Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ansari v Medical Council of NSW [2021] NSWCATOD 138 Hearing dates: 16 August 2021 Date of orders: 07 September 2021 Decision date: 07 September 2021 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Decision: (1) The application for a stay be dismissed. (2) That the cost of the respondent be paid by the applicant. Catchwords: HEALTH – health care professionals – medical practitioners – disciplinary proceedings – conditions imposed following a Hearing under Section 150 of the Health Practitioner Regulation National Law – application for stay against imposition of conditions Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Private Health Facilities Regulation 2010 (NSW) Cases Cited: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337 Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Hill v Medical Council of NSW [2019] NSWCATOD 52 Kalil v Bray (1977) 1 NSWLR 256 Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77 Kirby v Dental Council of New South Wales [2018] NSWSC 1869 Latoudis v Casey (1990) 170 CLR 534 Lindsay v NSW Medical Board [2008] NSWSC 40 Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 Medical Council of New South Wales v Lee [2017] NSWCA 282 Medical Council of New South Wales v Smithson [2021] NSWCA 53 New South Wales Bar Association v Stevens [2003] NSWCA 95 Qasim v Health Care Complaints Commission [2015] NSWCA 282 Steel v Medical Council of New South Wales [2020] NSWCATOD 77 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Category: Principal judgment Parties: Masood Ansari (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: M Hutchings (Applicant) H Bennett (Respondent) Solicitors: Avant Law (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2021/00195298 Publication restriction: Nil This decision has been amended. REASONS FOR DECISION 1. The Applicant, by application dated 8 July 2021 applies to the Tribunal for a stay of conditions upon his registration imposed by the Medical Council of New South Wales (the respondent or "Medical Council"). The applicant seeks the following orders: 1. That the decision of the Medical Council of 2 July 2021, to impose conditions upon the Applicant's registration, be stayed pending the Appeal. 2. That the hearing of the stay application be heard expeditiously. 3. Costs. The Appeal 1. Following a hearing convened under section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") on 18 June 2021, the Medical Council determined that conditions should be imposed upon the applicant's practice as a medical practitioner. The reasons and the conditions were published by letter of the Medical Council on 2 July 2021. The relevant conditions, in summary, included requirements: 1. that the applicant only perform his surgery in accredited day surgery or hospital approved by the Medical Council (condition 2); 2. that such surgery only be performed under Category C supervision in accordance with the applicant's NSW Compliance Policy – supervision (condition 3); 3. for all other medical practice, the applicant is to practice under Category C supervision (condition 4); 4. to provide the Medical Council with a record of all procedures undertaken during the preceding month within seven days of the end of each calendar month (condition 5). 1. By External appeal form dated 7 July 2021 the appellant, namely the applicant on this application ("the applicant"), appeals such conditions pursuant to section 159C of the National Law. The applicant's appeal seeks orders that the Medical Council erred in law in imposing each condition 2, 3, 4 and 5. It is alleged that each condition was not required for the protection of the health or safety of any person nor in the public interest; that the delegates failed to take into consideration or give appropriate weight to the applicant's evidence; and that the delegates failed to give adequate reasons for imposing the conditions. Essentially the same grounds are relied upon in support of the stay application. Facts 1. The applicant is a registered medical practitioner. The applicant was born in Pakistan and obtained a degree of Bachelor of Medicine and Bachelor of Surgery from the University of Karachi, Pakistan in 2002. He became a member (intercollegiate) of the Royal College of Surgeons of Edinburgh (UK) in 2006. He obtained a diploma entitled Advanced Surgical Practice, Cardiff University (UK) in 2010. 2. In the latter half of 2006 the applicant came to Australia. The applicant became a senior resident at the Royal Hobart Hospital and worked for three months in neurosurgery and three months in orthopaedics. He remained at that hospital from August 2006 to January 2007. Thereafter he was appointed Registrar at Geelong Hospital. He remained at that hospital (February 2007 to January 2008) as an unaccredited staff member before moving to the Austin Hospital and its alliance hospitals in regional areas. He worked there for four years (February 2008 to January 2011) as an unaccredited registrar. 