WANIGARATNE v. HEALTH CARE COMPLAINTS COMMISSION [2000] NSWCA 204

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40423/99 MT 40031/98

HANDLEY JA POWELL JA HEYDON JA

2 POWELL JA: This is an appeal brought pursuant to the provisions of s.90(1) of the Medical Practice Act 1992 ("the Act") from a Judgment delivered and Orders made on 14 May 1999 by the Medical Tribunal (Taylor DCJ (Deputy Chairperson) and Members) following an inquiry into a complaint which had been lodged with the Medical Tribunal by the Health Care Complaints Commission ("the Respondent") pursuant to the provisions of ss. 51, 52 of the Act. 3 By that complaint (Blue AB 223), notice of which was given by the Tribunal to the Appellant by notice dated 5 November 1998 (RAB 1-2), the Respondent charged that the Appellant being a person previously registered as a medical practitioner under the Act (see Act s.40): "(Had) been guilty of professional misconduct and unsatisfactory professional conduct within the meaning of sections 36 and 37 of the Act (in that he had showed) a lack of adequate judgment and care in the practice of medicine and been guilty of improper and unethical conduct relating to the practice of medicine."

particulars of which conduct I will refer to later. 4 The orders which were made by the Tribunal (see RAB 19) were:

1. that the name of the Appellant - whose registration as a medical practitioner, as is apparent had, by that time, lapsed in circumstances to which I will later refer - not be re-registered upon the register of medical practitioners in this State (see Act s.64(2));

2. pursuant to s.64(3) of the Act, that an application for review of that order not be made until the expiration of a period of twelve months from 14 May 1999; and

3. that the Appellant pay the costs of the Respondent of and incidental to the hearing of the complaint. 5 In order that one might understand the circumstances which led to the making of the complaint, and the orders which were made by the Tribunal following its inquiry into the complaint, it is necessary that I provide a more extended statement of the facts than might otherwise have been the case. 6 The Appellant, who is now aged sixty-three years of age, is a native of Sri Lanka where in December 1966 he graduated with degrees of Bachelor of Medicine and Bachelor of Surgery. Following graduation the Appellant was employed as a Resident Medical Officer for a little over a year, then as a District Medical Officer in charge of a hospital of eighty-five beds, then as a Medical Officer of Health for a period of two years following which he engaged in general practice for the better part of four years. 7 Although it is not entirely clear, it would seem (Blue AB 330, 332-334) that, in 1977, the Appellant moved to England with a view to obtaining qualifications in psychiatry. When he did so, he obtained full registration as a medical practitioner with the General Medical Council in England, that registration being obtained in May 1977. That having been done, the Appellant underwent clinical assessment for a period of one month in March and April 1978 following which, over a period of about six years, the Appellant held various hospital appointments in the course of which, in December 1980, he obtained a Diploma of Psychiatric Medicine from the Royal College of Physicians of England and the Royal College of Surgeons of England and, in November 1982, he was admitted as a member of the Royal College of Psychiatrists, London. 8 Since it has a bearing on the circumstances in which the Appellant later came to be registered in this State, it is convenient to record, here, that, during the course of the hearing of the appeal (T. 18), we were informed that the specialist qualifications which were obtained by the Appellant while he was in England are not recognised by the relevant specialist accreditation bodies - such as the Royal Australian and New Zealand College of Psychiatrists - in Australia. 9 In September 1985, the Appellant moved to New Zealand to take up the position of Consultant Psychiatrist and Director of Psychiatry at Gisborne Psychiatric Hospital, a hospital having twenty-five admission beds with an admission rate of over two hundred per year, together with a day hospital with fifteen day places and, as well, providing a community psychiatric service in such areas as general adult psychiatry, drug and alcohol addiction, organic brain syndrome, psychogeriatrics, child psychiatry and the like. When taking up that position, the Appellant was registered as a specialist by the Medical Council of New Zealand. 10 During the period of the better part of six years while he held his appointment as Director of Psychiatry at Gisborne Psychiatric Hospital, the Appellant - seemingly during periods of study leave - held positions of Locum Consultant in Psychogeriatrics to the Department of Mental Health, St. James Hospital, Hereford, England (November 1987-January 1988) and Locum Consultant in Forensic Psychiatry for the Forensic Psychiatry Services, Auckland, New Zealand (January 1990-March 1990). 11 In June 1990, the Appellant moved to Australia to take up the position of Director of Clinical Services and Medical Superintendent of Kenmore Hospital, Goulburn. In order that he might take up that position, the Appellant sought to be registered by the New South Wales Medical Board ("the Board"). On 4 June 1990 (see Blue AB 224), the Appellant was first conditionally registered as a medical practitioner in this State with the following conditions: "1. That he work only as Director of Clinical Services at Kenmore Hospital. 2. That he not work in any locum positions outside the Hospital. 3. Registration is renewable annually."

12 Given the nature of the Appellant's registration, it is convenient, here, to record the following provisions of the Medical Practitioners Act 1938 - repealed as from 1 July 1993 by the Medical Practice Act 1992 - which, in 1990, dealt with registration and the qualifications for registration of medical practitioners within this State. They were as follows: "FULL ENTITLEMENT TO REGISTRATION 15(1) Subject to section 18(3), a person is entitled to be registered pursuant to this section if: ……… (b) he has the prescribed experience; and (c) he satisfies the Board that he is of good character. ……… (4) For the purposes of sub-section (1)(b), a person has the prescribed experience if (a) the Board is satisfied that he has, for a period of at least 12 months, or for periods amounting in the aggregate to at least 12 months, satisfactorily served as a medical officer: …….. (iii) in one or more private hospitals or institutions (whether in New South Wales or elsewhere) approved by the Board, and that he has, as such a medical officer had a satisfactory medical experience during a period of at least 6 months, or during periods amounting in the aggregate to at least 6 months and satisfactory surgical experience during a like period or periods; …….. LIMITED ENTITLEMENT TO REGISTRATION 16. Subject to section 18(3), a person is entitled to be registered pursuant to this section if: (a) he has passed through a regular graded course of study of 5 or more years' duration in a school of medicine elsewhere than in New South Wales, not being a school of medicine associated with any of the universities, colleges or other bodies listed in Schedule 1 or a school of medicine accredited for the time being by the Australian Medical Council for the purpose of registration; (b) he is the holder of a degree of diploma that certifies to his ability to practice medicine, granted after due examination by the university, college or other body with which the school of medicine at which he passed through a course of study referred to in paragraph (a) is associated, being a university, college or other body which is recognised, in the country, State or Territory in which the school is situated, for the purpose of granting the degree or diploma. (c) the person: (i) has obtained results satisfactory to the Board in an examination conducted by the Australian Medical Council; or (ii) satisfies the Board that the person should not, for the purpose of being entitled to be so registered, be required to be so examined or should not be required to obtain those results; (d) he: (i) is domiciled in New South Wales; or (ii) satisfies the Board that he should not, for the purpose of his being entitled to be so registered, be required to be so domiciled; (e) he has a knowledge of the English language that, in the opinion of the Board is adequate for the practice of medicine in New South Wales; (f) he has the prescribed experience within the meaning of section 15(1)(b); and (g) he satisfies the Board that he is of good character. …….. REGISTRATION 21(1) Where, after it has considered an application for registration and the inquiry, if any, into the application has been held, the Board determines that the applicant: (a) is entitled to be registered pursuant to ss, 15,16 or 17(c) or (d) - the Board shall register the applicant subject to such conditions, if any, as the Board imposes upon his registration under subsection 3. ……… (3) Where the Board registers a person: (a) subject to ss. 16 or 17(d) - it may under this paragraph, impose upon his registration such conditions relating to the duration of his registration as it considers appropriate; or (b) pursuant to ss. 16 or 17(c) or (d) - it may, under this paragraph, impose upon his registration such other conditions (being conditions relating to his practising medicine) as it considers appropriate."

(As to the operation of ss. 15, 16, see Opara v. New South Wales Medical Board (1986) 6 NSWLR 544 ).

13 Those provisions of the Medical Practitioners Act 1938 have been replaced by the following provisions of the Medical Practice Act 1992: "CONDITIONAL REGISTRATION AT THE DISCRETION OF THE BOARD 7(1). The Board may register a person as a medical practitioner under any of the following provisions and may impose such conditions on that registration as the Board thinks appropriate: ……… D. UNMET AREAS OF NEED A person may be registered for the purpose of enabling an unmet area of need to be met if the Board is satisfied that the person has suitable qualifications and experience to practise medicine in that area of need. E. RECOGNISED SPECIALIST QUALIFICATIONS AND EXPERIENCE A person may be registered if the Board is satisfied that he or she has specialist qualifications and experience in medicine recognised by the relevant Australian specialist college or institution and registration is for the purpose of enabling him or her to practice within that speciality. ……… G. TEMPORARY REGISTRATION IN THE PUBLIC INTEREST A person may be registered on a temporary basis if the Board is satisfied that it is in the public interest to do so. ……… APPLICANTS MUST BE COMPETENT AND OF GOOD CHARACTER 13. The Board must not register a person as a medical practitioner unless satisfied that the person: (a) is competent to practise medicine (that is, the person has sufficient physical capacity, mental capacity and skill to practise medicine and has sufficient communication skills for the practice of medicine, including an adequate command of the English language); and (b) is of good character."

