Steel v Medical Council of New South Wales

NCAT Occupational|2020-06-11|Before: Boland AM

Background

The following facts are set out in the Council's reasons for decision or other material in evidence before me. I have noted those matters which are alleged by the practitioner or on his behalf.
The practitioner is a specialist neurosurgeon. He was first registered in 1987. He became a member of the Royal Australasian College of Surgeons in Neurosurgery in 1996.
Until the practitioner's suspension he carried out surgery at St Vincent's Private Hospital, Darlinghurst and also at St Vincent's Public Hospital. The practitioner is an Honorary Associate Professor at Notre Dame University.
In 1995 the practitioner was charged with a mid-range prescribed content of alcohol offence. He received a fine and was disqualified from driving for a period of four months.
Between 2005 and 2010 the practitioner was on the Council's Health Program following his arrest in 2005 on the Gold Coast for possession of cocaine. He pleaded guilty to that offence and no conviction against him was recorded by the presiding Gold Coast Magistrate.
Following an incident at the practitioner's home on 14 December 2019 he was charged by NSW Police with three offences: 1. Assault Occasioning Actual Bodily Harm, domestic violence related (s 59 (1) of the Crimes Act 1900 (NSW)) concerning a family member; 2. Common Assault, domestic violence related (s 61 of the Crimes Act 1900 (NSW)) concerning another family member; and 3. Destroy or damage property less than or equal to $2,000 (s 195 (1A) of the Crimes Act 1900 (NSW)) (a mobile telephone).
The practitioner self-notified the Council of the charges in December 2019.
The hearing of the charges against the practitioner in the Local Court commenced on 6 March 2020 but was adjourned when the Magistrate was required to quarantine as a result of COVID 19. The matter was mentioned for directions on 9 May 2020, and fixed for hearing on 29 and 30 June 2020.
At about the time of the criminal charges in December 2019 the practitioner ceased providing his services at St Vincent's Public Hospital.

The Amended Notice of Appeal

The practitioner sought and without opposition was granted leave to rely on an Amended Notice of Appeal.
A copy of the amended grounds of appeal is annexed to these reasons and marked "A".

Issues for determination

The practitioner in his appeal raises essentially five topics for determination: 1. Did the delegates err by failing to follow earlier Tribunal decisions and in particular Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98? 2. Did the delegates err in law by addressing the question "Does the practitioner's action accord with the public interest?" rather than addressing the words of the statute namely, that the Council must if it is "otherwise in the public interest" take action? [my emphasis] 3. Did the delegates misdirect themselves in posing and answering the question "Should the practitioner be suspended, if not should conditions be placed on his registration?" rather than considering suspension or conditions? [my emphasis] 4. Did the delegates fail to take into account a relevant factor or factors in determining it was appropriate to take action in the public interest? 5. Was the decision to suspend the practitioner's registration so unreasonable that no reasonable decision maker could have so ordered?
At the hearing before me, counsel for the Council acknowledged the questions posed by the delegates of the Council in their reasons did not reflect the statutory language of s 150 but referred to the disputed words as "infelicity of expression". It was pointed out that other paragraphs in the decision correctly reflect the terms of s 150 and that the reasons read as a whole, and taking into account that the delegates are non-lawyers, properly address both limbs of s 150.

Relevant statutory provisions and authorities

This appeal involves the proper construction of s 150 of the National Law. Section 150 provides as follows: (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens - (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must - (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who - (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
The appeal is brought under s 159B of the National Law. That section which is found in Division 6 Sub-division 2 of Part 8 of the National Law provides as follows: (1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. (4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.
An appeal under s 159B is an external appeal for the purposes of the Civil and Administrative Tribunal Act 2013 (NSW) (see s 31). The appeal is to be heard by a division member who is a senior judicial officer (see s 165B (4) of the National Law).
I note that the phrase "points of law" has been construed as having a wider connotation than "error of law" (see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267).
The Tribunal's powers on determining an appeal under s 159B or under s 159 are also found in Division 6 Sub-division 2 in s 159C. Section 159C provides: 159C Tribunal's powers on appeal [NSW] (1) On an appeal against a decision of a Council, the Tribunal may by order - (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made). (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
As earlier noted, the practitioner has also filed an appeal under s 159 of the National Law. That appeal is an appeal by way of re-hearing and the Tribunal may admit fresh evidence or additional evidence to that which was before the Council.
In considering this appeal I must have regard to the objects and provisions of the National Law. Reliance is placed by the practitioner on s 3 (3) of the National Law. That sub-section provides as follows: (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Of particular significance in this and in all matters dealt with under the National Law is the objective and guiding principle set out in s 3A (a New South Wales provision) of the National Law. Section 3A provides: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
Three recent decisions of the Court of Appeal (Kirby v Dental Council of New South Wales [2020] NSWCA 91, Health Care Complaints Commission v Windsor [2020] NSWCA 110 and Ghosh v Medical Council of New South Wales [2020] NSWCA 122) have considered the provisions of Division 3 Sub-division 7 and Division 6 Sub-division 2 of Part 8 of the National Law. In Kirby v Dental Council of New South Wales Brereton JA in his reasons explained the role of s 150 at [12] and [15] as follows: Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice, s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion. … In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied - regardless of how the matter comes to its attention - it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints.[7] As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public.[8] [footnotes omitted]
Also relevant is the decision of Barrett AJ in Kirby v Dental Council of New South Wales [2018] NSWSC 1869 and that of Harrison AsJ in Pharmacy Council of New South Wales v Ihrahim [2020] NSWSC 708.
Barrett AJ, when discussing s 150 explains at [6]: Section 150(1) assumes, clearly enough, that a Council will perform an evaluative task in relation to circumstances concerning a practitioner that come to its notice. The evaluation must focus entirely on what is required to protect the health and safety of relevant persons and on the requirements of the public interest. Considerations of punishment are foreign to the assessment.
In an appeal to the Court of Appeal from Barrett AJ's decision, Payne JA described an action under s 150 at [2] as follows: As to Dr Kirby 's principal complaint, as Brereton JA explains, the statutory context in the present case was that the Dental Council of New South Wales ("the Council") was bound to act if a particular state of affairs appeared to it. Section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") imposes a positive duty on the Council to act, in one of several specified ways, if the Council is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or otherwise in the public interest. The Council's duty to act does not depend on the existence of an initiating complaint. Here, the Council was satisfied that Dr Kirby 's conduct made it appropriate to act to protect the public health and safety of citizens of New South Wales. [original emphasis]
In Pharmacy Council v Ibriham Harrison AsJ was determining an appeal against an external appeal to the Tribunal by a pharmacist whose registration was suspended by the relevant Council under s 150. Her Honour referred to the decision of Hall J in Lindsay v NSW Medical Board [2008] NSWSC 40 under the forerunner of s 150 namely s 66 of the Medical Practice Act 1992 (NSW) (repealed). Hall J in Lindsay explained that proceedings under s 150 are interlocutory in nature and do not involve making findings of fact or the determination of the merits of any complaint. Her Honour discusses the "second limb" of s 150 ("otherwise in the public interest"). At [32] her Honour referred to the second limb as follows: As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18]. [footnotes omitted]
In Ghosh v Medical Council of New South Wales Brereton JA at [5] emphasised, by reference to the decision in Kirby v Dental Council of New South Wales, the "purely protective character of the s 150 (1) function" and that "the touchstone for the exercise of the Council's power …to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons or that the action is otherwise in the public interest".
At [103] his Honour explains on a hearing under s 159 (when the Tribunal is considering afresh whether it is appropriate for action to be taken under s 150 (1)) it is necessary for a Tribunal "to take the essential step of identifying what the risk was, and whether it was unacceptable".
Earlier, in para [98] and in footnote 54, Brereton J clarifies, by reference to the decision in Karimi v Medical Council of New South Wales [2017] NSWCATOD 180, that the Tribunal or Council must consider whether a practitioner's conduct involves an unacceptable risk either to the health and safety of the public and a similar, not lesser test in the case of public interest, noting that "an acceptable risk could not justify s 150 action".
In determining this appeal, I am conscious that generally an appeal on a point of law is heard and determined at the same time as an appeal under s 159. As the latter hearing is a hearing do novo any error of law "falls away" or is overcome by the exercise on a rehearing.
I also take into account in construing s 150 that its predecessor (s 66 of the Medical Practice Act 1992 (NSW)) used different language. The present section differs from its predecessor in that s 66 required the Board exercising power under the section to suspend or impose conditions on a medical practitioner if it was satisfied such action was necessary for the protection of the health and safety of the public or if satisfied the action was otherwise in the public interest. Section 150 now imposes a less stringent test of "appropriate" to take action.

