Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kaye v Health Care Complaints Commission [2018] NSWCATAP 146 Hearing dates: 17 May 2018 Date of orders: 07 June 2018 Decision date: 07 June 2018 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President J Kearney, Senior Member Decision: 1. Leave is refused for the appeal to be made on questions other than questions of law. 2. The appeal is dismissed. Catchwords: APPEAL – question of law – whether the Tribunal exercised its discretion in a manner which was so unreasonable that the decision should be set aside – whether Tribunal breached the rules of procedural fairness Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 80 Health Care Complaints Act 1993 (NSW), s 41A Cases Cited: Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 House v R [1936] HCA 40; (1936) 55 CLR 499 Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 NSW Bar Association v Meakes [2006] NSWCA 340 Category: Principal judgment Parties: David Kaye (Appellant) Health Care Complaints Commission (Respondent) Representation: Counsel: G Boyce (Appellant) V Hartstein (Respondent) Solicitors Health Care Complaints Commission (Respondent) File Number(s): AP 18/10473 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: Kaye v Health Care Complaints Commissioner [2017] NSWCATOD 157 Kaye v Health Care Complaints Commission (No 2) [2018] NSWCATOD 36 Date of Decision: 31 October 2017, 14 February 2018 Before: A Britton, Principal MemberA Lowe, General Member File Number(s): 2016/00378460 REASON FOR DECISION Overview 1. Following disciplinary proceedings, the Tribunal permanently prohibited Mr Kaye from providing any "health service" in either a paid or voluntary capacity. Mr Kaye has appealed to the Appeal Panel from that decision. In substitution for the orders made by the Tribunal, Mr Kaye seeks orders that he be supervised for 12 months when providing a health service. He made suggestions about the orders that could be made about the appointment, qualifications and payment of the supervisor. 2. Mr Kaye's first ground of appeal was that when deciding whether to permanently prohibit him from providing any health service, the Tribunal exercised its discretion in a manner that was so unreasonable that the decision should be set aside. A second ground of appeal was that the Tribunal had breached the rules of procedural fairness. 3. The Tribunal did not make either of these errors. We also refuse permission for Mr Kaye to appeal on grounds other than questions of law. The appeal is dismissed. Tribunal's decisions 1. The Tribunal was reviewing a decision made by the Health Care Complaints Commission to prohibit Mr Kaye from providing mental health services in a paid or voluntary capacity for six months. At the end of that period the Commission decided that Mr Kaye must not provide mental health services unless he satisfies the Commission that he had successfully completed a Level 5 qualification in counselling from an accredited institution. 2. In its first decision, Kaye v Health Care Complaints Commissioner [2017] NSWCATOD 157, the Tribunal found that Mr Kaye poses a real and material risk to the safety of the public: Health Care Complaints Act 1993 (NSW) (HCC Act), s 41A(1)(c). Having made that finding, the Tribunal had to decide whether orders should be made under s 41A(2) of the HCC Act: (2) The action that the Commission may take under this section is either or both of the following: (a) make an order (a "prohibition order") that does any one or more of the following: (i) prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently, (ii) places such conditions as the Commission thinks appropriate on the provision of health services or specified health services by the health practitioner for the period specified in the order or permanently, Note: Section 102 (3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (b) cause a public statement to be issued in a manner determined by the Commission identifying and giving warnings or information about the health practitioner and health services provided by the health practitioner. … 1. In the first decision, the Tribunal expressed a preliminary view that it was appropriate that orders be made under s 41A(2) but that the orders made by the Commission were insufficient to protect the health and safety of the public. The Tribunal gave the following reasons for that preliminary view: [191] … As set out above, in the opinion of the ACA, a Level 5 qualification is insufficient to equip a person providing counselling services, to operate independently in private practice. While the opinion of the ACA is not determinative, it nonetheless warrants careful consideration. For the past decade Mr Kaye has worked exclusively in private practice apparently without supervision. There is no evidence to suggest this Mr Kaye has plans to change this arrangement. This raises the question of whether it would be more appropriate if Mr Kaye was required to hold a Level 7 qualification. [192] But a more fundamental concern is whether the type of risk Mr Kaye poses to the health and safety of the public is capable of being remedied by obtaining further educational qualifications and/or an appropriate level of clinical supervision. The long history of Mr Kaye misrepresenting his qualifications together with the evidence of providing health services he is not qualified to provide, raises concerns about Mr Kaye's suitability to practice as a counsellor. Mr Kaye's response when notified of the complaint made by Client A was to accuse her of having fabricated evidence and to attribute this to a severe personality disorder. His readiness to make such allegations raises further concerns about his suitability to provide mental health services. [193] At the hearing we indicated that if we were to consider making orders under s 41A(2) different in form to those imposed by the Commission, we would give the parties the opportunity to make further submissions. We have listed the matter for a directions hearing to consider the most appropriate manner to determine this issue. 