14 Given the Appellant's limited entitlement to registration when he came to this State in June 1990, and the conditions imposed on his registration, which conditions were continued after the coming into operation of the provisions of the Act , and given that the Appellant's specialist qualifications in psychiatry were not recognised by the Royal Australian and New Zealand College of Psychiatrists, it seems tolerably plain that the Appellant's initial registration was granted, and that it was thereafter continued, because the Local Area Health Service had been unable otherwise to recruit a person with qualifications which fitted him or her to fill the position which the Appellant took up at Kenmore in June 1990. 15 In a statement (Exhibit 1 - Blue AB 225), which was tendered on the hearing before the Medical Tribunal, the Appellant said that, when he took up his position at Kenmore Hospital he was the only full-time psychiatrist on staff, other psychiatrists who worked at the hospital all being Visiting Medical Officers who came from such other areas as Queanbeyan, Wollongong and Bowral. Although, after about six months, another psychiatrist, Dr. Naidoo was employed on a full-time basis and remained until 1995, he (Dr. Naidoo) then left to work in Sydney leaving the Appellant as the only full-time psychiatrist at the hospital. 16 In the same statement the Appellant said that, when he first went to Kenmore Hospital, the number of beds in the hospital was 250, that number being reduced over time to about 100 "as a consequence of the mental health policy then in force" - I assume this to be a reference to the coming into force of the provisions of the Mental Health Act 1990, and, in particular, the provisions of Chapter 6 - Care and Treatment Outside Hospitals - of that Act. The reduction in the number of beds at the hospital, so the Appellant said, led to an associated reduction in nursing staff numbers and a reduction in medical staff. This, so the Appellant said, led to him, after the departure of Dr. Naidoo, being on call twenty-four hours per day, seven days a week, for the hospital. As from 1996, so the Appellant said, in addition to holding the positions of Director of Clinical Services and Medical Superintendent of the hospital he was also the Director of Community Services - the community mental health team appears to have operated in a clinic which was in close proximity to Kenmore Hospital (Blue AB 180). 17 Although it is not entirely clear, it would seem likely that, at about the time Dr. Naidoo left the hospital, a Dr. Pasha was employed "as CMO, Acting Director of Acute Psychiatric Services Unit and Deputy Superintendent" (Blue AB 135) - but whether on a full-time or only a part-time basis is anything but clear. Dr. Pasha, so it seems, had previously held positions at Royal Derwent Hospital, Royal Melbourne, Parkvale, Royal Park, Wynyard Clinic and Royal Hobart Hospital. By the time when the complaint was dealt with by the Medical Tribunal, Dr. Pasha had become the Superintendent of Kenmore Hospital (Black AB 42). 18 The Appellant's statement contains the following further paragraphs (Blue AB 226): "6. The pressure of work in this period was very significant. Although I was occasionally unwell (with the usual colds and flus) I very rarely ever took sick leave, due to the pressure of work. By the time I left Kenmore Hospital I had accrued 6 months of annual leave. 7. The other background aspect which I should mention are two events involving patient threats and/or violence. The first occurred in May 1996 when I was assaulted by a patient, who was a male client of the Community Health Mental Health Programme. On this occasion the patient hit me in the face, leaving me with a depressed fracture of the right cheekbone and a cut under the right eye. I was treated in relation to this at the Goulburn Base Hospital. This was a very traumatic experience. 8. The second event was in early 1997, about a month before the events the subject of this hearing. A paranoid schizophrenic patient with an extensive history of violent behaviour, who I had treated for many years, had gone off his medication while in the community, relapsed, and had been readmitted. On one occasion when I saw him he told me he was going to 'bring a truckload of explosives' to my house and blow the house and everyone in it up. At the time, I did not take that threat particularly seriously, but the making of the threat did concern me."

19 Some corroboration of the matters referred to in those paragraphs of the Appellant's statement which I have just set out is to be found in some of the material which was placed before the Local Court at Queanbeyan on 29 October 1997 when the charge of assault, which had been laid against the Appellant following the incident which gave rise to the complaint with which the Medical Tribunal was concerned to deal, was dealt with. Thus, in a reference provided by Dr. Mickleburgh, a psychiatrist and one of the Visiting Medical Officers at Kenmore Hospital, the following appears (Blue AB 203): "There has been a chronic shortage of medical staff at Kenmore Hospital for some years and this has placed a heavy burden of duty on Dr. Wanigaratne which he has assumed unselfishly and without complaint. The demand for his almost constant presence 'on call' and his postponement of recreation leave has reinforced the occupational stress almost to the point of 'burn out'. His colleagues have been concerned about the excessive workload imposed on Dr. Wanigaratne. The alleged reaction to assault initiated by a very disturbed patient was unfortunate, completely out of character and, I know, deeply and sincerely regretted by Dr. Wanigaratne. I would regard it as an aberration triggered by his work stress."

while in a reference provided by Mr. Fitzsimmons, a Registered Nurse, the following appears (Blue AB 202): "I have worked in the field of mental health nursing as a Registered Nurse since 1983 and have had extensive experience in both community and hospital based settings. I have worked closely with Dr. Wanigaratne both in his position as Medical Superintendent of Kenmore Hospital and his private practice. ……… There is anecdotal evidence from psychiatric units across NSW that there has been an increase in physical assaults on staff working within acute psychiatric units. Dr. Wanigaratne has had to deal with both physical and verbal abuse during his association with Kenmore Hospital. It can become a significant source of stress knowing your working environment has the potential of threatened or real violence on a daily basis. The decisions Dr. Wanigaratne has to make in regard to treating involuntary hospital patients has often placed him in conflictual situations. He has always placed the interests of patients and others in the community over concerns for his own safety. During 1996 Dr. Wanigaratne was the victim of a vicious assault in his private practice, and during this incident did not make any attempt to retaliate or harm the perpetrator even though he sustained numerous injurious requiring medical attention."

20 The incidents which gave rise to the complaint with which the Medical Tribunal was concerned to deal occurred on 13 March 1997. At about 9.00 a.m. on that day, a psychotic patient, known as Patient A, who, it would seem, had been admitted to the hospital on the previous day, had struck Dr. Pasha in the face when the latter was in the dining room of the Acute Psychiatric Services Unit ("the APSU"). The Nursing Unit Manager ("the NUM"), Sister White, when summoned, sought the assistance of two of the nurses attached to the unit, Nurse Carol Dowling and Nurse Michael Ford. When Sister White, Nurse Dowling and Nurse Ford reached the dining room they joined two other nurses Nurse Jones and Nurse McLaren who had witnessed the assault on Dr. Pasha and who were in the process of escorting Patient A from the dining room. This group then continued through what has been described as the day room towards the specialling unit - which appears to be the place for treating those who have exhibited aggression or more severely acute illness and within which appears to have been located a room known as the seclusion room. As the group proceeded towards the specialling unit they were joined, or followed, by two other nurses Nurse Briggs and Nurse Dowling. By the time the specialling unit was reached, Sister White, so it would seem, had left the group. 21 At the time the group reached the specialling unit, the Appellant was inside and standing near the entrance to the seclusion room - he was apparently there for the purpose of assessing another patient. 22 What is said then to have occurred is best recorded in the various written statements which were provided later that day to Sister White to whom Nurse Dowling had apparently reported the incident. The most lengthy of those statements was that of Nurse McLaren which was as follows (Blue AB 63-65): "Following on from an incident in the dining room of APSU, the client (Patient A) was taken to specialling suite to a low stimulus environment for further assessment and management after he made an unprovoked attack on Dr. Pasha, whilst responding to auditory hallucinations. Dr. Wanigaratne was in the specialling suite bathroom when we entered. I walked ahead to ask Dr. Wanigaratne to move away from area as we were attempting to avoid any further distraction of client and to get him into seclusion room quickly without further injury to anyone. The situation was very tense. Dr. Wanigaratne followed me out but spoke, stating he was looking for (Patient B) to assess her. At this point (Patient A) came out of trance-like state - ran to Dr. Wanigaratne with great force and punched Dr. Wanigaratne in the (R) of face throwing him backwards. I was involved with physically restraining (Patient A) with several other staff members who wrestled him to floor. While (Patient A) was being restrained on the floor awaiting back-up support and determination re appropriate PRN medication by Dr. Wanigaratne - he was set upon - grabbed by the hair and kicked several, maybe five, times by Dr. Wanigaratne. Nursing staff who were restraining client were all verbally appealing to Dr. Wanigaratne to stop harming the client; stating 'the client is psychotic and not responsible for his actions - calmly talking to him about consequences of his actions - that we are all professional people and Dr. Wani you don't want to do this'. We couldn't release client to physically console the doctor so we shielded (Patient A) as best we could; whilst also recognising that a crisis - either shock or effects of injury had caused this retalitory (sic) action. We were all concerned re the position we were in - having to ask Dr. Wanigaratne to prescribe medication for the client. Dr. Pasha was indisposed receiving treatment for assault injury himself. I was concerned that no one assessed Dr. Wanigaratne's injuries and he may have needed attention. The circumstances presented placed all nursing staff in the position where technically another doctor should have taken over the treatment of (Patient A) but there was no one else available at the time needed. R.N. Carol Downing (sic) reported the incident to NUM Ann White who in turn called me to her office to substantiate R.N. Carol Dowling's allegation. I continued to complete the legal process of documentation."

