LINDSAY v HEALTH CARE COMPLAINTS COMMISSION & ANOR [2004] NSWCA 222

New South Wales Court of Appeal

CITATION : LINDSAY v HEALTH CARE COMPLAINTS COMMISSION & ANOR [2004] NSWCA 222 HEARING DATE(S) : 24 June 2004 JUDGMENT DATE : 24 June 2004

JUDGMENT OF : Mason P at 1; Santow J at 58; Pearlman AJA at 60 DECISION : Summons dismissed with costs.

CATCHWORDS : Medical Practice Act 1992, s36 - unsatisfactory professional conduct - seeking order of certiorari quashing decision of Medical Tribunal - whether decision vitiated by lack of procedural fairness - Parker warning - consent to orders made by Tribunal (ND) PARTIES : Dr David Charles LINDSAY v HEALTH CARE COMPLAINTS COMMISSION & MEDICAL TRIBUNAL OF NSW FILE NUMBER(S) : CA 40847/03 Claimant: J Conomos / R Marshall COUNSEL : 1st Opponent: J Basten QC/ SA Beckett 2nd Opponent: Submitting appearance Claimant: Kelvin Solari SOLICITORS : 1st Opponent: Health Care Complaints Commission 2nd Opponent: IV Knight, Crown Solicitor

LOWER COURT Medical Tribunal of New South Wales JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT McGuire J (Deputy Chairperson) JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40847/03

