Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Tung v Health Care Complaints Commission & Anor [2011] NSWCA 219 Hearing dates: 9 June 2011 Decision date: 29 July 2011 Before: Giles JA at [1], Campbell JA at [71], Tobias AJA at [72] Decision: (1) Appeal against the Tribunal's finding as to impairment dismissed. (2) Appeal against the orders made by the Tribunal allowed. (3) Set aside the orders made by the Tribunal on 11 March 2010. (4) Remit the matter to the Tribunal for reconsideration of the order(s) (if any) to be made consequent on its findings. (5) First respondent to pay the appellant's costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: MEDICAL PRACTITIONERS -Complaints of unsatisfactory conduct and impairment - complaints found proved by Medical Tribunal - deregistration of practitioner ordered - whether denial of procedural fairness in Tribunal not making known its observations of practitioner in relation to impairment - observations of practitioner as witness - confirmatory of matters on which expert witness had diagnosed psychiatric condition - not necessary that Tribunal specifically draw them to practitioner's attention - whether Tribunal failed to engage with medical reports on which practitioner relied - no failure - if any error, was not error in point of law - whether open to make deregistration order - Tribunal failed to address whether impairment such that practitioner not competent to practice medicine - impairment likely to impact on practice of medicine "sooner or later" - finding of present incompetence to practice medicine not open - deregistration order could not be made - matter remitted to Tribunal for reconsideration of orders. Legislation Cited: Health Practitioner Regulation Amendment Act 2010 Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 Cases Cited: Bannister v Walton (1993) 30 NSWLR 699; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Lindsay v Health Care Complaints Commission [2010] NSWCA 194; Lucire v Health Care Complaints Commission (2011) NSWCA 99; Prakash v Health Care Complaints Commission [2006] NSWCA 153. Category: Principal judgment Parties: Dr Margaret Tung - Appellant Karen Mobbs, Health Care Complaints Commission - First Respondent Medical Tribunal of New South Wales - Second Respondent Representation: M Hall - Appellant G Furness SC & R Graycar - First Respondent Submitting appearance - Second Respondent Truman Hoyle - Appellant Health Care Complaints Commission - Respondent File Number(s): 2010/86278 Decision under appeal Citation: Unreported Date of Decision: 2010-03-11 00:00:00 Before: Ainslie-Wallace DCJ, Dr J Hely, Dr P Anderson and Dr C Berglund PhD File Number(s): NSWMT 4006/2009 Judgment 1GILES JA: The appellant was conditionally registered as a medical practitioner in January 2002, and gained full registration in January 2003. On 11 March 2010 the Medical Tribunal ("the Tribunal") ordered, on appeal from an order by the Chairperson, that her name be removed from the Register of Medical Practitioners. 2This is an appeal against the decision of the Tribunal and its exercise of the power to deregister the appellant, brought pursuant to s 90 of the Medical Practice Act 1992 ("the Act"). The Act was repealed with effect from 30 June 2010 by the Health Practitioner Regulation Amendment Act 2010, following adoption of the Health Practitioner Regulation National Law (NSW). It was common ground that the Act continued to apply for the purposes of the appeal. 3An appeal against a decision of the Tribunal is "with respect to a point of law" (s 90(1)(a)), but an appeal against the Tribunal's exercise of its disciplinary powers is not confined to error with respect to a point of law although it requires error: see Bannister v Walton (1993) 30 NSWLR 699; Prakash v Health Care Complaints Commission [2006] NSWCA 153; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Lindsay v Health Care Complaints Commission [2010] NSWCA 194. 4For the reasons which follow - (a) no error in point of law has been shown in the Tribunal's decision that the complaints made about the appellant were proved; but (b) on the findings it made, it was not open to the Tribunal to order that the appellant be deregistered. 5The orders made by the Tribunal should be set aside, and the matter should be remitted to the Tribunal for reconsideration of what order(s), if any, should be made with respect to the appellant. Procedural background 6On 1 August 2007 the first respondent referred two complaints about the appellant to a Professional Standards Committee ("the Committee") of the New South Wales Medical Board ("the Board") (Act, s 5(1)(a)). 7The complaints were - " COMPLAINT ONE Has been guilty of unsatisfactory professional conduct within the meaning of section 36(1)(b) of the Act in that she contravened a provision of the Act. Particulars The Medical Board issued a notice to the practitioner under cover of a letter dated 22 September 2006 mailed to the practitioner requesting that the practitioner provide certain information concerning the practitioner under section 127C of the Act. 1. The practitioner failed, without reasonable excuse, to comply with the request by the Medical Board pursuant to section 127C of the Act to provide the information set out in the notice without a reasonable period specified in the notice. COMPLAINT TWO Suffers from an impairment Particulars The Practitioner suffers from a mental impairment, disability, condition or disorder namely Paranoid Personality Disorder which detrimentally affects or is likely to detrimentally affect the practitioner's mental capacity to practise medicine." 8In April-May 2008 the Committee conducted an inquiry into the complaints. The appellant was not represented at the inquiry and conducted her case on her own behalf. 9In reasons published on 10 November 2008, the Committee found that each of the complaints was proved. It found as to complaint one that the appellant "is guilty of unsatisfactory professional conduct in respect of Section 36(1)(b) of the Act", that being a provision whereby contravention of a provision of the Act constitutes unsatisfactory professional conduct. It found as to complaint two that the appellant "suffers from an impairment pursuant to Section 39 of the Act which detrimentally affects her physical and mental capacity to practice medicine". 