South Australian Civil and Administrative Tribunal Act 2013 ss 4, 34, 38

Health Practitioner Regulation National Law (South Australia) Act 2010 ss 6A, 178, 193. 203

Law Society of SA v Jordan (1998) 198 LSJS 434

Re OMQ [2017] SACAT 8

Kerr and Parker-Benton v City of Charles Sturt (No 2) [2019] SACAT 12.

See National Law s 203 and SACAT Act s 4 and s 34 (7).

Attudawage v MBA (No 3) [2011] QCAT 606

Hilton v CMBA [2014] QCAT 543

Pham v DBA [2017] VCAT 1178

1. The Tribunal refers to the Directions issued in this matter on 12 September 2019 (copy attached).
2. Both parties have provided written submissions. The respondent has urged the Tribunal to make an invitation under s 38 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act). The appellant opposes that course.
3. After consideration of the submissions of both parties, the Tribunal has decided, pursuant to the provisions of s 38 of the SACAT Act, to invite the decision-maker to reconsider the decision subject to review. The reasons for this decision follow.
4. The respondent now takes a position quite different from that evidenced by its decision made on 27 March 2018 (the decision subject to review).
5. The Board then decided that there was insufficient evidence to substantiate the "medical performance issues" that had been raised. It stated that it was not able to conclude that the appellant's "clinical practice presents a risk to public safety". However, the Board expressed a concern as to the appellant's standard of communication with patients and other health practitioners. In this respect the Board formed a belief that the way the appellant practised the profession was unsatisfactory. Pursuant to s 178 of the National Law_,[1]_ it imposed conditions on his practice which were directed to issues of communication.
6. The Board has since received further expert evidence. It is not clear why this evidence was not obtained before the Board made its decision. On the basis of that evidence, the Board now suggests that there are matters which are required to be referred to the Tribunal under s 193 of the National Law as allegations of "professional misconduct." The Board presents these matters as "communication issues" but in reality they include serious allegations relating to clinical performance which are not apt to be described as communication issues. This observation is reinforced by the fact that the Board now suggests the imposition of additional conditions of registration which are concerned with addressing clinical performance issues rather than issues with communication. In the view of the Tribunal, there is a lack of transparency in the way that the Board's new position has been particularised, which is unhelpful and could easily lead to unfairness.
7. In short, the Board now seeks to litigate the case on a quite different basis from that upon which the original decision was made. Understandably, the appellant protests. The Board's new stance puts him at risk of a far more detrimental outcome than was occasioned by the decision subject to review.
8. If this was merely an adversarial proceeding of a civil nature, the correct approach might be that the Board should be bound by its previous stance and decision. However, this is an administrative review of a decision which is essentially disciplinary in nature. The Tribunal is required to come to the "correct or preferable decision".[2] In Law Society of SA v Jordan (1998) 198 LSJS 434, after referring to relevant cases, Doyle CJ stated (at page 465):

These decisions establish that disciplinary proceedings are proceedings sui generis. In such proceedings the Court is concerned to protect the public from misconduct on the part of practitioners. In such proceedings, issues cannot be resolved simply on the basis of considerations applicable to ordinary adversarial proceedings.[3]

