Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lee v Dental Council of New South Wales [2020] NSWCATOD 111 Hearing dates: 18 September 2020 Date of orders: 29 September 2020 Decision date: 29 September 2020 Jurisdiction: Occupational Division Before: A Britton, Principal Member Decision: (1) The Application to stay the operation of the decision made by the Dental Council of NSW on 4 August 2020 to impose conditions on Dr Kenneth Lee's registration is dismissed for want of jurisdiction. Catchwords: STATUTORY CONSTRUCTION ─ whether NCAT has power to stay the operation of a decision made under s 138(1) of the Health Practitioner Regulation National Law (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Medical Council of New South Wales v Lee [2017] NSWCA 282 Texts Cited: None cited Category: Procedural and other rulings Parties: Dr Kenneth Lee (Applicant) Dental Council of NSW (Respondent) Representation: Counsel: V A Hartstein (Respondent) Solicitors: Esplins Solicitors (Applicant) Dental Council of New South Wales (Respondent) File Number(s): 2020/00255708 REASONS FOR DECISION 1. Dr Kenneth Lee appeals to the NSW Civil and Administrative Tribunal (NCAT) from a decision made by the Dental Council of NSW on 4 August 2020, to impose several conditions on his registration as a dentist (the August 2020 Decision). In addition, Dr Lee seeks an order staying the operation of that decision. 2. While it is not in issue that the Health Practitioner Regulation National Law (NSW) (the National Law) gives Dr Lee a right of appeal from the August 2020 Decision to NCAT, the Dental Council contends that NCAT does not have authority to decide whether to stay the operation of the August 2020 Decision. Dr Lee disagrees. Whether, as Dr Lee contends and the Dental Council disputes, NCAT can stay the operation of the August 2020, turns on whether that decision was made under s 150(1) of the National Law. Background to the decision under appeal 1. On 19 October 2019, the Dental Council received an anonymous complaint alleging that Dr Lee had been teaching techniques said to be outside the scope of practice of dentistry, which potentially placed patients at risk (the Complaint). 2. In response to the Complaint, the Dental Council decided to convene a "section 150 hearing" on 13 November 2019 and to appoint delegates to conduct that hearing. Following that hearing, the delegates decided to exercise the power to impose several conditions on Dr Lee's registration under s 150(1)(b), including that he not teach or provide to patients "extra-oral injection techniques" (acupuncture, dry-needling and trigger point injections) and that he submit to an audit of his practice by the Council. As required by s 150D(1) of the National Law, the Council gave written notice of that decision to the Health Care Complaints Commission (the Commission). 3. In December 2019, Dr Lee exercised the right conferred by s 150A of the National Law to seek review of the Council's decision to impose conditions on his registration. Following a hearing conducted on 16 January 2020, the delegates appointed by the Council to conduct that review decided to modify three conditions imposed on Dr Lee's registration in December 2019. All relate to the requirement that Dr Lee submit to an audit of his practice. 4. On 2 March 2020, Dr Lee made a second application under s 150A of the National Law. In that application, he sought review of Condition 3, one of the three audit conditions. 5. On 12 March 2020, the Commission advised the Council that it had finalised its investigation of the Complaint and had referred it to the Council "for management under s 39(1)(c) of the Health Care Complaints Act 1993 (NSW)". 6. In a letter dated 7 April 2020, the Council notified Dr Lee that at a meeting of the Council on 3 April 2020, it had decided: 1. in exercise of the power conferred by s 150A(3) of the National Law, among other things, to remove Conditions 4, 5 and part of Condition 3 and to request Dr Lee to provide nominated patient records; 2. the "section 150A review", scheduled for 6 May 2020, would be conducted "on the papers"; 3. referring to the Commission's letter of 12 March 2020 (see above), the Complaint would be dealt with "by Council Inquiry as a complaint of unsatisfactory professional conduct". 1. On 6 May 2020, the Council held "a second 150A section review hearing". The delegates appointed to conduct that review decided not to change the conditions imposed on Dr Lee's registration. 