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. (2) Having regard to CL3 of Schedule 2 of the Act which allows the bringing of additional complaints and s87(4) which deals with the admission of fresh evidence on the appeal, and in the absence of any suggestion that there was a denial of natural justice or procedural unfairness, there was no error of law in allowing amendment to the complaint and particulars. (3) Even if, as a matter of principle, estoppel operates in respect of findings made by tribunals prior to the determination in question, here the nature of the earlier findings is such that all that would be covered by any estoppel would be the proposition that as at the dates of those enquiries the appellant was fit to practise provided conditions were imposed: Law Society of New South Wales v Weaver [1977] 1 NSWLR 67, affirmed (1979) 142 CLR 201. (4) To successfully challenge the finding that the appellant's condition came within the definition of "insufficient mental capacity to practise medicine", the appellant must establish either that there was no evidence to support the complaints or that on the findings 2 UNREPORTED JUDGMENTS of fact the only answer available was that the statutory conditions had not been met. Neither proposition has been made good: Azzopardi v Tasman UEB Industries [1985] 4 NSWLR 139. (5) There was neither a failure to give adequate reasons or a failure to accord the appellant a fair hearing or to deliver a judicially reasoned judgment: Soulemezis v Dudley (Holdings) Pty Ltd [1987] 10 NSWLR 247. (6) Where a judge has not previously considered the credibility of witnesses, or in any other way prejudged any of the issues with which the hearing is concerned, then, unless there are reasons disassociated from any prior hearing why a judge may be thought to be prejudiced, it is difficult to find a basis upon which it could be held that a person might reasonably apprehend that the judge was biased. The appellant here has not satisfied the test: Australian National Industries Ltd v Spedley Securities Ltd (In Liq) [1992] 26 NSWLR 411. ORDERS Appeal dismissed with costs. Priestley JA I agree with Clarke JA. Clarke JA Dr WJK De Silva (the appellant) has appealed from a decision of the medical tribunal dismissing an appeal to it against the findings and recommendations of a professional standards committee and against the order of the Chairperson of the Tribunal made in accordance with such recommendation that the appellant's name be removed from the Register of Medical Practitioners for the State of New South Wales. The immediate background to the appeal to the Medical Tribunal was as follows: A Professional Standards Committee was established under the Medical Practice Act 1992 (the Act) to investigate two complaints against the appellant which read: (1) That Dr De Silva was not competent to practise medicine within the meaning of s39 of the Act; and/or (2) Dr De Silva suffers from an impairment as referred to in s39 of the Act. On 22 July 1994 the Professional Standards Committee found both of the complaints proved, made a finding that the appellant did not have sufficient physical and mental capacity to practise medicine and recommended to the Chairperson of the Tribunal that the appellant be deregistered. Such findings and recommendation were made pursuant to s63 of the Act. On 28 July 1994 the Chairperson of the Tribunal, having received such findings and recommendation, made an order in accordance with such recommendation that the appellant's name be removed from the Register of Medical Practitioners for the State of New South Wales pursuant to s63 of the Act. From that order, and the findings and recommendation, the appellant appealed to the Medical Tribunal. The appeal was dealt with by way of re-hearing and the issues before the Tribunal were whether either of the complaints made against the appellant had been made out and, if so, the appropriate orders to be made in relation to the appellant. In his notice of appeal to this Court the appellant raised ten separate grounds all of which concerned the findings of fact made by the Medical Tribunal. However, in their comprehensive written submissions counsel for the appellant sought leave to rely on amended grounds of appeal which read as follows: "LAW The Tribunal erred in law as follows: 1. In allowing amendments to the complaint and particulars. URJ DE SILVA v NSW MEDICAL BOARD (Clarke JA) 3 2. In admitting evidence of facts predating the decision of the Professional Standards Committee of 1 December 1989 and the report of Dr Ellard of 14 July 1992. 3. In making findings of fact on or taking into account facts predating the decision and report referred to in para2. 4. In holding that the Appellant's paranoid personality disorder together with excitable temperament came within the definition of insufficient mental capacity to practice medicine in s39 of the Act. 5. Failure to determine the case in a judicial manner in: (a) making findings against the Appellant before considering his case; (b) failing to make any or any adequate assessment of the evidence or demeanour of the Appellant; 6. Failure to give adequate reasons for the decision. 7. In holding that the Appellant's historical and/or current position was that he had never made a mistake in that the evidence was not capable of supporting such a finding. 8. The finding that the Appellant suffers from brief psychotic episodes requiring removal from the Register was not part of the case alleged against him and not foreshadowed as a finding and the Appellant was therefore denied procedural fairness. 9. Finding that in relation to patients in the future the Appellant may well resort to physical violence in that the evidence was not capable of supporting such a finding. 10. Failure to disqualify itself on the grounds of ostensible bias in that: (a) the same members of the Tribunal determined the stay application on 29 and 30 September 1994; (b) the reserved Reasons for Decision of the Tribunal by themselves or combined with (a) show ostensible bias. FACTS 11. The Tribunal erred in making the following findings: (i) That the Appellant lacked sufficient mental capacity to practice medicine within s39 of the Act; (ii) That the Appellant suffered an impairment within s39 of the Act; (iii) The findings as to reactions to fellow doctors and medical staff; (iv) The findings as to relations with patients; (v) The findings as to the history of over-reaction and bizarre behaviour; (vi) The findings as to level of capacity for admission of error and level of preparedness to seek a second opinion; (vii) The findings as to beliefs as to conspiracies; (viii) That the Appellant's paranoid personality is not encapsulated and has spread to all aspects of his life including the practice of medicine; (ix) That in relation to patients in the future the appellant might well resort to physical violence; (x) That the Appellant may resort to physical violence if his wishes were not followed in relation to a patient; (xi) That the Appellant suffers brief psychotic episodes; (xii) That the Appellant is slowly getting worse and that he is unlikely to improve with treatment." The court reserved the grant of leave to the appellant to rely upon the amended notice of appeal in place of the earlier notice for determination in the final decision. In my opinion, as the Court has heard argument on all, or most, of those 4 UNREPORTED JUDGMENTS grounds, the leave should be granted. In these circumstances it will be convenient to approach the points raised in the appeal by reference to the new grounds. In their written submissions