10The Committee made no order in relation to complaint one. In relation to complaint two, it "recommend[ed] deregistration on the grounds of lack of physical or mental capacity to practice medicine" (s 63(1)) and referred the matter with its recommendation to the Chairperson of the Tribunal (s 63(2)). 11On 4 February 2009 the Chairperson ordered that the appellant's name be removed from the Register of Medical Practitioners from that date (s 63(3)). 12By a notice of appeal dated 6 March 2009 the appellant appealed to the Tribunal, pursuant to s 87(1) of the Act, against the Committee's findings and recommendation and the Chairperson's deregistration order. The grounds of appeal were - "1. The findings were unwarranted, against the evidence and the weight of the evidence and failed to take into account relevant considerations and evidence. 2. The appellant was denied procedural fairness and was not given adequate opportunity to respond by way of evidence or submissions to the possibility that she faced deregistration nor to appeal against the findings or the recommendation of the Professional Standards Committee prior to the order of deregistration made by the Chairperson. 3. The findings were wrong." 13By s 87(4) of the Act the appeal was "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". The Tribunal could dismiss the appeal, or make any finding or exercise any power or combination of powers that the Tribunal could have made or exercised if the complaints had been originally referred to the Tribunal (s 87(5)). The appeal "does not affect any finding or exercise of any power with respect to which it has been made until the Tribunal makes an order on the appeal" (s 87(6)). 14The Tribunal, constituted by Ainslie-Wallace DCJ, Drs Joanna Hely and Peter Anderson and Dr Catherine Berglund PhD, heard the appeal over the period 1-4 March 2010. The appellant was again unrepresented and conducted her own case. The appeal was in substance a complete rehearing. The reasons of the Committee were before the Tribunal, but it received medical reports and other documents additional to those which had been before the Committee, and oral evidence as to failure to provide information and as to impairment was given. The appellant gave evidence in chief and was cross-examined. 15In reasons published on 11 March 2010 the Tribunal found as to complaint one that the appellant "is guilty of unsatisfactory conduct", and as to complaint two that the appellant "suffers from a Paranoid Personality Disorder and ... that it is of a nature that it will affect her capacity to practice medicine and is thus impaired". It ordered that the appeal be dismissed and the appellant's name be removed from the Register of Medical Practitioners. 16The appellant commenced her appeal to the Supreme Court on 8 April 2010. By force of s 48(1)(vii) of the Supreme Court Act 1970, it was assigned to the Court of Appeal. The Tribunal was named as second respondent: it was an unnecessary party, but in any event it filed a submitting appearance save as to costs. The first respondent was the effective opponent. The grounds of appeal 17The grounds of appeal maintained in this Court were - "2. The Tribunal lacked power to order deregistration, or ought not to have ordered deregistration, where there was no complaint before it that the Appellant was not competent to practice medicine, but only that the Appellant suffered from an impairment. 3. The Appellant was not afforded procedural fairness, in that the Appellant was not warned that the Tribunal intended to take its observations of her demeanour into account in determining whether she suffered from an impairment, and did not afford her an opportunity to deal with such observations. 4. The Tribunal failed to provide reasons for its conclusions that because the Appellant suffered from an impairment, namely Paranoid Personality Disorder, she therefore was not competent to practice medicine and/or should be deregistered. 5. The Tribunal failed to consider whether any remedy other than deregistration was appropriate in response to its finding of an impairment, or alternatively did not give adequate reasons for its rejection of such alternatives. 6. The finding of the Tribunal that the Appellant suffered from an impairment was not one which was open to a reasonable tribunal proceeding according to law." 18Grounds 3 and 6 were concerned with the Tribunal's findings as to the complaint of impairment. Grounds 2, 4 and 5 were concerned with the Tribunal's exercise of its powers by making a deregistration order. There was no challenge to the finding of unsatisfactory professional conduct, but it was common ground that it could not support the deregistration order made by the Chairperson or by the Tribunal. Competence and impairment 19Amongst the complaints which could be made about a registered medical practitioner in s 39 of the Act were - "(c) 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 communication skills for the practice of medicine, including an adequate command of the English language)." "(d) Impairment A complaint that the practitioner suffers from an impairment." 20The definitions in cll 2 and 3 of the Dictionary in the Act provided - "2 Competence to practise medicine A person is competent to practise medicine only if the person: (a) has sufficient physical capacity, mental capacity and skill to practise medicine, and (b) has sufficient communication skills for the practice of medicine, including an adequate command of the English language." "3 Impairment 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 or mental disorder." 21A finding that any complaint against a practitioner had been proved could enliven one of the disciplinary powers in s 61 of the Act. The powers in s 61 did not include deregistration. Deregistration could be recommended by a Committee "if the Committee is satisfied (when it finds on a complaint about the person) that the person does not have sufficient physical and mental capacity to practice medicine" (s 63(1)). Such a finding would reflect the definition of competence to practice medicine. There could then be an order by the Chairperson as occurred in this case, from which there could be an appeal to the Tribunal. 