Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Qasim v Health Care Complaints Commission [2015] NSWCA 282 Hearing dates: 16, 17 June 2015 Decision date: 22 September 2015 Before: McColl JA at [1]; Meagher JA at [2]; Ward JA at [91] Decision: 1. Appeal dismissed. 2. The appellant pay the respondent's costs of the appeal. 3. Grant the respondent leave to appeal from the Tribunal's order of 2 May 2014 that the appellant pay the respondent two-tenths of its costs of the proceedings before the Tribunal. 4. The respondent to file and serve a notice of appeal in the terms of the draft notice in the White Book within seven days of the date of this order. 5. Set aside the Tribunal's order that the appellant pay the respondent's costs assessed at $14,000. 6. The appellant pay the respondent's costs of the proceedings before the Tribunal assessed at $70,000, this order to take effect on 2 May 2014. Catchwords: MEDICAL PROFESSION – Health Practitioner Regulation National Law (NSW), s 144 – mental impairment, condition or disorder that detrimentally affects practitioner's capacity to practise – order under s 149C cancelling registration – whether Tribunal's rejection of treating psychiatrist's evidence procedurally unfair – whether Tribunal's finding as to impairment reasonably open – whether Tribunal's exercise of discretion in cancelling practitioner's registration miscarried COSTS – general rule under Sch 5D, cl 13 of the Health Practitioner Regulation National Law (NSW) that costs follow the event – whether Tribunal erred in exercise of costs discretion Legislation Cited: Health Practitioner Regulation National Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW), ss 7, 60 Cases Cited: Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 BHP Billiton Ltd v Dunning [2015] NSWCA 55 Browne v Dunn (1893) 6 R 67 Grant v HCCC [2003] NSWCA 73 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Kalil v Bray [1977] 1 NSWLR 256 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Lee v Health Care Complaints Commission [2012] NSWCA 80 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Ohn v Walton (1995) 36 NSWLR 77 Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 Re Anderson & Medical Practitioners Act (1967) 85 WN (Pt 1) (NSW) 558 R v District Court; Ex parte White [1966] HCA 69; 116 CLR 644 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 Texts Cited: American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) Category: Principal judgment Parties: 2014/138939: Shaheen Qasim (Appellant) Health Care Complaints Commission (Respondent) 2014/163196: Health Care Complaints Commission (Applicant) Shaheen Qasim (Respondent) Representation: Counsel: M R Hall SC with C A Bolger (Appellant) K M Richardson (Respondent) Solicitors: Health Care Complaints Commission (Respondent) File Number(s): 2014/1389392014/163196 Publication restriction: Non-publication order in respect of patt names and other information that may reveal patient identities: Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7 Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Occupational Division Citation: [2014] NSWCATOD 42 Date of Decision: 2 May 2014 Before: Acting Judge A F Garling, Principal MemberDr M Gleeson, Medical MemberDr P Anderson, Medical MemberProf D Chisholm, Lay Member File Number(s): 1420034 [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.] HEADNOTE [This headnote is not to be read as part of the judgment] On 2 May 2014, the Occupational Division of the New South Wales Civil and Administrative Tribunal cancelled the appellant's registration as a health practitioner. The Tribunal's order was based on its finding that the appellant was not competent to practise because she suffered from a mental impairment in the nature of a paranoid disorder: Health Practitioner Regulation National Law (NSW), s 149C(1)(a) (as in force at 31 December 2013). The appellant had formerly practised as a specialist endocrinologist and consultant physician. The appellant appealed the Tribunal's orders, that appeal being limited to questions of law. The respondent Commission sought leave to appeal against the costs order made by the Tribunal. The issues before the Court were: whether the Tribunal erred in law in finding that the appellant was impaired by reason of a mental disorder; whether the Tribunal erred in law in exercising its discretion by making a cancellation order; and whether the Tribunal erred when exercising its costs discretion to order the appellant to pay two-tenths of the respondent's costs in the proceedings before it. The Court held, dismissing the appeal (per Meagher JA, McColl and Ward JJA agreeing at [1] and [91]): In relation to (i): The Tribunal gave several reasons for preferring the evidence of Dr Samuels to that of Dr Smith, including that Dr Samuels' evidence accorded with the view taken by the specialist members of the Tribunal based on their expertise: [41], [51]. Notwithstanding the lack of a formal diagnosis, Dr Samuels' evidence was sufficient to support the Tribunal's finding of impairment: [64]. Dr Samuels' opinion was not based on an unproven assumption that the appellant had a history of interpersonal disputes and conflict: [67]. [68]. There was a basis for the Tribunal's adverse overall assessment of Dr Smith's opinion evidence: [52], [56]. There was no denial of procedural fairness in the Tribunal so concluding because a challenge to Dr Smith's evidence on the basis of his lack of independence was raised with him during his evidence: [54]. In relation to (ii): The Tribunal did not err in failing to consider the fact that the appellant's registration had been suspended prior to the Tribunal's decision: [74]. Nor was the order determining the period during which the appellant was not permitted to reapply for registration excessive in light of the Tribunal's findings: [76]. In relation to (iii): The costs discretion of the Tribunal miscarried because it approached the exercise of that discretion from the starting point that each party should pay its own costs: [87]. The general rule is that costs should follow the event: [85]. The respondent should be granted leave to appeal against the costs order and the appellant ordered to pay the respondent's costs of the proceedings before the Tribunal: [89]. Judgment 1. McCOLL JA: I agree with Meagher JA's reasons and the orders his Honour proposes. 2. MEAGHER JA: The appellant is a qualified endocrinologist and consultant physician. On 22 December 2010, pursuant to s 150 of the Health Practitioner Regulation National Law (NSW) (National Law), her registration as a health practitioner was suspended after a hearing of the Medical Council of New South Wales (the Medical Council). That decision followed the receipt by the Medical Council of a letter from five fellow endocrinologists dated 27 October 2010, which raised concerns about Dr Qasim's practice of endocrinology. Also in December 2010 the subject matter of those concerns was referred by the Medical Council to the respondent Commission for investigation: National Law, s 150D. After consultation between the Medical Council and the Commission, the complaints against Dr Qasim were referred to the Medical Tribunal of New South Wales: National Law, ss 145A, 145B. In December 2012 an amended notice of complaint was filed by the Commission in the Medical Tribunal. That Notice contained five complaints (as summarised in [24] below). 3. Those complaints were heard by the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) in March 2014. On 2 May 2014 the Tribunal delivered its decision and made orders that Dr Qasim's registration as a health practitioner be cancelled and that she not be permitted to make an application for re-registration or for review of that order for a period of four years from that date: Health Care Complaints Commission v Qasim [2014] NSWCATOD 42. This appeal from those orders is brought under cll 29(2)(b) and 29(4)(b) of Sch 5, Pt 6 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). The appellant's right of appeal is limited to questions of law and leave has not been sought to raise any other grounds. The grounds relied on are contained in the amended notice of appeal filed on 27 May 2015. 4. The Tribunal also assessed the Commission's costs of the proceedings before it at $70,000 and ordered that Dr Qasim pay two-tenths of those costs, being $14,000. In doing so the Tribunal rejected the Commission's application that Dr Qasim pay its costs of the hearing: [2014] NSWCATOD 42 at [180]-[182]. The Commission seeks leave to appeal from that costs decision under cl 29(6)(c) of Sch 5, Pt 6 of the CAT Act. 5. Notwithstanding that it is a lengthy exercise, it is convenient at this point to summarise the background facts, the relevant legislation, the nature of the complaints and the way in which they were dealt with by the Tribunal. I will then deal with the grounds of appeal, addressing first those which concern the complaints and findings on which the Tribunal's final orders were based. Background facts 1. Dr Qasim graduated in 1986 with the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of New South Wales. In December 1985 she was first registered as a medical practitioner in New South Wales. Dr Qasim obtained her Fellowship of the College of Physicians in endocrinology in 1996. Prior to the cancellation of her registration, she was registered nationally in the general and specialist (endocrinology) categories: National Law, ss 269, 270. 