Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Health Care Complaints Commission v Do [2014] NSWCA 307
• Hearing dates: 11 March 2014
• Decision date: 04 September 2014
• Before: Basten JA at [1]; Meagher JA at [2]; Emmett JA at [56]

Decision

(1) Appeal allowed.

(2) Set aside orders 1 to 4 made by the Medical Tribunal on 2 August 2013.

(3) Declare that if the respondent were still registered as a health practitioner as at 2 August 2013 the Court would have cancelled her registration with effect on that date.

(4) The respondent is disqualified from being registered as a practitioner in the health profession for a period of 18 months commencing on 2 August 2013.

(5) Direct the National Health Practitioner Board to record in the National Register kept by that Board the fact that the Court would have cancelled the respondent's registration had she still been registered as a health practitioner on 2 August 2013.

(6) No order as to the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: MEDICAL PROFESSION - professional misconduct - where doctor prescribed drugs of addiction and restricted substances to de facto partner, a drug-dependent person - where doctor failed to maintain records of prescriptions and consultations and services - where doctor no longer registered as a medical practitioner at time protective orders made - whether Tribunal failed properly to have regard to objective of protecting health and safety of public when making protective orders - Health Practitioner Regulation National Law (NSW) ss 3(2), 3A and 4 - objective requires denunciation of serious misconduct - whether doctor should have been disqualified from being registered - effect of disqualification order on reapplication for registration - Health Practitioner Regulation National Law (NSW) ss 149C(4)(b) and 163B and Pt 7; COSTS - power of Court to order costs in proceedings under Health Practitioner Regulation National Law (NSW) - general rule that costs of proceedings before Medical Tribunal follow the event - where appeal hearing necessary irrespective of formal opposition by doctor - where order sought seemingly based on wrong view of operation of the National Law
• Legislation Cited: Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW), s 2(1) and Sch 6.4[44]; Civil and Administrative Tribunal Act 2013 (NSW), s 7(2) and Sch 1, cll 6(1) and 8(2); Civil Procedure Act 2005 (NSW); Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW); Health Practitioner Regulation National Law (NSW), Divs 3 and 7 of Pt 8, ss 3(2), 3A, 4, 52(1), 55(1), 139B(1)(a), (b) and (l), 139E, 149A, 149C, 162, 162A, 163A, 163B, 166(3), 167F(2)(c), 175B, 201; Medical Practice Act 1992 (NSW), s 90(1), Sch 2, cl 13; Medical Practice Regulation 2003 (NSW), cl 5, Sch 2; Poisons and Therapeutic Goods Regulation 2002 (NSW), cl 37; Supreme Court Act 1970 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Health Care Complaints Commission v Philipiah [2013] NSWCA 342; Herron v McGregor (1986) 6 NSWLR 246; House v The King [1936] HCA 40; 55 CLR 499; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408; Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Appellant); Dr Annette Dao Quynh Do (Respondent)
• Representation: Counsel: Ms J S Gleeson SC (Appellant); No appearance (Respondent); Solicitors: Health Care Complaints Commission (Appellant)
• File Number(s): 2013/299036

Decision under appeal

• Jurisdiction: 9117
• Citation: Health Care Complaints Commission v Dr Annette Dao Quynh Do; [2013] NSWMT 7; Health Care Complaints Commission v Dr Annette Dao Quynh Do (No 3) [2013] NSWMT 16
• Date of Decision: 2013-08-02 00:00:00
• Before: Colefax SC DCJ; Dr M Giuffrida; Dr M Walker; Ms J Houen
• File Number(s): 2011/4005

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent Dr Annette Do treated her drug-dependent de facto partner between July 2006 and June 2008 and prescribed drugs of addiction and restricted substances, including the opiates morphine and pethidine and the anti-depressant amitriptyline. On 18 or 19 June 2008, he died from an overdose of amitriptyline.

The Medical Tribunal found Dr Do guilty of professional misconduct. The Health Care Complaints Commission (the Commission) sought an order that she be disqualified from being registered as a health practitioner for a period of between 18 months and 2 years. At the time when the protective orders were sought the respondent was no longer registered as a medical practitioner. The Tribunal declined to make a disqualification order. Instead, it imposed conditions, including that the respondent complete educational courses and undergo counselling for a minimum of twelve months, with which the respondent had to comply before reapplying for registration.

The issues for determination on appeal were:

(i) Whether in exercising its disciplinary power and deciding not to make a disqualification order the Tribunal failed to give proper consideration to the full scope of the objective of protecting the health and safety of the public as required by ss 3A and 4 of the Health Practitioner Regulation National Law (NSW);

(ii) What protective orders should be made in the re-exercise of the Tribunal's disciplinary power;

(iii) Whether the making of a disqualification order under the Health Practitioner Regulation National Law (NSW), s 149C(4)(b) has the consequence that the health practitioner cannot reapply for registration under Pt 7 after any disqualification period has expired unless he or she first obtains a reinstatement order under s 163B; and

(iv) Whether the respondent should be ordered to pay the Commission's costs of the appeal.

