Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Chatoor [2020] NSWCATOD 22 Hearing dates: 14 February 2020 and by written submissions dated 21 February 2020 and 28 February 2020 Date of orders: 16 March 2020 Decision date: 16 March 2020 Jurisdiction: Occupational Division Before: Boland AM ADCJ, Deputy President Decision: (1) Paragraph 2 of the Application for Miscellaneous matters filed on 13 February 2020 is dismissed. (2) The costs of the application are reserved to the Tribunal hearing the appeals. (3) The hearing dates fixed for 16 and 17 June 2020 are vacated. (4) The appeals are listed for hearing on 13 and 14 May 2020. Catchwords: PROFESSIONS AND TRADES – registered health professional – medical practitioner – where Professional Standards Committee makes non-publication orders – whether List Manager and or Tribunal has power to vary or set aside the non-publication order pending determination of appeals Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) (repealed) Cases Cited: Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Medical Council v Lee [2017] NSWCA 282 Prince, Stephen [2018] NSWMPSC 2 Category: Procedural and other rulings Parties: Health Care Complaints Commission (Applicant) Dr Roger Chatoor (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Browns Legal and Consulting (Respondent) File Number(s): 2020/00034765 Publication restriction: On 14 February 2020 an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the name of the patient the subject of the appeal. REASONS FOR DECISION Introduction 1. Dr Roger Chatoor is a cardiologist. Dr Chatoor has filed an appeal in this Tribunal under s 158 of the Health Practitioner Regulation National Law (NSW) (the National Law). The appeal is against a finding of unsatisfactory professional conduct made by a Professional Standards Committee (PSC) appointed by the Medical Council of Australia (the Council). 2. The Health Care Complaints Commission (HCCC) has also filed an appeal against the findings of the PSC. Although the National Law does not provide for a cross-appeal, the HCCC's appeal is, in effect, a cross-appeal. The appeals have been listed for hearing on 16 and 17 June 2020. 3. By an Application for Miscellaneous matters, filed on 13 February 2020 the HCCC seek two orders as follows: 1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting publication of the name of Patient B set out in the Schedule to the Complaint by the Health Care Complaints Commission against Dr Roger Chatoor dated 15 March 2018. 2. An order is made lifting the purported restriction of the Stage 1 decision of the Professional Standards Committee on 7 January 2020. 1. The application form, in para 4, requires the applicant to provide reasons for seeking the orders. The application notes "See attached". However there is no attachment setting out the grounds for the application. However, the application is supported by an affidavit of Ms Emma Bayley affirmed on 12 February 2020. Ms Bayley is a solicitor in the employ of the HCCC and has the conduct of this matter. 2. The application was first listed before me in a Health Directions Hearing List on 14 February 2020. On that occasion Dr Chatoor was represented by his solicitor, Mr David Brown. By consent, an order was made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) restricting publication of the name of the patient the subject of the appeal. I made directions for the filing of submissions to address the issue of the jurisdiction of this Tribunal to make an order in the terms sought in proposed order 2 of the application. Background 1. The following background is relevant to this application. The facts recited are those deposed to by Ms Bayley, or apparent from the appeal files. 2. In May 2016 Patient B made a complaint to the HCCC about a surgical procedure undertaken on him by Dr Chatoor. 3. In March 2018 the former Director of Proceedings instituted a complaint which asserted that Dr Chatoor was guilty of unsatisfactory professional conduct. The complaint was referred to a PSC appointed under s169A of the National Law for determination. Ms G Ettinger was appointed as the Chairperson of the PSC. 4. On 12 and 13 November 2019 a hearing was conducted by the PSC, and its decision was reserved. The reserved decision was in respect of the PSC's findings in respect of the complaint, not the making of protective orders. Such a procedure is colloquially known as a Stage 1 hearing. 5. Ms Bayley deposes that, at the Stage 1 hearing, neither party made any application for suppression of the PSC's decision. On 5 January 2020, a date for the PSC to hear and determine protective orders was fixed for 5 February 2020. 6. On 7 January 2020 the PSC published its Stage 1 decision and made a finding that Dr Chatoor was guilty of unsatisfactory professional conduct. Given the nature of the present application it is important that I set out the precise text of the PSC's recording under the word "Decision". The Committee made a finding of unsatisfactory professional conduct in relation to the Complaint of the HCCC about Dr Chatoor. A further hearing is scheduled to deal with any Conditions which may be appropriate. 1. Under the Heading "Publication of decision": For the present, the Stage 1 Reasons for Decision in this matter are to be published only to the parties to the Inquiry. The name, address and any other identifying features relating to Patient A must remain confidential. 1. Page 17 of the decision contains the following paragraphs: NON PUBLICATION ORDER 117. The non-publication order made on 31 July 2019 in respect of Patient B continues, so that the name, address and any other identifying feature of Patient B may not be published. DISTRIBUTION OF THE DECISION 118. The present Stage 1 Reasons for Decision (noting the non-publication order above), should be published only to parties to the Inquiry. Following a further day of hearing listed for 5 February 2020, final Reasons for Decision and a direction as to publication will be made. 1. Ms Bayley deposes that she communicated with the Conduct Officer of the Council at the Ministry for Health on 24 January 2020. She asked why publication of the decision had been restricted noting neither party had sought such a restriction and said that the HCCC had a statutory function to publish decisions. 2. On 24 January 2020 Ms Iolanda Wilcox, Program Officer–Conduct replied to Ms Bayley. Ms Wilcox noted: I have passed this enquiry on to the Chair who has now advised it is her understanding that Stage 1 decisions are not generally distributed in the way suggested. She has advised that the Reasons for Decision are yet incomplete without consideration of any submissions made at the resumed hearing. She is mindful that we want to complete the Hearing of this matter on 5 February 2020 as scheduled, and not delay further. She has advised that provided the hearing of submissions regarding a wider release of the Stage 1 decision does not delay the completion of the matter, we can hear the parties on their views about it on 5 February. 