Coroneos v Medical Board of Queensland & Anor [2001] QCA 268

SUPREME COURT OF QUEENSLAND CITATION: Coroneos v The Medical Brd of Qld & Anor [2001] QCA 268 PARTIES: FILE NO/S: PARTIES: MICHAEL CORONEOS (appellant) v THE MEDICAL BOARD OF QUEENSLAND (respondent) Appeal No 10098 of 2000 MAT No 6 of 1999 MICHAEL CORONEOS (appellant/plaintiff) v THE HONOURABLE JUSTICE G FRYBERG (first respondent/first defendant) THE MEDICAL BOARD OF QUEENSLAND (second respondent/second defendant) FILE NO/S: Appeal No 11211 of 2000 SC No 10121 of 2000 DIVISION: Court of Appeal PROCEEDING: Case Stated General Civil Appeal ORIGINATING COURT: Medical Assessment Tribunal Supreme Court at Brisbane DELIVERED ON: 20 July 2001 DELIVERED AT: Brisbane HEARING DATE: 23 May 2001 JUDGES: McPherson JA, Thomas JA, Williams JA Separate reasons for judgment of each member of the Court; McPherson JA and Williams JA concurring as to the orders made, Thomas JA dissenting in part. ORDER: In Appeal No 10098 of 2000: The questions are answered as follows: Question(1): Yes Question(2): Unnecessary to answer Question(3): Unnecessary to answer Question(4): Unnecessary to answer Order that the appellant pay the respondent’s costs of and incidental to the case stated to be assessed. -- 1 of 21 -- 2 In Appeal No 11211 of 2000: Appeal dismissed with costs to be assessed CATCHWORDS: PROFESSIONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – MEDICAL PRACTITIONERS – DISCIPLINE AND REMOVAL FROM AND RESTORATION TO THE REGISTER – PROCEDURE, EVIDENCE AND APPEAL – QUEENSLAND - the Medical Board of Queensland imposed conditions on the registration of the appellant as a medical practitioner – following an appeal the Medical Assessment Tribunal substantially upheld the decision – whether the Tribunal had the power to order the Medical Board to record the conditions PROFESSIONS AND TRADES – MEDICAL AND RELATED PROFESSIONS – MEDICAL PRACTITIONERS – DISCIPLINE AND REMOVAL FROM AND RESTORATION TO THE REGISTER – PROCEDURE, EVIDENCE AND APPEAL – QUEENSLAND – whether case stated to Court of Appeal was appropriate – whether the reasonableness of the conditions imposed can be determined by the case stated Medical Act 1939 (Qld) s 4, s 4A, 17F, s 21(1)(e), s 21B(1), s 30D, s 30E, s 30K, s 30M, s 32, s 32B, s 33, s 43, s 44(2), s 45 Uniform Civil Procedure Rules, r 781 Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, considered Foley v Padley (1984) 154 CLR 349, cited House v The King (1936) 55 CLR 499, considered Marshall v Whittaker’s Building Supply Co (1963) 109 CLR 210, considered Medical Board of Queensland v Bayliss [2000] 1 Qd R 598, applied Parramatta City Council v Pestell (1972) 128 CLR 305, cited Perera v Queensland Community Corrections Board [1990] 1 Qd R 553, cited The Queen v Rigby (1956) 100 CLR 146, considered COUNSEL: N M Cooke QC with S Di Carlo for the appellant L Paramasivam for the first respondent in Appeal No 11211 of 2000 PA Freeburn for the respondent in Appeal No 10098 of 2000 and for the second respondent in Appeal No 11211 of 2000 SOLICITORS: Brett Smith & Co for the appellant Crown Solicitor for the first respondent in Appeal No 11211 -- 2 of 21 -- 3 of 2000 Minter Ellison for the respondent in Appeal No 10098 of 2000 and for the second respondent in Appeal No 11211 of 2000 [1] McPHERSON JA: I have read and agree with the reasons of Williams JA. I have no doubt that the Tribunal had, under s 30K of the Medical Act 1939, power to impose conditions on the appellant's registration to practice medicine and to order that they be recorded in the register. [2] The only remaining issue is whether the conditions imposed by the Tribunal were so unreasonable as to disclose an error of law in the exercise of the statutory discretion to impose them. The conditions imposed are detailed, and on one view they might be thought to involve a far-reaching control of the appellant's professional activities. But they were formulated by a body of professional persons with detailed knowledge and experience of this field of medical expertise and an intimate acquaintance, based on the evidence, with the problems presented in practice by the appellant's condition and his past behaviour. The conditions imposed by the Board then underwent review, and in some respects revision, by the Tribunal consisting of a Supreme Court Judge and two expert assessors. [3] It has not been demonstrated that any of the conditions was not germane to the appellant's practice; or that they exceeded what was reasonably necessary to achieve the purposes of the system of registration established by the Act; or that in any other respect the Board or the Tribunal exercised their discretion wrongly or improperly in deciding to impose them. In these circumstances, it is not possible for the Court to say that the imposition or recording of those conditions, or any of them, involved an error in point of law, or an excess of jurisdiction, within the meaning of s 43 of the Act such as to attract the jurisdiction of this Court either under that section or s 45 of