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Hill v Medical Council of NSW [2019] NSWCATOD 52 (10 April 2019)

Last Updated: 10 April 2019





Civil and Administrative Tribunal New South Wales

REASONS FOR DECISION

Introduction

Dr Adam Hill (the practitioner) is a specialist anaesthetist. On 4 March 2019, the delegates of the Medical Council of NSW (the Council) conducted proceedings under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law) relevant to the practitioner’s conduct on 15 November 2018. The delegates decided that the practitioner’s registration should be suspended on and from 4 March 2019. On 26 March 2019, the practitioner lodged an external appeal in the Tribunal. His appeal is brought under s 159 and s 159B of the National Law. The practitioner now seeks a stay of the Council’s decision relying on s 159B. Section 159B provides a right of appeal to the Tribunal “with respect to a point of law”. He also seeks, under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) or under the National Law, an order prohibiting publication of his name, the name of a hospital at which he was accredited and other associated non-publication orders. These reasons are in respect of the interlocutory relief sought. At the time the stay application was filed the delegates’ reasons for their decision had not been published, nor was the transcript of the proceedings before them available. However, very shortly prior to the hearing of the stay application the delegates’ reasons were provided to the practitioner’s lawyers. I was provided with a copy of the reasons at the hearing, but not the transcript of the s 150 hearing. The parties did not dispute that these interlocutory applications could be heard by me (see s 165B(5A) of the National Law). I propose in these reasons to first consider the application for a stay, and then to consider the practitioner’s application for a non-publication order. At the hearing before me, the parties did not oppose the substantive appeal being expedited. Orders were made fixing the appeal for hearing on 21 May 2019 and a time-table for filing of documents was agreed between the parties and reduced to short minutes of order.

Background

On 15 November 2018, the practitioner was the anaesthetist for a number of patients on the list of a colorectal surgeon at a Sydney hospital. It is asserted by the practitioner that, at the invitation of the colorectal surgeon, he put on a glove and conducted a rectal examination of a 37 year old patient who was admitted for a colonoscopy and biopsy of a posterior rectal mass. The colorectal surgeon is asserted to have said to the practitioner words to the effect of “it’s a once in a lifetime opportunity to feel” (the large tumour believed to be a Gastrointestinal Stromal Tumour). The colorectal surgeon is also asserted to have photographed the practitioner examining the patient on his mobile phone, and said he would distribute the photographs to other anaesthetists. Complaints were made to the hospital by nursing theatre staff about the conduct of the colorectal surgeon and the practitioner. A “show cause” notice as to why the practitioner should not be terminated was issued by the hospital. After considering his response, on 7 December 2018 the hospital terminated the practitioner’s accreditation from 8 January 2019. The practitioner is currently appealing that decision. The hospital’s Chief Executive Officer wrote to the practitioner on 7 December 2018 and recorded her finding that “your manner during the procedure was to treat this as a joke”. The practitioner disputes this finding. In the same letter the Chief Executive Officer states “that one or more members of the nursing staff present in the procedure room requested more than once that you stop, however this was ignored or not responded to”. The practitioner deposes in an affidavit affirmed on 25 March 2019 that “at no time did I hear any such request made of me whilst in the procedure room. It is not clear which nursing staff is alleged to have said this or the words allegedly used.” On 21 January 2019, Dr Annette Pantle, Medical Director of the Council, wrote to the hospital’s director of Medical Services. The Council’s letter explained that, having reviewed the hospital’s letter of 7 December 2018, it was alerting the hospital to the fact that it appeared the practitioner may have sexually assaulted the patient within the meaning of s 61l of the Crimes Act 1900 (NSW), or that he may be guilty of aggravated sexual assault within the meaning of s 61J of the Crimes Act. The writer of the letter also said

Furthermore, [the practitioner] may have committed the offence of ‘sexual touching’ and/or ‘aggravated sexual touching’ within the meaning of s 61KC and s 61KD of the Crimes Act respectively.

Dr Pantle asked the hospital to confirm whether or not she had referred the matter to the NSW Police. She advised if the hospital had not made a report to the Police, that the Council intended to do so itself. On 11 February 2019, the Council, on its own motion, made a complaint about the practitioner to the Health Care Complaints Commission. On 4 March 2019, an officer of the NSW Police sent an email to the Medical Director of the Council as follows:

As discussed I am investigating the report made by [the patient] against [the colorectal surgeon] and [the practitioner].

On 28 March 2019, the solicitor for the Council sent an email to the NSW Police advising that the practitioner’s registration had been suspended “because of a complaint by a patient that a tumour in his rectum was touched by [the practitioner] without clinical reason and without consent”. The NSW Police responded to the email the same day advising:

At the present time NSW Police won’t be taking any action against [the practitioner]. The victim in this matter [patient’s name] has informed police that he is still considering his options and seeking his own legal advice possible civil action. At the present time he doesn’t wish to proceed criminally.