22Section 64(1) provided - "(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, or (c) that the person has been convicted of or made the subject of a criminal finding for an offence, either in or outside New South Wales, and the circumstances of the offence render the person unfit in the public interest to practise medicine, or (d) that the person is not of good character." 23A finding that a complaint of impairment had been proved could enliven referral to an Impaired Registrants Panel and eventually action of various kinds under Pt 5 of the Act. It could not of itself bring about a deregistration order pursuant to s 64(1). It could nonetheless bear upon competence to practice medicine: see Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168] per Sackville AJA, with whom Giles and Young JJA relevantly agreed - "A person is 'competent to practise medicine' only if he or she has, relevantly, sufficient mental capacity to practise medicine and has sufficient communication skills to do so (cl 2). There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act." The Tribunal's reasons 24The Tribunal relevantly had before it reports of Dr Murray Wright, consultant psychiatrist, dated 29 January 2002, 29 June 2005, 15 November 2005, 3 April 2008 and 29 April 2008, tendered by the first respondent; and reports of Dr A R M Freeman and Dr Klaus Bergmann, consultant psychiatrists; Dr Samuel Lai and Dr Luk Siu Luen, psychiatrists; Professor Peter Lee, consultant psychologist; Professor Felice Mak, psychiatrist; and Dr Jonathan Phillips, consultant psychiatrist; dated in various dates in 2007 and 2009, tendered by the appellant. Dr Wright gave oral evidence and was cross-examined. 25Following concerns about the appellant's mental health notified to the Board, she was required to attend Dr Wright for assessment. In the 29 January 2002 report Dr Wright said that the appellant's presentation was suggestive of some form of psychiatric disturbance, either paranoid personality disorder or some form of paranoid or delusional disorder sufficient to warrant her inclusion in an Impaired Registrants Programme. He expressed concern that the stress of working as an intern or resident may cause her condition to deteriorate. 26An Impaired Registrants Panel was convened, but it was not satisfied that the appellant was impaired in a way that would impact on her capacity to practise medicine. 27Further concerns about the appellant's mental health, reported during the appellant's advanced general practitioner training with the Sydney Institute of General Practice and Training Ltd ("SIGPET"), were notified to the Board. She was required again to attend on Dr Wright. In the 29 June 2005 report Dr Wright expressed the opinion that the concerns suggested a pattern of behaviour in which the appellant had difficulty in negotiating relatively straight forward inter-personal conflict, and that the appellant was likely to be suffering from a paranoid personality disorder that appeared to create difficulties for her when under stress. He said that while there was no evidence that this had impacted on the appellant's clinical work, he anticipated that it could create problems in the long term given that situations of conflict are likely to arise with patients. 28The appellant's participation in the general practice training programme was terminated for non-compliance, unprofessional conduct and inappropriate behaviour. The Board referred the appellant to a reconvened Impaired Registrants Panel, but it could not be convened because the appellant had left Australia and e-mail correspondence was unable to find a mutually convenient date. 29The Board then asked Dr Wright to review his opinion in the light of documents obtained from SIGPET, resulting in his report of 15 November 2005. As summarised by the Tribunal - "20 ... In this report Dr Wright said that the SIGPET documents provide: '... detailed and consistent support for the assertion that (the appellant) experiences very significant difficulty in negotiating straightforward problems and interpersonal conflict. The communication is at times circumstantial, there is a failure to resolve important issues and there appears to be an undercurrent of mistrust in many of (the appellant's) communications. .... There are issues raised in addition which refer to (the appellant's) reliability, at times inappropriate interactions with practice staff and a lack of discretion. ' 21 While noting that there was no evidence of impaired clinical performance, Dr Wright said that he remained concerned that given the range, depth and persistence of the appellants difficulties, sooner or later they will impact adversely on (the appellant's) clinical skills. 22 He concluded: 'There is no clear evidence of psychotic symptoms but there is an abundance of evidence suggestive of a Paranoid Personality Disorder. ' 23 Dr Wright said that the documents confirmed that the appellant had little insight into the nature and extent of her difficulties. Although he was not optimistic about the benefit that any psychiatric treatment may offer her, believed that she should be encouraged to seek it." 30The Tribunal referred to the appellant's objection to many of the SIGPET documents on the basis that, although purporting to have been written by her, they had not been written by her. The Tribunal did not accept the appellant in this respect, and found that the appellant wrote the disputed documents and "was not being candid in her evidence" (at [32]). 31The Tribunal said of Dr Wright's reports dated 3 and 29 April 2008 - " 34 On 3rd April 2008, Dr Wright made a further report. Although an appointment was made for him to see the appellant, she was unable to attend and Dr Wright prepared a report based on documents provided to him by the Board concerning its dealings with the appellant. 35 The documents detailed the attempts by the Board to determine where the appellant was living and working and her availability to appear at the PSC. Dr Wright commented that the documents indicated that the appellant had been evasive and untruthful about where she was living and working. Her apparent evasiveness and the fact that it was maintained over a long period of time was a factor he took into account when considering impairment. 