Hastwell v Health Care Complaints Commission  NSWCA 22
The NSW Court of Appeal considered an application for judicial review of the Health Care Complaints Commission’s (HCCC) decision to not take further steps in relation to a complaint made against a psychiatrist arising from his diagnosis of a delusional disorder within an expert report. The Court of Appeal dismissed the application seeking leave to appeal.
DECISION AT FIRST INSTANCE
In August 2016 the applicant, Haydyn Gary Hastwell, made a complaint to the Medical Council of NSW (Medical Council) regarding the conduct of Dr Julian Parmegiani, consultant psychiatrist, regarding a diagnosis of delusional disorder within an expert report. The applicant had been referred to Dr Parmegiani for a medico-legal report in support of his sexual discrimination / harassment claim against his previous employer. Dr Parmegiani was not Mr Hartswell’s treating doctor.
The complaint was referred to the HCCC. Mr Hastwell alleged that Dr Parmigiani omitted critical facts, misrepresented facts, relied on irrelevant information and expressed opinions outside his expertise. Dr Parmigiani denied these allegations.
The complaint was referred to the senior members of the Medical Council for consideration. The Medical Council concluded that “it is open to any doctor to reach a diagnosis based upon their investigations, analysis and clinical judgment.” The Medical Council also stated that it is open to a patient, or another practitioner, to disagree with that opinion. There was no evidence to demonstrate that Dr Parmigiani’s conduct was significantly below the standard. The HCCC made a decision to take no further action and dismissed the complaint.
The plaintiff sought a review of the HCCC’s decision. The HCCC maintained its decision to take no further action.
APPEAL IN SUPREME COURT
On 13 November 2018, more than 2 years after the complaint was dismissed, Mr Hastwell filed a summons in the Supreme Court of NSW seeking judicial review of the HCCC’s decision. Mr Hastwell was well out of time in relation to the time limit prescribed by the Uniform Civil Procedure Rules. Rothman J, extended the time for filing of the Summons but ultimately dismissed the appeal, concluding there were no grounds giving rise to jurisdictional error or an error of law.
APPEAL IN COURT OF APPEAL
By summons filed on 24 August 2020 Mr Hastwell sought leave to appeal from the Supreme Court decision. Leave was required because the subject issues do not amount to a matter involving a claim, demand or question to or respecting any property or civil right amounting to or of the value of $100,000 as required under s 101(2)(r) of the Supreme Court Act 1970 (NSW). It was found that Mr Hastwell’s proposed grounds of appeal did not have prospects of success to warrant a grant of leave. The application seeking leave to appeal was dismissed.
Notably, the Court found that:
“…the legal requirements of expert opinion evidence applicable to proceedings in a court do not fall within the complaints handling regime established by the Act. Medico-legal reports which do not, in some or indeed all respects, comply with the obligations of expert evidence, are produced every day, and are commonly the subject of objection and rejection by courts when sought to be tendered. There is nothing in the scheme of the Act to suggest that the legal questions of admissibility have any bearing upon the processes, which are to be exercised with the protection of the health and safety of the public as the paramount consideration.”
It is not uncommon for experts to issue a medico-legal report containing conclusions which appear somewhat skewed, with peculiar diagnoses and excessive recommendations for treatment. Although a seemingly incorrect diagnosis or opinion may be a source of frustration for practitioners, and the evidence can be subject to objections, tested in joint expert conclaves and challenged under cross-examination at hearing, the expert evidence cannot be subject to a conduct complaint to the HCCC.
The complaints handling process and powers under the Health Care Complaints Act 1993 (NSW) are exercised with the paramount intention of protecting the health and safety of the public. Expert opinion evidence, provided in court proceedings, does not fall within the complaints handling regime established by the Health Care Complaints Act 1993 (NSW).
This article was written by Brit Mainhoff, Partner and Larisa Nguyen, Associate.