HCCC v Abou Hatoum & Anor [2004] NSWCA 30 (26 February 2004)

Last Updated: 2 March 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: HCCC v Abou Hatoum & Anor [2004] NSWCA 30 revised - 1/03/2004

FILE NUMBER(S):

40560 of 2003

HEARING DATE(S): 06/02/04

JUDGMENT DATE: 26/02/2004

PARTIES:

Health Care Complaints Commission

v

George Abou Hatoum and Medical Tribunal of New South Wales

JUDGMENT OF: Spigelman CJ Meagher JA Handley JA

LOWER COURT JURISDICTION: Medical Tribunal of New South Wales

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Patten J

COUNSEL:

Claimant: J Basten QC & M Lynch

1st Opponent: Byrne SC & E Pike

SOLICITORS:

Claimant: D M Swain - Health Care Complaints Commission

1st Opponent: Whitehead Cooper Williams

2nd Opponent: I V Knight - Crown Solicitor

CATCHWORDS:

Summons for judicial review by way of certiorari challenging a finding of the Medical Tribunal of New South Wales - whether First Opponent discharged his onus to show he has become a fit and proper person to practise medicine - whether jurisdictional error occurred below - whether non-jurisdictional error on the face of the record occurred below.

Held: dismissing the appeal - no jurisdictional error occurred below - no non-jurisdictional error on the face of the record occurred below - appeal dismissed with costs.

LEGISLATION CITED:

Medical Practice Act 1992 (NSW)

Supreme Court Act 1970 (NSW)

DECISION:

Application dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40560 of 2003

SPIGELMAN CJ

MEAGHER JA

HANDLEY JA

Thursday, 26 February 2004

HEALTH CARE COMPLAINTS COMMISSION v GEORGE ABOU HATOUM & MEDICAL TRIBUNAL OF NEW SOUTH WALES

FACTS

On 28 May 2003 the Second Opponent made an Order under s92, Medical Practice Act 1992 (NSW). reinstating the name of Dr G. Abou-Hartoum to the New South Wales register of medical practitioners, subject to certain conditions (detailed in Meagher JA's judgment at paragraph 2).

The Claimant seeks to invoke the procedure for judicial review, pursuant to s69, Supreme Court Act 1970 (NSW), including by way of certiorari under s 69(3), which now requires the Claimant to prove jurisdictional error or non-jurisdictional error on the face of the record.

DECISION

Held, dismissing the appeal with costs:

1. Submissions by the Claimant that there was insufficient evidence before the tribunal below to make the finding it made, fails, as there is no point of law involved in such submission;

2. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 distinguished from this case as the tribunal below did not make the error of law referred to in Litchfield.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40560 of 2003

SPIGELMAN CJ

MEAGHER JA

HANDLEY JA

Thursday, 26 February 2004

HEALTH CARE COMPLAINTS COMMISSION v GEORGE ABOU HATOUM & MEDICAL TRIBUNAL OF NEW SOUTH WALES

Judgment

1 SPIGELMAN CJ: The issues are set out in the judgment of Meagher JA which I have read in draft. I agree with his Honour's orders.

2 With respect to the first of the two grounds, I agree with Meagher JA that there is no relevant legal error which would justify the Court intervening.

3 The jurisdiction exercised by the Medical Tribunal was a review to determine the appropriateness at the time of the review of "the order removing the name of the opponent from the Register of Medical Practitioners" (s94A(1)). The legal error relied upon by the Claimant was that there was no evidence capable of discharging the onus of the First Opponent to satisfy the Tribunal that he was now a fit and proper person to be registered.

4 Particular attention was directed to s94A(2) which requires the Tribunal not to review the original decision to make the order or the factual findings made. The principal thrust of the Claimant's submissions in this application was that the onus could not be discharged on the basis of evidence which substantially repeated the evidence which was before the Tribunal on the first occasion.