the Act. [4] The questions in appeal no 10098 of 2000 should be answered in the manner stated in the reasons for judgment of Williams JA. The appellant should pay the costs of and incidental to this appeal. Appeal no 11211 of 2000 should be dismissed with costs. [5] THOMAS JA: This is an appeal by way of Case Stated which has been referred to the Court of Appeal by the Medical Assessment Tribunal (“the Tribunal”). Relevant Circumstances [6] An understanding of the sequence of events leading to the Tribunal’s determination is necessary for the proper resolution of the issues that arise expressly or implicitly in the Case Stated. The appellant is a highly qualified neurosurgeon who committed a criminal offence which led to a sentence of imprisonment with a non-parole period of 3 months and to suspension from practice for 12 months. On the expiry of his suspension some conditions were imposed on his right to practise. He ran into some difficulties in obtaining work in hospitals and suffered a degree of ostracism from some of his fellow practitioners. In corresponding with the Medical Board he wrote some strong letters, the “manner and tone” of which disturbed the -- 3 of 21 -- 4 Board. On 14 July 1998, under section 30D of the Medical Act 1939, the Board resolved to hold an inquiry into the appellant’s eligibility to remain registered as a medical practitioner. Although s 30D(1) limited the inquiry to the issue of the eligibility of the appellant to remain registered, s 30D(2) permitted the inquiry to consider the wider question of the appellant’s “competence to practise medicine”. In due course the committee that conducted that inquiry found the appellant eligible to remain registered. However on the basis of its view of evidence concerning four factual issues involving the appellant, it decided that 14 conditions should be imposed upon his registration, and in turn the Medical Board imposed 12 conditions which were in substance the same as those suggested by the inquiry. [7] When the appellant appealed to the Tribunal, the Tribunal found that most of the bases upon which the conditions had been imposed were unfounded. In particular the Tribunal found that there had been no failure by the appellant to continue to undergo psychiatric treatment as alleged by the Board. The Board had not realised that the time during which he was obliged to undergo such treatment upon his readmission to practice had expired. [8] Furthermore, the Tribunal was not prepared to find that certain allegations concerning the appellant’s conduct of intracranial surgery on 13 June 1998 supported any finding of misconduct or incompetence on his part. Those allegations had been relied on by the committee as justifying the imposition of the further conditions on the appellant’s registration. Having rejected the opinion of the doctor who alleged that the appellant was not competent to perform aneurism surgery and, having referred to the uncertainties affecting the substratum of that doctor’s opinion and having further referred to the possibility of misunderstanding, the Tribunal turned to the appellant’s evidence. The appellant had conceded that that particular operation had been “a bit of a hard one” and that he had experienced difficulty in getting the leg of the clip around the neck of the aneurism. The Tribunal observed that these are matters of professional judgment on which views might legitimately differ. Although it found that the criticism levelled against the appellant for conducting that particular operation without an assistant was unfair, the Tribunal then expressed the conclusion that “difficulty in carrying out the operation does provide some support for condition 7, for a limited time at least, particularly having regard to the difficulties which the appellant’s career has undergone and the restrictions which have been placed upon him”. The reference to “condition 7” was to one of the conditions imposed by the Board. That condition, which I must say seems extraordinary following the findings to which I have just referred, was: “7. You engage a neurosurgical peer to act as a support colleague to ensure a satisfactory and balanced practice and that you participate in morbidity and morality meetings with the support colleague and that your support colleague prepare and submit to the Board quarterly reports, the first of which should be made at the end of the first month, such reports to include details of intracranial vascular surgery, involvement in CME activities and details of hospital appointments”. The Tribunal then proceeded to attach a similar condition itself (Condition (vii) of the Tribunal’s conditions). -- 4 of 21 -- 5 [9] There was a finding against the appellant that he had acted inappropriately in attempting to damage a colleague whom he had perceived to be unfairly blackballing him. This involved improper interaction with a patient of that neurosurgeon in an attempt to show that that neurosurgeon had acted inappropriately. [10] In relation to the appellant’s correspondence with