1. On 30 January 2020 Ms Bayley again wrote by email to Ms Wilcox. She noted she was writing with the consent of Dr Chatoor's solicitor. It appears from the correspondence Dr Chatoor was seeking an adjournment of the Stage 2 proceedings on 5 February 2020. 2. Ms Bayley also explained that the HCCC was making an application "that the restriction of the Stage 1 decision be immediately lifted" and advised that "[t]he respondent does not consent to that application". The email requested that the matter be listed before the Chair so a decision about the publication restriction being lifted could be made. The HCCC requested provision of the earliest date for this to occur, and enquired whether the Chair had a preference for the application to be supported by written or oral submissions. 3. On 31 January 2020 Ms Wilcox emailed the HCCC and Dr Chatoor's solicitors. She advised: I have just heard back from the Chair who has advised: Under the Naitonal Law once an appeal has been lodged, the Professional Standards Committee has no power to make orders, or to continue with an Inquiry in the matter subject of the appeal until the NCAT proceedings have been finalised. You have informed me that Dr Chatoor has appealed the decision of our PSC to NCAT. Therefore, it is my understanding that it would be futile presently to hold any further hearing either with regard to release of the Reasons for Decision in Chatoor publicly, or to hear submissions in regard to Stage 2, listed for 5 February 2020. Accordingly the hearing date of 5 February 2020 is vacated. 1. On 28 January 2020 Dr Chatoor's lawyers filed in the Tribunal an appeal against the "decision of the Professional Standards Committee of the Medical Council dated 7 January 2020". A copy of the PSC's decision is annexed to the External Appeal Form. The issues to be determined on this application 1. At the directions hearing, I raised with Ms Bayley the issue of the statutory provision or provisions of the CAT Act or the National Law she relied on for me, in my capacity as List Manager, to vary or set aside the order made by the Chair of the PSC. Ms Bayley submitted I could rely on s 171E (5) of the National Law to "lift" the order. Mr D Brown, Dr Chatoor's solicitor did not agree I had power to and should "lift" the restriction. Accordingly, I requested the parties to provide written submissions on the topic. Written submissions were provided by counsel for the HCCC, Ms A Petrie, dated 21 February 2020 and from Mr Brown dated 28 February 2020. I take this opportunity to thank the parties for their submissions which were provided on relatively short notice in accordance with my direction. 2. In her submissions at para 25 Ms Petrie asserts: "that the Tribunal also has the power to review the Committee's exercise of power under s 171E (5) to restrict such findings. The Tribunal has external appeal jurisdiction given that the National Law provides an appeal may be made to the Tribunal and also has jurisdiction to make ancillary and interlocutory decisions of the Tribunal in proceedings, section 31 Civil and Administrative Tribunal Act 2013". 1. I discern the issues to be resolved on this application are: 1. Is the Chair of the PSC precluded from varying the order limiting publication restriction (the publication order) because Dr Chatoor and the HCCC have filed appeals? 2. If the Chair and/or the PSC is not so precluded, should the HCCC's application be referred back to the Chair and/or the PSC? 3. If the Chair of the PSC is not to hear the application for variation of the publication order, does the List Manager dealing with an external appeal have jurisdiction to make an order varying the publication order? 4. If there is jurisdiction, is there power under the National Law, or under the CAT Act for the List Manager to make an interlocutory order? If yes, should the power be exercised? 5. If the List Manager cannot "lift" the publication order, can a fully constituted Tribunal do so? 6. If there is no power to vary the publication order under the National Law or the CAT Act other than at the hearing of the appeals, should the application be dismissed generally, and/or should the appeals be expedited? 1. As will become evident when I turn to the submissions of the practitioner's solicitor he identified, albeit in a more confined manner, the issues to be determined in a similar manner to those set out by me above. The HCCC's submissions 1. Counsel for the HCCC provided extensive written submissions in accordance with my direction. The submissions set out a number of matters that the HCCC say flow from the publication restriction. It is submitted that although the PSC did not mention the power relied on to restrict the decisions that "it appears that the Committee restricted the decision by making an order under section 171E(5) of the National Law". 2. Under the heading "The Tribunal's power to review the restriction" the submissions note, that under s 158(1)(b) the HCCC may appeal to the Tribunal against the exercise of a power by the PSC under Subdivision 3 of Division 3. It is submitted that the Tribunal also has the power to review the PSC's exercise of power under s 171E(5) to restrict such findings. I pause to note that this is not a ground of appeal relied on by the HCCC rather the sole ground of appeal relied on in the appeal filed 3 February 2020 is as follows: The Professional Standards Committee erred in its decision of 7 January 2020 in finding that the practitioner was not guilty of unsatisfactory professional conduct in relation to particulars 1,2 and 3 of the Complaint filed on 15 March 2018. 1. The submissions then set out five reasons why the HCCC submit the restriction should be " lifted": 1. because the hearing was conducted in public; 2. neither party applied for the restriction; 3. neither party was afforded procedural fairness prior to the making of the decision; 4. the PSC made a finding of unsatisfactory professional conduct; and 5. it is in the public interest to publish the decision immediately. 1. The submissions note that the appeals are not appeals on a point of law under s 158A which would have the effect of terminating the inquiry under s 158A(3). 2. It is noted that an appeal under s 158 (being the section of the National Law relied on in each appeal) does not affect any finding or exercise of power with respect to which it has been made until the Tribunal makes an order on the appeal. 