Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 Hearing dates: 29, 30, 31 July and 1, 2, 5 and 6 August 2019. Date of orders: 08 August 2019 Decision date: 08 August 2019 Jurisdiction: Occupational Division Before: Boland, ADCJ, Deputy President Decision: 1. The application by Dr John Joseph Grygiel for a stay of proceedings pending amendment of the complaint is dismissed. 2. The application of Dr John Joseph Grygiel for the strike out of the complaint of improper and unethical conduct is dismissed. Catchwords: PROFESSIONS AND TRADES – registered health practitioner – medical practitioner – consideration of whether or not appropriate to grant a stay of proceedings or to strike out a complaint Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Attorney General for New South Wales v Gatsby [2018] NSWCA 254 Bar- Mordecai v Health Care Complaints Commission [2002] NSWCA 192 Barton v The Queen (1980) 147 CLR 75 BTH v The Public Guardian [2017] NSWCATAP 10 Chen v Health Care Complaints Commission [2017] NSWCA 186 Council of the Law Society of NSW v Clarke [2017] NSWCATOD 142 Fraser v Health Care Complaints Commission [2015] NSWCA 421 Health Care Complaints Commission v Ryken [2016] NSWCATOD 58 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Kirby [2019] NSWCATOD 47 Health Care Complaints Commission v Little [2016] NSWCATOD 146 Jago v The District Court of NSW and Ors (1989) 168 CLR 23 Licul v Corney (1975) 180 CLR 213 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978) Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Quasim v Health Care Complaints Commission [2015] NSWCA 282 Walton v Gardiner (1993) 177 CRL 378 Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) Dr John Joseph Grygiel (Respondent) Representation: Counsel: Ms K Stern SC with Ms L Coleman (Applicant) Mr D Graham SC with Ms R Mathur (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2018/00058188 Publication restriction: On 29 June 2019 an order was made under Schedule 5D cl 7 of the Health Practitioner Regulation National Law prohibiting publication of the name of the patients set out in the schedule to the complaint. ex tempore REASONS FOR DECISION Introduction 1. The Tribunal is presently engaged in hearing an inquiry into a complaint brought by the Health Care Complaints Commission (the HCCC) under the Health Practitioner Regulation National Law (NSW) (the National Law) into the conduct of Dr John Joseph Grygiel (the practitioner) (the substantive proceedings). These reasons are in respect of an application, initially made orally, by Mr D Graham SC, Senior Counsel (Mr Graham) for the practitioner. 2. At my request Mr Graham, and his junior, Ms R Mathur, provided in writing yesterday morning, 7 August 2019, a document setting out the relief sought, and the power to be exercised in granting that relief. Later, on 7 August 2019 at approximately 10:30am, I also received a short written outline of submissions from counsel for the HCCC (Ms K Stern SC and Ms L Coleman) at approximately 10.30am. Although no direction was made by me for filing submissions in reply, at approximately 4pm, I was advised by the registry that submissions in reply had been forwarded by email to the registry at 3.43pm. I have considered all the submissions provided 3. The orders sought on behalf of the practitioner are as follows: A stay of the proceedings until such time as the applicant properly particularises its complaint under s 139B (1) (l) of the National Law, or alternatively That the complaint under s 138B (1) (l) should be struck out on the basis it has not been properly particularised. 1. It is submitted on behalf of the practitioner "In either case, it is an abuse of process to maintain this part of the proceedings in the absence of proper particularisation". 2. In dealing with the Tribunal's power to make the orders sought it is submitted: The power to order a stay or to strike out a complaint is found in the enabling legislation or by necessary implication. 1. The written document provided to the Tribunal on 7 August 2019 by the practitioner's counsel refers then to the objects and guiding principles in the National Law (s 3 and s 3A) and gives emphasis to the principle that the "scheme is to operate in a transparent, accountable, efficient and fair way" [original emphasis]. Reference is also made to the objects underpinning the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and in particular reference is drawn to s 3(d) which provides the Tribunal is established to enable it "(d) to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible". [original emphasis] Reference is also made to s 36 of the CAT Act and the need to resolve matters in such a manner that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the matter. Statutory provisions 1. Counsel for the practitioner submit that the power to make the orders sought can be found in s 29(2) of the CAT Act (the power to make an interlocutory order), s 38(1) a provision which enables the Tribunal to determine its own procedure, and s 53(1), which provides the Tribunal may itself amend a document. 2. Section 4 of the CAT Act defines an interlocutory decision as: (a) the granting of a stay or adjournment … (e) an evidential matter. 1. Section 165B (5A) of the National Law provides as follows: (5A) The Tribunal, when constituted to make an ancillary decision or an interlocutory decision within the meaning of the Civil and Administrative Tribunal Act 2013, is to be constituted by the Tribunal List Manager or the member referred to in subsection (2) (a). 1. I pause to note in the recent decision of Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978 Adamson J explained that s 165B (5A) makes in plain that any interlocutory decision of the Tribunal must be made by a member of the Tribunal who is either the person presiding at the hearing or the List Manager, not the panel. 