5 In particular, reliance was placed on the failure of the First Opponent to accept the findings against him. The Claimant submitted that the most which the First Opponent had come to accept was that there were defects in his communication with patients and that the degree of physical closeness adopted in the surgery was misguided and had allowed his patients to misinterpret or misunderstand his conduct. The Claimant submitted that the original findings of the Tribunal demonstrated a defect in the First Opponent's character and that the case he mounted on the second occasion had adduced no evidence of acceptance, insight or understanding of his defects and, accordingly, there was no evidence of reform.

6 The jurisdiction exercised by the Tribunal is protective. A decision to deregister a practitioner is not made by way of punishment. In the present case criminal proceedings, based on the same acts found to have occurred by the Tribunal of the first occasion, either did not lead to a conviction or were withdrawn.

7 The statutory power of the Tribunal to order that a person be deregistered may be based on a finding of professional misconduct (see s64(1)(b)) or a finding that a person is not of good character (s64(1)(d)). The finding of the original Tribunal was based on conduct not character. It first found that the acts of a sexual nature against three separate patients constituted "improper and unethical conduct" within the definition of "unsatisfactory professional conduct" in s36(1)(m) of the Act. It then found that those improper dealings were of such a serious nature as to constitute professional misconduct within the definition in s37 of the Act.

8 Whilst it is possible to draw an inference as to character from conduct, that is not the finding that was made by the Tribunal on the first occasion. In such a case, where a Tribunal comes to review the continued appropriateness of the original order, attention will naturally focus on an assessment of whether or not there is any real risk of a repetition of such conduct.

9 I note that the Tribunal, in the decision presently before the Court, drew an inference as to character and proceeded on that basis, notwithstanding what I have described as the conduct based nature of the original findings. In its report the Tribunal said:

"The matters found against the applicant indicate a serious defect in his character, at least during the latter half of 1996. He bears the heavy onus of showing that his character no longer has that defect and that, bearing in mind the interests of the community, it is appropriate that he once again be permitted to practice medicine."

10 Mr J Basten QC, who appeared for the Claimant, acknowledged that the Tribunal had asked itself the right question throughout its report, but submitted that it must have failed to apply itself to the question on the basis of the absence of evidence, as identified above.

11 The Tribunal stated:

"Many references including from Church, community and business leaders, senior academics and professional men and women were tendered in evidence. Some of the referees gave oral evidence. They all spoke in glowing terms of the character of the applicant and expressed disbelief of the truth of the complaints made against him."

12 The Tribunal gave an example of a reference of this character, noting that a reference in the same terms had been given at the time of the previous proceedings. Nevertheless the Tribunal concluded:

"It is difficult not to regard the evidence as providing powerful support for the proposition that the applicant is now a man of good character, and extremely unlikely to offend again in the manner found by the previous Tribunal." [Emphasis added]

13 Some, but not all, of the evidence adduced on the second occasion had been adduced on the first occasion. The fact that there was some evidence of a different or supplementary character, including evidence of his conduct over the intervening years, is in my view sufficient to justify the Tribunal exercising its power in the way it did.

14 In any event the evidence that is repeated may be assessed by a Review Tribunal, exercising the power under s94A(1), in a different light and accorded different weight after a period of suspension, than when the first Tribunal made its decision.

15 On the second occasion, the Tribunal, usually differently constituted, must make its own independent judgment of the "appropriateness" of the order at that time.

16 Character evidence of this kind can serve a number of purposes.

17 First, it can be weighed in the balance on the probability that the conduct of which the complainants gave evidence actually occurred. It cannot be used in that regard on the second occasion, because that would be to review the findings of fact made on the first occasion, contrary to the requirements of s94A(2), when the proviso in that subsection has not been invoked.

18 The second use of character evidence is for it to be weighed in the process of balancing the various considerations that are relevant to the exercise of the discretion as to what order should be made. The fact that on the first occasion these matters, in combination with other relevant considerations, led to a decision by the first Tribunal to remove the practitioner's name from the register does not mean that, when the appropriateness of the order came to be assessed some years later, the same evidence should lead to the same conclusion.