the appellant's counsel also raised an issue as to the nature of the appeal from the decision of the Medical Tribunal to this Court. While this subject is not expressly adverted to in the amended grounds of appeal it is raised, I apprehend, because it is recognised that some of the submissions gathered together under the general heading "Law" are not, strictly, concerned solely with alleged errors of law. In these circumstances I will, initially, consider the nature of the appeal. NATURE OF APPEAL An appeal from the Tribunal is provided for in s90(1) of the Act which reads: "A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against: (a) A decision of the Tribunal with respect to a point of law; or (b) The exercise of any power by the Tribunal under Division 4 (Disciplinary Powers of Committees and Tribunal) of Pt4 " By s91 the Court determining the appeal may dismiss it or make such order as it thinks 'proper' having regard to the merits of the case and the public welfare, and in doing so may exercise any one or more of the powers of the Tribunal under the Act. Division 4 of Pt4 of the Act contains a number of sections providing for the powers of, in some instances, the Committee and the Tribunal and, in other instances, either the Committee or the Tribunal. The exercise of these powers is conditioned, pursuant to s60, upon a finding that the subject matter of a complaint had been proved or, alternatively, the medical practitioner who is the subject of a complaint admitting to it in writing to the relevant body. The powers granted under s61, which include the power to caution or reprimand a medical practitioner or to make orders of a supervisory nature, and s62, which contains a power to fine, may be exercised by either a committee or the Tribunal. S63(1) and s63(2) contain powers vested solely in a committee. Those subsections read: "63(1) A Committee may recommend that a person be suspended from practising medicine for a specified period or that a person be deregistered if the Committee is satisfied (when it finds one complaint about the person) that the person does not have sufficient physical and mental capacity to practise medicine. (2) The Committee makes its recommendation by referring the matter with its recommendation to the Chairperson of the Tribunal or to a Deputy Chairperson nominated by the Chairperson." By virtue of s63(3) the Chairperson or Deputy Chairperson referred to in the preceding subsection is empowered to make an order in the terms recommended or such other order as to the suspension or registration of the medical practitioner as the Chairperson or Deputy Chairperson thinks proper based on the findings of the Committee. By virtue of s63(6) the Chairperson or Deputy Chairperson is not bound to make an order as to the suspension or registration of the practitioner but may exercise any power or combination of powers of a committee under this Division. S64 deals solely with the Tribunal's powers and reads: "64(1) The Tribunal may by order suspend a person from practising medicine for a specified period or direct that a person be deregistered if the Tribunal is satisfied (when it finds on a complaint about the person): (a) that the person is not competent to practise medicine; or (b) that the person is guilty of professional misconduct. URJ DE SILVA v NSW MEDICAL BOARD (Clarke JA) 5 (2) An order that a person be deregistered is an order that the person's name be removed from the Register or (H the person has already ceased to be registered) that the person not be re-registered. (3) An order may also provide that an application for review of the order under Division 3 of Pt6 may not be made until after a specified time." Against that background it would appear from the terms of s90 that a decision of the Tribunal may only be challenged, putting it generally, on the grounds of an erroneous decision on a point of law. On the other hand the making of an order consequent upon the exercise of one of its disciplinary powers may be challenged more widely. In saying that I put to one side for the moment whether findings of fact grounding the exercise of the power may be challenged. The appellant submits that an appeal under s91(1) against the exercise of a power is an appeal in the fullest sense, ie a hearing de novo or, alternatively, at least an appeal as to the facts governed by the ordinary principles applying to such appeals. Insofar as he perceived that the decision of this Court in Bannister v Walton (1993) 30 NSWLR 699 was contrary to that view he challenges that decision. Alternatively he submits that he is entitled to challenge conclusions on a number of factual issues which may not have been strictly relevant to a finding on the complaint but which may have been of significance in determining what was the appropriate order to be made. The decision to which the appellant's counsel referred concerned s32U of the Medical Practitioners Act 1938. However, as subs(1) of that section is not materially different from s90(1) of the Act it would seem to me that, subject to any considerations arising from other substantive provisions in the Act, the decision is directly in point. In that case Priestley JA said, at 734: "The Act gives the Tribunal, not this Court the task of finding the facts in cases such as the present.... The tribunal in the present case did its task with great thoroughness. This Court's task, in tum, is to consider the appeal against the decision that the complaints against Dr Bannister were proved and decide whether that decision could and should be set aside for error of law, and to consider the appeal against the orders made to see whether, in regard to the complaints found proved, the tribunal acted on some wrong basis such that the orders should be set aside or varied. On this basis the first questions to consider are whether the Tribunal's factual decisions were affected by any errors with respect to a point of law. I agree with and adopt Mahoney JA's analysis of the submissions alleging such errors. His analysis seems to me to show quite clearly that those submissions should not be accepted. In regard to the appeal against the tribunal's exercise of its powers under s32R, I repeat that the appeal does not allow the Court to go behind the facts found by the tribunal as proving the complaint." I agreed with his Honour's statements, saying (at 735): "T think that this (Priestley JA's conclusion that s32U(1)(b) does not authorise the Court to go behind the facts found by the Tribunal as proving the complaint) must be correct in the light of the restriction in s32U(1)(a). Accordingly the power to review an order made under s32R must be exercised upon the basis that the factual findings underlying 'the decision' of the Tribunal are not open to scrutiny. It may be, however, that the Tribunal may reach conclusions on a number of factual issues which while not strictly relevant to the complaint may be considered to be of importance in determining what is the appropriate order 6 UNREPORTED JUDGMENTS to be made pursuant to s32R. In cases where this occurs it would seem to me that this Court would be entitled to examine those conclusions in exercising its power to review the order under s32U(1)(b). In the same case Mahoney JA said (at 732): "Whether this Court would, in considering the order to be made, act upon a finding of fact which, though wrong, did not disclose error with respect of a point of law is a matter which may require consideration in an appropriate case." Having regard to the words used in s90 and the fact that powers under Division 4 of Pt4 may only be exercised in the event the subject