2. Neither party's submissions refer to Schedule 5 of the CAT Act. Part 6 of Schedule 5 deals with appeals from decisions in the Occupational Division of the Tribunal. Clause 9 of Part 6 provides as follows: Subject to any interlocutory order made by the court concerned, an appeal under this clause does not affect the operation of the Division decision under appeal or prevent the taking of action to implement the decision. 1. While there is no doubt that the Tribunal has a statutory power to grant a stay pending an appeal in respect of an internal appeal, Cl 9 of Schedule 5 of the CAT Act makes it clear that any interlocutory order, including a stay pending an appeal, is to be made by the relevant court to which the appeal is made. This provision suggests that the legislature recognised that the Tribunal does not have, as do inferior courts, either a statutory power or an incidental power to grant a stay pending an appeal or an application for leave to appeal. 2. The next source of power relied on by counsel for the practitioner is s 53 of the CAT Act. Section 53 provides as follows: 53 Amendments and irregularities (1) The Tribunal may, in any proceedings, make any amendments to any document (for example, an application or appeal) filed in connection with the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Tribunal thinks fit, but may only be made after giving notice to the party to whom the amendment relates. (3) If a provision of this Act or the procedural rules is not complied with in relation to the commencement or conduct of proceedings, the failure to comply is to be treated as an irregularity and does not nullify the proceedings or any decision in the proceedings unless the Tribunal determines otherwise. (4) The Tribunal may, however, in dealing with any such irregularity, wholly or partly set aside the proceedings or a decision in the proceedings. 1. The terms of this section make it clear that any amendment is one that the Tribunal, not the parties, considers necessary, subject to the procedural fairness considerations set out in s 53 (1) (b). It is submitted on behalf of the practitioner this provision may be relied on to strike out the claim under s 139B (1) (l) of the National Law. 2. Counsel for the practitioner also refer to s 38 (1) of the CAT Act. Section 38 provides: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2): (a) the Tribunal must observe the rules of evidence in: (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note. Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal: (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing—may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases. Background to the application 1. At the commencement of the substantive proceedings an issue arose about the manner in which an Amended Complaint relied on by the HCCC is drafted. Mr Graham orally submitted first, that the National Law, properly interpreted, does not provide that conduct, asserted to constitute unsatisfactory professional conduct under s 139B (1) (a), can also form the basis of a claim of unsatisfactory professional conduct under s 139B (1) (l) of that law. Secondly, he submitted that it is procedurally unfair, unless the particulars of conduct relied on under s 139B (1) (l) are provided to the practitioner, for the matter to proceed. Mr Graham submits use of the "and or" methodology used in the complaint is deplorable. He refers to and adopts this expression from the comments of Basten JA in Fraser v Health Care Complaints Commission [2015] NSWCA 421. He submits the drafting causes uncertainty and is unfair to the practitioner. 2. On the fifth day of the hearing, the practitioner's senior counsel, made an oral application for a stay of the proceedings pending a decision in respect of the complaint. That application was foreshadowed earlier in the hearing. 3. The HCCC opposes the granting of a stay. Senior counsel for the HCCC, Ms Stern, then submitted that there is no error in the Amended Complaint in relying on the same particulars to establish unsatisfactory professional conduct under s 139B (1) (a) and (l). She also submitted there is no procedural unfairness to the practitioner in the same particulars being relied on as relevant to s 139B (1) (a) and or s 139B (1) (l). This position is reiterated in the short written submissions provided by both counsel for the HCCC on 7 August 2019. It is noted by the HCCC that the issues now ventilated arise some 17 months after the HCCC filed and served the complaint. I note that this issue is now only raised after five directions hearings and two case conferences which were held to ensure this matter could be dealt with as justly, quickly and as cheaply as the issues demand in the four weeks allocated for the hearing. 4. On 6 August 2019 Mr Graham re-agitated his application for a stay. I directed that Mr Graham should provide to the Registrar in writing the precise application he wished to make, and to set out the power under the National Law or the CAT Act to grant the stay sought. 5. On 6 August 2019 Ms Stern orally indicated that she had instructions to seek leave to further amend the Amended Complaint in this matter. Her proposed amendment is that for any relevant complaint that particular (a) of each complaint now reads as follows: (a) There was no published data supporting the use of a flat dose of 100mg Carboplatin; and or (ai) the practitioner knew the matters set out in particular (a) or was recklessly as to whether or not that was the case. 1. In the submissions in reply, at para 4, counsel for the practitioner puts in issue that the amendment proposed covers issues raised in the opening by Ms Stern. Reference is made to a submission that "off protocol" prescribing was unethical, and that in respect of the former Greater Western Area Service cohort of patients a particular which asserts "there is no record of any discussion with Patient prior to the chemotherapy concerning the availability of reasonable alternatives to the prescribing regimen or the relative efficacy of the alternate treatment options" to mean that these patients could have sought alternate treatment in a venue, such as St Vincent's, to obviate any problems of toxicity arising during chemotherapy treatment which could require hospitalisation. Relevant principles applicable to a stay application 1. The principles relevant to a stay pending an appeal, a permanent stay or a stay on terms are well known and uncontroversial. 