Although in less detail, the statements provided by the other members of the nursing staff supported Nurse McLaren. Thus, a statement made by Nurse Briggs at 9.45 a.m. on that day was as follows (Blue AB 1): "At approximately 9.00 a.m., (Patient A) was being walked back into specialling unit, I followed once in the specialling suite (Dr. Wanigaratne who was already in the suite). (Patient A), hit out and hit Dr. Wanigaratne in face. (Patient A) was restrained by staff. Dr. Wanigaratne lashed out at (Patient A) with feet and pulled his hair whilst he was restrained on floor. Was told by staff to stop."

The statement provided by Nurse Dowling at 9.30 a.m. on that day was as follows (Blue AB 15): "At approx. 9.00 a.m. I was informed a client (Patient A) had struck Dr. Pasha in the dining room. I walked toward the dining room to assist & the client was being escorted by staff to the specialling suite. Apon (sic) entering the specialling suite, the client struck Dr. Wangaratne (sic). Staff then restrained the client on the floor. Dr. Wangaratne (sic) kicked the client, pulled the client's hair. I asked Dr. Wangaratne (sic) to stop."

The statement provided by Nurse Ford at 9.30 a.m. that day was as follows (Blue AB 29): "After being told of an altercation which occurred in the dining room APSU between Dr. Pasha & (Patient A) I left the office area to lend assistance. (Patient A) was being escorted to the specialling suite by several female nurses. On entering the specialling suite (Patient A) made a lunge towards Dr. Michael Wanigaratne sustaining (sic) a blow to his face. At this time I attempted to restrain (Patient A), when (Patient A) was restrained on the floor, Dr. Wanigaratne lashed out at (Patient A) with his feet & pulled his hair despite staff requests to stop this action."

The statement provided by Nurse Jones - but at what time is not clear - was as follows (Blue AB 49): "A client of the APSU (Patient A) made a physical attack on Dr. Pasha in the dining room at breakfast. I approached (Patient A) directly after the attack occurring and asked (Patient A) to 'come with me' and he proceeded to follow myself and Sr Colleen McLaren. We led (Patient A) around to the specialling suite with other staff members following. On arriving at the specialling suite Dr. Wanigaratne was near the bathroom area and Sr McLaren walked over towards him. I asked (Patient A) to take a seat on the lounge. There were no lights on in the specialling suite so I went into the office to turn them on. As I turned around and looked through the observation window from the office area I saw that the staff had restrained (Patient A) on the floor and I ran back into the specialling suite. There were four nursing staff members kneeling beside (Patient A), Dr. Wanigaratne lashed out with his foot a couple of times at Patient A's side. The staff members were making requests to Dr. Wanigaratne to stop. He then stepped back away from the patient."

23 In the course of evidence given by him on the hearing before the Medical Tribunal, which evidence was not the subject of any cross-examination, Dr. Pasha who in the course of a fact finding interview held at Kenmore Hospital on 11 April 1997 had made a statement to the similar effect (Blue AB 133), gave the following evidence (Black AB 43-44): "Q: You were subsequently interviewed about that incident and an incident involving Dr. Wanigaratne. Perhaps if you could tell the Tribunal after the assault occurred on you, what happened? A. It was not a sort of a punch on the face, it was not a punch on my face, it was a push with open palm and as you know I am very light weighted, I sort of fell a couple of feet apart and my glasses broke and I was attending to my left eye, I was helped by a nurse and maybe it was about an hour still there when Dr. Wanigaratne came into the room, yes. Q. When he came into the room you were referring to the dining room are you? A. That's right, the canteen actually. Q. Were you doing anything at the time he entered the room? A. I was just sitting down there sort of attending my eye, yeah. Q. What happened then? A. Dr. Wanigaratne came in and he said what happened and I said the patient sort of punched me, it is not a punch it's a push and he said nobody touches me, if somebody touches me I'm murderous, he said, I didn't understand that, he probably meant … Q. Don't worry about what he might have meant? A. That's what he said. Then he went to the corner to make himself a cup of coffee and we do make ourselves some sandwiches there, he went there, I just followed him, just to have a chat with him and he said the same thing again and I said I'm a very weak man, he said I'm also very weak but if somebody touches me, I'll be murderous, I'll be murderous, that's all I know. Q. Did you have an understanding at that point in time that Dr. Wanigaratne himself had been assaulted? A. I had no idea at all because I was in the room all the time. Q. When was it that you found out for the first time that that had happened? A. As you know they are psychiatric hospitals and people do talk and I just gathered it after that. Q. Was that the extent of the conversation you had with him at that time? A. That's all, nothing else."

24 The Appellant appears to have been interviewed later during the course of the morning by Dr. Kidd, Acting Director of Mental Health. In a record of that interview, (Blue AB 103-107) which he later prepared, Dr. Kidd recorded (inter alia): "Dr. Wanigaratne was advised the purpose of the interview was to bring to his attention that internal investigation procedures would be commenced into an incident involving himself and an involuntary male patient (Patient A). The incident which is alleged to have occurred that morning at 9.00 a.m. in the Specialling Suite of the Acute Psychiatric Services Unit was put to Dr. Wanigaratne and he indicated that an incident had occurred. ……… It was then put to Dr. Wanigaratne that he had been observed to lash out at the above patient by kicking him and pulling his hair after the patient had struck him in the face without warning. Dr. Wanigaratne agreed that something had happened following him being struck in the face. He wasn't sure whether he had hit or kicked the patient, but he was sure he hadn't pulled the man's hair although this he said may have happened. ……… He stated that he instinctively lashed out at the source of the threat to his personal safety in order to protect himself. Dr. Wanigaratne was asked whether the patient was standing when he made contact with (Patient A) and he indicated that he (Patient A) was upright. When it was put to Dr. Wanigaratne that the nursing staff present in the specialling suite had stated that (Patient A) had been restrained by them and was on the floor when contact occurred between Dr. Wanigaratne and (Patient A) he indicated that he did not believe that to be the way things happened. ……… Dr. Wanigaratne further stated that he was simply protecting himself from an unprovoked attack and that he would be taking such a position regarding his actions with whomever would be conducting the investigation. ……… Dr. Wanigaratne was advised that because of the nature of the incident and the alleged assault by (Patient A) some minutes earlier on Dr. Pasha in the unit dining room that the police would be called. Dr. Wanigaratne indicated that he understood the need for this to happen and that he was quite prepared to tell the police what had occurred. Dr. Wanigaratne was also advised that the Area Chief Executive Officer and Area Medical Superintendent would be told of the incident and that the Area Medical Superintendent would be involved in the internal fact finding investigation."

25 During the course of early April 1997, Dr. Arthurson, the Area Medical Superintendent, and Dr. McSwiggan conducted a series of fact finding interviews, in the course of which they interviewed the various members of the nursing staff at Kenmore Hospital, other than Sister White, to whom I have earlier referred. At the same time, Senior Constable Blick, who was stationed at Goulburn Police Station, obtained statements from Patient A, the same members of the nursing staff at Kenmore Hospital and from the Appellant. In the course of the electronically recorded interview (Blue AB 143-172) conducted by Senior Constable Blick, the Appellant, although seemingly (Blue AB 153) indicating that he kicked out at Patient A as he appeared to be moving again towards him (the Appellant), and although admitting (Blue AB 154) that, after Patient A had struck him (the Appellant), Patient A was forced to the floor and held there by members of the nursing staff, denied (Blue AB 155-163) that, at any time while Patient A was held on the floor, he (the Appellant) either pulled Patient A's hair or attempted to kick him. 26 On 8 May 1997, Dr. Arthurson and Ms. Brenda Shea, who was the Human Resources Manager, Southern Tablelands Sector, conducted what has been described as a disciplinary interview (Blue AB 111-126) with the Appellant. The version of the incident which the Appellant gave at that interview was in substance the same as that which the Appellant had given when interviewed by Senior Constable Blick. 27 On 12 May 1997 Dr. Arthurson and Ms. Shea forwarded to Keiran Gleeson, who appears to have been the Chief Executive Officer, Southern Health Service, a report of the disciplinary committee meeting with the Appellant. After recording the "findings as determined at fact finding interviews" and the Appellant's version of events given at the disciplinary interview, that report concluded (Blue AB 128): "Dr. Wanigaratne's account cannot be reconciled with the facts determined at fact finding interviews, stated above. While Dr. Wanigaratne's account is, taken in isolation, plausible enough, the interviewers give credence to the account of events as revealed in the fact finding interviews and do not give credence to Dr. Wanigaratne's account of the incident. It should be noted that the interviewers find that there is no reason to believe that there was collusion among the eye witnesses with the object of fabricating their accounts of the incident. The interviewers note that the eye witnesses' accounts are essentially the same but vary in minor details. The psychological effect (that of shock) of the incident on each eye witness, as reported by them at fact finding interview, adds weight to the interviewers' belief that the eye witnesses accounts are genuine. The interviewers find that the facts described a deliberate and considered assault by Dr. Wanigaratne upon a defenceless patient. The assault was not a reflex or self-defensive action taken immediately following the blow from the patient and the assault persisted for some time despite attempts by staff to dissuade Dr. Wanigaratne from continuing once he had started. In the view of the interviewers, these facts provide justification for immediate termination of Dr. Wanigaratne's employment on the grounds of gross professional misconduct."

