Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Khan [2014] NSWCATOD 83 Hearing dates: 27 June 2014 and written submissions filed 7 July 2014 Decision date: 22 July 2014 Jurisdiction: Occupational Division Before: Boland AM ADCJ Decision: 1. The Tribunal consents to the inquiry into the Complaint referred to the Tribunal on 4 April 2014 being withdrawn. 2. The application filed on 4 April 2014 is dismissed. 3. No order as to costs Catchwords: COMPLAINT - Where complaint asserts unsatisfactory professional conduct and professional misconduct - where Health Care Complaints Commission seek to withdraw the complaint. Whether it is not in the public interest for inquiry to be heard. Whether single member of Tribunal has jurisdiction to dismiss the complaint Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner (Regulation) National Law No. 86a (NSW) Cases Cited: Health Care Complaints Commission v Ha [2012] NSWPYT 2 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Masood Khan (Respondent) Representation: Health Care Complaints Commission(Applicant) File Number(s): 1420155 Publication restriction: Non-publication order applies in respect of patients named in the complaint reasons for decision What the Tribunal decided 1On 22 July 2014 the Tribunal made an order permitting the Health Care Complaints Commission ("the HCCC") to withdraw the Complaint against Dr Masood Khan ("the practitioner") under the provisions of the Health Practitioner (Regulation) National Law (the National Law). 2The Tribunal dismissed the application filed by the HCCC on 4 April 2014. 3The Tribunal had earlier, on 16 May 2014, made a non publication order in respect of the patients named in the schedule to the Complaint. 4No order was made as to costs. 5These are the Tribunal's reasons for the orders made. Introduction 6The practitioner is a 68 year old psychiatrist who obtained his medical qualifications (MB.BS) from Osmania University, India in 1970. In 1977 he became a member of the Royal Australian and New Zealand College of Psychiatrists. 7Between 1977 and October 2012 he practised as a specialist psychiatrist in Sydney. He has now retired, and has surrendered his registration. 8These proceedings are to determine whether or not the Complaint, made by the HCCC against the practitioner, should be withdrawn without proceeding to an inquiry before the Tribunal. Background 9In September 2012, following an inquiry under s 150 of the National Law, the practitioner relinquished his authority to prescribe, administer and possess Schedule 4 D and Schedule 8 drugs. Conditions were placed on his registration. However the practitioner did not resume practice following the s 150 proceedings. At that time he took steps to wind up his practice. He closed the practice at the end of October 2012. 10A Complaint asserting unprofessional conduct in respect of improper prescribing for 28 patients was referred to the Tribunal by the HCCC. The drugs named in the Complaint include dexamphetamines, oxazepam, methylphenidate, nitrazepam, diazepam, temazepam and alphrazolam. The Complaint also asserts breaches of the relevant regulations in force from time to time in respect of record keeping for patients. The Complaint further asserts the conduct particularised, either individually or in combination, justifies the suspension or cancellation of the practitioner's registration and constitutes professional misconduct within the meaning of s 139E of the National Law. 11In June 2013 the practitioner changed his registration status with the Australian Health Practitioner Regulation Authority ("AHPRA") to that of a non-practising practitioner. 12On 26 May 2014 the practitioner executed a statutory declaration in which he deposed that he was suffering ill health and had determined to retire. He also deposed to instructing his solicitors to write to AHPRA to request the removal of his name from the register of health practitioners. 13On 26 May Ms Elizabeth Schultz, Registration Coordinator - Medical, of the NSW Office of AHPRA confirmed the practitioner's registration was being removed from the register that day. 14At a directions hearing in the Tribunal on 16 May 2014 the practitioner's solicitor Mr A Davey ("Mr Davey") advised the Tribunal that he had been unable, at that point in time, to obtain instructions from his client, but he anticipated that, as the practitioner had not practised since October 2012, his client was likely to surrender his registration. The matter was stood over for further mention on 27 June 2014. 15On 2 June 2014, Ms Karen Mobbs ("Ms Mobbs") Director of Proceedings, HCCC wrote to the Medical Council of New South Wales ("the Council"), and having noted that the practitioner had withdrawn his registration, was in ill-health and had retired, she advised that "while there is sufficient evidence to prove a complaint and justify prosecution before the NCAT, I am of the view that prosecution is not warranted as [the practitioner] is no longer registered". Ms Mobbs explained her decision reflected the fact that if the claims made in the complaint were established "the only option available to the NCAT would be to disqualify [the practitioner] from applying to AHPRA for registration for a period of time". Ms Mobbs sought advice regarding consultation pursuant to s 90B (3) (b) of the Health Care Complaints Act 1993 (NSW). 