3. The applicant undertook academic studies in cosmetic surgery. He stated to the Medical Council that he undertook 10 hours of academic time to study the academic syllabus and then took an examination of three parts. A written examination related to the non-surgical medical part of the cosmetic industry. The second part was a two hour theoretical examination conducted by the American Board of Cosmetic Surgery. The third part was a viva conducted by The Australasian College of Cosmetic Surgery. 4. The applicant became a Registrar in the Cosmetic Surgery with the Australasian College of Cosmetic Surgeons between 2011 and 2014. 5. The applicant has practised as a cosmetic surgeon at various clinics in the Sydney metropolitan areas from 2014 to the present. The applicant has not received any recognised surgical training in Australia as an accredited trainee. Surgical Procedure 1. A patient, ("patient A"), had consulted the applicant for an upper blepharoplasty, liposuction of neck, approximation of Platysmal bands, lower facelift and neck lift and fat grafting to chin and cheeks. Such surgery was performed on 16 July at the Surry Hills Day Hospital. Due to complications the patient was transferred by ambulance and admitted to St Vincent's Hospital Sydney on the same day. Such transfer was necessary because the plaintiff developed aspiration pneumonia. The patient was discharged from the hospital on 17 July 2020. 2. On 3 August 2020 patient A made a complaint relating to the procedure performed by the applicant. Accordingly the Medical Council convened a hearing under section 150 of the National Law. It identified the issues of concern as follows: * poor standard of clinical care with poor initial assessment; * continuation of the procedure placed the patient at a continued risk demonstrated by aspiration pneumonia; * failure of consent to form the procedure under general anaesthesia; poor post-operative care with wound dehiscence; and * inadequate presentation of qualifications and experience. Applicant's Practice 1. The applicant stated to the Medical Council that the bulk of his practice is injectables and also eyelid surgery and liposuction, breast surgeries, breast augmentation, facelift and "tummy tucks". The applicant stated that he undertook approximately 5 to 6 facelift operations annually. 2. The applicant used private surgeries in and around Sydney to perform such surgery and the procedure which has resulted in the complaint was performed at a surgery which was not an accredited facility. Patient's Instructions 1. Patient A had a first consultation with the respondent on 19 June 2020. The patient suffered from a condition known as chronic obstruction pulmonary disease ("COPD"). A week earlier namely on 12 June 2020, patient A had sent an email to the applicant stating: "I do not want a GA due to my concerns with my COPD". 1. At the consultation on 19 June 2020 patient A informed the applicant that she suffered from COPD. She stated that "a general anaesthetic was not something" which she could subject herself to as it was a high risk. The applicant reassured her that he only used "twilight sedation" for these procedures. A brochure advertising the applicant's services stated: "Most of our surgical procedures are performed in Day Surgery unit under twilight sedation and local anaesthesia. If we or the patient prefers general anaesthesia or if the procedure is combined with other major surgery, Dr Ansari will perform the procedure in a hospital with GA facility and with the assistance of the qualified anaesthetist." 1. On the following day she received paperwork and noticed that it indicated that she was to have a general anaesthetic. She contacted the applicant and his personal assistant by email stating that she did not consent to a general anaesthetic. In response the patient stated: "I was reassured by Dr Ansari that this was just standard practice, that he is aware of my concern and that he has never had to do this surgery under general anaesthetic". 1. Patient A alleges that she noted COPD twice on the form she was required to return to the applicant's PA for the anaesthetist. Having signed the consent form she wrote on it: "GA is not agreed-upon – (COPD)". 1. Patient A also claimed that she made the surgical team aware of her COPD and the risk of general anaesthetic when she informed the anaesthetist of this fact on the Saturday before the surgery (the fourth occasion). On the day of the surgery patient A stated that she again spoke to the anaesthetist prior to the surgery and reiterated her concern (the fifth occasion) that she only wanted a twilight sedation. The Surgery Procedure 1. The surgery proposed for patient A was expected to be of approximately five hours duration. The applicant believed that such surgery could be performed using twilight sedation (lignocane) comprising tumescent infiltration for her face. The applicant used "a tumescent technique for liposuction for the lower face and neck…" (Lower face being the jaw line). During that procedure 450 mls of fluid was used approximately and the applicant removed 80 mls of fat solution from her chin. The applicant performed anterior blepharoplasty; thereafter the facelift procedure on a pre-marked area. 2. However during the course of the surgery and 1 ½ hours into the facelift (or otherwise described as halfway through the surgery) it was noticed that the patient was suffering considerable discomfort as a result of which a general anaesthetic was administered by the anaesthetist. The administration of a general anaesthetic was contrary to the patient's written instructions. However the surgery was continued and as referred to above, it was necessary to transfer the patient to St Vincent's Hospital for treatment of aspirational pneumonia, deranged liver function tests and acute kidney damage. 