36 Dr Wright confirmed his opinion that the appellant probably suffers from a Paranoid Personality Disorder. He said that the evidence of: ' sustained and repeated untruthfulness coupled with a pattern of mistrust, suspicion, confusion, hostility and an inability to resolve conflict ' led him to believe that the appellant was impaired and the impairment was likely to impact on her ability to function as a medical practitioner. He had ' significant reservations ' that the appellant would engage in treatment. 37 A further interview was scheduled and the appellant was seen by Dr Wright on 21st April 2008. Dr Wright made a further report based on this interview dated 29th April 2008. During the interview, Dr Wright asked the appellant to confirm where exactly she had been working and whether she had been living out of Australia. He said: 'What followed was a fairly circuitous and confusing interaction requiring me to ask quite bluntly on several occasions whether (the appellant) was in Sydney or in Canada during that time. (The appellant) appeared reluctant to answer definitively where she was during that period... ." . The Tribunal had a similar experience when the appellant was being cross- examined by counsel for the respondent. 38 Dr Wright concluded: 'There is no direct evidence of impaired patient treatment by (the appellant). However, it is my opinion that her tendency to perceive conflict with little or no evidence, and to deal with conflict in a manner which escalates the concern and/or perpetuates confusion and misunderstanding will occur in a clinical environment at some time and that such behavior would adversely impact on the clinical interaction with patients and their relatives and also impact on treatment outcomes.' 39 Dr Wright said that this interview confirmed his previous diagnosis that she probably suffers from a Paranoid Personality Disorder and that if she were to work in direct patient contact in a clinical environment: 'It would be a matter of time before her paranoid personality disorder led to an impairment in clinical performance'. " 32The appellant's failure to provide information was considered by the Tribunal at this point. The Board had asked the appellant to indicate where she was currently working and to confirm that she was not in Australia. In September 2006 it formally asked her for information pursuant to s 127C of the Act, supplying a form to be completed. The appellant e-mailed the Board saying that the information had been posted to it. It was not received. The Tribunal said that it "does not accept her [evidence] that she posted the information to the Board and finds that she did not respond to the Board's request" (at [46]). 33After reference to the Committee's inquiry and its findings and recommendation, the Tribunal turned to the reports tendered by the appellant. 34The reports of Drs Freeman and Bergmann had been provided in 2007 at the request of the General Medical Council of the United Kingdom ("the GMC"), following communication by the Board with the GMC. The Tribunal recorded that Dr Freeman had said that he "found no grounds from my interview with [the appellant] to make a diagnosis of illness or personality disorder or to consider that she might be unfit to practise or that her practice should be restricted", but had said that a full psychiatric opinion required as much information as possible and that had not been available to him. It recorded that Dr Bergmann had said that he found no evidence of any paranoid disorder, but had added that in the absence of any external reports or information he could not exclude the absence or occurrence of any paranoid disorder at any other material time and could make no judgment about the appellant's fitness to practice. 35The Tribunal considered that these assessments were "of limited value to the Tribunal in determining the issues before it" (at [58]), because the information provided of the circumstances in which the appellant was notified to the Board in 2001 and 2005 was "circumscribed" (at [56], [57]; the appellant had refused permission for the Board to forward its material to the GMC; and the assessments were each on the basis of about an hour's interview with the appellant and only the information provided by the appellant. 36The appellant consulted Drs Lai and Siu-Luen Luk in Hong Kong in 2009. Dr Lai's report said that he did not have sufficient information to establish a diagnosis of paranoid personality disorder. Dr Siu-Luen Luk reported that he had seen the appellant, and "from what she told me ... she appeared to be functioning well" and she did not need psychiatric treatment. The Tribunal said - "59. ... These reports are brief, no indication is given about what history or other material was given to the authors, no note of the interaction between the psychiatrist and the appellant and no diagnostic reasoning was provided. In all of the circumstances, the Tribunal does not place any weight on them in determining this matter." 37The Tribunal said of Dr Lee's report - "60. Dr Peter Lee, a psychologist, administered some psychometric testing to the appellant and reported in April 2009. He concluded that there was no suggestion of any significant psychopathology and no paranoia. He said that her profile, as disclosed on testing, were consistent with a probable defensive, psychologically unsophisticated and rigid personality structure with difficulties accepting problems." 38Professor Mak had assessed the appellant in March and April 2009. The Tribunal summarised her findings and opinions, ultimately the opinion that the appellant did not then or in the past suffer from a paranoid personality disorder or any other psychiatric disorder. It recorded that the first respondent had required Professor Mak and Dr Lee for cross-examination, but that no arrangements had been made for them to come to Australia or for taking their evidence by telephone link and that neither was made available for cross-examination. It found that Professor Mak had not been provided with all preceding medical reports. It said that it was clear from her report that the appellant gave her a selective history, and also - "66. It is clear that Dr Mak's opinion was heavily influenced by the tailored and, frankly misleading, history given to her by the appellant. She clearly proceeded on the basis that there was but one instance of conflict involving the appellant and that it was of limited duration. There is abundant evidence before the Tribunal of repeated, sustained conflict perpetuated by the appellant in the face of attempts by others to negotiate a resolution. 