The Court held (per Meagher JA, Basten JA and Emmett JA agreeing), allowing the appeal:

In relation to (i)

1. The objective of protecting the health and safety of the public is not confined to protecting the patients of a particular practitioner from the continuing risk of his or her misconduct, but includes protecting the public from similar misconduct of other practitioners and upholding public confidence in the medical profession. That objective is achieved, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise. Denouncing misconduct acts as both a specific and general deterrent and maintains public confidence in the profession.

Herron v McGregor (1986) 6 NSWLR 246, considered

Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, considered

2. The Tribunal did not give proper consideration to that objective. It failed to address the public interest in having the respondent's conduct denounced as unacceptable. The Tribunal also did not address the full implications of its finding that the respondent's conduct had revealed her "knowledge, skill and judgment in the practice of medicine" to be significantly below the standard reasonably to be expected of a practitioner of her level of training and experience.

In relation to (ii)

3. The respondent's departures from acceptable medical practice required her conduct to be marked publicly as justifying cancellation of her registration and that she be disqualified from being registered for a period of time.

In relation to (iii)

4. There is no need for a person who is no longer subject to an order disqualifying him or her from being registered as a medical practitioner to apply for a reinstatement order. Once any disqualification period has expired the relevant order is no longer operative.

In relation to (iv)

5. The Court should adopt the same approach to costs as would have been adopted in the Medical Tribunal. While generally costs should follow the event, factors here militated against the Commission's recovery of all of its costs. Although the Commission was entitled to the order it sought, the consequences for the respondent were no more severe than the order made by the Tribunal. Given the nature of the jurisdiction and the order sought, the hearing of the appeal would have been necessary even in the absence of formal opposition from the respondent. The Commission proceeded on the mistaken view that if the Court made a disqualification order the respondent would have to apply for a reinstatement order after the disqualification period had expired should she wish to recommence the practice of medicine. No orders made as to the costs of the appeal.

Health Care Complaints Commission v Philipiah [2013] NSWCA 342, considered

Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182, considered

Judgment

1 BASTEN JA: I agree with Meagher JA.

2 MEAGHER JA: This is an appeal by the Commission under s 162 of the Health Practitioner Regulation National Law (NSW) (the National Law) from protective orders made by the Medical Tribunal on 2 August 2013: Health Care Complaints Commission v Dr Annette Dao Quynh Do (No 3) [2013] NSWMT 16. In its principal judgment delivered on 29 April 2013, the Tribunal found that a complaint of professional misconduct had been established: Health Care Complaints Commission v Dr Annette Dao Quynh Do [2013] NSWMT 7. The complaint related to the respondent's medical treatment of her de facto partner between July 2006 and June 2008. That treatment involved the prescribing and administering of highly addictive opiates and the anti-depressant amitriptyline. On 18 or 19 June 2008, the respondent's partner died of an overdose of amitriptyline.

The protective orders

3 The orders made by the Tribunal included that:

"1. The practitioner is prevented from being registered unless she completes the educational courses, and undergoes counselling, as specified in Annexure 1, before applying to the Medical Board of Australia for registration.

2. The Practice Conditions set out in Annexure 2 are to be imposed when the practitioner is registered."

4 The educational courses referred to in order 1 are courses which address prescribing practices, ethical decision-making and professional boundaries for health professionals. The counselling, which is required to be commenced on the successful completion of those courses, is with a psychologist/psychiatrist for a minimum period of 12 months addressing conduct of the kind which was the subject of the complaints, and focussing in particular on professional boundaries and the respondent's appreciation and understanding of professional responsibilities and ethical decision-making skills. The practice conditions to apply upon registration in accordance with order 2 include that the respondent only practise under supervision in a position approved by the Medical Board, that she adhere to any work restrictions placed on her by that Board and that she not obtain, prescribe or administer restricted drugs of dependency or other specified drugs except "under direct and immediate consultation with her approved supervisor".

5 Those orders were made under s 149A of the National Law, which relevantly provides:

"(1) The Tribunal may do any one or more of the following in relation to the registered health practitioner -

...

(b) impose the conditions it considers appropriate on the practitioner's registration;

(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);

(d) order the practitioner to complete an educational course specified by the Tribunal;

...

(3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only -

(a) to prevent the practitioner being registered unless the order is complied with; or

(b) to require the conditions concerned to be imposed when the practitioner is registered."

6 At the time the protective orders were made, the respondent was no longer registered as a medical practitioner. In that circumstance the Commission had sought an order under s 149C(4) that she be disqualified from being registered for a period of between 18 months and 2 years. That section provides:

"(1) A Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied -

(a) the practitioner is not competent to practise the practitioner's profession; or

(b) the practitioner is guilty of professional misconduct; or

...

(4) If the person is no longer registered, the Tribunal may -

(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and

(b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and

(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board."

7 The Commission contends that the Tribunal erred in the exercise of its disciplinary power in respects which justify review in accordance with House v The King principles. It submits that in the re-exercise of that power this Court should, in the language of s 149C(4), decide that, if the respondent were still registered, her registration would have been cancelled, decide that the respondent is disqualified from being registered for a period of between 18 and 24 months from the date of this Court's judgment and require that the Medical Board record in the Register of Medical Practitioners the fact that the respondent's registration would have been cancelled if she were still registered.

