New South Wales Court of Appeal CITATION : CLARKE v HEALTH CARE COMPLAINTS COMMISSION [2000] NSWCA 124 FILE NUMBER(S) : CA 40215/00 HEARING DATE(S) : 5 May 2000 JUDGMENT DATE : 5 May 2000 PARTIES : Attlee Louis Clarke - Appellant Health Care Complaints Commission - Respondent JUDGMENT OF : Priestley JA at 20; Handley JA at 21; Sheller JA at 1 LOWER COURT JURISDICTION : Medical Tribunal LOWER COURT 40029/98 FILE NUMBER(S) : LOWER COURT Karpin DCJ JUDICIAL OFFICER : COUNSEL : M Bozic - Appellant H Kiel - Respondent SOLICITORS : Tress Cocks & Maddox - Appellant Health Care Complaints Commission - Respondent CATCHWORDS : MEDICAL PRACTITIONERS - Complaints of professional misconduct - Criminal proceedings against practitioner set to begin after the complaints proceedings - Application for adjournment of complaints proceedings refused by Medical Tribunal - Appeal pursuant to Medical Practice Act 1992, s89 - No error of law - ND LEGISLATION CITED : Medical Practice Act 1992 CASES CITED: Edelsten v Richmond (1987) 11 NSWLR 51 Ibrahim v Walton (unreported) 23 April 1991 DECISION : Appeal dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40215/00 MT 40029/98 PRIESTLEY JA HANDLEY JA SHELLER JA Friday, 5 May 2000 CLARKE v HEALTH CARE COMPLAINTS COMMISSION JUDGMENT 1 SHELLER JA: On 5 November 1998 a Notice of Complaint was filed by the Health Care Complaints Commission with the Medical Tribunal against Dr Attlee Louis Clarke. The complaint was that he was guilty of professional misconduct and unsatisfactory professional conduct within the meaning of ss36 and 37 of the Medical Practice Act 1992. 2 The particulars were that in August 1996, whilst engaged in the conduct of his treatment and management of Patient A, he demonstrated a lack of adequate knowledge, skill, judgment or care in the practise of medicine in that: "On 8 August 1996, when the practitioner attended Patient A,….. the practitioner inappropriately a. prescribed Kapanol to Patient A; b. prescribed Kapanol to Patient A in excess of recognised therapeutic standards of what is appropriate. On 9 August 1996 when the practitioner attended Patient A, …. the practitioner: a. failed to recognise that Patient A was suffering from an overdose of the medication Kapanol, or alternatively, b. when the practitioner became aware that Patient A was suffering from an overdose of the medication Kapanol, the practitioner i. failed to administer Naloxone to Patient A to reverse the effects of Kapanol; ii. failed to arrange for the transfer of Patient A to hospital." On 12 August 1996 the patient died. 3 On 26 July 1999, the Director of Public Prosecutions, following an inquest which was held on 12 November 1997, advised the practitioner's solicitor that proceedings would be commenced by way of ex officio indictment charging the practitioner with manslaughter. The arraignment on this charge was listed before the Supreme Court on 3 December 1999. 4 On 3 September 1999, his Honour Cooper DCJ, sitting as Deputy Chairperson of the Medical Tribunal, refused an application by the practitioner for an adjournment of the complaint proceedings and listed the matter for hearing before the Tribunal over five days, beginning on 29 May 2000. 5 In refusing that application, his Honour referred to the terms of s56 of the Medical Practice Act 1992, and to the decisions of this Court in Edelsten v Richmond (1987) 11 NSWLR 51 and Ibrahim v Walton (unreported) 23 April 1991. His Honour said that the allegation against the practitioner was that his negligent conduct materially contributed to the death of a patient: "Implicit in this allegation is that the practitioner lacks the necessary standard of knowledge, skill, care and judgment safely to continue to be responsible for the treatment of members of the public. Under these circumstances, I consider that society's interests in the protection of the public outweighs the undoubtedly weighty interests of the practitioner to which I have already referred." 6 No challenge was made to this refusal of an adjournment by Cooper DCJ. Subsequently, the criminal trial was set down for hearing to begin on 24 July 2000. Doctor Clarke proposes to plead not guilty to the charge. 7 On 17 February 2000 an application was made to the Tribunal, on behalf of the practitioner, to vacate the hearing date of 29 May 2000. This came before her Honour Karpin DCJ, who, on 3 March 2000, dismissed the application. 8 Dr Clarke appeals from this decision pursuant to s89(1) of the Medical Practice Act with the leave of the chairperson of the Tribunal. 