1. In Jordan the Full Court held that it had been appropriate for the Tribunal in that case to allow an amendment of the disciplinary charges against the practitioner after the practitioner had been found not guilty of the charges as laid. The Court held that there was no unfairness in this occurring in the circumstances of the case. Doyle CJ observed that "...it was appropriate, bearing in mind the functions of the Tribunal, for it to allow the charge to be amended, even though such an amendment might not have been allowed in ordinary adversarial proceedings".
2. There is a similar situation in this case. The primary objective of the legislation is the protection of the public. The evidence filed before this Tribunal, if it was accepted, would raise significant issues of public risk. The Board should not be prevented from belatedly raising those issues, as long as such can occur without unfairness to the appellant.
3. The relevant enquiry is about unfairness in answering the allegations. Relevant unfairness is not demonstrated by the fact that the appellant will be placed at greater risk, nor by reference to costs incurred or inconvenience suffered. Those factors might be relevant to any future consideration of costs, but not to the present enquiry.
4. The Tribunal considers that the appellant can have a fair hearing of the expanded allegations, as long as they are particularised fairly and transparently. That will be best achieved by inviting the Board to reconsider its decision. The Board can reconsider the question of whether the matter should be referred to the Tribunal under s 193 of the National Law. Such a referral might avoid the risk of a multiplicity of proceedings. It would have the effect that any serious allegations would be considered in accordance with the usual standard of proof rather than the somewhat lesser requirements of s 178 of the National Law.
5. In his written submissions the appellant argues that:
   1. The Board made two separate decisions on 27 March 2018. One was to decline to take any action concerning issues of medical performance. No conditions were imposed in respect of clinical performance.
   2. The Board has no power to reconsider its decision to take no action in respect of clinical performance issues.
   3. In circumstances where the Board has no power to reconsider this decision, the Tribunal similarly lacks power to invite the Board to reconsider its decision.

The Tribunal will deal with these submissions in turn.

1. It is artificial to divide the Board's decision made on 27 March 2018 in the manner suggested. The Board made one decision which was to impose conditions on registration. In doing so, it made findings, or indicated where it considered the evidence provided an insufficient basis to do so.
2. The scheme of the National Law is designed to ensure that notifications are dealt with. However, the primary objective is the protection of the public. It cannot be the case that a decision to take no action on a notification can prevent the Board from later taking action in relation to the same subject matter. If, for example, a notification about serious abuse was thought to be incapable of proof, no action would be taken. What if a witness then came forward with compelling evidence of the same abuse? Clearly, the Board could then act in the very way it had previously declined to act.
3. Action can be taken under s 178 or under s 193 of the National Law due to a notification "or for any other reason". Action under these sections is not tied to a notification. The fact that a decision is made about a notification does not prevent future action relating to the subject matter. The function of the Board is not exhausted. The statutory intention is such that the functus officio principle has no relevant application.[4]
4. Different considerations may arise where there is an appeal before the Tribunal. It is not necessary to explore that issue here as the proposed reconsideration is at the request of the Tribunal. Even if the Board would otherwise have had no power to reconsider, s 38 of the SACAT Act clearly gives the Board such power when an invitation is issued by the Tribunal under that section.
5. Pursuant to s 6A of the Health Practitioner Regulation National Law (South Australia) Act 2010 and s 112 of the Statutes Amendment (SACAT) Act 2019, the provisions of s 38 of the SACAT Act are available in these proceedings. There is no inconsistency with any provision in the National Law.[5] The Tribunal accepts the respondent's submissions on this point. The same conclusion has been reached interstate.[6]
6. The Tribunal has power to invite a reconsideration by the Board and such an invitation is appropriate in this case.
7. I will order that the reconsideration be completed by 8 January 2020. The hearing currently set for 4 November 2019 will be vacated. The parties are put on notice that any future proceedings before the Tribunal following the reconsideration will be expedited and the parties should be ready for that.

1. Pursuant to s 38 of the SACAT Act, the Tribunal invites the decision-maker to reconsider the decision under review.
2. The reconsideration is to be completed and the Tribunal is to be advised of the outcome by Wednesday 8 January 2020.
3. The hearing set for 4 November 2019 is vacated.

[1] Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010.

[4] See Re OMQ [2017] SACAT 8 and cases cited therein, Kerr and Parker-Benton v City of Charles Sturt (No 2) [2019] SACAT 12.

[5] See National Law s 203 and SACAT Act s 4 and s 34 (7).

[6] Attudawage v MBA (No 3) [2011] QCAT 606; Hilton v CMBA [2014] QCAT 543 at [17] and [33]-[35]; Pham v DBA [2017] VCAT 1178.