The right of appeal

8 The Commission appeals against the Tribunal's orders under s 162 of the National Law:

"162 (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 a power by the Tribunal under Subdivision 6 of Division 3."

9 That right of appeal applies to the orders made by the Tribunal notwithstanding the repeal with effect on 1 January 2014 of Div 7 (ss 162 and 162A) of Pt 8 of the National Law by s 2(1) and Sch 6.4[44] of the Civil and Administrative Legislation (Repeal and Amendment) Act 2013 (NSW). That date is the "establishment date" within the meaning of s 7(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The Commission's appeal was commenced on 4 October 2013 and was a pending proceeding commenced before 1 January 2014 and not finally determined by that day: Sch 1, cl 6(1) of the NCAT Act, definition "pending proceedings". By cl 8(2) this Court is authorised to continue to deal with that appeal until it is concluded and for that purpose has and may exercise all of the functions that it had in relation to the appeal immediately before 1 January 2014. Those functions include deciding the appeal and, in doing so, exercising the powers conferred by s 162A of the National Law, which include the powers of the Tribunal under that Law.

The principles governing the appeal

10 The provisions of s 162(1) are in the same terms as s 90(1) of the Medical Practice Act 1992 (NSW), which governed appeals from decisions of the Tribunal to this Court under that Act. Accordingly, what this Court (Basten JA, Giles JA and Bergin J agreeing) said in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [23]-[24] applies equally to an appeal under s 162(1):

"23 In terms of principle, however, it has been accepted that the nature of the appeal provided by paragraph (b) of s 90(1) is not restricted to errors of law: see Bannister v Walton (1993) 30 NSWLR 699 at 632D (Mahoney JA); Gayed v Walton (unrep, NSWCA, 31 July 1997), in relation to the Medical Practitioners Act 1938 (NSW), s 32U, and applied in relation to the current legislation in Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [6] and Lindsay v Health Care Complaints Commission [2005] NSWCA 356 at [41] and [42]. In Bannister, it was said that the scope of the second limb of the right of appeal did not "extend to questioning the acceptance by the tribunal of the facts comprising proof of the complaint" (30 NSWLR at 734C, Priestley JA), but that the Court should act on "the basis that the factual findings underlying the 'decision' of the tribunal are not open to scrutiny" (30 NSWLR at 735A-B, Clarke JA). Clarke JA also noted:

'It may be, however, that the tribunal may reach conclusions on a number of factual issues which while not strictly relevant to the complaint may be considered to be of importance in determining what is the appropriate order to be made ... . 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 ... .'

24 Given the limited scope of review in accordance with House v The King principles, it may be that, as a matter of practice, there will only be limited areas in which an appeal will be maintainable in relation to the exercise of the disciplinary powers where no error with respect to a point of law is established for the purposes of the first limb of s 90(1): see generally, Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85]-[92]. Paragraph (a) of s 90(1) is not, it should be noted, limited to decisions on substantive issues: it also applies to errors in making disciplinary orders."

The complaints and the Tribunal's findings as to professional misconduct

11 The circumstances leading to the making of the complaints were as follows. The respondent and her partner met over the internet in 2005. In June 2006 he moved from Melbourne to Sydney to live with the respondent. In July 2006 he developed severe debilitating headaches which the respondent diagnosed as "cluster headaches", a condition which gives rise to periods of excruciating pain. That diagnosis was confirmed by the first specialist to whom the respondent referred her partner. That specialist, Dr Walker, diagnosed him as having a combination of "true cluster headache with super-imposed abnormal illness behaviour": [2013] NSWMT 7 at [42].

12 In the period from August 2006 to June 2008 the respondent repeatedly prescribed the opiates morphine and pethidine, as well as other anti-convulsant drugs used for pain management. She also prescribed several anti-psychotic medications and the anti-depressant, amitriptyline. During the same period she arranged consultations with seven specialist practitioners. They were two neurologists (Dr Walker and Professor Spira), a pain specialist (Dr Gronow), an eye physician (Dr Kwon), an ophthalmic surgeon (Dr Myers) and two psychiatrists (Dr Perica and Professor Mitchell).

13 Two complaints were made. Complaint 1 was that the respondent had been guilty of "unsatisfactory professional conduct" within s 139B(1)(a), (b) and (l) of the National Law, in that she had:

"(i) demonstrated that the knowledge, skill or judgment possessed, or care exercised, by her in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or

(ii) contravened a provision or provisions of the Medical Practice Regulation 2003 (repealed); and/or

(iii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine."

14 The provision of the Medical Practice Regulation 2003 said to have been contravened was cl 5 which together with Sch 2 provided for the maintenance of adequate records of prescriptions and consultations and services provided to the respondent's partner. Complaint 2 was that the same conduct described in paragraphs (i) to (iii) was of a sufficiently serious nature to justify suspension or cancellation of her registration, so as to constitute "professional misconduct" as defined in s 139E of the National Law.

