Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lee v Health Care Complaints Commission [2012] NSWCA 80
• Hearing dates: 30 March 2012
• Decision date: 19 April 2012
• Before: Macfarlan JA (at [1]); Barrett JA (at [2]); Tobias AJA (at [80])

Decision

1. Appeal dismissed.

2. The stay ordered by the Registrar on 31 October 2011 be terminated.

3. The suspension order made by the Medical Tribunal on 6 October 2011 (order (a)) be varied by omitting "to commence four weeks from the date of these orders" and substituting "commencing on 17 May 2012".

4. That the appellant pay the respondent's 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: PROFESSIONS AND TRADES - health care professionals - medical practitioners - disciplinary proceedings - professional misconduct - failure by practitioner to maintain approved professional indemnity insurance - finding by Medical Tribunal of professional misconduct - suspension from practice - finding of professional misconduct not challenged on appeal - practitioner seeks reduced suspension or fine - practitioner draws comparison with another case said to be similar and submits that that case indicates need to mitigate order of Medical Tribunal - observations on very limited value of comparison with other cases when formulating protective orders - relevance of lack of dishonesty - relevance of passage of time since events in question
• Legislation Cited: Health Care Complaints Act 1993. s 34A; Health Care Liability Act 2001, ss 19(1), 19(3); Health Practitioner Regulation National Law (NSW), schedule 5A, cls 4(1), 4(2), 4(3), ss 162(1), 162(4), 162A(1); Medical Practice Act 1992, ss 37, 127C; Supreme Court Act 1970, s 48(2)(f)
• Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Chowdhury v Health Care Complaints Commission [2010] NSWCA 56; Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523; Gayed v Walton [1997] NSWCA 121; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630; Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; House v The King [1936] HCA 40; (1936) 55 CLR 499; Lindsay v Health Care Complaints Commission [2005] NSWCA 356; Prakash v Health Care Complaints Commission [2006] NSWCA 153; R v George [2004] NSWCCA 247; R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209; Saville v Health Care Complaints Commission [2006] NSWCA 298; Tung v Health Care Complaints Commission [2011] NSWCA 219; Wong v The Queen [2001] HCA 64: (2001) 207 CLR 584
• Category: Principal judgment
• Parties: Dr Il-Song Lee - Appellant; Health Care Complaints Commission -Respondent
• Representation: Ms G C Furness SC - Appellant; Mr P J Griffin - Respondent; Unsworth Legal Pty Limited - Appellant; Ms P Hook, Health Care Complaints Commission - Respondent
• File Number(s): 2011/00341476

Decision under appeal

• Citation: Health Care Complaints Commission v Dr Il-Song Lee [2011] NSWMT 12
• Date of Decision: 2011-10-06 00:00:00
• Before: Elkaim SC DCJ; Dr J Kendrick; Dr S Toh; Mr R Kelly
• File Number(s): 40004/2011 and 40011/2011

JUDGMENT

1 MACFARLAN JA: I agree with Barrett JA.

2 BARRETT JA: This appeal is brought under the Health Practitioner Regulation National Law (NSW) (the "National Law"). The appellant, Dr Il-Song Lee, a medical practitioner, appeals against a decision of the Medical Tribunal of New South Wales (the "Tribunal") determining a complaint made against him by the respondent, Health Care Complaints Commission.

The Tribunal's decision

3 On 6 October 2011, the Tribunal determined adversely to the appellant two complaints that had been brought against him by the respondent. This appeal is concerned with the Tribunal's decision on the first complaint only.

4 Because the notice of complaint was dated 29 March 2010, the hearing and determination of the complaint proceeded under the Medical Practice Act 1992. This was in accordance with clauses 4(1) and 4(2) of schedule 5A to the National Law, notwithstanding the repeal of the Medical Practice Act on 1 July 2010. By virtue of clause 4(3) of schedule 5A, however, this appeal (which was initiated after the commencement of the National Law) is governed by the National Law alone.

5 The Tribunal found that the appellant had been guilty of professional misconduct. It suspended his registration for a period of ten weeks commencing four weeks from the date of its orders. On 31 October 2011, the Registrar of this Court ordered, pursuant to s 162(4) of the National Law, that the Tribunal's orders be stayed until further order of this Court.

