Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lee v Medical Council of NSW [2017] NSWCATOD 132 Hearing dates: 22 August 2017 Date of orders: 04 September 2017 Decision date: 04 September 2017 Jurisdiction: Occupational Division Before: D Cowdroy ADCJ, Principal Member Decision: (1) A stay of the decision to suspend the applicant's registration made by the respondent Medical Council of New South Wales made on 20 March 2017, pending further order. (2) The stay order is conditional upon the following condition applying: (a) the applicant is to conduct any radiological practice without contacting directly any clients or patients apart from personally conducting necessary test or procedures on them or with them as part of their treatment or procedure. This condition applies unless there is a medical emergency and the referring health practitioner is unable to be contacted. (3) The interim non-publication order made in respect of the applicant and other persons who were recipients of emails made on 22 August 2017 is vacated. Catchwords: medical practitioner suspended following enquiry by Medical Council on the basis of allegations of criminal conduct – application for stay by applicant pending hearing of appeal – no-fault found with practitioner's conduct in her professional duties – absence of potential risk to any patient – stay granted pending determination of practitioners appeal against suspension. Medical practitioner and persons who are not patients of the medical practitioner seeking continuation of an interim non-publication order arising out of alleged conduct of medical practitioner – no valid grounds for continuation of a non-publication order – open justice overriding any issue of personal embarrassment of medical practitioner or of other persons allegedly impacted by conduct of a medical practitioner – interim nonpublication order discontinued Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Re Griffiths Grif-Air Helicopters Pty Limited and Civil Aviation Authority (1993) 31 ALD Australian Securities and Investments Commission and PTLZ [2008] FCAFC 164 Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185 Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 Alexander v Cambridge Credit Corporation Limited (1985) 2 NSW LR 685 Vaughan v Dawson [2008] NSWCA 169 Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 Hanna v Medical Council of NSW [2016] NSWCATOD 108 Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323 Healthcare Complaints Commission v DAC [2017) NSWCATOD 98 John Fairfax and Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 Merrilyn Walton v Alexander Sergevich Momot and Anor [1997] NSWSC 143 New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174 John Fairfax Group Pty Ltd (Receivers and Managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131 Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 Category: Procedural and other rulings Parties: Denise Jane Lee (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: Mr M Robinson (Applicant) Ms P Lowson (Respondent) Solicitors: Lenz Legal (Applicant) Medical Council NSW (Respondent) File Number(s): 2017/00206286 Publication restriction: The interim non-publication order made in respect of the applicant and other persons who were recipients of emails made on 22 August 2017 is vacated. rEASONS FOR DECISION 1. Before the Tribunal is an application for a stay under s.43(3) of the Civil and Administrative Tribunal Act 2013 (the NCAT Act). Such subsection relevantly provides: The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal". 1. The application for the stay arises in the following circumstances. Facts 1. The Applicant is a qualified medical practitioner. She has practised as an employed radiologist, but that employment has now ceased apparently in consequence of the matters referred to hereunder. 2. On 20 March 2017 the Respondent ("the Council") ordered that the Applicant's registration be suspended, effective from 1.00pm on that day. Such suspension arose as a result of proceedings instituted under s.150 of the Health Practitioner Regulation National Law (NSW) ("the National Law"). Such action was taken following charges being made against the Applicant relating to a substantial quantity of threatening, intimidating and scandalous emails, allegedly sent by the Applicant to a former person with whom she had an association, to the current partner of that person, and to a professor at a university who is the mother of the latter person, and to other persons. In all there were six persons who received the offensive emails. The charges also involve allegations of breach of an apprehended violence order issued against the Applicant by the former partner, and another person who is the father of the alleged victim's new partner. 3. On 28 February 2017 the New South Wales Police issued a Court Attendance Notice which details 9 criminal charges against the Applicant. Two such charges relate to contravention of the apprehended domestic violence order; one is premised on an allegation of stalking and intimidation; and 6 charges relate to the use of a carriage service to menace / harass / offend. Currently, the Applicant has been granted conditional bail. 4. On 20 March 2017 the Council convened a hearing to determine whether conduct existed which justified such Council taking action. The Council made its decision on the same day as the hearing, and written reasons for its decision were published on 5 May 2017. 5. In its findings, the Council considered that the Applicant was not impaired; however, there were wider considerations which needed to be taken into account. Significantly, the Council held as follows. Council's Findings 1. The Council said, inter alia: We consider that the allegations made against Dr Lee indicate that there is a significant risk that she has acted in ways that damage the standing of the medical profession. While these matters will be dealt with by the courts, there is a need to maintain public confidence in the profession and in the operation and management of the health system. 