Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77 Hearing dates: 14 July 2015 Decision date: 22 July 2015 Jurisdiction: Occupational Division Before: R Titterton, Senior Member Dr R Engel, Professional Member Dr S Philipson, Professional Member Y Rowling, Lay Member Decision: The application for a stay is dismissed Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Occupational Division – Stay – additional principle in NSW – protection of health and safety of the public the paramount consideration Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation (Adoption of National Law) Act 2009 Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Category: Principal judgment Parties: Dr W Kesserwani The Chiropractic Council of NSW Representation: Counsel: D Elliott (Appellant) P Griffin (Respondent) Solicitors: Gerard Malouf and Partners (Appellant) L Martin, Health Professional Councils Authority (Respondent) File Number(s): 1520123 Publication restriction: The Tribunal made a non-publication order, pending the hearing of the appeal, prohibiting the disclosure of the name of the author of the complaint dated 12 June 2015 to the Health Care Complaints Commission. REASONS FOR DECISION Introduction 1. On 30 June 2015 the respondent placed what are known as "chaperone conditions" on the right of the appellant, a chiropractor, to conduct his practice. The appellant has filed an appeal from that decision. We understand that the appeal is to be heard on 13 August 2015. The appeal is brought pursuant to s 159 of the Health Practitioner Regulation National Law (NSW) (National Law). 2. Pending that appeal, the appellant seeks the following orders: 1. an urgent order on an interim basis that the Australian Health Practitioner Regulation Agency be directed to sign all documents and do all things to cause the removal on its website in relation to conditions imposed on the appellant's registration; 2. an order that there be an unconditional stay on the conditions imposed on the appellant's registration by the respondent until the outcome of the appeal filed. 1. The chaperone conditions were imposed by the respondent after receiving a complaint by a patient of the appellant, to whom we will refer as Patient A, on 12 June 2015. No orders were sought that she not be identified. However, s 64 of the Civil and Administrative Tribunal Act 2013 provides that, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason may, of its own motion, make an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal). As Patient A was not present at the hearing, we consider it appropriate that, until the hearing of the appeal, an order be made restricting disclosure of her name. Background 1. On 12 June 2015 a complaint was lodged with the Health Care Complaints Commission (HCCC) by Patient A concerning the conduct of the appellant. On 19 June 2015 the respondent was notified of that complaint. On 24 June 2015 the respondent notified the appellant that it had received that complaint. By letter of that date it notified the appellant that it would hold proceedings pursuant to s 150 of the National Law to determine whether any action should be taken, including suspending or placing conditions on his practice. Those proceedings were to take place on 30 June 2015. The respondent invited the appellant to provide it with any materials to be considered by the delegates conducting the proceedings by 29 June 2015. 2. On 25 June 2015 the respondent received an email from Patient A, relevantly stating: " . . . please withdraw my complaint as the events never happened". 1. On 26 June 2015 the respondent notified the appellant that it had received further communications relating to the complaint. These communications included the email from Patient A withdrawing the complaint, and a series of "texts" between her and the appellant sent on their respective mobile phones. 2. By letter of 29 June 2015 the appellant provided submissions to the respondent. In summary, he: 1. Denied any sexual or other non-therapeutic contact between himself and Patient A. 2. Submitted that the texts in the period of 13 to 30 May 2015 were initiated at Patient A's request and "largely perpetuated and driven by her". 3. Submitted that the "texts [were] redolent with flirtatious opportunities to escalate matters being floated" by Patient A. 4. Stated that he was "relieved" that Patient A had confessed the falsity of her allegations. 5. Was minded to forgive Patient A for making the allegations, which, "would be an entirely unremarkable interaction between adults, in a non therapeutic, social context". Power to grant a stay of the decision under appeal 1. The power to stay the operation of a decision under appeal is conferred by s 43 of the Act. Section 43(3) provides: (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending … appeal relates as it considers appropriate to secure the effectiveness of the determination of the … appeal. 1. The NCAT Act does not specify the factors to be taken into account in determining whether the discretionary power to stay the operation of a decision under appeal should be exercised. In Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, after examining the authorities, Wright J, the President of the Civil and Administrative Tribunal (the Tribunal) relevantly summarised the principles to be applied in determining whether or not to grant a stay pending the determination of the appeal (see par [9]). In summary, those principles included: 1. The onus is on an applicant for a stay to make out a case that it is appropriate for the court or Tribunal to make such an order. 2. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal. This is similar to, if not the same as, the considerations applied by the Courts where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay. 3. The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision. 4. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. 5. In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. 6. Finally, the overriding principle in an application for a stay is to ask what the interests of justice require. 1. We accept that these are the appropriate principles to be considered in an application for a stay. However, we consider that there is a further principle that must be considered and applied in the present application. 2. Bentran was a decision concerning a claim in the Consumer and Commercial Division of the Tribunal. The appellant Bentran Pty Ltd, the respondent in the proceedings appealed from, had been ordered to pay the applicant, Mr John Sabbarton, damages. 