1. After handing down those reasons, the Tribunal invited the parties to provide written submissions about whether a "prohibition order" should be made under s 41A(2) of the HCC Act and, if so, what form such an order should take. The matter was listed for hearing on 14 February 2018 to give the parties the opportunity to speak to their written submissions. The Tribunal refused an application by Mr Kaye for an adjournment of that hearing. 2. At the conclusion of the second hearing the Tribunal made the following orders: 1 The Respondent's decision made on 06 October 2016, made under the Health Care Complaints Act 1993 (NSW), to prohibit the applicant from providing any counselling of any description and any other mental health services after 6 March 2017, is varied. 2 In substitution for that part of the decision prohibiting the applicant from providing, after 6 March 2017, any counselling of any description and any other mental health services until he satisfies the Respondent that he has successfully completed a Level 5 qualification in counselling (ie a Diploma of Counselling) from an accredited institution, the following decision is made. 3 Pursuant to s 41A(2) of the Health Care Complaints Act 1993 (NSW), the applicant is permanently prohibited from providing any "health service" in either a paid or voluntary capacity. Note: For the purpose of this order "health service" carries the meaning given by s 4 of the Health Care Complaints Act, and includes but is not limited to, the following types of health services: mental health counselling, hypnotherapy, psychotherapy and providing medico-legal opinion or advice relating to personal injury or similar claims. 4 The request by Health Care Complaints Commission for costs is dismissed. Grounds of Appeal Appeal on questions of law 1. Mr Kaye is entitled to appeal from the Tribunal's decision "on a question of law": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80. The following purported grounds of appeal on a question of law were listed in the Amended Notice of Appeal: 1. The Tribunal erred in ordering that the Appellant be "permanently prohibited" from providing any health service. 2. The Tribunal erred in finding that the Appellant poses a risk to the health and safety of the public. 3. In the alternative the Tribunal erred in finding that the appellant poses a risk to the health and safety of the public on a permanent or indefinite basis. 4. Further or in the alternative, the Tribunal erred in finding that any risk posed by the Appellant to the health and safety of the public could not or cannot be remedied by: a. the Appellant obtaining a Level 5 qualification in counselling; b. the maintenance of the undertakings already proffered by the Appellant; and c. placing conditions on specified health services provided by the Appellant (post the Appellant returning to practice) on a temporary or permanent basis (for example, independent supervision, review and/or auditing). 1. None of these grounds of appeal identify a question of law. Each ground merely asserts that the Tribunal made an error in making certain findings. In written submissions filed before the hearing, Mr Kaye stated that the question of law was that, it was not "reasonably necessary in the execution of the protective purpose of the HCC Act" to make order 3. That quote comes from the Court of Appeal's decision in NSW Bar Association v Meakes [2006] NSWCA 340 at [113] where Basten JA held that: 113 The point sought to be made in the authorities is, no doubt, that the Court or Tribunal making an order in disciplinary proceedings must have squarely in mind the protective purpose of the order, in the public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose. 1. The Tribunal referred to this passage at [34] of its second decision, Kaye v Health Care Complaints Commission (No 2) [2018] NSWCATOD 36. 2. In written submissions filed after the hearing, Mr Kaye expanded on the reasonableness ground by relying on Minister for Immigration and Citizenship v Li 2013] HCA 18; (2013) 249 CLR 332 and House v R [1936] HCA 40; (1936) 55 CLR 499. 3. Mr Kaye did not identify a question of law in the Notice of Appeal. On the basis of his submissions, we understand that he intended to appeal on the ground that the Tribunal exercised its discretion under s 42A(2)(a) of the HCC Act so unreasonably that the Tribunal's decision should be set aside. The Commission also understood this to be Mr Kaye's first ground of appeal. 4. The exercise of the Tribunal's discretion will miscarry if it makes an error of the kind set out in House v R [1936] HCA 40; (1936) 55 CLR 499. Those kinds of errors were summarised by the Court of Appeal in Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 at [14]. In particular, the Tribunal will have made a legal error if it: (a) made an error of legal principle, (b) made a material error of fact, (c) took into account some irrelevant matter, (d) failed to take into account, or give insufficient weight to, some relevant matter, or (e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning. 1. In Minister for Immigration and Citizenship v Li the High Court interpreted the unreasonableness ground broadly. Hayne, Kiefel and Bell JJ held that legal unreasonableness extends to a decision which lacks "an evident and intelligible justification" and one which involves an error in the exercise of discretion, such as where the decision-maker acts on a wrong principle or takes irrelevant matters into consideration: [75], [76]. 