2. In essence, the power to grant a permanent stay in proceedings or a stay on the basis that the proceedings are an abuse of process is regarded in the authorities as an interlocutory order unless the order finally disposes of the proceedings (see Licul v Corney (1975) 180 CLR 213; Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35). The granting of a stay in criminal proceedings requires a finding of a fundamental defect which goes to the root of the hearing, so that if the hearing was allowed to proceed there would be nothing a trial Judge could do to relieve the unfair consequences (see Barton v The Queen (1980) 147 CLR 75). The power is to be exercised sparingly and only in exceptional circumstances (see Jago v The District Court of NSW and Ors (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CRL 378). Authorities dealing with stay applications in the Tribunal 1. The question of the Tribunal's power to grant a permanent or limited stay of proceedings was explored in Council of the Law Society of NSW v Clarke [2017] NSWCATOD 142. 2. The panel in that case (Marks ADCJ, L Pearson and J Schwager), after an extensive consideration of the provisions of the CAT Act and common law authorities on whether a permanent stay is an interlocutory or final order, concluded the Tribunal had the power to grant the stay sought. The Tribunal explained: It seems to us that it would be anomalous that a tribunal having the functions and powers bestowed upon this Tribunal should not have the implied power to ensure that its own processes were not the subject of abuse and that its procedures were not capable of being stayed by it to avoid such abuse. There seems no reason why, as a matter of logic, these basic powers which repose in all courts including inferior courts created by statute should not also extend by the application of the same principles to the work of this Tribunal. We regard such a power to preclude the abuse of its processes by the grant of a stay of proceedings, whether permanent or conditional or otherwise as representing an inherent power in the sense that that expression is used in the authorities to which we have referred, and excluding, as we emphasise, the kind of inherent power possessed by a court of common law such as the Supreme Court of NSW. 1. An earlier decision of the appeal panel BTH v The Public Guardian [2017] NSWCATAP 10 concluded the Tribunal lacked the necessary power, in the circumstances of that case, to grant a permanent stay as an interlocutory order. 2. Written submissions from the counsel for the HCCC in response to the written outline received from counsel for the practitioner also referred to the Tribunal's decision in Council of the Law Society v Clarke as well as the more recent discussion in Health Care Complaints Commission v Kirby [2019] NSWCATOD 47. In the latter decision the Tribunal notes the matter is a controversial issue that remains to be resolved. 3. Counsel for the HCCC's written submissions helpfully summarise comments made in various Court of Appeal authorities on the topic. The submissions note that in Lindsay v Health Care Complaints Commission [2005] NSWCA 356 the majority of the Court assumed the Medical Tribunal had power to stay proceedings as an abuse of process. However, Mason P expressly reserved his views on the issue. 4. Reference is made to the Court of Appeal decision in Walton v Gardiner (1993) 177 CRL 378 at 395 in which the plurality in the High Court address the power of the Supreme Court to grant a permanent stay of proceedings. I accept there is no doubt that the Supreme Court or the Court of Appeal can grant a permanent stay of proceedings commenced in this Tribunal. 5. In the submissions in reply the practitioner's counsel at para 4 says: In response to the applicants filed written submissions we note that they do not address in any way the statutory provisions of the NCAT Act which unambiguously confers a power to grant a stay: sec 29(2). It is not necessary to prove an abuse of power to obtain relief under the provisions referred to in the initial submissions. Questions of fairness, certainty and clarity demand the relief sought by the respondent. 1. While there is no doubt that the Tribunal has a statutory power to grant a stay pending an appeal in respect of an internal appeal, Cl 9 of Schedule 5 of the CAT Act makes it clear that any interlocutory order, including a stay pending an appeal, is to be made by the relevant court to which the appeal is made. As I have earlier noted, this provision suggests that the legislature recognised that the Tribunal does not have, as do inferior courts, either a general statutory power or an incidental power to grant a stay. It follows I do not accept the practitioner's submission that s 29(2) "unambiguously" confers a power to grant a stay. That provision must be read in the context of the internal appeal provisions in the CAT Act, namely the power to grant a stay pending the determination of an internal appeal. Issues to be determined in this interlocutory application 1. I discern the following matters are raised in this application: 1. does the fact that the whole panel heard oral submissions on the proposed interlocutory relief sought vitiate any decision I make as the member presiding? (see Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978); 2. the proper construction of s 139B (1) including in particular s 139B (1) (l); 3. whether I have power to grant a stay of the proceedings unless and until the HCCC amends its complaint to include further particulars of the improper and unethical conduct relied on; 4. whether I have the power to strike out a complaint