Very rarely does one get a judgement from a law court which is of public interest and its reasons so simply stated that everyone can comprehend it. Of deeper significance, it also points to a rudimentary weakness of the powers of authorities. The judgement in question is from Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111, which was delivered in June this year. The court is the Court of Appeal of New South Wales.
Dr Chatoor is a cardiologist practising in New South Wales. He took the view that a 91-year-old patient required a pacemaker to be inserted and he went on to perform the procedure. A complaint was brought to the medical authority under the Health Practitioner Regulation National Law (the National Law) of the state for ‘unsatisfactory professional conduct’. A Committee was convened by the Medical National Board to investigate on the complaint and he was found to have acted unsatisfactorily. Dr Chatoor appealed to the tribunal as provided for under the National Law. The tribunal was presided by a District Court judge who was assisted by two medical doctors and it concluded: ‘Inserting a pacemaker in Patient A fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.’ But the tribunal did not give reasons for its decision. In the light of such an elementary default the Court of Appeal has an easy task. It simply needs to state as MacFarlan JA did: ’The Tribunal did not however state why that was so.’ On that ground the tribunal’s decision was set aside. Interestingly the judges did not think it necessary to give the tribunal a lesson about the need to provide cogent reasons for its decision. It is a familiar issue from administrative bodies and the courts have been very firm and clear on such matters. The surprising thing is why the lesson is not learned by those in authority.
The lesson to be learned is this: where an authority has power to decide on the rights and livelihood of people it has to act ‘judiciously.’ What that means in broad terms is that it has to act according to the law and reasonably, and not arbitrarily. Where it makes a decision it has to give cogent reasons for it.
I have a particular interest whether the lesson is learned in the governance of health practitioners. A doctor friend from South Australia has for some time told me how aggrieved he is with the health practitioner regulatory authority in Australia. My friend’s name is Dr Ng. In 2018 when he was practising as a locum in Queensland, complaints were made against him to the Medical Board about the way he communicated and treated his patients. In 2019 an agency for the Medical Board decided to enlarge the complaints to take into account of other complaints in Victoria; consider his past conduct in 2006; take immediate action to suspend him from practice; and conduct an investigation. Dr Ng appealed to the tribunal in Western Australia about his immediate suspension. At a mediation conference by the tribunal it was resolved by Dr Ng and the Medical Board of Australia that the suspension be removed. In return onerous terms were imposed onto Dr Ng: he could no longer practise as a locum, he had to report to the agency of the Medical Board before he could commence practice, and he was to be supervised in his practice. The costs of the supervision were to be borne by him. There is no time limit to these conditions. As for the investigation it remains in place and in the course of which four different investigators were appointed. To date there is no final decision by the Medical Board. The National Law requires an investigation of this sort to be ‘conducted in a timely way’ and ‘conducts the investigation as quickly as practicable’. It also requires the investigators to provide a three-monthly report of their findings and recommendations. The latest report in June 2020 does not provide those findings and recommendations to indicate a progress in the investigation. The total effect on Dr Ng is he is unable to practise anymore. It would cost him too much to practise, not to mention it would be difficult for him to get professional insurance. There are a few aspects about Dr Ng’s case which show a lack of judicious considerations: the aggregation of the complaints and consideration of past matters, the conditions imposed by the tribunal with no time limit, and the lack of urgency and progress in the investigation.
The question is, if Dr Ng were to pursue the matters to the tribunal, has it the judicious sense to see that the Medical Board has acted justly. That is critical – a faith in the regulatory system that justice is judiciously administered. There is no doubt that justice in this part of the world has been readily available. Complaints can easily be brought to the attention of the authorities but for the subjects of the complaints, they need to know that the complaints are judiciously considered. Because in most cases their livelihood is affected. Take for instance the health practitioner under the National Law , it is not just about medical doctors, it covers other health professionals: practitioners of Chinese medicine, dentists, nurses, pharmacists. Ultimately it comes down to something quite practical: Do the authorities which administer these regulatory regimes have professional people conversant with the principles of public law?
Hock Beng Lee, Barrister, of Lincoln’s Inn, LLM (VUW).
21 September 2020
Wellington, New Zealand