2. In the period after 1997 Dr Qasim worked in practices in Kogarah and Kirrawee, suburbs of Sydney. Between December 2009 and September 2010 she practised from rooms at the Forster Specialist Medical Centre at Forster. She set up that practice to be closer to patients from the Port Macquarie, Kempsey and Taree areas. 3. The October 2010 letter, which led to the proceedings before the Medical Council in December 2010, was written by five endocrinologists working in the Department of Endocrinology at the John Hunter Hospital. It raised particular concerns about the standard of medical care provided by Dr Qasim. Those concerns were based on correspondence from her to referring general practitioners or patients sent between August 2009 and August 2010. The subject matter of that correspondence was described in the letter as "her investigations and management of a few common clinical problems faced daily in general endocrine practice". The principal signatory of the letter was Professor Roger Smith, a Professor of Endocrinology and the Head of the Department of Endocrinology. 4. That letter was referred to Dr Qasim. In addition to addressing the concerns said to arise from the correspondence disclosed, Dr Qasim's response, dated 2 December 2010, made several serious allegations against various people. They included that Ms Dinkelman, the receptionist at Forster Specialist Medical Centre who typed letters dictated by Dr Qasim, had substantially altered those letters from the form in which they were dictated and, on occasions, forged her signature; that Dr Newman, a practitioner at another practice in Forster, assisted by Ms Dinkelman, obtained unauthorised access to Dr Qasim's patient files and removed, without her knowledge and consent, "hundreds" of them between September and October 2010; that Dr Newman selectively chose a few of those files and passed them on to Professor Smith; and that the Professor used those files as the basis for his complaint which was motivated, at least in part, by "professional jealousy". The Tribunal dealt with and rejected those allegations (at [93]-[107]), concluding at [111] that there "was no conspiracy of any type". 5. Not all of the complaints dealt with by the Tribunal concerned letters written by Dr Qasim. Complaints one, two and three were directed to that conduct. By complaints one and two, each of the communications to referring practitioners was said to constitute unsatisfactory professional conduct and, either considered together or separately, they were alleged by complaint three to constitute professional misconduct. Complaints four and five alleged that Dr Qasim suffered from a paranoid or delusional disorder which impaired her mental capacity to practise as a health practitioner. Dr Samuels, a forensic psychiatrist qualified by the respondent, gave opinion evidence to that effect. His opinion was based in part on an assumption that Dr Qasim had a history of conflicts with people involving prolonged interactions with the legal system and disruptions to her career. Much of the evidence as to those conflicts concerned Dr Qasim's interactions with people who lived in the same apartment building as she did in Randwick. 6. At the time of the hearing before the Tribunal, Dr Qasim continued to live in that building which contained four apartments. Dr Qasim owned apartments 3 and 4 on the top level. Apartments 1 and 2 on the ground level were owned by others. Before April 2007 apartment 1 was owned by a Mr Igra. On 30 July 2004 he wrote to the NSW Medical Board expressing concern about Dr Qasim's behaviour over the previous two and a half years. Mr Igra sold that apartment in April 2007 to Dr Miller who, on 8 February 2010 wrote to the NSW Medical Board in relation to Dr Qasim's behaviour over the previous three years. The evidence before the Tribunal included letters written by Dr Qasim to Dr Miller, one of which (received in April 2008) commenced: Mr Genius & (LIAR) + Blonde No one invited you in unit 3. The garden is for all NOT only for you SMASHING COUPLE. Mr Genius, the gardener will NOT water the garden. No agreement made. 1. Mr Sidwell took a two year lease of apartment 1 from Dr Miller in December 2008. In the first month of their tenancy and in November 2009 Mr Sidwell and his wife sent emails to the managing agent of that property seeking to terminate their lease for reason of Dr Qasim's conduct. That conduct included the sending of the following handwritten note dated 19 December 2008, which was shortly after they had moved in: Tenants, Renters, Unit 1 … You have no right to carry out garage sales on the premises of 5 William Street. Do you understand or I will take action against you. Owner Units 3 & 4. 1. Dr Sutherland, a lecturer in physics at the University of Western Sydney, purchased apartment 2 in December 1999 and lived there until early 2007. He wrote letters to the Commission dated 27 September 2005 and 26 February 2006 complaining of Dr Qasim's behaviour from about 2001. In September 2005 Dr Qasim swore a complaint in support of an apprehended violence order against Mrs Sutherland. In that complaint Dr Qasim asserted that: … for the past 5 years the parties have been in dispute concerning the management of the body corporate of strata units in which they reside. During this time the defendant has been harassing and intimidating the complainant by making false and defamatory allegations about the complainant to the Prince of Wales Hospital, the [Consumer, Trader and Tenancy Tribunal] and to the Mental Health Services Unit. Relevant Statutory Provisions 1. Although the complaints against Dr Qasim were referred to the Medical Tribunal, they were not heard before 1 January 2014 when the NSW Civil and Administrative Tribunal was established. On its establishment, the Medical Tribunal was abolished: CAT Act, s 7 and Sch 1, cll 2, 3. The transitional provisions of the CAT Act provided that "unheard proceedings" in the Medical Tribunal were taken on and from 1 January 2014, to have been duly commenced in the Tribunal and were to be heard and determined by the Tribunal: CAT Act, Sch 1, cl 7(1). 2. Clause 7(3) of Sch 1 to the CAT Act had the effect that in determining the complaint the Tribunal had and could exercise all of the functions which the Medical Tribunal previously had and that the applicable version of the National Law was that which would have applied if the amending legislation had not been enacted: see generally Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63 at [34]-[43] (Sackville AJA, Basten and Ward JJA agreeing). As such, the version of the National Law applicable to the Tribunal's determination of the complainant was that in force at 31 December 2013 (the applicable National Law). As to the grounds of complaint 1. By s 144 of the applicable National Law, the complaints that could be made about a registered health practitioner included the following: … (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. … 1. Sections 139B and 139E respectively defined "unsatisfactory professional conduct" and "professional misconduct". 2. Section 139B included the following: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following – (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. In relation to professional misconduct, s 139E provided: For the purposes of this Law, professional misconduct of a registered health practitioner means – (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. Section 139 addressed a person's competence to practise a health profession: A person is competent to practise a health profession only if the person – (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 1. Finally, s 5 defined "impairment" in relation to a person to mean: … the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect – (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; … As to the Tribunal's disciplinary powers 1. The Tribunal's disciplinary powers were conferred by Pt 8, Div 3, Subdiv 6 of the applicable National Law. By s 149 the Tribunal could exercise those powers in relation to a registered health practitioner if "it [found] the subject-matter of a complaint against the practitioner … to have been proved". 2. The power exercised by the Tribunal in this case was that to suspend or cancel registration under s 149C, which provided: (1) A Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. … (5) If the Tribunal suspends or cancels a registered health practitioner's … registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following – (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; ... (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time The Amended Notice of Complaint 1. The five complaints made were in the following terms: THAT, Dr Shaheen Qasim … being a medical practitioner registered under the National Law: COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates that the knowledge or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience PARTICULARS OF COMPLAINT ONE [There follow 10 particulars – albeit that they are provided by 11 numbered paragraphs. Nine particulars concern letters sent by Dr Qasim. Seven of those letters were the subject of Professor Smith's letter of 27 October 2010. Two letters, one sent to a general practitioner in February 2010 and the other to Juvenile Justice in August 2010, contain statements that were alleged not to reflect current clinical knowledge. One particular related to an inappropriate prescription to a patient in September 2010.] COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates that the judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT TWO [There are four particulars. Two involve alleged instances of Dr Qasim making inappropriate and unprofessional comments regarding patients in letters to general practitioners. The remaining two relate to allegedly unprofessional comments made in a letter to a patient.] COMPLAINT THREE Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT THREE The Particulars for Complaints One and Two above are relied upon and repeated, both individually and cumulatively. COMPLAINT FOUR Suffers from an impairment. PARTICULARS OF COMPLAINT FOUR 1. The practitioner has a physical and/or mental impairment condition or disorder, namely a paranoid or delusional disorder which is of a sufficient nature and degree to impair the practitioner's mental capacity to practice the profession. COMPLAINT FIVE Is not competent to practice the profession under section 139 of the National Law as the practitioner does not have sufficient mental capacity, knowledge and skill to practice the profession. PARTICULARS OF COMPLAINT FIVE 1. The practitioner suffers from an impairment as particularised in Particular 1 of Complaint 4 above. 