Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kirby v Health Care Complaints Commission (No 2) [2022] NSWCATOD 190 Hearing dates: 15 October 2021 Date of orders: 20 January 2022 Decision date: 20 January 2022 Jurisdiction: Occupational Division Before: A Britton, Deputy President Decision: (1) The decision made by the Health Care Complaints Commission on 4 October 2016, to make a prohibition order and a publication order under s 41A of the Health Care Complaints Act 1993 (NSW), is set aside. Catchwords: ADMINISTRATIVE LAW — whether the precondition to the exercise of the power to make a "prohibition order" under the Health Care Complaints Act 1993 (NSW) is satisfied — whether registered dentist poses a risk to health and safety of public ADMINISTRATIVE LAW — administrative review — relevant date in determining an application for an administrative review under the Administrative Decisions Review Act 1997 (NSW) HEALTH —health practitioner — complaint of breach a code of conduct for non-registered health practitioners Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55 Kirby v Dental Council of NSW [2020] NSWCA 91 Kirby v Health Care Complaints Commission [2020] NSWCATOD 151 Kirby v Health Care Complaints Commission [2020] NSWSC 1133 Kirby v Health Care Complaints Commission [2021] NSWCA 138 Kirby v Health Care Complaints Commission [2021] NSWCATAP 157 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Category: Principal judgment Parties: Dr David Kirby (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: J Shellar SC (Applicant) P Lowson (Respondent) Solicitors: Graham Billing & Co (Applicant) Health Care Complaints Commission (Respondent) File Number(s): 2016/00378466 Publication restriction: NIl REASONS FOR DECISION 1. On 4 October 2016, the Health Care Complaints Commission (the Commission) issued a "prohibition order" under s 41A of the Health Care Complaints Act 1993 (NSW) (HCC Act) prohibiting dentist Dr David Kirby from "applying or administering black salve, red salve cansema or cansema-like substances to any person, whether at his dental premises or elsewhere" (Prohibition Order). In addition, the Commission decided to publish that order on its website together with a statement outlining its reasons for making that order (Publication Order). 2. Cansema is a substance used as a purported treatment for skin cancer. It is not entered in the Australian Register of Therapeutic Goods (ARTG) maintained by the Therapeutic Goods Administration (TGA). Since 2013, the TGA's website has carried a note advising consumers "against purchasing or using black salve, red salve or cansema products". 3. Dr Kirby unsuccessfully applied to the NSW Supreme Court for a declaration that the Commission's decision to make the Prohibition Order was void and of no effect: Kirby v Health Care Complaints Commission [2020] NSWSC 1133; Kirby v Health Care Complaints Commission [2021] NSWCA 138. 4. In November 2016, Dr Kirby made an application to the NSW Civil and Administrative Tribunal (NCAT) for administrative review of the Prohibition Order decision. These reasons address that application. The determination of that application was delayed because of related proceedings before the Tribunal and proceedings in the NSW Supreme Court initiated by Dr Kirby. 5. In December 2020, I refused Dr Kirby's application seeking a stay of the operation of the Publication Order: Kirby v Health Care Complaints Commission [2020] NSWCATOD 151. An Appeal Panel of NCAT dismissed Dr Kirby's appeal against that decision: Kirby v Health Care Complaints Commission [2021] NSWCATAP 157. 6. For the reasons that follow, I have decided to set aside the decision made by the Commission on 4 October 2016, to make a prohibition order and a publication order. Regulatory framework: HCC Act 1. Pursuant to s 23(1)(b) of the HCC Act, where a person makes a complaint under that Act concerning the professional conduct of a health practitioner, the Commission must investigate that complaint if, following assessment, it appears to the Commission that the complaint: (i) raises a significant issue of public health or safety, or (ii) raises a significant question as to the appropriate care or treatment of a client by a health service provider, or (iii) if substantiated, would provide grounds for disciplinary action against a health practitioner, or (iv) if substantiated, would involve gross negligence on the part of a health practitioner, or (v) if substantiated, would result in the health practitioner being found guilty of an offence under Division 1 or 3 of Part 7 of the Public Health Act 2010. 1. At the completion of an investigation of a complaint against a health practitioner, the Commission must do one or more of the things listed in s 39(1) of the HCC Act, which include taking action under s 41A of that Act: s 39(1)(g) of the HCC Act. 2. Section 41A of the HCC Act states: 41A Prohibition orders and public statements (1) The Commission may take action under this section if— (a) it has complied with Division 6 with respect to an investigation of a complaint against a health practitioner, and (b) it finds that the health practitioner has breached a code of conduct for non-registered health practitioners or has been convicted of a relevant offence, and (c) it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public. (2) The action that the Commission may take under this section is either or both of the following— (a) make a prohibition order that does any one or more of the following (i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently, (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently, Note — Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner. … 