3. The appeal the subject of the present stay application is brought in the Occupational Division of the Tribunal. Relief is sought pursuant to the provisions of the National Law. Section 3(2)(a) of the National Law provides that an objective and guiding principle of the National Law is to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. 4. Furthermore, s 3A of the National Law, which is an additional provision for NSW, provides, in terms: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. A "NSW provision" is relevantly defined in s 5(a) of the National Law as a provision that forms part of the National Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009. 2. Section 159 (Right of appeal [NSW]) appears in Subdivision 2 (Appeal against actions by Council [NSW]) of Division 6 (Appeals to Tribunal [NSW]) of Part 8 (Appeals to Tribunal [NSW]) of the National Law. It is a "NSW provision" by reason of it forming part of the National Law because of a modification made by the Health Practitioner Regulation (Adoption of National Law) Act 2009. Section 159 appears in Division 1 of Schedule 1 to that Act. 3. Accordingly, in considering the appellant's application for a stay of the conditions imposed by the respondent, we consider that the protection of the health and safety of the public remains, and must be, the paramount consideration of the Tribunal. Evidence on the application 1. The appellant relied on an affidavit of Ms Kathryn Meyers, a solicitor employed by his instructing solicitors, his own affidavit, and an affidavit of the Ms Lynette Maresca. Ms Maresca is the practice manager of the appellant's Chiropractic & Sports Medicine Clinic. We note that, at the time of the preparation of those affidavits the respondent's reasons for its decision had not been received. Those reasons were published on 15 July 2015. They were tendered at the hearing as Exhibit 1. 2. Also tendered as Exhibit 2 was a file note of Ms Chan of the HCCC dated 25 June 2015. That file note relevantly states: [Patient A] called to advise that she wishes to withdraw her complaint. I asked her why and whether she had concerns about her safety, and she confirmed she does not have concerns about her safety, but is just not in the right space to do this. I explained that we may not be able to withdraw her complaint given that she has made very serious allegations. She said that she understands but still wish [sic] to withdraw the complaint. I asked if that means she won't be willing to provide a statement to the Commission, and she said 'yeah I wont be'. I asked if she would be willing to still provide a copy of the text messages and she said she still has them so can send them through. 1. In summary: 1. The affidavit of Ms Meyers includes the relevant communications between the appellant and the respondent, the initial complaint, the email withdrawing the complaint, the text messages passing between the appellant and Patient A. Her affidavit also annexes the written submissions of the appellant to the respondent dated 29 June 2015. Those submissions state that "it is no coincidence that the complaint was withdrawn on production to [the HCCC] of the chain of text messages. Those text messages do not support her complaint and in fact indicate that she has been pursuing a reluctant, but probably too polite, practitioner. The appellant submits that, as Patient A had withdrawn her false complaint, the respondent should dismiss the matter forthwith. 2. In his own affidavit the appellant: 1. explains the layout of his practice rooms. He says that he can hear the movement of patients in his reception area, and that the doors to each treatment room are never locked; 2. states that, having conducted approximately 45,000 patient consultations and/or treatments, he has never received a complaint from any other patient; 3. states that the allegations the subject of Patient A's complaint are "an untrue fabrication"; 4. states that he was very surprised by the personal nature of the text messages he had received from Patient A, and tried to be "noncommittal". He says that while it was not his usual practice to provide his mobile number to "standard patients", he understood that Patient A was a fellow practitioner as she had described herself as a nutritionist and trainer; 5. explains the impact of the present conditions placed on his right to practice; his patients find it "odd" that there is a chaperone in the treatment room and appear to be uncomfortable with the extra presence; the requirement "slows down" his level of care dramatically; and he has had to hire a "backup" chiropractor. Overall, he says that the conditions are a detriment to his patients. 1. Ms Maresca corroborates the appellant's evidence. She states that she has never noticed any inappropriate behavior in the appellant's actions towards any patient, and that he had always been professional in his dealings with them to her observation. She also states that "there is no way" the events alleged by Patient A could have happened as alleged without her noticing. She says that the layout of the office and treatment room is such that she can hear quite distinctly conversations and noises emanating from the treatment room, the door of which is unlocked. She acts as the chaperone in respect of the conditions and she says that the patients appear to be uncomfortable with her being present in the treatment room as the chaperone. 1. The respondent annexed various materials to its written submissions. These materials included the complaint, the respondent's decision of 30 June 2015, the email withdrawing the complaint; and a file note of an officer of the respondent dated 29 June 2015 recording the respondent's advice to the appellant that he was not required to attend the Council inquiry which was to take place on 30 June 2015. The file note records "I advised him that he was not required to attend at this point". Considerations relevant to the extension of the stay 1. The appellant advances a number of reasons why the stay should be granted. The conditions were imposed in the absence of a complaint 1. Mr Elliott, who appeared for the appellant, submitted that, the conditions were imposed in the absence of the appellant. This is factually correct. But it cannot be said that the conditions were imposed without hearing from the appellant; the respondent had received 6 pages of submissions for the appellant prepared by his solicitors. And we reject the submission that the appellant was prevented from attending the hearing, although it does appear that he was advised by the respondent's staff not required to attend. 