2. The practitioner's impairment is of a sufficient nature and degree to impair the practitioner's mental capacity to practice the profession. 3. Additionally, the Particulars for Complaints One and Two above are relied upon and repeated, both individually and cumulatively. The decision of the Tribunal Complaints One, Two and Three 1. The Tribunal found that Dr Qasim had written each of the letters relied on in the particulars for complaints one and two: [2014] NSWCATOD 42 at [111]. In doing so it relied on the evidence of an independent expert, Professor Proietto, and of Professor Smith on the question whether statements made in the correspondence showed that the care exercised by Dr Qasim fell below the standard reasonably expected of a practitioner of an equivalent level of training and experience (complaint one), and otherwise contained comments which were inappropriate and unprofessional and for that reason fell below the relevant standard of care (complaint two). The Tribunal concluded at [114]: Both [Professors] gave clear and convincing evidence and both remained of the opinion that Dr Qasim's care, as judged particularly by a number of letters about patients to referring general practitioners, fell clearly below the standard of a practitioner of an equivalent level of training and experience. Additional clinical information put to them by Dr Qasim in cross-examination did not alter this opinion. As discussed elsewhere, the Tribunal did not accept Dr Qasim's evidence that the letters in question were not a true record of her dictation or were not intended as a true report. Therefore Professors Smith and Proietto's judgment of those letters was considered a valid and important component of [the] assessment of her competence. The Tribunal did, however, recognise that it had seen no evidence of serious harm resulting from Dr Qasim's management of her patients. 1. The Tribunal went on to consider in more detail the expert evidence with respect to each of the letters particularised in relation to complaint one: [115]-[125]. Having done so, it then referred (at [126]) to what were described as "substantial concerns about the general nature of [Dr Qasim's] reports to general practitioners". With respect to the conduct particularised for complaints one and two, those concerns included: lack of clarity in recommendations re diagnosis and therapy. Dr Qasim said she frequently phoned general practitioners for additional discussion but this does not lessen the need for adequate reporting as letters may be relied on by other general practitioners or specialists on future occasions. Excessively opinionated statements of doubtful validity eg "Lipitor is a poison"; "radio-iodine treatment is completely out". Statements indicating a lack of concern for patient well being, eg instruction not to forward letters re patient D to other specialists; apparent failure to make proper referral arrangements and adverse comments about patient and her sister and refusal to see patient I; letter to patient E of 27 August, 2010 saying she was no longer prepared to treat her - without suitable alternative arrangements. Gratuitous adverse comments about other treating practitioners as in the same letter to patient E. 1. The Tribunal then concluded, without more, at [127]: For the reasons provided, complaints 1, 2 and 3 are made out. 1. When addressing complaint five the Tribunal recorded at [168] that its "findings" included (following closely the language of s 139E(a) and (b)): … and that the doctor engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration and, further, that she engaged in more than one instance of unsatisfactory professional conduct and, when these instances are considered together, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration … 1. In doing so the Tribunal did not expressly identify any particular conduct which was considered to be of a sufficiently serious nature to justify suspension or cancellation. Nor did it identify or explain the instances of unsatisfactory professional conduct which, when considered together, amounted to conduct of a sufficiently serious nature to justify suspension or cancellation. Complaints Four and Five 1. Turning to the impairment alleged by complaint four, the Tribunal addressed the evidence of Dr Samuels; Dr Kwan, Dr Qasim's treating general practitioner; and Dr Smith, her treating psychiatrist. The Tribunal preferred the evidence of Dr Samuels to that of Dr Smith and concluded that Dr Qasim suffered from a serious psychiatric disorder, namely a "paranoid disorder somewhere along the spectrum from personality disorder to paranoid schizophrenia", that was causing "impairment in [her] interactions with patients, colleagues and with the community in general": [138], [164]. 2. The particulars to complaint five – that the practitioner did not have sufficient mental capacity or knowledge and skill to practise the profession – relied upon the fact of that serious psychiatric disorder and also upon the conduct that was the subject of complaints one and two as demonstrating that Dr Qasim did not have sufficient knowledge and skill to continue in practice. The Tribunal accepted the Commission's case put on each of those "separate and distinct bases": [167]. It found that Dr Qasim suffered from an impairment which interfered with her "judgment, communication skills and clinical ability" and rendered her not competent to practise: [170], [175]. It also found that the conduct which was the subject of complaints one and two showed that she did not have "sufficient knowledge and skill to practise": [168]. The basis for the Tribunal's order that Dr Qasim's registration be cancelled 1. Notwithstanding the findings described above, the Tribunal's order that Dr Qasim's registration be cancelled was only made on the basis that she was not competent to practise because of the impairment caused by her paranoid disorder: applicable National Law, s 149C(1)(a). The order was not made on the basis that she was not competent because of a lack of sufficient knowledge and skill. Nor was it made on the basis of the Tribunal's finding of professional misconduct: applicable National Law, s 149C(1)(b). 2. Had complaints one, two and three been the only complaints supported by evidence and the subject of adverse findings by the Tribunal, the Tribunal "would have made an order that [Dr Qasim's] further practice of medicine as an endocrinologist … [be] subject to further training, supervision and other necessary orders": [168]. Grounds of Appeal (as numbered in the Amended Notice of Appeal) 1. Grounds 2, 3, 4 and 6 are directed to the Tribunal's findings as to complaints one, two and three. By ground 2 it is argued that part of Dr Qasim's conduct particularised for complaint one was not capable as a matter of law of constituting unsatisfactory professional conduct under s 139B(1)(a), it not being contended that the conduct satisfied any other subsection. Grounds 3 and 4 challenge the adequacy of the Tribunal's reasons (see [27]-[29] above) for its conclusions that the conduct said to constitute unsatisfactory professional conduct, either considered separately or together, was sufficiently serious to justify suspension or cancellation of Dr Qasim's registration, so as to amount to professional misconduct. Finally, ground 6 asserts that the Tribunal erred in being satisfied that any of the conduct in relation to complaints one, two and three constituted a proper basis for cancelling Dr Qasim's registration to practise. 2. Grounds 7 and 8 address the Tribunal's findings as to the practitioner's mental disorder and impairment. Ground 7, as argued, is that the Tribunal erred in law in four respects in reaching its finding that Dr Qasim suffered from a psychiatric disorder. They are: first, that the appellant was denied procedural fairness because the reason for rejecting Dr Smith's evidence was not explored with him in cross-examination; secondly, that the Tribunal's reasons for rejecting Dr Smith's evidence - that Dr Qasim did not suffer from any psychiatric disorder - were not logically capable of supporting that conclusion; thirdly, that the Tribunal's finding that Dr Qasim suffered from a paranoid disorder was not reasonably open in the absence of any evidence of a diagnosis of a recognised psychiatric disorder; and fourthly, that critical factual matters assumed by Dr Samuels in expressing his opinion had not been proved. Ground 8, which in terms does not raise an error of law, alleges that the Tribunal erred in concluding that Dr Qasim's paranoid disorder affected her capacity to practise medicine. 