1. Section 41E requires the Commission to keep a register containing copies of all prohibition orders and interim prohibition orders in force under Division 6A of Part 2 of the HCC Act, and to make available for inspection by the public, free of charge, the contents of that register on the Commission's website. Administrative review of a decision to make a prohibition order 1. Where the Commission exercises the power conferred by s 41A of the HCC Act to take action under s 41A(2) (to make a prohibition order, place conditions on the provision of health services by the practitioner, issue a public statement in relation to a health practitioner), the affected health practitioner may apply to the NCAT for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act): s 41C of the HCC Act. 2. In reviewing a decision made by the Commission under s 41A of the HCC Act, the Tribunal must make the "correct and preferable" decision: s 63(1) of the ADR Act. The Tribunal may affirm, vary, or set aside the Commission's decision: s 63(3) of the ADR Act. Relevant time for consideration by the Tribunal in determining application for administrative review 1. The Commission (and, on review, the Tribunal) may take action under s 41A of the HCC Act (which includes the making of a prohibition order) only if, each of the matters listed in para (a), (b) and (c) of s 41A(1) are satisfied. These include that the Commission (and, on review, the Tribunal) "is of the opinion that the health practitioner poses a risk to the health or safety of members of the public": s 41A(c). 2. The parties agree that the matters listed in para (a) and (b) of s 41A(1) are satisfied. [1] 3. The Commission contends that, in determining whether Dr Kirby poses a risk to the health or safety of members of the public, the Tribunal must confine itself to consideration of the facts and circumstances that existed at the date of the Commission's decision (4 October 2016), not at the time the Tribunal determines the application for administrative review of that decision. Dr Kirby disagrees. 4. In Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55 at [39], the High Court, quoting Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ), stated: "This Court has stated on many occasions that 'the task of statutory construction must begin with a consideration of the [statutory] text'. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself." (Footnote omitted.) 1. Applying those principles, the Commission's suggested construction must be rejected for the following reasons. 1. Section 63(1) of the ADR Act which outlines the task the Tribunal is required to undertake "in determining an application for an administrative review" uses the present tense: "the Tribunal is to decide what the correct and preferable decision is …" (emphasis added). 2. The relevant provisions of the HCC Act also use the present tense: "the Commission may take action [under s 41A] if … it is of the opinion that the health practitioner poses a risk to the health or safety of members of the public" (emphasis added): s 41A(1)(c). 3. Neither the ADR Act, nor the HCC Act, state that, in deciding what the "correct and preferable decision is", the Tribunal must undertake that task by reference to the point in time the Commission made the administratively reviewable decision. 4. Section 63(1) of the ADR Act instructs the Tribunal to have "regard to the material then before it" (emphasis added), including "any relevant factual material". The Commission's suggested construction reads into s 63(1) a limitation which is inconsistent with its plain language. Further, there is nothing in Division 3 (Powers on administrative review) of Part 3 (Role of the Tribunal) of the ADR Act in which s 63 is contained, or the ADR Act as a whole, to suggest that the expression "any relevant factual material" should be read as excluding material which post-dates the administratively reviewable decision. 1. Although a different statutory regime was being considered, the decision of the High Court in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31, is consistent with this analysis. In that decision, the High Court (Kirby, Hayne, Heydon, Crennan and Kiefel JJ) rejected the proposition that the Administrative Appeals Tribunal in reviewing a decision of the Migration Agents Registration Authority to cancel the appellant's registration as a migration agent was restricted to considering the facts and events which had occurred at the time of the Authority's decision. At [142]-[143] Kiefel J explained: "In considering what is the right decision, the Tribunal must address the same question as the original decision-maker was required to address. Identifying the question raised by the statute for decision will usually determine the facts which may be taken into account in connection with the decision. The issue is then one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching a decision. It is not to be confused with the Tribunal's general procedural powers to obtain evidence. The issue is whether evidence, so obtained, may be taken into account with respect to the specific decision which is the subject of review. Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time." (Footnotes omitted) Background to Commission's decision to make a prohibition order 1. The following is largely taken from a summary contained in Kirby v Dental Council of NSW [2020] NSWCA 91 at [18]-[44]. 