15 Each complaint relied upon the same particulars of underlying conduct. Those particulars, as recorded by the Tribunal in its principal judgment at [28], were:

"(a) Whilst a general practitioner in private practice in New South Wales [Dr Do] commenced a de facto relationship with Mr Siebler and that whilst in that de facto relationship she was his primary medical provider.

(b) In her capacity as Mr Siebler's primary medical provider, Dr Do regularly prescribed medication for Mr Siebler, including morphine, pethidine, amitriptyline, other injectable pain relief, psychotropic medications and various other medications and regularly injected him with such medications. It is the first three drugs that are of particular concern to the Commission. In this regard, morphine and pethidine are drugs of addiction as defined by the Poisons and Therapeutic Goods Act 1966. Many of the other medications are prescribed restricted substances as defined by the Poisons and Therapeutic Goods Regulation 2002.

(c) Further, she failed to maintain adequate records of consultations and services provided to Mr Siebler, including records of prescriptions, particularly of prescribed restricted substances including drugs of addiction.

(d) Finally, she prescribed those drugs of addiction without proper authority and in circumstances where Dr Do was, or ought to have been, of the opinion that Mr Siebler was a drug-dependent person."

16 In response to these complaints the respondent denied that she was her partner's treating general practitioner. She contended that in treating him, and prescribing and administering these medications, she was doing so only as a facilitator or co-ordinator for his real primary medical practitioners who were the seven medical specialists with whom she conferred. At the same time the respondent admitted that she had failed to maintain adequate records of her consultations and services, and of the medications which she had provided to her partner.

17 The Tribunal made the following findings as to the allegation in paragraph (i) of the complaints concerning the respondent's "knowledge, skill and judgment in the practice of medicine":

"[138] As we have set out in some detail above, Dr Do, between late July 2006 and 19 June 2008, engaged in a prolonged treatment of Mr Siebler. This treatment involved the use of highly addictive opiates and powerful and dangerous psychotropic medication and in circumstances where Dr Do knew Mr Siebler was drug dependent - if not addicted.

[139] The course of these medications was to say the least chaotic and inconsistent.

[140] The evidence actually reveals a continuing pattern of grossly inappropriate polypharmacy with multi anti-migraine medications, four different anti-psychotics and three benzodiazepines all of which work on the central nervous system and therefore interact with and potentiate the central nervous system depressant effect of the excessive use of potent opiates.

[141] Dr Do deliberately ignored expert specialist advice (we exclude in this regard Dr Walker and initially Professor Spira); and indeed withheld vital information from most of those specialists.

[142] We have no alternative but to accept the submission of the Commission that Dr Do, in her treatment of Mr Siebler, was "erratic, contradictory, irresponsible and destructive and was not based upon carefully following the advice and recommendations of the specialists consulted" (Complainant's Submissions [34]).

[143] In this regard no clearer example can be given than her decision to embark upon treating Mr Siebler with amitriptyline. In doing so she knew that he: was dependent on opiates; had overdosed recently on such medication; and had unresolved psychological, if not psychiatric, issues. Nevertheless, she embarked upon a course of prescribing large quantities of this psychotropic medication without any reference to any of the leading specialists she had only recently consulted.

[144] We are satisfied that in doing so she has demonstrated that her knowledge, skill and judgment in the practice of medicine is significantly below the standard reasonably to be expected of a practitioner of an equivalent level of training or experience.

[145] Moreover, we regard that conduct to be not merely [unsatisfactory] professional conduct but professional misconduct."

18 As to the allegation in paragraph (ii) of the complaints, the Tribunal found that the respondent's conceded failure to maintain adequate records was contrary to cl 5 of the Medical Practice Regulation 2003 and cl 37 of the Poisons and Therapeutic Goods Regulation 2002 and was conduct "significantly below the standard to be expected of a practitioner with an equivalent level of training and experience" and "not merely unsatisfactory professional conduct but professional misconduct": [2013] NSWMT 7 at [147], [151], [152].

19 In relation to the allegation of improper or unethical conduct in paragraph (iii), the Tribunal found that the respondent's treatment of her partner was fundamentally inconsistent with the guidelines published by the New South Wales Medical Board concerning "Medical Practitioners Treating Relatives and Self" dated August 2001: [2013] NSWMT 7 at [135]. It also found that the respondent had been advised by Dr Myers in December 2006, and by Professor Spira in early February 2007, that she should not be her partner's treating general practitioner. The Tribunal concluded at [137]:

"... Dr Do's conduct in treating Mr Siebler as a family member with pethidine, morphine and amitriptyline in particular, but also more generally having regard to the breadth of the medications prescribed by her, was not merely unsatisfactory professional conduct but professional misconduct."

The debate as to the protective orders which should be made

20 Following the delivery of its principal judgment, the Tribunal received written submissions from the Commission and respondent and on 7 June and 2 August 2013 heard oral argument in relation to the protective orders that should be made. The respondent participated in the first of those hearings, by telephone, but not in the second. In support of the making of orders under s 149C(4), the Commission relied upon the seriousness of the Tribunal's findings. It also argued that by not making full admissions as to the particulars of the complaints, and in continuing to insist that she was not a treating medical practitioner and only a facilitator acting upon the advice of specialised medical practitioners, the respondent showed a lack of insight as to the seriousness of her conduct.

