Background
The Respondent’s decision was based upon what the Respondent described as a risk to the health and safety of the public.
The Applicant assisted a woman in removing her twin daughters from their father, who had been named residential parent by order of the Family Court of Australia. The mother only had a right of supervised contact at the time of the removal. The Applicant maintained that the mother had told him that the children’s father had sexually abused them.
The Applicant appealed the Respondent’s decision to the New South Wales Civil and Administrative Tribunal. The Tribunal dismissed that appeal.
Outcome
The Supreme Court of New South Wales allowed the appeal.
Reasoning
Comment on Respondent’s decision
The Court held that the Respondent’s conclusion that the Applicant posed a risk to the health and safety of the public had no evidentiary foundation and was irrational.
No complaint was made against the Applicant about how he practised as a doctor. Nor was there any complaint that he was not a suitable person to do so. The question of whether the Applicant was a fit and proper person to continue practising medicine was never in issue and the finding that he was not was a breach of procedural fairness.
Reasoning – overall conclusion
The Court commented that this was not a case in which a doctor merely said that an order of the Family Court should be disregarded or evaded because they considered the order to be wrong. The Applicant was not concerned with whether the order was “right” or “wrong” but was concerned only with what he feared would be the inevitable consequences of complying with the order (further abuse of the children).
The Tribunal’s decision suggested that it was because the Applicant had been charged with committing a criminal act, carrying the possibility if convicted of a significant period of incarceration, that confidence in the medical profession might thereby be reduced and that his suspension from practice was therefore justified. The Court did not accept that in the circumstances of the present case.
The fact that the Applicant faced serious criminal charges could not, without more, require the Tribunal to take the “significant step” to which it referred. The public interest was not obviously served by the suspension of a competent and experienced doctor whose medical skills were not in question and whose services are in demand simply because he has been charged with offences in respect of which he would appear to have an arguable defence.
The Court commented that reference to the “public interest” should be understood as a reference to the public interest in the protection of the public’s health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner’s registration is granted. In the present case, the relevant public interest must be in the conduct by the Applicant of his profession as a medical practitioner.
There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned.
The Court indicated that it could not (yet) be said that the Applicant’s alleged defiance of the court’s orders undermined the rule of law. For any number of reasons about which it is unnecessary to speculate, the Applicant’s guilt was not a foregone conclusion. The Tribunal’s conclusions were patently infected by assumptions of guilt.
In relation to the mechanism of complaint, the Court noted that the usual way in which a complaint against a doctor should be dealt with is by the making of a particularised complaint, which the doctor can address at an oral hearing and which, if sufficiently serious to warrant suspension, is to be referred to the Tribunal. This suggests that the power of the Respondent to suspend a doctor’s registration under s 150 should be reserved for urgent cases. This was not such a case and, as such the Respondent had no power to do so.
The implications
This decision provides an important delineation between how the decision maker should view criminal charges and criminal convictions in the context of disciplinary matters.
The Court was troubled by the Tribunal’s assumption that the Applicant would be found guilty by a criminal Court that underscored their findings. The Court noted that the Applicant’s behavior (which was not yet the subject of a conviction) did not undermine the rule of law, as submitted by the Respondent. There was an implication that, had the Applicant been convicted, a finding may have been open that his behaviour did so undermine the rule of law, but this was not expressly explored.
Interestingly, however, the Court did note that the wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine is not a concern that relevantly informs the particular public interest with which s 150 is concerned.
It was also important to the Court that the Applicant did not have an opportunity to respond to the finding that he was not a fit and proper person to practice medicine. In the Court’s view, the fact that there was no finding relating to how he practiced medicine meant that any finding that he was not fit and proper was in breach of procedural fairness.
To read the decision Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 click here.