The reasons of the delegates

After setting out some background material, the accuracy of which is not in dispute in this appeal, the delegates summarised the role of s 150 National Law as follows: Section 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) provides for the Council to impose conditions on or to suspend the registration of a medical practitioner for the protection of the public or generally in the public interest. Action taken under s 150 is intended to be interim and may be reviewed under s 150A. The full text of these sections and other relevant provisions is set out at Attachment 1.
The delegates then refer to the circumstances in which the hearing was conducted, and that immediately prior to the commencement of the proceedings they had viewed police video footage. I pause to note that video footage includes police interviews of the practitioner recorded on 14 December 2019, and interviews of a family member of the practitioner and two others present in the family home at the time of the incident which resulted in the criminal charges against the practitioner.
Under the heading "ISSUES" the delegate state at para 7: The central issue for us to consider is whether Dr Timothy Robert Steel poses a risk to the safety or health of the public that warrants action to be taken by the Council. We may also consider whether it is generally in the public interest for the Council to take action. To determine these issues, we must answer the following subsidiary issues: i. What are the circumstances of Dr Steel's criminal charges? ii. Is Dr Steel impaired? iii. What is in the public interest? iv. Does the practitioner's practise accord with the public interest? If we conclude that Dr Steel does pose a risk to the safety or health of the public and/or that the public interest warrants action being taken, then we must consider the following questions: v. Is it appropriate that Dr Steel's registration be suspended? vi If not, are conditions that could be imposed to minimise that risk?
The above paragraph and questions posed by the delegates are set out in full because they go to the heart of this appeal on points of law.
The reasons then refer to a Police Facts Sheet and set out a summary of the police video footage taken at the practitioner's home at the time of the incident that led to the criminal charges. The practitioner's evidence about his workload at St Vincent's Pubic Hospital and his private practice is then recorded.
The delegates note the practitioner's evidence that on the evening prior to the incident leading to the criminal charges he had consumed five or six beers and two or three wines between 6pm and 4am (the following day). Noted in the reasons is the practitioner's evidence that he may have been "a little bit intoxicated" on the morning of the incident. The reasons then set out the practitioner's version of events which led to the criminal charges.
The reasons then deal in some detail with the delegates' questioning of the practitioner about the incident including that a family member appeared to have sustained injuries including a bloody nose and split lip. The reasons record "Dr Steel asserted that he pushed her on the face to move her out of the way, and that she may have bitten her lip". The reasons also record the delegates' particular concern about the injuries asserted to have been sustained by the other family member. They record "Dr Steel stated he used his knee to move her out of the way".
The reasons then explore the first question posed namely "Is the practitioner impaired". After referring to a report by the practitioner's treating psychiatrist the reasons at para 54 record that the practitioner was previously on the Council's Health Program between 2005 and 2010 and that the psychiatrist reported a "pattern of episodic heaving drinking" in 2005 and a period of increased alcohol use after the onset of tinnitus (in 2015).
The delegates record that, from their observations of the video footage of the day of the incident, the practitioner appeared intoxicated. They explain that, as a consequence, they "felt it appropriate to further explore Dr Steel's relationship with alcohol".
The reasons record, at para 56, that the practitioner reported he did not drink when he is on call. The delegates then record as follows: In an average week, he will consume two glasses of wine with dinner most days, unless he is operating the following day. Dr Steel described consuming four drinks over dinner with his family on a Saturday, and a glass or two on a Sunday afternoon. He may have a scotch in bed whilst watching tv with his wife.
The delegates' reasons note that the practitioner was challenged about his statement that he does not drink whilst on call because he is "in effect" always on call for his private patients. The delegates record that the practitioner conceded that "he had made no specific arrangements for his patients to be covered for the evening he expected to be drinking excessively and that a colleague who the practitioner had asserted he could call on for acute patients was also at the Christmas function".
The reasons set out details of the delegates' exploration with the practitioner of details of his family relationships. Those details are of marginal, if any, relevance to this points of law appeal and it is unnecessary that I repeat them.
Under the heading "Submission" the delegates record submissions made on behalf of the practitioner by his lawyer, including reference to the Tribunal's decisions in Reid v Medical Council of NSW [2014] NSWCATOD 152 and Coutinho v Dental Council of NSW [2018] NSWCATOD 98. The delegates summarise the submission made by the practitioner's lawyer that the incident leading to the criminal charges did not occur in the practice of medicine and the allegations "are at odds with Dr Steel's usual character as evidenced through various references he has provided".
The reasons then record, at para 64, a further submission made on behalf of the practitioner, namely, that an adverse outcome "could cause catastrophic professional and personal outcomes" and that the practitioner is the sole source of income for three dependent children. The reasons then record the practitioner's lawyer submitted that "to suspend Dr Steel would be draconian and unnecessary".
The reasons, at page 10, commence with the heading "What is in the public interest". At this point in the reasons, at para 67, the delegates state: It is generally acknowledged that considerations of public interest involves several factors including the reputation and standing of the medical profession, the need to maintain public trust and confidence in the profession, and the need to maintain public trust and confidence in the administration of the Health Practitioner Regulation National Law (NSW) and the operation and management of the health system as a whole.
Thereafter, the reasons refer to the Medical Board of Australia's Good Medical Practice: a code of conduct for doctors in Australia with particular reference to section 1.4 of the Code. The reasons then set out an extract from the decision of the Tribunal (wrongly described as a decision of Justice Marks) in Crickett v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56] where the Tribunal discusses factors relevant to a consideration of public interest.
Immediately after the general discussion of public interest, the delegates turn to the question they posed earlier in the reasons namely "Does the practitioner's practise accord with the public interest?"
Thereafter the reasons refer to the serious nature of the criminal charges "and the behaviour he has described during the course of these proceedings" and then record "The delegates noted such behaviour does not demonstrate the traits expected of a medical practitioner and could be seen to bring the profession into disrepute".
The delegates then record at para 73 of the reasons: The delegates noted that Dr Steel has been a vocal and high profile proponent of NSW's "lock out laws" and "one-punch" laws. It was highlighted that alcohol and violence are the main concerns of these laws, and that, serious, even fatal consequences can result from alcohol fuelled violence. Dr Steel has made various public and media statements of the consequences of alcohol-fuelled violence in his role as a neurosurgeon attempting to treat injured.
The delegates go on to record that they asked the practitioner if he had any comments given "it appeared …some form of physical altercation had occurred in his home in a situation where he may have been intoxicated from heavy drinking into the early morning of the day in question" . The reasons note the practitioner expressed his deep regret and that he said that he is not a violent person.
The delegates then explain at para 76: The delegates formed the view that the serious criminal charges facing Dr Steel, the involvement of [a family member] in a domestic violence context, Dr Steel's lack of insight and involvement of alcohol in the alleged offences are matters that members of the public would find unacceptable and that in this instance, Dr Steel's practise does not accord with the public interest
Thereafter the delegates consider the question earlier posed namely "Is it appropriate that Dr Steel's registration be suspended?"
At this point in their reasons the delegates referred to the practitioner's lawyer's submission that was focussed on the cases of "Reid and Coutinho". The delegates said at para 77: The role of the Council in s 150 hearings is to undertake a risk assessment and determine the most appropriate action required, either to protect the health and safety of the public, or action that is otherwise in the public interest.
The delegates explain, at para 78, that "each case is assessed on its own merits, with the evidence available at the time". They then reject "comparisons" to previous caselaw whether in NSW or elsewhere and go on to say "Nor are delegates bound by decisions overturned on appeal. Delegates of the Council must take into account the evidence before them and make an informed decision as to the most appropriate action for the protection of the public, or in the public interest".
The delegates express their view that the practitioner demonstrated little insight about how his actions may have contributed to the events of 14 December 2019 presenting himself as the victim with no responsibility for the physical violence that occurred in the home involving two family members.
Thereafter, at para 80, the delegates relate that, it appeared to them from the evidence then available, that the practitioner may have an impairment related to alcohol abuse. The delegates arrived at this conclusion by considering the practitioner's alcohol intake immediately prior to the incident at the home, his daily consumption of alcohol and his history including excessive drinking in the past. The delegates determined "that a risk to the health and safety of the public existed".
The delegates also went on to conclude at para 81: Additionally, the delegates formed the view that Dr Steel's actions do not accord with the public interest. Domestic violence is a serious, pervasive scourge in Australian society, and medical professionals are held to the highest standards of behaviour.
The delegates concluded "in these circumstances, the delegates formed the view that Dr Steel's registration should be suspended".