67. In assessing what weight to give Dr Mak's opinion the Tribunal takes into account that she was given an incomplete history that was quite misleading and selective." 39Dr Phillips had been consulted in May 2009. The Tribunal recorded his opinion doubting "that there was clinical evidence to prove the applicant to have suffered any form of paranoid disorder at that time, or any other form of recognisable and diagnosable psychiatric disorder". The Tribunal noted that "despite repeated requests" the appellant did not make Dr Phillips available for cross-examination, and said that the fact that he was not tested about his conclusions and opinions was a matter to be taken into account in assessing the weight to be given to his report. It found that Dr Phillips was not given the documents produced by SIGPET or by the Board concerning the appellant's interactions with those agencies, and that the account given by the appellant to Dr Phillips of the history leading to her name being removed from the Register was incomplete and in a significant number of aspects inaccurate. It further accepted the evidence of Dr Wright that diagnosis of personality disorder was not by objective infallible tests and that Dr Phillips' report was open to valid criticism for requiring "proof positive" (at [75]). It accepted that Dr Phillips had not had the opportunity to respond to the criticisms of his report, but considered that the weight of his opinion was lessened. 40The Tribunal then referred to Dr Wright's oral evidence in which he further explained the opinions he had expressed in his reports, including that his diagnosis had been formed through interviews conducted over time whereby he could see similar problems occurring with different individuals in clinical or statutory situations and with different sorts of problems, so that his conclusion was built up over time. It recorded his view that the reports of Drs Freeman and Bergmann were limited because of the paucity of information they had, and similarly that Dr Phillips' report was limited because he did not have the documents from SIGPET or those reflecting the appellant's dealings with the Board. It described Dr Wright's explanation of the benefit he had in seeing the appellant over a period of six years, and in different circumstances, whereby he was able - " ... to determine that some of the key factors pointing to the diagnosis are satisfied because there seems to be recurrent problems occurring in different situations which demonstrated an habitual way of responding which was both inflexible and distressing either to the individual or to the people around and associated with an impact on her level of functioning". (at [86]) 41The Tribunal said - "87. The Tribunal accepts Dr Wright's evidence and prefers his diagnosis to the doctors whose reports were tendered by the appellant. It is clear to the Tribunal that the appellant carefully controlled the information given to the Hong Kong and English psychiatrists and gave a history that was incomplete and, in the Tribunal's view, quite misleading. The Tribunal recognises that Dr Phillips had more material available to him but from his report it seems that he was not given the SIGPET or Board documents, both of which are, in the Tribunal's view, critical to an understanding of the history between the appellant and those regulatory bodies. Finally, the Tribunal prefers Dr Wright's diagnosis because he has had the advantage of seeing the appellant over a longer period of time and has had access to extrinsic documents which have confirmed the view he formed. 88. The appellant criticised Dr Wright's opinions and argued that he and she had not formed a good rapport sufficient to allow him to draw conclusions from his interviews with her. The Tribunal finds that the appellant wrongly characterised the relationship with Dr Wright and misunderstood his role. Dr Wright was at pains to note that his was not a usual relationship of psychiatrist and patient and, as such, did not expect the open flow of information that one would usually expect in that circumstance. He clearly drew a distinction between that relationship and the circumstances in which he interviewed the appellant and, in the Tribunal's view, clearly took that into account and was astute to the implications of that difference in forming his opinion. The Tribunal rejects the appellant's criticism and argument that Dr Wright's opinion should bear less weight because of her asserted lack of rapport. 89. The Tribunal had the advantage of observing the appellant in the witness box over the course of the hearing. There was much in her evidence and the way in which she gave it that confirmed Dr Wright's impressions formed during his interviews with her. The Tribunal found the appellant to be evasive when being asked straightforward questions about where she lived and where she had worked from time to time." 42Under the heading "Clinical ability", the Tribunal then referred to a number of assessment reports of the appellant's performance as a nurse and medical student and during her advanced general practitioner terms, observing that there "is no doubt that each speaks highly of her capacity and ability in a clinical setting" (at [90]). It said that there was "abundant evidence that the appellant performed well above average in all her clinical interactions", and accepted that "from her nursing time through her Advanced General Practitioner terms, her clinical competence was never questioned" (at [91]). 43The Tribunal continued - "92. That the appellant had not received any complaints about her clinical care did not cause Dr Wright to reconsider his opinion. He said that people with this disorder are able to keep it in check for a large part of the time but decompensate under stress. His concern for the appellant was that sooner or later that type of stress would arise in a medical practice and would probably impact on her ability to interact with patients. He took into account that during her period in clinical practice, there had been complaints about her interactions with administrative and reception staff and felt is [sic] was a small step to include the patients in that interaction. 