28 Although the materials which are before the Court do not demonstrate that this was so (but see Blue AB 179) it is said (Appellant's Chronology) that the Appellant was dismissed by the Southern Area Health Service on 20 May 1997 and that he has not worked since that time. 29 It is also said (Appellant's Chronology) that the Appellant was "charged by summons for assault" on 21 May 1997. Common assault (Crimes Act 1900 s.61) is an offence which is to be dealt with in a Local Court unless the prosecuting authority elects otherwise (Criminal Procedure Act 1986 s. 20(2), Table 2 to Schedule 1). One assumes that the Information (Justices Act 1902 s.52) was laid by Senior Constable Blick who had, on 9 May 1997 submitted a Breach Report (Blue AB 185) and that the Summons (Justice Act 1902 s. 62) issued pursuant to that Information. 30 The Summons was listed for hearing at the Local Court, Queanbeyan - perhaps, because it would appear that, by this time, the Appellant had moved to live in the Australian Capital Territory - before Ms. G. McDonald LCM on 29 October 1997, on which day a plea of guilty was entered by the Appellant. Although, at the time, the Appellant was advised by his solicitor and by counsel - who was later described by the Deputy Chairperson on the hearing before the Tribunal (Black AB 20) as "an experienced criminal lawyer" - who appeared for him on the hearing before the Local Court, an attempt was later made, both before, and at the hearing before the Medical Tribunal, to cast more than a shadow of doubt over the Appellant's conviction - not surprisingly, on the hearing before the Medical Tribunal, counsel appearing for the Respondent submitted that to permit that to be done involved a "collateral attack on the conviction" (Black AB 20). 31 On the hearing before Ms. McDonald LCM, character evidence was given by a Dr. Hoskin, the Medical Superintendent of Bloomfield Hospital at Orange - a psychiatric hospital - and by Nurse Fitzsimmons to whom I have earlier referred. Dr. Hoskin was later to give evidence at the hearing before the Medical Tribunal (Black AB 33) that he had made an offer to the Appellant of a position at Bloomfield Hospital should he be re-registered as a medical practitioner in this State. In addition to the oral evidence given at the Local Court, there were tendered a number of written references (Blue AB 187-209) - all of them highly laudatory of the Appellant - one being from Dr. Mickelburgh, to whom I have earlier referred, a number from registered nurses who had worked with the Appellant at the hospital, two being from persons - a councillor of Goulburn City Council and a pathologist - who had been appointed by the Minister for Health as Official Visitors at Kenmore Hospital, a solicitor employed in the Mental Health Advocacy Service of the Legal Aid Commission to represent forensic patients in proceedings before the Mental Health Review Tribunal, as well as former patients and the relatives of former patients at the hospital. 32 In the event, Ms. McDonald LCM, although finding the offence proved, pursuant to the provisions of s.556A of the Crimes Act 1900 did not proceed to conviction and dismissed the Summons making no order as to costs. In the course of her remarks on sentence, Ms. McDonald LCM said (Blue AB 182): "I am aware of the poor and stressful conditions under which many people work and work very hard and very effectively in those organisations. But I think that perhaps the employer, the Health Commission, should, in a matter such as this, take a more positive step and perhaps ensure that such counselling and other assistance as is necessary to a person who finds themselves (sic) in this position to ensure that such assistance is available and perhaps take a more positive step in encouraging such persons to undertake such counselling assistance as well as perhaps if it can at all occur, to reduce the pressure imposed on those persons, simply by their employment in the institution. It seems that perhaps in this matter, had such assistance been provided this sad event may not have occurred. It seems perhaps the most unfortunate result of all this is that the long term effect may well be the loss to the community of the talents and dedication of Dr. Wanigaratne and that of course in itself for the community is a tragedy. In this matter I take account of the plea of guilty which has been entered. I take account of the facts as they have been presented to me. The references that have been tendered and the other evidence and of course I also take account of Mr. Fitzsimmons' evidence given here today, confirming his liking and respect on Dr. Wanigaratne arising out of a close working relationship over a long time."

33 According to a Certificate (Exhibit B - Blue AB 224) tendered on the hearing before the Medical Tribunal, the Appellant's conditional registration expired on 6 May 1998. 34 Thereafter, on 18 September 1998, the then Commissioner - who constituted the Respondent (Health Care Complaints Act 1993 ss. 75, 76) - signed and forwarded to the Chairperson of the Medical Tribunal the complaint (Blue AB 223) which gave rise to the hearing before the Tribunal. The particulars of the conduct charged were as follows: "… that he: (a) Pulled the hair of a male patient, Patient A, twice whilst the patient was being restrained on the floor by nursing staff; (b) Repeatedly kicked, or attempted to kick Patient A in the area of his head, chest, stomach and groin whilst the patient was being restrained on the floor by nursing staff; (c) During an interview about the incident involving Patient A on 13 March 1997 at Kenmore Hospital with Dr. Paul van Buynder and Mr. Kevin Kidd, Acting Director of Mental Health, Southern Health Service, … gave an account of the incident that was false and/or misleading in that he denied that he had kicked Patient A or pulled the patient's hair whilst Patient A was being restrained on the floor; (d) During a disciplinary interview conducted by Ms. Brenda Shea and Dr. Robert Arthurson for the Southern Health Service on 8 May 1997 at Kenmore Hospital … gave an account of the incident on 13 March 1997 that was false and/or misleading in that he denied that he had kicked Patient A or pulled the patient's hair while Patient A was being restrained on the floor."

(This Court, in the context of the Legal Practitioners Act 1898, has held that a solicitor who resorted to dishonest conduct in an attempt to conceal his misconduct from officers of the Law Society who were checking on his conduct, and persisted in dishonest conduct in disciplinary proceedings before the Solicitors Statutory Committee, was guilty of conduct which rendered him a person unfit to practice as a solicitor and warranted his being struck off (see Law Society of New South Wales v. McNamara (1980) 47 NSWLR 72 cp. Smith v. NSW Bar Association (1992) 176 CLR 256 which makes it clear that, although the deliberate giving of false evidence before a disciplinary tribunal would justify a legal practitioner being struck off, the mere fact that the practitioner's evidence before the disciplinary tribunal was not accepted by the Tribunal would not.)) 35 Although the materials which are before the Court do not make clear when it was that he did so, it is clear that, at some time after his conditional registration had lapsed, the Appellant applied to the Board for registration pursuant to the provisions of s.7 of the Act. That application was refused by the Board on 4 November 1998 (RAB 3). 36 The Notice of Complaint given to the Appellant by the Chairperson of the Medical Tribunal on 5 November 1998 (RAB 1-2) appointed 11 December 1998 for the purpose of a directions hearing and to attend to the other matters relevant to the hearing of the inquiry into that complaint. 37 On 16 December 1998, there was filed on behalf of the Appellant a Notice of Appeal to the Medical Tribunal pursuant to the provisions of s.17 of the Act against the refusal by the Board of the Appellant's application for registration. That appeal had not been determined by the time the inquiry into the complaint came on for hearing and it would seem (RAB 39) that an application had been made to vacate the hearing date which had earlier been fixed pending the determination of the Medical Tribunal in respect of the complaint. 38 It is convenient, before proceeding further with the narrative, to pause, here, for the purpose of recording those provisions of the Act dealing with complaints concerning medical practitioners. They are as follows: "MEANING OF 'UNSATISFACTORY PROFESSIONAL CONDUCT' 36. For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following: LACK OF SKILL ETC Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine. ……… OTHER IMPROPER OR UNETHICAL CONDUCT Any other improper or unethical conduct relating to the practice of medicine. MEANING OF 'PROFESSIONAL MISCONDUCT' 37. For the purposes of this Act, 'professional misconduct' of a registered medical practitioner means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register. ……… GROUNDS FOR A COMPLAINT 39. Any of the following complaints can be made about a registered medical practitioner: ……… UNSATISFACTORY PROFESSIONAL CONDUCT OR PROFESSIONAL MISCONDUCT A complaint that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. ……… COMPLAINT CAN BE MADE EVEN IF PERSON NO LONGER REGISTERED 40. A complaint about a registered medical practitioner may be made and dealt with even though the practitioner has ceased to be registered. For that purpose, a reference in this Act to a registered medical practitioner includes a reference to a person who has ceased to be registered or whose registration is suspended. ……… POWERS MAY BE EXERCISED IF COMPLAINT PROVED OR ADMITTED 60. A Committee or the Tribunal may exercise any power or combination of powers conferred on it by this Division if it finds the subject matter of a complaint against a person to have been proved or the registered medical practitioner who is the subject of the complaint admits to it in writing to the Committee or Tribunal. GENERAL POWERS TO CAUTION, RREPRIMAND COUNSEL ETC 61(1). A Committee or the Tribunal may do any one or more of the following: (a) caution or reprimand the person; ……… TRIBUNAL CAN SUSPEND OR DEREGISTER IN CERTAIN CASES 64(1). The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person): (a) that the person is not competent to practice medicine; or (b) that the person is guilty of professional misconduct. (2) An order that a person be deregistered is an order that the person's name be removed from the Register or (if the person has already ceased to be registered) that the person not be re-registered. (3) An order may also provide that an application for review of the order under Division 3 of Part 6 may not be made until after a specified time. ……… RIGHT OF REVIEW 92(1). A person may apply to the appropriate review body for a review of an order of a Committee, the Chairperson or a Deputy Chairperson, the Tribunal or the Supreme Court: ……… (b) that the person's name be removed from the Register or that the person not be re-registered. ……… (3) An application for review of an order may not be made: (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal under this Part to the Tribunal or the Supreme Court in respect of the same matter is pending. THE APPROPRIATE REVIEW BODY 93(1). The 'appropriate review body' is the Tribunal except in a case where the order being reviewed provides that it may be reviewed by the Board, in which case the Board is the appropriate review body."