Ground 1

This ground asserts the delegates erred by not having regard to previous caselaw and regarding themselves as entitled to disregard "decisions overturned on appeal". The point of law which is asserted to establish error is that the delegates "wrongly regarded themselves as entitled to disregard the Tribunal's decision in Coutinho".

The practitioner's submissions

On behalf of the practitioner it is submitted at paras 132 to 135 of his senior counsel's submissions that, if the delegates "had had regard to Coutinho it would have informed their Statutory Task under Subsection 150 (1) including the draconian nature of the action of Suspension and the wider notion of public interest .. . It is asserted this failure to consider caselaw is also relevant to the unreasonable ground".

The Council's submissions

Counsel for the Council, at paras 44-45 of their written submissions, submit that this ground mischaracterises what the delegates did, and what is the proper task of an administrative body when exercising a function like s 150. It is submitted that reading the two relevant paragraphs of the reasons (paras 77 and 78) reflects a "wholly orthodox statement of the delegates task on a s 150 hearing, namely that it could not fetter itself in its decision making task and must decide the case on its particular merits".

Consideration - Ground 1

I accept, as submitted by the Council, what the delegates were undertaking here was a specific evaluative task, albeit it one as is often the case in such proceedings, on limited and/or untested material. It is uncontroversial that, in determining a matter under s 150, the delegates are bound to observe legal principle. I observe that reference to authorities may not only provide guidance on the principles to be applied but also examples of their application. However, because of the usually different circumstances in each case they cannot generally be used as a direct comparator. Nor does it follow that the same outcome from other decisions must automatically flow to a particular case.
While I accept that the delegates' reasons could, on the one hand, be interpreted as suggesting that they could not, or would not, look at other decisions, I infer from their statement that each case must be regarded on its own facts, they considered, that as the facts in Coutinho and Reid were not on "all fours" with the facts before them they were not of assistance. The delegates were concerned with facts which involved potential risk to the health and safety of the public because of the practitioner's prior history, his alcohol consumption and possible impairment. It was in these circumstances, they did not adopt or follow the decisions referred to by the practitioner notwithstanding Coutinho involved a practitioner charged with domestic violence related charges.
I am not satisfied that legal error has been established by the delegates in "wrongly disregarding Coutinho and/or Reid". Ground 1 is not established.

Ground 2

This ground asserts error by the delegates because they mistook the statutory task by posing the question of whether the practitioner's conduct accorded with the public interest rather than determining whether action by the delegates was appropriate in the public interest. The particulars in support of this ground refer to paras 7 and 81 of the delegates' reasons.
It is also convenient in my discussion of Ground 2 that I also consider Ground 4 as there is substantial overlap in the issues raised in these grounds.
Ground 4 is expressed as "Failing to consider relevant matters concerning whether taking action was appropriate in the public interest". In the particulars relied on in respect of this ground of appeal it is asserted that "In disregarding the Tribunal's decision in Coutinho the delegates disregarded the Tribunal's statement concerning the balancing that should be involved in the statutory task". Particular (iii) asserts that the delegates erred in failing to consider the draconian nature of the suspension, and the impact on Dr Steel and his patients. The delegates failed to consider the public interest in having a highly qualified neurosurgeon providing services to his patients.

The practitioner's submissions

At para 100 of senior counsel for the practitioner's submissions it is submitted that the delegates' error "is evident from the Subsidiary Questions which the Delegates formulate for the purposes of their considering the application of Section 150 to Dr Steel."
The nub of the submissions on behalf of the practitioner is encapsulated in para 105 of the submissions as follows: With respect, the Delegates approach was fundamentally flawed. The Correct Statutory Question was not whether Dr Steel's actions accorded with the public interest. The Correct Statutory Question was whether the Delegates were satisfied that their action to suspend Dr Steel's registration was "otherwise in the public interest".
In his written and oral submissions senior counsel for the practitioner emphasised that, because of the question they posed, the delegates had limited their consideration of what is encompassed by the words "the public interest" and had failed to consider or refer to "the facet of public interest concerning the impact of the provision of the practitioner's services to patients". It is submitted that "if the Delegates had had regard to the decision in Crickett they would have appreciated the other aspects of public interest".
The submissions, at para 116, are critical of the failure to regard the decision in Coutinho where the Tribunal states that public interest "involves a balancing of matters". It is further submitted that the delegates have taken a "very narrow notion of what is involved".
In dealing with Ground 4 the practitioner's senior counsel refers to a failure by the Tribunal to consider the effect of the loss of the practitioner's skills to patients and the draconian nature of the suspension by reference to the decision of Fagan J in Cho v Medical Council of New South Wales (unreported 16 July 2019 at [15]). Reliance is also placed on the statements of the Tribunal in Ibrahim v Pharmacy Council of NSW [2019] NSWCATOD 187 at [33] where it was said, in the factual circumstances of that case, that the only public interest factor asserted by the Council was a criminal charge "which we have previously determined is not a matter itself which would justify suspension of registration".
Further reliance is placed on the decision of the Court of Appeal in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [101] where the court referred to the appropriateness of making an order that is no more restrictive "than is necessary for the proper protection of the community and the other proper purposes of such an order".
This ground again agitates the asserted error by the Tribunal in failing to consider the impact of the suspension on patients and the economic impact and "inevitable Delay upon Dr Steel and his family" with reference to comments made by Tobias JA in Gorman v NSW Medical Board [2010] NSWCA 26 at [24].
In the supplementary written submissions received on 8 July 2020 reference is made at para 6 to the decision in Ghosh v Medical Council of New South Wales. At paras 7 and 8 it is submitted that the delegates: Have not, in relation to the Second Limb of Section 150, addressed whether or not there was a risk to the public interest that was unacceptable. The Delegates have simply asked whether Dr Steel's 'actions' accorded with the public interest.