relied on by the HCCC; and 5. if I have the power to strike out a complaint, is it appropriate that I exercise that power? Section 139B (1) of the National Law 1. Section 139B (1) of the National Law provides as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of— (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. (d) Failure to comply with decision or order of Committee or the Tribunal A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or the Tribunal in relation to the practitioner. (e) Contravention of requirement under Health Care Complaints Act 1993 A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993. (f) Accepting benefit for referral or recommendation to health service provider Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for— (i) referring another person to the health service provider; or (ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter. (g) Accepting benefit for recommendation of health product Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct. (h) Offering a benefit for a referral or recommendation Offering or giving a person a benefit as inducement, consideration or reward for the person— (i) referring another person to the registered health practitioner; or (ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter. (i) Failure to disclose financial interest in giving referral or recommendation Referring a person to, or recommending that a person use or consult— (i) another health service provider; or (ii) a health service; or (iii) a health product; if the practitioner has a financial interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation. (j) Engaging in overservicing Engaging in overservicing. (k) Supervision of assistants Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. (2) For the purposes of subsection (1)(i), a registered health practitioner has a financial interest in giving a referral or recommendation— (a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company; or (b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company; or (c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner; or (d) in any circumstances prescribed by the NSW regulations. (3) For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class. (4) In this section— benefit means money, property or anything else of value. recommend a health product includes supply or prescribe the health product. supply includes sell. 1. There is no dispute that the definition of unsatisfactory professional conduct is a non-exhaustive one. The proceedings 1. To understand the issues to be determined in this application it is necessary that I refer briefly to the substantive proceedings. 2. The proceedings were commenced in the Tribunal by the filing of an application for disciplinary orders and findings with a complaint annexed on 21 February 2018. As earlier noted five directions hearings have been held as well as two Case Conferences where attempts were made to narrow issues in dispute, provide a trial plan and make orders for concurrent expert evidence. No issue was raised by the practitioner's lawyers about the complaints or particulars of complaint at any of those events. No application for the provision of further and better particulars of the complaint was agitated on behalf of the practitioner. 3. The substantive proceedings involve complaints involving 52 patients treated respectively at Macquarie University Hospital, St Vincent's Hospital, Darlinghurst and in the area formerly known as the Greater Western Health Service (Orange and Bathurst Hospitals). The complaints generally fall into three broad areas: 1. asserted inappropriate prescribing complaints; 2. complaints relating to asserted failure to obtain informed consent of patients to the treatment regime prescribed; and 3. asserted failure to maintain records in accordance with the relevant regulation. 1. The first and second broad areas are brought under s 139B (1) (a) and/or s 139 (1) (l) of the National Law. All the particulars in respect of each broad area (except the record keeping complaint) are relied to support the claims of unsatisfactory conduct under the two identified sub-sections of s 139B. 2. This is best demonstrated by setting out the complaint as "pleaded" in respect of patient M 1, as follows: PATIENT M1 Complaint One A [The practitioner is] guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates that the knowledge, skill or judgment 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. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the Particulars are taken together, they justify a finding of unsatisfactory professional conduct. Background to Complaint One A Patient M1 was diagnosed with squamous cell carcinoma (SCC) of the left hypopharynx in January 2011. Patient M1 was 81 years of age at the date of diagnosis. On 2 February 2011 Patient M1 was referred to the practitioner for definitive chemoradiotherapy treatment. PARTICULARS OF COMPLAINT ONE A 1. The practitioner failed to provide appropriate care and treatment to Patient M1 in that he prescribed a flat dose, namely, a fixed dose administered regardless of the patient's characteristics, ("flat dose") of 100mg Carboplatin on six occasions between 9 February 2011 and 16 March 2011 inclusive, in circumstances where: (a) there was no published data supporting the use of a flat dose of 100mg Carboplatin; (b) it was likely that Patient M1 would derive no benefit from chemotherapy by reason of his advanced age at diagnosis; (c) the practitioner did not propose radiation therapy alone, which ought to have been considered if Patient M1 was not of sufficient fitness to tolerate a high-evidence regimen ("high-evidence regimens" are based on large trials or meta-analyses of trials) such as treatment with Cisplatin. 