19 In my opinion, character evidence is also relevant to determining whether or not a person is likely to repeat conduct that he or she has committed in the past. The fact that the witness does not accept that the person did in fact engage in such conduct in the past, goes to the weight of the evidence. Nevertheless, the Tribunal is entitled to take the evidence into account in determining whether conduct, which the Tribunal must accept has occurred - even though the witness does not - is likely to recur.

20 The circumstances are necessarily different on the second occasion. The applicant is older, and youth may have been a factor in the earlier account. Indeed, the Tribunal so found. Furthermore, the very fact that deregistration has occurred for a significant period may operate, in and of itself, as a deterrent to any repetition of the conduct. The behaviour of the practitioner in the years of deregistration and the reaffirmation at a later time of the opinions originally held of him at the later time are relevant. In the process of formulating the statutory judgment, repetition of reaffirmation of evidence given on the first occasion cannot be treated as irrelevant, because the same evidence did not lead to the suggested conclusion on the first occasion.

21 The Tribunal approached the task in an appropriate manner. It expressly stated:

"Although the character evidence predicates that the applicant is innocent of what is proved against him, it nonetheless has considerable probative value in determining his present character. It is difficult to understand how else the applicant could go about the task of establishing that he is now a fit and proper person. Moreover, the Tribunal is impressed by the level of continuing medical education listed in Exhibit A, especially the 27 hours of training and counselling skills undertaken.

He was very young in practice in 1996. In the period between then and the orders of the previous Tribunal he practised medicine without anything untoward coming to light. Since then he has conducted himself in the community in an exemplary fashion." [Emphasis added]

22 The Tribunal gave consideration to the significance that it could attach to the First Opponent's failure to acknowledge the truth of the previous Tribunal's actual findings. The Tribunal referred to this Court's decision in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 for the proposition that acceptance of conduct was not a necessary prerequisite for readmission. It was, in my opinion, entitled to so rely on the judgment.

23 In my opinion, there was evidence before the Tribunal on which it could base a conclusion that he was "extremely unlikely to offend again" and, insofar as it was pertinent to do so, that his character had changed in that respect. This ground of the application should be rejected.

24 The second ground concerns the application, to the conditions imposed upon the renewed registration, of the reasoning of this Court in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. The issue is whether or not the conditions in the present case were such that the conclusion drawn by the Court in Litchfield should also be drawn here: i.e. that "the Tribunal must have had misgivings about the doctor's future behaviour because of the conditions it imposed" (639C). Furthermore, were any of the conditions imposed in this case equivalent to the condition imposed in Litchfield - that the medical practitioner submit to a psychiatric assessment - in circumstances in which neither the Medical Board nor the Health Care Complaints Commission could take any effective action if such an assessment proved adverse to the doctor?

25 The conditions in the present case are set out by Meagher JA. As his Honour notes, the judgment of the Tribunal expressly states that the conditions were imposed "to ease his return to medical practice". These conditions do not, in my opinion, suggest any basis for a conclusion that the Tribunal retained doubts of the character identified in Litchfield.

26 The condition that the medical practitioner practice for two years in supervised general hospital position is perfectly understandable in the case of a medical practitioner who has not practised for some years. The same is true, in my opinion, of the obligation to meet with a clinical mentor.

27 The obligation to consult with a person for "supportive counselling", with reports from that person being provided to the Medical Board may, at first sight, suggest some kind of remaining concern. Nevertheless, it is capable of being a condition designed to provide support in the context of readjustment to practice. The reports to the Board may ensure an early warning of any difficulties in readjustment, rather than being devised for a purpose inconsistent with the re-registration.

28 It is not appropriate to regard this condition as in some way expressing a doubt about the First Opponent's future conduct. Any such doubt would be contrary to the forcefully expressed opinion of the Tribunal that it was "extremely unlikely" that he would behave in that manner again. Furthermore, the evidence before the Tribunal makes it clear what was the purpose of the Tribunal in imposing the condition.

29 The evidence to which I refer is that of a consultant psychiatrist, Dr Fisher, who was retained on behalf of the Health Care Complaints Commission to provide a report addressing what conditions should be placed on the First Opponent's registration, if the Tribunal were to grant his application. Dr Fisher suggested a number of conditions which clearly served as the basis for the Tribunal's conditions.