The Council's submissions

As earlier noted, before me senior counsel for the Council, Ms K Richardson, did not assert that the question posed by delegates reflected the words of s 150 (1). Rather she first referred to the use of the word "accord" as an infelicity of expression, and stressed the delegates' reasons should be read as a whole taking into account that, in the body of the reasons, the law and the task the delegates are required to perform are correctly stated. Secondly, in her oral submissions Ms Richardson referred to the fact that the delegates do not have legal qualifications, and that the reasons should be read overall without an over-zealous eye looking for legal error.
In addressing ground 4 of the grounds of appeal, in their written submissions counsel for the Council submit that "this ground does not find any support in the appealed decision". It is noted that at para 65 of their reasons the delegates expressly noted the submission advanced on behalf of the practitioner that an "adverse decision" would cause "catastrophic professional and personal outcomes" for the practitioner. It is asserted that this ground is in effect, "a veiled attempt at merits review". It is noted that the written submissions on behalf of the practitioner, at para 36, assert that the delegates had not had "sufficient" regard to the impact of suspension on the practitioner. Reference is made to the Tribunal's decision in Li v Chinese Medicine Council of NSW [2019] NSWCATOD 13 at [37] where it is observed that "Immediate action decisions under s 150 are not punitive and are not permanent". The submissions stress the temporary nature of the orders and that loss of income is an "almost inevitable consequence of immediate action involving suspension, particularly for those in private practice". I pause to observe that the delegates at para 4 of these reasons note the action taken is intended to be interim "and may be reviewed under s 150A".
The submissions are critical of the practitioner's submissions and assert failure to examine the text, context and purpose of s 150 and the "broader statutory scheme". It is submitted that, properly construed, public interest does not "encompass matters personal to the medical practitioner".
It is further submitted that the risk assessment required by s 150 does not contemplate "weighing the personal detriment to the registered medical practitioner when determining whether action is "appropriate"". It is submitted by reference to authority it is for this reason that allegations do not need to be proven, but rather "that the question is whether the evidence establishes a risk to the public" (see Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53 at [169]; New South Wales Bar Association v Stevens [2003] NSWCA 95 at [103] and [106]).
The submissions note that it is not appropriate to rely on the Tribunal's comments in Ibrahim (which I pause to note has been set aside on appeal to the Supreme Court) because that decision was focussed solely on the impact of criminal proceedings whereas the Tribunal in this case found it was appropriate to take action for the protection of the health and safety of the public based on the delegates' conclusions at paras 76 and 80 that the practitioner "may have an impairment related to alcohol abuse".
The submissions distinguish the factual situations in Gorman and Prakash, the latter being disciplinary proceedings under "a different statutory regime and power". I accept the correctness of that submission and do not find it necessary to further canvass the distinguishing features of these authorities, or the circumstances in which Fagan J determined the matter of Cho. The principles espoused must be considered in the context of the relevant statutory regime.
In their supplementary submissions dated 10 July 2020 it is noted that many of the grounds of appeal considered in Ghosh v Medical Council of New South Wales are not relevant for the purposes of this appeal, but only the discussion in relation to Grounds 6 and 7. Those grounds are directed to whether the Tribunal (hearing the de novo appeal under s 159) failed to assess the essential question of whether there was an unacceptable risk such as to require immediate suspension of the practitioner.
The submissions refer to Brereton JA's discussion at [98] (which I have referred to earlier in these proceedings). It is submitted that the delegates' reasons demonstrate awareness of the risk assessment task at para 8 and 77 of their reasons, and that risk is found at para 57 and para 80 of the reasons.

Authorities on public interest

Senior counsel for the practitioner referred in his submissions on public interest to the decision of the Full Court of the Federal Court of Australia in McKinnon v Secretary, Department of Treasury [2005] FCAFC 142 and in particular to the judgment of Tamberlin J at [8]-[9] and at [12].
That decision emphasises that public interest requires consideration of what "best serves the advancement of the interests of the public, society or the nation and its content will depend on each particular set of circumstances". His Honour refers to the fact there will often be "competing facets of the public interest which call for consideration". At [12] his Honour explains: The public interest is not one homogenous undivided concept. It will often be multi-faceted and the decision-maker will have to consider and evaluate the relative weight of these facets before reaching a final conclusion as to where the public interest resides. This ultimate evaluation of the public interest will involve a determination of what are the relevant facets of the public interest that are competing and the comparative importance that ought to be given to them so that "the public interest" can be ascertained and served. In some circumstances, one or more considerations will be of such overriding significance that they will prevail over all others. In other circumstances, the competing considerations will be more finely balanced so that the outcome is not so clearly predictable. For example, in some contexts, interests such as public health, national security, anti-terrorism, defence or international obligations may be of overriding significance when compared with other considerations.
Also relevant to the question of public interest is the decision of the High Court in Hogan v Hinch [2011] 243 CLR 506 at [31] where French CJ explains: Section 42 requires that the court, before making an order under that section, be satisfied that "it is in the public interest to do so". The term "public interest" and its analogues have long informed judicial discretions and evaluative judgments at common law. … When used in a statute, the term derives its content from "the subject matter and the scope and purpose" of the enactment in which it appears[72]. The court is not free to apply idiosyncratic notions of public interest. [footnotes omitted]
See also my discussion of the authorities in Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 at [145]-[151].