39 However, to return to the narrative: in the period of about eighteen months which passed between the hearing in the Local Court at Queanbeyan and the hearing in the Medical Tribunal, the Appellant was examined by a number of medical, and other, experts of whom, for present purposes, I need note only one, Dr. Milton a psychiatrist, who provided a number of reports, of which three were tendered on the hearing before the Medical Tribunal. In the light of some of the matters debated on the hearing before the Medical Tribunal, it is as well to note some of the matters appearing in Dr. Milton's reports. 40 In his first report dated 6 April 1998 (Blue AB 275-284):

1. when recording some of the history, Dr. Milton wrote (Blue AB 275): "Dr. Wanigaratne was defended by a lawyer in his community who advised him that he could cut the matter short by pleading guilty. Dr. Wanigaratne followed this advice, although he did not believe that he was guilty of any offence."

2. when recording his opinion Dr. Milton wrote (inter alia) (Blue AB 284): "His Department could assist him by trying to arrange another position for him, but it seems nothing has been done to date. I understand Dr. Hoskin is making representation in that regard. If this can be done, it is possible Dr. Wanigaratne might, through gradual resumption of his occupation, eventually regain his self-esteem and again value himself as a specialist medical practitioner and be able once again to practice medicine in a normal fashion. He is not well enough to do that now." 41 In a second report, dated 27 July 1998, written after he had been provided with copies of materials which had been supplied to the Appellant's solicitor by the Respondent (Blue AB 285-289) Dr. Milton wrote (inter alia) (Blue AB 285-286): "Ms. Walton intends to prosecute Dr. Wanigaratne on the basis of unprofessional conduct, stating that five nurses witnessed him attack a patient after the latter struck him in the face, following which he might have given a false or misleading account to Health Department representatives. The psychiatrist reviewing the matter at the request of the Complaints Commission concluded Dr. Wanigaratne's conduct in regard to the alleged assault merited severe criticism. It is indeed reprehensible for doctors to wilfully attack patients, especially patient being held down by nurses. Such a view would surely be held by all reputable medical practitioners. The psychiatrist was asked to assume that Dr. Wanigaratne lied about the incident and to say whether that was ethical. The psychiatrist concluded it was not. I agree that a medical practitioner should not knowingly utter untruths, especially if he or she is alleged to have assaulted a patient. Such a view would surely be held by all reputable medical practitioners."

Later in the same report Dr. Milton wrote (Blue AB 288-289): "I suggest that the aggressive behaviour demonstrated by Dr. Wanigaratne towards the subject patient was explicable on the basis of his previous serious injury by a patient and his consequent extreme fear if being assaulted, his age, his limited physical strength, the large size, obvious strength and extreme disturbance of his attacker, a lack of foreknowledge that the patient was dangerous, and the cognitive effects of a blow to the head reducing previous good self-control. That is, the doctor's uncharacteristic aggressive behaviour occurred as a result of extreme circumstances and was in the form of an automatic response to overwhelming fear and the stunning effects of a blow to the head. One can not (sic) always expect a person to behave with normal self-control under such conditions. Medical practitioners, psychiatrists included, can be pushed beyond the limits of normal self-control by circumstances or injury, and in that case it is not appropriate to apply the same standards of behaviour as are properly expected in a more favourable climate."

42 Dr. Milton's third report, dated 8 April 1999 - that is about a month prior to the hearing before the Medical Tribunal - was written after he had been provided with "statements by five mental health nurses who commented about the incident", those statements, as best as I can judge it, having been the statements taken by Senior Constable Blick from Nurse Briggs, Nurse Dowling, Nurse Ford, Nurse Jones and Nurse McLaren. In the course of that part of the report headed "Discussion", Dr. Milton wrote (inter alia) (Blue AB 323-324): "The information in the file raises serious doubt about whether Dr. Wanigaratne was capable of forming an intent to attack (Patient A). This data shows disorganised and aggressive behaviour very soon after the blow to Dr. Wanigaratne's head. The blow was forceful, consistent with (Patient A's) earlier having attacked Dr. Pasha, knocking him down and breaking his glasses. Ms. Briggs described (Patient A) as giving Dr. Wanigaratne a 'push on the chin' but she stated the push was 'forceful'. Other nurses did not see the blow, but Ms. McLaren saw the incident clearly and described the blow as 'a very forceful punch'. Dr. Wanigaratne took a couple of steps backward, immediately after which he appeared dazed, stunned and 'a bit shocked'. Dr. Wanigaratne's utterances immediately prior to, during and following his attack on (Patient A) appear to have been similarly disorganised. He said something of a nonsensical nature to Ms. Briggs about 'the medical model'. He claimed to Ms. Dowling that (Patient A) was not mentally ill, although the patient's mental illness must have been obvious given the circumstances and Dr. Wanigaratne's medical knowledge. Ms. Jones also noted that immediately following the incident Dr. Wanigaratne had a strange look on his face which she found difficult to interpret. Ms. McLaren noted that after Dr. Wanigaratne was punched he came up to (Patient A) and asked him 'what to do?'. Ms. McLaren perceived this as unusual and described it as though Dr. Wanigaratne 'was thinking aloud'. He repeated this inappropriate question once or twice. Further, when confronted with (Patient A) being psychotic, Dr. Wanigaratne spoke repeatedly of 'the medical model', an apparently meaningless utterance. Finally, Ms. McLaren observed Dr. Wanigaratne talking to (Patient A) in a manner that did not make sense. She saw and heard Dr. Wanigaratne repeatedly ask (Patient A) if the latter wanted to hit him (Dr. Wanigaratne). The information in these records, previously not available to me, is consistent with Dr. Wanigaratne having a concussive injury and in consequence his state of consciousness being altered and his ability to reason being markedly diminished. For this reason I do not believe Dr. Wanigaratne had the capacity to form an intent to attack (Patient A)."

Later in the same report, under the heading "Summary", Dr. Milton wrote (inter alia) (Blue AB 327-328): "If Dr. Wanigaratne is allowed to practice again and does so in a situation where his workload is limited and he keeps his distance from aggressive patients, and where he is encouraged to talk about current difficulties, I do not believe there is a risk of recurrence. He has the capacity to learn from experience, being deeply troubled by what happened and this is likely to cause him to alter his way of practice to reduce demands upon himself. Finally, you asked me to comment on any other aspect of the matter relevant to the Tribunal's function of acting to protect the public. The Tribunal was appropriately concerned about Dr. Wanigaratne's behaviour. It is extraordinary for a doctor to attack a patient, even if the patient had immediately attacked the doctor beforehand. Mentally ill patients are expected to behave irrationally and sometimes to act violently, and staff working in psychiatric units must be able to control them without harming them. Dr. Wanigaratne's behaviour was in no way a result of malice, spite or mischief, but occurred as a consequence of his previous experience and from the emotions from this being released when he was in an altered state of consciousness from the blow to the head. ……… I believe Dr. Wanigaratne is capable of returning to his work as a psychiatrist. Mental health services are short of experienced staff, and it would be regrettable if the community were denied his services because of this unfortunate episode. If Dr. Wanigaratne were allowed to practice again, this should be under the supervision of a senior practitioner who puts limits on Dr. Wanigaratne's willingness to accept a heavy workload to his own detriment."

43 The hearing before the Medical Tribunal took place on 12-13 May 1999, Judgment being reserved overnight and being delivered in the afternoon of 14 May 1999. 44 The evidence which was tendered on behalf of the present Respondent on the hearing before the Medical Tribunal initially was purely documentary, in the form of a folder containing the statements made by the various members of the nursing staff of the hospital at the fact finding interviews and to Senior Constable Blick, together with statements made by the present Appellant at the disciplinary interview and to Senior Constable Blick and, finally, the transcript of the proceedings in the Local Court at Queanbeyan together with the various references which had been tendered on that hearing. However, in the light of certain comments made by the present Appellant as to Dr. Pasha when he (the Appellant) was being cross-examined before the Medical Tribunal (Black AB 18), the present Respondent was given leave to call Dr. Pasha to give oral evidence (Black AB 42-44) which oral evidence, as I have earlier (para. 22 (above)) indicated, was not then made the subject of any cross-examination. 45 The evidence tendered on behalf of the present Appellant on the hearing before the Medical Tribunal included a written statement by the present Appellant (Exhibit 1) (Blue AB 225-230), the oral evidence of the present Appellant, of Dr. Milton, of Dr. Hoskin to whom I have earlier referred and of Drs. Learoyd and Gilligan. Dr. Hoskin, as I have earlier (para. 30 (above)) noted, gave evidence of the offer which he had made to the Appellant of a position at Bloomfield Hospital should he be re-registered as a medical practitioner in this State and each of Drs. Learoyd and Gilligan gave evidence to the effect that, notwithstanding the matters with which the present Appellant then stood charged, he would not have any reservations about working as a colleague with the present Appellant. 46 In his statement (Exhibit 1) the Appellant wrote (inter alia) (Blue AB 226-230): "9. What I am about to describe is the recollection that I have of the incident on 13 March 1997 immediately after the incident, which is a mental picture I still have. I have of course read the accounts of the incident given by Michael Ford, Susan Briggs, Carol Dowling, Colleen McLaren and Narelle Jones, the registered nurses who witnessed the incident. I have no reason whatsoever to suggest that those nurses all of whom I worked with and had a good opinion of, have been untruthful in their accounts of what happened. I must accept, and I do accept, that what they have said is true. However, I cannot change the fact that those accounts do not fit with the mental picture I have of the matter. ……… 24. The events of 13 April 1997 and the sequelae to those events were obviously extremely disturbing for me. I consulted a psychiatrist, Dr. Saboisky, in September 1997 because of my depression and anxiety over the matter. I continued to see him until February 1998. I am currently on no medication and am not receiving any treatment. 25. As I have indicated above, I accept that what the nurses report as having happened must have indeed have occurred. I have discussed the fact that my recollection of the events is markedly different with both Dr. Saboisky and Dr. Milton, who I have also seen for the purposes of this inquiry and the inquiry of the Medical Board. Their view is that the blow to the head that I received, together with the vivid memories it brought back of my previous assault, resulted firstly in my assaulting the patient and then having a recollection of the event so clearly at odds which what actually occurred. 26. I say to this Tribunal that I have had a long career as a medical practitioner, one which I believe to have been respectable and honourable. I believe that I have been a person of good character and have been liked, respected and appreciated by those with whom I have worked. 27. I cannot and would not seek to justify my action in assaulting (Patient A) on 13 April 1997. I am mystified and deeply ashamed of what happened. Nothing like this has ever happened before, nor will it again. I am prepared to comply with any conditions the Tribunal believes necessary in order to ensure that this is so. My only wish is to return to work, to continue my professional life and to support my wife and family. By not having worked for the last two years I believe I have had the consequences of the events of March 1997 placed before me as a very harsh reality."