3. Para 29 of the submissions sets out in some detail why it is asserted that it is "not practical" to restrict the decision. Para 30 sets out submissions why it is asserted it is not in the public interest to restrict the decision. 4. At para 32 it is submitted: For the reasons above, the Commission's primary submission is that that restriction should be immediately lifted to allow the decision to be released to the public. 1. Under the heading "Jurisdiction" it is noted that under s 3(b)(ii) of the CAT Act the Tribunal may review decisions of certain persons and bodies. .The submissions go on to refer to the Tribunal's external appeal jurisdiction. I am satisfied it is the external appeal jurisdiction that the Tribunal is exercising in determining these appeals. 2. The submissions then refer to an exercise of discretion by the PSC under s 171E of the National Law noting "Section 171E does not set out the circumstances in which a decision to restrict publication can be made". At para 35 it is noted that the PSC did not give reasons for restricting publication and at para 36 it is asserted there was a denial of procedural fairness to the parties. It is then submitted "it would be open to the Tribunal to hear the application as an appeal on a point of law pursuant to s 158A of the National Law and/or an appeal of an ancillary decision pursuant to section 31(2)(a) of the CAT Act". 3. Later in her submissions, Counsel for the HCCC argues that the PSC's decision to restrict publication "should be deemed a final order as the Stage 1 Decision is a final decision". The submissions go on to note "The order prevents the publication of the Stage 1 decision and as a result of the appeal to the Tribunal, the non-publication becomes final". 4. The submissions then canvas a number of authorities on open justice. 5. Under the heading "Urgency" it is noted at para 57 "The parties anticipate that the appeal hearing before the Tribunal shall not proceed prior to later this year". 6. Finally, at para 61 it is submitted: If required, the Commission submits that a panel should be convened on short notice comprising four members to determine the matter expeditiously and in the public interest, prior to the rehearing of the matter by the Tribunal. The practitioner's submissions 1. The practitioner's solicitor refers to the background to the proceedings and succinctly identifies the two issues for consideration in this application: A Whether the Tribunal has power to make the order sought in the Application; B. Whether the order sought can be made by a Judge sitting alone. 1. The submissions note, correctly, that the two appeals in this matter are external appeals brought within the Tribunal's external appeal jurisdiction. That jurisdiction enables the Tribunal in the exercise of its external appeal jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings. The submissions set out s 31 of the CAT Act. It aids understanding of the submissions and issues to be determined if I also set out s 31. It provides as follows: 31 External appeal jurisdiction of Tribunal (1) The Tribunal has external appeal jurisdiction over a decision (or class of decisions) made by an external decision-maker if legislation provides that an appeal may be made to the Tribunal against any such decision (or class of decisions). (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its external appeal jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An appealable external decision is a decision of an external decision-maker over which the Tribunal has external appeal jurisdiction. (4) An external appeal is an appeal to the Tribunal against an appealable external decision. (5) A provision of enabling legislation that provides for a decision of an external decision-maker to be appealed to the Tribunal extends to the following: (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the decision-maker by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (6) Nothing in this section permits external appeal jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 1. The submissions then refer to the definition of ancillary and interlocutory decisions in s 4 of the CAT Act. Those provisions are as follows: ancillary decision of the Tribunal means a decision made by the Tribunal under legislation (other than an interlocutory decision of the Tribunal) that is preliminary to, or consequential on, a decision determining proceedings, including: (a) a decision concerning whether the Tribunal has jurisdiction to deal with a matter, and (b) a decision concerning the awarding of costs in proceedings. interlocutory decision of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (h1) the granting of leave for a person to represent a party to proceedings, (i) any other interlocutory issue before the Tribunal. 1. The submissions then argue that the order sought by the HCCC "could not be regarded as an ancillary order". It is submitted "It is not an order preliminary to or consequential on a decision determining proceedings". The practitioner's solicitor submits: The proceedings here are an appeal and cross appeal that do not raise for consideration by the Tribunal the limited publication decision, nor is it necessary for the Tribunal to address the limited publication decision in order to determine the proceedings, particularly in circumstances where the Tribunal hearing is to be a "rehearing" under s 158 of the National Law. 1. It is also submitted that an interlocutory decision "must be a decision made under legislation". It is submitted that the reference in the definition of interlocutory decision to "the prohibition or restriction of the disclosure or publication of matters" is to s 64 of the CAT Act. It is noted that this provision applies to a report of proceedings in the Tribunal. 2. Further reference is made to s 79 of the CAT Act which deals with the power to be exercised by the Tribunal in determining an appeal. The submissions then set out s 158 of the National Law including s 158(3) which provides the Tribunal may dismiss the appeal, 3. At para 24 the submissions note: In setting out what the Tribunal may do in relation to an appeal under Section 158 the enabling legislation does not provide a basis for the making of an order lifting a restriction imposed by a PSC. In the ordinary course, the effect of such a restriction would be either incidentally maintained or altered by the ultimate decision of the Tribunal on the substantive appeal or cross-appeal. 1. The submissions then refer to the powers the Tribunal can exercise under s 165L of the National Law and notes that the orders sought do not fall with s 149A. 2. At para 27 the practitioner's solicitor submits: Overall Submission. It is submitted that a review of the relevant provisions of the Civil and Administrative Tribunal Act 2013 and the National Law does not disclose any jurisdiction for the making of the order sought by the HCCC in relation to the lifting of a "limited publication order" by a PSC. In the absence of a specific power under legislation there is no other source of jurisdiction for the Tribunal to make the order sought in the Application. 