Consideration - Grounds 2 and 4

I accept that the subsidiary question posed after the question "What is in the public interest" namely "Does the practitioner's practise accord with the public interest?" does not correctly reflect the words of s 150. Prima facie, this question could lead the delegates to misdirect themselves and constitute legal error.
It is appropriate that I commence my consideration by reference to the authorities which consider how decisions of administrative bodies and tribunals should be construed.
Ms Richardson submits the delegates' reasons should be considered in the context of the principles espoused by the Queensland Court of Appeal in Q Super Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55 at [89] where Moshinsjy, Bromwich and Derrington JJ state: It should also be observed that, whatever might be ascertained from a "close reading" of the reasons and the detection here and there of some of the words used in CA s 1017B(4), that is not the usual manner in which the reasons of tribunals or other statutory decision-makers are considered. Such reasons are not intended to resemble curial decisions. They are to be read "fairly and broadly" and should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Here, when the reasons are read as a whole, it is apparent that AFCA's concern was as to the extent to which QSuper disclosed to Dr Lam how he might have secured an occupational rating. It concluded that the information was inadequate although it did not conclude that the lack of information meant that Dr Lam could not understand the nature and effect of the relevant change. As he was not informed as to how he might take advantage of the occupational rating, it concluded that the decision not to refund the premiums was unfair and unreasonable.
Both parties rely on the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272 albeit with different emphasis. There Brennan CJ, Toohey, McHugh and Gummow JJ explain: 30. When the Full Court referred to "beneficial construction", it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic (22). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be "concerned with looseness in the language ... nor with unhappy phrasing" of the reasons of an administrative decision-maker (23). The Court continued (24): "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error". 31. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (25). In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin (26): "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." [footnotes omitted]
Kirby J explained: 1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law (77); 2. This admonition has particular application to the review of decisions which, by law, are committed to lay decision-makers, ie tribunals, administrators and others (78). This is not to condone double standards between the reasons and decisions of legally qualified persons and others. It is simply to recognise the fact that where, by law, a decision is to be made by a person with a different, non-legal expertise, or no special expertise, a different mode of expression of the decision may follow. It must be taken to have been contemplated by the lawmaker; 3. Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law (79); 4. Nevertheless, the reasons of a decision-maker will usually provide the only insight into the considerations which were, or were not, taken into account in reaching the decision which is impugned. It is therefore legitimate for the person affected, who challenges those reasons, to analyse both their language and structure to derive from them the suggestion that a legally erroneous approach has been adopted or erroneous considerations taken into account or a conclusion reached which is wholly unreasonable in the requisite sense; 5. The weight to be given to the material before the decision-maker is, in a case submitted to judicial review, reserved to the decision-maker so long as he or she applies the correct legal test and does not reach a conclusion which is so unreasonable as to authorise review (80). The decision-maker will usually have advantages over the reviewing judge in evaluating evidence and submissions. Those advantages will include the conventional ones of seeing any parties and witnesses who are heard and having time to reflect upon all of the material. But there are additional reasons for restraint and resistance to any temptation to turn a case of judicial review into, effectively, a reconsideration of the merits. Often, the decision-maker will have more experience in the consistent application of applicable administrative rules to achieve fairness to a wider range of people than typically come before the courts; [footnotes omitted]
The practitioner's written submission at para 55 submits that s 150 (1) contains a "number of Statutory Questions, and they are not the statutory questions the Delegates posed for themselves" in the reasons.
It is further submitted at para 102 that "The Delegates transform what they have said in Sentence 2 (of [7] of the reasons) into a different formulation that does not represent the Statutory Task and the relevant Statutory Questions. It is essential that the Delegates understand the Statutory Task they were undertaking. The Tribunal can have no confidence that this was the case".
The submissions then advance the proposition that because the delegates confined themselves to whether the practitioner's actions accorded with the public interest they failed to consider significant matters relevant to public interest. The submissions identify a failure of the delegates to consider the "facet of public interest concerning the impact on the provision of the practitioner's services to patients".
The Council's submissions refer to the authorities I have earlier set out, as well as other cases being the key principles to guide decision making in this appeal. The submissions emphasise that in Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 432 the Full Court of the Federal Court noted the delegate in that case had commenced and ended her reasons with the correct relevant test, and explained it "should not take the view that she did not apply the correct test unless this appears clearly from what she has written".
I accept the correctness of the principle that reasons of an administrative decision maker should be read broadly, and as in this case where the delegates are not lawyers should be given "a beneficial construction".
I accept that the delegates' reasons at para 7 set out the task required of them under s 150, and the delegates again correctly restated their role in para 77 of their reasons.
The submissions of the Council point out that the delegates observed that public interest, in the context of the National Law as "involving several factors including the reputation and standing of the profession, the need to maintain public confidence in the profession and in the administration of the National Law". Reference is made to paras 71, 72, 76 and 81 of the delegates' decision. Particular emphasis is placed on the delegates' conclusions in respect of domestic violence in paras 73, 76 and 81. I accept the correctness of that submission.
The submissions on this topic at para 53 are as follows: In the light of these facts, it was not an error for the delegates to ask whether - as a relevant aspect of the public interest - the Appellant's conduct accorded with the public interest of community expectations and whether the Appellant's conduct was such that a suspension was required to safeguard public confidence in the integrity of the medical profession.
It is clear from other decisions of delegates considering matters under s 150 that the disputed questions posed in the reasons in this case have been used in other decisions as a "template" (see for example Coutinho). The use of standard paragraphs is not uncommon in administrative decision making. The use of a verbal formula was referred to by the plurality in the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Yiang as follows: A statement of reasons for a decision reviewable under the ADJR Act is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions. If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision. On the other hand, if a decision-maker uses the formula to cloak the decision with the appearance of conformity with the law when the decision is infected by one of the grounds of invalidity prescribed by the Act, the incantation of the formula will not save the decision from invalidity. In such a case, the use of the formula may even be evidence of an actionable abuse of power by the decision-maker. As the significance of the formulae employed by the respective delegates of the Minister in making their decisions in the present cases was not canvassed before us, we say no more about it.
In this case the "formula" is the two questions which do not accurately reflect the statute. Thus, the question is whether the delegates' reasoning reflects the requirements of the statute, rather than the fact they pose inaccurate questions albeit one as a "subsidiary" question.
In FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 Thawley J found potential error when the delegate, although correctly stating the test set out in a Direction, then omitted the word "generally" (which appeared in the direction) when reaching a conclusion. Before his Honour, it was submitted that the delegate's reasoning was "mere loose language" and should be understood as referring back to the earlier (correct) statement of the relevant clause. His Honour found it was "finely balanced" but ultimately concluded that he was not satisfied on this point that the delegate misapplied the relevant clause. He commented however "it is both unfortunate and the cause of my considerable hesitation that, when the Tribunal came to apply the test, it expressed it incorrectly". However in respect of another part of the decision which used what was asserted by the respondent to be "at the most loose language" was rejected because the delegate misunderstood and misapplied the relevant clause.
In this case I am satisfied that the delegates, at para 7 of their reasons, did correctly enunciate the task they were required to undertake under s 150 before they posed the questions they considered would answer that task. They did not directly pose a question relevant to the health and safety of the public, but that issue was indirectly addressed by the question "What are the circumstances of Dr Steel's criminal charges" and "Is Dr Steel impaired".
No criticism is raised of the delegates' consideration of the first limb of s 150. It is clear from the delegates' reasons, particularly after they viewed the police video interviews, and had regard to the practitioner's past history, they conducted a risk assessment and found the practitioner's lack of insight at the time, his alcohol use in the past and immediately before the incident, and his current alcohol consumption presented a risk to the health and safety of the public. Although not expressed in terms of "unacceptable risk" it is clear from the delegates' reasons at para 80 they did not conclude the risk to the health and safety of the public was "acceptable".
There is also no doubt that the delegates considered the question "What is the public interest". That consideration included reference to "the operation and management of the health system as a whole". The reference to this factor infers the delegates were aware of matters relevant to patient needs. I also take into account in dealing with these grounds the delegates' careful recording of the submissions of the practitioner's lawyer about the "catastrophic professional and personal outcomes" from an adverse decision. While the delegates did not emphasise the difference in private interests and those of the public, bearing in mind that the delegates are not legally qualified, their explanation of what is encompassed by "the public interest" in the context of the National Law in the factual circumstance before them, in my view, provides an adequate summary of the topic.
The crux of this ground of appeal is, whether or not, by directing themselves to the question of whether the practitioner's practice of medicine accorded with the public interest that they misunderstood their statutory task. Like Thawley J, in FCYF v Minister for Home Affairs (No 2) this aspect of the appeal (and Ground 3 where s 150 (2) is misstated) is finely balanced.
Ultimately, reading the delegates' reasoning overall I conclude they did substantially address the well-recognised aspects of public interest, albeit that they did so, in part or as a subsidiary aspect of their consideration, in the context of the practitioner's behaviour. The reasoning indicates that they placed significant and appropriate weight on the general public concern about domestic violence and in particular violence associated with alcohol. The reasons also convey the delegates' view that they found the practitioner's conduct did not accord with the standard of behaviour expected of a medical professional. This conclusion links with their earlier discussion of the qualities and standards the public expects of medical practitioners. Thus, I conclude when the delegates' discussion under the heading "What is the public interest" is read in conjunction with their reasoning under the heading "Does the practitioner's practise accord with the public interest" that they have considered whether it was "otherwise in the public interest" to take action under s 150 (2). Thus I am satisfied Ground 2 is not established.
As noted above, there is substantial overlap between the matters relied on to support Ground 2 and Ground 4.
I am satisfied that the task with which delegates are entrusted under s 150 (1) is an "evaluative" risk assessment based on the evidence before them which must be focussed entirely on whether they are satisfied it is appropriate to protect the public or otherwise in the public interest to suspend or impose conditions on a practitioner's registration.
In this case I am satisfied the delegates' reasons disclose they undertook that task and determined there was a risk that required action, namely suspension. The reasons disclose that they: 1. evaluated the evidence about the practitioner's alcohol consumption both on 13/14 December 2019, his probable intoxication on the morning of 14 December 2019 by reference to the police videos and his history of alcohol use. They assessed that he may be impaired and as such present a risk to the health and safety of the public; 2. evaluated the evidence about arrangements for patient care and safety on the night of 13/14 December and recorded that satisfactory arrangements were lacking. This finding supported a conclusion that the practitioner failed to meet the high standards expected of a specialist practitioner; 3. concluded that the practitioner described a "significant drinking pattern that could result in his unavailability to attend his numerous private patients should the need arise". This too supported a finding the practitioner may be a risk to the health and safety of the public; 4. carefully recorded the submissions made on behalf of the practitioner that an "adverse outcome" would have a "catastrophic professional and personal outcomes"; 5. formed the view the criminal charges the practitioner was facing were serious particularly because of the involvement of a family member, that he showed a lack of insight into the incident which involved alcohol and his action would be considered "unacceptable" by the public; and 6. had regard to the fact that alcohol related domestic violence is recognised as a matter of public concern in the Australian community, and that this public interest criteria is one of which the practitioner himself is well aware by reason of his public statements in respect of NSW's lock out laws.
An overall reading of the delegates' reasons discloses that they did undertake an evaluation or risk assessment of matters relevant both to the health and safety of the public, and significant matters relevant to the public interest. I am not satisfied the delegates erred in their task by considering, on the evidence before them, that the practitioner's behaviour, which resulted in the criminal charges, required action in the public interest. His behaviour, on the evidence available to the delegates, did not accord with the high standards expected of medical professionals. I am not satisfied that Grounds 2 and 4 are established.
In reaching this conclusion I make two observations. First, I turn to the submission that the delegates in posing the questions they did committed error because they failed to consider an aspect of public interest by not referring to the impact on patients of the loss of services of the practitioner. I am satisfied the delegates were conscious of this factor. They specifically referred to the submissions of the practitioner's lawyer but significantly reached a conclusion that patients could be a risk because of the practitioner's "daily drinking pattern". I accept there will be cases from time to time brought under s 150 where the loss of a medical practitioner's skills or services, if suspended, may be relevant to the question of "otherwise in the public interest" such as a sole practitioner in an isolated rural area. Even in these circumstances matters relevant to the health and safety of the public must be the delegates' paramount consideration (see s 3A of the National Law). It appears to me that while it may have been useful for the delegates to record their response to the submission recorded at para 65 of their reasons, it was not material that they do so particularly given their conclusions at para 80. This aspect of the practitioner's submissions appears to constitute an "over-zealous" examination of the reasons. The reasons, read as a whole, disclose why the delegates were satisfied it was appropriate to take the immediate action they did.
Secondly, it must be remembered that s 150 proceedings are by their very nature conducted often with limited and untested evidence on an urgent basis. In these circumstances the reasons given for a decision will usually focus on the significant matters relevant to the decision and are not to be construed as if a curial judgment. The National Law provides a right for a practitioner to review the decision under s 150A, and to have a hearing de novo under s 159 when fresh or additional evidence may be adduced. Further the Council may under s 150C itself review an order made under s 150.