9 In the course of her reasons for judgment of 3 March 2000, Judge Karpin said that at the time of the determination by Cooper DCJ, the criminal proceedings were listed for arraignment before the Supreme Court on 3 December 1999. It was anticipated that the trial would be listed no earlier than the latter part of 2000: "In the course of his judgment his Honour carefully considered the competing interests involved in such an application together with the relevant principles and established law. I would, with respect, adopt the whole of his Honour's reasons for judgment, indeed no attempt has been made by counsel appearing for Dr Clarke to find fault with his Honour's reasons. This application is based solely on the circumstance that the criminal trial has been set down for hearing commencing 24 July 2000. Thus it is argued that whilst his Honour Judge Cooper refused the application in anticipation no trial would take place before the latter part of this year, the allocation of an earlier than anticipated trial date is a material factor which justifies a review of his Honour's decision. In effect, the argument is that had his Honour known that the criminal trial would take place in July he would have arrived at a different decision in balancing the competing interests of the public interest in protecting the community from medical practitioners who lack the necessary competence and the right of the medical practitioner to a fair hearing both before the Tribunal and at trial." 10 Her Honour went on to point out that there were other factors to which Cooper DCJ gave consideration in weighing up the competing interests. Finally, her Honour Karpin DCJ said: "Assuming however that the trial proceeds at or about the time presently anticipated does that fact alone vitiate his Honour's reasons justifying vacating the hearing date before the Tribunal? I am not persuaded that it does. Having adopted his Honour's reasons I am not persuaded that this one factor would have tipped the balance in favour of Dr Clarke's application in September 1999, nor am I persuaded that it should do so [now]." 11 Mr Bozic, of counsel, appeared for the appellant. Careful written submissions were filed and in those written submissions, errors of law were alleged. These are identified in a number of subparagraphs in para 14 of those written submissions. However, when asked what was the point of law upon which this appeal was based, Mr Bozic said that the decision made by Karpin DCJ was one which had been made without any basis, or, in other words, it was not a decision that it was open to her Honour to make. 12 Mr Bozic submitted that, properly understood, the public interest demanded that the criminal hearing should take place before the Tribunal hearing and, on that basis, the vacation of the hearing date before the Tribunal should have been granted. 13 In the course of making this submission, some reference was made to the chronology which is found in the affidavit material before the Court and shows that since August 1996, when the events which gave rise to the complaint occurred, the proceedings before the Tribunal have not moved with any great expedition. 14 As I have said, the complaint was not filed until November 1998 and that was followed by a number of adjournments before the Tribunal up to and including a date in June 1999. However, that being said, it still remains necessary to demonstrate that the judgment and conclusion reached by Karpin DCJ reveals a point of law upon which her Honour erred. 15 At the forefront of the appellant's argument is that part of the judgment which asks whether or not the additional material, namely the fixing of the dates for hearing of the criminal proceedings and a reduced anticipated gap between the Tribunal hearing and the criminal proceedings, in some way vitiated Cooper DCJ's reasoning. However, properly understood, I have no doubt that in her reasons for judgment, Karpin DCJ was accepting the correctness of what Cooper DCJ had said about the proper approach to an application of this sort, namely the weighing up of the public interest considerations which were described in the two judgments of this Court to which I have referred. 16 I think it is correct to say that, at the end of the day, her Honour was being asked to bring into the balance the additional factors to which I have referred. Her Honour did that, and having brought those additional factors into the balance, concluded that even so, the public interest favoured the view that the Tribunal hearing date should not be vacated. 17 It is not for this Court to express a view as to how it would have decided the application had it been hearing it at first instance. The only question is whether, in any way, there was an error of law disclosed in her Honour's judgment. 18 In my opinion, the appellant has failed to demonstrate that. In my opinion, her Honour, taking account of appropriate considerations, was simply exercising a discretion open to her. No impropriety has been shown in the way that she did it and I do not think the result could be described as such as to demonstrate that there was error. 19 For these reasons, in my opinion, the appeal should be dismissed with costs. 20 PRIESTLEY JA: I agree. 21 HANDLEY JA: I also agree. 22 PRIESTLEY JA: The Court's order is that the appeal is dismissed with costs. **** 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. 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