2. On 31 July 2020, the Council (constituted by Associate Professor Fryer, Dr Colyn Pavey and Dr Anthony Burgess) held an "inquiry". In a decision stated to have been made under s 148E of the National Law, the Council found the conduct the subject of the Complaint amounted to "unsatisfactory professional conduct". In addition, the Council decided to impose three conditions on Dr Lee's registration which were broadly in the same terms as those imposed in December 2019, as subsequently revised. This is the decision under appeal. Statutory framework 1. The National Law governs the regulation of individuals who practise one or more of the 16 "health professions" listed in the definition of that term in s 5 of the Act. This includes the dental profession. The National Law establishes Councils for each health profession: s 41B. The Dental Council, the respondent in these proceedings, is established for the dental profession. 2. The National Law provides a regime for dealing with complaints against registered health practitioners under Part 8 of the National Law, headed "Health, performance and conduct". Division 3 of Part 8 is headed "Complaints". Subdivision 1 of Division 3 (ss 114 - 145G) deals with the making of Complaints against registered health practitioners. A complaint may be made about a registered health practitioner, including a complaint that the practitioner has been guilty of unsatisfactory professional conduct: s 144(b). (See, definition of unsatisfactory professional conduct in s 139B). A complaint may be made by any person, the Council or the Secretary: 144B. Complaints may be made to a Council or the Commission: s 144C. 3. Subdivision 2 of Division 3 (ss 145 – 145J) is headed "How complaints are to be dealt with [NSW]". Before any action is taken on a complaint, a Council and the Commission must consult to see if agreement can be reached between them as to the course of action to be taken concerning the complaint: s 145A. Section 145B(1) lists the courses of action available to a Council in respect of a complaint and includes dealing with the complaint by inquiry at a meeting of the Council (but only if the complaint is about a health practitioner registered in a profession other than medical or nursing and midwifery: s 145B(1)(e)). 4. Headed "Dealing with complaint by inquiry at meeting of Council [NSW]", Subdivision 5 of Division 3 (ss 148 - 148I) applies to complaints about health practitioners registered in a health profession other than the medical, nursing or midwifery professions: s 148. If a Council decides to deal with a complaint about a registered health practitioner by inquiry at a meeting of the Council, the meeting must be held in accordance with Part 3 of Schedule 5C and Subdivision 5: s 148A(1). 5. Section 148E lists the "General powers" available to a Council in relation to a health practitioner "the subject of the inquiry": 148E General powers of Council [NSW] (1) The Council may do any one or more of the following in relation to the health practitioner the subject of the inquiry— (a) caution or reprimand the practitioner; (b) make an order for the withholding or refunding of part or all of the payment with respect to the fees to be charged or paid for the services that are the subject of the complaint; (c) impose the conditions it considers appropriate on the practitioner's registration; (d) order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (e) order that the practitioner complete an educational course specified by the Council; (f) order that the practitioner report on his or her practice at the times, in the way and to the persons specified by the Council; (g) order that the practitioner seek and take advice, in relation to the management of his or her practice, from persons specified by the Council. 1. In addition to the powers listed in s 148E(1), in certain circumstances the Council may impose a fine: s 148F. Further, if satisfied that a health practitioner does not have sufficient physical or mental capacity to practise their profession, the Council may recommend that their registration be suspended for a specified period or cancelled: s 148G(1). 2. Subdivision 7 of Division 3 (ss 150 - 150J) is headed "Powers of a Council for protection of public [NSW]". Section 150 relevantly states: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest— (a) by order suspend a registered health practitioner's … registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or … (4) A Council for a health profession may take action under this section— (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and … 1. Section 150A(1) permits a practitioner who is the subject of an order under s 150(1), to apply to the Council for the review of the decision to make that order. Unless of the opinion that the application for review is frivolous or vexatious, the Council must reconsider its decision: s 150A(2). On reconsideration, the Council may affirm or vary the decision, or set it aside and take any action the Council has the power to take under s 150: s 150A(3). A Council may vary or set aside a decision only if the Council is satisfied there has been a change in the registered health practitioner's circumstances that justifies the variation or setting aside of the decision: s 150A(4). 