Is there a difference in substance between the requirements imposed on the Tribunal to give reasons by s 165M of the Health Practitioner Regulation National Law (NSW) (‘the National Law’) and the duty upon a court to give reasons?
Gautam v Health Care Complaints Commission [2021] NSWCA 85 (13 May 2021)
Intro:-
The NSW Civil and Administrative Tribunal (‘the Tribunal’) found Dr Gautam, a paediatrician, guilty of professional misconduct and issued a reprimand and imposed a three month suspension of his registration as a medical practitioner. The complaint before the Tribunal concerned the conduct of Dr Gautam towards the complainant (the mother of one of his patients) during a consultation at his rooms on 21 December 2017.
Dr Gautam appealed to this Court alleging that the Tribunal had provided inadequate reasons and misapplied the Briginshaw standard of proof. The Health Care Complaints Commission (‘the HCCC’) cross-appealed with respect to the orders imposed on Dr Gautam and sought in lieu of the penalty imposed an order cancelling his registration as a medical practitioner for at least two years. Both parties also sought leave to challenge factual findings.
Facts:-
The appellant is a paediatrician practising in Campbelltown. The complaint before the Tribunal concerned the conduct of the appellant towards the complainant (the mother of one of the appellant’s patients (‘Patient A’)) during the course of a consultation at the appellant’s rooms on 21 December 2017.
The essential factual contest before the Tribunal was what had happened between the appellant and the complainant at a consultation on 21 December 2017. The appellant “categorically denied” the complainant’s account of the consultation. The complainant and the appellant gave oral evidence and were cross-examined before the Tribunal.
Issues:-
Clause 29(4) of Sch 5 to the Civil and Administrative Tribunal Act 2013 (NSW) provides that an appeal in a case such as the present “may be made as of right on any question of law, or with the leave of the court, on any other grounds.”
1) should leave to appeal be granted to both parties to challenge factual findings in this case?
Appellant's Notice of Appeal
1) whether leave to appeal be granted based on the appellant's principal complaint about the absence of reasons or inadequacy of reasons on the part of the Tribunal.
2) whether the Tribunal misapplied the Briginshaw standard of proof?
Respondent's Cross-Appeal
1) whether the Tribunal had failed to take into account “the risk of the cross-respondent re-engaging in conduct the subject of the complaint”.?
2) whether there was a constructive failure to exercise jurisdiction?
3) whether the Tribunal failed to take into account the cross-respondent’s denial of the offending conduct and his apparent lack of insight into the same?
Analysis:-
Leave to appeal on factual findings
This case essentially involved a contest between two diametrically opposed accounts of alleged sexual impropriety. By its nature there are unlikely to have been any witnesses to the conduct. It has not been the law for many years that an account of alleged sexual impropriety needs be corroborated before it may be accepted in a criminal case, much less in addressing an allegation made under the Health Practitioner Regulation National Law (NSW) (‘the National Law’). The Tribunal observed the two critical witnesses give evidence. The Tribunal paid close attention to the credibility and reliability of the complainant’s account. The Tribunal tested the credibility and reliability of that account thoroughly, including by reference to the evidence of contemporaneous complaints.
No meaningful submission was advanced in support of the suggestion that without seeing the witnesses give evidence this Court was in a position itself to make factual findings about any of the issues in respect of which leave was sought. None of the circumstances of the kind described in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 and Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 permitting an appellate court conducting a rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW) to depart from a demeanour-based credit finding were identified. No reasonably arguable error of fact was identified by either party.
Appeal on questions of law
In exercising the statutory functions under the National Law, the Tribunal is obliged to provide reasons of sufficient cogency for its conclusions. The “minimum acceptable standard” for reasons under s 165M of the National Law depends on the nature of the case, the nature of the submissions made by the parties and the nature of the issues engaged.
The Tribunal in the present case was required to resolve issues of fact tendered for resolution by the parties. Senior Counsel for the appellant accepted that the Tribunal addressed each of the factual issues tendered for decision by the parties. I have concluded that the Tribunal gave adequate reasons for reaching each of the factual conclusions that it did. The Tribunal gave adequate reasons for its ultimate decision.
In preferring the complainant’s account to that given by the appellant, the Tribunal gave reasons. It explained that it had particular regard to the forthright and thoughtful evidence of the complainant, who it found to be a credible and reliable witness, the immediacy of the complaints, the essential consistency in the multiplicity of contemporaneous complaints and the content of those complaints.
As to ground 2, the Tribunal cited Briginshaw, and expressly noted that it had to be “comfortably satisfied” that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences for the appellant. The Court did not accept, as was submitted, that the Tribunal merely gave “lip service” to the Briginshaw standard.
Cross Appeal
The risk of the cross-respondent re-engaging in conduct the subject of the complaint was a matter plainly taken into account by the Tribunal. The Tribunal’s findings about the matters the appellant had put in place to prevent any recurrence, including not initiating handshakes, not disclosing personal details, removing the lock on the door, and installing a CCTV system used with the consent of patients, would be inexplicable unless the Tribunal was taking into account the very matter the HCCC alleges that it failed to consider. The Tribunal in these passages can be referring to nothing other than the risk of recurrence.
There was no constructive failure to exercise jurisdiction here.
The Tribunal correctly had regard to the principles underlying the proper exercise of its discretion, namely that its discretion to suspend or cancel the appellant’s registration was to be used to protect the community and not to punish the appellant. The Tribunal had regard to, and made findings about, matters which went to the appellant’s character, the out of character nature of the conduct, the unlikelihood of further conduct and the considerable steps taken by the appellant to ensure that conduct of the kind the subject of these proceedings never occurs again.
The Tribunal’s factual findings about penalty (none of which was sought to be challenged by the cross-appellant) about the steps taken by the appellant since the complaint was made, including altering his procedures where contact with patients was required, undertaking relevant courses and reading materials relevant to those courses and communicating openly with his colleagues about the complaint for the purpose of obtaining the series of references, were powerful indications of the appellant posing a low risk of re-engaging in further, similar conduct.
Conclusion:-
(1) Leave to appeal against factual findings refused;
(2) Appeal dismissed;
(3) Appellant to pay the respondent’s costs of the appeal;
(4) Cross-appeal dismissed; and
(5) Cross-appellant to pay the cross-respondent’s costs of the cross-appeal.
