Singh v Medical Council of NSW (No 2) [2015] NSWCATOD 28

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Medical Council of NSW (No 2) [2015] NSWCATOD 28 Hearing dates: 18 March 2015 Decision date: 18 March 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr E Kok, Professional Member Dr R Spark, Professional Member Dr M Gleeson, Lay Member Decision: 1. Appeal dismissed.

2. The appellant to pay the respondent's costs except for the hearing on 27 and 28 January 2015, where no costs ordered. Catchwords: Medical Tribunal—appeal against suspension-practitioner unable to obtain supervision and in breach of practising condition for a long time-held suspension justified for the protection of the public and in the public interest. Medical Tribunal-costs-order made. Legislation Cited: Health Practitioner Regulation National Law Category: Procedural and other rulings Parties: Raghubir Singh (Appellant) Medical Council of NSW (Respondent) Representation: Counsel: S Barnes (Appellant) D Ward (Respondent) Solicitors: Avant Law (Appellant) Crown Solicitors Office (Respondent) File Number(s): 1420273

Introduction 1. This is an appeal brought by the appellant Dr Raghubir Singh from a decision of delegates of the respondent Medical Council of NSW which determined that he be suspended from practice as a medical practitioner. 2. At the conclusion of the hearing on 18 March 2015 we announced our decision that we would dismiss the appeal. We also made a costs order in favour of the respondent. The material which follows constitutes our reasons for decision. 3. The appeal is brought under section 159 of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The appeal involves a hearing de novo conducted on the basis of such evidence and other relevant information put by the parties before the Tribunal. There was tendered into evidence a large volume of documentary material and oral evidence was given by the appellant. The Tribunal had before it the decision of the delegates which excited these appeal proceedings, as well as a number of decisions and determinations of others who have had, over a period of time, some involvement with the appellant in terms of his professional conduct. 4. The delegates published written reasons for decision, which are the subject of these appeal proceedings on 15 July 2014. It is sufficient for present purposes that we reproduce a "summary" which forms part of the published decision. It is in the following terms; "The Performance Review Panel imposed a supervision condition on Dr Singh's registration that requires his patient consultations to be observed by an approved general practitioner. As Dr Singh has been in breach of this condition for more than 16 months the Council's Performance Committee resolved to convene these proceedings to consider whether any action should be taken under section 150 of the National Law (NSW). The current breach was considered against a background of Dr Singh's extended history of repeated non-compliance with these conditions of registration. This history includes his earlier failure to comply with the supervision conditions for a period of 21 months. There was a concerning pattern of non-compliance with his conditions. The first breach was recorded in 2006. In the circumstances of Dr Singh's demonstrated inability to comply with conditions imposed to ensure that he is safe to practice, the Council's delegates were satisfied it was in the public interest and appropriate for the protection of the public to suspend his registration." 1. The appeal to this Tribunal is brought under Sec 159 of the National Law. Relevantly, Sec 159 and Sec 159C are in the following terms; 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession-- (a) against a suspension by the Council for the health profession on the person's registration under Division 3 or a refusal to end a suspension; or (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; or (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; or (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; or (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given. 159C Tribunal's powers on appeal [NSW] (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of. 1. Relevantly, Sec 150 of the National Law, pursuant to which the appellant's registration was suspended is in the following terms; 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest-- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens-- (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must-- (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal for the health profession for which the Council is established; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section-- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal for the profession. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who-- (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 1. Also relevant are the provisions of Sec 41O of the National Law. This mandates a consideration of other matters "to the extent that they are reasonably considered to be relevant"; 41O Other matters to be taken into account [NSW] In the exercise of any of its functions under Subdivision 2 or 7 of Division 3 of Part 8 with respect to a complaint about a registered health practitioner or a student, a Council must have regard to any of the following matters, to the extent the Council reasonably considers the matter to be relevant to the complaint- (a) another complaint or notification about the practitioner or student made to the Council or the National Agency, or made to a former Board under a repealed Act, including a complaint- (i) in respect of which the Council, the Commission or a National Board has decided no further action should be taken; and (ii) that is not required to be referred, or that the Council or the Commission decides not to refer, under Division 3 of Part 8; (b) a previous finding or decision of a Council inquiry in relation to the practitioner or student; (c) a previous finding or decision of a board inquiry, professional standards committee or a tribunal established under a repealed Act in respect of the practitioner or student; (d) a written report made by an assessor following an assessment of the practitioner's professional performance; (e) a recommendation made, or written statement of decision on a performance review provided, by a Performance Review Panel in relation to the practitioner.