21 In her written submissions in response, the respondent emphasised that her treatment of her partner was not something that she had ever wanted to do. She considered she was "trapped" into providing that treatment because of his "severe phobia of hospitals and doctors" and his continued refusals, notwithstanding her urgings, to take medical advice from other general practitioners. The respondent also emphasised that the only conduct which was the subject of complaint was her treatment of her partner. She submitted:

"I never prescribed nor treat any of my relative ever before. I never prescribed drugs of addiction inappropriately prior to nor after this. I had never had any other complaint from patient nor colleagues over my conducts and work ethics." (Black 531)

22 At the hearing on 7 June 2013, the Deputy Chairperson inquired as to the conditions that the Commission submitted might be appropriate if its primary submission were rejected and conditions involving continuing supervision were imposed. Later, the Tribunal requested supplementary submissions from the Commission on the conditions that might be imposed if it made orders under s 149A(3). In those supplementary written submissions, the Commission confirmed that its primary position was that the appropriate order was one disqualifying the respondent from registration for a specified period. Whilst emphasising that the imposition of practice conditions would not address adequately the risk that the respondent posed to public health and safety, the Commission attached a draft schedule of conditions "for the Tribunal's consideration". It did not endorse the making of orders that imposed those conditions.

The Tribunal's reasons for making the protective orders

23 On 2 August 2013, following further discussion between counsel for the Commission and members of the Tribunal concerning the terms of the conditions that might be imposed, the Tribunal gave brief reasons for the protective orders which were then made. It rejected the Commission's submission that the respondent's non-appearance on that day, either in person or by telephone, and the absence of evidence in the form of references from the last medical practice at which she worked, justified a finding that she was exhibiting "an unwillingness to engage with the Tribunal": [2013] NSWMT 16 at [4], [5].

24 The Commission's primary submission, that the respondent should be disqualified from practising medicine, was then addressed. After referring to the "many substantial departures from appropriate medical practice" that were the subject of its earlier findings, the Tribunal continued:

"[12] One matter which has exercised the Tribunal's present thinking is whether those substantial departures from satisfactory conduct represent something more than the paradigm of the relationship between Dr Do and Mr Siebler. That is to say, whether those departures were intimately connected with the intricacies of that relationship such that, outside of that context, Dr Do otherwise has been a satisfactory medical practitioner.

[13] This is a question upon which the Tribunal is divided. Two members of the Tribunal are firmly of the opinion that the departures from acceptable medical practice by Dr Do were such that, regardless of whether or not they are contained to the treatment of Mr Siebler, they justify effective disqualification or deregistration for the period sought by the Commission in order to adequately protect the community. Two other members of the Tribunal are of a different opinion. They are of the opinion that there is no evidence to suggest that Dr Do's quite obvious failings in relation to Mr Siebler are more widely based; and that the public could be adequately protected by the imposition of rigorous conditions, including a requirement that she be the subject of level 1 supervision if she were to be registered.

[14] The division being of the kind we have referred to means that the prevailing view is to be that of the Deputy Chairperson. In that respect the Deputy Chairperson is of the opinion that the public would be adequately protected if Dr Do, upon application for registration, were to be subject to the conditions proposed by the Commission and level 1 supervision - with the following exception - in respect of which of the members of the Tribunal are in agreement.

[15] The Tribunal is of the opinion that the proposed Health Records Course submitted by the Commission today is an inappropriate condition to impose on Dr Do. The Tribunal is of that view for two reasons. First, on the limited information available to the Tribunal, the course contended for seems more suitable for a lay practice manager of a medical practice rather than for a medical practitioner. Secondly, and more importantly, if Dr Do is registered subject to supervision on the other conditions proposed by the Commission, and at level 1, she will be subject almost daily to intense and constant supervision in relation to her record keeping by her supervisor. That, it seems to the Tribunal, is a more effective manner of addressing that issue.

The arguments on appeal

25 The respondent did not appear at the hearing of the appeal. She did, however, make a written submission in response to the Commission's written submissions in chief. That submission, as one might expect from a non-lawyer, does not focus upon whether there was error in the exercise of the Tribunal's disciplinary powers. The respondent's task in that respect was not made any easier by the Commission's written submissions which did not clearly identify the argument upon which it finally relied. The respondent's submissions take issue with several of the Tribunal's findings, and in particular those relating to the involvement of some of the specialists whom she consulted. Those submissions also make the point, as the Tribunal noted, that the respondent had not been the subject of any previous complaint. The respondent also states that she voluntarily stopped work and did not renew her registration; and that her doing so was an indication that she understood the gravity of the charges made against her and had taken steps "to make sure I never engage again in similar conduct".