the Board, after lengthy deliberation the Tribunal considered that one of the appellant’s responses was “irrational” and it expressed a somewhat inconclusive but nonetheless unfavourable impression of his conduct in relation to another letter. [11] Shortly stated the findings of the Tribunal show that the major concerns of the committee of inquiry as to breach of former conditions and as to alleged medical incompetence had been misplaced. The evidence showed that the appellant suffered from no psychiatric disorder. The Tribunal however considered that the appellant showed “dysfunctional personality traits”, but that these did not satisfy any recognised classification of psychiatric diseases. [12] Notwithstanding that finding, the Tribunal proceeded to impose an extensive list of conditions upon the appellant’s registration, substantially similar to and more tightly drafted than those which had been imposed by the Board pursuant to the findings of the inquiry. The conditions imposed by the Tribunal are lengthy, and some of them would be expected to be very difficult to comply with. They are set out in paragraph 52 of Williams JA’s reasons. They are highly invasive and oppressive in the context of a neurosurgeon attempting to conduct a practice. Issues [13] I agree with Williams JA that the Tribunal’s refusal to include the question whether the conditions were so unreasonable as to indicate error of law does not deprive this court of jurisdiction to determine that question if it arises from the facts and the grounds of the decision set forth in the Case Stated1. I also agree with Williams JA that the additional appeal that has been brought against a decision of Mackenzie J, who declined to make an order under s 44(2) of the Medical Act calling on the Tribunal to show cause why a case should not be stated, should be dismissed. [14] The essential questions that need to be answered are these. Should the Case Stated be sent back to the Tribunal for restatement? In the light of its findings was it within the power of the Tribunal to impose conditions at all on the appellant’s registration? And if so, were the conditions that were imposed so unreasonable that no reasonable Tribunal could have imposed them? 1 cf McPherson JA in Medical Board of Queensland v Bayliss [2000] 1 Qd R 598, 614. -- 5 of 21 -- 6 Whether the Case should be restated [15] As Williams JA points out in his reasons the drafting of the Case Stated is highly unsatisfactory. The statements quoted by his Honour from the Case2 bear little resemblance to ultimate facts. The same quality attaches to the following additional statements in the Case: “(11) There is a risk, although not a high risk, that the appellant’s dysfunctional personality traits will adversely affect his judgment about his patients. (12) There is a more serious risk that the appellant will, as a result of those traits, be unwilling to consult a colleague when the occasion requires such a consultation and that, if those traits persist, his colleagues will be unwilling to consult with him. (13) The risk referred to in paragraph 3(12) could affect the appellant’s continuing medical education as well as a particular patient. (14) The appellant would benefit from long-term insight oriented psychotherapy. … (18) There is no evidence that the conditions relating to treatment (see paragraph 5 below) would cause the appellant to be ostracised or would destroy his practice. The conditions are unlikely to affect the appellant’s practice; but even if they did, that would be outweighed by the public interest in having them in place. … (22) It is contrary to the public interest for the appellant to continue to practise in isolation from his peers.” With respect, such assertions are a shaky basis for answering questions of law. The purpose of stating a case is to permit the questions that arise on the ultimate facts stated therein to be answered. Some of the statements have the ring of psychological or social studies jargon. The purpose of some of them seems to be to qualify or offer some justification to overcome the negative primary fact in statement number (6) – “the appellant suffers from dysfunctional personality traits but does not suffer from a psychiatric disorder (that is, from a recognised psychiatric illness)”. [16] The questions here posed (in paragraph 10 of the Case) are primarily concerned with whether or not the Tribunal had power to impose “the conditions”. The questions are curiously framed: “(1) Did the Tribunal have power to order that the respondent record the conditions in the registers without applying or relying on s 17F of the Medical Act 1939? (2) If “No” to question 1, was it reasonably open to the Tribunal applying s 17F to refuse to impose the conditions? (3) If “Yes” to question 2, should the matter be remitted to the Tribunal to consider whether the appellant suffers from an impairment and whether conditions are reasonably required 2 See reasons of Williams JA para 48. -- 6 of 21 -- 7 having regard to the impairment, within the meaning