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Chiropractic Board of Australia v Hooper (Occupational and Business Regulation) [2011] VCAT 641 (13 April 2011)

Last Updated: 27 April 2011

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

ORDERS

The application made by the Respondent for reconstitution of the Tribunal is rejected

H. Lambrick J Drinkwater M El Moussalli
Deputy President Member Member

REASONS

Introduction

1. On 8 April 2010 the Applicant referred this matter to the Tribunal pursuant to section 59(2)(g) of the Health Professions Registration Act (2005). The substantive application to which this matter relates is detailed in the Further Revised Notice of Allegations. In very broad terms the allegations pertain to the Respondent’s use of hyperbaric oxygenation and Lokomat treatments for a patient with cerebral palsy during the period 2007 to 2008. It is alleged that the Respondent failed to: make a proper assessment; obtain informed consent; prepare and modify the treatment plan; liaise with other treating health practitioners and monitor outcomes. Further that the Respondent misrepresented the likely efficacy of treatment; engaged in misleading and deceptive advertising and maintained an inadequate clinical file.
2. The Respondent, was at all relevant times a registered chiropractor.
3. The matter was listed for hearing with an estimated duration of 10 days commencing on 11 April 2011 before Deputy President H. Lambrick and Members J. Drinkwater and M. El Moussalli. At the commencement of the hearing the parties indicated to the Tribunal that further time was required to complete discussions which would dramatically reduce the anticipated hearing time. The parties advised the Tribunal that there would be certain admissions to the allegations. The admissions have come about as the result of an extensive and lengthy discussion and negotiation process. Accordingly we were told the Tribunal will be invited in due course to consider a joint submission as to the facts. The appropriate determination will, conversely, be the subject of vigorous debate.
4. When the Tribunal reconvened, Counsel for the Respondent indicated to the Tribunal that an issue had arisen and further time was required. With the consent of the Applicant the matter was stood down until 2 pm.
5. On the resumption of the hearing, the Respondent made an application pursuant to section 108(1) of the Victorian Civil and Administrative Tribunal Act 1998 (the “VCAT Act”) that the Tribunal dealing with the matter, be reconstituted for the purposes of the proceeding.
6. The Respondent sought that Tribunal Member Dr El Moussalli be disqualified due to apprehended bias. He says:
   

(a) Dr El Mousalli knows the Respondent, they having been fellow students whilst obtaining their undergraduate chiropractic degrees, graduating in 1983.
(b) That there was some concurrent attendance by Dr El Moussalli and the Respondent at a postgraduate chiropractic orthopaedics program.
(c) The Respondent alleges that he and Dr El Moussalli's respective approaches to chiropractic practice fundamentally differ. The Respondent states that Dr El Moussalli espouses a more “straight” or conservative treatment practice regime than the Respondent who is well-known for having a more progressive and multidisciplinary practice.
(d) In the written submissions provided by Counsel for the Respondent it is further stated that “in about 1994 the Respondent's brother, a chiropractor, told the Respondent Dr El Moussalli “had it in for him”.
(e) From 1994 to 2000 Dr El Moussalli was engaged as an in-house peer review consultant with VWA. VWA would look at practitioners whose statistics deviated from the norm. The respondent was one such practitioner and Dr El Moussalli was involved in that regard. Dr El Moussalli was provided with a printout with the servicing analysis and was given, together with a VWA manager, the task of requiring the Respondent to explain his servicing patterns, which appeared to be outside the average, due to a high number of long and extended visits. Dr El Moussalli together with a VWA manager visited the Respondent on one occasion as part of an investigation.
(f) In August 1999 Dr El Moussalli wrote a medico-legal report containing material said by the respondent, to be critical of the Respondent or querying his practice. The Respondent's former business, Spinal Rehabilitation Group was the plaintiff in a Magistrates Court proceeding. A female patient was the defendant and the Respondent was the third party. The plaintiff, Spinal Rehabilitation Group, issued a witness summons to give evidence to a number of parties, including Dr El Moussalli.