26 As formulated in oral argument, the Commission's principal submission was that in exercising its disciplinary power and deciding not to make a disqualification order, the Tribunal failed to consider two matters related to the objective of protecting the health and safety of the public which it was required to take into account. They were that only health practitioners who were able to do so in a competent and ethical manner should be registered to practise; and that public confidence in the high standards of competence and ethical decision-making expected of health practitioners should be maintained. That argument is founded on grounds of appeal 1 and 1A.

27 The other grounds of appeal, with the exception of ground 2(a) which was abandoned, were pressed but only faintly. They can be dealt with first and briefly.

Disposition of the appeal

28 Grounds 2(b) and (c) do not identify any asserted error beyond that on which the Commission's principal argument is based. Ground 2 is that the Tribunal erred in finding "that the public interest was adequately protected" by permitting the respondent to re-apply for registration and practice in circumstances where there was no evidence in relation to her character, professional competence or insight as to her misconduct (ground 2(b)); and where two of the Tribunal members were of the view that her conduct justified disqualification or deregistration (ground 2(c)).

29 Ground 2(b) is best understood as a contention that each of the circumstances referred to was not but should have been taken into account by the Tribunal. The argument that the absence of evidence as to the respondent's "character" was a relevant consideration is misconceived. No complaint or finding was made that her conduct revealed defects of character incompatible with the standards and behaviour required of a member of the medical profession. The second circumstance, concerning the respondent's "professional competence", was the subject of the Tribunal's finding that her "knowledge, skill and judgment in the practice of medicine [was] significantly below the standard reasonably to be expected": [2013] NSWMT 7 at [144]. That finding was addressed in a limited way by the requirement that the respondent undertake further training before she is able to resume practice. An aspect of the Commission's primary argument is that the Tribunal did not address the significance of this finding in relation to whether the respondent should be disqualified from being registered. The third circumstance was taken into account, albeit obliquely, in the Tribunal's rejection of the Commission's submission that the respondent was unwilling to engage with it.

30 The circumstance to which ground 2(c) is directed is irrelevant. The final decision of the Tribunal, in circumstances where two members supported it and two opposed it, was that of the Deputy Chairperson: National Law, s 166(3). The fact that two members may have decided the matter otherwise is beside the point. The question raised by the Commission's argument is whether, in reaching that decision, the Deputy Chairperson and one other member are shown to have failed properly to have regard to the two matters referred to in [26] above.

31 Ground 3 is that the Tribunal's exercise of discretion miscarried because in the circumstances "the only proper order" was one disqualifying the respondent from being registered for a specified period. In substance this ground asserts manifest error, leaving it to be inferred that in "some way there has been a failure properly to exercise the discretion": House v The King [1936] HCA 40; 55 CLR 499 at 505. In oral argument it was not suggested that any such failure was other than that contended for under grounds 1 and 1A.

32 The remaining ground 4 alleges a failure to give adequate reasons. That ground is not made out. The Tribunal was required to give reasons for its decision: National Law, s 167F(2)(c). Those reasons, albeit short, sufficiently articulate the Deputy Chairperson's reason for declining to make the order sought under s 149C(4): Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, 280-281. That reason was that he considered "the public would be adequately protected if Dr Do, upon application for registration, were to be subject to the conditions proposed by the Commission": [2013] NSWMT 16 at [14]. The question raised by the Commission's primary argument is not whether the reasons were insufficient. It is whether they reveal a failure to take into account matters which were relevant and required to be addressed.

33 The Commission's principal argument directs attention to the provisions of the National Law. The factors which the Tribunal is required to consider in the exercise of its protective jurisdiction are to be found in the terms of the Law. They may be stated expressly or arise by implication from its subject-matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39-40 (Mason J).

34 The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include to "provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3.

35 The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.

36 In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows:

"The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.

But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted."

37 In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258):

"It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest."

38 In rejecting the Commission's submission that the respondent should be disqualified from being registered, the prevailing opinion in the Tribunal reasoned as follows: it would be a "very serious step" to deregister: [2013] NSWMT 16 at [9]; there was no evidence to suggest that the respondent's "obvious failings" were in respect of her treatment of her partner: [2013] NSWMT 16 at [13]; for that reason the public could adequately be protected if upon application for registration the respondent would be subject to the conditions proposed: [2013] NSWMT 16 at [13], [14]. The statement that there was "no evidence to suggest that [the respondent's] quite obvious failings in relation to [her partner were] more widely based" is to be understood as being that her departures from proper standards of medical practice were contained or confined to the treatment of her partner and "intimately connected with the intricacies of that relationship": [2013] NSWMT 16 at [12].

39 In concluding that the public could be protected adequately by the imposition of conditions which had to be complied with before the respondent could reapply for registration, the Tribunal focused only on the protection of the public from further malpractice or misconduct of the respondent. It did not address at all the public interest in having the respondent's conduct denounced as unacceptable. Nor did it address the full implications of its finding that the respondent's conduct, although contained or confined, had revealed her "knowledge, skill and judgment in the practice of medicine" to be significantly below the standard reasonably to be expected of a practitioner of her level of training and experience: [2013] NSWMT 7 at [144].