47 Although neither Dr. Learoyd nor Dr. Gilligan was cross-examined, each of the present Appellant, Dr. Milton and, to a lesser extent, Dr. Hoskin, was subjected to quite extended cross-examination. The passages from the Judgment of the Medical Tribunal to which I will next refer make it abundantly clear that the present Appellant did not make a good impression as a witness. 48 In its Judgment, in the course of outlining the issues, the Tribunal wrote (inter alia) (RAB 8): "The Respondent contends that at all material times there was an absence of voluntary control or exercise of will in respect of it. He claims either or a combination of both of: (a) Post-traumatic loss of control due to a head injury; (b) in striking patient A he acted in a state of temporary or transient disassociation following severe emotional shock or psychological trauma, which was not prone to occur and which the mind of an ordinary person being a medical practitioner in the circumstances of the respondent would be likely not to have withstood. During the hearing these matters have been referred to compendiously as automatism. The word is not attractive to Dr. Milton as a description although he accepts it. It is used in this judgment on the same basis as in the course of evidence. The fact that the respondent has raised the matter of automatism does not mean that he bears the onus of proving it. It is for the Commission to prove on the balance of probabilities and in accordance with the principles stated above, that the acts of the respondent were voluntary."

Later, when turning to record the evidence of the incident, the Tribunal wrote (inter alia) (RAB 9): "The respondent does not contest the evidence of those present who saw and heard the incident giving rise to the complaint. This is because he states he has no recollection of critical events. He is therefore in no position to contest what the eyewitnesses say. Where it is the case that by reason of, for example a concussive blow, a person is not able to fully contest, except in an exploratory way, the observations of others, the Tribunal should exercise caution and give careful consideration to the material adverse to a respondent."

49 Having dealt with the evidence of the members of the nursing staff, which evidence the Tribunal indicated that it accepted (RAB 11), the Tribunal then turned to the statement (Blue AB 133), to which I have earlier (para. 22 (above)) referred, which had been made by Dr. Pasha during the course of the fact finding interviews at the hospital. With regard to the statements said to have been made by the present Appellant to Dr. Pasha in the canteen the Tribunal wrote (RAB 12): "The respondent was asked about this conversation in the witness box and apparently had not seen Dr. Pasha's statement until then. He denied that he had said those words. The respondent also said that Dr. Pasha in making a full statement would have been motivated by the fact that Dr. Pasha was trying to undermine him. He said that he had been told in effect that Dr. Pasha would metaphorically stab him in the back. This was an unexpected turn in the course of evidence because, apart from the striking itself, the respondent at the outset of the proceedings raised no opposition to the facts in the statement. It was necessary for Dr. Pasha to be called for cross-examination to test him on this important aspect of his evidence. That occurred overnight. By the time he was called the respondent indicated that there was no contest to the evidence. It was categorised from the respondents point of view as being within the disassociated state that the respondent experienced following the attack on him by Patient A. When Dr. Pasha presented for cross-examination it was not suggested to him that the conversation did not take place. The Tribunal is comfortably satisfied that in the dining room, following the incident, the respondent said 'Nobody touches me … I'm murderous when someone touches me' a number of times."

50 The Tribunal then turned to the question of the present Appellant's intent and his reliability as a witness. In this regard the Tribunal wrote (inter alia) (RAB 13-16): "The Tribunal has to determine whether or not it accepts the respondent's evidence that he has no recollection of the assault. An acceptance of the respondent on this point is the foundation upon which Dr. Milton's report is built. First the Tribunal has to decide whether it can safety rely upon the respondent's evidence. He was not an impressive witness. He appeared to prevaricate. In July 1997 the respondent was interviewed by Senior Constable Blick. He was cautioned and an electronically recorded record of interview took place. It is in the usual question and answer form and comprises twenty nine pages. When asked to respond to the allegation that he had assaulted Patient A he said: 'Yeah, but before that as I was, as he hit me like this I remember he was going to come again and again at me, he was not going to stop with that, so what I did with my leg I went … like this because tried (sic) to keep the fellow away from me because otherwise he was going to come at me again and again and by doing that the other fellows came, came from behind, and put the fellow on the floor.' He did not give a satisfactory explanation for the admission that he knew of the totality of the incident. The respondent also said he did not take the interview seriously. English is not his first language and the Tribunal accepts that he did not use the phrase with the connotation that it carries that a person is not prepared to give serious consideration to something or someone. The respondent used the phrase in a literal sense; that he did not think he had anything to fear from telling the police what he knew and may not have been precise in the manner in which he expressed himself. However, a fair reading of the Record of Interview leads the Tribunal to conclude that the respondent was not making assumptions or filling in gaps. The Tribunal accepts the respondent as speaking from recollection. ……… The Tribunal is satisfied that the respondent is not a reliable witness and that at all material times he has been aware of the sequence of events. The Tribunal is influenced in reaching this conclusion by the circumstances of and surrounding the criminal proceedings in the local court. ……… A fair reading of the record of interview, the Local Court transcript and the Magistrate's reasons suggests that the respondent made significant admissions and was aware of the whole of the incident. The Tribunal is of the opinion that the respondent in these proceedings has recast his position to suit the issues before this Tribunal. In the Tribunal's opinion the behaviour of the respondent is not accounted for by an altered state of consciousness as a result of the head injury or as a result of his previous experience of an assault upon him. His behaviour does not appear to have the bizarre quality assessed by Dr. Milton whose report has been carefully considered by the Tribunal. The Tribunal of course, does not accept Dr. Milton's basic premise that the respondent had no recollection of critical events."

51 The Tribunal then recorded its finding and orders in the following terms (RAB 16-17): "FINDINGS The Tribunal is comfortably satisfied that the particulars in relation to the assault are made out. It has concluded that the respondent, who was at the time the subject of a great deal of stress from his workload and working conditions, when struck by patient A became angry, was upset, lost control and struck out at patient A. Looking at the nurses' evidence overall there was a definite and significant gap in time between patient A's blow and the attack by the respondent upon him. The Tribunal does not accept that the only conclusions are that the respondent did not have the requisite intention or acted in a cold and calculating manner. It was an angry, fearful reaction to an unexpected assault. Later in his conversation with Dr. Pasha and Patient A he may have acted with bravado. The Tribunal is also comfortably satisfied that the respondent gave deliberately false and misleading accounts at the two disciplinary interviews. This is because the Tribunal accepts that at all material times the respondent was aware of his actions. The Tribunal has also concluded that the respondent lacks insight into his behaviour. The Tribunal has taken into account the evidence of practitioners who attested to the respondent's good character and the fact that they would be prepared to work with him. ORDERS TO BE MADE The respondent's conduct was a deliberate departure from accepted standards which accompany registration as a medical practitioner. Pillai v. Messiter Unreported Court of Appeal 24 May 1989. The gravity of the professional misconduct in its departure from proper standards is such that the Tribunal will order that the respondent be not re-registered. No other order is appropriate. See Bannister v. Walton (1993) 30 NSWLR 699 (632g, 634f, 635b (sic))."