2. In July 2015, Dr Andrew Green, a dentist, was informed by a patient that she had been treated by Dr Kirby for skin cancer with cansema. Following advice from the chair of the Dental Council of NSW (the Council), in early August 2015 Dr Green made a complaint to the Commission. On or about 18 August 2015, the Commission forwarded Dr Green's complaint to Dr Kirby and requested his response and a copy of his medical records for the patient in question. Dr Kirby responded by denying the allegations and asserting that the person concerned had never been a patient of his dental practice. However, his response left open the question whether, though she might not have been a dental patient, he had nonetheless treated her, for cancer, with cansema. In October 2015, the Commission referred the complaint to the Council which in turn referred the complaint to the Council's Complaints and Notifications Committee (the Complaints Committee) for further investigation, to: "Consider a possible inspection at Dr Kirby's practice to examine his patient records to check if these files exist and to inspect if there are any alleged "Cansema" drugs on the premises." 1. On 21 October 2015, the Council wrote to Dr Kirby stating that the complaint made by Dr Green had been referred to it "for management", and that "any outstanding material relevant to the complaint and any other written submissions that you wish to provide" were "required" by 4 November 2015. Dr Kirby responded that, since the Council had not provided any additional material in relation to the complaint, he did not consider it necessary to provide any further response. 2. On 6 November 2015, the Complaints Committee recommended that the Council undertake an inspection of Dr Kirby's practice, for the following "reasons": "Kirby denies treating patient. Need to determine if unlicensed/illegal product is being used - Cansema sounds like a very nasty product and would be a source of concern." 1. The inspector appointed by the Council identified three areas of concern with Dr Kirby's practice: 1. Prescribing or administering cansema to patient; 2. Prescribing other drugs listed in Schedule 4 and Schedule 8 of the Poisons and Therapeutic Goods Act 1966 (NSW); 3. Infection control measures. 1. Following that inspection, on 2 December 2015, the Council's Executive Officer prepared a consultation paper for consideration by the Council which included the following information: "Source of notification of concern: Notification by Dr Andrew Green to the Health Care Complaints Commission. Summary of incident/concern: In his complaint Dr Green states that [Patient A] is a long standing patient of his practice since 1992. [Patient A] informed Dr Green that she was diagnosed with a [basal cell carcinoma] of the nose and that she was receiving treatment from Dr David Kirby , a general dentist, involving the administration of an illegal substance (CANCEMA). Dr Green claims that it places the patient at considerable risk of metastases and Dr Kirby is treating patients outside of the normal scope of practice for a dentist." 1. Following proceedings under s 150 of the Health Practitioner Regulation National Law (NSW) (National Law), on 18 December 2015 the Council suspended Dr Kirby's registration. On review under s 150A of the National Law, following an application made by Dr Kirby, the Council revoked the suspension and imposed a series of conditions Dr Kirby's registration. None related to Dr Kirby's use of cansema. Pursuant to s 150D of the National Law, the Council referred "the matter" to the Commission. Commission makes the Prohibition Order 1. As required by s 150D(3) of the National Law, the Commission dealt with the referral from the Council as a complaint made to the Commission against Dr Kirby. As a consequence, the Commission was required to investigate that complaint: s 23 of the HCC Act. The Commission decided to investigate: 1. those parts of the complaint relating to Dr Kirby's practice as a registered dentist; and 2. Dr Kirby's actions in prescribing cansema as a possible breach of the "Code of Conduct for non-registered Health Practitioners". 1. In August 2016, the Commission informed Dr Kirby that its investigation was complete and that it intended to take action under s 41A of the HCC Act. In a document titled "draft Statement for Decision of David Kirby", [2] the Commission set out its findings: 1. Dr Kirby provided a "health service" by administering cansema or cansema-like substances to a small group of people who attended his dental practice for that purpose between 2009 and 2015 (the Group); 2. Dr Kirby administered cansema to members of that group by various methods, including by use of a "puncture technique with needles"; 3. Dr Kirby has a longstanding belief in the efficacy of alternative herbal remedies; 4. Dr Kirby was interested in the diagnostic values of the skin's response to the application of cansema; 5. The purpose of applying cansema was to provide an alternative diagnostic and treatment of skin cancer; 6. Dr Kirby provided clinical reassurance about the benefits of cansema to at least one member of the Group who was concerned about the pain and inflammation she was experiencing following the application of cansema; 7. The evidence suggests that Dr Kirby did not obtain and supply the cansema administered to members of the Group but merely applied what was given to him, "unaware except vaguely of its constituent ingredients and strength"; 8. Cansema and cansema-like products are the subject of a TGA warning that there is a lack of credible, scientific evidence that they can diagnose, treat or cure cancer. Indeed, the evidence indicates that the use of the active of ingredient of cansema, leads to "indiscriminate death of normal and cancerous cells" and destroys both healthy and diseased cells to form a thick black scab which can be both painful and disfiguring. 