40 In not addressing these matters the Tribunal failed to give proper consideration to the full scope of the objective of protecting the health and safety of the public, as it was required to do by ss 3A and 4 of the National Law. It follows that the Commission's principal argument should be upheld and that this Court must re-exercise the Tribunal's disciplinary power in the light of the Tribunal's earlier findings.

41 Those findings were as to the respondent's competence to practise medicine and as to serious misconduct which extended over a period of two years. That misconduct included the prescription and administration of a combination of grossly inappropriate addictive opiates and dangerous psychotropic medication; the deliberate ignoring of the advice and recommendations of the experienced specialists who were consulted; and the inappropriate medical treatment of her partner: [2013] NSWMT 7 at [138], [140], [141], [142].

42 In particular, in late October 2006 the respondent ignored the specialist advice of Dr Gronow that she not administer intramuscular opiates (morphine and pethidine) and that she transfer her patient to methadone (physeptone). In December 2006 the respondent again ignored the advice of Dr Gronow that it was inappropriate to use opiates such as morphine or pethidine for her partner's condition and that she should wean him off opiates and not administer morphine intramuscularly. In January 2007 the respondent prescribed amitriptyline notwithstanding that it had dangerous side effects and that there was the risk of potentially serious adverse interactions with the other medications that she was prescribing; in particular the central nervous system depressants, pethidine and morphine, and the analgesic, tramadol. In December 2006 the respondent was advised by Dr Myers that she should not be her partner's treating general practitioner. The respondent was also advised by Professor Spira in February 2007 that it was inappropriate for her to be medicating her partner with "narcotic analgesia".

43 These significant and continuing departures from acceptable and safe medical practice required that the respondent's conduct be marked publicly as justifying cancellation of her registration and that she be disqualified from being registered for a period of time. The Commission's submission that the period should be at least 18 months should be accepted. The making of orders under s 149C(4) will make plain that conduct of the kind engaged in is unacceptable, particularly in circumstances where there is a risk that the practitioner's objective and independent judgment might be compromised because the patient is someone with whom he or she has a close personal relationship, as was the case here.

44 The Commission argued that the respondent's written submissions to this Court show that she does not appreciate the gravity of her misconduct and, for that reason, that the period of disqualification should commence from the date of this Court's judgment. I do not agree. Those written submissions reveal that the respondent understands the seriousness of the charges made against her and has taken steps to ensure that she does not engage in similar conduct again. The period of disqualification should commence on 2 August 2013, the date of the Tribunal's orders.

45 There is one further matter to which reference should be made. The Commission submitted before this Court that the making of a disqualification order under s 149C(4)(b) has the consequence that the health practitioner cannot reapply for registration under Pt 7 after the 18 month disqualification period has expired unless she first obtains a reinstatement order under s 163B. I do not agree.

46 A "reinstatement order" within the meaning of s 163B(3) may be made following an inquiry upon an "application for review" made under s 163A. That is an application for the review of a "prohibition order" or a "relevant order", in each case the order being one made in relation to the relevant person: s 163A(1). The expression "prohibition order" describes an order under s 149C(5) and does not include an order made under s 149C(4). A "relevant order", on the other hand, would include such an order. It is defined in s 163A(4) to include an order that the person's registration "be cancelled or that the person is disqualified from being registered in a particular health profession".

47 Although an order made under s 149C(4)(b) is a "relevant order", the question remains whether, after the expiry of the period during which the practitioner is disqualified from being registered, it remains necessary for the practitioner to apply for a "reinstatement order" within s 163B(1)(c). Such an order is described in s 163B(3) as being that "the person may be registered in accordance with Pt 7" if the person makes an application for registration and the relevant National Board decides to register the person.

48 Section 52(1) sets out the criteria which must be satisfied for eligibility to apply for registration. They include, by paragraph (d), that the individual "is not disqualified under this Law or a law of a co-regulatory jurisdiction from applying for registration, or being registered, in the health profession". After the expiry of the period of disqualification fixed by an order made under s 149C(4) the individual concerned would answer the description in that paragraph as not being disqualified from applying for registration or being registered. That being the position, there would be no need for that person to seek a reinstatement order. The terms of s 163B, which describe the powers which may be exercised on a review, confirm that the right of review applies to orders which are still operative.

Conclusion

49 The appeal should be allowed. The principal consequence of the Commission's success is that the respondent's conduct will be recorded publicly as deserving of cancellation of her registration and she will be disqualified from being registered for 18 months from 2 August 2013. Had the Tribunal's orders remained in place the respondent would not have been able to apply for registration during the same period because of the conditions imposed that required her to complete education and counselling courses. Under the orders which will be made the respondent is able to apply for registration after that 18 month period has expired. In dealing with any application made after that time the National Board will have to address her eligibility and suitability by reference to the criteria in ss 52(1) and 55(1).

