DE SILVA v NSW MEDICAL BOARD [1996] NSWCA 146

DE SILVA v NSW MEDICAL BOARD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, CLARKE and POWELL JJA 12 and 13 December 1995, 25 June 1996

[1996] NSWCA 146

Decision of Medical Tribunal — appeal on errors of law — appeal on factual findings — estoppel in respect of earlier findings made by tribunals — adequate reasons for decision — disqualification for ostensible bias —

S39, s63, s64, s90 and s91 of the Medical Practice Act 1992 — not competent to practise medicine — insufficient mental capacity to practise medicine

In July 1994, a Professional Standards Committee, established under the Medical Practice Act 1992, found that the appellant, Dr De Silva, was not competent to practise medicine and suffered from an impairment within the meaning of s39 of the Act. An order was made that the appellant's name be removed from the Register of Medical Practitioners for New South Wales. From that order, the appellant appealed to the Medical Tribunal. The appeal was dealt with by way of re-hearing, the issues being whether the complaints against the appellant were made out and, if so, the appropriate orders to be made. The Tribunal reached the same conclusion and made the same order as the Committee.

Dr De Silva appealed to the Court on the basis that the Medical Tribunal erred in law in; allowing amendments to the complaint and particulars, admitting evidence of and taking into account certain facts, holding that the appellant's condition came within s39, failing to determine the case in a judicial manner, failing to give adequate reasons for the decision and failing to disqualify itself on the grounds of ostensible bias. The appellant also argued the Tribunal erred in making certain factual findings. The Court dismissed the appeal.

HELD:

(1) It is not open to the appellant to challenge any of the decisions of fact leading to the ultimate conclusion by the Tribunal that the subject matter of the complaints had been made out. However, a challenge to any additional factual findings made during the subsequent hearing which were relevant only to the order to be made would be open: Bannister v Walton [1993] 30 NSWLR 699. As virtually all the factual findings challenged were findings which grounded the conclusion that the complaints had been proved, they could not be raised on anneal.