matter of a claim has been admitted, or found to have been proved, it seems to me that there is a clear dichotomy between the making of decisions up to and including the finding that a complaint has been proved and the exercising of the powers under Division 4 of Pt4. Those decisions which lead to that finding and, therefore, act as a prelude to the exercise of a power under Division 4 of Pt4 can only be challenged in my respectful decision upon the ground that there is an error in point of law. This conclusion, as I have said, follows from the words used in s90 and is reinforced by comparing that provision with s87(4) which provides that an appeal from a decision of a Committee to the Tribunal is to be dealt with 'by way of re-hearing and fresh evidence, or evidence in addition to, or in substitution, for the evidence received at the enquiry, may be given". The scheme appears to be straightforward. An appeal from the decision of a Committee is to be by way of re-hearing and may constitute a hearing de novo. On the other hand an appeal to this Court from the decision of a Tribunal is regulated much more strictly by s90. Accordingly, I see no reason to alter the opinion I expressed in Bannister. (See also McBride v Walton, New South Wales Court of Appeal, 15 July 1994, unreported, per Handley JA, at 4.) It follows from these conclusions that 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. In some instances the Tribunal publishes its finding as to whether the complaint has been proved before embarking upon an enquiry as to the appropriate order to be made. In those circumstances it would seem clear to me that the initial finding could be challenged only on a point of law while a challenge to any additional factual findings made during the subsequent hearing which were relevant only to the enquiry as to the order to be made would be open. Further as Priestley JA said in Bannister (at 734): "\.. the right of appeal given by s32U(1)(b) (cf s90(1)(b)) is limited to a right to appeal against the exercise of the power under s32R and does not extend to questioning the acceptance by the Tribunal of the facts comprising proof of the complaint." This conclusion is not unimportant in the present case for virtually all the findings of fact preceded and substantially grounded the finding that the complaints had been proved. The only factual findings which were made subsequent to that conclusion were that the Tribunal was not satisfied that treatment was likely to render the appellant competent to practise medicine although there was a possibility that it might. In the light of these conclusions none of the complaints in pare 11 of the amended notice of appeal may be raised in this appeal. They are all expressed as challenges to findings of fact which were all findings upon which the ultimate conclusion that the complaints had been made out was based. URJ DE SILVA v NSW MEDICAL BOARD (Clarke JA) 7 Indeed, the conclusion I have expressed as to the correct approach to the right of appeal under s90 bears directly upon a number of the other grounds raised for, in substance, they challenge findings of fact and are themselves not open in this appeal. THE CASE AGAINST THE APPELLANT The complaints were both based on s39 of the Act the relevant portion of which reads: "39. Any of the following complaints can be made about a medical practitioner:... LACK OF COMPETENCE A complaint that the practitioner is not competent to practise medicine (that is, the person does not have sufficient physical capacity, mental capacity or skill to practise medicine, or does not have sufficient communications skills for the practise of medicine, including an adequate command of the English language)." IMPAIRMENT Acomplaint that the practitioner suffers from an impairment." In the dictionary which is published with the Act both relevant expressions are defined. CL(2) states 'A person is competent to practise medicine only if the person: (a) has sufficient physical capacity, mental capacity and skill to practise medicine"; and by CL(3) it is said: "A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise medicine. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical and mental disorder." The essence of the complaints was that the appellant suffered from a paranoid personality disorder and/or an obsessive/compulsive disorder and as a consequence was unable to form reasonable relations with colleagues and other medical and para medical professionals, was unable to communicate properly with those persons and lacked patient management skills. Complaints about the appellant were not new. In 1982 an inquiry was held by the New South Wales Medical Board under s30 of the Medical Practitioners' Act 1938 for the purpose of considering the capacity of the appellant to practise medicine. The Board then determined that the appellant was competent to practise under certain conditions and he was required to continue to receive treatment from a specialist of his choice, who was required to report to the Board. He was also required to attend for examination by a psychiatrist appointed by the Board. On 16 February 1983 there was yet a further enquiry under s30 of the Medical Practitioners' Act 1938 and he was again found to be competent to practise medicine provided that the conditions to which I have referred were complied with. On 18 August 1987 there was a further enquiry under s30 of the Medical Practitioners' Act 1938. Again he was found competent to practise medicine and again he was required to comply with essentially the same conditions. On 30 November and 1 December 1989 there was a further enquiry under s28(1)(e) of the Medical Practitioners' Act 1938 to determine whether the appellant had sufficient physical and mental capacity to practise medicine. Once 8 UNREPORTED JUDGMENTS again he was found competent to practise medicine and there was found to be no occasion to vary the conditions imposed in 1987. In 1994 another complaint was laid against the appellant, this time raising the two grounds the subject of the present appeal. Particulars were annexed to that complaint which, omitting reference to the earlier hearings, read as follows: "e. In a report to the Board dated 11 February 1992 Dr John Ellard, the Board appointed psychiatrist, noted that: 'It is difficult to say whether he is deluded or whether he has merely a very marked paranoid personality disorder. I can believe that it is substantial enough to make it very difficult for him to practice medicine effectively.' f. In a report to the Board dated 14 July 1992 Dr Ellard noted: 'It seems to me that the probability is that Dr De Silva lacks the mental capacity to practice medicine.' g. In a report to the Board dated 7 April 1993, Dr Ellard noted: 'Dr De Silva, in my view, is either delusional with a low grade paranoid illness or has a paranoid personality disorder of gross degree." h. In a letter to the Board dated 24 September 1993, Dr Olga Marinovic noted that she felt it was her 'duty to get him some help to avoid the anxiety to any patient' caused by the Practitioner's behaviour. i. In a report to the Board dated 15 December 1993, Dr Ellard noted: 'It is clear that Dr De Silva sees all psychiatrists as being persecutors' ." GROUNDS OF APPEAL GROUND 1 - AMENDMENT TO COMPLAINT AND PARTICULARS I have already recited the relevant particulars in the original complaint. Prior to the hearing of the appeal before the Tribunal fresh particulars described as 'amended particulars' were filed which covered about 12 pages and extended far beyond the original particulars although they continued to include complaints that