6 The professional misconduct found against the appellant consisted of his practising as a medical practitioner between 1 January 2002 and 1 March 2007 without being covered by approved professional indemnity insurance.

7 Part 3 of the Health Care Liability Act 2001 came into effect on 1 January 2002. Part 3 includes s 19. Section 19(1) provides that a person is not entitled to practise as a medical practitioner in New South Wales unless covered by approved professional indemnity insurance. By operation of s 19(3), practising without such insurance is unsatisfactory professional conduct; and this is so regardless of the circumstances of the omission.

8 The more serious finding of professional misconduct in respect of the appellant involved evaluation by the Tribunal of the particular conduct and circumstances. The Tribunal said at [56] of its reasons:

"The Tribunal is of the view that the unsatisfactory professional conduct is of such a serious nature as to constitute professional misconduct within Section 37 of the Medical Practice Act 1992 so as to justify suspension of the practitioner from practising medicine for a period of time. "

9 Section 37 of the Medical Practice Act 1992 to which the Tribunal there referred was in these terms:

"For the purposes of this Act, 'professional misconduct' of a registered medical practitioner means:

(a) unsatisfactory professional conduct, or

(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to 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."

The appeal

10 The appellant does not challenge the Tribunal's finding of professional misconduct. He contends, however, that the period of suspension was excessive and that this Court should either order a reduced suspension (not exceeding four weeks) or impose a fine without any suspension from practice.

11 The appellant's case is, in essence, that, while his professional misconduct warrants some order, suspension from practice for ten weeks goes beyond what is a proper protective measure in the circumstances of the case.

12 The appellant says that the Tribunal erred in failing to give proper effect to its finding of fact that he had not acted dishonestly either in practising medicine without insurance or in his dealings with the Medical Board in relation to the matter. (The Medical Board of New South Wales became the Medical Council of New South Wales on 1 July 2010 but it is convenient to refer to it by its former title).

13 The appellant also points to what he says is disparity between the circumstances of this case and those of a case decided by the Tribunal in September 2011 concerning a Dr Chan to which the Tribunal referred in its reasons for imposing the suspension on the appellant. Dr Chan, like the appellant, failed to maintain professional indemnity insurance. There were some broad factual similarities between the two cases. Dr Chan was suspended from practice for three months.

14 The appellant says that his conduct in the matter of lack of professional indemnity insurance was of significantly less gravity than that of Dr Chan, yet the period of his suspension was some 83 per cent of the period for which Dr Chan was suspended.

15 The main thrust of submissions made on behalf of the appellant is that the Tribunal's factual findings did not warrant what is regarded as the disproportionately severe suspension order ultimately made. It is submitted that, because there was no finding of dishonesty (unlike Dr Chan's case), a significantly shorter suspension or a fine should be substituted to reflect what is said to be a material difference in the facts.

16 Finally, the appellant contends that the Tribunal erred by failing to take into account the fact that over four years had elapsed between the misconduct and the making of the Tribunal's decision and that the appellant had committed no wrongdoing during that period. The fact that the Tribunal did not refer to the passage of time in its decision is said to warrant a conclusion that the Tribunal did not take this into account.

The approach to the appeal

17 The powers of this Court upon an appeal of this kind come from s 162A(1) of the National Law:

"In deciding the appeal, the Supreme Court may-

(a) dismiss the appeal; or

(b) make the order 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 Law."

18 Given the case advanced by the appellant on appeal, the only question for this Court is whether or not the order imposing a suspension of ten weeks should be replaced by an order involving a shorter suspension or a fine, there being no submission that there should be no protective order at all. It is open to this Court to make an alternative order only if it concludes that the alternative order is "proper having regard to the merits of the case and the public welfare". If the Court does not reach that conclusion, it must dismiss the appeal.

19 As Basten JA pointed out in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [85], the power of the Tribunal to make a disciplinary order is discretionary in nature. It follows that, once a finding of professional misconduct is made and, if challenged on appeal, withstands the challenge, an appellant can attack an exercise of the disciplinary power only by identifying an error that would vitiate the exercise of discretion. In the present case, the order made is challenged on appeal, but the finding of professional misconduct is not. Counsel on both sides therefore correctly accepted that review by this Court of the Tribunal's exercise of the disciplinary discretion must be in accordance with the approach described by Dixon, Evatt and McTiernan JJ in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

20 Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points:

1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual.