The correspondence between the NSW Police and the Council was not in the material considered by the delegates at the s 150 hearing. The Council opposes both the practitioner’s application for a stay of his suspension and his application for non-publication orders in respect of his name. The Council do not oppose a non-publication order being made in respect of the patient, the hospital or the colorectal surgeon’s name.

The relevant statutory provisions – stay

The objective and guiding principles of the National Law are found in s 3 and s 3A (the latter being a NSW provision). Those provisions which guide and inform decision making under the National Law are as follows:

3 Objectives and guiding principles

(1) The object of this Law is to establish a national registration and accreditation scheme for—

(a) the regulation of health practitioners; and

(b) the registration of students undertaking—

(i) programs of study that provide a qualification for registration in a health profession; or

(ii) clinical training in a health profession.

(2) The objectives of the national registration and accreditation scheme are—

(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and

(b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and

(c) to facilitate the provision of high quality education and training of health practitioners; and

(d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and

(e) to facilitate access to services provided by health practitioners in accordance with the public interest; and

(f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.

(3) The guiding principles of the national registration and accreditation scheme are as follows—

(a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way;

(b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme;

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

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.

Note. This section is an additional New South Wales provision.

The practitioner’s substantive appeal is based on two provisions of the National Law (s 159 and s 159B). Those sections are as follows:

159 Right of appeal [NSW]

(1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession—

(a1) against a reprimand by the Council for the health profession under Division 3;

(a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension;

(b) against conditions imposed by the Council for the health profession on the person’s registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council;

(c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I;

(d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E;

(e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person’s registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K.

Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

(2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K.

(3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.

159B Appeals on point of law [NSW]

(1) A registered health practitioner or student who is the subject of action taken by the Council for the health profession under section 150, 150A or 150C may appeal, with respect to a point of law, to the Tribunal.

Note. An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.

(2) Subsection (1) does not limit a right of appeal under section 159.

(3) The Council must not make a decision that is inconsistent with the Tribunal’s decision with respect to a point of law under this section.

(4) A registered health practitioner or student may not make an application to the Supreme Court for judicial review of action taken by a Council under section 150, 150A or 150C, being an application alleging any error of law, until an appeal under this section in respect of the point of law concerned has been made and disposed of.

As explained by Sackville AJA in Medical Council of NSW v Lee [2017] NSWCA 282, there is no power under the National Law to stay a decision of a Council pending an appeal under s 159 of that law. The provisions of the National Law provide an exclusive code, and the stay provisions of the Civil and Administrative Tribunal Act 2013 (NSW) have no application. However, the Tribunal may stay a decision pending an appeal on a point of law under s 161B and s 165L (2). Those provisions as follows:

161B Appeal does not stay decision [NSW]

An appeal under this Division does not operate to stay the effect of the decision being appealed against unless the Tribunal otherwise orders.

165L Interlocutory orders [NSW]

(1) ....

(2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of.

(3) ...

Principles relevant to the granting of a stay

The relevant principles in a protective jurisdiction are succinctly summarised by Professor Millbank in Liu v Chinese Medicine Council of NSW [2019] NSWCATOD 13 at [11]–[12] as follows:

There is a wealth of general guidance on principles to be considered in exercising a stay power: Commissioner of Taxation v Myer Emporium Ltd [No.1] [1986] HCA 13; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84. In the context of this Tribunal, Wright J on behalf of the Appeal Panel summarised such principles in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 as including:

(1) The onus is on an applicant for a stay to make out a case that it is appropriate to make such an order.

(2) An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal.

(3) The Tribunal may take into account the strength or otherwise of the case of the party seeking the stay.

(4) The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies.

(5) In exercising the discretion the Tribunal will weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties.

(6) The overriding principle in an application for a stay is to ask what the interests of justice require.

These general principles must be considered and applied within the specific context of the National Law, in particular the object and guiding principle expressed in s 3(2)(a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, and the paramount consideration of the protection of the health and safety of the public in s 3A: Kesserwani v Chiropractic Council of NSW [2015] NSWCATOD 77.