2. The practitioner failed to obtain adequate and informed consent from Patient M1 for the chemotherapy regimen prescribed on 2 February 2011, referred to in particular 1, in circumstances where: (a) the practitioner did not advise Patient M1 prior to chemotherapy of the absence of any published data supporting a flat dose of 100mg Carboplatin; (b) the practitioner did not advise Patient M1 adequately or at all prior to chemotherapy of the existence of alternative treatment options, including radiotherapy alone or Cetuximab in conjunction with radiotherapy; (c) the practitioner did not advise Patient M1 adequately or at all prior to chemotherapy of the significance of his advanced age at diagnosis; (d) the practitioner did not inform Patient M1 prior to chemotherapy of the likelihood that he would derive no benefit from any form of chemotherapy by reason of his age. COMPLAINT ONE B Is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that the practitioner has contravened the Regulations made under the National Law. Background to Complaint One B As for Complaint One A. PARTICULARS OF COMPLAINT ONE B 1. The practitioner failed to maintain and keep adequate records of his care and treatment of Patient M1 contrary to Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 in that: (a) the practitioner failed, contrary to clause 1(2)(a), 1(3), 1(5), 2(1) and 2(2) of Schedule 2, to record any discussion with Patient M1 prior to chemotherapy concerning alternative treatment options to the prescribed regimen or the relative efficacy of those alternative treatment options; (b) the practitioner failed, contrary to clause 1(2)(a), 1(3), 1(5), 2(1) and 2(2) of Schedule 2, to record the practitioner's clinical opinion that Cisplatin was contraindicated by reason of Patient M1's advanced age at diagnosis. 1. As noted above, Ms Stern has advised she has instructions to seek to further amend the complaint by adding a further particular to particular 1 (a). Section 139B (1) submissions of the practitioner's counsel 1. As I discern it, the thrust of the application made on behalf of the practitioner is: 1. that the proper construction of s 139B (1) (a) and s 139B (1) (l) means that, if established, those categories, of unsatisfactory professional conduct are separate and discrete categories of conduct. If that is correct, then the conduct asserted under s 139B (1) (a) must be of a different nature to the conduct under s 139B (1) (l). Because there is no identification of which conduct is said to fall under s 139B (1) (l) as distinct from conduct under s 139B (1) (a) it is said that the practitioner is denied procedural fairness as he does not know the case he has to meet.[transcript 2 August 2019 p 268] 2. It is further submitted on behalf of the practitioner that he is prejudiced by the lack of specific pleading of just what conduct is said to be improper or unethical [transcript 1 August 2019 p 227]. 1. Mr Graham, over the course of submissions made during the hearing, says that the decision of the majority of Court of Appeal in HCCC v King [2011] NSWCA 353 either does not address this issue, or I should not follow that decision. Rather he draws attention to the judgment of MacFarlan JA at [50]-[51] of his Honour's reasons. He relies of the comments about the pleading of complaints in three decisions of Basten JA in Fraser v Health Care Complaints Commission [2015] NSWCA 421; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 and Lucire v Health Care Complaints Commission [2011] NSWCA 99. He also refers to the comments of his Honour in Chen v Health Care Complaints Commission.[2017] NSWCA 186. 2. On the question of statutory construction, Mr Graham submits that the words "Any other" must be given their ordinary meaning, as must the distinction between the words "in connection" with the practice of medicine in s 139 (1) (a) and the words "in relation to" the practice of medicine and the purported practice of medicine" in s 139B (i) (l). In the alternate, Mr Graham submits that if the same underlying facts can give rise to unsatisfactory professional conduct under each provision, there must be a material difference between the type of conduct set out in particulars under s 139 (1) (a) and s 139 (1) (l) and that conduct must be particularised. 3. It follows, because identical particulars are relied on by the HCCC to establish conduct under s 139B (1) (a) and s 139B (1) (l), Mr Graham says the practitioner is denied procedural fairness in knowing how to respond to the complaints. 4. Thus, he submits that the proceedings should be stayed until the complaint is amended by the provision of further particulars or that I strike out the alternate pleading under s 139B (1) (l). Submissions of the HCCC 1. Ms Stern, senior counsel for the HCCC submits that unsatisfactory conduct may be established arising out of the same facts under both s 139B (1) (a) and s 139B (1) (l). Ms Stern submits that in construing s 139B it is necessary to do so having regard to the objects and principles underpinning the National Law and in particular s 3A namely that exercising any function under the National Law the protection of the health and safety of the public must be my paramount consideration. Thus, she submits I should give a wide and beneficial construction to the statutory provisions. 2. Ms Stern submits that: As to the question of statutory construction, in my submission one has to construe the section, s 139B and what was intended by parliament by the use of the word "other" in s 139B(1)(l). That's the sole question. The construction that I advocated in opening is the construction that we say is plainly correct and we say that gives work to the word "other" to do, namely, when contrasted with other instances of improper or unethical conduct, that that does not preclude there being an allegation or a particular under s 139B(1)(a) and one under s 139B(l) [transcript 2 August 2019 p 271]. 1. Ms Stern went on to submit: Indeed, it would be contrary to those public interests were the tribunal precluded from making a finding that conduct is unethical and improper merely by virtue of the fact that it also falls beneath the standard, nor is there any reason in the legislation to say that the same conduct can't be relied upon under two different particulars or sub-paragraphs of s 139B (1) The authorities. 