Ground 3

This ground asserts the delegates also misunderstood what was the "Statutory Task" before them to be first to consider whether the practitioner's registration should be suspended and then and only if they considered the practitioner's registration should not be suspended, to consider whether there were conditions that could be imposed.

The practitioner's submissions

In support of this ground the practitioner's senior counsel in his written submissions advances the argument that the delegates' reasons demonstrate that suspension was "foremost in the Delegates' minds and that no real consideration was given by them to imposition of Conditions on Dr Steel's registration rather than Suspension".
It is further submitted that, at para 62 of their reasons, the delegates refer to the imposition of conditions however, it is then submitted "there is nothing in the Delegates' reasons to suggest that they gave any consideration to the imposition of a condition addressed to this matter" (that the practitioner may have an impairment related to alcohol abuse). It is submitted "it (alcohol abuse) being a subject that is regularly dealt with by way of conditions or undertakings concerning EiG testing".

The Council's submissions

The submissions of counsel for the Council focus on the delegates' reasons being read as a whole and note that it is apparent from para 4 of the reasons the action which may be taken is set out in the alternative. It is submitted that "[t]he language is not consistent with a contention that the delegates misconstrued the effect of s 150 as being to require suspension as the first option to be considered, or that there was a rigid hierarchy in place". It is submitted that the words "if not" in para 8 "should not be fastened on in isolation".
It is secondly submitted that s 150 (1) provides if the Council is satisfied under either the first or second limb that it is appropriate to take action then it is mandatory for the Council to take whichever action is deemed appropriate (either suspend or impose condition/s). The submissions conclude: If, as here, the Respondent is satisfied that it is appropriate to take a particular action (here, suspension), then it has reached the requisite state of satisfaction and need go no further.

Consideration - Ground 3

As noted earlier, there is no doubt that the question posed by the delegates does not correctly reflect the language of s 150 (1) (a) and (b) and is wrong. If the reasons did not otherwise disclose that the delegates were aware they could impose a suspension or conditions, then I discern that there was legal error.
However, it is clear that in para 4 of their reasons the delegates correctly recorded the National Law "provides for the Council to impose conditions on or to suspend the registration of a medical practitioner for the protection of the public or generally in the public interest" [my emphasis].
The delegates consider and reject the practitioner's lawyer's submissions in respect of the decisions of Reid and Coutinho at para 77 when they again correctly state what is required under s 150. It is noteworthy that the practitioner's lawyer's submissions in respect of Reid and Coutinho are found in para 63 of the reasons and clearly relate to the submission in para 62 in respect of conditions. I am satisfied therefore that the delegates were well aware they could, if appropriate, impose conditions on the practitioner's registration, including the type of condition for which the practitioner's lawyer advocated rather than suspension.
In paras 79, 80 and 81 of their reasons the delegates clearly enunciate the matters they considered warranted the suspension of the practitioner's registration namely the practitioner's lack of insight into how his actions may have contributed to the domestic violence incident including involvement of a family member, that he may have an impairment, the public interest by way of the "serious pervasive concern" in Australian society about domestic violence and particularly violence associated with alcohol, and the fact that medical professionals are held to a high standard of behaviour.
Notwithstanding the error in the question the delegates posed, I am satisfied that in the body of their reasons the delegates accurately set out the terms of s 150 (1) (a) and (b). Further, from an overall reading of the reasons, it is clear that they considered and rejected the practitioner's lawyer's submission that an appropriate outcome was the imposition of conditions. The delegates clearly articulated why they considered it appropriate to suspend the practitioner's registration. For these reasons, I do not find Ground 3 is established.