(The Judgment of this Court in Pillai v. Messiter [No. 2] is reported in (1989) 16 NSWLR 197). 52 In the light of some of the matters which were sought to be raised on the hearing of the appeal, it is appropriate to record that, after recording the orders which it would make, the Tribunal, in its Judgment continued (inter alia) (RAB 17-19): "OTHER MATTERS There are a number of other matters the Tribunal has considered which should be recorded. It has revisited the hearing before the Magistrate. This is because those proceedings were given some prominence by the respondent. The Tribunal considered that it should therefore have careful regard to the matters raised. Although the respondent argued that a collateral attack on the conviction was not being made in these subsequent proceedings the Tribunal considers, given the analysis above, that what was attacked before the Tribunal was one of the essential ingredients, that is intent, that had been considered by the Magistrate. In the Tribunal's opinion there are no exceptional circumstances which would displace the public policy reasons, as to why a Tribunal should not allow a conviction made in a criminal court to be challenged in subsequent civil proceedings. This principle was enunciated by Mr. Justice Kirby when President of the Court of Appeal in The Prothonotary of the Supreme Court of New South Wales v. Pangallo (1993) 67 A Crim R 77 at 85. The proving of the offence before the Magistrate is strong evidence against the respondent in this case. The Tribunal however has reached its conclusion independently of those proceedings. The evidence and reasons of the Magistrate do give an insight into the way the respondent has approached the incident in the context of proceedings with different social objectives. The subject of conditions came up. In the light of the Tribunal's decision it is not necessary to make a ruling on conditions. However the Tribunal notes that in a case where supervision is for all intents and purposes impracticable that it is appropriate. This issue was discussed in Health Care Complaints Commission v. Litchfield (1997) 41 NSWLR 630 particularly at 639. ……… This is a case where, in the Tribunal's opinion, the respondent lacks insight into his behaviour and would certainly require supervision. Given the approach in the Litchfield case this is a further reason for the Tribunal's orders. It also leads to the question of fixing a time before which the respondent might seek to be re-registered. It is not this Tribunal's function in any way to constrain a future Tribunal, but it should explain why it makes the orders it does. In the circumstances the Tribunal has determined that a period of twelve months elapse before the respondent may make an application for review of the deregistration order pursuant to s.63(5) (sic) of the Act. The Tribunal has taken into account the age of the respondent, the fact that he has not been practising now for some two years, and he presently lacks insight into his actions."

53 Sections 90, 91 of the Act provide (inter alia) as follows: "APPEAL AGAINST TRIBUNAL'S DECISIONS AND ACTIONS 90(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 Tribunals) of Part 4. ……… POWERS OF COURT ON APPEAL 91(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."

54 On 10 June 1999 there was filed on behalf of the Appellant a Notice of Appeal in which the following grounds of appeal were raised: "1. The Tribunal was in error in concluding that the Appellant lacked insight into his behaviour. 2. The Tribunal was in error in concluding that the Appellant's conduct was a deliberate departure from accepted standards. 3. The Tribunal was in error in concluding that the gravity of the Appellant's misconduct in its departure from proper standards was such that no other order than one that the Appellant not be re-registered was appropriate. 4. The order, that the Appellant not be re-registered, was not required for the protection of the public or the profession. 5. The Tribunal was in error in failing to find: 5.1 that the conduct of the appellant occurred in circumstances which were wholly exceptional; 5.2 that there was no significant risk of the appellant engaging in such conduct again."

and in which the following Orders were sought: "1. That the appeal be allowed. 2. That the orders made by the Medical Tribunal be set aside. 3. In lieu thereof, that the Appellant be reprimanded." 55 Given the terms of s.90(1)(a) of the Act and the approach which, at least at one time during the course of the hearing of the appeal (T. 2), it appeared that counsel for the Appellant wished to take to certain of the Tribunal's findings of fact, it is necessary, first, to decide which of the grounds of appeal taken in the Notice of Appeal are open to the Appellant on the appeal. The approach which counsel appeared to have taken is revealed in the following passage in the transcript of record of the hearing on the appeal (T.2): "POWELL JA: Do you still seek assist ( semble to persist) in all of the attacks that were made on the fact finding by the Tribunal because I got a very strong flavour on the week-end when I read this that you were trying to dress up all the questions of fact as a question of law and that you wanted to say that they should have decided otherwise on the facts and therefore they must decide otherwise on the discretion. BRERETON: Your Honour there are some findings which can only be categorised as findings of fact which I do attack. Now because this is … POWELL JA: How can you? BRERETON: Because what the authorities establish is that on this type of appeal in respect of the exercise of a power as distinct from an appeal against a finding of professional misconduct, I am not limited to a finding only to attacking questions only of law. If I were appealing against the conclusion of professional misconduct I can only appeal on a question of law but there is a separate right of appeal against the exercise of the power and what the authorities in this Court establish is that although I cannot challenge the findings of fact which underlie the conclusion of professional misconduct, I can challenge errors of fact in the next, as it were, in the sentencing process. POWELL JA: Well I'd like to be persuaded of that. At the moment I am not prepared to accept that."

56 In seeking to support his submission, counsel referred - but only in a broad way - to what it was suggested had been said by me in the course of my Judgment in McBride v. Walton Court of Appeal 15 July 1994 (unreported). With respect, what I said on that occasion provides little support for the approach sought to be relied by counsel. Nor, for that matter, does the observation of Handley JA in the same case, to which reference, at least in general terms, was also made by counsel. The relevant passage in the Judgment of Handley JA was as follows: "The Doctor's appeal has challenged for error of law the Tribunal's finding that he is not a person of good character and the manner in which it reached that finding. The appeal against the order removing his name from the register is from an order made in the exercise of a judicial discretion and is governed by the principles in House v. The King (1936) 55 CLR 499. This appeal is not confined to errors of law but the Appellant is bound by the factual findings of the Tribunal unless these can be set aside for error of law. See Bannister v. Walton (1993) 30 NSWLR 699."

The passage in my Judgment to which I assume reference was made was a passage dealing with the consequences of the fact that the Medical Practitioners Act had been repealed and the Act had come into operation. The passage was as follows: "It seems to be agreed between the parties that, by virtue of the operation of the transitional provisions relating to unconcluded proceedings which had been commenced under the former Act, the Determinations and Orders of the Tribunal are to be taken to have been made pursuant to the provisions of the 1992 Act, as also does it seem to be agreed that, in relation to the Determinations made by the Tribunal, the Appellant might appeal with respect to a point of law while in relation to the Orders made by the Tribunal in reliance upon those Determinations, the Appellant had a general right of appeal that appeal being in the nature of a re-hearing."

57 In Bannister v. Walton (1993) 30 NSWLR 699 to which Handley JA referred in the passage from his Judgment in McBride v. Walton the following passage is to be found in the Judgment of Mahoney JA (as he then was) supra at 732: "It is accepted that an appeal against the exercise of the Tribunal's powers under s.32R and the orders made is a general appeal. The appeal is not limited to a point of law. This Court may itself consider what orders should be made. It will in this regard pay appropriate respect to the determination of the tribunal but will not be concluded by it. The effective order was that Dr. Bannister's name be removed from the Register of Medical Practitioners. I do not think that a different order is warranted. I am conscious of what was said by the Tribunal in relation to the significance of the complaints made and established, or not established, in respect of the treatment of patients. I do not think that what the tribunal said in that regard, or otherwise in assessing the order to be made, indicates any error. This Court does not for itself reconsider the conclusions that professional misconduct and lack of good character have been established. It has regard to the extent of the misconduct established and what has been said by the tribunal in relation to it. It is possible that, whilst it is limited to appeal 'with respect to a point of law', the Court may disagree with the findings of fact, as such, made by the Tribunal. Whether this Court would, in considering the order to be made, act upon a finding of fact which, though wrong, did not disclose error with respect of a point of law is a matter which may require consideration in an appropriate case. I would not differ in substance from the overall findings of fact made by the tribunal for this purpose. If there was deliberate misconduct of the kind here found, I think that in order that Dr. Bannister's name be removed from the Register of Medical Practitioners is the appropriate order. The seriousness of it is such that I do not think that any other orre limited order may be appropriate."

In the Judgment of Priestley JA, the following appears supra at 734 : "The Act gives the tribunal, not this Court, the task of finding the facts in cases such as the present. The tribunal in the present case did its task with great thoroughness. This Court's task, in turn, is to consider the appeal against the decision that the complaints against Dr. Bannister were proved and decide whether that decision could and should be set aside for error of law, and consider the appeal against the orders made to see whether, in regard to the complaints found proved, the tribunal acted on some wrong basis such that the orders should be set aside or varied. On this basis the first questions to consider are whether the tribunal's factual decisions were affected by any errors with respect to a point of law. I agree with and adopt Mahoney JA's analysis of the submissions alleging such errors. His analysis seems to me to show quite clearly that those submissions should not be accepted. In regard to the appeal against the tribunal's exercise of its powers under s.32R, I repeat that the appeal does not allow the Court to go behind the facts found by the tribunal as proving the complaint. Once the factual basis of the exercise by the tribunal of its powers under s. 32R is taken as the starting point for considering the appellant's appeal against the way the tribunal exercised those powers, it seems to me that there is no basis in this case for this Court to say that the tribunal made any mistake in its exercise of its powers. On the facts found by the tribunal the order it made seems to me to be inevitable, or, if not inevitable, at the very least, appropriate. I am not persuaded that this Court, confining itself to its own limited powers, should interfere with the orders made by the tribunal."

In his Judgment, Clarke JA said supra at 734-735 "In his Judgment Priestley JA has referred to the powers of this Court under s.32U(1) of the Medical Practitioners Act 1938 and has expressed the opinion that s.32U(1)(b) does not authorise the Court to go behind 'the facts found by the tribunal as proving the complaint'. I think this must be correct in the light of the restriction in s.32U(1)(a). Accordingly the power to review an order made under s.32R must be exercised upon the basis that the factual findings underlying the 'decision' of the tribunal are not open to scrutiny. It may be, however, that the tribunal may reach conclusions on a number of factual issues which are while not strictly relevant to the complaint may be considered to be of importance in determining what is the appropriate order to be made pursuant to s.32R. In cases where this occurs it would seem to me that this Court would be entitled to examine those conclusions in exercising its power to review the order under s.32U(1)(b). However, it is unnecessary to consider this particular question in this case for the order made by the tribunal was, in my opinion, appropriate in the light of its factual conclusions on the complaint."