30 He recommended that the First Opponent should always have a female chaperone, either a nurse or a female medical practitioner present whilst he was examining female patients. Other evidence before the Tribunal supported this recommendation and indeed went further to suggest that all medical practitioners - not just those who had offended in the past - should, in the light of the risks they would otherwise run, have a female chaperone. On the latter basis, the condition would not reflect anything about likely conduct. Nevertheless, if the Tribunal had imposed such a condition on the basis of Dr Fisher's report, the test in Litchfield may very well have been satisfied. However, this was the only aspect of the conditions proposed by Dr Fisher which the Tribunal rejected.

31 The Tribunal accepted Dr Fisher's recommendation about the condition for a period of two years working in a supervised general hospital position. It also accepted his recommendation for the appointment of a clinical mentor.

32 The condition proposed by Dr Fisher with respect to the "supportive counselling" condition was expressed in his report in the following manner:

"That he enter into regular supportive psychotherapy for at least 12 months aimed at helping him to make the re-entry into clinical practice and to discuss any difficulties he was having in his dealings with patients during this period of time." [Emphasis added]

33 The emphasised words make it clear that the condition for "supportive counselling" was recommended by Dr Fisher as a mechanism for helping the First Opponent to re-enter clinical practice. It also, accordingly, was, in my opinion, adopted by the Tribunal as a condition, to use the words of the Tribunal, "to ease his return to medical practice". In these circumstances the reasoning in Litchfield does not apply.

34 Since writing the above, I have read the judgment of Handley JA in draft. I agree with his Honour's additional observations.

35 I agree that the application should be dismissed with costs.

36 MEAGHER JA: This is an application by Health Care Complaints Commission to set aside certain orders made by the Medical Tribunal of New South Wales, the second opponent, in favour of Mr Abou-Hatoum, the first opponent.

37 On 28 May 2003 the Tribunal made an order under s. 92 of the Medical Practice Act 1992 (NSW) re-instating the name of Dr Abou-Hatoum to the register of medical practitioners. It made that order subject to certain conditions. Those conditions were:

(a) that for two years he not practise medicine except as an employee in a supervised general hospital position;

(b) that for a period of two years:

1. he meet with a clinical mentor nominated by him and approved by the Medical Board of New South Wales at least once per month;

2. he consult with Dr Ian Chung or other practitioner nominated by him and approved by the Board for supportive counselling at intervals determined by the practitioner concerned;

3. that he procure that the mentor and practitioner referred to in 1 and 2 above at no greater than six-monthly intervals report to the Board in a format prescribed by it.

38 Previously, on 6 August 1999, Dr Abou-Hatoum's name had been removed from the register because of adverse findings it had made in relation to three complaints of sexual interference with female patients. The deregistration order was made subject to a condition that no review of the order be sought for a period of three years, a period which expired on 6 August 2002.

39 The application, the subject of the present proceedings, was made on 5 November 2002. Before the Tribunal hearing it, Dr Abou-Hatoum himself, and his wife (who is also a practitioner), gave evidence, as did a Dr McMurdo (a psychiatrist) and a Dr Choy (a senior general practitioner); moreover, numerous individuals filed character references.

40 The claimant seeks to invoke the procedure for judicial review pursuant to s. 69 of the Supreme Court Act 1970 (NSW), which allows for proceedings for relief which might previously have been obtained by prerogative writ. Thus the claimant must prove either that there has been jurisdictional error, or that there has been non-jurisdictional error on the face of the record. The record includes the reasons given by the Tribunal for its ultimate determination.

41 The first of the two grounds on which the claimant rested its case was that there was no evidence to discharge the heavy onus which Dr Abou-Hatoum undoubtedly bore. Reference was made to s. 94A of the Medical Practice Act 1992. That provision states;

"94A (1) A review under this division is a review to determine the appropriateness at the time of the review of the order concerned.