2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order.

3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.

21 The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.

A preliminary matter

22 Because of the emphasis placed by the appellant on what he sees as differences between his case and that of Dr Chan and the fact that the Tribunal compared the two, I should deal at once with the utility of attempts at comparison in cases of this kind.

23 Submissions made on behalf of the appellant proceeded on the basis that disciplinary orders made in one case can and should be regarded as indicating what disciplinary orders might appropriately be made in another case.

24 For several reasons, this proposition must be approached with extreme care. Some of the reasons are suggested by discussion of sentencing in criminal cases. In that context, the point is made that, in most instances, a maximum penalty is prescribed by legislation so that there is some fixed starting point from which to consider the exercise of discretion: see, for example, R v Jurisic [1998] NSWSC 423; (1998) 45 NSWLR 209 at 251. As regards suspension from practice as a medical practitioner, the applicable legislation prescribes no starting point of this kind. If there is a suspension, its duration is entirely a matter for the exercise of the Tribunal's discretion.

25 The dangers inherent in comparisons, even when such a starting point is available, have been identified in many cases in the sentencing field. In Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520, for example, it was noted by French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (at [54]) that, while a history of sentencing can establish a range of sentences that have in fact been imposed, such a history "does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits". The range is, however, of significance as a reflection of "the accumulated experience and wisdom" of those making sentencing decisions.

26 Their Honours repeated with approval a statement of Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64: (2001) 207 CLR 584 at [59] that a record of sentences imposed in earlier cases "is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal" and that the production of bare statistics "tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were".

27 An aspect of this thinking was emphasised by Wood CJ at CL, Adams and Kirby JJ in R v George [2004] NSWCCA 247 at [49]: argument by comparison assumes that the decision with which the comparison is made was correct - "an assumption that cannot logically be made".

28 The appropriateness of considering earlier cases of professional misconduct by medical practitioners and the "range" of orders made in those cases was referred to by Mason P (with whom Meagher JA and Stein JA agreed) in Gayed v Walton [1997] NSWCA 121. In that case, the Tribunal had ordered deregistration of a medical practitioner whose professional misconduct consisted of prescribing dangerous drugs in excessive quantities. Counsel for the practitioner submitted that the order for deregistration was outside an appropriate range when viewed in the light of a number of earlier decisions of the Tribunal. Counsel argued that the instant case was one where the upper limit of an appropriate range might be a fine or possible suspension; and that the Tribunal should have been prepared to impose an order less stringent than deregistration, particularly if coupled with a condition withdrawing the appellant's authority to prescribe dangerous drugs.

29 In line with the thinking to which I have referred, Mason P said:

"While obviously in a matter such as this it is appropriate to look at the cases said to form the so called evidence of the range, there is always a difficulty in getting help from individual cases because of the problem of drawing comparisons between one case and the next. Each must be looked at according to its own facts. Some of the cases to which we were taken did not involve a finding of professional misconduct. Some did and it may be recognised that there was the appearance of what may have been a lighter order made than here.

It may be that if there is any deficiency it is in the level of order made in some of those cases . . ."

. . .

30 In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267, Basten JA, with the concurrence of Giles JA and Bergin J, accepted (at [70]) that a legitimate consideration, in an appeal such as the present, "is whether the orders made reveal inconsistency of approach on the part of the Tribunal, when viewed against other decisions revealing similar kinds of misconduct". His Honour agreed (at [71]-[72]) that other cases might be of value as examples in indicating a range of appropriate orders but could not be seen as precedents.

31 There is also the point that the purpose of orders in cases of professional misconduct differs significantly from the purpose of sentencing in the criminal field. As was explained in Director-General, Department of Ageing, Disability and Home Care v Lambert (above) at [83], the overwhelming emphasis in the present type of case is on the protection of the public, with notions of punishment relevant only incidentally if and when material to the achievement of the protective purpose. While protection of the public plays a significant part in the sentencing of criminal offenders, considerations of punishment, individual deterrence and general deterrence have a very prominent role that is, generally speaking, subsidiary in the exercise of a protective jurisdiction.