1. The Council observed that s.150: …has two parts and we have dealt with this case as raising matters that are potentially "otherwise in the public interest. The other part of s.150 requires action to protect the health and safety of the public. If in fact Dr Lee authored these malevolent emails, stalked Mr Holberton and breached AVO orders, then it follows that although her conduct did not occur in the course of her practise of medicine, it has caused significant harm to those targeted by her conduct, who are of course, members of the public. The multiple recipients of the emails have each been affected to varying degrees and this was the explicit intent of the author of the emails. We are also concerned that could be a significant risk to the health and safety of the public if such conduct were directed at patients. 1. The Council addressed the question of whether conditions could be applied, but in the circumstances felt that no conditions would be adequate to protect the reputation and standing of the medical profession, and "public confidence in the application of the National Law (NSW)…". Subsequent Proceedings 1. The Applicant has appealed the Council's findings to this Tribunal. Initially the respondent opposed the appeal as having been brought out of time. However on 22 August 2017 the Tribunal granted an extension of time in which to bring the appeal with the consent of the respondent. A direction hearing in those proceedings has been held and the proceedings are set down for hearing on 21 and 22 November 2017. Stay Application 1. By Application for Stay or Interim Order filed on 7 July 2017 the Applicant seeks a stay of the suspension pending determination of her appeal. The grounds of the appeal allege that the decision is wrong, and secondly allege that the complaints do not arise from or relate to the Applicant's professional practice and are not related to her professional conduct. The Applicant has filed an affidavit sworn on 4 August 2017 which sets out her circumstances. 2. The Applicant undertook her training in radiology in Sydney and completed an MRI Fellowship in Melbourne. She completed her specialist qualifications approximately 6 years ago and since that time she has worked at a large corporate radiology practice. Her employment was terminated from 3 March 2017. According to the Medical Council's findings, such practice "was happy with her work and called her "a fantastic radiologist" at her final interview, but they perceived a risk to the reputation of the practice and terminated her employment as a result". 3. The Applicant states that she has earned nothing as a radiologist, or from any other employment, since the date of her suspension, namely 20 March 2017. She has various proceedings in which she is currently engaged. She has disclosed the fact that whilst she has had no income from that time, she has potential exposure to costs of civil and criminal proceedings in the order of $300,000. She has outgoings in respect of a strata levy, Council rates and other property expenses and other living expenses. She has liquid assets comprising a bank account containing approximately $89,000 and owes $5,000 in mortgage repayments to the bank. She purchased the unit in which she currently resides for the sum of $1,695,000 in September 2015. She has an asset apart from her residence, namely a share portfolio worth approximately $350,000. 4. The Applicant states that she does not have sufficient funds to cover her estimated legal costs and her living expenses. The litigation includes defending the charges brought against her, an action against the New South Wales police for executing a search warrant and a claim she is making in defamation. The applicant seeks that the stay be granted to enable her to obtain an income to support herself and be able to meet such costs and the costs of her litigation. 5. No explanation has been provided for the delay in filing the Stay Application from the date of suspension, namely 20 March 2017, and the date of the filing of the Stay Application on 7 July 2017. The Tribunal is informed that the hearing of the criminal charges brought against the applicant could be heard later this year although the proceedings are only at a preliminary stage and the hearing this year is unlikely. Principles 1. The principles which guide the Tribunal in exercising its discretionary power provided by s.43(3) of the NCAT Act to grant a stay are those set out at paragraphs [7]-[9] in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37. In summary, the Tribunal is required to take account of various considerations including the prospects of success; the consequences for the application of the refusal of a stay; the public interest; the prejudice that might be suffered to one party or another depending on whether or not the stay is granted; whether the proceedings would be rendered nugatory for stay were not granted; the length of time taken in applying for the stay. See for example Re Griffiths Grif-Air Helicopters Pty Limited and Civil Aviation Authority (1993) 31 ALD 380 at 384; Australian Securities and Investments Commission and PTLZ [2008] FCAFC 164; Australian Securities and Investments Commission v Administrative Appeals Tribunal [2009] FCAFC 185; Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [6]-[7]. The onus of establishing that a stay is granted rests on the applicant: see Alexander v Cambridge Credit Corporation Limited (1985) 2 NSW LR 685 at 694; Vaughan v Dawson [2008] NSWCA 169 at [16]. 