3. The patient did not return to the applicant for post-operative treatment but instead consulted her general practitioner for the removal of sutures inserted above each ear. When the sutures were removed she noticed that the suture line had separated. The cosmetic surgery achieved a poor result. Unqualified Anaesthetist 1. The anaesthetist was not an accredited anaesthetist. When asked by the delegates all whether the anaesthetist was actually qualified as an anaesthetist the applicant responded: "What I know is that he's been accredited by the hospital. I've since come to know that, since this case happened and since this proceeding, I came to know from the insurance company that he is not a fellow of the anaesthetic College…" 1. The applicant stated that he understood that the anaesthetist had been the sole anaesthetist at Katoomba hospital for many years and had been providing anaesthesia in multiple hospitals, and currently in private hospitals. 2. The respondent was extensively questioned by the delegates of the Medical Council as to whether the patient could have been expected to remain immobile for such a long period in the absence of general anaesthesia. 3. Before the Medical Council hearing, when asked about the consent form, the applicant stated: Applicant: yes, we did know that she would prefer not to but we didn't, we never been told that she doesn't want it. She didn't want anaesthesia, she would rather have a sedation as an option. … She never said no general, if it's general anaesthesia or possibility of general anaesthesia I don't want this operation, she never said that and she never said that I don't want to have anaesthesia either. What she said was look, I'd rather have, as far as I know I shouldn't have because of COPD. That's what she said. Acknowledged failures 1. The applicant acknowledged that he had not previously operated upon a patient who had a low risk COPD. He acknowledged that was unusual and was questioned whether such a procedure should have been carried out upon a patient suffering from that condition. It is also apparent from the answers provided by the applicant that he did not notice that the consent form did not authorise the administration of a general anaesthetic. 2. The applicant stated that the case was "very unfortunate". He stated: "I think a major factor, the way it just went it did is that the lady suffered from anxiety and I think, looking back at the case, she may not be the right candidate to be done under twilight sedation and if I would have another go in the same way, I would have, you know, either, you know, do it under general anaesthesia, and if that's not what she's agreeing with, I wouldn't have done it." 1. Questions were asked of the applicant concerning two previous complaints. One was related to surgery in 2014 performed at a Crow's Nest clinic and another in 2018 concerning poor facilities and unhygienic conditions at the clinic. Such clinic was still used by the applicant at the date of the hearing. Conclusions of Medical Council 1. The Medical Council decided that Conditions should be imposed. Such conditions were published on 2 July 2021 and the delegates' reasons were published on 19 July 2021. A summary of the critical findings is as follows: 1. Discrepancies were noted between the applicant's recollection of patient A's instructions and the account given by the patient concerning the administration of a general anaesthetic. The applicant denied that patient A did not want to have a general anaesthetic. 2. The applicant had an incorrect understanding of the expected duration of local anaesthetic used; the fact that the applicant had not adequately conferred with the anaesthetist; that the applicant demonstrated a fundamental lack of knowledge in this area; that the patient had provided very clear advice concerning her desire not to have general anaesthesia; that the applicant used interrupted sutures in the skin which is not regarded as standard practice and is likely to be very unsuccessful. 1. The applicant was represented at the hearing before the Medical Council. Having taken the submissions of the applicant's legal representatives into consideration, the delegates formed the view that conditions should be imposed to protect the public. Findings of Medical Council 1. A summary of the delegates' finding is as follows: 1. it was inappropriate that the applicant would attend to perform a face lift, neck lift, neck liposuction and blepharoplasty under twilight sedation; 2. patient A should not have been operated on in a day hospital without experienced staff; 3. the procedure with twilight sedation placed the patient at increased risk of over-sedation with propofol and aspiration pneumonia. It increased the risk of a poor outcome of the surgery if a GA was suddenly required whilst