LEICESTER v WALTON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KIRBY P 13 June 1995 [1995] NSWCA 256 MEDICINE — professional misconduct — professional discipline — order by Medical Tribunal that practitioner be suspended for excessive prescription of benzodiazepines — appeal to Court of Appeal — application for stay of Tribunal's orders — held: (1) In providing a stay, the Court was obliged to treat as paramount the protection of the public; (2) The Court is also obliged to protect the utility of the appeal which has been provided by Parliament; (3) Stay granted upon conditions imposed by the Tribunal but omitting (a) suspension; and (b) confining practice to that of employee which would require sale of present practice in advance of the appeal; (4) Hearing expedited. Kirby P. Before the Court is an application for a stay of the operation of orders of the Medical Tribunal (the Tribunal) in respect of Dr Robert Duncan Barnaby Leicester (the medical practitioner). The Tribunal, on 17 May 1995, made orders, in effect, suspending the medical practitioner from practising for a period of six months, imposing upon him certain conditions designed to regulate his practice in respect of the prescription of certain drugs of addiction and ordering him to pay costs. The medical practitioner appeals to this Court, as he is entitled to do. The appeal is not against the determination in its substance. It is against the orders which the Tribunal made. Those orders, as is frequently said, are not for the punishment of the medical practitioner, but for the protection of the public. I keep that purpose in mind as the paramount consideration in approaching this application for a stay. The appeal has not yet been listed for hearing. Obviously, in the interests of the medical practitioner and of the public, the hearing should beexpedited. In due course I will propose a degree of expedition. The question arises as to what should happen in the interim? The opponent, who was the complainant in the Tribunal, opposes the provision of a stay. She says that, for the protection of the public, the orders made by the Tribunal should take effect immediately. However, Parliament has provided the medical practitioner with a right to appeal to this Court. It is important that that right should not be lost simply because of the heavy burden of the Court's list. The right was conferred by Parliament to be a reality. It is the duty of the Court to protect its utility. The appropriate balance between doing so and protecting the public is, in my opinion, to provide the stay but upon conditions similar to those imposed by the Tribunal. There should be deleted, at this stage, the order of suspension, which is, as I have been informed, the substantive matter in the appeal. I would also not require the medical practitioner, at this stage, pending the outcome of the appeal, to relinquish his private practice. The Court has been told that his mode of practice is substantially as a locum. However, he has a surgery in the Gosford area which he has maintained for a number of months. It would be inconvenient to require him now to dispose of that 2 UNREPORTED JUDGMENTS practice pending the outcome of the appeal when this Court will have the opportunity to consider whether some other or different order should be made. One of the bases for opposing the grant of the stay was the information conveyed to the Court (although not strictly proved) that since the proceedings, the subject of the appeal, a further complaint has been made of the kind which was dealt with by the Tribunal in the instant proceedings. I am disinclined to attach much weight to that intimation: It has not been the subject of a charge. Still less of a hearing before the Tribunal. It is fundamental that a person should not be dealt with, in such serious matters, without a full opportunity to know what is charged and to test and meet it. The jurisdiction of the Tribunal and the Court being for the protection of the public, it is important to make it plain to the medical practitioner that any further professional misconduct, particularly during the period that the matter awaits a determination by this Court, will be taken most seriously by the Tribunal and the Court. It could result in further orders of the Tribunal which demonstrate the resolution of the Tribunal to protect the public from the unnecessary or excessive prescription of benzodiazepines and other like addictive drugs. For these reasons, which I have expressed shortly, the orders which I make are: 1) Stay the operation of the order of the Medical Tribunal herein, dated 17 May 1995, until the hearing of the appeal or until any further or other order of the Court or of a Judge of Appeal; 2) Order expedition of the hearing of the appeal (Category C) to the intent that the appeal will be heard within a period of four months; 3) Dispense with the Rules of Court relating to appeal books to the intent that the appellant will prepare a compilation of papers, with index, in lieu of appeal books; 4) Order written submissions; 5) Order that the stay provided in order 1) be upon the following conditions: a) As 2) in the orders of the Tribunal; b) As 4) in the orders; c) As 5) in the orders; d) As 6) in the orders; and e) As 7) in the orders. 6) Order that the costs of the proceedings before the Court today be costs in the appeal. 1) Stay the operation of the order of the Medical Tribunal herein, dated 17 May 1995, until the hearing of the appeal or until any further or other order of the Court or of a Judge of Appeal; 2) Order expedition of the hearing of the appeal (Category C) to the intent that the appeal will be heard within a period of four months; 3) Dispense with the Rules of Court relating to appeal books to the intent that the appellant will prepare a compilation of papers, with index, in lieu of appeal books; 4) Order written submissions; 5) Order that the stay provided in order 1) be upon the following conditions: a) As 2) in the orders of the Tribunal; b) As 4) in the orders; c) As 5) in the orders d) As 6) in the orders; and URJ LEICESTER v WALTON (Kirby P) 3 e) As 7) in the orders. 6) Order that the costs of the proceedings before the Court today be costs in the appeal. 5 Counsel for the appellant: M A Robinson Solicitors for the appellant: Edson Pike Counsel for the respondent: H G Murrell 10 Solicitors for the respondent: David Swain (Health Care Complaints)