Australia, June 16 -- New South Wales Land and Environment Court issued text of the following judgement May 16:

1. BELL CJ and KIRK JA: The appellant, Dr Albina Della Bruna (the appellant), prescribed and dispensed human growth hormone (HGH) to ten patients in the period June 2017 to November 2019, doing so "off-label" for reasons said to be connected to fatigue and ageing. The Health Care Complaints Commission (the Commission) brought a complaint in the Occupational Division of the NSW Civil and Administrative Tribunal alleging that this conduct, together with inadequate record keeping, constituted unsatisfactory professional conduct and professional misconduct for the purposes of the Health Practitioner Regulation National Law (NSW) 2009 (the Law). A majority of the Tribunal, writing jointly, concluded that the appellant had engaged in such professional misconduct. The majority was comprised of the two senior members of the Tribunal, who are doctors, along with a general member (the Majority). The presiding principal member of the Tribunal, Ian Coleman SC ADCJ, dissented, and would have found the appellant guilty of unsatisfactory professional conduct only. The remedial "stage 2" hearing is yet to take place.

2. The appellant has appealed. She has a right to do so on questions of law and may seek leave to do so on any other grounds: Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act), Sch 5, cl 29(4)(b).

3. Her amended notice of appeal raised many grounds, but as oral argument was developed particular attention was directed to the following issues:

1) whether the Majority denied the appellant procedural fairness in finding that her objectivity was compromised as a result of financial pressure to turn over her stock of HGH (ground 5(a));

2) whether the Majority erred in rejecting the appellant's oral evidence regarding her prescribing to and management of patients, and thereby reversed the onus of proof, constructively failed to exercise jurisdiction, denied procedural fairness and gave inadequate reasons (grounds 2, 4, 5(b) and 6, noting those grounds also raised other issues);

3) whether the Majority erred in fact in finding that the appellant did not seek blood tests to measure the IGF-1 levels in any patients to whom she prescribed HGH (ground 7, noting leave to appeal is required for this ground).

4. Success on any one of these issues would be sufficient to uphold the appeal. In our view the appellant should succeed on all three. It is unnecessary to address the remainder of the issues and grounds raised. The matter should be remitted to a differently constituted Tribunal.

5. One further significant point should also be noted at the outset. Although many grounds of appeal were raised, there was no ground relating to how both the Majority and the presiding member of the Tribunal directed themselves as to the meaning of professional misconduct. Given the importance of the topic, the Tribunal's approach should not be left unremarked. The Majority (at [356]) followed the presiding member (at [263]) in considering that this issue turned on a standard articulated by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. Yet Kirby P's discussion related to a past statutory scheme involving a different criterion. Under the Law the notion of "professional misconduct" is defined in s 139E. It means, in short, unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration (which can be established by the cumulative effect of more than one instance of unsatisfactory professional conduct). The notion of "unsatisfactory professional conduct" is itself defined in s 139B of the Law in relation to registered health practitioners generally, as added to by s 139C with respect to medical practitioners. In this matter the Commission had relied on two variants of unsatisfactory professional conduct, set out in s 139B(1)(a) and (l):

(a) Conduct significantly below reasonable standard

Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

...

(l) Other improper or unethical conduct

Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196898448863d4fb0f188790)

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