3. The remaining grounds 9 and 10 challenge the form of the orders made by the Tribunal. Ground 9 contends that a mandatory relevant consideration, to which the Tribunal failed to have regard when ordering that Dr Qasim not be permitted to make an application for re-registration for a period of four years, was that her registration had been suspended from December 2010 to May 2014. Ground 10 is that the order that Dr Qasim's name be removed from the register of medical practitioners was manifestly excessive. As formulated, it also does not raise a question of law. 4. It is convenient first to address grounds 7 and 8 because they are the grounds directed to the basis upon which the Tribunal exercised its power under s 149C(1)(a). If those grounds are dismissed the only remaining grounds which challenge the orders made by the Tribunal are grounds 9 and 10, which challenge the Tribunal's exercise of the power as distinct from the existence of that power, in each case as sustained by the Tribunal's conclusion that Dr Qasim is not competent to practise because of her psychiatric disorder and its effect on her mental capacity. The challenges to the finding as to impairment by reason of a mental disorder (ground 7) 1. I have identified in [35] above the four arguments made in support of ground 7. It is convenient first to address the arguments which relate to the Tribunal's preference for the evidence of Dr Samuels over that of Dr Smith. The Tribunal's preference for the evidence of Dr Samuels over that of Dr Smith 1. Having referred to the evidence of Dr Kwan, Dr Qasim's treating general practitioner, and Dr Smith, her treating psychiatrist, the Tribunal at [162]-[164] set out its reasons for preferring the evidence of Dr Samuels: The Tribunal preferred the evidence of Dr Samuels as compared to that of Dr Smith. Dr Samuels is viewed as an independent expert. Dr Smith was viewed as a treating psychiatrist trying to carry out a perceived ethical duty of assisting his patient. The Tribunal accepted the opinions of Dr Samuels as given in his two recent reports and in oral evidence. The Tribunal further considered that the behaviour of Dr Qasim during the hearing was further evidence in support of Dr Samuels' opinion. The Tribunal accepts that there is a serious psychiatric disorder and accepts Dr Samuels' comments about the difficulties or uncertainties about exact diagnosis on a paranoid spectrum. The Tribunal is of the view that the psychiatric disorder constitutes an impairment and specifically causes impairment in interactions with patients, colleagues and with the community in general. All of this was in evidence before the Tribunal. 1. It is submitted for the appellant that "the" reason given by the Tribunal for preferring Dr Samuels' evidence was that he was independent, whereas Dr Smith was a treating psychiatrist "trying to carry out a perceived ethical duty of assisting his patient", and that reason was not a logical one. It is also submitted that if Dr Smith's evidence was to be disregarded for that reason, his lack of independence should have been raised with him in cross-examination for comment and response. 2. The first of these submissions does not accurately or sufficiently reflect the Tribunal's reasons for preferring the evidence of Dr Samuels. The Tribunal's statement that Dr Smith "was viewed as a treating psychiatrist trying to carry out a perceived ethical duty of assisting his patient" describes an overall assessment of the evidence of Dr Smith. In reaching its conclusion to prefer the evidence of Dr Samuels, the Tribunal stated that it also took into account the behaviour of Dr Qasim appearing for herself during the hearing. As a Tribunal with specialist members, it was entitled to draw upon their expertise in assessing whether Dr Qasim's conduct and demeanour during the proceeding was consistent with Dr Samuels' opinion: see Re Anderson & Medical Practitioners Act (1967) 85 WN (Pt 1) (NSW) 558 at 570 (Sugerman JA) and Kalil v Bray [1977] 1 NSWLR 256 at 260-261 (Street CJ). There was no denial of procedural fairness in that respect because the appellant was given notice at the commencement of the hearing that the Tribunal might do so. 3. Dr Smith's evidence, as the following summary shows, provided an ample basis for the Tribunal to form the view that in giving his evidence he continued to perceive his duty to be to assist his patient and that he sought to carry out that duty. The course of Dr Smith's evidence 1. The cross-examiner took Dr Smith through the period of his treatment of Dr Qasim, which commenced in May 2012. In his letter dated 25 May 2012, Dr Smith wrote to Dr Kwan stating that he had advised Dr Qasim "that I would be pleased to review the documentation on file and assist her in hopefully overturning the events that have occurred". In November 2012, Dr Smith wrote to the solicitors Slater & Gordon encouraging their assistance in resolving Dr Qasim's ongoing dispute with the Medical Council saying that assistance would "be much appreciated and undoubtedly would assist Dr Qasim in re-engaging in productive work". 2. Dr Smith's reports produced in relation to the proceedings before the Tribunal are dated 6 February 2013 and 11 September 2013. In each he states that he found no clinical evidence that Dr Qasim suffers from a formal psychiatric disorder (such as paranoid personality disorder, paranoid schizophrenia or a persecutory type of delusional disorder) as defined in the Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) produced by the American Psychiatric Association (DSM). He disagrees with Dr Samuels' opinion that Dr Qasim suffers from a paranoid condition and notes that Dr Samuels has not defined what he means by his diagnosis, which could loosely refer to any of a paranoid personality disorder, a delusional disorder or paranoid schizophrenia. 3. The voluminous materials provided to Dr Smith for the purpose of preparing his report included Dr Qasim's response dated 2 December 2010 to the complaints raised by Professor Smith's letter. That response included the following statements: I refer to the complaint lodged by Professor 'His Highness' Roger Smith… I find it rather amusing that Miss Bernice Dinkelman unfortunately to me is responsible for such orchestration of events which have led to this. I have no qualms about it, but she has no right to confiscate my files and provide them to anyone without my consent … I find Roger Smith's comments of unsatisfactory professional performance malicious, spiteful and totally lacking in logic, and repugnant … Again, this information is a criminal act on behalf of the informant, the clerk, for providing such misconstrued story to Roger Smith, so he could beat the drum to boost his morale. I am most disappointed by his unprofessional behaviour. … What right does [Professor Smith] have to invade my files? What right does he have to steal my files, because they are all missing … I would like to conclude that Roger Smith's allegations are nothing but an innuendo based on professional jealousy … I am happy to provide evidence of my satisfactory management of patients. He, himself, should look at his own patients who are suicidal after seeing him. … My previous complaint to the Medical Board that was lodged by Miss Dinkelman's relative [apparently a reference to Mr Igra and his complaint in 2004] caused a lot of distress, and it wasted a lot of my valuable time. … My final advice for Roger Smith. He is so regimental that I am ecstatic. Has he considered to join the "Army" and save the world and the mess it is in. He may even consider joining the Parliament as he will thrive and may save this wonderful country from drowning. His talent is being wasted. Please note copies will be sent to the Department of Health, The Premier of NSW, and even Julia Gillard. 1. In cross-examination Dr Smith accepted that this letter was "inappropriate" and involved "poor judgement" but added that it "doesn't equate necessarily to a paranoid schizophrenic disorder" [Emphasis added]. He agreed that Dr Qasim was expressing her views in an inflated manner, but not that there were numerous instances of grandiosity in the letter. He accepted that the suggestion that Mr Igra was a relative of Ms Dinkelman was plainly a wrongly held belief but would not accept that it suggested a persecutory belief system. When pressed, he accepted that Dr Qasim had a tendency to be suspicious by nature and when confronted with her accusations of misconduct against Dr Newman and Professor Smith, in relation to the theft of files, he accepted that Dr Qasim was making allegations but queried "is that delusional, not necessarily so is my point to you" [Emphasis added]. When confronted with the position, as was found by the Tribunal, that these allegations were unfounded, Dr Smith replied: Now, it's not for me – as I say, I can't, I'm not to determine whether they're true or not but I'm accepting what she's telling me and I'll leave it to this body to determine whether it's true or false. If they're false then I think that opens up a different situation. … Well that may then open up the possibility of high degrees of unwarranted suspicion, not necessarily delusions. [Emphasis added] 1. Dr Smith was also questioned about statements made by Dr Qasim that