2. The submissions of the Applicant relate to the fact that there has been no conviction for any charges against the Applicant; that the charges are being defended; and, accordingly, she can be viewed as if there is no untoward conduct on her part. The Tribunal notes that during the course of the s.150 inquiry, the Applicant declined to answer whether she was the author of the emails which are the subject of the various charges. 3. As was observed in the Council's decision, reason for the suspension rests upon the basis that the conduct complained of is otherwise than in the public interest, as defined in s.150(1) of the National Law. The Council has clearly acted upon the basis that the Applicant is responsible for the forwarding of the emails which are the subject of the charges, and accordingly the suspension is warranted. 4. The charges are defended, and accordingly at this stage there is no conviction recorded against the Applicant for any of the conduct charged against her. It is not for this Tribunal to weigh up the possibility or probability of the charges being found proven. Until proven, the Applicant is entitled, in respect of such charges, to the presumption of innocence. However the proceedings instituted under the criminal law are entirely separate from disciplinary proceedings. Nature of the protective proceedings 1. The respondent drew the attention of the Tribunal to several decisions where the protective power under s 150 of the National Law has been considered, as discussed hereunder. It will be observed that in each case, the charge concerned was either proven or was an allegation of a capital offence. 2. In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 the Tribunal considered the circumstances in which the applicant was charged with murder of his then wife. No conviction had been recorded against the practitioner. The Tribunal at [48] said: It seems to us, from the plain words of the legislation, that the ability to suspend under section 150 responds, inter alia, to any situation where suspension is appropriate to protect the health and safety of any person or persons, or the public generally. Where the conduct of a medical practitioner whether by act or omission adversely affects their health and safety of those protected by the legislation, then discipline in proceedings the ability to suspend under the legislation is enlivened. This requires an identification of the adverse impact on the health and safety and the establishment of a causal relationship between the adverse impact on the conduct of the medical practitioner. It is not necessary, in our opinion, for there to be actual harm suffered by any person. Because the concept is one of protection, it is sufficient if it can be demonstrated that there is a potential for harm. This approach is fortified by the alternative test of the consideration of the public interest. It would be in the public interest to prevent harm being suffered by a person or persons if it could be predicated that this may occur. Of course, the public interest may accommodate other matters which impact on the honour and integrity of the profession generally. These would include conviction for a serious crime, or failing to Lodge taxation returns for an inordinate period. 1. The Tribunal observed at para [49] that "the provision exists for the protection of the public". 2. In Hanna v Medical Council of NSW [2016] NSWCATOD 108 the Tribunal considered the circumstances of a practitioner who was convicted for the offence of indecent assault of an employee. The practitioner unsuccessfully appealed his conviction and the respondent notified the practitioner of its intention to proceed under s.150 of the National Law. The practitioner sought to stay such proceedings pending his further appeal to the Court of Criminal Appeal. The application for the stay was refused. The Tribunal noted that the appeal was unlikely to succeed. 3. In Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323, the New South Wales Court of Appeal considered the overlap between disciplinary proceedings and criminal punishments. Basten JA said at [55]: although the exercise of professional disciplinary powers may be seen as protective and not as involving punishment (see Zeims (at 286) per Dixon CJ and (at 289) per Fullagar J, quoting Jordan CJ)) there is undoubtedly a degree of overlap between the purposes served by each in their prospective contexts. Present Proceedings 1. Before the Council hearing on 20 March 2017, the applicant acknowledged that she understood that there were three Apprehended Violence Orders issued against her, and that such orders were issued at the request of persons who had received offensive emails allegedly sent by the practitioner. The applicant did not answer most of the questions but claimed that threats had been made to her by one of the persons who had obtained such an order; that he had apologised for his behaviour; that such person had misled the court. The applicant stated that she had obtained an Apprehended Violence Order against that person. The applicant declined to answer questions put to her and alleged that the complaints were "entirely false". A Police Facts Sheet was received by the Council. The applicant claimed she had not seen such document. Irrespective, it is apparent that the Council relied upon much of the information contained in the Police Fact Sheet when it made its decision to suspend the applicant. 2. Arising out of the finding of the Council, the risk which was perceived by the Council was a risk to the public. No risk to any patient was identified. The Council referred to the emails which had been sent to the recipients. It was stated that there was a "significant risk that she has acted in ways that damage the standing of the medical profession". However the applicant has not admitted any conduct. Further, the persons who received emails now have in place Apprehended Violence Orders against the applicant and she has had such an order taken out against one of those persons. It is not suggested that there is any other member of the public who might be at risk from the conduct of the applicant, nor is there any risk that any patient is at risk Rather, the apprehension appears to be that the standing of the profession, and its reputation and confidence in the National Law warrants immediate suspension. 