58 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. 59 While the matters sought to be raised in Ground 5 may - since they do not necessarily bear upon the primary findings made by the Tribunal - be open to the Appellant on this appeal, I do not consider that they have been made out. So far as the first is concerned, it is quite clear that the Tribunal appreciated that, at the time of the incident, the Appellant had been subject to a great deal of stress from his workload and working conditions and that his conduct was an angry fearful reaction to an unexpected assault; while, so far as the second of those matters is concerned, it is sufficient to note that, in addition to what he wrote in his third report (see para. 41 (supra)), in the course of his cross-examination, Dr. Milton gave the following further evidence (Black AB 49-50): "Q. Doctor, you said in effect I think - and I think I am interpreting the evidence the right way - that in your opinion doctor does not pose a greater risk than any other professional working within the hospital faced with that sort of situation? A. Yes, I think so. Q. And I think in one of your reports, I can't recall precisely which one, you refer to the fact that it is not uncommon for those involved in the practice of psychiatry to either face threats or in fact actual assaults? A. Yes. Q. You don't know though, do you, of any other case where a psychiatrist has assaulted a patient? A. Come to think of it I don't. Q. And when you prepared your report of 8 April 1999 you must have had some concerns that there might be a repetition if Dr. Wanigaratne was faced with similar external stimuli in the future? A. Sorry, which date was that report? Q. 8 April 1999. A. One has to face that because if a person has engaged in such behaviour there is always a chance that he will engage in it again, you have to look at it. Q. That was why you expressed the view that you didn't believe there was a risk of recurrence provided that his workload was limited and he kept his distance from aggressive patients? A. Yes. Q. And that was why you suggested that the best case scenario, to use your words today, was that he be supervised and some limits be put on his ability to accept the heavy workload? A. That's the most desirable situation. Q. Because absent those conditions or restrictions it's the case, is it not, that there is a risk that what happened in 1997 will happen again? A. Well I can't add to what I have said, I think that it has to be evaluated if someone has committed such behaviour in the past."

60 I turn, then, to consider the two remaining grounds of appeal. 61 Reduced to their most simple form, the submissions advanced on behalf of the Appellant in respect of these two grounds were that, given that the Appellant's conduct had already been considered and examined by a criminal court, and given that that Court had proceeded to discharge the Appellant, the function of the Tribunal was not to punish the Appellant but was entirely protective. The fundamental issue to which the Tribunal was required to address itself was, so the submission ran, that of the Appellant's present fitness to practice. This, so it was submitted, the Tribunal had failed to do - it had failed to address the question whether, in the light of his record, "(the) one episode was demonstrative of unfitness". In particular, so it was submitted, the Tribunal failed to address the questions:

1. whether the conduct was "an isolated or passing departure from proper professional standards amounting to something less than proven unfitness";

2. whether the protection of the public reasonably required the deregistration; and

3. whether there was any significant risk of recurrence. 62 The difficulty with this submission is that the findings which led to the orders made by the Tribunal were not limited to the facts relating to the assault upon Patient A but extended to the giving of false and misleading accounts at the interviews with Mr. Kidd and Dr. van Buydner and with Ms. Shea and Dr. Arthurson. The Tribunal's findings further make it clear that, in the view of the Tribunal, the Appellant on the hearing before the Tribunal persisted in giving evidence which, to his knowledge, was false. Quite apart from the fact that the assault itself constituted professional misconduct, the deliberate giving and persistence in giving false and misleading accounts - even if limited to the interview with Mr. Kidd and Dr. van Buydner and the disciplinary interview - would, as I have earlier (para. 33) noted, constitute professional misconduct. Given those findings and given Dr. Milton's observations in his second report (para. 40 (above)) that it is reprehensible for a doctor wilfully to attack a patient, and that if the Appellant had in fact lied about the incident, that was unethical, it is difficult to find fault with the Tribunal's characterisation of the Appellant's behaviour as "a deliberate departure from accepted standards which accompany registration as a medical practitioner". 63 The question then is whether the Tribunal erred in concluding that the gravity of the Appellant's misconduct was such that no other order than that which the Tribunal came to make was appropriate. 64 Although, as it apparent from what I have earlier written, the order which it was submitted should have been made and which it was submitted should now be substituted for that made by the Tribunal, was a reprimand, it would seem that on the hearing before the Tribunal that order was not the subject of any submission; rather, the submission would appear to have been that the appropriate course for the Tribunal to adopt was to impose upon the Appellant, in the event of his obtaining re-registration, conditions requiring him to accept supervision in the course of practice. That course, as I have earlier noted, was rejected by the Tribunal as inappropriate. 65 The order made by the Tribunal being discretionary in nature, it is incumbent upon the Appellant if he is to succeed on this appeal, to demonstrate that in one or other of the ways referred to in the joint Judgment of Dixon, Evatt and McTiernan JJ in House v. The King (1936) 55 CLR 499, that discretion miscarried. In my view he has failed to do so. What appears to have been the only alternative advanced on the hearing before the Tribunal was rejected for reasons which to my mind appear to be sound and even if it had been proposed that a reprimand was all that was called for, I would have thought that given the Tribunal's findings of serious misconduct, which misconduct had been persisted in, a reprimand would have been quite inadequate. 66 In these circumstances, I conclude that the appeal should be dismissed. 67 Since, as I have earlier noted, s.92 of the Act makes provision for a review of an order of the Tribunal, and since the period of twelve months within which the Appellant was precluded for making an application for review has expired, it is open now to the Appellant to apply to the Tribunal for a review of the orders made by it on 14 May 1999, with a view to having the order that his name not be re-registered discharged, in which event the Appellant could apply to the Medical Board for re-registration. While it may be that the more common case of a review will be one involving a claim by the applicant for review that there has been a change of circumstances, in which case, the applicant would prima facie bear the onus of satisfying the Tribunal of his then present fitness, competency and good character, the type of review contemplated by s.22 is not limited to such cases. In Rohatgi v. Medical Tribunal of New South Wales Court of Appeal 20 April 1994 (unreported) Mahoney AP (as he then was), in a Judgment in which Meagher JA and I concurred, said: "At least in the 1992 legislation, the number and incidents of successive applications for review may be controlled by the Tribunal. This, to an extent, may mitigate the evils of repeated legislation (sic) in respect of findings and facts and orders made by the Tribunal. This no doubt was enacted because of the recognition that otherwise repeated applications might be made. It is, of course, possible to see repeated applications as based as well on post order events as upon pre order events. But I do not think that the Court should restrict the generality of the legislation to post order events in this way. However, to conclude that pre order errors may be reviewed does not mean that, in every application for review, they must be reviewed: it does not determine what, on a 'review' of this kind, the Tribunal is authorised or required to do. I come therefore to consider what the obligation to 'review' requires that the Tribunal do. The legislative provisions give to the medical practitioner affected a right to a review. In this context, 'right' carries with it the correlative Hohfeldian duty: there is a duty on the Tribunal to carry out a review. But that leaves for determination what that duty requires the Tribunal to do. The submissions for Dr. Rohatgi suggested, I think, that if there was a duty upon the Tribunal to review, that duty must involve a reconsideration of the original findings and orders. It followed, on this view, that Dr. Rohatgi had the right, and the Tribunal had the correlative duty, to undertake a reconsideration de novo of those findings and orders. I do not think that that is the effect of the legislation. In my opinion, the meaning of 'review' lies between the two extremes to which I have earlier referred. It is for the Tribunal to determine what the material placed before it warrants to be done, i.e. what course of action should be followed. Thus, a mere claim for reconsideration of otherwise apparently reasonable findings and orders could be held by the Tribunal to involve no more than a consideration of the terms of the findings and orders on their face. A claim for reconsideration supported by a creditable retraction by a crucial witness in the original proceeding might well require or warrant that the Tribunal do more. There is, no doubt, a minimum below which it may not descend: the nature of a 'review' may require at least a consideration of the position in the manner to which I have referred. But beyond this it is, I think, a matter for the Tribunal to determine, acting within proper limits, what is required in order to discharge its obligation to review. In one case it may feel it appropriate to consider the findings of fact de novo; in another case it may not. No error of law would be involved merely by deciding the matter one way or the other. Upon this view of the obligations of the Tribunal, I am of the opinion that, in the present case, what it did did not constitute a 'review' within either s.32V or, insofar as it is relevant, the requirement imposed by ss. 92-94 of the 1992 Act. Its conclusion that, in accordance with its previous decision, it should not consider the appropriateness of reviewing the original findings and orders, produced the result that it failed to enter upon a reconsideration such as was required by its obligation to 'review'".

68 It is as well to add a reference to the decision of this Court in Zaidi v. Health Care Complaints Commission (1998) 44 NSWLR 82 to the effect that a medical practitioner who has been deregistered because of proven misconduct is not required to confess before he is reinstated; however, continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness. 69 Having made those comments, however, it remains to be stressed that the fate of any review is a matter entirely for the Tribunal conducting the review in the light of the evidence tendered on that application. 70 As I have foreshadowed, I propose that the appeal be dismissed with costs. 71 HEYDON JA: I agree with Powell JA. ********

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