(2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision, unless significant fresh evidence is produced that was not previously available for consideration, and the appropriate review body is of the opinion that, in the circumstances of the case, the decision to make the order, or any finding on which the decision was based, should be reconsidered."

I find it difficult to take the submission seriously. The claimant must find a point of law. If it is alleged that there was no evidence whatever before the Tribunal to justify its finding, that is a point of law; but if, as in the present case, the real submission is that the evidence is insufficient, no point of law is involved and the submission must fail. The evidence given by Dr Abou-Hatoum and his wife, and that given by his supporting witnesses, was some evidence, although Mr Basten SC scoffed at it.

42 The claimant invoked the authority of the High Court decision of ex parte Lenehan [1948] HCA 45; (1949) 77 CLR 403, especially at 422, where it was said that a solicitor, in the particular circumstances of that case, was "permanently unfit" to maintain his name on the register. But it defies belief that this amounts to an authority justifying the view that any removal from the register must count as a finding of "permanent unfitness". This is particularly so when, as in this case, the Tribunal itself said to the contrary when it removed his name from the register; by expressly allowing him to apply for reinstatement after three years it disclaimed any belief in "permanent unfitness".

43 The second ground, although it is not so frivolous, must also, I think fail. It is that the conditions imposed by the Tribunal bespeak uneasiness on its part as to the fitness of Dr Abou-Hatoum to be restored to practice. Reference was made to Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. In Litchfield's Case, the Commission had sought an order removing Dr Litchfield's name from the register, but was unsuccessful in achieving that object. Instead, the Tribunal ordered that, amongst other things, the doctor be suspended from practising medicine for nine months and that he attend for assessment by a psychiatrist appointed by the Medical Board, who was to report to it within the period of suspension. The Court upheld the Commission's appeal against this order and ordered deregistration instead. It held, which is fairly obvious from the nature of the orders, that the Tribunal was dubious about the correctness of failing to deregister the doctor, and therefore framed an order to monitor the doctor's behaviour.

44 But, despite the superficial resemblances, that case does not decide the present litigation. As the Tribunal itself pointed out, the conditions it imposed on Dr Abou-Hatoum were not imposed for the purpose of monitoring his progress but for the purpose of easing his re-entry into the profession. During argument, there was some suggestion that the Tribunal's language was ambiguous. To my mind, if one considers Dr Abou-Hatoum's position, it is crystal clear what the Tribunal intended. Dr Abou-Hatoum was young, he was inexperienced, he came from an alien culture, he had spent three years away from practice. The transition into a busy practice would necessarily be bumpy. The Court, quite improperly in my view, rummaged round amidst the evidence which was before the Tribunal in order to discover a document emanating from the Commission's experts, as it happened, which said precisely what was obvious in any event. I say "quite improperly" because such documents cannot be considered part of "the record".

45 In my view the application should be dismissed with costs.

46 HANDLEY JA: This is a summons for judicial review, in the nature of certiorari, directed to the Medical Tribunal and the first respondent who was reinstated as a registered medical practitioner by order of the Tribunal under s 94(1)(c) of the Medical Practice Act 1992.

47 I have had the benefit of reading the reasons for judgment of the Chief Justice in draft. I agree with his reasons and with the orders he and Meagher JA propose. However I wish to add some brief supplementary reasons dealing with the relevance of the evidence of Dr Fisher.

48 In this case relief in the nature of certiorari was sought on the ground that there was an error of law on the face of the record of the Tribunal. The existence of this jurisdiction is confirmed by the Supreme Court Act s 69(3). For this purpose the record of the Tribunal includes its reasons for decision: s 69(4).

49 One of the alleged errors of law identified by counsel for the claimant said to be evident on the face of p 17 of the Tribunal's reasons (2/455) was the statement of the Tribunal: "to ease his return to medical practice the Tribunal proposes conditions, which will be embodied in the orders of the Tribunal". The conditions are quoted in the reasons for judgment of Meagher JA [para 37].

50 Mr Basten QC for the claimant submitted that the imposition of these conditions demonstrated that the Tribunal had committed the same error of law that this Court identified in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630.