the appellant suffered an impairment and was not competent to practise medicine. Many of these complaints were withdrawn and although a few survived to be the subject of adverse findings against the appellant his counsel submitted that the wider case had to be fought and that the Tribunal was in error in allowing the complainant to rely upon the amended grounds. In essence Mr Neil QC, senior counsel for the appellant, submitted that the Tribunal committed an error in law in permitting the amendment to the particulars and the admission of consequential evidence relating to allegations not presented before the Professional Standards Committee. In discussion the error of law was described as the allowing of what was, in substance, a new case to be brought before the Tribunal. My fundamental difficulty with the submission is that, although the complainant asserts that he was forced to contest many claims which were not ultimately pressed, he does not assert that he was unable to deal with the case that was brought nor does he assert that the findings ultimately made were not within the broad ambit of the original complaint. Having regard to CL3 of Schedule 2 of the Act which allows the bringing of additional complaints and s87(4) which deals with the admission of fresh evidence on the appeal, and in the absence of any suggestion that there was a denial of natural justice or procedural unfairness I am completely unable to perceive an error of law sufficient to support this ground of appeal. GROUNDS 2 AND 3 - ADMISSION OF EVIDENCE CONCERNING THE JULY 1992 FACTS URJ DE SILVA v NSW MEDICAL BOARD (Clarke JA) 9 The appellant complained that the Tribunal erred in law in admitting evidence of facts pre-dating the decision of the Professional Standards Committee of 1 December 1989 and the report of Dr Ellard of 14 June 1992. He also complained that the Tribunal erred in law in making findings of fact on, or taking into account, events pre-dating that decision and report. In order to explain and consider this submission I need to give some details of the appellant's general history. That history is summarised in the reasons for decision of the Tribunal portions of which I gratefully adopt: *He is a single unmarried man who was born on 19 February 1934 in Colombo, Sri Lanka, and completed his MB and BS degrees at the University of Ceylon in December 1957. Between graduation and 1966 he worked as an intern and medical officer at various hospitals in Sri Lanka and then in 1966 went to England to do post graduate work. In January 1967, shortly after arriving in the United Kingdom, he sought psychiatric treatment from Dr Michael Hopwood... in relation to an obsessional disorder which he had had since he was approximately 13 years. He continued to have such psychiatric treatment... until he emigrated to Australia in 1973.... Dr Hopwood thought at that time [1973] that he was clearly psychotic and had he been staying in England he would have started him on phenothiazines.... Dr De Silva was registered as a Medical practitioner in New South Wales in 1973 and commenced work that year as a medical registrar at Blacktown Hospital. Subsequently he was appointed as a specialist physician at Parramatta Hospital and as a consultant neurologist at Lidcombe Hospital. Some months after arriving in Australia he consulted Dr C B Degotardi, a specialist psychiatrist, and continued to see him until approximately 1975.... Thereafter Dr De Silva didn't see a psychiatrist until he saw Dr Shute in December 1981. In 1975 Dr De Silva was appointed as a Visiting Medical Officer in neurology at Concord General Hospital and retained that appointment until 1978 when he was not reappointed. He also lost his appointment at Lidcombe Hospital in about 1978. Subsequent in approximately 1978 he was appointed as a Visiting Medical Officer in Neurology at Campbelltown and Camden Hospitals and also at Wollongong Hospital. The Appellant used to attend neurological meetings at Westmead Hospital and on 14 October 1981 was told by Dr Morris, a neurologist at that hospital, not to speak at any future meetings. This caused great distress to Dr De Silva, and shortly thereafter he damaged his car as a result of this distress. On 26 October 1981 he indecently exposed himself to three young girls. This charge led to him seeing Dr R M Shute, a consultant psychiatrist, in December 1981. .. Dr De Silva said that he was most extremely distressed by the instruction given to him by Dr Morris and that he couldn't remember his actions in relation to the girls after he had asked their names in the street." Shortly thereafter the 1982 enquiry was held which culminated in the determination that he could continue to practise subject to the conditions I mentioned. The psychiatrist then nominated by the Board was Dr J Ellard or his nominee. The further enquiry held in February 1983 concluded that: " 1. Dr De Silva was in the past and had been for a long period of time... subject to psychiatric disturbances; 10 UNREPORTED JUDGMENTS 2. There was evidence that in the past he had had psychotic episodes; 3. For a period of time following an occurrence at the Westmead Centre Dr De Silva's psychiatric disturbance, whatever it was, was such that he was unfit to practise; and 4. Dr De Silva was not suffering from any psychotic disorder at the times of the various consultations upon which the medical reports before the enquiry were based although Dr McMurdo was unsure that Dr De Silva did not have a chronic paranoid psychosis." As previously indicated the ruling at this time was similar to the ruling in the previous inquiry. There was then the inquiry in 1987, the decision in which included the following: "Evidence was presented which would lead the members of the enquiry to believe there is a strong possibility of a diagnosis of paranoid schizophrenia and this coupled with his acknowledged hearing problem gives reason for concern for the future. However, at the conclusion of the inquiry, the Board was satisfied that his psychiatric condition at that time did not preclude him from practising medicine with the following recommendations." There then followed recommendations broadly in line with the conditions previously imposed. There were a number of other fairly significant events between 1986 and 1989 but it is unnecessary to detail them in these reasons. The decision made by the Professional Standards Committee in December 1989 was as follows: "The Committee determined that at the present time Dr De Silva does not lack the physical and mental capacity to practise medicine as alleged. However, his physical and mental capacity may well have been impaired in June 1989 when he consulted Dr Ellard. The Committee is seriously concerned with the unstable nature of Dr De Silva's condition, and the possibility of further instances where his fitness to practise may be impaired. It therefore sees no grounds for varying the conditions which were imposed by the s30 inquiry in 1987." Finally, although I have difficulty in understanding how it could be said that facts which occurred prior to the report of Dr Ellard of 14 July 1992 could not be relied on, it is necessary to refer to that report. On page 2 Dr Ellard, the nominee of the Board. said: Reflecting on all the material I have, I think it more probable than not that Dr De Silva has a chronic delusional disorder, but I cannot prove it. If one accepts that he has, it does not establish that he is incapable of practice, for delusional symptoms can be encapsulated and have very circumscribed effect on a person's behaviour. Nevertheless, in one sense the onus of proof would