1. The practitioner's submissions note, if the submission in para 27 is correct, then there is no power for a Judge sitting alone to make the order sought. 2. The submissions then note the effect of s 165B(2) of the National Law, which sets out how the Tribunal is to be constituted when hearing an inquiry or an appeal under the National Law. The submissions concede that if an order sought by the HCCC could be properly characterised as involving an "ancillary decision" or an "interlocutory decision" then such a decision could be made by the List Manager. But it is submitted "the decision in this case cannot be so characterised". 3. The submissions then examine the PSC's powers when conducting an inquiry and note that the legislation contemplates situations where the PSC considers it appropriate to restrict publication. It is noted that if the PSC makes such a decision, the requirement upon the Council to make the decision publicly available does not apply. 4. Mr Brown submits that it appears the "limited publication" decision would have been reconsidered by the PSC at the Stage 2 hearing when it may or may not, have been lifted. 5. At para 40 of his submissions Mr Brown points out the difference in the legislative schemes regarding publication of decisions of the Tribunal and those of a PSC. In support of this submission he relies on s 94B of the Health Care Complaints Act 1993 (NSW). 6. In order to understand Mr Brown's submission it is relevant that I set out s 94B of the Health Care Complaints Act. It provides as follows: 94B Publication of information about decisions and de-registered practitioners (1) The Commission must make publicly available a statement of a decision of a tribunal if the statement is provided to it under the Health Practitioner Regulation National Law (NSW) and is in respect of a complaint that has been proved or admitted in whole or in part unless the tribunal has ordered otherwise. (2) The Commission may disseminate a statement of a decision of a professional council or registration authority provided to it under the Health Practitioner Regulation National Law as it sees fit unless the professional council or registration authority has ordered otherwise. (3) The Commission must make publicly available information required to be provided to it about a person whose registration as a registered health practitioner is cancelled or suspended as a result of disciplinary proceedings. (4) For the purposes of this section, a person's registration as a registered health practitioner is cancelled if any of the following happen as a result of an action, decision, determination or order of a professional council, registration authority, tribunal or court: (a) the person's registration is cancelled, (b) the person is de-registered, (c) the person's name is removed from, or struck off, a register or a roll, (d) the person's practising certificate is cancelled, (e) the person is disqualified from being registered as a registered health practitioner in a health profession. 1. Mr Brown at para 42 of his submissions explains that "unlike the obligation in relation to Tribunal decisions, the provision relevant in the present case is permissive only and the permission does not apply where the professional council has ordered otherwise. The legislation therefore specifically contemplates that there will be situations where decisions of PSC's are not to be published". He goes on to note the distinction to be made between "the publication of a statement (for example via a website or a media release) about a decision and the decision itself" [original emphasis]. I agree Mr Brown states the position about publication correctly. 2. At para 46 he submits: The obligation to publish in relation to a PSC decision is an obligation upon the Council (not the HCCC) and the obligation is to publish the decision (not a media release or statement about the decision). 1. For completeness, I refer to Mr Brown's submissions at para 44 and 45 where he submits that the publication of a statement that the practitioner has been found guilty of unsatisfactory professional conduct is "inherently likely to be damaging to the practitioner's reputation and his or her ability to practise, but may not provide patients or the public with adequate context to appreciate the significance". At para 45 he refers to the actions that may be taken by a PSC on a Stage 2 hearing including imposition of reprimand, and or conditions, or that it may not be found necessary to take any protective action whatsoever. Relevant law and authorities The provisions pivotal to this application 1. Two statutory provisions are pivotal to this application. They are s 31 of the CAT Act and s 158 of the National Law. 2. It must be remembered that this Tribunal is a creature of statute and its jurisdiction is limited to that found in the CAT Act or enabling legislation. Section 31 of the CAT Act vests jurisdiction in this Tribunal over "a decision (or a class of decisions) made by an external decision-maker" (in this case the PSC) if the legislation provides that an appeal may be made to the Tribunal. 3. The legislation which provides an appeal may be made to a Tribunal is s 158 of the National Law. 4. Dr Chatoor has exercised his right to appeal under s 158 of the National Law to this Tribunal. Section 158 enable a practitioner who has had a complaint against him or her referred to a committee to appeal to the Tribunal against a finding of a PSC. Section 158 (1) is in the following terms: 158 Appeals against decisions of Committee [NSW] (1) If a complaint about a registered health practitioner or student is referred to a Committee, the practitioner or student or the complainant, may appeal against any of the following to the Tribunal— (a) a finding of the Committee; (b) the exercise of a power by the Committee under Subdivision 3 of Division 3; (c) the exercise by the Tribunal List Manager of a power under that Subdivision. Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. 1. The Tribunal's powers in determining the appeal/s is found in s 158 (2) and (3) as follows: (2) The appeal is to be dealt with by way of rehearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the inquiry, may be given. (3) The Tribunal may— (a) dismiss the appeal; or (b) make any finding or exercise any power the Tribunal could have made or exercised if the complaint had been originally referred to the Tribunal. (4) An appeal under this section does not affect any finding or exercise of power with respect to which it has been made until the Tribunal makes an order on the appeal. 