of s 17F? (4) If “Yes” to question 2, what order ought to be made regarding costs in the Tribunal?” The learned judge who constituted the Medical Assessment Tribunal declined to include an additional question submitted by the appellant as to whether the conditions were so unreasonable as to indicate an error of law on the part of the Tribunal. Despite this rejection, the “facts” stated in the Case appear to consist largely of arguments in attempted justification of those conditions. [17] The powers of the Court of Appeal in dealing with a case stated are now considerably wider than those recognised in The Queen v Rigby3. Rule 781 of the Uniform Civil Procedure Rules now gives express power to the Court of Appeal to “refer to the whole of a document referred to in the case stated” and to “draw any inference from the facts stated in the case”. The procedure by way of case stated is quite inadequate as a substitute for an appeal. Unfortunately repeated statements to this effect and suggestions of a legislative remedy have not been heeded4. Whilst this remedy remains the prescribed method of review, it seems to me that in order to make it as effective as possible the court should be prepared to use liberally the powers which Rule 781 now gives. The lengthy reasons for judgment of the Tribunal are referred to in the case stated. I do not suggest that they should be used without inhibition as a source of further facts, but agree with Williams JA that they may properly be used at least as providing background circumstances and in elaboration of the express statements in the case itself. Perhaps they may be used for other purposes too, but it is not necessary to canvass this further in the present case. [18] In the circumstances, despite the unsatisfactory form of the Case Stated, certain questions arise, and there is sufficient material on which they may be answered. I shall therefore proceed to attempt to answer them. Power to impose conditions [19] Question (1) as posed in the Case Stated could be more satisfactorily answered if the word “the” had not been included before “conditions”. As Williams JA has noted, there are really two separate questions inherent in question (1). The first is whether the Tribunal had power under s 30K(2) of the Act to record conditions on the practitioner’s registration without relying on s 17F of the Act. If that question is answered affirmatively, a further question arises whether the particular conditions imposed by the Tribunal were within the power of the Tribunal to make. It is only if an affirmative answer can be given to both propositions that the question may be answered “yes”. [20] The relevant power of the Board derives from section 30K which states: “(1) If, because of the inquiry, the board is of the opinion that the medical practitioner is not competent to practise medicine, the board may remove the medical practitioner’s name from the register. 3 (1956) 100 CLR 146, 150-151. 4 cf Medical Board of Queensland v Cooke [1992] 2 Qd R 608, 609. -- 7 of 21 -- 8 (2) If, because of the inquiry, the board is of the opinion that conditions should be imposed on the medical practitioner’s registration to practise medicine, the board may make the necessary recordings in the register.” [21] If the Tribunal conducts a “review” under s 32, it has an express power to alter conditions of registration5. However the jurisdiction exercised by the Tribunal in this instance was that of an appeal by way of re-hearing, which arose under either s 21(1)(e) or s 30M of the Act. Its powers upon such an exercise would in my view be the same as those of the Board from whose decision the appeal was brought. In short, the source of the power from which the present conditions must be justified is s 30K. [22] There is no specific limitation upon the Board’s power to impose conditions other than that they must be of the opinion that they should be imposed “because of the inquiry”. As indicated above, the original basis of the Board’s opinion was largely removed by the Tribunal’s findings, a substantial part of the Board’s major concerns having been exposed as misunderstandings and misinterpretations. [23] I do not propose to rehearse the structure of the Act and the relationship between section 30K and other sections in the Act, as I am substantially in agreement with Williams JA’s conclusion that the Board (and in turn the Tribunal) may impose conditions on registration without relying on s 17F. The power under s 30K however is not unconfined. The conditions must be the result of an opinion formed “because of the inquiry”. The basis of conditions imposed by the Board following an inquiry should be able to be demonstrated. The only sensible construction of the phrase “because of the inquiry” would seem to require a direct connection with the findings of the inquiry. Section 30K does not give the Board the right to take into account matters that have not been exposed by the inquiry. In practical terms the relevant considerations would be expected to be able to be found