be to establish that the delusions were as encapsulated as that and having no effect on general behaviour, for generally delusions bespeak considerable psychological disorder. In short, he has a serious mixed personality disorder and is defensive and hostile. He has no capacity to see that some of his misfortunes are the product of his own behaviour. Once more the structure of his personality disorder is consistent with it being part of a major psychosis. It seems to me that the probability is that Dr De Silva lacks the mental capacity to practise medicine. To come to the opposite view, the Professional Standards Committee would need to establish to its satisfaction two things. Firstly, it would need to establish that his technical neurology (if I may put it that way) is adequate. To the best of my belief that has never been questioned. URJ DE SILVA v NSW MEDICAL BOARD (Clarke JA) 11 Secondly, it would need to satisfy itself that his personality problems do not substantially impede his communications with patients and further that they do not prejudice his ability to undertake their care, recognising that very often in these days the care of patients involves communication with other medical professionals." In their written submissions counsel for the appellant point out that objection was unsuccessfully taken to the admission of evidence pre-dating the 1989 enquiry and that it was submitted that the real enquiry was whether or not there had been any change to the situation since 1989 that really warranted the de-registration of the appellant. It was then submitted that the various prior findings, including the one in 1989 in proceedings between the same parties, constituted an estoppel or, alternatively, that the Tribunal ought not to have made findings of fact inconsistent with the findings of a properly constituted prior tribunal. It was then said that the Tribunal should not have made such findings in respect to any events prior to Dr Ellard's report of 14 July 1992, which was the first report in which he expressed the opinion that the appellant was unfit to practise. The reason for this particular submission was that the respondent should be estopped from arguing to the contrary by virtue of the conduct of its agent, Dr Ellard, who was the Board's appointed psychiatrist. I should say at the outset that I find this last submission confused and confusing. There is no principle of estoppel of which I am aware which would have the effect for which the appellant argues. Nor could it be said that because Dr Ellard did not express a conclusion of unfitness prior to that date the respondent was estopped from relying on what he had said, and what had occurred at earlier times. Although this may appear to be a reasonably curt dismissal of one aspect of the ground of appeal, no submissions were made by the appellant's counsel which provided legal substance for this particular estoppel. In regard to the more substantial point there is a real question whether, as a matter of principle, estoppel operates in respect of findings made by tribunals prior to the determination in question here (see Law Society of New South Wales v Weaver, [1977] 1 NSWLR 67 - affirmed (1979) 142 CLR 201) but even if it did, the nature of the earlier findings is such that all that would be covered by any such estoppel would be the proposition that as at the dates of those enquiries the appellant was fit to practise provided conditions were imposed. Nothing was said by the Tribunal in its determination under appeal which gainsaid those findings. Furthermore, insofar as the Tribunal examined occurrences preceding the 1989 decision there were obvious grounds, in my opinion, for so doing. First, the appellant's disorders preceded any of the enquiries and the issue which arose, in general, was whether they affected him in his practise of medicine. The enquiries held that at the time with which each was dealing his disorder did not make him unfit. But they each recognised the prospect that circumstances might change and for this reason imposed the stringent conditions already mentioned. One way of putting the issue with which the Tribunal was concerned, therefore, was whether, having regard to the underlying condition and its effect on the appellant in the past, the situation had now been reached where no longer could it safely be said that he was able to prevent the effects of his disorder intruding into his medical practice. An examination of this question could not properly have been carried out without the full picture and that necessarily included the events of 1989. Secondly the Tribunal was, in a sense, determining whether there had been deterioration. This once again required knowledge of the situation prior to, and at the time of, the last determination. 12 UNREPORTED JUDGMENTS Thirdly, in at least one of the Tribunal's decisions, it was recognised that at a stage prior to that determination the appellant had been unfit to practise. This was a finding which makes it obvious that the ultimate determination was extremely limited in its effect so far as any estoppel could operate. In summary, the Tribunal was faced with a difficult question whether by the time of its hearing the effects of the appellant's disorder had (to use a word adopted by counsel for the appellant) spilled over into his medical practice. Such enquiry, to my mind, could not realistically be conducted on any narrow basis but required an investigation into the appellant's underlying disorder and the extent to which it had over many years intruded into his practice in order to determine whether by 1994 the situation had been reached where he was no longer fit to practise. There is a further, equally fundamental, problem with the appellant's submissions. The appellant does not submit that the ultimate conclusion of the Tribunal is affected by any estoppel. What he contends is that a number of findings were made in relation to pre 1989 events which should not, either as a matter of estoppel or because of concepts of fairness and justice, have been made in the light of the earlier determinations. One example which shows how difficult it is to apply this idea is the way the Tribunal dealt with his relationship with people at Campbelltown Hospital. His appointment as a Visiting Practitioner (Consultant Neurologist) was terminated on 8 March 1989. He appealed to a Committee of Review. That Committee heard evidence and on 3 June 1989 disallowed the appeal. In its finding the Committee of Review expressed the opinion that the appellant's failure in interpersonal relationships with other medical staff at the hospital had brought about serious deficiencies in the provision of health services to residents in the area. It also referred to evidence given by visiting practitioners to the effect that a professional rift had developed which was irreconcilable to the extent that they (that is the visiting practitioners) were no longer prepared to refer any patient to the appellant in his capacity as a consultant neurologist. The appellant, according to the Committee, gave no indication that he was prepared in any way to make some effort at compromise and the Committee reached what it described as the 'inescapable conclusion' that the professional relationship between the appellant and other members of the medical staff at the hospital had irrevocably broken down to such an extent that the health of residents in that area was jeopardised and that it was essential in the interests of those residents that his appointment as a Visiting Practitioner (Consultant Neurologist) be terminated. The Tribunal in dealing with