16On 16 June 2014 the Acting Legal Director of the Council wrote to Ms Mobbs advising that the Conduct Committee of the Council concurred with her decision not to prosecute the Complaint, but advised should the practitioner seek registration in the future, consideration may be given to prosecuting a complaint at that time. 17By letter dated 24 June 2014 Ms Mobbs advised the Council that she would be seeking to withdraw the Complaint when the matter was before the Tribunal on 27 June 2014. 18On 27 June 2014 I heard oral submissions from the solicitor for the HCCC, Ms J Dinihan, ("Ms Dinihan") and from Mr Davey on behalf of the practitioner. Ms Dinihan kindly offered to provide an outline of submissions to me to address the issue of the power of a single member of the Tribunal to hear and determine this matter rather than the matter being listed before a fully constituted Tribunal. Submissions were received on 7 July 2014. In the event that I formed the view that I did not have power to determine the withdrawal should be permitted, arrangements were made to list the matter before a fully constituted Tribunal for determination. 19It is not in dispute that pursuant to the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act").I have an appointment as the List Manager, Health Practitioner Division List. Nor is it in dispute that I have at all relevant times held a commission as an Acting Judge of the District Court of New South Wales. The issues 20Three principal issues arise for determination based substantially on the language in the relevant provision of the National Law. First, is it not in the public interest for the inquiry to continue. Second, has the inquiry commenced, and finally does the List Manager, or a judicial officer sitting alone have power to dismiss a complaint brought by the HCCC against a practitioner at a directions hearing. I will address each of these issues by reference to the National Law, the NCAT Act and the case law. Is it not in the public interest for the inquiry not to be heard or not to continue? 21The starting point for this discussion is s 165H of the National Law. That section provides: Subdivision 4 - Inquiries and appeals before Tribunal [NSW] 165H No inquiry required if complaint admitted [NSW] No inquiry need be conducted into a complaint referred to the Tribunal under this Law if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal. 22 Of particular relevance to this application is Schedule 5D cl 12 of the National Law. That clause relevantly provides: 12 Certain complaints may not be heard [NSW] (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if-- (a) any of the following circumstances apply-- (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal. 23Also potentially relevant is section 55 of the NCAT Act That section is found in Part 4 (Practice and Procedure) of the NCAT Act. It provides as follows: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure. 24 However, s 55 is subject to s 35. That section relevantly provides: Each of the provisions of this Part is subject to enabling legislation and procedural rules Discussion 25It is clear from s 165H that it is not mandatory for the Tribunal to conduct an inquiry if the practitioner, who is the subject matter of a complaint, admits the complaint to the Tribunal in writing. The Tribunal may, however, in such circumstances need to independently examine the complaint to determine appropriate protective orders, and to provide reasons for any protective orders flowing from the admitted complaint. Thus, I conclude this provision does not itself provide a power to dismiss a complaint. 26Looking at cl 12 of Schedule 5D it is clear this section gives a discretion to the Tribunal to decide not to decide to conduct an inquiry, or at any time terminate an inquiry in the circumstances set out in cl 12(1)(a) (i)-(iii), subject to being satisfied that it is not in the public interest for the matter to be determined at a substantive hearing. Although not relevant for the purposes of this application I note it is mandatory that no inquiry be held, or continued, if the practitioner against whom the complaint is made has died. 27While each of s 165H and c 12 expressly provide, in the circumstances set out in the respective sections, for the Tribunal not to conduct a hearing, or cease a hearing once commenced, the National Law does not contain a specific power to dismiss proceedings. That is readily understandable given the principal objective of the legislation in New South Wales is the health and safety of the public. 28Clause 7 of Schedule 7 of the National Law is instructive. It provides as follows: 7 Interpretation best achieving Law's purpose (1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation. (2) Subclause (1) applies whether or not the purpose is expressly stated in this Law. 29Thus, giving a broad interpretation to cl 12, it may be argued that clause carries the implication that if a Tribunal decides not to conduct an inquiry, or to terminate an inquiry it has commenced to hear, that it may dismiss the complaint limiting its reasons for the dismissal to its consideration of why it is not in the public interest for the inquiry to continue. Such an interpretation provides a cost effective and timely resolution to a complaint.. 