The law as to apprehended bias

7. There is no suggestion in this case of actual bias.
8. The law in respect to apprehended bias is fairly well-established. Where in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a Tribunal Member, the governing principle is that (subject to qualifications regarding necessity, which will be discussed in due course), the Tribunal Member will be disqualified if a fair minded lay observer might reasonably apprehend that the Member may not bring an impartial mind to the resolution of the question the Member is required to decide. The principal gives effect to the requirement that justice should both be done and be seen to be done.[1]
9. The requirement is needed to ensure the ongoing independence and impartiality of the Tribunal in the minds both of the public and parties to proceedings before VCAT. All parties are entitled to a hearing free from the suspicion of bias in the eyes of a reasonable bystander. A reasonable bystander is neither complacent nor unduly sensitive or suspicious. The reasonable bystander has regard for the integrity and sense of fairness of the Tribunal Member.
10. The test is that the member might not bring an impartial and unprejudiced mind to bear on the case at hand, not that they would not do so.
11. The tribunal should not be reconstituted unless there is a good reason for doing so.
12. We now turn to consider whether the grounds giving rise to the application justify a finding of apprehended bias.

(a) Dr El Moussalli and Dr Hooper attending the same undergraduate program

13. There is nothing in this level of association that could lead a reasonable fair-minded observer to conclude that there was the potential to divert Dr El Moussalli from deciding the case on its merits. There is no suggestion that the pair associated in any meaningful or relevant way during the undergraduate program. They attended the undergraduate program in excess of 25 years ago with graduation taking place in 1983.

(b) Concurrent attendance by Dr El Moussalli and Dr Hooper at postgraduate chiropractic orthopaedic program

14. Once again we are not satisfied that the mere concurrent attendance at this course would “come close” to disqualifying Dr El Moussalli for apprehended bias. Professional communities are not vast in their numbers and to apply such a stringent interpretation of the law of apprehended bias cannot in any way be justified. There is no evidence before the Tribunal of any interaction during the course which could in any way give rise to an apprehension of bias.

(c) Manner and extent of practice

15. The contentions made by the Respondent were unsupported by any evidence at all upon which the Tribunal could make the finding sought. We are not satisfied that the assertions made from the bar table, would cause a reasonable fair-minded person to conclude that Dr El Moussalli might not bring an impartial mind to the hearing. Whilst it is important that justice be seen to be done, it is equally important that members of the Tribunal discharge their duties to sit. To accede too readily to suggestions of apprehension of bias could encourage parties to believe that by seeking the disqualification of a Member, that their case may be heard by someone thought to be more likely to decide in their favour. Justice is not seen to be done if the Tribunal encourages parties to forum shop for ideologically compatible Members.

(d) Comments alleged to have been made by Dr El Moussalli to Respondent’s brother

16. This comment was almost a throw away line in the Respondent’s written submissions for reconstitution. No evidence was called in support of the allegation and Counsel for the Respondent did not address the statement at all when addressing the Tribunal. Accordingly we are not satisfied that the unsubstantiated uncontextualised statement could in any way give rise to an apprehension of bias.

(e) Dr El Moussalli’s position as in-house peer review consultant with (TAC) and VWA and his involvement with Dr Hooper and Spinal Rehabilitation Group.

17. We have reached a different conclusion with respect to this (and the next) aspect of Dr El Moussalli’s involvement with Dr Hooper.
18. Dr El Moussalli not only possessed some knowledge of the dispute existing between VWA and the Respondent’s business, Spinal Rehabilitation Group, but was directly involved in a review pertaining to concerns that the Respondent had deviated from the statistical norms with respect to “long and extended and above average” treatments per patient.
19. We consider that the involvement would give rise to a reasonable apprehension of bias in the fair-minded lay observer.