this subject then referred to entries made by the appellant in the clinical notes of patients and to passages in letters which he had written to other practitioners concerning patients and expressed the opinion that the notes revealed that the appellant's disorder was spilling over into his relations with other practitioners. Even the most cursory reading of those notes would show that expression of opinion was totally justified and was relevant. The Tribunal did not, however, take that matter further than the expression of opinion I have set out. The appellant also complained about the manner in which the Tribunal dealt with an incident at his brother's home in November 1980. That incident occurred a long, long time ago and, according to the appellant, should not have been brought up in the proceedings nor should the Tribunal have made any finding in relation to it. The difficulty with the submission is that the Tribunal merely referred to that particular event in seeking better to understand the way in which the appellant's disorder might affect him. Ultimately all that the Tribunal said URJ DE SILVA v NSW MEDICAL BOARD (Clarke JA) 13 about the incident was that it was 'yet another example of Dr De Silva's over reaction and indicates the widespread potential effects of his paranoid personality disorder'. Many other incidents were referred to by the Tribunal but it is not necessary to advert to them. The appeal is, as I have said, limited to errors of law and the only possible errors identified were encapsulated within the expressions of 'estoppel' and 'procedural fairness'. I have already referred to the difficulty in raising an estoppel in the light of the nature of the complaint and nothing about the way in which the case was contested has demonstrated that the appellant was denied a full opportunity to deal with the various grounds of complaint the subject of evidence before the Tribunal. While the wide reach of the enquiry necessarily meant that it was lengthy neither that fact nor the existence of the earlier determinations lead to the conclusion that the appellant was treated unfairly. This ground of appeal must fail. GROUND 4 - THE FINDING THAT THE APPELLANT'S PARANOID PERSONALITY DISORDER TOGETHER WITH ~~ EXCITABLE TEMPERAMENT CAME WITHIN THE DEFINITION OF INSUFFICIENT MENTAL CAPACITY TO PRACTISE MEDICINE IN 339. I have to say, regrettably, that I have never fully understood this submission either in the way it was developed in the written submissions or in the very short explanation of those submissions in argument. The appellant's counsel pointed out, quite properly, that there were two arms to the complaint and that there must be some difference between them but in the end what, as it seems to me, the appellant must establish is either that there was no evidence to support the complaints or that on the findings of fact the only answer available was that the statutory conditions had not been met (see Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139). Neither of these propositions has been made good. Proof of the appellant's disorder and the various ways in which it had affected him in the conduct of his practice over the years provided overwhelming support for the ultimate conclusion. GROUNDS 5 AND 6 - FAILURE TO ACT JUDICIALLY AND TO GIVE ADEQUATE REASONS The essence of this complaint is that the reasons of the Tribunal focus essentially on an analysis of the complaints made against the appellant and that his own case is dismissed almost summarily, the point of the submission being that the Tribunal failed to take all of the evidence into account and carefully to consider and weigh all of that evidence. In summary it was said that, first, the Tribunal did not consider the whole of the evidence and, secondly, they pre-judged the evidence by analysing first, and in depth, the case against the appellant. The complaint, which is related to the methodology adopted by the Tribunal, was a general one and it did not descend into detail. In short counsel submitted that the lengthy analysis of the particulars of the complaints by the Tribunal as compared with the summary way in which the appellant's own case was dealt with demonstrated a failure fairly to try the issues. There are, of course, no fixed rules as to the manner in which a court or tribunal expresses its judgment. The Tribunal is bound to give reasons (Soulemezis v Dudley (Holdings J Pty Ltd [1987] 10 NSWLR 247, particularly at 273). In formulating the reasons it is incumbent upon the Tribunal to make it 14 UNREPORTED JUDGMENTS clear why it is that it reached its conclusion that the order it made should in fact be made. Pausing there, there can be no doubt, in my opinion, that the Tribunal complied with that duty. Obviously enough a Tribunal should attend to all the evidence given and should reach its conclusions upon the basis of the evidence which it finds acceptable. It is not necessary in every case for the Tribunal to say expressly that it finds the evidence of witness A or witness B to be acceptable. In some cases that might be necessary. In others it may be sufficient if the text of the reasons indicates clearly what evidence is accepted, the effect of that evidence and the conclusion resulting from the acceptance of that evidence. In the way the case was contested before the Tribunal it was, I think, inevitable that it would be necessary for it to traverse in detail the grounds of the complaints against the appellant. The critical issue was not whether he had a disorder. That was accepted although the precise nature of the disorder was in question and was dealt with by the Tribunal. The real conflict between the parties was whether the disorder suffered by the appellant had intruded into his practise of medicine to such an extent as to render him unfit to continue to practise. The answer to that question could only be reached after a consideration of all the matters said to demonstrate the intrusion of the disorder into his practise of medicine. Where he denied particular instances it was necessary to determine whether the evidence against him should be accepted before relying on it as establishing facts which might be used in the ultimate determination of the central question. In many instances, however, the facts relied upon by the respondent were not in issue and those that were the subject of contest were dealt with by the Tribunal in a way which makes it quite plain what evidence they accepted. In all these circumstances I have found it difficult to understand just what is said to have been the error of law. I do not find it necessary to explore that question further because I am not persuaded that there was either a failure to give adequate reasons or a failure to accord the appellant a fair hearing or to deliver a judicially reasoned judgment. In those circumstances the ground must fail. GROUND 7 - INCAPACITY TO ADMIT ERROR Dr Dunn, Dr Marinovic and Dr Ellard gave evidence that the appellant told them he had never made a mistake. During the course of the hearing he was asked the following question and gave the following answer: "Q. If you wished to have a second opinion about a neurological problem, how would you undertake that particular issue? A. I have myself, never needed a second opinion. I have referred patients to Professor Lance or Dr Spira only when they needed investigations which can only be carried out - investigations or surgical procedure which can only be carried out in a teaching hospital, and those procedures were carried out, and if the patient needed neurosurgery or something like that they referred the patient to