The practitioner’s grounds of appeal and submissions on the stay application

The practitioner brings his appeal both under s 159 and s 159B. The appeal under s 159 is a hearing de novo and the Tribunal may consider evidence in addition to the evidence that was before the delegates. It is unnecessary for me to consider the practitioner’s appeal grounds under s 159 both by reason of the nature of the appeal, and because this stay application is based squarely on an appeal on a point of law. I note that the decision of the delegates may be reconsidered under s 150A or, more relevantly in this case, under s 150C of the National Law. The practitioner relies on a single ground of appeal under s 159B, namely “the appellant appeals on the basis that the Decision is so unreasonable and plainly unjust that it is wrong in law”. Reliance is placed on Annexure A to the External Appeal Form, which is a document consisting of 18 paragraphs. Parts of those paragraphs have been summarised by me under the heading background. At para 1.13 and following it is noted that the practitioner has not seen or been in possession of the photograph/s taken by the colorectal surgeon. It is also noted that, immediately following the rectal examination by the practitioner, he escorted the patient to the recovery room. The practitioner asserts that on returning to the operating theatre the colorectal surgeon told him a nurse had complained about the colorectal surgeon’s behaviour. The written submissions filed on behalf of the practitioner are comprehensive. I do, however, take into account they were prepared and lodged with the Tribunal prior to the practitioner having the benefit of the Council’s reasons for decision. I accept as correct and adopt the nature of decision making under s 150 as set out by Marks F ADCJ, in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 and extracted at 3.5 of the practitioner’s submissions. The practitioner’s submissions assert that the delegates’ decision to suspend the practitioner was based on the second limb of s 150, namely because the delegates considered they were “satisfied the action is otherwise in the public interest”. The written reasons confirm that it was the second limb of s 150 on which the delegates based their decision to suspend the practitioner. The written submissions filed on behalf of the practitioner assert there are strong prospects of success in relation to the ground of appeal relied on under s 158B. It is further submitted that when the delegates’ reasons are published further grounds of appeal may be identified. The thrust of the written submissions is that, in the absence of reasons, I should draw the inference of legal error from the outcome (i.e. the practitioner’s suspension) of the delegates’ decision. Reliance in support of this proposition is based on the statement in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437 at [45]. The submissions refer to the decision of Wright J presiding in the Appeal Panel of this Tribunal in Bentram Pty Ltd v Sabbarton [2014] NSWCATAO 37 at [9]. I adopt those principles as relevant to the stay application. I also take into account the additional principles to be considered when considering a stay application in a protective jurisdiction. The submissions note that the practitioner is not working and continues to suffer “serious reputational and financial stress”. He has lost his clinical privileges at 11 hospitals. It is submitted that the longer his “hiatus in deregistration” (I assume a reference to the practitioner’s suspension) the more likely that the reputational harm will become irreversible. It is submitted that: (1) No reasonable person properly applying the test in s 150 could have made it; or

(2) It is irrational or illogical; or

(3) It is plainly unjust and arbitrary; or

(4) The decision does not relate intelligibly to the purpose of the statutory power being exercised. At 7.7 the submissions assert:

The power to suspend a medical practitioner has been described by Levine J of the Supreme Court of NSW as "draconian": X v NSW Medical Board ( 1993) 32 ALD 330. Such powers, whilst necessary to protect the public in the face of legitimate and serious risks, need to be exercised in a responsible, proportionate and balanced way. The impugned action of Dr Hill, the act of examining a tumour in a patient that he had responsibility for anaesthetising, must be considered in the context in which it occurred. Dr Hill is a trained medical practitioner involved in the surgery of the patient. In surgical theaters [sic] medical practitioners work as teams and share expertise and experiences. Whilst Dr Hill now fully appreciates that he should not have examined the tumour, it was not done for any salacious or gratuitous purpose. Dr Hill examined the tumour because he was clinically curious and following the recommendation of the surgeon performing the procedure who exhorted the uniqueness of the clinical findings. These clinical findings were intrinsically related to the procedure being performed. Such a curiosity, properly directed, may be considered intrinsic to the practice of medicine.

At the hearing of the stay appeal, Mr A Moses, SC, who appeared for the practitioner made oral submissions, which may be summarised as follows: (1) The delegates’ reasoning is flawed in law because in reaching their decision they relied on a statement in an irrelevant document namely the Medical Board of Australia Guidelines: “Sexual Boundaries in the Doctor-Patient Relationship”. It is not in dispute that this version of the Guideline was published after the incident on 15 November 2018.

(2) The delegates’ decision is wrong in law because they took into account the fact that a complaint had been made to the NSW Police about the practitioner and formed the view that the practitioner’s conduct may amount to sexual assault or aggravated sexual assault (s 61l and s 61JA of the Crimes Act).

(3) It is submitted it is relevant that the Council, a model litigant before the Tribunal, in its submissions at 2.6, in response to the submissions relied on by the practitioner, submits that “the delegates did not conclude that the Applicant conducted the rectal examination for any perverse reason or gratuitous purpose”.

(4) Before me it was argued that reliance on practitioner’s conduct amounting to sexual assault or aggravated sexual assault under the Crimes Act is unsustainable. Reference was also made to the practitioner’s evidence before the Council that he was motivated by clinical curiosity. At the hearing before me, the solicitor for the Council read from an iPad the contents of an email from the NSW Police to the Council. I requested, with consent from the practitioner’s senior counsel, that I be provided with a copy of all correspondence between the Council and the NSW Police regarding any report made to the Police or correspondence between the Council and the Police. On 2 April 2019, the Council forwarded a chain of email correspondence between the Council and the NSW Police; relevant parts of which I have summarised under the heading “background”. Further correspondence between the parties’ solicitors was sent to the Registrar. Neither party sought to reopen the hearing before me. In these circumstances, I have not taken correspondence, other than that ordered by me to be filed, into account. That correspondence may be admitted as further evidence at the substantive expedited appeal.