51 This submission appeared, at least to some members of the Court, to have some substance, until the Court asked whether the conditions had been based on expert evidence before the Tribunal. We were then referred to Dr Fisher's report noted in the judgment of the Chief Justice [paras 28-33].

52 Dr Fisher, whose report was obtained and tendered by the claimant (1/63-4) recommended that these conditions be imposed. One of them was a condition that the applicant (now the first opponent) obtain supportive counselling "aimed at helping him to make the re-entry into clinical practice". The words quoted were later used by the Tribunal to explain why it imposed all the conditions.

53 Dr Fisher was not asked to express any opinion on whether the then applicant should be reinstated as a registered medical practitioner and he did not do so. His opinion was sought and tendered to assist the Tribunal to frame appropriate orders if it decided that the applicant should be reinstated. He did not advise the use of these conditions because he had any misgivings about the applicant's future behaviour but, as he said, "to help him make the re-entry into clinical practice".

54 This evidence therefore establishes that the Tribunal did not make the error of law identified in Health Care Complaints Commission v Litchfield (above). The only question is whether this Court is entitled to look at this evidence in exercising its jurisdiction to review the record of the Tribunal for legal error on its face.

55 The evidence before the Tribunal is not part of its record for present purposes, and there are strict limits on the extent to which material extrinsic to the Tribunal's reasons can be considered. At common law the Courts could also review arbitral awards for error of law on their face and decisions in this area are of assistance in the present context.

56 In Landauer v Asser [1905] 2 KB 184 the award was expressed, on its face, to be based on the arbitrator's construction of the contract. This had not been generally incorporated into the award. The Divisional Court considered the contract and held that the arbitrator had made an error of law on the face of the award and set it aside. In that case, as the Privy Council said in Champsey Bhara & Co v Jivraj Balloo Spinning and Weaving Co Ltd [1923] AC 480, 487 "the legal proposition was stated in terms on which the award proceeded". See also to the same effect British Westinghouse Co v Underground Electric Railways Co [1912] AC 673 where the arbitrator said that he based his award on the opinion of the Divisional Court given on a consultative case. In the Privy Council case earlier referred to Lord Dunedin, in upholding the award, said at 488: "here it is impossible to say, from what is shown on the face of the award, what mistake the arbitrators made".

57 Similarly in Baldwin and Francis Ltd v Patents Appeal Tribunal [1959] AC 663, a certiorari case, where the reasons of the Patents Appeal Tribunal were reviewed for legal error on the face of the record Lord Reid said at 684: "if the record showed that the Tribunal had wrongly construed the former specification I should regard that as an error of law appearing on the face of the record". In such a case the Court could only discern error in the construction of the specification if the whole document was considered and not merely those parts which had been quoted in the reasons of the Tribunal.

58 The question in the present case is somewhat different because what was alleged to be the relevant legal error did appear on the face of the Tribunal's reasons at p 17. The passage is ambiguous and on one interpretation would expose legal error. The ambiguity can be resolved by reference to the report of Dr Fisher and if this is done it becomes clear that the Tribunal did not make the error alleged.

59 In my judgment this process does not involve impermissible resort to an extrinsic document, which has not been incorporated (see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 182), to identify legal error in that document which is then sought to be used to attack the record or award. The process involves the interpretation of the reasons of the Tribunal by reference to surrounding circumstances known to the Tribunal and the parties.

60 A Court which has to construe a written contract may receive evidence of surrounding circumstances to enable it to place itself in thought in the same factual matrix as the parties, and it can also receive evidence of the genesis and, objectively, the aim of the transaction: Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24; (1982) 149 CLR 337, 350-2. In my judgment the same principles are also applicable when a Court has to interpret the reasons of a Tribunal. I conclude therefore that this Court is entitled to refer to the report of Dr Fisher in order to construe or properly understand the Tribunal's reasons and that when this is done there is no error on the face of the record. I agree with the orders proposed by the Chief Justice and Meagher JA.

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LAST UPDATED: 01/03/2004