suggested the Medical Council was assisting the residents of her Randwick apartment building and that there was a "conspiracy between the Medical Council, HCCC, Ms Dinkelman and other practitioners in regard to unauthorised access to [her] clinical records [which had] been proven to be true". Dr Smith agreed that the suggested linkages between these disparate people and the allegation of a conspiracy between them was of concern. However he noted: A. … Now I have already stated that I have not found her to be psychotic, not found her to be suffering from a paranoid schizophrenic disorder, I just found her to be delusional. Now you're raising issues here of a conspiracy - now that does raise a concern which should be further explored, this is the first time that word has emerged, it never emerged in my discussions, it does raise the concept of a paranoid degree of ideation. Does it raise the possibility of a paranoid personality, I don't necessarily think so. But the real issue is, even if she had that, would she still be competent to practise. … Even if you state that she has a - even if you establish that she has a full blown delusional disorder, which I do not, how does that relate to her ability to practise medicine is my question. And that has not been answered by anyone, correct me if I'm wrong. [Emphasis added] 1. When pressed by the cross-examiner as to whether the various matters to which he was referred raised serious questions about Dr Qasim's insight and paranoia, Dr Smith responded: A. I come back to what I say, you've got to establish with me that her aberrant thinking is affecting her clinical judgment in the application of a clinical problem. I'm not disputing with you that her commentary is [in]appropriate, that her language is poor in regard to how she should respond, but I've emphasised that doesn't necessarily equate to establish she has a paranoia or a paranoid delusional disorder – I want to emphasize that. She's got some problems I'm not disputing that. But my concern is I have not been able to link her problems to her competency as an endocrinologist. If an endocrinologist says, Dr Qasim is incompetent because she can't diagnose diabetes, she hasn't got a clue about proper insulin levels, et cetera, that's for the endocrinologist to determine. If the endocrinologist says she can't think clearly Dr Smith, because she is delusional, she is so caught up with the files that have been stolen from her practise which intrudes upon her ability to focus and concentrate, yes, I would say you've got an argument. But I haven't seen the linkages established. That's my problem. [Emphasis added] 1. It was in this context that, towards the very end of his evidence, Dr Smith was asked the following questions by the specialist psychiatrist member of the Tribunal (Dr Anderson): Q. Do you regard yourself as independent from all parties given that you're the treating psychiatrist? A. Well, I try to be. I mean I may be perceived not to be but I certainly attempt to provide a balanced opinion, the relevant issues as I see them. Q. Do you perceive an ethical duty to assist your patient or to advocate for your patient? A. Yes, I do. I see my role in this situation, as I said right upfront to Dr Kwan, that she required help, she was floundering with the issues at hand and she came to me for assistance in helping her through the minefield ahead and I saw that as my role and if that eased her suffering that was my job. Q. Has that changed at any point – A. No. Q. -- up to the present? A. That has not changed at all. [Emphasis added] Determination of the challenges to the rejection of Dr Smith's opinion 1. A question to be decided by the Tribunal was whether, as alleged by the Commission, Dr Qasim suffered from a paranoid disorder. The Tribunal found that she did, relying upon the evidence of Dr Samuels. Whether that evidence was probative of that fact and whether the disorder about which Dr Samuels gave evidence was a "mental impairment, disability, condition or disorder" within the definition of "impairment", are questions raised by the third of the arguments advanced in support of ground 7 (see [35] above). Those questions are dealt with below. 2. The first and second of the arguments described in [35] above proceed from the central proposition that Dr Smith's evidence was "rejected for a single reason, perceived lack of independence" (tcpt 16/06/15, p 39.7). As I have already observed, that proposition does not accurately reflect the Tribunal's stated reasoning process. In addressing the question whether Dr Qasim suffered from a paranoid disorder, the Tribunal gave three reasons for preferring the evidence of Dr Samuels and concluding that she did. The first was that it "accepted" his opinions as correct. That conclusion, at least in part, necessarily involved the members of the Tribunal drawing upon their own specialist knowledge and experience. One of those members was a qualified psychiatrist. Another was a qualified endocrinologist. As explained at [41] above, the Tribunal was entitled to employ its expertise in deciding which expert evidence to accept on the basis of the factual material before it. The second reason given was that the Tribunal considered Dr Qasim's conduct during the nine days of the hearing to support the opinion expressed by Dr Samuels. Again that conclusion was reached with the benefit of the specialist knowledge and experience of the Tribunal's members. The third was that Dr Samuels' evidence was to be preferred to that of Dr Smith because Dr Samuels was an independent expert, whereas Dr Smith was "viewed as a treating psychiatrist trying to carry out a perceived ethical duty of assisting his patient": [162]. The Tribunal refers to the evidence on which that assessment was based at [151]-[161]. 3. That assessment does not fix upon any perceived lack of independence. The essence of it is that Dr Smith's evidence was given from the perspective of a treating psychiatrist who was seeking to assist his patient or advocate her position. As the course of his evidence summarised above shows, when confronted with behaviour or beliefs of Dr Qasim which raised serious questions as to whether she suffered from a paranoid disorder, Dr Smith's response tended to be to require that he be persuaded of such a diagnosis rather than accepting that he should explore that possibility further by reference to the materials provided to him. An example of this is evident in his response to the statements made by Dr Qasim as to there being a conspiracy between the Medical Council, the HCCC, Ms Dinkelman and others in relation to access to her clinical records (see [47] above). 4. Turning to the first argument, the rule in Browne v Dunn (1893) 6 R 67 ordinarily requires, where the evidence of a witness is to be challenged on a basis that may be capable of being explained or otherwise addressed by the witness or the party calling the witness, that such a challenge be made clear. That is usually done by way of cross-examination: Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 22-23 (per Hunt J). It may also be accepted, for the same reasons of fairness which inform the rule, that there would be a denial of procedural fairness if a judge or tribunal rejected a witness's evidence on a ground which was not, but should have been raised with the witness by the other party or the court or tribunal. See Kuhl v Zurich Financial Services Australia Limited [2011] HCA 11; 243 CLR 361 at [69]-[72] per Heydon, Crennan and Bell JJ. 5. Here the matter which concerned the Tribunal, and which was taken into account in the assessment of Dr Smith's evidence, was expressly raised with him, as the relevant witness. He was asked (see [49] above) whether he perceived his duty to be to assist his patient or to advocate for her and responded that he did see that as his ongoing role, even at the time he was giving evidence. 6. The second argument may be disposed of shortly because Dr Smith's perceived lack of independence was not "the" reason for rejecting his evidence or preferring the evidence of Dr Samuels. Furthermore that the reasoning of a court or tribunal for arriving at a finding of fact is illogical or demonstrably unsound does not itself amount to an error of law: R v District Court; Ex parte White [1966] HCA 69; 116 CLR 644 at 654; Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356-357; BHP Billiton Ltd v Dunning [2015] NSWCA 55 at [35]-[37]. 