1. The Commission concluded that Dr Kirby's actions in applying cansema and cansema-like products constituted a risk to public health and safety because it involved the application of a "potential harmful and ineffective therapeutic product" that is not entered on the ARTG and has been the subject of a warning by the TGA. In addition, the Commission found that Dr Kirby's actions breached the "Code of Conduct for non-registered Health Practitioners". 2. The Commission made the following order: "Dr David Kirby is permanently prohibited from applying or administering black salve, red salve cansema or cansema-like substances to any person, whether at his dental premises or elsewhere." 1. In addition, the Commission decided to publish that order on its website together with a statement outlining its reasons for making that order. Does Dr Kirby pose a risk to the health or safety of members of the public? 1. In affidavits prepared for these proceedings Dr Kirby stated: 1. Since the making of the Prohibition Order on 4 October 2016 he has fully complied with that Order; 2. Since May 2015, he has disassociated himself from any interest in cansema-like products and from persons who were members of the Group to whom he administered cansema, except his solicitor Mr Graham Billing; 3. Since May 2015 he has not had any dealings with cansema or cansema-type substances. 1. In support of the proposition that he does not pose a relevant risk, Dr Kirby points to: 1. The statement he made to a differently constituted Tribunal on 19 October 2016: "I have no intention of doing it [administering Cansema or Cansema-like substances] ever again or being associated with anything of that activity ever again. I don't know that I can make it any clearer than that I'm sorry." (Tcpt, 19 October 2016, p 55(11-18)) 1. His letter to the Council dated 17 December 2015 in which he proposed several conditions to be placed on his registration, including that he not attend "any further meeting of the support group" until the Council lifts those conditions; 2. His letter to the Council dated 3 February 2016, in which he proposed a "more comprehensive condition", the effect of which was that he will not apply, possess or receive from anyone (including members of the support group) cansema or cansema-like substances, or attend any further meetings of the support group; 3. His letter to the Commission, dated 28 September 2016, repeating those undertakings. 1. At least initially, Dr Kirby repeatedly insisted that the application of cansema and cansema-like products does not amount to providing care and treatment to the person to whom those substances were administered. For example, in a letter to the Commission dated 11 April 2016, in answer to the allegation that his "care and treatment of patients using cansema … raises a significant issue of public health and safety", Dr Kirby stated: "Treatment: I was merely an interested observer and I applied Cansema-like substance to members of the small group of people only at their request and only when asked to do so. I did not offer any treatment or advice on any treatment or outcome and I did not advertise or promote treatment. I did not supply the product. This small group of people shared similar views and we met to support each other and discuss issues. Patients: … There was no patient relationship between me any members of the group. The meetings of those present took place in my personal and private life." 1. In cross-examination, Dr Kirby: 1. acknowledged that he had a long-standing interest in alternative medicine which he described as embracing at one end of the spectrum "well recognised treatments", such as Chinese medicine and acupuncture, and at the other end, non-evidence based medicine; 2. agreed with the proposition that some members of the Group, such as his solicitor Mr Billing, had no faith in, and were reluctant to use, "western medicine". He claimed he and many members of the Group did not share that view; 3. said that he now accepts that he made an "unwise decision" in administering cansema and cansema-like substances and being involved with the Group; 4. said that he has learnt "my lesson and appreciated the gravity of the position"; 5. said that he now recognised that, because of his position as a dentist, he was mistaken in his belief that his actions in applying substances to members of the Group did not amount to providing care and treatment; 6. said that he accepts the advice given to him by the Council President, Mr Bill O'Reilly, that, given his position as a dentist, providing any type of care, regardless of context, amounts to providing treatment; 7. in addition, said that he accepts that, in any social or professional context, giving an opinion or advice about any health matter could be interpreted as giving medical advice and he will refrain from doing so in the future; 8. in the last six years, has not procured any ingredient to make up any alternative health treatment. 1. In answer to a question from the Tribunal about what he would do if the Prohibition Order was removed, Dr Kirby said that he had no intention of having any dealings with cansema, cansema-like substances or any alternative health treatment: "I'm through" he said. Submissions 1. Dr Kirby submits that the Tribunal can be satisfied that he does not pose a risk to the health and safety of the public for the following reasons: 1. Though expressed in different ways, since before the Prohibition Order was made, he has given numerous undertakings to the Council, the Commission and the Tribunal that he will not repeat the conduct which led to the making of that order; 2. In two separate affidavits and in oral evidence given in these proceedings, he has stated that he has dissociated from the Group, the use of cansema, similar products and alternative medicine; 3. There is no evidence that over the past five years he has not fully complied with the Prohibition Order and nor does the Commission suggest otherwise. 