NSWCA on professional discipline

A GP was struck off after a hearing lasting 40 days. He was found to suffer a delusional disorder. The New South Wales Court of Appeal recently delivered a long judgment in an appeal from that decision, as reported on ABC: Lindsay v Health Care Complaints Commission [2010] NSWCA 194.  The quote the doctor got for the defence of the disciplinary proceedings, which raised multifarious issues, was $800,000.  So the doctor represented himself, cross-examining each of the 48 witnesses called against him at length.

The leading judgment of Acting Justice of Appeal Sackville, with whom the other judges agreed, considers the requirements of natural justice to be afforded to an unrepresented professional in a case involving as many issues as this one did, and with as serious a potential consequence.  His Honour concluded that the Medical Tribunal of NSW unduly restricted the doctor’s cross-examination, but found that the consequences did not justify a retrial.  The reasons also consider the obligations on tribunals who hear such serious cases as applications to deprive professionals of their livelihoods but which have a procedure and evidence regime which is more or less entirely in the discretion of the decision makers.  In this case, the charge was amended to include a new allegation, based on the doctor’s evidence at the hearing.

The judgment considers the use that a tribunal may make of a party’s conduct in court otherwise than in the witness box, and what must be said by the tribunal for the purposes of natural justice in order to give the party a chance to comment on, or call evidence in respect of, those observations.

Sackville AJA considered the propriety of lumping together multiple related instances of alleged wrongdoing, and finding that collectively they amounted to professional misconduct, in circumstances where each individual instance might not:

‘159 While the language of the unamended s 37 is not unambiguous, it is in my view wide enough to allow the Tribunal to consider instances of unsatisfactory conduct cumulatively or collectively, for the purpose of determining whether the medical practitioner has engaged in professional misconduct. The unamended s 37 refers to “unsatisfactory professional conduct of a sufficiently serious nature to justify suspension … or … removal”. This language is quite capable of being read as encompassing any or all unsatisfactory professional conduct found to have been committed by the medical practitioner.

160 The definition of “unsatisfactory professional conduct” in s 36(1) of the Act provides that the term “includes each of the” kinds of conduct enumerated in sub-paragraphs (a)-(m). Many of the sub-paragraphs of s 36(1) refer to “any conduct” of a particular kind. For example, s 36(1)(a) identifies unsatisfactory professional conduct as “any conduct that demonstrates that the knowledge, skill or judgment possessed … by the practitioner … is significantly below the [relevant standard]”. The definition in s 36(1) is therefore not only inclusive, but contemplates that there may be multiple instances of unsatisfactory professional conduct under each of the categories identified in the sub-paragraphs. It is not merely each separate treatment reflecting lack of skill or judgment that may constitute unsatisfactory professional conduct, but also the pattern of conduct. The effect of s 36(1), therefore is that a medical practitioner who, on several separate occasions, treats patients in a manner demonstrating lack of skill or judgment may be found to have engaged in a pattern of conduct constituting ”unsatisfactory professional conduct”.

161 When ss 36 and 37 of the Act are read together, the more natural meaning of s 37 is that it is intended to refer to all instances of unsatisfactory professional misconduct, at least of a particular category, whether assessed individually or collectively. This construction is supported by the objective of the statutory scheme, which is to protect the health and safety of the public by providing mechanisms designed to ensure that medical practitioners are fit to practise: s 2A; see also Prakash v HCCC, at [91], per Basten JA. Repeated and deliberate instances of unsatisfactory professional conduct by a medical practitioner might well demonstrate that the practitioner constitutes a serious threat to the health and safety of his or her patients, even though each individual instance, considered in isolation, might not pose such a threat.

162 It is true that repeated unsatisfactory professional conduct might, depending on the circumstances, support a finding that the medical practitioner is not competent to practise medicine (s 64(1)(a)) or is not of good character (s 64(1)(d)) and thus permit the Tribunal to impose the sanction of suspension or deregistration. But that will not necessarily be the case, even if the conduct that is sufficiently serious to justify suspension or deregistration of the practitioner (a prerequisite under s 37 to a finding of professional misconduct). It would be surprising if the Act, in its unamended form, left the Tribunal powerless to impose sanctions on a medical practitioner who had engaged in repeated unsatisfactory professional conduct of a kind justifying suspension or deregistration. There is nothing in the legislative history that suggests Parliament intended the Tribunal to be powerless.’

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