93. Dr Wright remained of the opinion that the appellant suffered from a Paranoid Personality Disorder from which she would still be suffering at the time of the hearing even though he had not re-assessed her. Dr Wright said that the nature of the condition is that it is enduring." 44After referring to reports of doctors in whose practices the appellant had been placed for the advanced general practitioner terms, and some other matters, the Tribunal said - "100. Although there have been no complaints about the appellant's clinical ability in terms of her medical knowledge, the Tribunal accepts Dr Wright's opinion that given the stress attendant on the practice of medicine as a doctor, it is likely that her psychiatric state would eventually cause an impact on her patients. To a degree, the actions of Dr Price in selecting the patients that he allowed the appellant to see reflected Dr Wright's view, and forestalled any negative impact on patients because of it." 45Under the heading "Discussion", the Tribunal then posed as the issue for its determination "whether the appellant suffers from a mental impairment, disability, condition or disorder, namely Paranoid Personality Disorder which detrimentally affects or is likely to detrimentally affect the practitioner's mental capacity to practise medicine" (at [101]). After reference to proof on the balance of probabilities on the " Briginshaw " test, the Tribunal concluded its reasons - " Impairment 104 The Tribunal finds to the requisite standard that the appellant suffers from a Paranoid Personality Disorder and is also satisfied that it is of a nature that it will affect her capacity to practise medicine and is thus impaired. Failure to provide information pursuant to section 127C of the Act 105 The Tribunal is also satisfied that the appellant did not return the information sought by the Board in its letter of 22 September 2006 and does not accept the appellant that she posted it before the due date of 13th September. 106 Having made that finding, the Tribunal is satisfied that the appellant is guilty of unsatisfactory professional conduct." 46Without further discussion, the Tribunal then made its orders. Ground 3 47The basis of the ground was [89] of the Tribunal's reasons, set out at [41] above. The appellant submitted that the Tribunal denied her procedural fairness because it did not make known to her the observations on which it intended to proceed, and used the observations not to assess credit but to supplement or in substitution for medical evidence. She said that the Tribunal's expertise in psychiatric medicine had not been established (which may not have mattered if the ground was otherwise made good). 48As a general principle, the findings of fact by a court should be based on evidence duly adduced at the trial. The court may take into account its observations of a party in the witness box, and outside the witness box in the court room subject to the following flexible and common sense rule by which - " ... where the judge makes observations of the actions or demeanour of a party, which actions and demeanour are not observable by counsel, and makes use of those observations in a way which has a significance influence upon his decision of the case, he is required in justice, before making such use of those observations, to make those observations and the possibility of his using them in the course of his judgment known to counsel at a stage of the hearing at which counsel still has an opportunity of dealing with them in a proper and effective way": Angaston and District Hospital v Thamm ( 1987) 47 SASR 177 at 178-9 per King CJ. 49This general rule is to be applied according to the circumstances. Where the party is unrepresented those circumstances include the obvious fact that there is no question of making the observations known to counsel who has not seen what the judge saw; the party knows his or her own conduct. No hard and fast rule can be laid down - it is a question of fairness in the particular circumstances. 50The Tribunal is not a court, and is not bound to observe the rules of law governing admission of evidence and may inform itself of any matter in such manner as it thinks fit (cl 1 of Schedule 2 to the Act). It nonetheless commonly receives evidence in a structured hearing (see cll 2 et seq of Schedule 2), and its inquiries into complaints and the orders it makes can significantly affect the medical practitioner concerned. It was not disputed that procedural fairness had to be afforded and that the general rule abovementioned applied. 51However, no denial of procedural fairness emerges from [89] of the Tribunal's reasons. Contrary to the appellant's submission, what the Tribunal there said was concerned only with its observations of the appellant in the witness box. That was expressly stated in the first sentence, and was confirmed in the later references to "much in her evidence and the way in which she gave it" and to the appellant being found to be evasive "when being asked straightforward questions about where she lived and where she had worked from time to time". In speaking particularly of its observations of evasiveness, this clearly enough was linked with the Tribunal's comment at [37], set out at [31] above, in relation to the appellant's cross-examination. It was open to the Tribunal to take account of its observations of evasiveness in the witness box as being congruent with Dr Wright's evidence concerning evasiveness (see also [35]), without specifically drawing those observations to the appellant's attention. It was also open for it to see congruence with Dr Wright's impressions, such as perception of conflict and difficulty in dealing with it, without specifically drawing its observations to her attention. There was no diagnosis by the Tribunal of the appellant's medical condition, but only regard to her conduct in the witness box which it found to be consistent with Dr Wright's observations of her. The observations were noted after Dr Wright's evidence had been accepted, as confirmatory of the impressions on the basis of which he had reached his diagnosis. Ground 4 52The challenge was to the finding of impairment, more specifically to the finding that the appellant suffered from a paranoid personality disorder. 