7. There was evidence supporting the Tribunal's inference that in giving his evidence Dr Smith was trying to carry out his perceived duty of assisting his patient. That evidence included Dr Smith's answers to that effect as well as during his cross-examination more generally. That finding together with the other matters to which the Tribunal referred provided a factual basis for preferring the evidence of Dr Samuels and concluding that Dr Qasim suffered from a psychiatric disorder. The Tribunal's finding that Dr Qasim suffered from a paranoid disorder 1. The remaining two arguments made in support of ground 7 require a consideration of Dr Samuels' evidence. The third argument is that the Tribunal's finding that Dr Qasim suffered from a serious psychiatric disorder was not "reasonably open" in the absence of any evidence of a diagnosis of a recognised psychiatric disorder. This argument directs attention to whether there was any evidence supporting the Tribunal's finding. That in turn raises the question whether the disorder about which Dr Samuels gave evidence constituted an "impairment", as defined in s 5 of the applicable National Law. The question raised by the fourth argument is whether certain factual assumptions made by Dr Samuels were proved so as to provide a foundation for the admissibility of his opinion. Dr Samuels' evidence 1. Dr Samuels' first report is dated 21 September 2004. He concludes in that report that he could not find "clear evidence on examination today that Dr Qasim suffers from any significant impairment. Specifically I can find no evidence that she suffers from a bipolar disorder or any other psychiatric illness." His second report is dated 27 April 2011. That report was made with the benefit of a number of documents then provided by the Medical Council and a clinical examination of Dr Qasim, at which her brother and accountant were also present. During the course of that examination there was discussion about the incidents involving Ms Dinkelman, Dr Newman, Mr Igra, and Professor Smith. Dr Samuels also asked Dr Qasim about her sending letters to general practitioners, Heads of Departments and politicians concerning allegedly stolen files. His report records: She said she was wanting to send letters to GPs about the files stolen; it was important that they knew because the patients were affected but she would "leave this to the legal team". I asked her about her conversation with the High Court judge. She said this was a personal friend and she wanted to keep it confidential. She then raised more issues about freedom of information, confidentiality and the need to do something about it so "it doesn't repeat itself". 1. At the conclusion of that report Dr Samuels expresses his opinion as to Dr Qasim's psychiatric issues at that time: When I saw Dr Qasim in 2004 I was unable to definitively diagnose an underlying psychiatric condition. It seems that since that time her conflict with Mr Igra and Mr Sutherland has been ongoing and continues to involve litigation and involvement of the Courts. Throughout the interview Dr Qasim made constant reference to her "legal team". It seems clear that her preoccupation with these legal processes had led to a major disruption in her career and in her ability to commit to certain types of practice. She has obviously felt threatened and has needed to resort to AVOs and the company of her brother to maintain a perception of safety. The concerns raised by Prof. Smith certainly highlight some possible concerns about her clinical competency but this is clearly beyond my range of expertise. Her dealings with referring general practitioners, however, seem to have been inappropriate at times and certainly the letter in response to Prof. Smith's complaints is extremely concerning. Whilst I could find no objective features of mental illness on examination today in the form of clearly defined psychotic phenomena; her overall presentation, particularly in the context of problems that have clearly been ongoing since I last saw her in 2004, certainly raises a strong possibility of an underlying paranoid condition. Significant mental state findings include her degree of elusiveness, circumstantiality, her tangentiality of replies, reluctance to answer some questions citing that these are issues that are being dealt with by her "legal team" or not wanting to disclose information, for example the name of the High Court Judge for "reasons of confidentiality"- and the numerous allegations that she has made in relation to criminal activities may all be pointers toward an underlying paranoid condition. She also displays a mild grandiosity. For example, she requested the delegates of the S150 panel be of a certain intellectual calibre "to understand the issue" and she does seem to believe that she has some artistic and creative abilities that make her a particularly good endocrinologist. This may also be a marker of an underlying paranoid condition. The factors that most clearly point towards the presence of such a condition are really historical in nature and revolve around the continuous involvement in litigation which has clearly been at great financial and personal cost and has precluded her from taking on certain professional roles and may well have had other socially adverse consequences for her. I concur with the delegates that the response to Prof. Smith's concerns is particularly concerning and it does sound like her demeanour in the course of the S150 enquiry was another marker of concern. I did give Dr Qasim and her brother feedback to the effect that I could not absolutely make a clear cut psychiatric diagnosis but conversely could not entirely exclude one either. Having had some time to reflect on her presentation today and the materials I have reviewed I feel a need to modify this position slightly and, at this point, on the balance of probability I think it is likely that she does suffer from, a paranoid condition. I cannot be absolutely certain as to whether or not she has a paranoid personality disorder that at times manifests psychotic symptoms or whether or not there is a more pervasive underlying psychiatric condition like paranoid schizophrenia. I do feel on reflection, however, Dr Qasim is suffering from an impairment within the meaning of the Act. 1. In his report dated 1 February 2012, Dr Samuels takes account of additional documentary material and a further interview with Dr Qasim, again in the company of her brother and her accountant. His opinion includes: In the diagnosis of paranoid conditions it really is the longitudinal picture that is of the most significance and certainly this is the case with Dr Qasim. There are suggestions the problems began well before 2004; there have been unaccounted for career disruptions, periods taken off to litigate in regard to various issues, interpersonal conflicts, unusual communications and some serious concerns raised in regard to her competency as an endocrinologist. On the basis of the material that I have reviewed and the longitudinal clinical picture I continue to believe that she is suffering from a paranoid condition and is indeed an impaired practitioner within the meaning of the Act. Evidence for this includes: The guarded, evasive, somewhat adversarial clinical interactions I have had with her to date; Evidence of grandiosity and "specialness" e.g. needing to notify police when she goes out; Unusual behaviours e.g. trying to get Dr Teoh to communicate with me, harassing staff in my practice, writing unusual letters of "poor tone" to colleagues; Suggestions of a longstanding pattern of querulous litigation; Persistent beliefs that there is some sort of conspiracy between Council, HCCC, Ms Dinkleman and other practitioners in regard to them accessing her clinical records; (even suggestions of a connection between Mr Igra and Ms Dinkleman); and The decompensation of her mental state in the context of the recent S150 hearing. 1. In his evidence-in-chief, Dr Samuels was asked whether he had read anything in Dr Smith's analysis which caused him to change that opinion. He responded: A. No, there's nothing in his report that does make me change my view. I guess one of the issues - I suppose when I look at his report the most substantial component of the report is really a critique of my report, he doesn't particularly add anything to the clinical picture of Dr Qasim. Dr Smith has seen her on umpteen occasions, I don't know how many they were. He obviously had - he was seeing her in a treatment relationship, a paid relationship, the fact she kept coming back I would assume meant she had some rapport with him. Because he wasn't seeing her for medico-legal purpose I presume she was being open and frank with him, I would imagine. But there is really nothing in Dr Smith's report that adds to the clinical picture. He basically says I've seen no evidence of mental illness, or words to that effect. I'm not particularly surprised by that because I think if you're dealing with someone with a paranoid disorder, the times you're going to see frank manifestations of that mental disorder are at times of stress. So he said that the section 150 hearing wasn't a good venue to ascertain - to make any comment on her mental state. I think that's incorrect. I think that probably was a very appropriate venue because one of the things about patients with paranoid conditions is they like - is that they have a tendency, especially somebody who is intelligent and well educated, they often have quite good insight into the fact that some of their ideas might be at odds with other people, they spend quite a lot of time containing those ideas and perhaps not always revealing them and making sure that their environment is controlled. So in the context of seeing me in a medico-legal context, obviously Dr Qasim knew what that was about. She brought her friend, she brought her brother, she wanted to record the interview. There were various things that perhaps mitigated against me getting a lot of information. 