32 This leads to another point. This Court has said in the past that it must exercise great caution when invited to adopt a characterisation of a medical practitioner's conduct that differs from that which commended itself to the Medical Tribunal: see, for example, Lindsay v Health Care Complaints Commission [2005] NSWCA 356 (at [46]); Chowdhury v Health Care Complaints Commission [2010] NSWCA 56 at [47]. This is because, as Hunt AJA explained in Lindsay (with the concurrence of Mason P and Hodgson JA), the Medical Tribunal is "a specialist tribunal being constituted for the purpose of conducting inquiries by a District Court judge, two registered medical practitioners and one lay person" and this Court "is not in the position to apply such medical expertise, although there may perhaps in some cases be a clear and unanimous view expressed by medical experts who gave evidence in the proceedings before the Tribunal on which this Court could act".

33 Just as the characterisation of conduct as professional misconduct entails the exercise of judgment by a specialist tribunal, so too, it seems to me, does a decision about the order that should be made where such conduct is proved. This is another factor that indicates a need for restraint upon appeal. I refer again to Gayed v Walton (above) where Mason P said:

"In considering what is a proper range, I think it is appropriate that this court recognise that it is entertaining an appeal on a matter of what can loosely be called penalty from an experienced and specialised tribunal."

34 In cases of the present kind, therefore, this Court should proceed on the basis that:

(a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern;

(b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct";

(c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers;

(d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle;

(e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and

(f) the Medical Tribunal, as a specialist tribunal, brings special skill and experience to the task of formulating protective orders.

35 It follows that comparison of the appellant's case with the single and isolated case of Dr Chan will be of no value in undertaking a review of the Tribunal's decision with respect to suspension of the appellant. That single case indicates no range or pattern. It does not allow conclusions to be drawn about any unifying principle. And this Court has absolutely no basis for accepting that the suspension order made against Dr Chan was, in some abstract sense, "correct".

Factual background

36 The appellant was born in 1963. He graduated with the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of Sydney in 1985 and commenced working as a general practitioner in the following year. At an early point, he joined the Medical Defence Union ("MDU") and obtained professional indemnity insurance cover from that organisation. He arranged for periodic payments for insurance premiums to be made by direct debit from his credit card. The Tribunal found (at [9] of the decision) that documents from MDU revealed that deductions were only made from the credit card during 1998 and on a quarterly basis, as opposed to on an annual basis that the appellant asserted in his statement.

37 After working overseas for a period, the appellant established a general practice in suburban Sydney in 1994 and worked as a sole practitioner. He continued to operate this practice until he sold it in 2006. He attended personally to all the administrative work, including payment of insurance premiums. The task of attending to insurance was not delegated to either of the two receptionists he employed. He did, however, provide material to an accountant to prepare his tax returns.

38 Following the sale of his practice, the appellant began working at a suburban medical centre and changed his method of practice to include cosmetic surgery and the treatment of skin cancers. This extension of his practice caused him to contact United Medical Protection ("UMP"), the successor to MDU following its merger with the Medical Protection Society in 1997. He did so in order to check whether his insurance cover was appropriate for the new type of work he had undertaken. He was informed that he had not been covered for professional indemnity insurance since 31 December 1999.

39 After a protracted process that extended over the following year (and, as the Tribunal found, was "hampered by various omissions and oversights on his part"), the appellant eventually succeeded in obtaining both current and retroactive cover on 2 March 2007. Shortly before the Tribunal hearing, the appellant had become an employee at a medical centre in a different suburb.

The allegations and the decision in relation to them

40 I have already referred to the notice of complaint issued by the respondent on 29 March 2010. The complaint related to the appellant's lack of professional indemnity insurance between 1 January 2002 and 1 March 2007. Six allegations were set out in the "Particulars of Complaint".

41 The appellant admitted the allegation in particular 1: that he practised during the stated period without approved professional indemnity insurance in contravention of s 19(1) of the Health Care Liability Act 2001.