2. The Council may, at any time, alter or remove conditions imposed under Subdivision 7: s 150C(1)(b). In "complaint matters" where a Council imposes conditions on the registration of a health practitioner under s 150, the conditions imposed by the Council have effect until the complaint is disposed of or the conditions are removed by the Council: s 150H(2). Section 150H does not prevent conditions being imposed under another provision of the National Law: s 150H(3)(a). 3. Within seven days of taking action under s 150, the Council must refer the matter to the Commission for investigation: s 150D(1). The Commission must deal with the matter as a complaint made to the Commission against the registered health practitioner: s 150D(3). Right of appeal to NCAT 1. Division 6 of Part 8 of the National Law is headed "Appeals to Tribunal [NSW]". Subdivision 2 of Division 6 is headed "Appeal against actions by Council [NSW]" and includes the following provisions: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession— … (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; … Note— An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. … (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. (Emphasis added) 159B Appeals on point of law [NSW] (1) A registered health practitioner … who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal. Note— An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) Subsection (1) does not limit a right of appeal under section 159. (3) The Council must not make a decision that is inconsistent with the Tribunal's decision with respect to a point of law under this section. ... 1. Unless the Tribunal otherwise orders, an appeal under Division 6 does not operate to stay the effect of the decision being appealed against: s 161B. 2. Contained in Division 10 of Part 8, s 165L states: 165L Interlocutory orders [NSW] … (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. … (Emphasis added) Does the Tribunal have power to stay the operation of the decision under appeal? 1. The appeal brought by Dr Lee against the August 2020 Decision is an "external appeal" to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act): s 31(4) of the NCAT Act. Dr Lee relies on ss 159 and 159A of the National Law in bringing his appeal against that decision. It is not in issue that s 43(3) of the NCAT Act does not empower the Tribunal to stay or otherwise affect the August 2020 Decision: Medical Council of New South Wales v Lee [2017] NSWCA 282 [15], [97]. Nor is it in issue that the power conferred by s 165L of the National Law applies only to appeals under s 159B, being an appeal on a point of law, and not to appeals brought under s 159: Medical Council of New South Wales v Lee [14]. 2. The parties agree that s 159 gives Dr Lee the right to appeal the August 2020 Decision. The sole issue in dispute is whether, in addition, Dr Lee has a right to bring an appeal under s 159B and, as a consequence, the Tribunal has power to stay the operation of the August 2020 Decision. The answer to that question turns on whether that decision was made in exercise of the power conferred by s 150 of the National Law. 3. The Council contends that the August 2020 Decision was made in exercise of the power conferred by s 148E(1)(c). It contends that the power to impose conditions on a practitioner's registration conferred by ss 148E(1)(c) and 150(1)(b) are separate and distinct. 4. Dr Lee, on the other hand, contends that in making the August 2020 Decision, the Council was exercising a power conferred by both ss 148E(1)(c) and 150(1)(b). Pointing to the use of the word "must" in the latter, he contends that s 150(1) operates to mandate that, in exercising the power under s 148E(1), the Council suspend or impose conditions on a practitioner's registration if it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or if it is otherwise in the public interest. 5. Dr Lee contends that it would be an absurd result if the right to apply for a stay of the operation of a decision to impose conditions on a practitioner's registration was dependent upon which head of power the relevant Council stated it used to make that decision. 6. The Council contends that, as stated in the reasons for the August 2020 Decision, the decision was made in exercise of the power conferred by s 148E(1). The Council contends that the functions performed by the Council under Subdivision 5 and Subdivision 7 are different. The former involves dealing with a complaint "by inquiry" at a meeting of Council. The latter involves the making of orders by the Council to suspend, or impose conditions on, a practitioner's registration for the "protection of the public". The Council argues that, in contrast to orders made under s 148E(1), orders made under s 150 are in the nature of interim orders. 