MASON P SANTOW JA PEARLMAN AJA

Thursday 24 June 2004

Dr David Charles LINDSAY v HEALTH CARE COMPLAINTS COMMISSION & Anor JUDGMENT

1 MASON P: The Health Care Complaints Commission made a Complaint to the Medical Board of New South Wales against the claimant, Dr Lindsay who is a licensed medical practitioner. It related to his treatment of a patient in January 1998. The Complaint included allegations about the claimant's medical records system and the infection control standards at the claimant's professional rooms. It was contended that the medical practitioner had been guilty of unsatisfactory professional conduct within the meaning of s36 of the Medical Practice Act 1992 (the Act). 2 The Complaint was referred to a Professional Standards Committee that embarked upon an inquiry pursuant to s167 of the Act. After four days of hearing the Committee found the Complaint proven in several particulars. On 23 July 2001 the Committee published its Reasons. It also made Orders as follows: 1. The Committee has decided to reprimand Dr D C Lindsay pursuant to Section 61(1)(a) of the Act. 2. That pursuant to section 62(1) of the Act, the Committee imposes a fine on Dr Lindsay in the amount of [30] penalty units (representing a sum of $3,300) payable within 90 days from the date of this decision. 3. That pursuant to section 61(1)(c) of the Act, the following conditions be imposed upon Dr Lindsay's registration: (a) Dr Lindsay maintain a record of all surgical procedures he performs in a form approved by the Board to be reviewed by an Auditor appointed by the Board at 6 monthly intervals for a period of two years. That Dr Lindsay authorise the Auditor to report to the Board on any relevant matters. The costs of any subsequent reports to be borne by Dr Lindsay. (b) Dr Lindsay to submit to a random Audit of his medical records to monitor compliance with Schedule 2 of the Medical Practice Act Regulations 1998 within three months from the date of this decision and subsequently as required by the Board. Dr Lindsay is to authorize the Auditor to prepare a report on his/her findings. Dr Lindsay is to meet all costs associated with the random audit and any subsequent reports. (c) The Board arrange an inspection of Dr Lindsay's premises within 12 months from the date of this decision to determine their compliance with the standards necessary for the excision of skin lesions requiring more than simple closure and to report back to the Board's Conduct Committee. Dr Lindsay is to meet all costs associated with the inspection and any subsequent report. (d) That Dr Lindsay authorize and consent to the release of information between the Health Insurance Commission and the Board where necessary to facilitate monitoring of compliance with these conditions. 3 The claimant appealed to the Medical Tribunal pursuant to s87(1). The appeal was filed on 23 August 2001 and came on for hearing on 25 November 2002. The Tribunal was constituted by a Deputy Chairperson, Judge McGuire and three members, Dr Pasfield, Dr Phillipson and Ms Berglund Ph D. Section 87 relevantly provides: (4) The appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given. (5) The Tribunal may: (a) dismiss the appeal, or (b) make any finding or exercise any power or combination of powers that the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal. (6) An appeal under this section does not affect any finding or exercise of power with respect to which it has been made until the Tribunal makes an order on the appeal. 4 The appeal was effectively conducted as a fresh hearing. The Commission presented its evidence first, calling lay and expert witnesses. It closed its case at the end of the third day, 27 November 2002. The claimant then gave evidence and was cross-examined. The cross-examination was incomplete at the end of the fourth day, 28 November 2002. 5 When the hearing resumed on Friday 29 November, the Deputy Chairperson raised what he called "an important matter" with the claimant's counsel, Mr Conomos. What was said was this : DEPUTY CHAIRPERSON: Mr Conomos, as you are aware, this is a de novo hearing before this Tribunal. As you are further aware, this Tribunal can exercise certain powers. Those powers might be entirely different from those exercised by the committee. The evidence hasn't concluded. The Tribunal hasn't heard submissions but on the state of the evidence as it presently stands, and if it was to remain unaltered and the committee's views be influenced by such evidence as may fall, there is a substantial prospect that this Tribunal would exercise its powers in the interests of protection of the public and may impose a far more substantial fine. In particular, it may impose restrictions and conditions on the practitioner far more stringent than were imposed by the committee. It may also be that the Tribunal would consider lodging its own complaint. Now I appreciate Mr Conomos, Mr Beckett, that the evidence hasn't finished. There may be evidence which will emerge which will put an entirely different complexion on this appeal and my remarks are predicated upon the state of the evidence as it presently stands. I feel it only fair to the practitioner that he be put clearly on notice that there are substantial prospects that more stringent orders may be made and [sic] were made by the PSC. The Tribunal will adjourn and you of course are released from normal prohibitions about discussing the matter with your client during the course of his cross-examination. Would you please take instructions Mr Conomos? If you are in any doubt as to what I'm talking about, let me know because I want the practitioner to be completely aware of the possibilities, or the probabilities actually, that might ensue. CONOMOS: I took down every word, as you saw. This is a Parker warning. If anybody knows about those things I do, without being immodest, so I want some time. DEPUTY CHAIRPERSON: Yes. 6 Mr Conomos' recognition of a "Parker warning" was a reference to this Court's decision in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. That case discussed the duty of a Judge of the District Court hearing an all grounds appeal under s122 of the Justices Act 1902, as it then stood, to disclose if he or she was contemplating imposing a harsher sentence than that imposed in the Local Court in the event that the appeal to the District Court was dismissed. 7 A short adjournment was granted to Mr Conomos to obtain instructions. 