2. In support of this ground of appeal, Mr Kaye stated that "the unreasonableness of the prohibition order can be objectively drawn". The only basis on which he submitted that this was the case is expressed at [6] of the written submissions filed after the hearing: In this regard, given the Tribunal's finding as to the scope of the term "health service", Order 2 made by the Tribunal below has no work to do, and the Appellant's compliance with order 2 (having regard to the nature of the counselling services provided by the Appellant over 25 years) goes way beyond matters of specific or general deterrence in terms of the protective purpose of the Health Care Complaints Act 1993 (NSW). 1. We accept that Order 2 has no work to do. It introduces Order 3. Order 3 is the order made in substitution for the Commission's original decision. The only way to make sense of Mr Kaye's submission is to assume that he meant to refer to Order 3. If that is correct, the submission is that Mr Kaye had been providing counselling services for 25 years. The order prohibiting him from providing any health service "goes way beyond matters of specific or general deterrence in terms of the protective purpose" of the HCC Act. 2. The Commission, and the Tribunal on review, can make an order that "prohibits the health practitioner from providing health services or specified health services for the period specified in the order or permanently". (Emphasis added.) A "health service" is defined in s 4 to include a "mental health services". The Tribunal found at [57] and [66] of the first decision, that the counselling services Mr Kaye was providing came within the definition of a "health service" because they were "mental health services". At [38] of the second decision, the Tribunal explained why it had made the prohibition order in relation to all health services, not just in relation to mental health services: … we have decided it is appropriate to make a prohibition order which is both permanent and extends to all health services given the seriousness of the conduct found by us to have contravened the Code, the absence of any evidence of rehabilitation, insight or remorse and the real and material risk that the conduct found by us to contravene Code may be repeated if Mr Kaye were to continue to provide health services. We are not satisfied that the educational qualification condition imposed by the Commission in the original decision, or the supervision condition foreshadowed by Mr Kaye are likely to reduce that risk to one that is not real and material. Alternative conditions which might achieve that purpose are not apparent from the available material. For these reasons, we have decided to make the orders sought by the Commission. 1. Mr Kaye has not explained how the Tribunal's order fits within the tests outlined in House v R or Minister for Immigration and Citizenship v Li. The Tribunal set out its reasoning in detail. There is an evident and intelligible justification for its decision. 2. The second ground of appeal on a question of law was that the Tribunal had breached procedural fairness. In the written submissions made before the hearing, Mr Kaye explained that he was not appealing from the Tribunal's decision to refuse to adjourn the second hearing. Rather, Mr Kaye submitted that the Tribunal should have given him an opportunity to seek further legal advice so that he could provide proper particulars of his supervision proposal. He said that it was a breach of procedural fairness for the Tribunal not to have given him that opportunity. 3. We agree with the submission made by the Health Care Complaints Commission, that these two submissions are incompatible. In order to seek further legal advice Mr Kaye would have needed an adjournment. Given that he did not appeal from the Tribunal's decision to refuse an adjournment, there is no scope for the Appeal Panel to find that the Tribunal breached procedural fairness by failing to grant an adjournment. Appeal on grounds other than a question of law 1. Mr Kaye is entitled to apply for leave to appeal on grounds other than a question of law: NCAT Act, 80(2)(a). In oral submissions to the Appeal Panel Mr Kaye's counsel, Mr Boyce, stated that despite what appears in the Amended Notice of Appeal, he was not seeking leave to appeal on grounds other than a question of law. Notwithstanding that concession, when he filed a supplementary outline of submissions after the hearing, he sought leave to appeal relying on the grounds set out at 6A of the Amended Notice of Appeal. Those grounds merely recite some of the circumstances in which an Appeal Panel may exercise its discretion to give leave for an appeal to be made on questions other than a question of law. No particulars of the grounds are given and no submissions made in support of those grounds. For those reasons we refuse to give leave. The appeal hearing 1. The appeal was listed for hearing on 17 May 2018. Neither Mr Kaye, nor his counsel, Mr Boyce, attended. We briefly adjourned the hearing and arranged for a Registry officer to telephone Mr Boyce. Mr Boyce told that officer that he thought the hearing was listed for the following day, 18 May 2018. Mr Boyce agreed to participate in the hearing by phone as long as he was given an opportunity to make further written submissions. Ms Hartstein, counsel for the Respondent, made oral submissions at the hearing. Mr Boyce also made some short oral submissions in response to questions we asked. We directed Mr Boyce to file and serve any further written submissions by 1 pm 18 May 2018. We directed Ms Hartstein to file and serve any submissions in reply by 23 May 2018. Both parties complied with those directions and we have taken that material into account in making this decision. Orders 1. Leave is refused for the appeal to be made on questions other than questions of law. 2. The appeal is dismissed. ********** 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 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: 07 June 2018