2. However, and this is the critical component of the appellant's submission, the conditions were imposed in circumstances when a "false" complaint had been made, and moreover, withdrawn the day before the respondent's decision. 3. On an interlocutory application, where evidence is not tested, we can draw no conclusions as to what the expression "the events never happened", actually means. We say this because, in addition to the matters forming the substance of the written complaint upon which the respondent acted, there were also the accompanying text communications between the appellant and Patient A. We do not consider that Patient A could be understood as suggesting in her email withdrawing her complaint that those communications "never happened". It was not suggested otherwise by Mr Elliott, who appeared for the appellant. These emails may be characterized in a variety of ways including, as submitted by the appellant, as "redolent with flirtatious opportunities". 4. The respondent submits, correctly, that s 150(4) of the National Law provides that a Council may take action whether or not a complaint has been made or referred to the relevant Council about a practitioner. We further note that s 18(2)(c) if the Health Care Complaints Act 1993 (NSW) provides that, on the withdrawal of a complaint, the Commission may cease to deal with it but must continue to deal with the matter the subject of the complaint if it appears to the Commission that the matter, if substantiated, would provide grounds for disciplinary action against a health practitioner. 5. In the circumstances, we do not consider that this ground warrants the imposition of a stay. Absence of evidence 1. The second reason advanced for the imposition of a stay is the absence of evidence to support the decision to impose the conditions. We reject this submission. There was clearly material before the respondent, including the fact of the complaint having been made, the complaint having been withdrawn, and the text messages. Mr Elliott rightly submits that the issue is one of the degree of satisfaction required to warrant the respondent imposing the conditions. The argument that the evidence was insufficient to warrant the imposition of the conditions is an argument that will be tested at the hearing of the appeal. 2. In other words, while there may be substance in the appellant's submission that the respondent acted arbitrarily or capriciously, a matter on which we express no view, the appropriate time, and place, for the determination of that matter is at the appeal. Conditions were contrary to the public interest 1. The third reason advanced by the appellant was that the restrictions placed on the appellant's registration were contrary to the public interest. We do not accept this submission. On the contrary, we consider that it is in the public interest that, where a complaint involving allegations of inappropriate conduct of a sexual nature by a health practitioner are made, that "chaperone" conditions be placed on the health practitioner's right to practice. The decision was made beyond power 1. The fourth reason advanced by the appellant was that the decision of the respondent was beyond power, and took into account irrelevant considerations and was done without reason. 2. The factor that the decision to impose the conditions was beyond power was not seriously pursued in the stay application. 3. As to the issue that the respondent took into account irrelevant considerations, in oral submissions Mr Elliot submitted that, having received the respondent's written reasons for decision shortly before the hearing of the stay application, it was then that for the first time the appellant was aware that, as recorded in the reasons of the respondent at par [21]: Delegates noted however that the timing of [Patient A 's] request to withdraw her complaint was the day following advice to Dr Kesserwani of these proceedings to be conducted by the Council. The delegates are concerned that in the light of a previous amicable relationship that [Patient A] was contacted by Dr Kesserwani. 1. We consider that there may be some substance to the submission that this was an irrelevant consideration by the respondent in making its decision to impose the conditions on the appellant's right to practice. It would appear to be a consideration that was not notified to the appellant and in respect of which he was not heard. However, this matter was not, and could not, be tested in the stay application. The respondent submits that investigations are still being undertaken and, at this stage, it simply does not know what were the circumstances surrounding the withdrawal of Patient A's complaint. Of itself, we do not consider this ground warrants the making of the stay as sought. Should the stay be granted? 1. It is in the appellant's interests that the application for the stay be granted. He has set out in his sworn affidavit the difficulties that he has experienced in conducting his practice while the conditions remain imposed, that his practice has suffered and that, as we understand it, his care for his patients compromised. Nevertheless, on his evidence, he is able to continue to practice, albeit with the limitations and restriction he refers to in his affidavit. 2. It may be considered that the appellant's prospects of success of appeal are strong, given that the complaint (a false complaint as submitted by the appellant) has been withdrawn. However, we consider that it is premature to form that view, given that s 159(3) of the National Law provides that an 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 respondent when it considered the matter, may be given. The Conclusion 1. In our opinion, given that the appeal is to be heard in a matter of weeks, we consider that, given that the protection of the health and safety of the public must be the paramount consideration, the application for a stay should be refused. 2. For the reasons set out above, we do not consider that any of the grounds advanced by the appellant, or cumulatively, warrant the imposition of a stay. 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 22 May 2018 - Non publication order amended 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: 22 May 2018