42 The appellant also admitted particulars 2 and 3 (that on 18 January 2005 and 1 February 2006 he made a false declaration in his annual return to the Medical Board that he held approved professional indemnity insurance with UMP and that the extent of his practice was fully covered by that insurance) but he did so on the express basis (accepted by respondent and by the Tribunal) that "false" meant merely wrong or erroneous without any connotation of deceit.

43 Particulars 4 and 5 alleged that the appellant failed without reasonable cause to comply with two requests issued by the Medical Board on 29 March 2007 and 31 May 2007 pursuant to s 127C of the Medical Practice Act 1992. Each request called for:

". . . the following information:

Details of your of your Professional Indemnity from 1 January 2001 to 31 December 2006. Details must include the name of the insurer, policy number, period of insurance cover, field of practice/risk category covered and any endorsements."

44 The Tribunal found these particulars not proved because the appellant had no relevant insurance during the relevant period and it was impossible for the appellant to provide "information" and "details" about something that did not exist.

45 Particular 6 alleged that the appellant failed without reasonable excuse to comply with a request issued by the respondent pursuant to s 34A of the Health Care Complaints Act 1993 to provide "information and produce documents" concerning his professional indemnity insurance cover from 1 January 2002 to 1 March 2007 and information relating to his alleged failure to comply with the notice issued by the Medical Board under s 127C of the Medical Practice Act. The Tribunal found this particular to be proved, on the basis that the requirement it imposed had a wider scope than that of the earlier notices.

46 The Tribunal therefore found that the complaint was made out to the extent that particulars 1, 2, 3 and 6 were proved. This led to the statutory consequence of unsatisfactory professional conduct and to the Tribunal's later finding of professional misconduct to which I have already referred.

The Tribunal's reasons

47 At [29]-[31] of its decision, the Tribunal noted that a relevant question concerning the extent of sanction was whether the appellant was aware that he was not insured and nevertheless continued to practice; and whether his claim that he honestly believed he was insured could be accepted.

48 In making its finding on dishonesty, the Tribunal considered several factors (outlined in its decision at [32]):

• The number of years for which the appellant was not insured and apparently made no check of his insurance status.

• His evidence that he expected his accountant to claim the premiums as a deduction and that he provided all relevant documents to the accountant.

• The absence of any evidence from the appellant's accountant in relation to any documents he received.

• The absence from evidence of the tax returns and any explanation for their absence.

• The credit card which was provided to the insurer in 1998 expired in October of that year and no attempt was made to provide details of a replacement card.

• The appellant's completion of the renewal forms in 2005 and 2006 without any apparent confirmation of his cover.

• The appellant's admitted failure to respond to the letter from the New South Wales Medical Board dated 12 May 2005, which called for evidence of his current insurance (there were other requests and notices to the same effect but the absence of response is complicated by the appellant's changing address but apparently not arranging re-direction of his mail).

49 It is significant that the hearing before the Tribunal was adjourned to allow the appellant to clarify the claiming of taxation deductions year by year for insurance premiums but, upon the resumption of the hearing, he sought neither to tender copies of tax returns nor to call evidence from the accountant who looked after the preparation of those returns.

50 The Tribunal also referred to the fact that, in the course of cross examination, the appellant emphatically and emotionally denied dishonesty, including his remark that it is "absurd" that he would deliberately avoid taking out insurance, given that his "income level at the time, compared to the amount of the insurance cover, is such a small amount".

51 Although the Tribunal found it "difficult to accept that [the appellant] remained unaware that he was not insured over so many years", it recognised "the gravity of a finding of dishonest conduct". Applying the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, the Tribunal concluded "with some reservation" that the appellant remained uninsured because of "a combination of his poor administration, his casual attitude to his assumption that he was covered without the need for regular confirmation as well as a degree of arrogance and expectation that responsibility for ensuring his cover continued lay as much with authorities like the Medical Board and the insurance company as with himself'".

Comparison with Dr Chan's case

52 I have said that comparison of the appellant's case with the single case of Dr Chan is of no value to the review of the Tribunal's decision with respect to the suspension of the appellant. I proceed nevertheless to deal with some points of comparison raised by counsel for the appellant. I do so for three reasons: first, because the process identifies and facilitates discussion of matters that need to be considered in any event; second, because the Tribunal, in accordance with submissions made to it, engaged in a process of comparison, so that review of the decision is assisted by following a similar path; and, third, because the making of the comparison will serve to underline its lack of utility.