neurosurgeons." The Tribunal considered that this answer demonstrated that what he was alleged to have said to the three doctors was correct and the Tribunal went on to express its view that such an attitude was a dangerous one. There was clearly evidence to support the Tribunal's conclusion that the appellant said that he had never made a mistake and I find it difficult to understand how it could be suggested that the question and answer did not tend to support the evidence which had been given to the extent that it suggested that he considered himself to be a person who did not make mistakes. Further, the Tribunal was a specialist body which was well placed to reach a conclusion as to URJ DE SILVA v NSW MEDICAL BOARD (Clarke JA) 15 what attitudes of a medical practitioner may or may not be dangerous. Again I am unable to find any error of law in this aspect of the Tribunal's judgment. GROUND 8 - THE FINDING THAT THE APPELLANT SUFFERS FROM BRIEF PSYCHOTIC EPISODES REQUIRING REMOVAL FROM THE REGISTER WAS NOT PART OF THE CASE ALLEGED AGAINST HIM AND NOT FORESHADOWED AS A FINDING. This is a complaint of a denial of procedural fairness. Mr Neil made no oral submissions about this ground. But in his written submissions he pointed out that the Tribunal quoted a lengthy passage under the heading "Associated Features and Disorders" from page 635 of Diagnostic and Statistical Manual of Mental Disorders, 4th ed (DSM-IX), finishing with reference to the statement *Particularly in response to stress individuals with this disorder may experience very brief psychotic episodes (lasting minutes to hours)n. He also pointed out that the Tribunal found that the appellant did experience those episodes and was not competent to practise medicine during them. In addition it stated that it knew of no effective way to protect patients from the appellant during those episodes other than his complete removal from the Register. The written submissions then go on to say that the allegation was not particularised. Nor was it suggested to the appellant or his medical witnesses that he suffered from such episodes. The absence of any elaboration of this ground of appeal has made it very difficult to deal with. The written submissions of the respondent point out that the definition of a paranoid personality disorder set out in DSM-IX was made available to all parties without objection by the Tribunal and that it was made clear that in determining this matter as a specialist tribunal this particular definition was of primary significance. Having regard to the incidents dealt with in the reasons for decision of the Tribunal, at least some of which could be considered to be psychotic episodes I am not persuaded by the short submission that any legal error has been demonstrated. GROUND 9 - PHYSICAL VIOLENCE Again there was an extremely terse written submission that there was no evidence to support the finding. The submission was not developed orally. I see no basis for concluding that an error of law has occurred. GROUND 10 - FAILURE TO DISQUALIFY ON THE GROUNDS OF OSTENSIBLE BIAS On 29 and 30 September 1994 the Tribunal heard an application for what was described as an order in the nature of a stay. The purpose was to seek the restoration of the appellant's name to the Register kept under the Act pending the outcome of the determination of his appeal. That application was heard by the Tribunal constituted as it was when it determined the appeal. Pursuant to s151(1) of the Act matters of law are determined by the Chairman and it was, therefore, Judge Knight who was called upon to decide whether the Tribunal had power to make an order of the kind that was sought and, if it did, whether that power should be exercised. Judge Knight concluded that the Tribunal had no power to grant the application but went on to say that: "The Tribunal also held, even if it had possessed the power to grant the application, it would not have granted the application." Following that determination the appellant reamed that the Tribunal was to be constituted for the hearing of the appeal in the same way as it had been constituted on the stay application. He sought judicial review from this court, apparently on the basis that he entertained a reasonable apprehension that the 16 UNREPORTED JUDGMENTS Tribunal might not approach the resolution of the appeal with that impartiality which is the hallmark of justice in this country. The grounds of his apprehension were the statements, or some of the statements, made by Judge Knight in his judgment. In particular the following passages were the subject of complaint: "As the question whether the Tribunal has the power to grant a stay is one of law my decision on it is the decision of the Tribunal (s154(1)) and requires that the application be refused. However, the Tribunal heard evidence and full argument as to whether the stay ought be granted and in deference to those arguments and in case I am wrong as to the absence of power to grant a stay I will set out my reasons in relation to the question as to whether a stay ought to have been granted. Furthermore, Dr De Silva knew the nature of the complaints against him and he must be taken to have realised that his behaviour during the course of the enquiry being conducted by a specialist tribunal would be a matter which that tribunal would be likely to take into account. It, therefore, seems to me that there was no procedural unfairness in the committee not specifically drawing Dr De Silva's attention to the fact that it would take his behaviour into account in making its findings. On the uncontradicted evidence at present before the Tribunal (see para4 of Dr Ellard's affidavit of 23 September 1994) Dr De Silva is not fit to practise as a medical practitioner. Therefore, I do not accept that to allow Dr De Silva to remain on the Register even for 19 days would involve no or minimal risk to the public but to the contrary to consider on such evidence that his continuing to practise would pose a danger to the public." The appellant submitted to the court that that passage read in the context of the whole judgment led him to have an apprehension, which a reasonable observer would also entertain, that Judge Knight may not bring an impartial mind to the determination of the issues in this case. This Court rejected the application for judicial review. In its judgment it gave a number of reasons why it took that course. I should mention some of them. The first important one is that Judge Knight's observations were relevant to a submission that there was no evidence before the Committee to sustain its conclusion that the appellant's name should be removed from the Register. Kirby P, who gave the judgment of the Court, said: "When Judge Knight's opinion is examined it will be seen that on page 9 he records the claimant's counsel's submission that: 'There was no evidence that any mental problems which Dr De Silva may have were affecting his capacity to practise medicine. Thus there was no evidence that he had made any significant mistakes in treating patients and, although his mental state may have led to some difficulties in his relationships with other health professionals this was not sufficient for the Committee to make the finding it did.'" Kirby P also pointed out that in his decision Judge Knight had expressly recognised the nature of the preliminary questions he was determining and the fact that those determinations would not prejudge the substantive appeal. Judge Knight said: "For the purposes of this stay application it is unnecessary and would be grossly wrong for me or the other members of the Tribunal to