1. As Mr Graham has directed my attention to a number of relevant disciplinary decisions, it is appropriate that I now turn to the relevant discussion in the identified decisions. In Fraser v Health Care Complaints Commission Basten JA explained at [6]-[8]: The document headed "Further amended complaint" set out two complaints, the first alleging "unsatisfactory professional conduct", a term defined in s 139B(1) of the Health Practitioner Regulation National Law (NSW) ("the National Law"), the second alleging "professional misconduct", a term defined in s 139E of the National Law. Thus, complaint one commenced by stating that the practitioner was guilty of unsatisfactory professional conduct because the practitioner had: "(i) demonstrated that the knowledge or judgment possessed, or care exercised by the practitioner in the practice of nursing is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of nursing." The Court has noted on prior occasions that the habit of the HCCC in drafting complaints in this manner is to be deplored. Statement of a number of different grounds of complaint identified within the statutory definition, without saying which is relied upon with respect to particular conduct, gives rise to a high degree of uncertainty, which is inappropriate in professional disciplinary matters. It is unfortunate that a statutory authority of long standing, with functions of high public importance in maintaining proper standards of health practitioners in this State, consistently disregards criticism of the manner of drafting complaints. In this case, the Tribunal itself added its voice to that criticism. [citations omitted]. 1. The next authority to which I was directed is Health Care Complaints Commission v Karalasingham. In that decision Basten JA referred to the difficulties caused by the drafting of the complaint at [22] as follows: The difficulty is further exacerbated by the nature of the pleading, to which further reference will be made below, and to the statement by the Tribunal that "the particulars of each of the two complaints (which particulars are identical) have been proved": Reasons at p 31. Ambiguities in the pleading have thus been imported into the findings of the Tribunal. 1. In dealing with both asserted conduct under s 139B (1) (a) and s 139B (1) (b) his Honour at [28] said: Secondly, the pleading alleged that the "knowledge, skill or judgment possessed, or care exercised" by the practitioner was unsatisfactory. In some cases, the circumstances which demonstrate unsatisfactory conduct may make it difficult to distinguish between knowledge, skill or judgment, or the care being exercised. This would not seem to be one of those cases and the Tribunal correctly dismissed references to knowledge, skill and care: Reasons at p 39. It accepted that the Respondent had demonstrated a lack of "judgment" in the practice of medicine, which presumably encompassed various aspects of medical ethics, going beyond judgment in diagnosis or treatment. The pleading further suggested as a separate alternative that the Respondent had engaged in "improper or unethical conduct relating to the practice of medicine", being a separate element of unsatisfactory professional conduct identified in s 36(1)(m). The Tribunal held that the complaint was satisfied either in relation to the lack of "judgment" or in relation to the language of paragraph (m). 1. His Honour later explained at [31]: In other complaints (particularised in paragraphs 6 and 8 concerning Patient B, though not those relating to Patient C), the complainant identified matters which the Respondent "knew to be false and/or could not have known to be true". The vagueness and imprecision in this pleading causes some difficulty in knowing precisely what facts the Tribunal found had been established. 1. In Lucire Basten JA referred to the drafting of the complaint, which alleged conduct under s 139B (1) (a) and or under s 139B (1) (l) as follows at [43] –[45]: This form of pleading has been commented on by the Court on previous occasions: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]- [31]. It inevitably gives rise to a degree of uncertainty as to the precise matters relied upon by the complainant and it is impossible to know the parameters of the case to be presented. Furthermore, it is not possible for the Tribunal to deal with such a complaint by finding it proven or otherwise: it can only deal with the case particular by particular. Whether any particular which is upheld constitutes unsatisfactory professional conduct, individually or in combination with other particulars, and whether any such particular constitutes professional misconduct, either individually or in combination with others, must be carefully identified in the findings of the Tribunal. As a result, the findings are likely to be complex, with a further risk that interested parties will not be able to identify readily and with precision what conclusions have been reached by the Tribunal and, where protective orders are made, to which breaches of conduct they relate. These concerns were not specifically raised by the practitioner, but they do affect the way in which the appeal needs to be considered. Simply by way of example, there was no suggestion in the course of the appeal that any of the particulars were said to involve "improper or unethical conduct relating to the practice medicine", as alleged in par (ii) of the complaint. Similarly, the only conduct said to contravene the Medical Practice Regulation was that involving the record-keeping of the practitioner. One might have expected the relevant conduct to be identified in the document, followed by a specific assertion as to the manner in which it was said to constitute unsatisfactory professional conduct or professional misconduct. Some of the conduct particularised, when taken in isolation, could not on any view have constituted