in the inquiry’s report. [24] In the present case the Board had adopted the inquiry’s conditions with minor variations. The Tribunal, on a re-hearing, found a number of the bases upon which those conditions had been recommended to be flawed. The relevant basis of any conditions imposed by the Tribunal must then be confined to the amended truncated findings of the Tribunal. On an appeal such as the present, the Tribunal has no power to impose conditions other than by re-exercising the power of the Board under s 30K(2). It is important to note that the Tribunal’s function was not that of a new commission of inquiry. Its function was that of an appellate tribunal to which an appeal had been brought against a decision of the Board. The essential limitation remained that the conditions had to be based on an opinion formed “because of the inquiry”. [25] I agree with Williams JA that “public policy” is a factor to which the Board (or the Tribunal) may advert in appropriate circumstances, consistently with what has been said in Bayliss6. Public policy however is an unruly criterion that should be sparingly used. In ordinary circumstances one would expect more specific criteria 5 Section 32B(1). 6 Medical Board of Queensland v Bayliss [2000] 1 Qd R 598, 610. -- 8 of 21 -- 9 such as the interests of potential patients or the maintenance of standards in the medical profession to be specified without need to resort to the wide and easily invoked phrase of “public interest” or “public policy”. I do not consider it was a pre-condition of the imposition of conditions that an “impairment”7 that detrimentally affects a practitioner’s capacity to practise medicine must be shown to exist. At the same time it seems to me that imposition of conditions requiring submission to treatment by a psychiatrist for a period of three years seems, to say the least, extraordinary in the absence of a finding of any recognised psychiatric illness. [26] The first limb of question (1) in the Case Stated may be shortly answered. In the circumstances the Board and in turn the Tribunal had power to impose conditions under section 30K, but it was necessary that they be based on an opinion formed “because of the inquiry”. Conditions so unreasonable as to be insupportable? [27] The question remains whether the Tribunal had power to impose “the conditions”, that is to say these conditions. [28] The Tribunal’s power was simply that of an appellate Tribunal to which a practitioner was given a right of appeal against conditions imposed by the Board when “conditions to which … [the practitioner’s] … registration is subject … have been altered under … s 30K(2)”. On an ordinary appeal to this court the issue would have been whether the discretion of the Tribunal miscarried according to principles such as those in House v The King8. However the Tribunal chose not to present such a question, although s 43 permits errors of law to be raised as well as excess of jurisdiction. The question it posed to this court is restricted to whether the Tribunal had power to order the Board to record these conditions. For this reason the appellant must base his submission upon invalidity under the administrative law. In particular he relies upon the principle enunciated in Associated Provincial Picture Houses Ltd v Wednesbury Corporation9. That principle is available only when a decision is so unreasonable that no reasonable authority could have come to it. The question is whether the Tribunal acted in excess of the powers which the Act conferred upon it. Although the principle operates within narrow limits, it has been accepted in Australia as a basis of review along with arbitrariness, capriciousness, irrationality and lack of bona fides, and in particular in cases where the power is conditional upon the holding of an “opinion”10. That criterion exists in the present case. [29] Condition (vii) to which I have referred11 was in substance a reproduction of condition (7) of the inquiry’s suggested conditions. It seems to me that the findings of the Tribunal on the remaining matters originally relied on by the committee of inquiry could not possibly justify the imposition of such a condition. 7 As defined in section 4B. 8 (1936) 55 CLR 499. 9 (1948) 1 KB 223, 234. 10 Foley v Padley (1984) 154 CLR 349, 353. 