53The ground evolved as it was developed. It was put as a failure in process in that the Tribunal "did not seek to engage with the contents of" the reports tendered by the appellant; there was no "independent analysis or attempts to understand and deal with" those reports; the Tribunal had simply taken Dr Wright's view of the reports "without itself looking at them and considering whether there was more that should be said"; and similar complaints. The submissions came at one point to asserting that the Tribunal had not even read part of a report on which the appellant relied, but that was correctly withdrawn. 54I intend no disrespect to the submissions in dealing with them briefly. The Tribunal recognised the opinions in the reports on which the appellant relied, but for reasons readily available to it considered that their weight was limited or compromised. It did not fail to engage with the reports or their contents. For reasons readily available to it, it preferred the opinion of Dr Wright. It sufficiently explained its preference. If there was error, and I do not suggest that there was, it was factual error. The appellant's complaint was in truth that the Tribunal had erred in the comparative weight it gave to the opinions of Dr Wright over those of the doctors on whose reports she relied. No error in point of law has been shown. Grounds 2 and 4 55These grounds need not be considered individually. There was error in making a deregistration order on the basis of the impairment as found by the Tribunal. 56There is some overlap between the two grounds for complaint in s 39 of the Act, being lack of competence on the one hand and impairment on the other. The definitions of these terms have been set out at [20] above. A physical or mental impairment, disability, condition or disorder which detrimentally affects the person's physical or mental capacity to practice medicine may mean that the person does not have sufficient physical capacity, mental capacity or skill to practice medicine. But that is not necessarily so, and particularly it is not necessarily so in the case of a physical or mental impairment, disability, condition or disorder which is likely to detrimentally affect the person's physical or mental capacity to practice medicine. Thus in Lindsay v Health Care Complaints Commission Sackville AJA observed at [169] that the Tribunal "merely asserted, without further reasons, that by reason of his impairment, the appellant was not competent to practise medicine", and continued - " [170] The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances." 57In Lindsay v Health Care Complaints Commission it was held that, reading the Tribunal's reasons as a whole, it addressed whether, and found that, the practitioner's impairment precluded appropriate communication with and treatment of patients. I do not think the same can be said in the present case. 58It will be recalled that the Committee had found that the appellant suffered from an impairment "which detrimentally affects her physical and mental capacity to practice medicine". The finding of present effect on the appellant's capacity to practice medicine was clear from the body of the Committee's reasons, which included - "The practise of medicine involves more than just the application of clinical knowledge. It involves the interaction of the doctor with colleagues, supervisors, patients and regulatory bodies. Dr Tung's impairment clearly, detrimentally affects [sic] her ability to do so. The evidence shows significant detrimental affects [sic] in relation to Dr Tung's ability to be supervised to work as directed, to interact with colleagues and to abide by her statutory responsibilities. These are fundamental to the practice of medicine, particularly given Dr Tung's level of training and experience." 59The Tribunal came to a rather different finding as to impairment. The finding of impairment at [104] was that the appellant's disorder was "of a nature that it will affect her capacity to practise medicine" (italics added). This was a statement of futurity, reflecting "is likely to" in the definition of impairment. The futurity was evident in the body of the Tribunal's reasons. It accepted at [100] Dr Wright's opinion that, although there had been no complaints about the appellant's clinical ability in terms of medical knowledge, "given the stress attendant on the practice of medicine as a doctor, it is likely that her psychiatric state would eventually cause an impact on her patients" (italics added). It described Dr Wright's opinion in this respect at [92], in the particular context of clinical ability: the description was preceded by acceptance that the appellant's clinical competence had until then not been questioned, and can conveniently be repeated - " 92 That the appellant had not received any complaints about her clinical care did not cause Dr Wright to reconsider his opinion. He said that people with this disorder are able to keep it in check for a large part of the time but decompensate under stress. His concern for the appellant was that sooner or later that type of stress would arise in a medical practice and would probably impact on her ability to interact with patients. He took into account that during her period in clinical practice, there had been complaints about her interactions with administrative and reception staff and felt is [sic] was a small step to include the patients in that interaction." (italics added) 60The Tribunal gave no reasons for moving from its finding of impairment to satisfaction of any of the states in s 64(1) of the Act entitling it to make a deregistration order. Since the Tribunal was hearing an appeal from the Chairperson's order clearly enough made on the ground that the appellant was not competent to practice medicine, lack of competence was the obvious path, and the appeal proceeded accordingly. However, quite apart from whether a complaint that the appellant was not competent to practice medicine was a prerequisite for the exercise of the power in s 64(1)(a) (ground 2), it was necessary that the appellant's impairment meant that she did not presently have sufficient mental capacity or other competence to practice medicine. 