Ground 5

This ground asserts that the outcome (suspension) of the practitioner's registration was legally unreasonable and not a valid decision. The particulars in support of this ground also refer to the Tribunal's decision in Coutinho.

The practitioner's submissions

Attention is drawn in the practitioner's submissions to the decision of the Full Court of the Federal Court in Minister for Border Protection v Singh [2014] 231 FCR 437. It is submitted in reliance on that authority that the suspension of the practitioner's registration does not "fall within a range of possible, acceptable outcomes which are defensible in respect of the fact and law and that the suspension decision is 'not within the bounds of reason'".
The submissions then rely on the decision in Coutinho and in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177.
In his supplementary submissions dated 8 July 2020 the practitioner's senior counsel refers to the decision in Holt v Dental Council of New South Wales [2020] NSWCATOD 62 at [149] and following where the presiding Member steps out the steps he proposes to take to determine the appeal under s 159B and refers to relevant caselaw on unreasonableness.

The Council's submissions

The Council's submissions note that the question of legal unreasonableness is concerned with the "the legality of government action, rather than its correctness" (see Essendon Football Club v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2014] FCA 1019; (2014) 227 FCR 1 at [250]). It is further noted that in DOU16 v Minister for Home Affairs [2019] FCAFC 212 the Full Court of the Federal Court at [40] explained that the threshold for a finding of legal unreasonableness is high.
The submissions refer to the decision of the High Court in Minister for Immigration v Li (2013) 249 CLR 332 where the court deals with the nature of unreasonableness as a basis for judicial review. It is submitted: …the Appellant cannot impermissibly seek to use this ground of review to attack the merits of the decision to make a suspension decision (including as opposed to imposing conditions)
The submissions go on to advance the proposition that what the practitioner is seeking to do by this ground is a "veiled merits review". The submissions, at para 84, assert that the delegates' reasons "evince a clear basis for the decision to suspend [the practitioner's] registration".
The submissions summarise the key principles enunciated in Minister for Immigration & Border Protection v Eden [2016] FCAFC 28 at [58]-[65] of what is encompassed by the modern concept of unreasonableness.
In their supplementary submissions, counsel for the Council respectfully submit that "the reasoning in Holt does not relevantly add to the relevant jurisprudence to be applied by the Tribunal in the present proceedings".

Consideration - Ground 5

I commence my consideration by referring briefly to the two Tribunal decisions relied on in support of this ground. First, I note this is an appeal of a point of law, not a merits review or a hearing de novo as is an appeal under s 159 of the National Law.
Even if the delegates had regard to the two decisions, they were not bound to follow those decisions. As explained earlier in these reasons, the delegates' task was one of evaluation of risk. Although each case cited in the practitioner's submissions involved domestic violence charges, other matters make them readily distinguishable from the facts before the delegates. It is of note that the decision in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 involved disciplinary proceedings under Part 8 of the National Law, not an immediate action decision under s 150. In Coutinho the practitioner was a dentist charged with similar charges to the practitioner, but where no issues of the health and safety of the public were involved. I have already referred to the multiple conclusions of the delegates which led to them determining the appropriate action was a suspension of the practitioner's registration. They were not solely focussed on the domestic violence charges. Those charges formed but one aspect of the delegates' decision making.
I am satisfied notwithstanding the wrongly posed questions that there was a lawful exercise of power by the delegates, that their decision was one within the bounds of legal reasonableness (as explained in Eden) and that the reasons for their decision are adequately explained. The reasons could not be described as "plainly unjust", "arbitrary", "capricious", "irrational", "lacking in evident or intelligible justification" and "obviously disproportionate".
Further, I agree with and adopt, counsel for the Council's submissions as to the relevance of the decision in Holt v Dental Council of New South Wales to the facts in this appeal. I note that the authorities on unreasonableness set out in that decision are also ones to which I was referred and discuss earlier in these reasons.
I am accordingly satisfied that Ground 5 is without merit, and that the appeal on Points of Law must be dismissed. In arriving at my decision in respect of this appeal, I note that it is now over four months since the s 150 proceedings, and that the criminal charges will have been heard. No doubt the practitioner will rely on fresh or additional evidence in respect of his de novo appeal under s 159. I further note that the practitioner is not precluded from seeking a review of the delegates' decision under s 150A. In that regard I note what is said by the Court of Appeal in Ghosh v Medical Council of New South Wales about appeal rights from that provision, a position which is consistent with the position advanced by the Council before me.

Costs

Both parties sought orders in respect of costs in the event the outcome of the appeal was as they respectively advanced. The principles relevant to proceedings under the National Law in respect of costs are clear and unambiguous (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342).
The practitioner has been unsuccessful in the appeal. I was not directed to any special or exceptional circumstances that require departure from the usual rule that costs follow the event. Accordingly, I will make orders that the practitioner pay the Council's costs of and incidental to the proceedings as agreed and failing agreement as assessed.

Orders 1. The appeal under s 159B of the Health Practitioner Regulation National Law is dismissed. 2. Dr Timothy Robert Steel shall pay the costs of the Medical Council of New South Wales of and incidental to the appeal as agreed and failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