professional misconduct. Failure to formulate the complaint in appropriate terms is not a matter of pedantry or formalism. Imprecision can readily lead to false issues, evidence extending to matters which are not really relied upon and, as already noted, confusion as to the effect of the ultimate orders. These dangers were reduced in the present case by the unusual course taken by the practitioner, who neither gave evidence before the Tribunal, nor called expert evidence in relation to her conduct and treatment of the patient. Further, on the appeal, senior counsel for the practitioner was disinclined to engage, perhaps understandably, with the various detailed sub-paragraphs of some particulars, preferring to address the findings of the Tribunal as broadly involving adverse conclusions with respect to the practitioner's conduct on three particular dates, namely 23 April, 3 July and 5 July 2007. 1. Ms Stern appropriately points out that the Tribunal is bound to follow the majority in the decision of the Court of Appeal in Health Care Complaints Commission v King. She also drew attention to a number of decisions, including recent decisions of the Tribunal, where it was held that particulars in respect of s 139B (1) (a) could also be relied on in respect of s 139B (1) (l), including Health Care Complaints Commission v Little [2016] NSWCATOD 146 and the authorities cited therein (HCCC v Ryken [2016] NSWCATOD 58, Quasim v Health Care Complaints Commission [2015] NSWCA 282; Bar- Mordecai v Health Care Complaints Commission [2002] NSWCA 192 and Health Care Complaints Commission v King ). Discussion (1) Does the fact that the whole panel heard oral submissions on the proposed interlocutory relief sought vitiate any decision I make as the member presiding? (see Nursing and Midwifery Board of Australia v Linquist [2019] NSWSC 978) 1. While I accept that the issues raised in this application were ventilated during the course of the hearing when the full panel was present, no member of the panel engaged in any discussion, comment or determination of the issues now raised. 2. I accept it would have been preferable if the issue had been raised in the absence of the other panel members. However, I do not consider that fact has vitiated my ability to deal with this application and make the necessary decision (as defined in s 5 of the CAT Act) solely as required under s 165 (5A). I also note that the matter was first raised when the panel was fully constituted and prior to the decision of Adamson J in Nursing and Midwifery Board of Australia v Linquist. To now stop and require the parties to re-agitate the issues before me alone would not be in accordance with the objects and principles of the CAT Act. The proper construction of s 139B (1) including in particular s 139B (1) (l). 1. The principles applicable to the construction of a statute are discussed by the plurality in the High Court in Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28. Their Honours explained at 381-382: The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". [citations omitted] 1. On behalf of the practitioner it is submitted that the words "Any other improper conduct" and "in relation to" must have meaning and that the conduct in this provision is conduct which is different to the conduct found to be significantly below the standard as provided in s 139B (1) (a). 2. It is clear that for many years complaints have been agitated before this Tribunal and its predecessors relying on the same facts to establish complaints of either conduct significantly below the expected standard or improper and unethical conduct. 3. Schedule 7 to the National Law contains miscellaneous provisions dealing with interpretation of the statute. Of relevance to this application is cl 7. It provides as follows: Interpretation best achieving Law's purpose (1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation. (2) Subclause (1) applies whether or not the purpose is expressly stated in this Law. 1. The objects and principles which inform decisions under the National Law are found in s 3 and s 3A. Section 3A, a New South Wales provision, has particular relevance. It provides as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. As I perceive it, the thrust of Ms Stern's submissions on the construction of s 139B is that the facts which may establish any of the 11 unsatisfactory professional conduct grounds preceding s 139 (1) (l) may of themselves, if proven, constitute unsatisfactory conduct, and additionally may also constitute "any other improper or unethical conduct". This construction is in accord with the majority decision in Health Care Complaints Commission v King and in particular with the decision of McColl J. 2. In Health Care Complaints Commission v King, McColl J emphasised that although a complaint is not required to be formulated in a pleading it must, for procedural fairness, "be formulated in appropriate terms". Her Honour then cites the decision in Health Care Complaints Commission v Lucire. 3. In his separate reasons, Handley AJA at [125] –[126] noted that, if allegations of inappropriate sexual conduct were found proved, that the Tribunal would have to consider whether the explanation for that conduct was a lack of knowledge, skill or judgment or whether the conduct was unethical or improper. I discern the importance of his Honour's determination is that the same facts could give rise to findings under both provisions of the Medical Practice Act 1992 (NSW) (repealed). Those provisions are in identical language to that found in s 139B (1) of the National Law. 4. In Chen v Health Care Complaints Commission Basten JA at [19] refers to 12 separate categories of unsatisfactory professional conduct. This may appear to give some support to the arguments advanced on behalf of the practitioner that the conduct in s 139B (1) (l) is a different category of conduct. However I have concluded it is the evaluative assessment of the conduct, as distinct from the facts particularised to prove the conduct, that distinguishes conduct under s 139B (1) (l) from conduct under s 139B (1) (a). This distinction may well be understood from cases such as Health Care Complaints Commission v Karalasingham where the tribunal was required to evaluate whether the giving of medical certificates in the circumstances particularised demonstrated a lack of judgment in the practice of medicine, and/or whether providing the certificates without examination of the patients and charging for them was improper and unethical conduct in relating to the practice or purported practice of medicine. 