The Medical Council’s submissions in respect of the stay application

Having set out what is described as the “undisputed” factual background, the submissions note at 2.4:

Although it was not the delegates’ role to make findings of fact, they were satisfied based on the documentary material and the Applicant’s oral evidence that he performed a rectal examination on a patient who was under anaesthetic. The patient had not given consent and there was no medical reason for the rectal examination. The Applicant admitted at the s. 150 hearing that he was not giving a second opinion, that he was motivated out of clinical curiosity and that the rectal examination was outside his scope of practice as an anaesthetist

The footnote to the submissions refers to para 7 of the delegates’ reasons. The submissions go on to note at 2.5:

Whilst the delegates noted the Applicant’s submissions about his remorse and willingness to apologise to the patient, they were concerned about his poor decision making and the seriousness of his actions, which may amount to aggravated sexual assault. The delegates expressed a belief that the risk was such that it was appropriate to [sic] action in the public interest.

When considering the criteria to be considered in the exercise of discretion in determining whether or not to grant the stay, I will refer in greater detail to the Council’s submissions in response to those made on behalf of the practitioner.

Discussion

The nature of an appeal on a point of law

I was not directed to any authority on the issue of the wording of s 158B, in particular, to the phrase “with respect to a point of law”. In Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 the phrase was considered in the context of an appeal under s 90(1)(a) of the Medical Practice Act 1992 (NSW) (repealed) (the repealed Act). Basten JA (with whom Giles JA and Bergin J agreed) noted it was submitted by the respondent practitioner that as no question of law had been identified during the course of the inquiry, that no relevant decision could be said to be open to challenge under s 90(1)(a) of the repealed Act. His Honour rejected that argument and explained at [14]:

Later in his reasons, at [24] his Honour noted:

... Paragraph (a) of s 90(1) is not, it should be noted, limited to decisions on substantive issues: it also applies to errors in making disciplinary orders.

At [25] his Honour explained “[t]he facts relevant to an appeal on a question of law should be derived from the findings made by the Tribunal. ...” Finally, on this topic, at [46] his Honour dealt with the issue of the construction of words or phrases in a statute. His Honour explained:

Statutory language may involve a composite phrase of which individual words have an ordinary meaning. However, as noted by Lord Hoffman in R v Brown [1996] AC 543 at 561, in a passage cited with approval in Agfa-Gevaert (at p 397), it is fallacious to think that meaning is to be determined by taking the individual components of a sentence or phrase and identifying separately the ordinary meaning of each. Once it is accepted that construction of a statutory provision will usually involve a consideration of words in their context, and that this will involve a question of law, it can readily be seen that most questions of construction will involve questions of law. That approach gains support from the obligation imposed by s 33 of the Interpretation Act 1987 (NSW) (which has its equivalents in most jurisdictions) to adopt a construction that will promote the purpose or object underlying an Act or statutory rule. The identification of that purpose or object is itself likely to involve a question of law. Accordingly, it may be accepted for present purposes that a misapprehension on the part of the Tribunal as to the scope and operation of the phrase “not of good character” will involve an error in point of law.

In this instance, I find that the point of law is whether the delegates’ decision to suspend the practitioner’s registration was erroneous because they relied on a particular paragraph on the guideline “Sexual Boundaries in the doctor-patient relationship” (which guideline was not published at the time of the incident) and/or their belief the practitioner may have committed a serious criminal offence. Thus, I am satisfied an appeal is arguable under s 159B. Consequently, there is power to grant a stay of the suspension order. I turn now to the consideration of factors relevant to the exercise of discretion to grant or refuse the stay.

What is encompassed by the expression “in the public interest”?

The delegates relied on the remarks of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307, which they set out at [5] of their reasons. In that decision, his Honour was considering the nature and purpose of protective orders made in the context of disciplinary proceedings and after findings of unsatisfactory professional conduct or professional misconduct by a Tribunal. His Honour’s remarks must generally be considered in the context in which they were made. In Crickitt (No 2) at [56], an appeal against the decision of a Council to suspend the registration of a practitioner who had been charged by the NSW Police with the murder of his wife, and who had prescribed for his late wife contrary to relevant guidelines, the Tribunal, after canvassing a number of authorities in both health and legal disciplinary proceedings, referred to public interest in these terms:

...

(f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits.

...

I also have regard to the decision of the plurality in the High Court in O’Sullivan v Farrer (1989) 683 CLR 210 at 216; [1989] HCA 61 as follows:

Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be (pronounced) definitely extraneous to any objects the legislature could have had in view": Water Conservation and Irrigation Commission, per Dixon J. at p 505.

Public interest is also the subject of discussion by Beech-Jones J in Berger v Council of the Law Society of NSW [2013] NSWSC 1080. His Honour’s remarks are made in the context of the broadly analogous regime in the Legal Profession Act 2004 (NSW) (repealed) dealing with professional discipline. His Honour notes at [15]-[16]:

Leaving aside the powers of this Court to remove practitioners from the roll of solicitors which is preserved by s 590, the end point of the complaint regime in the Act is the making of a determination by the Tribunal as to whether or not a practitioner has engaged in unsatisfactory professional conduct or professional misconduct (s 551(1) and s 562(1)). If the appropriate findings are made then the Tribunal is empowered to make "orders as it thinks fit" (s 562(1)) which can include an order that the name of the practitioner be removed from the "local roll" (s 562(2)(a)) or that their practising certificate be suspended for a specified period or cancelled (s 562(2)(b)).

