ROEHRICH v NSW MEDICAL BOARD [2004] NSWSC 1264

New South Wales Supreme Court

CITATION : ROEHRICH v NSW MEDICAL BOARD [2004] NSWSC 1264 HEARING DATE(S) : 27-29 October 2004 18 November 2004 JUDGMENT DATE : 23 December 2004

JUDGMENT OF : Hulme J at 1 DECISION : See paragraph 99

PARTIES : Dr Eckard Roehrich NSW Medical Board FILE NUMBER(S) : SC 30090/04 COUNSEL : In person Ms G Furness SOLICITORS : In person AE Dix

- 38 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HULME J

No: 30090/04 Thursday 23 December 2004

Dr Eckard ROEHRICH v NSW MEDICAL BOARD, Professor Walter GLOVER AND Dr Jennifer KENDRICK JUDGMENT 1 HIS HONOUR: On 21 September 2004 Professor Glover and Dr Kendrick, purporting to act as delegates of the New South Wales Medical Board determined to suspend the Plaintiff, Dr Roehrich, from practising medicine for a period of 8 weeks, directing that such suspension become effective from the close of business on Friday 24 September 2004. 2 On 19 October 2004 Dr Roehrich filed in this Court a document described as a Statement of Claim seeking, inter alia, the following orders:- 1. Order that the determinations and decisions of the NSW Medical Board with respect to the matters referred to in this Statement of Claim be quashed. 2. Order that the NSW Medical Board unconditionally reinstate the Plaintiff's licence to practise medicine as of 24/9/04." 3 On the same date Dr Roehrich filed a Notice of Motion seeking the following:- 1. Interlocutory orders that the Decisions undertaken by the NSW Medical Board and its agents and representatives be quashed as pertains (sic) to the Statement of Claim. 2. Interlocutory orders that the Medical Board unconditionally reinstates the Plaintiff's licence to practice medicine as from 24/9/04. 3. Orders for costs incurred by the Plaintiff to be paid by the Defendant." 4 The matter came before me in the Duty Judge's list on 27 October 2004 at which time Dr Roehrich sought urgently an order in terms of the second prayer in his Notice of Motion. Because of the ramifications to Dr Roehrich, I allowed the matter to continue for some portion of the next two days, notwithstanding the normal time limit on matters in the duty judge's list. In the way that the matter proceeded it was agreed on all sides that the proceedings should be regarded as an application for final relief by way of quashing of the decision to suspend. 5 On 29 October I reserved my decision. On 2 November 2004, Dr Roehrich forwarded to my chambers some further submissions. No leave to do so had been reserved and, when contacted, the legal representative of the Board opposed them being considered. Dr Roehrich then filed a Notice of Motion and on its return, over opposition, I concluded that I should consider the further submissions, giving the Board the opportunity to reply. Submissions in response were received on 19 November. 6 Before I turn to the merits of the case it is appropriate to say a little about the way in which the application proceeded and to refer to at least some of the relevant statutory provisions. 7 Dr Roehrich's Statement of Claim, if one ignores the prayers for relief, takes more the form of an affidavit than a Statement of Claim, the strictures in Part 15 Rule 7 not having been obviously adhered to. It was verified in the form appropriate for an affidavit verifying a pleading and not in the form for an evidentiary affidavit. However, it was agreed that, without further verification, I could treat the document as an Affidavit by the Plaintiff. Apart from that document and its annexures (which I will continue to refer to as a Statement of Claim) the only other evidence consisted of two Affidavits by Andrew Dix, the Registrar of the New South Wales Medical Board, which did little more than annex further documents, and some additional documents which were tendered. There was no cross-examination. 8 The section of the Medical Practice Act under which Professor Glover and Dr Kendrick purported to act was Section 66 which, so far as is relevant, provides:- (1) The Board must, if at any time it is satisfied that such action is necessary for the purpose of protecting the life or physical or mental health of any person: (a) by order suspend a registered medical practitioner from practising medicine for such period (not exceeding 8 weeks) as is specified in the order, or (b) impose on a registered medical practitioner's registration such conditions, relating to the practitioner's practising medicine, as it considers appropriate. (2) The Board may take such action: (a) whether or not a complaint has been made or referred to the Board about the practitioner; and (b) whether or not proceedings in respect of such a complaint are before the Tribunal or a Committee. 9 Section 95 of the Act provides an entitlement to appeal to the Medical Tribunal against a suspension under Section 66. Section 95(3) provides that such an appeal must be made within 28 days or such longer period as the Registrar may allow. 