1. Dr Samuels also addressed the question whether it was necessary for his conclusion that Dr Qasim suffered from a mental condition or disorder that there be a diagnosis of a formal psychiatric disorder in accordance with the DSM published by the American Psychiatric Association. That question was raised by Dr Anderson: Q. Is it important for us to be looking at a DSM diagnosis, or is it of not great importance in this setting? A. I think it would be very difficult to come down on a clear DSM diagnosis in my view. I don't think it's that important. I do believe that Dr Qasim suffers from an impairment within the meaning of the Act, and from a diagnostic point of view I believe she has a paranoid condition which falls somewhere between a paranoid personality disorder and a paranoid schizophrenia. I suspect at times her mental state decompensates to the point that she becomes frankly psychotic. There's certainly suggestions, perhaps even from this transcript, that she thought Mr Igra had come through the roof, that Ms Dinkelman was manipulating things from the Central Coast, or wherever she was. There's certainly some suggestions that at times she's had some delusional ideas. We've seen some evidence, I think, of some thought disorder, which suggests perhaps moving more towards the paranoid schizophrenia end of the spectrum. But at the core of this condition I think that what we see is a pattern of rigidity and an ability to sort of let things go, a pattern of developing grievances, quite a degree of grandiosity. There are certainly a lot of features from a DSM IV TR point of view of a paranoid personality disorder, but I do think that at times there probably is evidence of frank psychosis. So, yes, in short I think it's hard to be absolutely definitive, but I do think that she - from a diagnostic point of view - falls on the paranoid disorder spectrum. 1. In relation to whether Dr Qasim's mental disorder detrimentally affected her capacity to practise medicine, Dr Samuels gave the following evidence: A. … It seems to me that there are two issues. There's one is her competence as an endocrinologist and -- Q. That's another issue, yes? A. Yes, and so there may be things that come out of that that dictate that decision. I certainly think that unless she acknowledges that she has a problem, whatever we want to call it, unless she's prepared to actually engage in a therapeutic relationship with somebody, unless she's prepared to accept some sort of treatment, and - as Dr Anderson says - unless she's willing to be closely supervised and monitored by somebody who can act as a - I do think she has judgment problems and I think she does need somebody to say, "That's an inappropriate response, you can't do that". Unless all those things were in place I would predict an ongoing pattern of problems, and I think that there will be an ongoing difficulty with her practice. I don't think I can definitively say that the situation will never change, but I certainly would have great concerns if she was practising in an unsupervised way. I think when I saw her in 2011 she was proposing setting up in some sort of office block in Parramatta and having some vague supervision with some group once in a while, that would be very concerning. There would need to be quite rigid oversight controls, monitoring, and then of course they're the secondary issues - well the primary, but other issues in relation to her endocrinological competence. The finding as to a mental condition or disorder 1. There was no requirement under the applicable National Law that a diagnosis that a person has a mental condition or disorder in the sense of an "impairment" be formed in accordance with the DSM or that, having concluded that the practitioner has a paranoid disorder, it was necessary to identify where along the paranoid spectrum, from personality disorder to paranoid schizophrenia, the practitioner fell: see Grant v HCCC [2003] NSWCA 73 at [11], [12]. Dr Samuels' evidence was that the appellant has a paranoid condition "which falls somewhere between a paranoid personality disorder and a paranoid schizophrenia". That was sufficient to support the Tribunal's finding that Dr Qasim has a "serious psychiatric disorder" which constitutes an "impairment" under the applicable National Law: [138], [140], [163], [164]. The factual assumptions made by Dr Samuels 1. Dr Samuels' opinion, at least in part, was based on there being a pattern of complaints from people with whom Dr Qasim was "offside" (adopting his language), particularly a history of disputes with the occupants of the apartment building at Randwick. 2. The Tribunal observed at [108]: In relation to the problems surrounding the apartments in which she resided and the other owners, we have found and basically we accept what the other owners have said to us. However, as we said at all times, we do not intend to make any findings relating to the doctor's dispute with the other owners or the body corporate. We note that there was a significant dispute, however, there is no dispute that various letters, which have been tendered before the Tribunal and which may have relevance in relation to her mental capacity, were sent by the doctor. That is not in issue and there is no dispute that the various parties were not cooperating with each other in relation to these disputes. 1. By the appellant's fourth argument, it is said that the Tribunal declined to make findings regarding that dispute, that its declining to do so meant that some of the facts assumed by Dr Samuels were not proved and that the basis for his opinion was not established. The fundamental difficulty for this argument is that Dr Samuels made clear that, for the purpose of his diagnosis, the relevant fact was that there had been disputes and that they continued over a number of years. It was not necessary to determine whose version of any particular dispute was to be accepted or to attempt to apportion blame for its existence or the way in which it subsequently developed. In that regard, Dr Samuels explained: A. … I've seen what Dr Miller has written. I guess it has been pointed out it's up to the Court to accept whether or not that's a fact. But on the basis of that, all - and I'd like to just reiterate, I'm not so much interested in the details about who said what or who said why. What I'm interested in is there's a pattern of you getting offside with lots of people who make complaints, the pattern of litigation and the complaints are of a similar nature, that's true which suggest to me that you're behaving in a way that evokes particular responses from people. These are not isolated events and why I believe you have a paranoid condition is there's been something going very wrong between 2004, in fact up to this point. It appears to me that you get quite stuck on things. You get absolutely entrenched in the way of thinking and you find it hard to deviate. In fact, that's - really what I'm saying here is you're on a pathway that you can't get off. And it's that pattern that comes through and these are the reasons why I think you have paranoidism. 1. There was evidence which supported Dr Samuels' assumption that there was a longstanding pattern of disputes and resort to litigation from about 2000. That evidence included letters and documents that Dr Qasim had written and information provided by Dr Qasim in the two interviews with Dr Samuels. It showed that there were several complaints by other residents of the Randwick apartment building concerning Dr Qasim and her behaviour. The evidence further shows that those disputes resulted in the making of apprehended violence orders and proceedings before the Consumer, Trader and Tenancy Tribunal. The occupants or owners involved included Mr Igra, Dr Miller, Dr Sutherland, Mrs Sutherland, Mr Sidwell and his wife (see [11]-[13] above). 2. The appellant's submission that there was no evidence supporting Dr Samuels' assumption as to a history of interpersonal conflicts, unusual communications and a pattern of litigation must be rejected. It follows that ground 7 is not made out on any of the bases argued. The challenge to the finding that any psychiatric disorder was of a nature that would affect Dr Qasim's capacity to practise medicine (ground 8) 1. It is submitted on behalf of Dr Qasim that the Tribunal did not have any evidentiary basis for its finding that Dr Qasim's paranoid disorder interfered with her judgment, communication skills and clinical ability: [170]. Some of the manifestations of this interference are recorded by the Tribunal at [172] and [173]. 2. The evidence, including the evidence of Dr Samuels extracted at [63] above, provided a logical basis for the Tribunal's conclusion as to the effect of Dr Qasim's impairment. In particular, Dr Samuels' opinion was that Dr Qasim had "judgment problems" and that there was likely to be an ongoing pattern of problems and "difficulty with her practice". His opinion was that this would continue to be the case unless Dr Qasim was prepared to engage in a therapeutic relationship with somebody and subject herself to supervision and monitoring. The Tribunal concluded, on the evidence, that was unlikely to effectively occur: [176]. Ground 8 should also be dismissed. Did the Tribunal err in determining the period during which Dr Qasim would not be entitled to reapply for registration? (ground 9) 1. It is not submitted on behalf of Dr Qasim that the Tribunal did not have power to make an order that she not be permitted to reapply for registration for a period of four years from 2 May 2014. 