5. On balance, having regard to the authorities and cl 7 of Schedule 7, I have concluded that the interpretation of s 139B (1) advanced by Ms Stern is correct. Whether I have power to grant a stay of the proceedings unless and until the HCCC amends the complaint to include particulars of the improper and unethical conduct relied on. 1. This issue requires consideration of two matters. First is the question of power to grant. Secondly, is the question of whether there is procedural unfairness to the practitioner unless a stay is granted pending further particularisation of the complaint. 2. I have already set out the authorities which touch on the question of this Tribunal's power, if any, to grant a stay pending provision of further particularisation of the complaint of improper and unethical behaviour. I note that the other authorities to which I have been referred all deal with a permanent stay of proceedings on the basis that continuation of the proceedings would be an abuse of power. 3. I also note that the decision in Council of the Law Society v Clarke was determined before the Court of Appeal's decision in Attorney General for New South Wales v Gatsby [2018] NSWCA 254. I have not have the benefit of argument about whether that decision, which was focused on whether the Tribunal was a court of a State for the purposes of the Judiciary Act 1903 (Cth), by implication overrules or derogates from the reasoning in Council of the Law Society v Clarke. In the latter decision, the Tribunal equated the powers of this Tribunal to those of a Local Court. 4. The decision in Council of the Law Society v Clarke relies on decisions which refer to implied powers of courts, including the Local Court, to control their own processes. It is clear from Leeming JA's decision in Attorney-General for New South Wales v Gatsby at [306] that the legislature, in establishing this Tribunal, did not intend to create a court. Thus, in the absence of an express statutory provision to grant a stay on the basis of an abuse of process, it is strongly arguable that any such application must be made to the Supreme Court or Court of Appeal (as in this case). It is not in doubt that the Supreme Court has the power to entertain such an application. 5. For reasons which I now explain, I have come to the view it is unnecessary for me to determine the first issue which I have posed. 6. Based on my conclusions above, I am satisfied that the HCCC may bring an allegation of unsatisfactory professional conduct under s 139B (1) (l) based on same underlying facts as relied on under s 139b (1) (a). It follows I do not find it appropriate to strike out the claim based on improper or unethical behaviour. 7. I turn then to consider whether the particularisation of the complaint leaves the practitioner in doubt as to what is alleged against him. I note Ms Stern's submission that the claim of improper or unethical conduct as particularised by the HCCC may not be found established by the Tribunal. If that occurs, it will be a relevant matter as to costs. But her position remains firm that the particulars as presently alleged, and with the proposed further amendment, make it clear what is alleged to be improper or unethical conduct. 8. I note that counsel for the practitioner only raised in the submissions in reply a complaint about the particularisation in relation to "alternative treatment option" in dealing with the issue of informed consent of the Greater Western Health Area cohort of patients and that the HCCC have not had the opportunity to address this issue in this application. 9. I find what is meant by alternative treatment is ambiguous, particularly if what is meant is advice to a patient that he or she should travel to Sydney for chemotherapy. The HCCC has squarely raised this interpretation of the particular so the practitioner is in now in no doubt this is what is alleged. However, given the ambiguity of this particular, unless it is amended, it is highly unlikely in my view the asserted failure to advise about treatment options in Sydney will not be established because of the ambiguity in the drafting. 10. Having regard to Basten JA's comments in Health Care Complaints Commission v Lucire, I also had some concern that the proposed amendment to particular 1 (a) may be considered vague or imprecise thus causing procedural unfairness to the practitioner. However, on balance, I discern that the case the practitioner is required to answer, including the alleged prescribing when there was no published data supporting the use of a flat dose of 100mg Carboplatin, and in some cases the particularisation that a high regime such as treatment with Cisplatin was not contraindicated, is not ambiguous. I am not satisfied that the allegations are insufficiently particularised to enable the practitioner to know and respond to the matters alleged against him. 11. In my view, the matters raised do not go to the root of the proceedings such that the hearing proceeding on the amended complaint is procedurally unfair. Accordingly, I dismiss the practitioner's application. orders 1. The application by Dr John Joseph Grygiel for a stay of proceedings pending amendment of the complaint is dismissed. 2. The application by Dr John Joseph Grygiel for the strike out of the complaint of improper and unethical conduct 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: 16 August 2019