Grant v HCCC [2003] NSWCA 73

New South Wales Court of Appeal

CITATION : Grant v HCCC [2003] NSWCA 73 HEARING DATE(S) : 04/04/03 JUDGMENT DATE : 4 April 2003

JUDGMENT OF : Meagher JA at 1; Beazley JA at 20; Santow JA at 21 DECISION : Appeal dismissed with costs.

CATCHWORDS : Removal of practitioner's name from medical register - Capacity to practice - Unsatisfactory professional conduct - Apprehension of bias - Errors of law - Errors of fact - Procedural unfairness. LEGISLATION CITED : Medical Practitioners Act 1992 Pamela Grant PARTIES : v Health Care Complaints Commission FILE NUMBER(S) : CA 40396 of 2002 COUNSEL : A: Litigant in Person R: S Beckett SOLICITORS : A: Litigant in Person R: Health Care Complaints Commission

LOWER COURT Medical Tribunal of NSW JURISDICTION : LOWER COURT DC 40011 of 1998 FILE NUMBER(S) : LOWER COURT Karpin DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40396 of 2002

MEAGHER JA BEAZLEY JA SANTOW JA

Friday, 4 April 2003 PAMELA GRANT v HEALTH CARE COMPLAINTS COMMISSION Judgment

1 MEAGHER JA: In this matter Dr Pamela Margaret Grant is bringing an appeal against the Health Care Complaints Commission in respect of a decision of the Medical Tribunal given on 29 June 1998. 2 In March 1998 the Professional Standards Committee conducted an inquiry into a complaint against her pursuant to the provisions of s 175 of the Medical Practitioners Act 1992. The complaint alleged that she, then being a medical practitioner registered under the Act, was guilty of unsatisfactory professional conduct and/or that she suffered from an impairment within the meaning of the Act. With the exception of one particular the Professional Standards Committee found that all the particulars of the complaint were proved, that Dr Grant was guilty of an unsatisfactory professional conduct and she suffered from an impairment within the meaning of the Act. 3 That committee, the Professional Standards Committee, recommended to the Chairman of the Medical Tribunal that her name be removed from medical register on the basis she did not have sufficient physical or mental capacity to practice medicine. On 29 June 1998 the Chairman of the Medical Tribunal ordered that her name be removed from the register. 4 On 8 July 1998 pursuant to s 97 of the Medical Practitioners Act 1992 she lodged an appeal against that decision. After a number of delays the matter came on for hearing before the Medical Tribunal on 27 November 2000. On 12 September 2001 the Medical Tribunal found that the practitioner was guilty of unsatisfactory professional conduct and her unsatisfactory professional conduct arose from her impaired condition. 5 The Tribunal found that by virtue of her impaired condition she was unable to demonstrate that she possessed adequate knowledge, skill, judgement or care such as to lead to a finding that she is a fit and proper person to be restored to the register of medical practitioners. Having regard to the lengthy period over which she had been impaired the Tribunal could see no prospect that she would be fit to practice in the foreseeable future. 6 Dr Grant, by a summons dated 18 October 2001, sought judicial review of the Medical Tribunal's decision but later filed a notice of discontinuance in respect of those proceedings. Instead of that on May 14 2002 she filed a notice of appeal against the decision of the Medical Tribunal of 12 September 2000. We have today heard that appeal. 7 There were four grounds to her appeal. One was that the Tribunal was guilty of bias, either actual or apprehended. The details of the matters relied on in this regard are not entirely clear, a complaint which can be made of a number of other contentions of Dr Grant. Basically however under this heading she relied on the fact, as she says it, that two member of the Tribunal were also members of the medical board. That is not an allegation of bias, either apprehended or actual. It contains many fallacies. 8 To begin with s 147(4) of the Act provides precisely for this eventuality. Next, the Medical Board is not a party to the action. Next, the Medical Board is not the same thing as the Health Care Complaints Commission which is a party. Next, there is a failure on behalf of Dr Grant to point to any actual procedure or any statement by any members of the Board which would demonstrate to a reasonable and impartial person that there was any bias involved. In my view that complaint should be dismissed. 9 The next submission of Dr Grant was that the Tribunal was guilty of various errors in law. This is even harder to come to grips with. One of the allegations put by her, but only in a very generalised sense, was that the Tribunal made various false accusations. She did not deign to particularise what those false accusations were but in any event that would seem to hardly constitute an error of law. If such false accusations were made it would be an error of fact against which there is no appeal. 10 Secondly, she said that the Tribunal should have but did not give any weight to the evidence of Professor Brendan O'Sullivan but all one has to do is read the evidence of the Tribunal to see the Tribunal did give weight to the Professor's views. 11 Finally, there was a complaint that the Tribunal did not find with sufficient particularity what precise kind of mental disturbance they alleged Dr Grant suffered from. They came to a finding that she was suffering from mental impairment but they did not then say what sort of mental illness they relied on to constitute that impairment. 12 In my view they do not have to. Once they came to the conclusion, which they did come to, that whatever it was that she suffered from was prejudicial to an orderly conduct of her mental and physical duties as a medical practitioner, they were entitled to make a finding of impairment even although they did not put a psychological label on that impairment. 13 Next, Dr Grant originally complained of errors of fact allegedly made by the Tribunal but very wisely she has withdrawn that complaint. 14 Finally, she complained about procedural unfairness. It was very difficult to tease from her exactly what she meant about procedural unfairness. She even went to the length of saying that there was no distinction between her complaint of procedural unfairness and her complaint of bias. If so, then the remarks I have made about bias also dispose of this point but there are two other things which she did seem to rely on though they hardly seem to me to constitute procedural unfairness. 15 She complained about an order made by the Tribunal that she be disqualified for five years. The orders made by the Tribunal are these: (1) that she be not re-registered, (2) that she not be permitted to make a further application for re-registration until the expiration of five years from this date, that is the date of the Tribunal's judgment, and (3) that she pay the costs of the enterprise. 16 Them making of a disqualification for a temporal period is something permitted by the Act and is something which the Tribunal often does. There are obviously practical reasons why that should be done. If, for example, the Tribunal comes to a conclusion of fact justified by the evidence that the doctor will not be fit to commence practice for a given space of time it has the power and one would have thought the duty to make an order that he or she does not practice until that space of time has elapsed. That is what the Tribunal did in the present case. 17 At the heel of the hunt Dr Grant made another application namely that the process involved in the present appeal insofar as it is assembled by the Health Care Complaints Commission was not sent her. Indeed, that there were many important communications which did not reach her. 18 It is quite clear that the Court and the Health Care Complaints Commission endeavoured to send her all relevant material using the post office box which she supplied them with. In her notice of appeal she describes herself at the bottom of the first page as Pamela Grant, PO Box 186 Bondi Junction. It was to that address that all documents assembled by this Court were sent. 19 I do not see how she can make a valid complaint that she is the victim of some wrong because the Court and/or the Health Care Complaints Commission relied on the address with which she supplied them. For those reasons I am of the view that the appeal should be dismissed with costs. 20 BEAZLEY JA: I agree. 21 SANTOW JA: I agree.