30However, the better view may be that if the HCCC and/or the parties seek a complaint should be withdrawn in the circumstances outlined in cl 12 of Schedule 5D, that s 55 (1)(a) should be utilised in conjunction with that clause, and as part of the Tribunal's practice and procedure powers, to dismiss the complaint. This is a practical outcome as any complaint is now filed in the Tribunal as an annexure to an application. Does a single member of the Tribunal have power to dismiss the complaint? 31There is no doubt that cl 12 (3) confers a power on the member of the Tribunal presiding to determine not to conduct a complaint , and if he or she does so, then the decision "is taken to have been exercised by the Tribunal". 32In helpful submissions prepared by the HCCC at [14], [15] and [16] it is noted: [13] The power in cl 12(1) of Sch 5D of the National Law may be exercised by "the Tribunal" or by "the member of the Tribunal presiding". [14] Section 165B of the National law provides for the constitution of the Tribunal in relation to a complaint. Neither this provision nor any other defines "the member of the Tribunal presiding" [15] The phrase "The member of the Tribunal presiding" is in the present continuous tense. This suggests that it should be possible to identify, at any given time, a "member of the Tribunal" who is presently "presiding". [16] While an inquiry is being conducted, the member of the Tribunal presiding must be the person appointed pursuant to s 165B(2(a) of the National Law. However, under the scheme set up under the National Law and the NCAT Act, taken together, it is not clear that the person so appointed is "the member of the Tribunal presiding" before the inquiry has commenced. 33The HCCC's submissions then refer to the decision of the former Psychology Tribunal of NSW in HCCC v HA [2012] NSWPYT 2 at [18] -[20]. There the Tribunal said:at [18]-[19] At the commencement of the proceedings, the HCCC raised the question of the Tribunal's jurisdiction. S165A of the National Law requires the Chairperson of the Physiotherapy Tribunal to nominate the person who shall sit as Chairperson for the purpose of conducting an Inquiry. After conducting two Directions Hearings but prior to the commencement of the substantive hearing on 12 June 2012, the first Chairperson so nominated indicated that she was unable to continue and a new Chairperson was nominated. The HCCC queried the effect of S165C in these circumstances, specifically whether S165C (2) effected the termination of the Inquiry and the need for the Council to reconstitute the Tribunal. The National Law is silent on when an Inquiry commences. The Tribunal considers that S165C (2) is designed to address a situation where procedural fairness necessitates the Tribunal being reconstituted and the matter considered de novo. It contemplates a situation where an Inquiry has commenced and evidence has been heard and accordingly a change of Chairperson would be unfair. In the present circumstances the new Chairperson was nominated before the substantive proceedings commenced. Neither party is disadvantaged by the Complaints being considered by the Tribunal as presently constituted. Indeed the respondent made no submissions in relation to this issue. 34The general thrust of the HCCC's submissions suggest a similar practical approach to that adopted in Ha should now be adopted. The submissions argue that: (a)When a substantive hearing commenced the person appointed under s 165B(2)(a) is the person presiding (b)Before the "substantive hearing has commenced, the inquiry has not relevantly commenced and the person appointed under s165B(2)(a) has not yet commenced to be 'the member of the Tribunal presiding"'" (c)[a]t any given time until the inquiry has commenced, it is necessary to be able to identify a "member of the Tribunal" who is "presiding" (d)"The establishment of the Health Practitioner Division List of NCAT (cl10 Sch 5 to the NCAT Act) and the functions of the List Manager (cl 11 Sch 5), together with the occasional nature of most appointments for the purpose of constituting the Tribunal pursuant to the National Law (cl 12 Sch 5), suggest that when a matter is listed for a case conference, the Tribunal member sitting on that occasion will be "the member of the Tribunal presiding". This is consistent with the usual use of the word "presiding" in reference to the sittings of the Tribunal. Further, the List Manager is able to delegate a function to manage proceedings entered into the List pursuant to cl 11 (3) (a) to an appropriately qualified member under cl 11(4)" . (e)That adopting the interpretation (set out in (d) above, it is appropriate for the List Manager (or other person sitting at the directions hearing) to exercise the power under cl 12(1) of Schedule 5D to determine" whether or not the Tribunal will continue the inquiry"". (f)That enabling the determination not to hold an inquiry to be made at a directions hearing is a cost effective procedure and is consistent with the objects of the NCAT Act. Analysis of the HCCC's submissions 35The HCCC's submissions appear to rely on the decision in Ha to support a submission that the member of the Tribunal presiding, only adopts that role at the commencement of the substantive hearing, but then argue for a wider interpretation of when a hearing commences, or what is meant by "presiding". 