53 The appellant puts store by the fact that Tribunal did not record in respect of him a finding corresponding with the finding in Dr Chan's case that the misconduct was "potentially harmful", in that a patient who suffered loss through the practitioner's negligence might not have succeeded in recovering damages awarded to him or her. This is so; but it is obvious beyond argument that this simple and stark reality was at the forefront of the Tribunal's thinking in the appellant's case. The very purpose of indemnity insurance is to ensure the availability of third-party financial resources so that cases of negligence are not left to be compensated or not according to the content of a practitioner's own pocket. The absence of that protection for the appellant's patients was so obvious as to make it axiomatic that the misconduct was "potentially harmful" and was seen by the Tribunal to be so, without any need for any explicit statement to that effect to be made. There was no qualitative difference between the conduct of the appellant and that of Dr Chan. The "potentially harmful" description is apt in both cases.

54 There was some attempt in the course of submissions to characterise the "potentially harmful" description as applicable to Dr Chan but not to the appellant because the appellant had eventually obtained retroactive insurance to cover the period of default whereas Dr Chan had not. Such a distinction is not borne out by the facts. In its decision concerning Dr Chan, the Tribunal said:

"On 25 August 2009 Dr Chan obtained professional indemnity insurance which commenced from 28 July 2009. In addition the insurer provided retroactive cover from 1 July 2000." [emphasis added]

55 The appellant next relied on the fact that there were findings of dishonesty in relation to Dr Chan but no such finding in relation to him. The appellant admitted to making erroneous declarations to the Medical Board, but the Tribunal accepted that he had not deliberately deceived the Medical Board. Dr Chan, by contrast, admitted to making five false declarations to the Medical Board with knowledge that he was misleading the Medical Board.

56 The fact remains that the Tribunal was obviously sceptical about the appellant's claim that the absence of insurance from 1999 (or, as relevant to the statutory provisions, from 1 January 2002) was, in effect, a matter of honest misadventure. Its scepticism was reflected in the fact that its finding of lack of dishonesty was made "with some reservation". The Tribunal was entitled to be sceptical. This is so for several reasons:

1. The appellant's version of matters proceeded on the apparent basis that, once insurance cover had been obtained, it would continue indefinitely subject only to the making of periodic payments, that the insurer would have no interest in (and the cover would continue unaffected by) changes to the risk profile arising from new fields of practice and that a credit card number provided some time before 1998 would continue to cause periodic payments to be made indefinitely.

2. The appellant himself recognised the fallacy in the second of these propositions when he made an inquiry as to his insured status after beginning to undertake cosmetic surgery and the treatment of skin cancers. In addition, the appellant accepted that he had had several credit cards during the period in question. It is a matter of common experience that a credit card has an expiry date beyond which it no longer operates.

3. The Tribunal's view of the situation was no doubt influenced by the fact that, after an adjournment so that the appellant might consider putting his tax returns into evidence or obtaining evidence from his accountant about the claiming of tax deductions, nothing was offered to the Tribunal.

57 All these matters rendered suspect the appellant's claim that he had thought all along that the necessary insurance was in place. That said, the Tribunal correctly found itself unable to come to a conclusion of deliberate dishonesty. Its finding of recklessness on the appellant's part was, however, fully justified.

58 Another matter raised on behalf of the appellant is that Dr Chan's misconduct went further than the appellant's: not only did Dr Chan tick a box on his registration renewal forms to indicate that he had professional indemnity insurance, he also inserted the name of an insurer which he knew was not providing cover and a fabricated policy number. The appellant, by contrast, inserted his genuine membership number (or, at least, an erroneous version of it that the Tribunal accepted had been inserted in the belief that it was correct).

59 This is, in substance, a variant of the point made about the admitted dishonesty in Dr Chan's case the finding that dishonesty was not proved in the appellant's case. There was again recklessness.

60 There is then the matter of remorse or lack of it. Dr Chan displayed a deep sense of remorse. In his statement to the Tribunal, he said that he was "embarrassed and deeply sorry for his mistake". The Tribunal observed in the appellant, however, "a sense of blame avoidance" and a tendency to refer to the responsibility that others, including his accountant and the insurer, had for seeing to it that he was insured. Moreover, the Tribunal said that the appellant "displayed no contrition, even for his admitted acts of wrongdoing".