1. In this case, Dr Chatoor has exercised his right to appeal the finding of the Committee under s 158(1)(a). He has not filed an appeal under s 158A. The HCCC's appeal is also brought under s 158. The HCCC's only ground of appeal makes it clear that the appeal is also against the finding of the Committee. 2. In this case the National Law provides that the practitioner, and/or the HCCC can, and have, appealed against the finding of unsatisfactory professional conduct made by the PSC. There is no appeal against an exercise of power under Subdivision 3 of Division 3 of the National Law. 3. Thus, I conclude that the Tribunal has no jurisdiction in its external appeal jurisdiction to "review" or "lift" the direction made under s 171E(5) of the National Law. The language of s 31 of the CAT Act limits the Tribunal's jurisdiction to decisions which are appealable under s 158. The PSC's decision to restrict publication is not an appealable decision under s 158. It is neither a finding or a matter arising under Subdivision 3 of Division 3 of the National Law. 4. It follows that, the power to make an ancillary or interlocutory order "in proceedings for the exercise of its external appeal jurisdiction" cannot be invoked, as the order restricting publication is not part of the external appeal jurisdiction being exercised by the Tribunal. Nor, as I will later explain are there "other functions" imposed on the Tribunal by the CAT Act or the National Law "in connection with the conduct or resolution of such proceedings". Other statutory provisions 1. Subdivisions 3 and 4 of Division 11 of Part 8 of the National Law deal with proceedings before Committees and Inquiries before Committees. A PSC is defined in Division 1 of Part 8 as "a committee". 2. For the purposes of this application the following provisions have relevance. 3. Section 170B provides an order of a Committee takes effect on either the day it is made or a later day specified in the order. Section 146B sets out the orders a Committee may make or conditions it may impose on a practitioner's registration. 4. Section 170D empowers the Chairperson of the PSC to exercise certain powers of the committee which decisions are deemed to have been taken by the PSC. The Chair is empowered to "hand down a decision of the Committee on an inquiry" and to make a "decision concerning any interlocutory issue before the Committee". 5. Section 171C provides an order may be made adjourning proceedings for any reason and the Committee may exercise any power or powers under s146B on an interlocutory basis except the power to caution or reprimand. 6. Section 171D provides a Committee must refer certain matters to the Tribunal. This requirement is mandatory if the Committee forms the view the complaint, if substantiated, may provide grounds for suspension or cancellation of the practitioner's registration (in other words constitute professional misconduct under s 139E of the National Law). 7. Section 171D provides as follows: 171D Committee must refer certain matters to Tribunal [NSW] (1) The Committee must immediately terminate the inquiry if, before or during the inquiry, the Committee— (a) forms the opinion the complaint, if substantiated, may provide grounds for the suspension or cancellation of the registration of the relevant health practitioner; or (b) becomes aware the Council or the Commission has referred the complaint or another complaint about the practitioner to the Tribunal. (2) Subsection (1)(a) does not apply to a complaint that the Council decided not to refer to the Tribunal because the allegations on which it, and any other pending complaint against the practitioner, was founded related solely or principally to the practitioner's physical or mental capacity to practise the practitioner's profession. (3) If the Committee terminates an inquiry, it must refer the complaint to the Tribunal unless it has already been referred to the Tribunal. 1. It is important in the context of this application to note that the PSC did not terminate the inquiry, and the HCCC has not referred the complaint or another complaint about the practitioner to the Tribunal. The HCCC has appealed findings of the PSC to the Tribunal. 2. Also relevant to this application is s 171E. It provides as follows: 171E Committee to provide details of decision [NSW] (1) The Committee must give a written statement of its decision on the inquiry to the following within one month after the decision is made— (a) the complainant; (b) the relevant health practitioner; (c) the Council. (2) The statement of decision must— (a) set out any findings on material questions of fact; and (b) refer to any evidence or other material on which the findings were based; and (c) give reasons for the decision. (3) The Committee may also give the statement of decision to any other person the Committee thinks fit. (4) The Council— (a) must make publicly available the statement of decision if the decision is in respect of a complaint that has been proved or admitted in whole or in part; and (b) may disseminate any other statement of decision as the Council thinks fit. (5) Subsection (4) does not apply if the Committee has ordered that the statement is not to be made publicly available. 1. It is clear that no complaint has been referred to the Tribunal by the Council or the HCCC under s 171D which would require the PSC to immediately cease the inquiry or I would interpolate from varying the suppression order made on 7 January 2020. I also observe that as explained by Basten JA in Lucire v Health Care Complaints Commission [2011] NSWCA 99 it is not every professional disciplinary proceeding which requires a two stage hearing. Whether the splitting of a hearing is required will depend on matters as explained by His Honour so that a practitioner is afforded procedural fairness. What procedural fairness requires is a reasonable opportunity to present a case. In this case the PSC determined procedural fairness required a two stage hearing. The practical effect of the suppression order asserted by the HCCC 1. In this case Ms Bayley submits that the effect of the suppression order is that the HCCC has not provided the decision to: 1. Patient B 2. The expert briefed by the HCCC 3. The Council 4. Dr Chatoor's current supervisor 5. The Australian Health Practitioner Regulation Agency 6. The NSW Court of Appeal (in respect of a separate appeal by Dr Chatoor against a decision of the Tribunal on appeal from the PSC in respect of another patient). That appeal is listed for hearing on 23 April 2020. 