neck and facial surgery was in progress; 4. the applicant's experience, when analysed, did not equate to him having the skills expected of a specialist surgeon; 5. there was an unacceptable delay of two hours before calling an ambulance to take the patient to St Vincent's Hospital; 6. the delegates noted that as the applicant's practice involved procedures requiring invasive surgery and anaesthesia, more intense Category A supervision was required; 7. the applicant had four prior complaints which related to poor practice, poor hygiene and allegations of poor outcome but the complaints were subsequently withdrawn; 8. a clinical review conducted on 3 May 2021 by a Consultant Plastic and Cosmetic surgeon noted that the applicant had no specialist qualifications as a surgeon and yet was representing himself to be an experienced surgeon; that the standard of care provided was poor; that contrary to the applicant's claim that general anaesthesia was intubated, a laryngeal mask airway was used which is an incorrect airway for the procedure resulting in early multi-system organ failure which was entirely preventable; the procedure itself was poorly performed with dehiscence and wound breakdown twice; the final clinical result was poor requiring revision. 1. The Delegates stated (written reasons: page 16): "It is clear to the delegates that Dr Ansari is inadequately trained and made serious errors in the treatment of [the patient] and he does not have full understanding of those errors." 1. In summary the concerns of the Tribunal included: 1. concern as to a fundamental lack of knowledge in the area of the use of local anaesthetic; 2. concern regarding the lack of consent and the fact that the applicant did not suspend the operation to obtain that consent; 3. concern by the use of interrupted sutures; 4. concern as to the applicant's capacity to assess patients as to their suitability to have proposed procedures; 5. concern that the website should be reviewed to ensure that the applicant is not misleading the public; 6. concern that the applicant should undertake practical surgical skills-based training. Applicant's submissions Condition 2 and Condition 3 1. The applicant has provided extensive written submissions and oral submissions at the hearing of this application. The essential submission is that Conditions 2 and 3 were unnecessary and unjustified; that such conditions arose directly from a misunderstanding of the regulations by one delegate upon the issue whether the Regulations permitted liposuction involving the removal of less than 2.5 litres of fat to be performed other than in a licensed facility ("the 2.5 L issue"); that such misunderstanding by that delegate has infected the minds of the other delegates and led to the imposition of these conditions. 2. During the section 150 hearing the applicant stated that he performed small liposuction in his surgeries, which he defined as those surgeries involving less than 2.5 litres of fat removal. One delegate disagreed that such a quantity was "small liposuction" and stated: I was under the impression that legally, anything done beneath the skin, had to be done in an accredited facility. So liposuction is beneath the skin… Applicant: My understanding is that liposuction, less than 2 ½ L of fat, can be done in the procedure rooms, given the best procedure rooms. When one is expected to take more than 2 ½ L that has to be done in a licensed hospital facility.… Delegate: I'll have to check that up but my understanding was anything under the skin was not supposed be done in an unaccredited facility. 1. The Chair agreed that this aspect needed to be checked, adding "that's probably something that is a separate issue". 2. Later in the proceedings the delegate who raised the issue stated: "I just have one suggestion. If we check the law about liposuction in anything but an accredited facility, if I'm correct, then Dr Ansari should not be doing that in his clinic. It should be done in an accredited facility". 1. The Chair then stated to the delegates: "Perhaps we can leave that with you and you can take it back to [applicant' solicitors] and ask them to double check those rules because obviously there is some disagreement here about what the rule is. It would be worth double checking just make sure he is in compliance." 1. A discussion followed concerning supervision which would be required of the applicant. The Chair indicated that the delegates would require Category A supervision before the applicant undertook further surgical procedures. Subsequent events 1. There is no evidence of any follow-up following the 18 June 2021 hearing concerning the 2.5 L issue. On 2 July 2021 the conditions were imposed. Before this hearing the Private Health Facilities Regulation 2010 (NSW), as amended, were produced by the applicant and were relied upon to show that any facility under the cosmetic surgery class that carries out, inter alia, liposuction involved in the transfer of more than 2.5 L of Lipoaspirate, must be licensed. By implication, a volume less than 2.5 L did not require licensed premises upon which such procedure could be lawfully performed. 