ANNEXURE A - Amended Notice of Appeal A Section 150 Hearing was held before three Delegates of the Medical Council on Tuesday 11 February 2020. On this day the Delegates suspended Dr Steel's registration as a Medical Practitioner under Subsection 150(1) of the Health Practitioner Regulation National Law (NSW) No 86A ('NSW National Law'). On 28 February 2020, the Delegates provided written reasons for decision ('Delegates' Reasons'). We attach a copy of the Delegates' Reasons with paragraph numbering added (Attachment 1). Dr Steel appeals under Section 159B and Section 159 of the NSW National Law against the decision of the Medical Council to suspend his registration as a medical practitioner under Subsection 150(1). Background Dr Steel is a specialist Neurosurgeon. Dr Steel became a Fellow of the Royal Australasian College of Surgeons ('RACS') in Neurosurgery in 1996. Dr Steel has a subspecialty in spine surgery. Prior to his suspension, Dr Steel carried out neurosurgery at St Vincent's Private Hospital and until recently also at St Vincent's Public Hospital. Following an incident on 14 December 2019, Dr Steel was charged with three offences: (1) Assault Occasioning Actual Bodily Harm, domestic violence related (subsection 59(1) of Crimes Act 2000) concerning his wife; (2) Common Assault, domestic violence related (subsection 61 of Crimes Act 2000) concerning his [family member]; and (3) Destroy or Damage Property less than or equal to $2000 (subsection 195(l)(a) of Crimes Act 2000), concerning Mrs Steel's iPhone. The matter has been set down for hearing in the Local Court on Friday 6 March 2020, Friday 27 March 2020 and Monday 30 March 2026t The Local Court hearing commenced on Friday 6 March 2020 and is part heard. It has been listed for hearing on 29 and 30 June 2020. Dr Steel reported his being charged to the Medical Council of New South Wales Australian Health Practitioner Regulation Agency. Dr Steel's Grounds of Appeal under Section 159B - Point of Law The Grounds of Dr Steel's Appeal are as follows: Disregarding the Tribunal's Decisions 1. The Delegates erred in proceeding on the basis that they would 'make no comparisons to previous case law' and in regarding themselves as entitled to disregard 'decisions overturned on appeal' (para 78) particularly when, in submission, they were taken to a comparable case decided by the Tribunal, being Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98. The Delegates wrongly regarded themselves as entitled to disregard the Tribunal's decision in Coutinho. Particulars See pars 63, 77 and 78 of the Delegates' Reasons. See Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98, in particular pars 8 and 9, 24 and 25 and 47 to 54. Mistaking the statutory task - It is not whether the practitioner's conduct accorded with the public interest but whether action by the Delegates was appropriate in the public interest 2. The Delegates mistook what was the statutory task before them under Section 150 of the NSW National Law in treating the question to be addressed as whether the practitioner's conduct accorded with the public interest (para 81) rather than whether action by the Delegates (suspension or imposition of conditions) was appropriate in the public interest. Particulars In para 7, the Delegates said that one of the 'subsidiary questions' that they must answer was 'iv. Does the practitioner's practise accord with the public interest?' Then in para 81 the Delegates said that they 'formed the view that Dr Steel's actions do not accord with the public interest.' The Delegates' statutory task was to consider whether they were satisfied that taking action (suspending Dr Steel or imposing conditions) was 'otherwise in the public interest' (Subsection 150(1) of the NSW National Law). Suspension first, then, if not Suspension, consider Conditions 3. The Delegates also mistook what was the statutory task before them under Section 150 of the NSW National Law, in that the Delegates took their task to be first to consider whether Dr Steel's registration should be suspended and then, only if they considered that Dr Steel's registration should not be suspended, to consider whether there were conditions that could be imposed. Particulars In para 8, the Delegates said 'we must consider the following questions': 'v. Is it appropriate that Dr Steel's registration be suspended? vi. If not, are conditions that could be imposed to minimise that risk?' Failing to consider relevant matters concerning whether taking action was appropriate in the public interest 4. If the Tribunal holds that the Delegates addressed the question whether action was appropriate in the public interest (contrary to ground 2 above), the Delegates also erred in failing to consider matters relevant to whether action was appropriate 'in the public interest'. Particulars i) The Delegates, in para 67 of the Delegates' Reasons, referred to their considering the following matters in their consideration of the public interest, including: '... the reputation and standing of the medical profession, the need to maintain public trust and confidence in the profession, and the need to maintain public trust and confidence in the administration of the Health Practitioner National Law (NSW) and the operation and management of the health system as a whole. ii) In disregarding the Tribunal's decision in Coutinho the Delegates disregarded the Tribunal's statement concerning the balancing that should be involved in the statutory task: 'Determining whether the public interest requires a suspension of a professional's registration involves a balancing of matters including the nature of the offence, whether the conduct giving rise to the offence would lead to the erosion of confidence by the public or patients in the relevant profession, as against the draconian nature of the suspension and its impact on the professional involved and his or her patients.' iii) The delegates did not engage in the proper statutory task of balancing the various matters to be considered as part of the public interest. The delegates erred in failing to consider the draconian nature of the suspension, and the impact on Dr Steel and his patients. The delegates erred in failing to properly consider the public interest in having a highly qualified neurosurgeon providing services to his patients. The Outcome was Legally Unreasonable 5. The outcome whereby the Delegates made the Council's Suspension Order on Dr Steel's registration was an outcome that was legally unreasonable and not a valid decision. Particulars i) At the time of the Delegates' Section 150 Hearing, Dr Steel had been charged with three offences arising in connection with an incident on 14 December 2019 involving Dr Steel's [family members]. Dr Steel contests the offences with which he has been charged. ii) In the case of Coutinho v Dental Council of New South Wales [2018] NSWCATOD 98. Dr Coutinho had been convicted of the offence of Assault Occasioning Bodily Harm arising in a domestic violence situation with his then wife. The Dental Council Suspended Dr Coutinho's registration. The Tribunal, in an appeal by way of new hearing under Section 159 of the NSW National Law, allowed Dr Coutinho's appeal and set aside the Dental Council's Order Suspending Dr Coutinho's registration. iii) In the case of Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177. Dr Haasbroek (a General Practitioner) had been found (1) guilty of Assault Occasioning Actual Bodily Harm in a domestic violence incidence with his then wife on 15 July 2011; (2) had an Apprehended Violence Order (Domestic) made against him naming his wife and three children as the protected persons arising out of events on 4 February 2015: (3) was convicted of Common Assault. Contravention Prohibition or Restriction in Apprehended Violence Order (Domestic), and Stalk or Intimidate with Intention to Cause Fear of Physical Harm arising out of a verbal and physical altercation with his wife on 16 June 2015: and (4) Dr Haasbroek was convicted of Contravene Prohibition or Restriction in an Apprehended Violence Order (Domestic) arising out of text messaging on 30 and 31 May 2016. The Tribunal in proceedings where the HCCC sought to have Dr Haasbroek's registration Cancelled, made an Order reprimanding Dr Haasbroek. iv) In the case of Lee v Medical Council of NSW r20171 NSWCATOD 132. Dr Lee was subject to nine criminal charges: two of the charges related to contravention of an Apprehended Domestic Violence Order; one was based on an allegation of stalking and intimidation: and another six related to the use of a carriage service to menace/harass/offend. The Medical Council Suspended Dr Lee's registration under Subsection 150(1) of the National Law. The Tribunal Stayed the Medical Council's Order (under Subsection 44(3) of the NCAT Act) which was held by the Court of Appeal to not be a power available to the Tribunal in Section 159 Appeals (New Hearing). v) The outcome in Dr Steel's case, whereby his registration has been Suspended, is beyond the reasonable exercise of power and not valid. The Orders sought in Dr Steel's Appeal under Section 159B (Point of Law) are: 1. The Medical Council's Order Suspending Dr Steel's registration be set aside under paragraph (b) of Subsection 159C(1) of the NSW National Law. 2. The Medical Council pay Dr Steel's costs. Dr Steel's Grounds of Appeal under Section 159 - New Hearing Dr Steel also appeals under Section 159 of the NSW National Law. Under Subsection 159(3) of the NSW National Law the proceeding before the Tribunal 'is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.' Dr Steel intends to put substantial evidence before the Tribunal that was not before the Delegates. The Orders sought, and the Grounds of Appeal under Section 159 are as follows: 1. The Tribunal set aside the Medical Council's decision to suspend Dr Steel's registration under Subsection 150(l)(a) of the NSW National Law. 2. The correct and preferable decision is that the Tribunal would not be satisfied under Subsection 150(1) that action is appropriate for the protection of the health or safety of any person or persons or that action is otherwise in the public interest. • 3. In the alternative, the correct and preferable decision is that the Tribunal would be satisfied that suspension is not an appropriate action as conditions could be formulated to appropriately address any risk to the health and safety of any person or persons, or the public interest. 4. The Medical Council pay Dr Steel's costs. Thursday 5 March 2020 Monday 11 May 2020

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2020

Medical Practice Act 1992(NSW)

Q Super Board v Australian Financial Complaints Authority Limited [2020] FCAFC 55 Reid v Medical Council of NSW [2014] NSWCATOD 152 Saedlounia v Medical Council of New South Wales [2015] NSWCATOD 53 Wu Shan Liang v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 432 Category: Principal judgment Parties: Dr Timothy Robert Steel (Appellant) Medical Council of New South Wales (Respondent) Representation: Counsel: K Connor SC (Appellant) K Richardson SC with D Forrester (Respondent)

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