10 Part 4 of the Act, which includes Section 66, provides for the making of complaints about medical practitioners and contains provisions specifying how those complaints are to be dealt with. Part 5A of the Act is headed "Performance Assessment" and contains a number of provisions which were also the subject of consideration in the proceedings before me. They, and one other provision which may be relevant, include the following:- 86C The Board may have the professional performance of a registered medical practitioner assessed under this Part if any matter comes to its attention that indicates that the professional performance of the registered medical practitioner, or any aspect of the practitioner's professional performance, is unsatisfactory. This is not limited to matters that are the subject of a complaint or notification to the Board. 86D (1) The Board must not have the professional performance of a registered medical practitioner assessed under this Part if a matter giving rise to the proposed assessment: (a) raises a significant issue of public health or safety, or (b) raises a prima facie case of professional misconduct by the registered medical practitioner, or unsatisfactory professional conduct by the registered medical practitioner of a significant nature. (2) Any such matter is to be dealt with as a complaint. 86G The Board has the professional performance of a registered medical practitioner assessed by having one or more assessors conduct an assessment of the practitioner's professional performance, or of any particular aspect or aspects of the practitioner's professional performance. 86H (1) As soon as practicable after deciding to have the professional performance of a registered medical practitioner assessed, the Board is to inform the practitioner in writing of that decision. (2) The information given to the practitioner is to include the following: (a) details of the matter or matters that gave rise to the assessment, (b) information about how the performance assessment process under this Part works. 86J (1) After receiving the report of an assessor, the Board may: (a) … (2) The Board must make a complaint against the practitioner concerned if the assessment: (a) raises a significant issue of public health or safety, or (b) raises a prima facie case of professional misconduct by a registered medical practitioner, or unsatisfactory professional conduct by a registered medical practitioner of a significant nature. (3) This section does not limit the Board's powers under section 66. 11 Schedule 3A to the Act contains a number of provisions relating to performance assessments. It gives an assessor wide ranging powers. An assessor may at any reasonable time enter and inspect any premises that the assessor reasonably believes are used by a registered medical practitioner in connection with his practice providing notice is given. The assessor has power to examine equipment or drugs on premises so entered, power to require any person on the premises to produce records relating to the carrying out of a professional practice, power to take copies of those records, power to ask questions of any person on the premises and power to require the occupier to provide the assessor with such assistance as is reasonably necessary. 12 An assessor may by notice require the registered medical practitioner who is the subject of assessment to take part in the assessment exercise – an event described as "an exercise during which the assessor observes and assesses the professional performance of the registered medical practitioner". Sub-sections 3(6) and (7) of Schedule 3A of the Act provide:- (6) A failure or refusal by a registered medical practitioner to take part in, or to continue with, an assessment exercise does not constitute an offence against clause 5. (7) However, a failure or refusal by a registered medical practitioner, without reasonable excuse, to take part in or to continue with an assessment exercise is evidence that the professional performance of the registered medical practitioner is unsatisfactory. 13 Dr Roehrich obtained his medical degree in 1971 from the University of Kiel Medical School. In September 1982 he passed the Australian Medical Council examination, between 1982 and 1985 he was employed as a surgical registrar in Sydney and New South Wales Central Coast Hospitals and since 1985 he has been in private practice as a general practitioner. It is unnecessary to set out all of Dr Roehrich's qualifications or attainments but it is appropriate to quote from two paragraphs of the Statement of Claim:- 19. From 1985 until 24/9/04 I practiced Integrative medicine which is a combination of orthodox and evidence-based complementary medicine including nutritional and environmental medicine. My type of medical practice is sometimes referred to as holistic medicine. 20. For a period of eighteen years, until 2000 I had never been contacted by the NSW Medical Board (the Board) regarding any practice issue or complaint. 14 In fact according to a summary of previous complaints there seems to have been a complaint in about December 1997 and, since the beginning of the year 2000, another six. As the contents of this summary, although at times cryptic and unexplained during the hearing before me, may be important, it is appropriate to quote from it, at least in part. The form of the document provided a number of boxes with titles and entries. So far as presently relevant these were as follows (Not all were completed.):- 15 The complaint summary in respect of the first complaint included:- Complainant Ms … Received Date Complaint Category Treatment Complaint Sub Category Hearing Type Medical Tribunal Hearing (c) Assessment 2 Discontinue Dealing With Outcome 2 Discontinue Dealing Outcome Date 16/12/97