2. It is a contention of the applicant that the applicant was authorised to carry out the surgery in the facility; that conditions 2 and 3 have resulted directly from the misunderstanding of the delegates as to the permissibility of performing liposuction in an unlicensed facility. The Medical Council disputes that the conditions imposed result from the 2.5 L issue alone, and took into consideration other evidence which was of concern to the delegates. Consideration 1. The Tribunal notes that the Chair expressed the opinion that the 2.5 L issue was "a separate issue". From this statement, it may be inferred that it was separate to the principal consideration before the Tribunal, namely the competence of the applicant to perform cosmetic surgery. 2. The Tribunal finds it impossible to draw the inference at this interlocutory hearing that any confusion concerning the issue of whether the applicant was authorised to carry out the procedures has necessarily resulted in the making of conditions 2 and 3. 3. Whilst the provisional belief of one delegate was mistaken, there was no concluded opinion expressed by the remaining delegates. At the conclusion of the hearing, the 2.5 L issue was left unresolved, to be determined subsequently. 4. There was an abundance of evidence before the delegates to indicate to them that the making of the orders requiring supervision as set out in conditions 2 and 3 was necessary for the protection of the public. Inherent in condition number 2 is the concern that the applicant may be conducting procedures in circumstances where there may be inadequate facilities for the conduct of those procedures. There was evidence before the delegates that the facilities at the premises where the applicant was performing his procedures may have been inadequately equipped. Condition 2 does not refer to the 2.5 L issue, and, contrary to the submissions of the applicant, it is not possible for the Tribunal to determine that this was the catalyst for inclusion of this condition. To consider that such condition was imposed solely because of a 2.5 L issue ignores the other evidence which gave rise to concern about the procedures conducted by the applicant. The applicant himself acknowledged he didn't know whether equipment, such as a microscope, was available at the Surry Hills Day Hospital. The applicant stated: "If I would get a second ago, I would probably do [sic – go] somewhere where there are better resources than the Surrey [sic] Hills Day Hospital." 1. The Delegates were also concerned that the procedures conducted by the applicant should not be performed other than in properly equipped premises, and that the procedures conducted by the applicant involving anaesthesia necessitated the use of appropriate facilities. The delegates said: "While Dr Ansari made the point that his anaesthetist prepares the anaesthetic for the day surgery, when he undertakes procedures in his room such as "small liposuctions" where he uses tumescent local anaesthetic, he has known anaesthetist there. In order to undertake procedure safely he must have a good knowledge of appropriate local anaesthesia, its duration of effectiveness and its safety. That was not evident upon questioning." 1. Condition 3 has obviously been formulated to address the concerns which were revealed during the hearing concerning the expertise of the applicant. The Council found that the training of the applicant should be contrasted with those of a specialty surgeon. Having referred to the training and qualifications of the applicant, the delegates stated: "This training can be contrasted with that undertaken by specialty surgeons. The expert delegate indicated that a specialist surgeon will generally undertake 2 to 3 years with specialty unaccredited training then 4 to 5 years of intensive specialty training, which also involves at least 10 hours of academic time per month for 4 to 5 years, to equip them with the skills necessary for patient selection and assessment. The Royal Australian College of Surgeons (RACS) examinations are written, and there are five viva examinations including two clinical fevers. A pass mark of 90% is required to obtain Fellowship and qualifications in plastic surgery. Dr Ansari is not a member of the RACS and the Australian Medical Council, the body responsible for accreditation of specialist colleges, does not recognise the ACCS (Australasian College of Cosmetic Surgery) as an approved college for accredited training in any surgery. Given this, delegates paid particular attention to the complexity of the procedures being undertaken by Dr Ansari with a view to assessing the appropriateness and adequacy of both his skills training and professional knowledge." 1. The Medical Council correctly points out that the onus lay upon the applicant to produce the requisite regulation before the decision was made by the delegates. It did not do so. Further, the Medical Council points out that the applicant had the option of seeking a review of the conditions under section 150A of the National Law; or appearing under section 159 on the basis of new evidence in accordance with section 159(3). None of these options were followed. 