(f) Letter dated 17 August 1999 and Magistrates’ Court Proceedings

20. This is another substantive issue which coupled with our observations as set out in (e) above would to our minds give rise to a reasonable apprehension of bias.
21. We are not altogether clear as to the circumstances giving rise to the communication dated 17 August 1999, it having occurred some 12 years ago. What is clear is that Dr El Moussalli met with the Respondent to the Magistrates’ Court proceedings and was asked to evaluate whether her treatment was necessary. He was subsequently summonsed (together with a variety of other persons), to attend Court on 10 July 2000. He ultimately did not give evidence and was not required to be examined and cross-examined. The main basis then for the application for disqualification is the letter/report dated 17 August 1999.
22. The Applicant contends that the report is carefully constructed and balanced, identifying the complexities of answering the questions sought to be answered in light of the history of treatment. The Applicant submits that the report discloses no final views about the role of hyperbaric oxygenation and that Dr El Moussalli does not consider all of the treatment to be unnecessary. Rather, that after a reasonable trial of treatment, and if there has been no definite improvement in the patient’s condition, that the value and appropriateness of continuing the treatment must be questioned. The Applicant contends that it is a modest carefully framed report which is not comparable to other situations where a member has been disqualified because there has been acrimonious engagement.
23. The Respondent contends that the findings set out in the report imply that Dr Hooper was not honest and that there is an implication of inappropriate conduct. We do note that there are no (firm) findings by Dr El Moussalli to that effect. What he says is:

“This is a very complex question to answer as G’s history of who treated her does not coincide with the accounts. This issue is in the hands of the investigators at the VWA she tells me”.

24. Although it is not possible from this statement to draw the inference as suggested by the Respondent that Dr El Moussalli made any adverse findings about the honesty or otherwise of the Respondent, we are mindful of the fact that Dr El Moussalli has been involved in some form of investigation or reporting where the honesty of Dr Hooper was brought into question and that a fair-minded lay observer may consider that this could impact on his ability to bring an impartial mind to the proceedings.
25. It was further suggested by the Respondent that the Tribunal could infer from the report that Dr El Moussalli would take a particular (adverse) view as to the use (in general) of hyperbaric treatment and that such a view may be an indicia of apprehension of bias. Further we were asked to conclude that had Dr El Moussalli given evidence at the Magistrates’ Court that he would have repeated these views.
26. Once again it is useful to turn to the statements made by Dr El Moussalli in his letter. He said:

On the question of Hb 02 Tx , I had written a paper for the VWA on this subject in 1998. The conclusion was that Hb 02 Tx should only be accepted for conditions listed by the Undersea and Hyperbaric Medicine Society and follow the Medicare schedule of conditions and environments conditions.

There is no evidence that I know of that concludes that Hb 02 Tx is beneficial for chronic musculoskeletal conditions e.g. disk degeneration or lesions.

Unless more research is conducted, then to make claims that Hb 02 Tx is going to heal disc lesions or chronic musculoskeletal conditions is unacceptable, in my opinion. I of course do not operate Hb 02 Tx and the specialist in the field such as Dr Geoff Broomhill and Dr Ian Miller (head Hb 02 Tx service at the Alfred Hospital) should be asked to comment.

Hb 02 Tx should in my opinion, be performed by duly skilled and trained professionals in this field and in an environment capable of attending to any Hb 02 Tx emergencies that may occur, as recommended by the Australia and New Zealand hyperbaric medicine group.

27. We do not accept that any inferences can be drawn about what Dr El Moussalli may or may not have said in Court. Whilst the letter contains no explicit adverse view about the use of hyperbaric chamber treatment or the conduct of Dr Hooper’s practice in this respect, we do nevertheless consider that an independent lay observer may draw the inference that Dr El Moussalli had formed an adverse opinion of the use of hyperbaric on that occasion by Dr Hooper in treating his then client’s condition.
28. The test is that the Member might not bring an impartial and unprejudiced mind to bear on the case not that they would not do so.
29. It was submitted by the Applicant in relation to all of the above issues that health professional practitioners appointed by the Governor in Council will frequently have had some contact with practitioners and that the question is whether the prior contact leads to reasonable apprehension of bias.
30. We are mindful that every Member has a past. We are also mindful of the fact that there is a potential waste of resources and delay in the proceedings associated with such a finding. We consider however that the investigation by Dr El Moussalli into the conduct of Dr Hooper and the report dated 17 August 1999 would each of themselves and in combination be seen by the fair-minded observer as having the potential to divert Dr El Moussalli from deciding the case on its merits.
31. It was submitted that the level of contact is of such modest dimension that a reasonable person would not conclude that Dr El Moussalli would not bring a fair mind to bear. It was submitted that it is appropriate for the Tribunal to take into account (before considering the doctrine of necessity) that there are only 2 Members of the Tribunal with the requisite qualifications to constitute the panel. It was submitted that natural justice principles are reflective and responsive to these scenarios and that the content of the bias rule must be adjusted so as not to avoid the operation of the 2 relevant pieces of legislation, namely the VCAT Act and the Health Professions Registration Act 2005.
32. We do not accept that the level of contact was as outlined above so modest as to adapt and mould the bias rule to accommodate the fact that there are only 2 Members of the Tribunal who are chiropractors.