61Assuming that it could have made a deregistration order if it had been satisfied that the appellant was not competent to practice medicine, when there had not been a complaint that she was not competent to practice medicine, the Tribunal did not address whether the appellant did not have sufficient mental capacity or other competence to practice medicine. I do not think that its reasons can be read as including sub silentio satisfaction that the appellant was not competent to practise medicine. 62On the contrary, given the futurity in the Tribunal's finding in my view it was not open to the Tribunal to find that she was not competent to practice medicine. No doubt there is room for some futurity in the definition of competence to practice medicine. It is in terms of present capacity, but practice of medicine is a continuum and a practitioner whose physical or mental deterioration will inevitably and soon make him or her incapable could be said to lack sufficient physical or mental capacity to practice medicine. That is not the present case. The finding, understood in the light of the reasons as a whole, was one of likelihood at an indefinite future time. It could not properly be found that the appellant did not presently have sufficient mental capacity or other competence to practice medicine. Ground 5 63I have set out the appellant's grounds of appeal to the Tribunal. Within ground 2 was the contention that she should not have suffered deregistration if the complaints were found proved. That was an issue for the Tribunal. 64While it was not a prominent issue in the proceedings before the Tribunal, there was clearly enough a live question whether (assuming that it could do so) a finding of impairment should lead to deregistration. The appellant's opening statement to the Tribunal included, referring to the reports of Dr Wright, that she had not suffered and was not suffering from impairment of her clinical functioning. Counsel for the first respondent particularly asked Dr Wright in oral evidence to explain how he took into account, in coming to his opinion, that there was no direct evidence of impaired patient treatment by the appellant and whether he could propose conditions for the appellant's practice of medicine. His response was that it presented a difficulty, which he then elaborated. Counsel for the first respondent submitted to the Tribunal in closing submissions that it would be difficult to fashion conditions to accommodate the appellant's condition as well as the need to protect the public. The appellant's closing submissions included posing whether and how a paranoid personality disorder would affect her work. 65I do not suggest that a separate hearing was necessarily required (see Lucire v Health Care Complaints Commission (2011) NSWCA 99 at [60] per Basten JA, McColl JA and Sackville AJA agreeing). However, it was necessary that, if it was satisfied that the appellant was not competent to practice medicine (or as to one of the other states in s 64(1)(a) of the Act entitling it to make a deregistration order), the Tribunal address whether deregistration rather than some lesser disciplinary action was the appropriate course, and explain why it took the course of deregistration. It did not do so. It may have been thought that, since it was an appeal from the Chairperson's deregistration order, the order would stand if the Tribunal found the complaints proved. If so, that was not correct. The Tribunal was conducting a rehearing in which the appropriate order(s) was in issue. 66There was error in this respect also. Had the Tribunal addressed the matter, it may be that the error considered under grounds 2 and 4 would not have occurred. The result 67The Tribunal's finding of impairment stands. This Court can exercise the Tribunal's powers (s 91(1)(b)), but it is less well placed than the Tribunal to undertake that consideration and it was not suggested that it should. The Tribunal must reconsider the order(s) to be made, short of a deregistration order, consequent on its findings. 68It is not necessary to consider the competing submissions concerning ground 2. In summary, the appellant submitted that even if the Tribunal was satisfied that she was not competent to practice medicine, it could not make a deregistration order because there had to be satisfaction "when it finds on a complaint about the person" (s 64(1) chapeau), and the complaint had to be a complaint that the practitioner was not competent to practice medicine. Equally in summary, the first respondent submitted that it was sufficient that the finding was on a complaint about the practitioner which fairly carried the finding, whether or not the complaint was that the practitioner was not competent to practice medicine. Lindsay v Health Care Complaints Commission may favour the first respondent on its facts, although the question did not arise. There was reference in submissions to cl 5(2) of Schedule 2 of the Act, which enabled the Tribunal to "take that" another complaint had been referred to it, and to s 38A by which a reference to a complaint included a reference to a matter arising out of the investigation of a complaint. The question will not arise in the Tribunal's reconsideration, and can await decision if it arises in another case. 69The Tribunal's orders, including its costs order, should be set aside, and the matter should be remitted to the Tribunal for the reconsideration abovementioned. Although it was not the subject of submissions, I apprehend that the Chairperson's deregistration order will remain in place when the Tribunal's orders are set aside, so that the appellant will remain deregistered until the Tribunal makes its orders (s 87(6)). It is obviously desirable that the Tribunal's reconsideration take place without undue delay. Orders 70I propose the following orders - (1) Appeal against the Tribunal's finding as to impairment dismissed. (2) Appeal against the orders made by the Tribunal allowed. (3) Set aside the orders made by the Tribunal on 11 March 2010. (4) Remit the matter to the Tribunal for reconsideration of the order(s) (if any) to be made consequent on its findings. (5) First respondent to pay the appellant's costs of the appeal. 71CAMPBELL JA : I agree with Giles JA. 72TOBIAS AJA : I agree with Giles JA. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 August 2011