8 Immediately after the adjournment Mr Conomos indicated that he had been instructed to withdraw the appeal. Discussion ensued as to whether this could be done without the leave of the Tribunal. Counsel representing the Commission observed (at CB 433Q) that if the Tribunal acceded to the application that the appeal be withdrawn then it would lack jurisdiction to make its own orders with respect to the claimant. Mr Beckett continued: The instructions I've received in the break are essentially that, as the Tribunal has already expressed, the complainant is also concerned about the protection of the public and especially following the doctor's evidence and demeanour in the witness box yesterday. The position of the complainant is that the orders that were made by the Professional Standards Committee are inadequate, especially after yesterday, and that the complainant would seek more stringent orders in relation to Dr Lindsay. 9 There was some discussion on the following page (CB 434), in which Mr Beckett hinted at expanding the complaint to include one of impairment. There was reference to Sch 2 cl 5 of the Act, to which I shall return, but ultimately there was confirmation (at 434T) that the basis of the Commission's opposition to a simple withdrawal of the appeal was concern about the protection of the public arising from a number of matters, particularly the evidence given by the doctor. 10 During the discussion there was reference, both by the Deputy Chairperson and by Mr Beckett representing the Commission, to the Tribunal's power to prefer additional complaints. Schedule 2, clause 5 of the Act provides: (1) A Committee or the Tribunal may in proceedings before it deal with one or more complaints about a registered medical practitioner. (2) If, during any such proceedings, it appears to a Committee or the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner concerned: (a) whether instead of or in addition to the complaint which was made, and (b) whether or not by the same complainant, the Committee or the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings. (3) If another complaint is taken to have been referred to a Committee or the Tribunal under subclause (2), the complaint may be dealt with after such an adjournment (if any) as is, in the opinion of the Committee or the Tribunal, just and equitable in the circumstances. 11 The Deputy Chairperson also raised with Mr Beckett the question whether there was any problem with the appeal being withdrawn and the orders of the Tribunal being couched in the same terms as the orders made by the Committee. Mr Beckett said that he was concerned about the jurisdiction of the Tribunal to make those orders if the application for the appeal to be withdrawn was consented to. There was also the following exchange: BECKETT: … I'm reminded there has been a dispute about one of those orders specifically. CONOMOS: Your Honour, with great respect to my friend has a lot of licence here and that's not right. It is one thing he can comment about doctor's evidence yesterday and his demeanour but it's another to be going into his evidence. DEPUTY CHAIRPERSON: Yes, keep going Mr Beckett. What are you telling me? BECKETT: The issue, I wasn't saying that it's been determined one way or another, but there has been a dispute between the Medical Board and Dr Lindsay about a particular power under the orders given by the PSC specifically. Provision are made about orders to inspect his premises. DEPUTY CHAIRPERSON: We know nothing about that but assuming that is so, isn't there some mechanism whereby that can be tested as to who is correct? BECKETT: Yes, that is true. DEPUTY CHAIRPERSON: So if there is such a dispute, how does that concern us? Or does it? BECKETT: Well, a compliant can be laid, a further complaint could be laid if the HCCC ---- DEPUTY CHAIRPERSON: Exactly. BECKETT: But none has been laid, as I understand it. 12 When the Deputy Chairperson said "We know nothing about that" he was, as I read it, indicating that there was no material formally before the Tribunal on that issue. This remark and the whole discussion I have just quoted was an allusion to what had happened earlier (at CB 359). 13 Shortly before the claimant gave oral evidence before the Tribunal a witness statement was tendered. Mr Beckett object to paras 25 – 28 of that statement stating: Those matters relate to a dispute between the Medical Board and Dr Lindsay about the breach of certain orders made by the Professional Standards Committee in this matter. 14 Mr Conomos indicated that those paragraphs were not pressed on the basis that the matter was not relevant and the Deputy Chairperson ruled that he would put his pen through those paragraphs. The relevant portion of the witness statement has been placed before us. The paragraphs are headed Information Subsequent to Making of Order by Professional Standards Committee and they do no more than exhibit various documents, one of which is a copy of a statutory declaration of Mr Dix dated 17 May 2002 to which reference will later be made. 15 This statement of the claimant was undoubtedly part of the file in the matter before the Tribunal. It may or may not have been perused by the Members of the Tribunal in anticipation of the hearing. The paragraphs 25-28 were however struck out and there is nothing to indicate in the transcript that followed that any evidentiary effect was being given to the contentions that were raised in them. 16 The claimant is represented in this Court by the same counsel who represented him before the Tribunal. Mr Conomos made it plain to us that it is not suggested that the earlier discussion about the Tribunal referring additional charges arising out of the evidence before the Tribunal had anything to do with the subject matter of the four paragraphs of the statement that have been struck out or with what is later referred to as the "later complaint". 17 I return to the discussion in the Tribunal in the late morning of Friday 29 November 2002. Mr Beckett suggested (at CB 438) that the form of Order 3(a) made by the Committee should be amended to address certain concerns of the Commission if a method could be devised for the Tribunal to make its own orders. The Deputy Chairperson raised the possibility of resolving the matter by the practitioner himself making application that the Tribunal should make orders as made by the Professional Standards Committee and amended in the way the Commission was seeking. 18 Mr Conomos submitted that the claimant could "walk out any time, it's his appeal".