1. Ms Bayley also deposes to the fact that the HCCC have not issued a media release about the decision. Consideration Some preliminary matters 1. I am satisfied, having regard to the wording of s 171D and s 158 of the National Law, that the Chair of the PSC is not precluded from exercising power to vary the order made on 7 January 2020. In saying this, I appreciate that it is unlikely that the Chair was provided with a copy of the Notices of Appeal, and she may have assumed that the appeal was an appeal under s 158A of the National Law precluding any further consideration of the matter by the PSC (s 158A(3)). 2. I am satisfied that in my capacity as List Manager, absent reliance on s 31(2)(a) of the CAT Act, I have no power under cl 7 of Schedule 5D to vary the order of the Chair of the PSC restricting publication of the patient's name (see Health Care Complaints Commission v Reid (Publication Application) [2019] NSWCATOD 31). 3. It is strongly arguable in hearing this application I am hearing an ancillary application in an appeal and can determine that application in my capacity as List Manager under s 165B(5A) of the National Law. That application is to determine whether or not the List Manager and/or Tribunal has jurisdiction, by way of an interlocutory order to vary or set aside a suppression order made under the National Law when hearing an external appeal under s 158 of the National Law. 4. I accept the submissions made by Mr Brown that the Tribunal hearing the appeal can, as part of the rehearing process, determine whether any publication restriction is appropriate. 5. I am satisfied as the Tribunal has no jurisdiction in its external appeal jurisdiction, that I cannot make an interlocutory order "lifting" the order under s 64 of the CAT Act. While I could make an interlocutory order under that section prohibiting publication of patient names or other evidence (and have done so in respect of Patient B) I do not have power to vary the existing non-publication order, unless it is an order made under s 64 (1). 6. As I am satisfied I cannot "lift" the order under s 64 of the CAT Act, the only other legislation under which I could make an order in this appeal is under the National Law is pursuant to s 31(2)(b). I do not find s 171E(5) "confers or imposed a power" on the Tribunal to "lift" the publication order. A plain reading of s 171(5) contemplates that an order has been made (under another provision) which over-rides s 171E(4). It does not provide a source of power for the Tribunal to revoke or "lift" the order. 7. I note that the issue of the power exercised under s 171E(5) was discussed by a PSC in Prince, Stephen [2018] NSWMPSC 2 ("Prince"). In this matter the PSC was asked at the commencement of the hearing to make an interlocutory non-publication order about the name of a child patient and his family members and also an order suppressing the name of the practitioner the subject of the complaint. The application was renewed at the conclusion of the hearing but prior to the PSC's publication of its reasons. 8. The reasons note: By s171A(2) of the National Law the proceedings of this Committee are to be open to the public unless the Committee directs otherwise. Any direction necessarily impinges on that requirement. The power to make a direction is set out in clause 7 of Schedule 5D of the National Law. A direction can only be made if it is appropriate in the particular circumstances. A direction can identify what matters are "not to be published" and one of those is the name and address of Dr Prince. By clause 7(4) the reference to name and address is taken to refer to any information that identifies Dr Prince or "is likely to lead to identification" of Dr Prince. Clause 7(5) creates an offence for contravention of the direction. 1. The PSC refused to make the order restricting publication of the practitioner's name and determined to publish its reasons without restriction. In reaching this determination the PSC explained: s171E(4) of the National Law obliges the Medical Council of NSW to publish any statement of decision if the complaint has been proved or admitted in whole or in part, and gives the Council the ability to publish any other decision as it thinks fit, subject only to an order of the Committee that the statement is not to be made publicly available. Given the context, the reference to "an order" is a reference to a direction given under s171A(2). Such a direction is to be made in the public interest as required by s171A(3). These provisions reinforce that proceedings are open to the public and are not to be restricted by a direction unless appropriate in the particular circumstances of a case. 1. The facts in the matter of Prince are not on all fours with the present application. It is apparent from the decision in Prince that the PSC determined reliance could be placed on cl 7 of Schedule 5D (cl (1)(b)(iii)) to restrict publication in the decision of the name of the practitioner or evidence in the proceedings (cl (1)(iv) and (v)). Further, although the PSC relied on s 117A(2) as the power relied on to restrict publication, it did so in the context of s 117A(3). That sub-section refers to evidence "to be given". The language makes it plain that the decision is to be made in the context of the hearing. 2. In this case the PSC's restriction on publication is to limit, albeit on an interlocutory basis, the persons or entities to whom publication can be made and excludes the Council an entity which the National Law mandates must be given a written statement of its decision on an inquiry (s 171E(1)). In the unusual circumstances of this case it appears the Chair did not consider the reasons published on 5 January 2020 constituted the complete decision of the PSC and thus attract s 171E(1). 3. However, the PSC in Prince did not consider s 171E(5) was the section of the National Law which empowered the PSC to restrict publication. The PSC found the words "has ordered" referred to an order made under another provision of the National Law. I agree with that interpretation of s 171E(5). A plain reading of the provision contemplates a PSC has ordered under another provision of the National Law a restriction of publication (see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; HCA 28). 