11 See para [8] above. -- 9 of 21 -- 10 [30] It is difficult to identify which conditions were imposed in reliance upon the perception that the appellant has a dysfunctional personality trait. The reasons of the Tribunal contain lengthy discussion of “narcissistic traits” which have been elevated to “ultimate facts” in the case stated12. These conclusions seemed to have been derived from the opinion of a medical practitioner, Dr Reddan, who had not treated or examined the appellant but had observed his conduct over a period, including his conduct during the inquiry. Doctor Reddan was one of the members of the inquiry whose findings were in issue. In pursuing this particular line of inquiry and in acting on fresh evidence from Dr Reddan the Tribunal seems to me to have gone further than form an opinion because of the inquiry. In any event I find it difficult to identify any of the conditions that can be justified on the basis of the personality traits of the appellant. [31] The conditions, as earlier observed, are highly invasive and some of them may be impossible to fulfil. They are such as in my view to be likely to make it virtually impossible for the appellant effectively to practise neurosurgery. Some of the conditions might even be seen as undermining the human dignity of the appellant. There are no findings in relation to the appellant’s medical competence that could justify any of the conditions. It is difficult to resist the conclusion that the concerns leading to the imposition of these conditions are largely based on what is seen as an aberrant personality. A body entrusted with powers such as those of the Medical Board must be careful to avoid penalising a practitioner for eccentricity, unorthodoxy, unpopularity, curmudgeonly conduct, or even offensive personality traits that may from time to time make life more difficult for colleagues. I do not say that conditions may not be imposed for bizarre or otherwise unacceptable conduct falling short of an identifiable psychiatric illness, but I think that extreme care needs to be exercised before imposing restrictive conditions limiting the capacity of such persons to practise. [32] The oppressive cumulative effect of the conditions cannot be appreciated unless they are read together (See para 52 of Williams JA’s reasons). They require the appellant inter alia to submit to psychiatric treatment for 3 years and to be reviewed by another psychiatrist when required by the Board; to engage a “practising neurosurgical peer” to act as his support colleague and to attend meetings at least monthly with such person for three years, and much more; and to continue medical education requirements including attendance at overseas meetings and submission of a diary of such activities. It is possible that some of the conditions, notably those relating to continuing education might be able to be justified, though even here there would need to be shown some need for it over and above the needs of fellow practitioners. However it is not possible for this court to sever any residue from this raft of conditions which as a whole cannot be justified, let alone to redraft them. The essential findings of the Tribunal are a totally inadequate basis for the infliction of these conditions upon a competent neurosurgeon. [33] In my view, given the basis stated to support the imposition of conditions, these can clearly be seen to be so unreasonable that no reasonable Tribunal could have imposed them “because of the inquiry”. In short, I think that they meet the Wednesbury test13. 12 Examples appear in para [48] of Williams JA’s reasons. 13 Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 KB 223. -- 10 of 21 -- 11 [34] This conclusion means that question (1) should be answered “no”. [35] Because of the unsatisfactory double issue raised by question (1), I think it desirable to isolate the specific question whether the conditions imposed by the Tribunal were so unreasonable in the circumstances of the case as to indicate an error of law on the part of the Tribunal in the exercise of its discretion. The answer to that question is “yes”, and this additional answer should be conveyed to the Tribunal. To do so is, I think, consistent with the view of McPherson JA in Bayliss14 that failure to include questions in a Case Stated “does not deprive this court of jurisdiction to determine questions of law that can be shown to arise from the facts and the grounds of the decision as set forth” in the Case Stated to this court. [36] It follows in my view that the conditions that were imposed are void. It will be a matter for the Board to determine whether any further procedures ought to be initiated with a view to the imposition of conditions that might be considered to be reasonable and within power. [37] I consider that the proceedings have miscarried to such an extent that it would be inappropriate to send the matter back for further determination by the same Tribunal. The Tribunal is in any event now constituted by a different judge, and I see no merit in making an order referring the matter to a differently constituted tribunal which would have to hear the proceedings de novo. The conditions are in my opinion void, and it is preferable that this unsatisfactory exercise be now terminated. If there are to be any further proceedings it is preferable that they be commenced on a fresh slate. Orders [38] In appeal 10098 of 2000: The questions in para 10 of the Case Stated should be answered. 1. No. 2. Yes. 3. No. 4. There should be no order for costs of the proceedings before the Tribunal. 