court.

3. The costs of this application are to be costs in the appeal. *****

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