4. The PSC in Prince relied on s 171A(2) of the National Law which provides proceedings are to be open to the public unless the Committee otherwise directs. I infer from this reasoning that the PSC considered the publication of its reasons, including the publication of the doctor's name, was based on principles relevant to "open justice" and was part of the "proceedings". I note "proceeding" is defined in Part 3 of Schedule 7 to mean "a legal or other action or proceedings". This definition gives a wider interpretation to the word than the actual hearing before a PSC. 5. Clause 7 of Schedule 5D gives a wide discretion to the Chairperson of a PSC to make directions as may be appropriate in the circumstances restricting publication of certain matters and provides a penalty for breach of any direction. The terms of the clause provide the direction can be revoked or varied at any time by the person providing. The terms of the clause provide that the PSC may direct that certain matters are not to be published (see cl 7(1)(b) (i)–(v)). It is arguable that, given a beneficial reading of this provision, it enables the PSC to restrict publication of its decisions (which must necessarily refer to specified evidence and the subject matter of the complaint) to only those it nominates. 6. I find it is strongly arguable that the clause is the provision relied on by Committees to make "an order" particularly as it provides for a direction "restricting publication" to be given before or during proceedings, and carries a penalty for a breach of a direction. Such an order, if made, brings into operation s 117E(5) to override the obligations in s 117E(4). 7. Clause 7, on its face, provides a code or scheme for the making, varying or revoking non-publication "directions" and limits the power to make such "directions" to the Chair of the PSC (or person presiding) during a hearing. A similar provision to cl 7 was found in the Medical Practice Act 1992 (NSW) (repealed) (cl 6 of Schedule 2). A committee was required under s 180 of the repealed Act to publish to the practitioner and the then Medical Board of NSW its decision unless it otherwise ordered. Although the Medical Tribunal on hearing an appeal could make interlocutory orders, those orders were limited and did not include a power to vary an order made under cl 6 of Schedule 2. The examination of the repealed Act reinforces the concept of cl 7 of Schedule 5D providing a complete code under the National Law. 8. I have found that the HCCC are not precluded from making an application to the Chair for variation of the direction notwithstanding an appeal has been filed in the Tribunal. This, and my conclusion about cl 7 of Schedule 5D, supports a finding that the legislature envisaged the power to make or vary a non-publication direction was to be within the exclusive province of the PSC Chair or the person presiding on a Tribunal hearing a matter. This conclusion precludes reliance on this clause as a function conferred on the Tribunal in conjunction with the resolution of the appeal proceedings (see s 31(2)(b) of the CAT Act). 9. If, as found in Prince, the source of power is s 171A(2) then I note that the National Law provides no penalty for a breach of the order within the relevant sub-division of the National Law. Further, as in cl 7 of Schedule 5D the language used is "direct" not order. This fact militates against reliance this section as a source of power to make the order referred to in s 171E(5). 10. Further, if s 171A(2) is the source of power to restrict publication the discretion under that provision is circumscribed by s 171A(3) namely the subject matter of the inquiry or the nature of the evidence to be given. The latter provision implies a hearing is not complete. However, it is strongly arguable that is what has occurred in this matter. The Chair determined, until the PSC had heard evidence relating to protective orders the matter was incomplete, and open justice considerations required restriction of the incomplete decisions. 11. I am satisfied that s171A is not relevant for purposes of s 31(2) (b). It does not confer or impose duties or powers on the List Manager in connection with the conduct of the appeals or their resolution. Merits of the application 1. As with all applications under the National Law, s 3A is relevant. That provision requires that I have the health and safety of the public as the paramount consideration. It requires me to consider how these appeals should proceed. 2. Mr Brown cogently argues that there has been a lengthy delay since the complaint in this matter was raised by the patient in May 2016, but the complaint was filed with the Council in May 2018 and that no committee was appointed to deal with the complaint for well over a year. I find this delay argues against any urgency in the present application particularly when appeal dates have been fixed, or an application for expedition of the appeals may be made. 3. Mr Brown emphasises in his submissions that the legislation clearly contemplates circumstances where a PSC may consider it appropriate to restrict publication and it is not mandatory that every PSC decision be publicly available. He argues that, in the present circumstances, where the PSC has not determined what restrictions on the practitioner, if any, should flow from its findings of unsatisfactory professional conduct that the practitioner's reputation and ability to practise, will be affected by publication, "but may not provide patients or the public with adequate context of appreciate its significance". 4. It is argued by the HCCC that the present order restricts a copy of the PSC's decision being provided to the NSW Court of Appeal in an unrelated matter that involves the practitioner. The HCCC also argue that the restriction causes difficulty in the preparation of the present appeal because witnesses cannot be informed of the PSC findings. 5. Mr Brown argues that the Court of Appeal are dealing with a separate matter and do not have to take into account this matter in a generalised manner. It is also argued that briefing of witnesses is not necessary for the preparation of the appeal which is an appeal by way of rehearing and in any event may not be appropriate. He also argues that provision of the reasons to experts is not necessary because the HCCC can pose fresh questions to the experts without the need to make reference to the PSC decision. 6. I accept that if the appeals had not been filed immediately after the publication of the Stage 1 decision, it is likely that the question of the publication restriction would have been determined on 5 February 2020 and that the PSC did not intend its present publication restriction to be a final determination. 7. I accept that the PSC can restrict publication in appropriate circumstances being those set out in cl 7 of Schedule 5D. Such circumstances may be restriction on publication of the subject matter of the complaint. 8. I turn then to the issues I identified at the commencement of these reasons. Is the Chair of the PSC precluded from varying the order limiting publication restriction (the publication order) because Dr Chatoor and the HCCC have filed appeals? 