2. In the Tribunal's assessment, it cannot be inferred that the conditions 2 and 3 resulted solely from any misunderstanding concerning the facility: rather, the conditions have been imposed because of the delegates' concerns about the competence of the applicant. Website Submission 1. The delegates formulated a recommendation and included it at the conclusion of the statement of Conditions, as follows: "Dr Ansari should review his website to ensure that he is not misleading the public about his training as a surgeon." 1. The applicant claims that such recommendation is unjustified. 2. The transcript of the Council hearing records its concern that the applicant may be advertising professional qualifications which are misleading. In particular, one delegate stated (TP 12): No, but I'm a bit perturbed that on your webpage you say you are a member of the Royal College of Surgeons of Edinburgh and it's a very fancy diploma type award that you have for that matter which I presume you probably have on display. Do you think that makes or do you think that the general public would interpret that as being a full fellow of the College of Surgeons? Do you think that they, looking at that, would think you are a fully trained surgeon from Edinburgh? Applicant: I haven't, as far as I know on the website we haven't said that's a fully, it's compared to a full surgical qualification. Delegate: you don't say that but do you think the general public would just presume it is? They don't know all the intricacies of things. Applicant: I'm not sure, you know, I can't say how the general public will perceive it. What I can say, I just put exactly what I got. 1. This issue arose because such certificate was issued once the applicant had sat for a basic level of surgical examination and therefore became a member of the Royal College of Surgeons of Edinburgh. The delegates were concerned that the publication of such qualification could readily mislead the public into believing that the applicant was a full fellow of that College. 2. The Tribunal considers there was prima facie adequate basis for such a recommendation. Clause 9 of the Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures, published by the Medical Board of Australia states: 9 Qualifications and titles 9.1 A medical practitioner must not make claims about their qualifications, experience or expertise that could mislead patients by implying the practitioner is more skilled or more experienced than is the case. To do so is a breach of the National Law (sections 117 – 119). 1. The detailed consideration of the basis for the recommendation and its utility is a matter for consideration if this matter is raised when the appeal is determined. Sutures 1. A further issue was raised concerning the removal of sutures following patient A's surgery. Sutures were applied above each ear. Whilst the applicant would have removed the sutures, the patient attended her general practitioner for the removal. The applicant claims that he should not be held responsible for any defect with regard to the sutures and the poor result which followed from their removal. 2. The delegates stated in their conclusions: "Delegates were also concerned by the use of interrupted sutures in the skin which take longer and the lack of supporting sutures. This is not standard practice and is unlikely to be very successful." 1. There are no conditions which specifically deal with the issue of sutures. However during the course of the hearing a discussion took place concerning the type of sutures used in the procedure undertaken by the applicant, and this discussion led to the observation made by the delegates. The applicant appears to be confusing the aspect of removal of the sutures compared to the type of sutures which was addressed by the delegates. They did not make any observation concerning the removal of the sutures. Accordingly, the submission is irrelevant especially as this issue is not raised as a ground in the appeal. Power to grant a Stay 1. Whilst the Tribunal has a general power to stay proceedings pending an appeal as provided by s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW), this power has no application to proceedings under the National Law, which provides an exclusive code: see Hill v Medical Council of NSW [2019] NSWCATOD 52 at [18]-[20]; Medical Council of New South Wales v Lee [2017] NSWCA 282 per Sackville AJA. Nevertheless, the Tribunal may stay a decision pending an appeal on a point of law pursuant to section 161B and section 165L(2) of the National Law which relevantly provide: 161B Appeal does not stay a decision [NSW] An appeal under this Division does not operate to stay the effect of the decision being appealed against unless the Tribunal otherwise orders 165L Interlocutory orders [NSW] (1) … (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. 1. Section 159B of the National Law provides for appeals on a question of law, and the applicant's External appeal raises several issues of law arising out of the imposition of the conditions. Accordingly power exists for the grant of stay under the National Law. Stay Principles 1. The principles concerning the grant of a stay have been succinctly referred to in Hill and in Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 at [11]-[12]. A summary of the principles is as follows: 1. The onus rests on an applicant for a stay to make out a case that it is appropriate to make such an order. 2. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. 3. The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay. 4. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. 5. In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. 6. The overriding principle in an application for a stay is to ask what the interests of justice require. 1. The applicant submits that such principles should be considered in view of the object of the National Law and the paramount consideration of the protection of the health and safety of the public set out in section 3A: see Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77. Those principles are not in dispute. But this application relates to s150 proceedings. Section 150 proceedings 1. It is useful to state the principles underlying the imposition of conditions following a section 150 hearing. In Steel v Medical Council of New South Wales [2020] NSWCATOD 77, Judge Boland when dealing with an appeal under section 159B, summarised the principles derived from recent decisions of the Court of Appeal to be applied in s 150 proceedings and appeals. At [26]-[33], Judge Boland said, relevantly: Three recent decisions of the Court of Appeal (Kirby v Dental Council of New South Wales [2020] NSWCA 91, Health Care Complaints Commission v Windsor [2020] NSWCA 110 and Ghosh v Medical Council of New South Wales [2020] NSWCA 122) have considered the provisions of Division 3 Sub-division 7 and Division 6 Sub-division 2 of Part 8 of the National Law. In Kirby v Dental Council of New South Wales Brereton JA in his reasons explained the role of s 150 at [12] and [15] as follows: Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice, s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion. … In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied – regardless of how the matter comes to its attention – it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints. As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public. 1. Judge Boland also referred to the observations of Barrett AJ at first instance (see Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [6]): Section 150(1) assumes, clearly enough, that a Council will perform an evaluative task in relation to circumstances concerning a practitioner that come to its notice. The evaluation must focus entirely on what is required to protect the health and safety of relevant persons and on the requirements of the public interest. Considerations of punishment are foreign to the assessment. 1. Judge Boland also referred to the observations of Payne JA at [2] in the Court of Appeal decision above where His Honour observed: Section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") imposes a positive duty on the Council to act, in one of several specified ways, if the Council is satisfied that it was appropriate to do so for the protection of the health or safety of any personal persons or otherwise in the public interest. 1. The National Law provides a very broad power to the Council in s 150. In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115, the Tribunal said at [49]: The power to suspend created by section 150 has been described, in terms of its predecessor legislation, as "Draconian" (see Levine J in the Supreme Court of NSW in X v NSW Medical Board (1993) 32 ALD 330 who determined that in appropriate cases the respondent should be given an opportunity of being heard before a suspension was imposed). Nevertheless, as the authorities to which we shall refer make it plain, the provision exists for the protection of the public. 1. Accordingly, there is express recognition that the power provided by section 150 may have far-reaching consequences, including suspension from practice. At [56] in Crickitt, the Tribunal again dealt with the width of the power provided by s 150 stating relevantly: (4) Nevertheless, the "Draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R v Medical Board at [28]). Application of principles 1. It is necessary to have regard to the basis upon which the delegates formed the conclusion that conditions were necessary upon the practice of the applicant. Those grounds are stated in the reasons of the delegates published on 19 July 2021, the basis for which arises from the complaint and the hearing convened on 18 June 2021. 2. Of particular concern to the delegates was the fact that the applicant was not sufficiently accredited to perform the surgery which he was undertaking; that his training and experience were inadequate; that the facilities he was using to conduct his surgery were inadequate; that he had no or inadequate appreciation of the risks that he was undertaking when he considered that the "twilight" anaesthetic would be adequate to perform a surgery of an expected duration of five hours requiring the patient to be motionless for this period of time; that the applicant had paid no regard to the consent form signed by the patient; that the applicant was prepared to continue with the surgery even though he had only recently received the blood tests relating to the patient; and that the patient suffered from renal problems. 