come to any firm views as to whether or not Dr Ellard's opinion is correct. Ultimately on the final hearing of the appeal the Tribunal will have to make a decision on the complaints URJ DE SILVA v NSW MEDICAL BOARD (Clarke JA) 17 against Dr De Silva. Such decision will be made on the material then before the Tribunal which may or may not include evidence from Dr Ellard." Again at the end of his decision Judge Knight said: "Finally I wish to emphasise again that in accepting Dr Ellard's uncontradicted opinion for the purposes of this stay application I should not be regarded as having formed any view as to the matters the subject of the ultimate appeal. The determination of those matters will depend on the evidence then placed before the Tribunal." In the light of those observations the Court declined to interfere and Kirby P concluded by saying: "Tt will be for the Tribunal, considering all the circumstances including the apprehension which Dr De Silva has voiced, to decide whether or not it will reconstitute but that is a matter for it and I would not provide the relief to interfere with its determination." The hearing of the appeal then commenced on 3 April 1995 and at the start the appellant made a submission to the Tribunal that it reconstitute because the Tribunal which heard the stay application was affected by ostensible bias. In his judgment dismissing this application Knight DCJ said: "Although the Tribunal was required for the purposes of the stay application to determine whether there was a risk to the public if the appellant were to be restored to the Register pending the hearing of the appeal, such determination was made on the evidence then placed before the Tribunal, and that evidence was all one way. There was no evidence placed before the Tribunal on behalf of Dr De Silva, nor was the evidence placed before the Tribunal on behalf of the Board, the subject of challenge by Dr De Silva by way of cross-examination. It would, in my view, have been perverse of the Tribunal to have come to any conclusion other than that which it did on the evidence which was then placed before it. It is also of importance to note that Dr De Silva gave no oral evidence himself on the stay application. Thus no question arises of any assessment by the Tribunal of Dr De Silva as to his credit nor is there any question of the rejection of evidence placed before the Tribunal on Dr De Silva's behalf as to his mental competence." His Honour then went on to point out that the hearing before the tribunal was by way of re-hearing with either party having a right to adduce fresh evidence. The appellant now asks this Court to take the step which he submits the Tribunal should have taken at the commencement of the hearing. Subject to one matter to which I will come, the appellant adds no further reasons to those considered by this Court and the Tribunal previously. The test that is to be applied in resolving this submission is well understood and it is unnecessary to rehearse the cases which constitute the line of authority of the High Court in favour of the imposition of a stringent test. In Australian National Industries Ltd v Spedley Securities Ltd (In Liq) and Ors [1992] 26 NSWLR 411 Kirby P said at 419: "By repeated decisions of the High Court the test is now expressed in terms of possibilities, that is, whether the parties or the public 'might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind the resolution of the question involved." Although the test can be stated simply it is not always easy to apply. It may be relatively straightforward where a judge has previously considered the credibility of witnesses who are to be giving evidence in the case before him or her. Where a judge has not done that, or in any other way prejudged any of the issues with which the hearing is concerned, then, unless there are reasons disassociated from 18 UNREPORTED JUDGMENTS any prior hearing why a judge may be thought to be prejudiced, it is difficult to find a basis upon which it could be held that a person might reasonably apprehend that the judge was biased. In this case where Judge Knight made it clear that he was not prejudging the issues, that no witnesses had been challenged in cross-examination and the appellant had called no evidence and had not given evidence himself, I have little difficulty in concluding that the appellant has not satisfied the test. The one additional matter upon which Mr Neil relies concerns the text of the reasons for decision of the Tribunal. He submits that an objective observer reading those reasons would immediately have a reasonable apprehension that the Tribunal might not have brought an unprejudiced mind to the resolution of the issues. The written submissions, which were supplemented by short oral submissions, lacked precision and directed attention to the generality of the reasons rather than their detail. As it seemed to me what Mr Neil was saying was that any objective person reading the reasons would have found that they were so heavily weighted against the appellant that that reader would have concluded that the Tribunal may possibly not have given the appellant a fair trial and may well have set out from the start to dismiss the appeal. In a sense this is a repetition of an earlier ground, but from whatever angle it is considered I would reject it for in my opinion it would not be reasonable to conclude that a reading of the Tribunal's judgment could give rise to a perception of possible bias whether the reader was ignorant of what had gone before or had been informed of all the previous decisions identified in these reasons. I would reject this ground of appeal. FACTS In this case the Tribunal devoted virtually the whole of its reasons to a consideration of the question whether the complaints had been made out and, if so, whether the appellant was competent to practise. That is not surprising for the nature of the complaints was such that once it had been held that they had been made out, and that the appellant was therefore incompetent to practise, it followed, almost as night follows day, that the appellant's name should be removed from the Register. The jurisdiction exercised by the Tribunal is, as has been said many times, protective of the public and that protection could hardly be provided were the Tribunal to rule that a person who had been found incompetent to practise medicine was to be allowed to remain on the Register. As it turned out the Tribunal found the complaints made out and dismissed the appeals. There was no separate consideration of factual material extraneous to that considered in relation to the complaints and the dismissal of the appeal followed, as I have indicated, almost automatically, from the Tribunal's finding. In these circumstances there is no avenue open to the appellant to question the findings of fact. The determination of all relevant questions of fact was invested solely in the Tribunal and this Court has no power to correct factual errors made by the Tribunal in reaching its conclusion as to whether the complaints had been made out. Accordingly, there is no purpose in considering the separate grounds of appeal which appear under the designation 'Fact' and I do not propose to do so. It follows that the appeal should be dismissed with costs. Powell JA I agree with Clarke JA. Appeal dismissed with costs. URJ DE SILVA v NSW MEDICAL BOARD (Powell JA) 19 Counsel for the appellant: J Neil and G Preston Solicitors for the appellant: Carroll and Knudson Counsel for the respondent: DJ Higgs SC and RS Hollo Solicitors for the respondent: Solicitor for the New South Wales Medical Board