By Louise Cantrill, Partner and Cassandra McAlary, Lawyer

Two recent matters before the Court of Appeal provide guidance on when the Court may be prepared to allow an appeal from NCAT on professional misconduct for medical practitioners.

In the first case of Medical Council of New South Wales v Smithson [2021] NSWCA 53, the appeal was allowed whereas in the second case of Gautam v Health Care Complaints Commission [2021] NSWCA 85, the Court of Appeal refused leave and dismissed the appeal.

Appeal allowed – Medical Council of New South Wales v Smithson

Dr Smithson (psychiatrist) had his registration was suspended by the Medical Council (‘the Council’) pursuant to s 150(1) of the Health Practitioners Regulation National Law (‘the National Law’) in relation to his potential illicit drug use. Dr Smithson appealed the Council’s decision pursuant to s 159 of the National Law which provides the right of appeal for a new hearing. NCAT upheld Dr Smithson’s appeal.

The Council then appealed this decision before the Court of Appeal alleging NCAT had misunderstood its task and failed to apply the two-limb test of s 150 of the National Law. Dr Smithson conceded that NCAT erred in considering the correct legal test and the parties jointly sought to appeal NCAT’s decision. The Court of Appeal held that Dr Smithson’s concession was correct.

NCAT was required under s 159 of the National Law to stand in the shoes of the Council in a de novo hearing. In such a hearing, the legal standard to be applied is pursuant to s 150 of the National Law which applies a two-limbed test. The first limb of this test in relation to health and safety, and the second limb of the test is in relation to the general public interest. The limbs are to be considered individually although there sometimes is overlap.

NCAT had failed to consider the two-limbed test. The Court of Appeal commented that NCAT’s role was not to consider or determine whether a practitioner is currently a fit and proper person to carry on the role. NCAT was to decide whether, if Dr Smithson continued to practice, he posed an unacceptable risk to the health and safety of the public and whether there was an unacceptable risk to the public interest. Whether an order should be made to suspend the practitioner’s registration under s 150 of the National Law must consider the two-limbed test.

The Court of Appeal consequently allowed the appeal, quashing the decision of NCAT and remitted the matter back to NCAT to be reconsidered.

Appeal refused and dismissed – Gautam v Health Care Complaints Commission

The Health Care Complaints Commission (‘the HCCC) prosecuted a complaint in NCAT against Dr Gautam (paediatrician) regarding his conduct towards the mother of one of his patients during a consultation. NCAT determined Dr Gautam was guilty of professional misconduct and issued a reprimand and imposed a three-month suspension of his registration as a medical practitioner.

Dr Gautam appealed this decision to the Court of Appeal alleging that NCAT had provided inadequate reasons in the determination and misapplied the Briginshaw standard of proof. The HCCC cross-appealed with respect to the orders imposed on Dr Gautam and sought in lieu of the penalty imposed (three-month suspension) that an order be made to cancel his registration for a period of at least two years. Both parties also sought leave to challenge factual finding.

Section 165M of the National Law mandates NCAT to provide reasoning for its decision whereas s 62 of the Civil and Administrative Tribunal Act 2013 (NSW) applies only on request. The key question before the Court of Appeal was whether there was a failure to consider and address certain issues by NCAT. Leeming and Payne JJA, Simpson AJA determined that the NCAT had sufficiently detailed its reasoning process in reaching its factual conclusions and its final decision, including:

1. NCAT had specifically referred and utilised the correct test (Briginshaw).
2. NCAT knew that Dr Gautam did not admit the alleged conduct, he nevertheless provided evidence for the appropriate penalty in the event that his case was not favoured.
3. NCAT correctly exercised its discretion, specifically its discretion to suspend or cancel Mr Gautam’s registration, noting also that the decision was made to protect the community and not as a form of punishment.
4. NCAT had regard to and contemplated Dr Gautam’s character, and concluded that the conduct was isolated and it was unlikely to occur in the future due to the considerable steps taken Dr Gautam including; altering his procedures where contact was required, enrolling and completing relevant courses and disclosing the complaint with his colleagues in order to obtain references for the proceedings.

The Court of Appeal refused Dr Gautam leave to appeal against factual findings, concluding that sufficient reasons had been given, and also dismissed the cross-appeal on the basis that the three month suspension imposed was sufficient to protect the community in the circumstances.

These two cases are a reminder that considerations of public safety and public interest sit behind a s150 hearing and a practitioner needs to focus on these issues in presenting their case. Such hearings will otherwise turn on the specific facts of each case.