The doctrine of necessity

33. Clause 11A to schedule 1 of the VCAT Act states that:

The tribunal is to be constituted for the purposes of making a final determination under part 4 of the Health Professions Registration Act 2005 by at least three members, of whom at least 2 must be health practitioners with professional qualifications in the health profession regulated by the board that is a party to the proceedings.

34. As a result of this requirement it is necessary in this instance for the governing principles discussed above to be revisited. This is because, as has been briefly discussed above, the Tribunal has only two members who are chiropractors.
35. The governing principles may therefore be subject to the qualification of the doctrine of necessity. The doctrine is an ancient one which enables justice to be done.
36. The application of the doctrine is somewhat problematic for Tribunals as the majority of the authority on the topic is obiter[2] however in Metropolitan Fire and Emergency Service Board v Churchill 14 VAR 9 which is an authoritative decision of the Supreme Court of Victoria the doctrine was invoked to prevent a failure of justice.
37. At p. 29 Justice Gillard said:

“The doctrine of necessity is an exception to the rule against bias. The law is that the doctrine may apply where the person disqualified is the only one authorised to decide the particular matter in question and necessity demands that he should decide the matter. The doctrine is the product of the common law and can trace its origins back to 1429. Despite its antiquity the doctrine has not been applied often and its scope and extent has not been fully analysed by any final Court of Appeal. The High Court has recently considered the doctrine in two cases[3] but the discussions are plainly obiter dicta”.

38. His Honour then proceeded to state a number of propositions which he considers to be beyond controversy and which we shall consider with reference to the matter before the tribunal.
39. First, the doctrine can apply where the person or entity is disqualified with full actual, pecuniary or perceived bias – in this instance we have found no actual or pecuniary bias. We have found that there is perceived or apprehended bias such that the doctrine can apply to the current facts.
40. Secondly, it can apply not only to court proceedings but also to any proceeding where a person or entity is bound to act judicially, for example a disciplinary tribunal – the doctrine is accordingly applicable to VCAT.
41. Thirdly, it does not apply where it is not necessary that the qualified person or entity should make the decision. Hence if it is possible and practicable to appoint another person or entity to make the decision the doctrine does not apply. However, this is not an inflexible rule and there may be circumstances where the doctrine should apply because not to do so, would result in enormous cost or substantial delay. We accept the submissions of the Applicant that if the Tribunal as currently constituted is unable to hear the case, that “as of today” the hearing cannot proceed and can only do so if and when there are further appointments to the tribunal of chiropractic members. We also accept that is not for the Tribunal to speculate in any way as to when or even whether this will occur. It is for the Government alone to make that final decision. Accordingly we accept that there is some chance that if the Tribunal as currently constituted does not hear the case, there is a possibility that it may never be heard. There is certainly no basis upon which the Tribunal could presume that it is either possible or practicable to appoint another person to make the decision. In any event the proceedings would be significantly delayed.
42. Fourthly, the application of the doctrine is to be considered after a finding of bias is made – as discussed above, we have made such a finding.
43. The doctrine will not necessarily be applied even in these limited circumstances. Justice Gillard considered that it was pertinent to the rationale of the doctrine that it applies to “prevent a failure of justice”.
44. The Tribunal is further guided (at p. 31) as to the considerations to be applied in considering whether the doctrine should apply to prevent a failure of justice. Justice Gillard said:

“It is necessary to consider justice to all parties. This involves considering and weighing up all relevant facts and in the final analysis it is a question of fact and degree. The relevant matters would include the qualifications and experience of the adjudicator, the nature of the bias, the degree and gravity of the buyers, whether it is pecuniary, actual or perceived, the conduct of the parties, whether there is a right of appeal and the public interest where applicable”.