36 It is important to note the factual context of the discussion in Ha. The Tribunal's decision in that case turned on the question of whether the hearing had commenced when another Chairperson had assumed responsibility for the presiding at the hearing of the complaint, but prior to the substantive hearing commencing became unavailable. It may be that Chairperson had conducted one or more directions hearings in the matter. The issue raised in Ha was squarely focussed on the effect of s 165C (2) of the National Law. That section is relevant to the situation where a hearing has commenced or has been heard and a decision remains unpublished and the legal member or senior judicial officer member of the Tribunal (the presiding member) vacates his or her office. The obiter comments in [19] of that decision of when a hearing commences does not, in my view support, the proposition that the inquiry has commenced when first listed in a directions hearing. 37In my view, it is necessary to consider the appointment of the legal or senior judicial member to understanding the term "the member of the Tribunal presiding". 38The NCAT Act provides for the appointment of Tribunal members. Section 9 is as follows: 9 Membership of Tribunal (1) The Tribunal is to consist of the following members: (a) the President, (b) Deputy Presidents, (c) principal members, (d) senior members, (e) general members. (2) The President and the Deputy Presidents are referred to in this Act as "presidential members". (3) The principal members, senior members and general members are referred to in this Act as "non-presidential members". (4) A member appointed by or under this Act for a term is referred to in this Act as a "term member". (5) A member appointed by or under this Act to be a member for the purposes of specified proceedings is referred to in this Act as an "occasional member". (6) The President is to be appointed as a term member. (7) Schedule 2 sets out additional provisions with respect to members. 39Clause 12 of the NCAT Act provides for the assignment by the President of a term member to the Health Practitioner Division List. The List Manager must be a term member. 40It follows therefore that a term member is not appointed to a particular matter as is an Occasional Member, but has a general appointment to hear matters in the Health Practitioner Division List ("the HPDL"). It is the primary function of the List Manager to manage the HPDL. 41Sub-section 2 of s 165B refers to the constitution of the Tribunal "when conducting an inquiry", and provides for the composition of the panel. But cl 12 is not solely directed to the conduct of an inquiry, it is also concerned with a decision not to conduct an inquiry. 42At a directions hearing the person who conducts such a hearing is a term member (who may, or may not be, the List Manager). In the case of a hearing involving a medical practitioner s 165B (2) (a) proscibes the term member must be a senior judicial officer as defined in s 165. The definition of "senior judicial officer" in the National Law is identical to the definition of "NSW judicial officer" in s 4 of the NCAT Act.save an except the NCAT definition also includes a judicial member of the Industrial Relations Commission and a Judge of the Land and Environment Court. Such an officer is a non-presidential member (see s 9 (3) of the NCAT Act). 43Term members are not necessarily senior judicial officers (nor is it a legislative requirement that the List Manager be a senior judicial officer). However, having regard to s 165B (2) (a), logic suggests that if an inquiry has been referred to the Tribunal involving a medical practitioner, but the substantive hearing has not commenced, then the only term member who can exercise power under cl 12 of Schedule 5D is a senior judicial officer, not any term member. Such an interpretation is consistent with the requirement under the National Law that complaints involving medical practitioners should be heard by a panel with a judge presiding. 44If the proposition in the preceding paragraph is not correct, and an application for withdrawal is not a quasi administrative procedure (as a directions hearing may be), then any term member can hear an application listed at any convenient time by arrangement with the Registrar. This may occur on a day when directions hearing are to occur. The presiding member may be the List Manager (who may not be a judicial officer) or his or her delegate. But, as indicated in these reasons, that is not my primary conclusion. 45Turning again to cl 12 and the wording in (1) - The Tribunal may decide not to conduct an inquiry. The plain meaning of these words are clear. If the Tribunal decides not to conduct an inquiry then no inquiry as commenced. That being the case, the member of the Tribunal presiding can only be a term member, as occasional members are only appointed for the purpose for the conduct of an inquiry. (see s 165B (2) (b) and (c) of the National Law and s 9(5) of the NCAT Act. 46Although not specified in the National Law or the NCAT Act, given the intent of the legislation is that a senior judicial officer will preside at any inquiry regarding a medical practitioner, it follows in my view that any application under cl 12 of the National Law and s 55 of the NCAT Act concerning a medical practitioner should be before a judge who is a non presidential member of NCAT, the President, or a Deputy President who is a judge. 