Costs

50 There remains a question as to whether the respondent should be ordered to pay the Commission's costs of the appeal. In order to determine that question, it is necessary to identify the power of this Court to order costs in such proceedings. Generally speaking, the National Law takes this Court as it finds it, so that the Court would have such powers as it generally had under the Supreme Court Act 1970 (NSW), the Civil Procedure Act 2005 (NSW) and, so far as relevant, the Uniform Civil Procedure Rules 2005 (NSW). However, that general principle is subject to variation by the National Law itself. The relevant provision is to be found in s 162A, as in force with respect to this appeal. To the extent that it empowers this Court to dismiss an appeal, it says nothing as to consequential orders. However, an alternative power is given to make such order as the Court thinks fit "and in doing so" to exercise one or more of the powers of the Tribunal under the National Law: s 162A(1)(b). One of those powers is the power to "make any order about costs [the Tribunal] considers appropriate for the proceedings": s 175B. That is a provision having national operation, pursuant to s 201 of the National Law. It should not be subject to local rules. It should, therefore, be treated as conferring an unfettered discretion on the Tribunal.

51 In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power.

52 Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs. There are, however, factors which suggest a different conclusion in the present case. First, as noted above, although the Commission is entitled to the order it sought, it may be doubted whether, in practical terms, the consequences for Dr Do are more severe than the order made by the Tribunal. Secondly, although Dr Do filed a written submission in opposition to the appeal, that submission did not give rise to the need for the present hearing which is likely to have been necessary in any case, even in the absence of formal opposition, given the nature of the jurisdiction and the order sought.

53 Thirdly, in its argument to this Court the Commission emphasised that a reason for its seeking a disqualification order, rather than the orders made by the Tribunal, was that the respondent would have to apply for a reinstatement order should she wish to recommence the practice of medicine. As I have already observed, that is not the effect of ss 163A and 163B. In my view some allowance should be made in the order relating to the payment of the costs of the appeal for the fact that the Commission apparently laboured under this wrong view of the operation of the law.

54 Taking these matters into account, the appropriate course is to make no order as to the costs of the appeal.

Proposed orders

55 Accordingly, the orders I propose be made to dispose of the appeal are:

(1) Appeal allowed.

(2) Set aside orders 1 to 4 made by the Medical Tribunal on 2 August 2013.

(3) Declare that if the respondent were still registered as a health practitioner as at 2 August 2013 the Court would have cancelled her registration with effect on that date.

(4) The respondent is disqualified from being registered as a practitioner in the health profession for a period of 18 months commencing on 2 August 2013.

(5) Direct the National Health Practitioner Board to record in the National Register kept by that Board the fact that the Court would have cancelled the respondent's registration had she still been registered as a health practitioner on 2 August 2013.

(6) No order as to the costs of the appeal.

56 EMMETT JA: This appeal is concerned with protective orders made by the Medical Tribunal of NSW (the Tribunal) in relation to the respondent, Dr Annette Do. The Tribunal found that a complaint of professional misconduct on the part of Dr Do had been established. The complaint arose out of Dr Do's medical treatment of her de facto partner, involving the prescription and administration of highly addictive opiates and anti-depressants. Dr Do's partner died of an overdose of the anti-depressants.

57 The Tribunal made orders that Dr Do be prevented from being registered unless she completes certain educational courses and undergoes certain counselling before applying for registration. At that time, Dr Do was no longer registered as a medical practitioner. The Tribunal also ordered that certain practice conditions be imposed when Dr Do is registered. The orders were made under s 149A of the Health Practitioner Regulation National Law (NSW) (the National Law). Under that provision, the Tribunal was authorised to do any one or more of a number of things in relation to a registered health practitioner, including the following:

• impose such conditions as it considers appropriate on the practitioner's registration;
• order the practitioner to seek and undergo medical or psychiatric treatment or counselling; and
• order the practitioner to complete an educational course specified by the Tribunal.

If a health practitioner is no longer registered, an order or direction may still be given under s 149A, but it has effect only to prevent the practitioner from being registered unless the order is complied with or to require the conditions concerned to be imposed when the practitioner is registered.

58 In circumstances in which Dr Do was no longer registered as a medical practitioner, the appellant, the Health Care Complaints Commission (the Commission), sought an order under s 149C(4) of the National Law that Dr Do be disqualified from being registered for a period of between 18 months and 2 years. Section 149C relevantly provides that the Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registration if the Tribunal is satisfied that the practitioner is not competent to practise or that the practitioner is guilty of professional misconduct. If the person is no longer registered, the Tribunal may, first, decide that, if the person was still registered, the Tribunal would have suspended or cancelled the person's registration; second, decide that, if the Tribunal would have cancelled the person's registration, the person be disqualified from being registered for a specified period or until specified conditions have been complied with; and, third, require the National Board with which the practitioner was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration.

59 The Commission contends that the Tribunal erred in the orders that it made and that this Court should, first, conclude that, if Dr Do was still registered, her registration would have been cancelled; second, decide that Dr Do be disqualified from being registered for a period of between 18 and 24 months; and, third, require an entry in the Register of Medical Practitioners that Dr Do's registration would have been cancelled if she were still registered.

60 I have had the advantage of reading in draft form the proposed reasons of Meagher JA for allowing the appeal. I agree with the orders proposed by his Honour for the reasons given by him. I also agree, for the reasons given by Meagher JA, that there should be no order as to the costs of the appeal.

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Decision last updated: 04 September 2014