1. For reasons set out earlier, I am satisfied the Chair of the PSC is not precluded by reason of the filing of the appeals under s 158 from varying the publication direction she made. I accept she would be precluded from so doing if either appeal had been an appeal under s 158A of the National Law. If the Chair and/or the PSC is not so precluded, should the HCCC's application be referred back to the Chair and/or the PSC? 1. I am satisfied it is open to the HCCC to formally refer its application back of the Chair of the PSC. I do not propose to direct the HCCC to do so, but I note that the Chair of the PSC would be in a far superior position to me to determine the issue of "lifting" the publication order given her participation in the hearing and the decision leading to the finding of unsatisfactory professional conduct. If the Chair of the PSC or the PSC is not to hear the application for variation of the publication order, what power does the List Manager have, if any, to make an order varying the publication order? 1. As discussed above. I am satisfied for the reasons earlier given that: 1. there is no power to make an interlocutory order in an appeal of the type sought in the application (s 31 CAT Act) because the Tribunal has no jurisdiction in the exercise of its appeal jurisdiction to do so given the wording of s 158. 2. I cannot make an interlocutory order under s 64 of the CAT Act varying or revoking the order made by the Chair of the PSC; 3. An interlocutory order varying a direction made under cl 7 of Schedule 5D cannot be made by the List Manager but must be made by the Chair of the PSC. This provision is exhaustive and does provide jurisdiction to the List Manager under s 31(2)(b) of the CAT Act. If there is power under the National Law, or under the CAT Act for the List Manager to make an interlocutory order, should the power be exercised? 1. As explained above my finding is that there is no jurisdiction for the List manager to exercise to "lift" the order. Therefore it is unnecessary that I assess the merits of the application. The arguments of both parties have merit. I accept that matters under the National Law are generally subject to principles of "open justice". Those principles and the objective in s 3A provide a cogent basis to publish the decision. 2. Mr Brown submits that there may be prejudice to the practitioner particularly in circumstances where no Stage 2 reasons have been published and the practitioner contests the PSC's finding of unsatisfactory professional conduct. 3. He also submits the issue of urgency in this case lacks merit when the complaint was made by the patient in 2016, proceedings not commenced until 2018 and heard until November 2019. This is particularly so in circumstances where appeal dates have now been fixed for the appeals to be heard within 8 weeks. 4. Mr Brown asserts that it is not necessary and indeed may not be appropriate for witnesses to be given the decision on the basis that the appeal is a rehearing at which fresh evidence may be adduced. Without knowledge of the proceedings in the Court of Appeal, I am unable to discern whether the provision of the PSC findings would be relevant to the appeal presently before the NSW Court of Appeal. 5. The HCCC point out that the patient has not been informed of the result of the inquiry. I am also conscious that, in the ordinary course of events, that the National Law mandates that the Council be provided with the PSC's decision (see s 171E). I am informed by Ms Bayley's evidence that the practitioner is subject to a supervision condition 6. The extensive submissions now prepared by the parties on the merits can be agitated in support of an application to the Chair of the PSC to revisit the publication restriction. If the List Manager cannot "lift" the publication order, can a fully constituted Tribunal do so? If there is no jurisdiction to vary the publication order under the National Law or the CAT Act other than at the hearing of the appeals, should the application be dismissed generally, and/ or should the appeals be expedited? 1. As I have concluded that I do not have the jurisdiction to make the interlocutory order I turn to the questions posed above. Having regard to the terms of s 158 I am satisfied that the Tribunal hearing the appeals by way of rehearing can make any finding or exercise any power the Tribunal could have made had the complaint originally been referred to the Tribunal. Those powers include the power to make orders under s 146B, s 146C and under cl 7 of Schedule 5D of the National Law and s 64 of the CAT Act. 2. The appeal is a "rehearing" at which fresh evidence, or evidence in addition to or in substitution for evidence received at the inquiry may be given. I agree with Mr Brown's submission, at para 24, that the determination of the panel hearing the appeal will be either to incidentally maintain [the publication restriction] or it will be altered by the ultimate decision of the Tribunal on the substantive appeal or cross-appeal. 3. I am conscious that appeals should as far as possible, and subject to procedural fairness, be heard expeditiously. Since I directed the parties to provide written submissions in this matter, the Registrar has received correspondence from the parties requesting new hearing dates in May 2020. Fortunately, the Tribunal is able to accommodate the parties' request and the appeals will now be listed for hearing on 13 and 14 May 2020. Conclusion 1. It appears to me the better course in these appeals is for the restriction on publication of the PSC's decision to be re-agitated by the Chair of the PSC with the benefit of submissions from the parties, a summary of which is set out in these reasons. Such an application will provide a just, cheap and expeditious resolution of the issue. So far as I am aware, that course has not occurred since the filing of the present application, but is not precluded. At the time of the making of the order, the Chair appears to have envisaged the order would be revisited at the time protective orders were made. 2. Mr Brown's submission that the appeals should be expedited has been overcome by the parties' subsequent application to change the hearing dates. If new dates had not been allocated I consider the submission about expedition had merit. Although at para 61 of her submissions counsel for the HCCC does not suggest a general expedition of the appeals she does contemplate that a full panel could be convened to determine the matter expeditiously. That will now occur with the new appeal hearing dates. ORDERS 1. Paragraph 2 of the Application for Miscellaneous matters filed on 13 February 2020 is dismissed. 2. The costs of the application are reserved to the Tribunal hearing the appeals. 3. The hearing dates fixed for 16 and 17 June 2020 are vacated. 4. The appeals are listed for hearing on 13 and 14 May 2020. ********** 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 March 2020