47 Leaving aside the question of when a substantive hearing has actually commenced, as the National Law is silent as to when an application for withdrawal may occur, I conclude, giving a purposeful interpretation of cl 12 of Schedule 5D, such an application may be made at any time after the referral of a complaint, but prior to the commencement of the hearing. This may occur by listing the application before a judge who is a term member, the President or a Deputy President who is a judge, including, for convenience, at the same time as a directions hearing list. In the case of a medical practitioner, the listing should be before a judge assigned to the HPDL, and for any other health professional, before a term member of the HPDL including the List Manager. To the extent that the submissions of the HCCC suggest that the List Manager (who may or may not be a judge) can hear and consent to the withdrawal of a Complaint against a medical practitioner, I do not agree with the submission. 48If the Tribunal (comprising the members as constituted by s 165B) has commenced conducting an inquiry then the member presiding in the case of a medical matter must be the senior judicial officer presiding at the hearing, or in the case of any other health professional, then that term member presiding may determine to terminate the inquiry. 49I am also satisfied that there is nothing in the NCAT Act which precludes a single member exercising power under s 55 to order the dismissal of an application in conjunction with an order consenting to a withdrawal application. This is a practical way of removing an application filed in the HPDL from the Tribunal's records. Is it contrary to the interests of the public for the inquiry to proceed? 50The material filed on behalf of the practitioner is summarised under "background" as is the contents of the affidavit sworn by Ms Dinihan and relied on by the HCCC. 51The former medical practitioner no longer holds registration. Prior to ceasing to hold registration he gave up his prescribing rights in respect of Schedule 8 and Schedule 4D drugs. He has retired and sold his practice. He does not present any present risk to the health and safety of the public 52The Council and the HCCC have made it clear to the practitioner that, should he again apply for re-registration, they would consider re-instituting proceedings against him in the Tribunal. He is not likely in these circumstances to pose a future risk to the health and safety of the public as a re-registration application is likely to trigger proceedings in the Tribunal. 53The only advantage to the public in the inquiry proceeding is the deterrent effect of any order made (which would likely be cancellation of the practitioner's registration) and the sending of a message to the profession and the public that such behaviour by a health professional will not be condoned and has serious consequences. 54Turning then to why it is not in the public interest to hold an inquiry. The relevant matters in addition to the question of the risk of the health and safety of the public discussed above can be conveniently addressed by reference to the objects of the NCAT Act and the National Law including cl 12 of Schedule 5D. 55The objects of the NCAT Act are straightforward. Included in the objects in s 3 are the following: ... (c) to ensure that the Tribunal is accessible and responsive to the needs of all of its users, and (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible, and (e) to ensure that the decisions of the Tribunal are timely, fair, consistent and of a high quality, and ... 56If this matter was heard by the Tribunal, a consequence would be that other serious professional misconduct matters, where a practitioner's conduct may put the health and safety of the public at risk could be unnecessarily delayed. This would be inimical to s 3 (c). 57Should the matter proceed to a hearing both parties,, and indirectly the public) would incur significant costs. Finite judicial resources would be engaged and professional time of the occasional members lost. This would be contrary to s 3 (d). 58Finally, this matter can be disposed of in a timely way consistent with s 3 (e) 59In summary, I am satisfied that I have the power as a senior judicial officer (as defined in the National Law) to determine as a single member the question of whether or not it is not in the public interest for an inquiry into the complaint referred by the HCCC to the Tribunal to be withdrawn. I am further satisfied it is not in the interests of the public for an inquiry to be held. Accordingly, the application for the Complaint to be withdrawn is granted, and the application filed in the Tribunal which seeks orders under the National Law and annexes a copy of the Complaint is dismissed. 60ORDERS (1)The Tribunal consents to the Complaint in respect of Mr Masood Khan (formerly Dr Masood Khan) referred to the Tribunal by the Health Care Complaints Commission being withdrawn under cl 12 of Schedule 5D of the Health Practitioner (Regulation) National Law. (2)The application by the Health Care Complaints Commission filed 4 April 2014 is withdrawn and dismissed. (3)No order as to costs I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 04 August 2014 - Inclusion of words, the President, or a Deputy President who is a judge. Amended paragraphs: Paragraph 46 and 47 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: 04 August 2014