Thus a decision to suspend under s 548(2) has the capacity to pre-empt and perhaps undermine the structure for dealing with complaints created by Chapter 4 including the protections afforded to practitioners the subject of complaints. No doubt for this reason the power can only be invoked if the Law Society in the first instance, or this Court on appeal, considers it "necessary" in the public interest to suspend the practising certificate. In a different but equally serious context the High Court has observed that the word "necessary ... is a strong word" (Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 at [30] per French CJ, Gummow, Hayne, Heydon and Kiefel JJ). In this context it connotes a relatively high degree of satisfaction that the suspension should be ordered pending the pursuit of a complaint. It can be contrasted with the power of the Tribunal to make "such orders as it thinks fit" (s 562(1)).

I am, however, conscious that the wording of s 150 requires the delegates to find it is “appropriate” in the public interest to impose a sanction, rather than “necessary” to do so in the public interest. Nonetheless, if in the public interest is regarded as a stand alone criteria separate from health and safety of the public, Beech-Jones J’s remarks about the possible pre-empting of the ultimate disciplinary decision particularly, as in this case, where no charges had been laid against the practitioner have resonance.

The asserted draconian nature of the action taken under s 150

On behalf of the practitioner it is asserted that the suspension, based not on a risk to the health and safety of the public, but “in the public interest” is draconian in circumstances where the practitioner has acknowledged his wrong doing, expresses remorse, and is not likely to repeat the behaviour. The severity of the consequences of suspension are acknowledged by the Council in its submissions. However, it is submitted the draconian consequences “do not, in and of themselves lead to a conclusion of irrationality or unreasonableness”. I note and agree with the submission made on behalf of the Council that although draconian, in cases coming before the Council often suspension is the only outcome pending the hearing of disciplinary proceedings that can effectively protect the health and safety of the public. I take into account and give some weight to the fact that the practitioner is a relatively young man and the suspension means he cannot practise his profession with consequent loss of status, and income. I also take into account as noted in the Council’s correspondence to the Police, unless successful in his appeal, it may be many months before disciplinary proceedings come before the Council, or more likely in the circumstances of this practitioner, before the Tribunal. I note the criticism of the Council about the paucity of evidence about the practitioner’s financial affairs. I do not place any significant weight on that submission. These proceedings were brought on an urgent basis. No doubt any adverse financial implications of a suspension can be fully explored at the hearing of the appeal.

Has the practitioner established it is appropriate to stay the suspension order?

I turn now to consider other factors relevant to the exercise of discretion to stay the suspension order pending the hearing of the appeal.

Will the appeal be rendered nugatory if a stay is not granted?

This is not a case where if the stay is not granted the practitioner’s appeal will be rendered nugatory. I have taken into consideration that the practitioner’s appeal is now listed for hearing on 21 May 2019. If he is successful in his appeal, his suspension will be lifted, although conditions may be imposed on his registration. I accept if a stay is not granted that he will not be in a position to work in his professional capacity with concomitant loss of income until the disposition of his appeal. That is a factor to be considered in weighing the parties’ competing interest and is relevant to the interests of justice.

The likely strength or otherwise of the practitioner’s appeal

For the purposes of this stay application my focus is limited to consideration of the likely success of the appeal ground agitated under s 159B not the de novo hearing of the matter under s 159. I accept in respect of the latter further evidence may be before the Tribunal which may be directly relevant to any action under s 150. It was not apparent on the material before me at the hearing who had made a complaint to the NSW Police which may have led to charges being brought against the practitioner under the Crimes Act. During the hearing I was advised from the Bar Table that the Principal Legal Officer of the Council, Ms Sato, understood a complaint had been made to the NSW Police about the incident by the patient. Ms Sato informed me that she had discussions with the NSW Police, and then read from her iPad the contents of an email from the NSW Police. I subsequently received the chain of email correspondence between representatives of the Council and the NSW Police Officer handling the matter. Ms Sato caused correspondence to be sent to the Registry after the hearing, with a copy to the practitioner’s solicitor. Ms Sato noted before me at the hearing that she had withdrawn her statement that the patient had reported the incident to the police. Ms Sato explained that she wished to “correct the record” and that: (1) she did not know if the hospital had reported the matter to the Police; and

(2) that the patient had, based on an email from Det S/c Vickery dated 4 March 2019 to Dr Pantle, reported the matter to the Police. In correspondence received by the Registrar from the practitioner’s solicitor and dated 2 April 2019 in response to the emails provided by the Council, the practitioner’s solicitors explain: (1) The solicitors have not been able to contact the relevant NSW Police Office to clarify the assertions made by Ms Sato nor have they provided her with any information saying the patient directly lodged complaint.

(2) The solicitors assert:

The latest evidence that the Tribunal has before it is the email dated 28 March 2019 at 11.52am from Detective Senior Constable Vickery to Ms Sato in which he confirmed that the NSW Police would not be taking action against [the practitioner]. The content of that email contradicts any assertion that the patient had lodged the complaint or wanted to progress the matter with the NSW Police.