3. At this stage the proceedings, the Tribunal is not asked to consider any final orders but merely to consider whether a stay is warranted. The applicant has made a powerful case that to fund the litigation with which she is currently involved, heavy expenses will be incurred. She has no other source of income. Whilst her share portfolio could be sold, it is questionable whether even the proceeds of such a sale will be adequate to meet the legal expenses of all of her proceedings. The applicant states that she cannot increase the mortgage debt over her premises whilst she has no income. It would be a serious matter if the applicant could not be employed at the only work for which she is qualified and was prevented from raising funds to conduct any defence or litigation. Further, the Tribunal notes that the Council specifically found that the alleged conduct did not arise "in the course of [the applicant's] practice". Nor was there any finding of any serious risk being posed to any person. Accordingly the competence of the applicant is not an issue and her former employer described the applicant as "a fantastic radiologist". 4. The Tribunal acknowledges that there is a distinction between the disciplinary protective measures which might be imposed irrespective of any conduct which may or may not be found to be criminal. However at the present stage, the allegations against the applicant rise no higher than allegations: there has been no conviction for any offence. In these circumstances the Tribunal is satisfied that the applicant, in the absence of any real risk to any patient or to the public, should be permitted to practise as a radiologist until the determination of these proceedings. The Tribunal is mindful that the appeal will be heard promptly before this Tribunal. Such stay will be ordered subject to conditions. 5. When these proceedings came before the Tribunal on 22nd of August 2017, the Council applied, pursuant to s 64 of the NCAT Act for a non-publication order in respect of the names of the persons who had received emails, and the applicant also applied for a non-publication order in view of the widespread media coverage which had been attracted by the criminal proceedings instituted against her. Section 64 empowers the Tribunal to restrict disclosure of proceedings, or of disclosure of the name of any person or of any evidence or the contents of any document. Since the applications were not opposed, the Tribunal granted an interim-non-publication order until further order in respect of all such persons. 6. The principles concerning the grant of a non-publication order have recently been considered in this Tribunal: see Healthcare Complaints Commission v DAC [2017) NSWCATOD 98. Circumstances may arise where the grant of a non-publication order is warranted, as was found to exist in that decision. Each matter will depend upon its facts. 7. Having now reviewed the nature of the proceedings and of the material placed before this Tribunal on 22 August 2017, the Tribunal considers that the interim non-publication order should not be continued. The Tribunal does not consider that the making of such an order is necessary for the administration of justice, and the overriding principle of open justice should prevail, despite the fact that the disclosure of the names of the persons involved may be embarrassing. This is not a ground for the making of a non-publication order: rather, the fundamental rule of the common law "is that the administration of justice must take place in open court": see John Fairfax and Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476-477 per McHugh JA. As was observed by the New South Wales Court of Appeal in Merrilyn Walton v Alexander Sergevich Momot and Anor [1997] NSWSC 143, the general principle provided for [in relation to the grant of a suppression order]: "…is that the Tribunal will sit in public…. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can make an order avoiding such a result." 1. Such principle has been frequently followed: see for example New South Wales Bar Association v Tedeschi (No 3) [2003] NSWADT 174; John Fairfax Group Pty Ltd (Receivers and Managers appointed) & Anor v Local Court of New South Wales & Ors (1991-1992) 26 NSWLR 131; Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31. ORDERS 1. The Tribunal accordingly orders: 1. A stay of the decision to suspend the applicant's registration made by the respondent medical Council of New South Wales made on 20 March 2017, pending further order. 2. The stay order is conditional upon the following condition applying: 1. the applicant is to conduct any radiological practice without contacting directly any clients or patients apart from personally conducting necessary test or procedures on them or with them as part of their treatment or procedure. This condition applies unless there is a medical emergency and the referring health practitioner is unable to be contacted. 1. The interim non-publication order made in respect of the applicant and other persons who were recipients of emails made on 22 August 2017 is vacated. ******** 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 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 05 September 2017 - Under the 'slip' rule: [6] removal of the word 'disciplinary' [25] amend 'disability' to 'disciplinary' 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: 05 September 2017