Mr TRIPODI (Fairfield) [3.11 p.m.]: I wish to report to the House on the decision in Sabag v Health Care Complaints Commission (2001) New South Wales Court of Appeal 411, which came down this morning. Hansard records that I raised this matter very recently because I believed that as a matter of public interest the justices involved in consideration of the matter should have been as expeditious as possible in arriving at their decision. I take this opportunity to thank those justices for coming down with a decision so quickly and for allowing the public interest to be served by their so doing. The decision was that the Medical Tribunal's decision against Dr Sabag be set aside and that the matter be remitted to a differently constituted Medical Tribunal, to be heard and decided again, and that the respondent pay the appellant's costs of the appeal.
It was held by all three justices, Justice Davies, Justice Beazley and Justice Sperling, that the tribunal misunderstood Dr Ditton's evidence and brought the incorrect view of that evidence to account in finding that the appellant was incompetent to perform injections into nerve blocks, which was the procedure Dr Sabag had carried out. It was also held by Justice Sperling and Justice Beazley, with Justice Davies dissenting, that the appellant was denied procedural fairness in that the allegations that he was incompetent and that he misled community agencies were not notified to the appellant, nor were they litigated, so that the appellant did not have the opportunity of meeting those allegations.
At this stage, Dr Sabag has had a victory and the decision evokes considerable concerns about the way the Medical Tribunal is making decisions. The joint parliamentary inquiry by the Committee on the Health Care Complaints Commission that is currently under way should examine the structure of the tribunal, the types of decisions it is making about public complaints about doctors, and the need for reform of the tribunal's processes. Justice Davies stated in his decision:
…it appears to me that the Tribunal proceeded upon a fundamental mistake as to the thrust of Dr Ditton's evidence. Dr Ditton did not criticise Dr Sabag's competence in relation to the services which he actually performed.
Justice Davies then went on to state:
… in the present case, because the tribunal took one of Dr Ditton's answers and applied it out of context, the tribunal failed to have regard to the thrust of Dr Ditton's evidence which was that the procedures which Dr Sabag carried out were not unsafe. Dr Ditton's evidence strongly, supported Dr Sabag's case. There was no evidence of any complaint from a patient and Dr Sabag's evidence was that the procedures had not given rise to any problem and had appeared to alleviate the symptoms complained of. This evidence was unchallenged.
Justice Davies went on to state:
The tribunal relied heavily upon Dr Ditton's evidence, although it mistook the thrust of it.
In my view, the error made by the tribunal was so significant that it invalidated the decision, for failure to take account of a material consideration and for lack of reasons …
I am of the view that the decision of the tribunal failed for error of law.
Justice Sperling covered the issue of procedural justice and stated in his decision:
I am of the view that the appeal should also be allowed on the ground of denial of procedural fairness, in that an allegation of such incompetence and an allegation of having misled community agencies—
that was a finding by the tribunal in those terms
—were not notified or litigated, so that the appellant did not have the opportunity meeting those allegations.
This matter has been remitted to the tribunal for decision. It is necessary to state that members of the Medical Tribunal considering the matter should not be members of the Medical Board. I have emphasised the importance of this matter on previous occasions in this House. This is required for reasons of fairness because members of the Medical Board may have access to the past history or information relating to the doctors who are the subject of complaints and this may affect the tribunal's judgment. Furthermore, the public attention this matter has received will make it very difficult for Dr Sabag to receive a fair consideration of his matter before the tribunal. Once again, this is an issue of natural justice. In the light of the fact that so much attention has been given to Dr Sabag's deregistration, I believe that when the tribunal reconsiders the matter there will be issues about whether Dr Sabag will be given a fair hearing.
The Court of Appeal has referred the matter back to the tribunal for consideration. It is necessary for the Health Care Complaints Commission [HCCC] and the Medical Board which initiated these complaints to be very careful. If these bodies choose to initiate new complaints and raise more matters, there is a chance the public will view that as vilification and victimisation. These bodies have had four years to initiate new matters against Dr Sabag and have not done so to date. I bring this matter to the attention of the House today because the doctor continues to have strong community support. Today's Supreme Court decision confirms Dr Sabag's assertions that he has done nothing wrong and that there is quite a lot of funny business involved in this matter.