3. The delegates did not exercise the power to suspend but in their discretion considered that conditions, as formulated, were essential for the protection of the health and safety of the public if the applicant was to continue to practise as a registered practitioner. The Tribunal observes that, unlike the circumstances in Crickitt, no suspension has been imposed and further, the applicant was represented legally at the s 150 hearing. The Tribunal is mindful that the findings of the Medical Council are purely interlocutory (see Hall J in Lindsay v NSW Medical Board [2008] NSWSC 40 relating to the predecessor legislation namely section 66 of the Medical Practice Act 1992 (NSW) (repealed)); however, they provide the basis for the making of the conditions. 4. The need to protect the health and safety of the public has been repeatedly referred to: see for example Health Care Complaints Commission v Do [2014] NSWCA 307 where Meagher JA said (inter alia) at [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. 1. In the proceedings now before the Tribunal, that objective was, in the opinion of the delegates, achieved by the imposition of the conditions. 2. The Tribunal has had regard to the grounds of appeal. These will be determined by the Tribunal when the appeal is determined in accordance with the principles referred to in Medical Council of New South Wales v Smithson [2021] NSWCA 53 at [20]. 3. It is not the function of the Tribunal, on this interlocutory application, to consider the merits, save as to say that it has been submitted that the decision was tainted with Wednesbury unreasonableness, that is, that no decision-maker, properly informed, could have reached such a decision as considered in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. It is not possible, on this application, to determine whether such a ground could succeed. However, taking into account the content of the evidence before the section 150 hearing, the Tribunal is satisfied that there is at least a prima facie basis for the making of the conditions. As was stated in Kalil v Bray (1977) 1 NSWLR 256 (in relation to the Veterinary Surgeons Act 1923 (NSW)): The tribunal… will no doubt, give due weight to such expert evidence, if any, as may be placed before it. But the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is the tribunal itself. This is a responsibility to be discharged by drawing on its own internal resources of knowledge of veterinary science. 1. By analogy, the delegates have used their expertise to formulate conditions as they consider necessary for the protection of the public. The conduct of the procedures upon the patient has given rise to concern relating to the competence of the applicant to perform such procedures. 2. If a stay is not granted, it will have a consequence that the applicant will be required to practise subject to the conditions. Whilst this may not be convenient for him, his appeal will not be rendered nugatory. The grounds raised in the External appeal form raises principally questions of law which are arguable under section 159B, and it could not be said that the appeal was hopeless. Nevertheless, the Tribunal is satisfied that the public interest, as considered in New South Wales Bar Association v Stevens [2003] NSWCA 95 at [91], [103], [112]-[115] per Spigelman CJ, is a factor to be considered in the exercise of the Tribunal's discretion to grant a stay. The public interest is served by the continuation of the conditions in the interim pending the hearing of the applicant's appeal. The balance of convenience weighs against the grant of a stay and the applicant has not discharged the onus of proof that the circumstances warrant a stay. Costs 1. Each party makes an application that its costs be paid by the other party. As the applicant has been unsuccessful, the Tribunal considers that the usual rule should apply that costs should be paid by the unsuccessful party and it will accordingly so order, in accordance with the principles followed in Qasim v Health Care Complaints Commission [2015] NSWCA 282 especially at [84]-[85]; Windsor v Health Care Complaints Commission [2020] NSWCA 110; Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337; Health Care Complaints Commission v Philipiah [2013] NSWCA 342, at [42]-[44]. It should be noted that the costs are not punitive in nature, but solely compensatory: see Latoudis v Casey (1990) 170 CLR 534 especially at 543 (per Mason CJ). The Tribunal may award costs specifically under the provisions of the National Law: see clause 13 of Schedule 5D. Orders 1. The Tribunal orders that: 1. The application for a stay be dismissed. 2. That the cost of the respondent be paid by the applicant. ********** 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 Amendments 08 September 2021 - Incidental heading removed between [9] and [10] 16 September 2021 - (1) Typographical error corrected in the catchwords (2) [62] - "the Presiding Member (Wright J)" and "his Honour" corrected to "Judge Boland" (3) [63] - "His Honour" corrected to "Judge Boland" (4) [64] - "Wright J" corrected to "Judge Boland"; "to" inserted after "referred" 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: 16 September 2021