61 Counsel for the appellant noted that, in Dr Chan's case, there was expert evidence from a psychiatrist that negative reinforcement by the Tribunal would result in Dr Chan complying with requirements in the future; whereas there was no such evidence indicating that similar orders were needed to deter the appellant from future misconduct.

62 The fact that there was no psychiatric evidence in respect of the appellant leads nowhere. The Tribunal noted that the appellant displayed no contrition even for the admitted wrongdoing and that he laboured under "a sense of blame avoidance". When asked by the Medical Board to provide "information" consisting of "details" of his insurance for particular years, the appellant chose simply to remain silent and later to justify that stance on the basis that, as a semantic matter, it was not possible to provide "details" of something that did not exist. That attitude of the appellant, as a member of the medical profession, to a regulatory body towards which he ought to have acted with frankness and candour, must have told the Tribunal a great deal about what might be needed in order to instil in him a sense of the need for future compliance. The Tribunal was well able to judge what might and might not deter the appellant and to do so without the need for psychiatric evidence.

63 The point is made on behalf of the appellant that his default in the matter of insurance was of shorter duration than that of Dr Chan. The complaint against the appellant related to the period of 74 months from 1 January 2002 (when the compulsory insurance legislation commenced) to 1 March 2007. Dr Chan's default related to the period 1 January 2002 to 2 February 2009, with a break of about nine months - some 76 months. Each was a long period. In neither case was the default fleeting and, in the appellant's case, his attempt eventually to put matters right extended over a year with "various omissions and oversights on his part". There is no apparent basis on which failure to provide a protective measure for one's patients for 74 months should be said to attract some measure of leniency when it comes to the formulation of a protective order.

64 Comparison of the appellant's case with that of Dr Chan in no way indicates any basis for appellate intervention. Nor does the Tribunal's assessment of the various matters that were raised in the context of the comparison indicate any basis for such intervention.

65 I turn now to two particular matters.

Lack of dishonesty

66 The Tribunal's finding that the appellant did not act dishonestly has already been noted. There was, however, a finding of recklessness on the appellant's part. That finding is not challenged.

67 Lack of dishonesty does not necessarily point to a need for some order less stringent than that which the Tribunal imposed. Cases of dishonesty are very serious. Cases of recklessness are also serious. This is particularly so where the protection of the public is at stake and the default is one that leaves patients exposed to a risk against which the practitioner is required by law to provide protection.

68 It is the failure to provide the required protection that constitutes the wrongdoing, not the fact that the failure is (or, as the case may be, is not) attended by dishonesty or a guilty mind. The more pertinent consideration in the formulation of an order is the practitioner's attitude to the wrongdoing and what it indicates about the risk that the misconduct might be repeated. The Tribunal was entitled to take a negative view of that matter, given its findings concerning the appellant's poor administration, his casual attitude to his assumption that he was covered by insurance without the need for regular confirmation, his arrogance, his expectation that responsibility for ensuring continuation of his cover lay as much with others as with himself and the fact that the process of rectification, once he began to attempt rectification, not only took a year but was marked by "various omissions and oversights on his part".

The passage of time

69 The appellant contends that the Tribunal erred by failing to take into account the fact that he was not guilty of renewed wrongdoing in the period of more than four years that elapsed between the misconduct and the making of the Tribunal's decision. The appellant submitted that the fact that the Tribunal did not mention the passage of time warrants a finding that that material fact was not considered.

70 I do not accept that submission. In making a multi-faceted evaluation of the kind required in a case such as this, a decision-maker is not obliged to detail every ground that informed the final decision. The observations above about the absence from the Tribunal's reasons of any statement that the appellant's misconduct was "potentially harmful" are again apposite. The fact that there was nothing before it to indicate that there had been any renewed default on the appellant's part was obvious to the Tribunal, did not need to be mentioned and cannot but have been borne in mind when the decision about an appropriate order was formulated.