2. Rather it is submitted that, in exercising its discretion to make such an order, the Tribunal was required to take into account the fact that Dr Qasim had been suspended from practice for a period of three and a half years from December 2010. That submission proceeds on a wrong view as to the purpose of the disciplinary powers of the Tribunal. That purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]; see also National Law, ss 3(2) and 3A. 3. The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. In addressing that question, the Tribunal noted that Dr Qasim had "limited insight into her impairment" and that she did not accept that she had a mental illness which required treatment: [176]. In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. Accordingly there was no failure of the Tribunal to take into account a mandatory relevant consideration and it did not err in law in not doing so. This ground also should be dismissed. Whether the order cancelling Dr Qasim's registration was excessive (ground 10) 1. It is submitted that the Tribunal's discretion as to the order which should be made on the basis of its findings as to impairment and competence miscarried because it failed to consider the range of options available to it. To constitute an error of law that failure must be in respect of a relevant consideration which the Tribunal was required to take into account. 2. The appellant's submission does not take account of the Tribunal's reasoning process and the fact that it did consider whether the imposition of a lesser sanction, being the imposition of conditions requiring supervision and retraining, was appropriate in relation to its findings of impairment and competence: [176]-[178]. In particular, the Tribunal concluded that it had "significant doubts as to whether supervision and further training would assist" in circumstances where Dr Qasim had not accepted that she had a mental illness which required treatment, or at least, accepted the problems she had so that she might be given assistance. Accordingly, there was no error of law. The Tribunal had regard to the matter which it is contended was required to be taken into account. Ground 10 should be dismissed. Complaints one, two and three (grounds 2, 3, 4 and 6) 1. It is not necessary to consider these grounds because complaints one, two and three did not provide the basis for the exercise of the Tribunal's power to cancel Dr Qasim's registration. I will, nevertheless, address them briefly. 2. As to ground 2: the relevant question is whether particulars 1, 2, 3 and 6 to complaint one were "capable, as a matter of law, of constituting unsatisfactory professional conduct" within s 139B(1)(a). Those particulars relate to three letters sent by Dr Qasim to general practitioners regarding patients she had seen. In each case it was alleged that a statement was made which was incorrect or misleading as to the accepted current treatment for particular conditions. Unsatisfactory professional conduct included conduct that demonstrated that the "knowledge, skill or judgment possessed or care exercised, by the practitioner in the practice" of her profession was significantly below the standard reasonably to be expected. Each of the particulars, if proved, was capable of demonstrating that Dr Qasim's knowledge and care was significantly below the standard reasonably expected of a specialist endocrinologist. For these reasons, ground 2 should be dismissed. 3. Grounds 3 and 4 challenge the adequacy of the Tribunal's reasons for its conclusions that the conduct particularised as constituting unsatisfactory professional conduct, which was the subject of complaints one and two, was sufficiently serious, considered separately or together, to justify the cancellation of Dr Qasim's registration so as to constitute professional misconduct. In my view these grounds, formulated in this way, should be upheld. As I observed in [29] above, the Tribunal did not explain why any conduct which was the subject of complaints one and two was sufficiently serious to justify suspension or cancellation. Nor did it explain why any of the conduct, when considered together, was of a sufficiently serious nature to justify a suspension or cancellation. I do not consider that [168] of the Tribunal's reasons takes the matter or the reasoning any further. It simply recites what must be found to satisfy the definition of professional misconduct in s 139E(a) or (b). The Tribunal was required to explain the process of reasoning by which it arrived at the opinion that Dr Qasim had been guilty of professional misconduct in sufficient detail to enable a court to see whether that opinion involved any error of law. That was at least necessary to allow the appellant to exercise her right of appeal on questions of law under s 162(1) of the applicable National Law. See Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480. The Tribunal's reasons in relation to complaint three do not satisfy that standard. Grounds 3 and 4 should be upheld on this basis. 4. However, the upholding of those grounds does not result in the allowing of the appeal or the need for any further order or other relief. The Tribunal's finding with respect to complaint three did not provide the basis for the making of the challenged orders. Furthermore the appeal in relation to those orders is to be dismissed and the appellant does not seek, in that event, any order that complaint three be referred back to the Tribunal so that it might furnish further reasons. 5. Finally, as to ground 6: the Tribunal did not hold that any of the conduct found to have occurred in relation to complaints one, two and three was a basis for cancelling the appellant's registration. For that reason this ground addresses a holding which the Tribunal did not make and accordingly is misconceived. It should be dismissed. Costs (ground 1 of draft notice of appeal) The Tribunal's decision 1. Having concluded that Dr Qasim's registration should be cancelled and that she should not be permitted to apply for re-registration or review for a period of four years, the Tribunal continued at [180]-[181]: The Health Care Complaints Commission seeks the costs of this hearing. Dr Qasim also seeks her legal costs. The Tribunal would have made an order that each party pay their own costs on the basis that these complaints were brought by the Health Care Complaints Commission and that she therefore had the right to defend them in a proper manner. However, her evidence, which we have found to be untrue, relating to the typing of the reports and the form in which the reports went to the various doctors has clearly extended the length of the Tribunal hearing as has her unfounded allegations as we have set out earlier. We therefore order that Dr Qasim pay her own costs and, in addition, pay two-tenths of the costs of the Health Care Complaints Commission, the hearing having been extended by at least that time in dealing with the matters we have set out above. 1. The Tribunal assessed the Commission's costs at $70,000 and ordered that Dr Qasim pay two-tenths of those costs. Relevant principles 1. Clause 13 in Sch 5D of the applicable National Law relevantly provided: (1) A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. 1. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) Appeal against the decision as to costs 1. Clause 29(6)(c) of Sch 5, Pt 6 of the CAT Act provides that an appeal does not lie to this Court against a decision as to costs, except by leave of the Court. 2. The Commission contends that the Tribunal erred in the exercise of the costs discretion by doing so from the starting position that "each party pay their own costs": [180]. In response, Dr Qasim contends that the second sentence of [180] reflects the costs order that the Tribunal would otherwise have made having taken account of the general rule that costs follow the event. That submission must be rejected. The factors that are identified as justifying an order that each party pay its own costs are not factors that would justify any departure from the general rule that costs follow the event. Those factors do no more than record that the respective parties were entitled to bring and to defend the proceedings in relation to the complaint. The matter which the Tribunal then refers to (that Dr Qasim gave evidence which was found to be untrue) represents a reason for departing from a starting position that is understood to be that each party pay its own costs. In my view the second sentence of [180] reveals that as being the Tribunal's starting position in determining the exercise of the costs discretion. As such, the exercise of that discretion miscarried. 3. The parties accept that if there was an error in the exercise of the costs discretion, provided leave is granted, this Court may re-exercise the discretion and may do so on the basis that the Commission's reasonable costs incurred in the proceedings totalled $70,000. 4. In my view leave should be granted, the appeal allowed and an order made that Dr Qasim pay the Commission's costs of the proceedings before the Tribunal, those costs assessed at $70,000. Conclusion 1. I propose the following orders be made: 1. Appeal dismissed. 2. The appellant pay the respondent's costs of the appeal. 3. Grant the respondent leave to appeal from the Tribunal's order of 2 May 2014 that the appellant pay the respondent two-tenths of its costs of the proceedings before the Tribunal. 4. The respondent to file and serve a notice of appeal in the terms of the draft notice in the White Book within seven days of the date of this order. 5. Set aside the Tribunal's order that the appellant pay the respondent's costs assessed at $14,000. 6. The appellant pay the respondent's costs of the proceedings before the Tribunal assessed at $70,000, this order to take effect on 2 May 2014. 1. WARD JA: I have had the advantage of reading in advance the comprehensive reasons of Meagher JA. I agree with Meagher JA that the appeal should be dismissed for the reasons his Honour gives. ********** 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 September 2015