On the state of the evidence before me, I find that the Council did not, notwithstanding the advice in Dr Pantle’s letter to the hospital dated 21 January 2019, refer any complaint about the practitioner to the NSW Police. I further find a report was made to the Police about the actions of the practitioner and the colorectal surgeon. I accept however, that “at the present time” the Police will not be taking any action against the practitioner, nor does the patient “at the present time” wish to do so. It is necessary for me to explore in some depth the issue of potential charges under the Crimes Act because it is the position of senior counsel for the practitioner that the decision of the Council is fundamentally flawed principally because of the reliance the delegates placed on the references in the Council’s correspondence and chronology prepared for the s 150 proceedings to charges which may be brought against the practitioner under the Crimes Act. In a letter dated 21 January 2019 addressed to the hospital, the Medical Director of the Council, Dr A Pantle, noted that the Council’s legal team had reviewed the hospital’s letter to the colorectal surgeon and the practitioner noting:

On the information provided, it appears that [practitioner’s name] may have sexually assaulted the patient in question within the meaning of section 61l of the Crimes Act 1900 (NSW) when he placed his finger/s insider [sic] the patient’s rectum on 15 November 2018. Given his position of authority over the patient, he may also be guilty of aggravated sexual assault within the meaning of section 61J of the Crimes Act. Furthermore, [the practitioner] may have committed the offence of sexual touching” and/or “aggravated sexual touching” within the meaning of sections 61KC and 61 KD of the Crimes Act respectively.

In their reasons the delegates noted that the practitioner’s evidence before them was that he responded to the colorectal surgeon’s invitation to inspect the patient’s tumour and that after initial hesitation he did so taking into account the patient’s age and size and the rarity of the tumour. At page 5 of their reasons, the delegates recorded:

We put to [the practitioner] our concerns that action should be taken in the public interest. The patient had not given consent to his physical examination and was vulnerable, having given up all his self-autonomy. [The practitioner’s] counsel made submissions including that the context of the incident was critical. [The practitioner’s] interest in the patient was purely in good faith; the patient was the same age and the tumour was rare. [The practitioner] was reflective and contrite. The incident was an aberration with “zero chance of repetition”.

At page 7, the delegates noted they were not required to make findings, then proceeded to do so, including making a finding that the there was no clinical reason for the practitioner to perform the examination which he did. The delegates further recorded (and underlined to give emphasis) that the evidence before them indicated “that the nurses told the surgeon and [the practitioner] to stop. I pause to note there was no evidence before the delegates from the nurses. I note however, in the letter from the hospital’s Chief Executive Officer to the colorectal surgeon, after reciting that the surgeon had taken photographs, it is recorded at para 13 that “I find that one or more of the members of the nursing staff present in the procedure room requested more than once that you stop, however this was ignored or not responded to”. In his statement which was before the delegates, the practitioner at [17] states that it was after he returned to the operating theatre, having taken the patient to the recovery room, that the colorectal surgeon told him a complaint had been made by one of the nursing staff regarding the colorectal surgeon’s conduct. At page 7 the delegates recorded:

We considered [the practitioner’s evidence] that he has learnt from his mistake and that he recently turned down another surgeon’s request to feel a patient’s breast lump in theatre. He is remorseful and is prepared to apologise to the patient and hospital staff. The seriousness of his actions, which may amount to aggravated sexual assault, however, cannot be underestimated and is further underscored by its referral to the NSW Police for investigation. We believe the risk is such that action should be taken. [my emphasis].

The actual provisions of the Crimes Act, referred to by the Council in its correspondence to the hospital, were not before the delegates. It is important to look both at all the sections nominated by the Council encompassing the practitioner’s conduct, as well as the definitions of the terms found in the Crimes Act. Section 61l of the Crimes Act provides:

61I Sexual assault

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

Sexual intercourse is defined in s 61HA as follows:

61HA Meaning of “sexual intercourse”

For the purposes of this Division, sexual intercourse means:

(a) sexual connection occasioned by the penetration to any extent of the genitalia (including a surgically constructed vagina) of a female person or the anus of any person by:

(i) any part of the body of another person, or

(ii) any object manipulated by another person,

except where the penetration is carried out for proper medical purposes, or

(b) sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person, or

(c) cunnilingus, or

(d) the continuation of sexual intercourse as defined in paragraph (a), (b) or (c).

Section 61J provides as follows:

61J Aggravated sexual assault

(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.

(2) In this section, circumstances of aggravation means circumstances in which:

(a) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(b1) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict grievous bodily harm or wounding on the alleged victim or any other person who is present or nearby, or

(c) the alleged offender is in the company of another person or persons, or

(d) the alleged victim is under the age of 16 years, or

(e) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(f) the alleged victim has a serious physical disability, or

(g) the alleged victim has a cognitive impairment, or

(h) the alleged offender breaks and enters into any dwelling-house or other building with the intention of committing the offence or any other serious indictable offence, or

(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence.