71 In any event, senior counsel for the appellant accepted during the hearing of the appeal that the fact of the passage of time without renewed misconduct and the significance of that fact were not the subject of any submission made to the Tribunal. This is an added reason for concluding that absence of reference to it in the decision does not bespeak error reviewable on an appeal such as the present.

72 Finally on this aspect, there is the point that emerges from the decision of this Court in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630. Gleeson CJ, Meagher and Handley JJA there noted (at 637) that, despite the passage of four and a half years since the last complaint of misconduct, there was no explanation offered that would make it unlikely the misconduct would reoccur or to suggest that the practitioner had become a changed person. They said:

"In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; 84 WN (NSW)(Pt 2) 275 at 286:

"... Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone

by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man."

73 A finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct.

Decision

74 This Court is asked to disturb a decision of the Medical Tribunal as to the protective order considered appropriate to a case in which a finding of professional misconduct is not challenged. Reference has been made in submissions to a number of factors and findings and to matters on which the Tribunal recorded no express finding. It is as well to bear in mind, in that context, what was said by Basten JA in Saville v Health Care Complaints Commission [2006] NSWCA 298 at [52]:

"It has been said on more than one occasions, and in more than one context, that matters of evaluation and judgment are not readily explained in rational terms. Various imprecise and amorphous, but relevant, considerations may need to be weighed in the balance in determining where, across a range of possibilities, the appropriate result should be found. In the joint judgment in Ex parte Palme 216 CLR 212 at [40] Gleeson CJ, Gummow and Heydon JJ stated:

"There are some issues for decision which are of such a nature that, as Kitto J put it [in Re Wolanski's Registered Design (1953) 88 CLR 278 at 281], with reference to statements by Lord Herschell and Eve J [in Leatheries Ltd v Lycett Saddle & Motor Accessories Co Ltd (1909) 26 RPC 166]:

'[I]t is not to be expected that [the judge] will be able, at any rate satisfactorily to the litigants or to one of the litigants, to indicate in detail the grounds which have led him to the conclusion.'""

75 It has not been shown that the Tribunal, having found professional misconduct by the appellant, erred in determining the order to be made in consequence of that finding.

76 For reasons I have stated, comparison with the single and isolated case of Dr Chan produces no useful or meaningful guidance. Taken as a whole, the Tribunal's decision can be seen to have proceeded on the basis of a consideration of relevant matters, including those so obvious as not to require specific reference, such as the "potentially harmful" consequences of failure to insure and the fact that a period of four years elapsed between the remedying of the appellant's default and the hearing before the Tribunal. It cannot be said that some relevant matter was overlooked or otherwise not taken into account. Nor can it be said that any irrelevant matter or factual misapprehension affected the decision, that the Tribunal acted on some wrong principle or that the result of the Tribunal's deliberations is unreasonable or plainly unjust.

77 In short, the appellant has shown no basis on which this Court may, consistently with House v The King (above), interfere with the result of the exercise of discretion by the Tribunal which, acting as a specialist body and after full consideration, decided what protective measure was required by the nature and circumstances of the appellant's misconduct.

78 I propose the following orders;

1. Appeal dismissed.

2. The stay ordered by the Registrar on 31 October 2011 be terminated.

3. The suspension order made by the Medical Tribunal on 6 October 2011 (order (a)) be varied by omitting "to commence four weeks from the date of these orders" and substituting "commencing on 17 May 2012".

4. That the appellant pay the respondent's costs of the appeal.

79 There is another matter. I have referred to the Health Care Complaints Commission as "the respondent". In fact, the Commission is named as first respondent in the appellant's notice of appeal. The Medical Tribunal is named as second respondent. Inclusion of the Tribunal as a party to the appeal is unnecessary and irregular: Tung v Health Care Complaints Commission [2011] NSWCA 219 at [16]; Saville v Health Care Complaints Commission (above) at [10]. Section 162(1) of the National Law permits an appeal to the Supreme Court by a "person about whom a complaint is referred to the Tribunal, or the complainant". Section 48(2)(f) of the Supreme Court Act 1970 assigns such an appeal to the Court of Appeal. The only necessary parties to an appeal are the persons by and against whom the complaint determined by the Tribunal was made.

80 TOBIAS AJA: I agree with Barrett JA.

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Decision last updated: 19 April 2012