1. The Commission disagrees and submits the Tribunal could not be satisfied that Dr Kirby does not pose a risk to the health and safety of the public for these reasons: 1. The promises and undertakings given by Dr Kirby are unenforceable; 2. As late as December 2015, Dr Kirby was defending his actions stating that his actions in administering cansema did not constitute treatment, or pose a risk to the health and safety of the public; 3. Dr Kirby has never expressly acknowledged that cansema and cansema-like products are unsafe for human use; 4. His insight, such as it is, is limited to the adverse consequences his actions have had on him and his ability to continue to practise. Consideration 1. The history to the making of the Prohibition Order can only be described as bizarre. At the invitation of his solicitor, Dr Kirby, a registered health practitioner trained in western medicine, joined a group of "like-minded people" whose members apparently believed in the efficacy of a substance to treat cancer despite it not being registered on the ARTG and being the subject of a TGA warning. At the request of some members of the Group, Dr Kirby applied that substance to their skin. That only belatedly Dr Kirby acknowledged that his status as a health practitioner was relevant to the question of whether he was providing "health services" is, at best, surprising. On any view, Dr Kirby's actions in administering cansema and cansema-like products represented an appalling error of judgement and placed the health and safety of the people to whom he administered those substances at risk. Notably, this was not a one-off lapse of judgement but a lapse of judgement repeated on many occasions over several years. 2. Since December 2015, Dr Kirby has proffered undertakings not to repeat the conduct. However, as the Commission points out, at least initially, the form of the proposed undertakings was equivocal. 3. However, the issue I must decide is not whether Dr Kirby was a risk to the health and safety of the public but whether he now poses such a risk. Put simply, is there a risk that his conduct will be repeated? 4. I accept Dr Kirby's claim that, since mid-2015, he has had no involvement with the Group and the use of cansema and cansema-like substances. I also accept that, despite initially vigorously defending his actions, asserting that he was acting in a "private and personal capacity", and simply providing "assistance" as requested by members of the Group, he now accepts that that argument is misconceived. Dr Kirby now claims that he acknowledges that, given his status as a health practitioner, whenever he provides health services or care (however described), including verbal advice, he is effectively providing treatment and bound by his professional and ethical obligations as a health practitioner. I accept this acknowledgment. 5. Further, if for no other reason but his own self-interest, namely his not wanting to again be subjected to reputational damage and the possibility that he might again be subject to a prohibition order and/or have restrictions imposed on, or lose his registration, I accept Dr Kirby's claim that he has no intention of repeating the actions which led to the making of the Prohibition Order. In short, I accept that his experience of the disciplinary and protective proceedings taken against him since 2015 has had a salutary deterrent effect. 6. As the Commission points out, Dr Kirby has not gone as far as to expressly acknowledge that the efficacy and safety for human use of cansema has not been demonstrated. In addition, as the Commission points out, the undertakings given by Dr Kirby are unenforceable. 7. The critical issue for the Tribunal is not whether Dr Kirby has entirely given up the unorthodox belief system he acted on when applying cansema up until 2015 but whether there is any significant risk that he will continue to act on such a belief system, to the potential detriment of members of the public, despite all that has occurred since 2015. In my view, the weight of evidence before the Tribunal demonstrates, at the very least, that a combination of self-interest and pragmatism has deterred, and is very likely to continue to deter, Dr Kirby from repeating the conduct which led to the making of the Prohibition Order. Accordingly, I am not satisfied that Dr Kirby poses a current risk to the health and safety of the public. It follows that the power to make a prohibition order cannot be exercised. The Commission's decision must be set aside. Order 1. The decision made by the Health Care Complaints Commission on 4 October 2016, to make a prohibition order and a publication order under s 41A of the Health Care Complaints Act 1993 (NSW), is set aside. ********** Endnotes 1. In Kirby v Dental Council of NSW [2021] NSWCA 138 at [30], [60], the Court of Appeal held that while the Commission had failed as required by Div 6 of Pt 2 of the HCC Act to consult with the Dental Council with respect to its investigation of the complaint against Dr Kirby (s 41A(1)(a)), nonetheless that failure was not material and not fatal to the making of the Prohibition Order. 2. The document titled "draft Statement for Decision of David Kirby" (Exhibit R22), appears to be the final version of the Commission's statement of reasons for its decision to make the Prohibition Order. 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: 10 February 2023