7. Whether the Tribunal has power to stay the operation of the August 2020 Decision requires consideration of whether the powers given to the Council to make orders under ss 148E and 150 can be exercised concurrently, and if not, whether the August 2020 Decision was made in exercise of the power conferred by s 148E or s 150. Can the powers conferred by s 148E and 150 be exercised concurrently? 1. The answer to this question requires consideration of the statutory scheme. As noted above, s 148E is contained in Subdivision 5 of Division 3 of Part 8 of the National Law; s 150 is contained in Subdivision 7 of Division 3 of Part 8 of the National Law. There are several differences between the powers conferred by each Subdivision and the rules governing their exercise. They include the following: 2. First, the powers conferred on the relevant Council by Subdivision 5, relevantly s 148E, are enlivened by a complaint about a registered health practitioner. In contrast, the Council may take action under Subdivision 7, relevantly s 150, whether or not a complaint has been made or referred to the Council about the subject health practitioner: s 150(4). 3. Second, the scope of powers available to a Council under Subdivision 5 are wider than those available to a Council under Subdivision 7. Under the former, the Council may caution or reprimand the practitioner; make an order for the withholding or refunding of part or all of the payment with respect to the fees to be charged or paid for the services that are the subject of the complaint; impose conditions it considers appropriate on the practitioner's registration; order that the practitioner seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling): s 148E(1)(a)-(d). In addition, the Council may recommend suspension or cancellation of a practitioner's registration (s 148G), and, in certain cases impose a fine on a practitioner (s 148F). In contrast, the powers available to a Council under Subdivision 7 are limited to the making of orders to suspend, or impose conditions on, a practitioner's registration: s 150. 4. Third, while Subdivisions 5 and 7 each give the Council power to impose conditions on a practitioner's registration, that power can only be exercised under the latter where the Council "is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons … or if satisfied the action is otherwise in the public interest": s 150(1). In contrast, the power to impose conditions under Subdivision 5 is subject only to the "paramount consideration" identified in s 3A of the National Law: the protection of the health and safety of the public. 5. Fourth, different procedures are prescribed for the exercise of the functions under each Subdivision. Under Subdivision 5, if a Council decides to deal with a complaint about a registered health practitioner by inquiry at a meeting of the Council, the meeting must be held in accordance with Part 3 of Schedule 5C and Subdivision 5: s 148A(1). At the meeting to deal with the Complaint, the Council is entitled to inform itself in any way it considers fit; may receive written or oral submissions; is not bound by the rules of evidence; and is required to proceed with as little formality and technicality as the law and a proper consideration of the complaint permit: s 148C(a)-(c). The subject practitioner is entitled to be present at the meeting and to make submissions: s 148D(1). The Commission is also entitled to make submissions to the Council but is not entitled to be present except while making submissions, unless the Council otherwise decides: s 148D(4). The practitioner is not entitled to be legally represented at the meeting but may bring a support person, including a lawyer: s 148D(6). Nor is the Commission entitled to be legally represented: s 148D(7). In contrast, Subdivision 7 does not mandate that the Council meet before exercising any of the powers conferred under that Subdivision. Nor does it give the practitioner a right to attend any proceedings relating to the exercise or proposed exercised of a power under that Subdivision. 6. Fifth, when exercising its functions under Subdivision 5, the Council must be constituted by a meeting of half its members, or at least three where the Council has more than four members: cl 19 of Sch 5C to the National Law. In contrast, Subdivision 7 permits the Council to delegate any function under s 150 to a group of two or more persons, at least one of whom must not be a registered health practitioner in the relevant health profession, or have been at any time registered as a health practitioner: s 150(7). 