(3) In this section, building has the same meaning as it does in Division 4 of Part 4.

The offence of “sexual touching” is set out in s 61KC. It provides as follows:

61KC Sexual touching

Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent intentionally:

(a) sexually touches the alleged victim, or

(b) incites the alleged victim to sexually touch the alleged offender, or

(c) incites a third person to sexually touch the alleged victim, or

(d) incites the alleged victim to sexually touch a third person,

is guilty of an offence.

Maximum penalty: Imprisonment for 5 years.

Sexual touching is defined as:

61HB Meaning of “sexual touching”

(1) For the purposes of this Division, sexual touching means a person touching another person:

(a) with any part of the body or with anything else, or

(b) through anything, including anything worn by the person doing the touching or by the person being touched,

in circumstances where a reasonable person would consider the touching to be sexual.

(2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include:

(a) whether the area of the body touched or doing the touching is the person’s genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person’s breasts, whether or not the breasts are sexually developed, or

(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or

(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.

(3) Touching done for genuine medical or hygienic purposes is not sexual touching.

Aggravated sexual touching is defined as follows:

61KD Aggravated sexual touching

(1) Any person (the alleged offender) who without the consent of another person (the alleged victim) and knowing that the alleged victim does not consent and in circumstances of aggravation intentionally:

(a) sexually touches the alleged victim, or

(b) incites the alleged victim to sexually touch the alleged offender, or

(c) incites a third person to sexually touch the alleged victim, or

(d) incites the alleged victim to sexually touch a third person,

is guilty of an offence.

Maximum penalty: Imprisonment for 7 years.

(2) In this section, circumstances of aggravation means circumstances in which:

(a) the alleged offender is in the company of another person or persons, or

(b) the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(c) the alleged victim has a serious physical disability, or

(d) the alleged victim has a cognitive impairment.

I am satisfied that there was no evidence before the delegates, that a report had actually been made to the Police by either the patient, the Council or the hospital. Rather, it appears the delegates drew an inference a report had been made by reason of the correspondence dated 21 January 2019 from Dr Pantle on behalf of the Council to the hospital. I note this correspondence, which sets out provisions of the Crimes Act, is referred to by the delegates at the second paragraph of their reasons under the heading “Background”. Thus, the delegates’ statement at page 7 of the reasons on the evidence before them was in error. There the delegates said:

...

The seriousness of his actions, which may amount to aggravated sexual assault, however, cannot be underestimated and is further underscored by its referral to the NSW police for investigations. [my emphasis]

...

Although it is unnecessary to make a finding, nor would it be appropriate for me to do so on this application, it appears unlikely, given the wording of s 61KC (and the definition of sexual touching in 61HB), that the practitioner would be liable to be charged with these offences in the factual circumstances of this matter. This is a very different situation to that which faced the Tribunal on the appeal in Crickitt (No 2). There the practitioner had been charged with murder, the Tribunal had the benefit of the evidence in the Police brief, and relevantly, evidence of inappropriate prescribing by the practitioner. The delegates also set out in their reasons Section 3.1 of the Medical Board of Australia Guidelines: “Sexual Boundaries in the Doctor-Patient Relationship”. The delegates noted that 3.1 provides “that breaches of sexual boundaries include conducting a physical examination which is not clinically indicated or when the patient has not consented to it”. The reliance on the paragraph occurred, not as a result of the fault of the delegates, but because the documents prepared by the Council included the wrong guideline. However, it appears that the delegates’ reliance on the document that the practitioner’s conduct was sexual in nature, when coupled with their belief the practitioner may have committed serious criminal offences, influenced their decision making. The delegates’ reasoning about the inappropriate nature of the practitioner’s conduct, the lack of consent by the patient, and the lack of proper clinical purpose are not subject to challenge on this application. However, Ms Sato now concedes on behalf of the Council that it accepts the practitioner was motivated by clinical curiosity and not any salacious, gratuitous or any other perverse purpose. It is not my role in determining the stay application to determine the success or otherwise of the practitioner’s ground of appeal. Rather, without determining the issue, I find in relation to the Applicant’s appeal on a point of law, there are reasonable prospects of success. This is a matter that weighs heavily in favour of granting the stay.

Consideration of the interests of justice

The delegates of the Council must, if they find it appropriate to do so to protect the health or safety of persons or the action is otherwise in the public interest, either suspend a practitioner’s registration or impose conditions on his or her registration. The procedure has been described as akin to the granting of an interlocutory injunction, or in other jurisdictions to “immediate action orders”. The task is often a difficult one, generally occurring with a confined hearing and limited material before the delegates. The delegates’ role is a most important one in the scheme of the National Law having regard to its objects and principles. As Basten JA noted in Medical Council v Lee at [91]-[92] the Council has the power to suspend a suspension decision under s 150C pending the hearing of an appeal. His Honour noted:

The Council has power to set aside a suspension decision or take any action available to the Council under s 150 where the medical practitioner seeks review of the decision pursuant to s 150A of the National Law [NSW] (s 150A(3)). The Council may exercise this power to vary or set aside a suspension decision only if there has been a change in the medical practitioner’s circumstances (s 150A(4)). However, the National Law [NSW] confers a further power on the Council to end a period of suspension and to alter or remove any conditions imposed on the medical practitioner (s 150C). This power may be exercised at any time and is not conditional on the medical practitioner lodging an appeal or demonstrating a change in his or her circumstances. Presumably it is open to the Council to act on its own motion whenever it considers it appropriate to terminate a suspension.