45. We consider that the doctrine of necessity should be applied in these proceedings to prevent a failure of justice. We do so for the following reasons:
    1. Dr El Moussalli is required to decide the matter because there is currently no other competent tribunal to be formed without him. He cannot be dispensed with or replaced by someone to whom the objection does not apply. In this situation natural justice has to give way to necessity, otherwise there is no means of deciding the case and the machinery of justice may break down. We reject the submission of the respondent that it can be positively stated that there will be no failure of justice because there will only be a delay. The proposition is speculative.
    2. There is nothing in the statutory framework, (namely the VCAT Act and the Health Professions Registration Act (2005)) that excludes the doctrine.
    3. Dr El Moussalli has held the position of VCAT member since 2007 and was the chiropractic representative on the Health Professional Services Review Tribunal between 1995 to 2000. He holds a law degree and was admitted to practice in 2004. He is aware of the duties and obligations of a member of the Tribunal to discharge his duties according to law.
    4. The allegation of bias is based upon a perceived or ostensible bias and not actual bias .As discussed below we consider that, whilst present, the nature of the ostensible bias is fairly minor.
    5. The first matters raised by the respondent were of very minor consequence and we did not find that they would lead to a conclusion of ostensible bias. The matters where we made a finding of ostensible bias were with respect to the role of Dr El Moussalli in his functions at VWA many years ago and in his report dated 17 August 1999. The contact was on each of these occasions very limited. We do not view it as preventing him from being able to uphold his obligations as a Tribunal member.
    6. We are mindful that Dr El Moussalli was only brought into the Magistrates’ Court litigation by Dr Hooper’s company.
    7. The report prepared by Dr El Moussalli was with respect to a professional opinion expressed as to the appropriateness of the treatment of a particular patient with a particular medical condition, different to the condition currently before the tribunal. It occurred some 12-13 years ago. We do not consider that our findings in this matter should preclude the matter proceeding.

8) There is a right of appeal.

9. The public interest is served by the matter proceeding. There are serious matters before the tribunal which should be heard by the tribunal.
10. The VCAT Act places an emphasis on prompt, efficient and inexpensive disposition of proceedings.
11. We consider the proposed undertaking of the Respondent “that he will not treat adult cerebral palsy people with hyperbaric for the period of the delay” to be an extremely narrow undertaking which does not sway the balance in his favour.
46. We are satisfied having taken into account all of these circumstances, the balance is in favour of applying the doctrine of necessity to avoid the failure of justice.
47. Accordingly the application made by the Respondent for reconstitution of the Tribunal is rejected.
    

H. Lambrick J Drinkwater M El Moussalli

Deputy President Member Member

13 April 2011

[1] See the joint judgement in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6]

[2] In Laws and Australian Broadcasting Tribunal [1990] 170C.L.R 70 the majority (per Mason CJ, Brennan and DeaneJJ) held that the rule of necessity applies to a statutory administrative tribunal, as it does to a court, to ensure that the Tribunal is not disabled from performing its statutory functions, but (by Deane J) the rule does not apply where its application would involve positive and substantial injustice, and when it does apply, the rule does so only to the extent that necessity justifies. At p. 96

Gaudron and McHugh JJ in a dissenting judgement considered that it seemed contrary to all principles of fairness that, on the ground of necessity, a person should have to submit to a decision made by a person who is already prejudged the issue. They considered that there was much to be said that the view that, in the absence of a country statutory intention, the ground of necessity should not require a person to submit to a decision made or to be made by a person who is reasonably believed to have prejudged the issue.

[3] Presumably Laws and Australian Broadcasting Tribunal [1990] 170 CLR at 70; Builders’ Registration Board of Queensland and Another v Rauber 47 ALR 55