7. As the above summary reveals, there are material differences between the functions exercised by a Council under Subdivisions 5 and 7 and the procedures governing their exercise. Having regard to the text and context of ss 148E and 150, I am not persuaded by Dr Lee's submissions that the order to impose conditions on his registration in August 2020 could be characterised as being made in the concurrent exercise of the powers conferred by ss 148E and 150. The functions exercised by a Council under Subdivisions 5 and 7 are different and independent of each other. While the effect of decisions made under ss 150(1) and 148E(1) to impose conditions on a practitioner's registration may be the same, the pathways for making those decisions are different. Was the August 2020 Decision made under s 148E or s 150? 1. In making the August 2020 Decision, the Dental Council stated it made that decision under s 148E. The Council's characterisation is not determinative of which head of power the Council exercised. It is necessary to consider the circumstances surrounding the making of that decision. 2. Since first imposing conditions on Dr Lee's registration in November 2019, the Council has made a further four decisions relating to the conditions imposed on Dr Lee's registration. All but one of those decisions, the August 2020 decision, was stated to have been made in exercise of the power conferred by s 150A(3) to vary a decision made under s 150(1) following reconsideration. 3. As noted above, the decision made by the Council at its meeting on 3 April 2020 to vary the conditions on Dr Lee's registration was stated to have been made in exercise of the power under s 150A(3) of the National Law. In addition, at that meeting the Council decided to deal with the Complaint referred to it by the Commission under s 39(1)(c) of the Health Care Complaints Act "by Council Inquiry as a complaint of unsatisfactory professional conduct". On the available material, it is not clear why, in the absence of a further request for review made by Dr Lee under s 150A, the Council proceeded to conduct a further s 150A review on 6 May 2020 of its decision made on 3 April 2020. 4. In its reasons for the 6 May 2020 decision, referring to Condition 1 — "not to perform any acupuncture, dry needling or trigger point procedures" — and Dr Lee's claim of being awarded a fellowship by the American Academy of Craniofacial Pain, the Council wrote that "the Council Inquiry will be the appropriate forum for findings to be made as to whether Dr Lee does have the education, training and competence to be providing trigger point injections and dry needling procedures". 5. In a notice dated 13 July 2020, the Council advised Dr Lee of its decision to hold a "Council inquiry into a complaint of unsatisfactory professional conduct about you" on 31 July 2020. The Notice contained the particulars of that complaint. 6. While it may have been prudent for the Council to inform Dr Lee of the statutory basis of that inquiry, and the powers available to the Council, the information it gave to Dr Lee made clear that the foreshadowed inquiry was not a s 150A review. It may be that Dr Lee did not appreciate, or fully appreciate, the different appeal rights available in respect of a decision made by the Council to vary conditions imposed on his registration following the conduct of a s 150A review and an inquiry under Subdivision 5. Nonetheless, this is not a case where the practitioner was advised that the conditions on their registration were to be reviewed in exercise of the Council's power under s 150A, and later that the decision to vary the conditions had been made under a different head of power. 7. Section 150H is a further contextual factor which supports the Dental Council's contention that the August 2020 Decision was made under s 148E. Where, in relation to a complaint, a Council imposes conditions on the registration of a health practitioner under s 150, those conditions have effect until the complaint is disposed of or the conditions are removed by the Council: s 150H(2). Section 150H does not prevent conditions being imposed under another provision of the National Law: s 150H(3)(a). Conclusion 1. For these reasons, I conclude that the August 2020 Decision was made in exercise of the power conferred by s 148E. It follows a right to appeal from that decision under s 159B is not available to Dr Lee and, therefore, I do not have power to stay the operation of that decision. Orders 1. The Application to stay the operation of the decision made by the Dental Council of NSW on 4 August 2020 to impose conditions on Dr Kenneth Lee's registration is dismissed for want of jurisdiction. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 September 2020