Of course the power is not at large. The Council would no doubt have to be satisfied that ending a period of suspension is in the public interest having regard to the “paramount consideration” identified in s 3A of the National Law [NSW]. Nonetheless, the language of s 150C is broad enough to permit the Council to end a suspension where an appeal by the medical practitioner under s 159 is pending. Section 150C does not appear to contemplate in terms that the Council can stay its own suspension decision. But it could exercise its power to end the suspension decision and, if circumstances warrant reimposing the suspension, it could do so by re-exercising its power under s 150 to suspend the medical practitioner.

In this case it is not asserted that there is any present risk to patients if the practitioner re-engages in practice. While it may be open to the Council to suspend the suspension pending the practitioner’s appeal, that has not occurred. The Council could end the suspension under s 150C. However, if I grant the stay pending the hearing of the appeal, and the practitioner’s appeal is unsuccessful, the suspension can be re-imposed if appropriate to do so. I am satisfied that the prejudice to the practitioner by reason of his loss of professional practice in circumstances where he has acknowledged his wrong doing, is not likely to engage in similar conduct and is remorseful outweighs any prejudice to the Council acting in the interests of the public in maintaining the suspension. As noted above, if totally unsuccessful in his appeal the suspension will remain in place, unless lifted under s 150A or s 150C, until the complaint about the practitioner is resolved. In circumstances where the period between this application and the appeal is short there can be little or no prejudice to the Council in its role as upholder of appropriate standards in the profession in the public interest if the suspension is stayed.

Conclusions

As I am satisfied that as the practitioner does not pose a risk to health and safety of the public, that he has reasonable prospects in respect of his ground of appeal on a point of law, and that a suspension or conditions can be imposed if he is unsuccessful in his expedited appeal, that his suspension should be stayed pending the hearing and determination of his appeal.

A notation

In the course of this hearing, I was provided with all the material the Council gave to the practitioner including a document entitled “Guidelines for Conduct of Proceedings Pursuant to Part 8 Division 3 Subdivision 7 of the Health Practitioner Regulation National Law”. The document is dated July 2010 and at 11 refers to “Appeal to the Chairperson of the Medical Tribunal on a Point of Law” and at 12 to an “Appeal to the Medical Tribunal against a Council’s decision to take action under s 150 of the National Law”. The information is likely to be confusing to any practitioner who does not have the benefit of legal representation as, since 1 January 2014, the appropriate Tribunal is the NSW Civil and Administrative Tribunal.

The non publication order

The practitioner seeks wide ranging non-publication orders including an order prohibiting publication of his name on the basis of likely reputational damage. As earlier noted, the Council does not oppose an order suppressing the identification of the patient, the hospital or other professionals involved in the incident. I am independently satisfied that it is appropriate to protect the privacy of those persons, and/or to afford them procedural fairness that orders should be made. In this regard I have regard the remarks of the NSW Court of Appeal in Kostov v YPOL Pty Ltd (No 2) [2019] NSWCA 1 in respect of the need to maintain privacy of patient records of third parties who are not parties to the litigation. The Court’s comments are apposite to maintenance of the privacy of the patient in this matter who, no doubt, has already suffered enough on learning of the actions of the colorectal surgeon and the practitioner. The practitioner submits that if his name is published this will lead to identification of the patient. I do not accept that is the case. The practitioner’s evidence is that he was accredited in some 11 hospitals. The particular hospital is not named in these reasons. Nothing in these reasons identifies the hospital or the colorectal surgeon. The hospital will not breach the patient’s privacy. I contrast this with the position in Health Care Complaints Commission v CSM [2018] NSWSC 902 where identification of the practitioner could reasonably have led to the identification of the patient. In its submissions the Council refers to a number of decisions of this Tribunal dealing with the principles to be applied in the making of a non-publication order in disciplinary proceedings including Health Care Complaints Commission v Vo [2014] NSWCATOD 127 and Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135. These principles are not in dispute. These proceedings were conducted in an open hearing. I am satisfied that there are no special, exceptional or out of the ordinary circumstances of which I am aware at this time which warrant the suppression of the practitioner’s name.

ORDERS

(1) Pending the hearing and determination of the expedited appeal under s 159 and s 159B of the Health Practitioner Regulation National Law by Dr Adam Hill (the practitioner) the suspension imposed by the Medical Council of NSW on 4 March 2019 is stayed.

(2) The practitioner’s application for a non-publication order in respect of his name is dismissed.

(3) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of the patient, the colorectal surgeon and the hospital referred to in the proceedings.

**********

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

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