5. The additional question whether the conditions imposed by the Tribunal were so unreasonable in the circumstances of the case as to indicate an error of law on the part of the Tribunal in the exercise of its discretion should be answered “yes”. The appeal should be allowed and the respondent Board should pay the appellant’s costs of the appeal. The order of the Tribunal, including its order for costs should be set aside. [39] In appeal 11211 of 2000: The appeal should be dismissed with costs. [40] WILLIAMS JA: Two appeals are relevantly before the Court. The first (No 10098 of 2000) is an appeal by way of case stated pursuant to s 43 of the 14 Medical Board of Queensland v Bayliss [2000] 1 Qd R 598, 614. -- 11 of 21 -- 12 Medical Act 1939 ("the Act") from a decision of the Medical Assessment Tribunal ("the Tribunal"). By that case stated the following questions are posed for consideration of this Court: "(1) Did the Tribunal have power to order that the respondent record the conditions in the registers without applying or relying on s 17F of the Medical Act 1939? (2) If "no" to question (1), was it reasonably open to the Tribunal in applying s 17F to refuse to impose those conditions? (3) If "yes" to question (2), should the matter be remitted to the Tribunal to consider whether the appellant suffers from an impairment and whether conditions are reasonably required having regard to that impairment, within the meaning of s 17F? (4) If "yes" to question (2), what order ought to be made regarding costs in the Tribunal?". [41] The appellant was not happy with those questions; his legal advisers had submitted to the judge constituting the Tribunal that the questions of law upon which the Court of Appeal's opinion should be sought were: "(a) Did the Tribunal have power or jurisdiction to impose the conditions which it did in the absence of any finding of incompetence or impairment as defined in s 17F of the Medical Act 1939? (b) Were the conditions imposed by the Tribunal so unreasonable in the circumstances of the case as to indicate an error of law on the part of the Tribunal in the exercise of its discretion?" Because of the dissatisfaction with the case as stated by the judge, the appellant applied to another judge of the Supreme Court pursuant to s 44(2) of the Act seeking an order to show cause why a case should not be stated in the terms proposed by the appellant. That matter came before Mackenzie J and he dismissed the application with costs to be assessed. His principal reason for so concluding was that there had been no refusal to state a case within s 44(2) of the Act. His Honour also referred with approval to the statement by McPherson JA in Medical Board of Queensland v Bayliss [2000] 1 Qd R 598 at 614: "Although s 43(1) does not in terms require a statement of questions of law, but only of the grounds of the decision, the remarks quoted from The Queen v Rigby show that it would not have been improper to have stated questions of law in this instance. It would certainly have been convenient if some questions had been stated. What seems clear, however, is that the failure to include them does not deprive this Court of jurisdiction to determine questions of law that can be shown to arise from the facts and the grounds of the decision as "set forth" in the case stated to this Court". [42] From that decision of Mackenzie J the second appeal (No 11211 of 2000) has been brought. As will become obvious there are serious deficiencies in the case stated the subject of appeal No 10098 of 2000, but nevertheless the critical issues raised by the appeal can be determined. There is essentially no difference between question (1) in the case stated and question (a) in the appellant's proposal. Further, applying the quoted observation of McPherson JA, this Court is able to dispose of the issue raised by para (b) of the appellant's proposal. In the circumstances Mackenzie J was clearly right in dismissing the application before him. -- 12 of 21 -- 13 [43] It follows that the second appeal, No 11211 of 2000, should be dismissed with costs to be assessed. [44] I now return to appeal No 10098 of 2000. [45] The respondent, The Medical Board of Queensland ("the Board") imposed conditions on the registration of the appellant as a medical practitioner. The appellant appealed to the Tribunal which confirmed the decision of the Board with some variations to the conditions. From that decision this appeal is brought by way of case stated pursuant to s 43 of the Act. [46] After a hearing which lasted many days the judge constituting the Tribunal delivered reasons for judgment which covered 46 pages. Those reasons dealt in depth with a number of issues which had apparently been hotly contested throughout the hearing. It appears that a number of medical specialists gave evidence touching on the fitness or competence of the appellant to practice medicine. Thereafter the appellant applied to the judge to state a case. The case as settled by the learned judge in this instance takes up four pages. The reasons for judgment of the learned judge were incorporated into the appeal book, but of course the evidence before the Tribunal was not. In that context it is worth repeating the statement of McPherson JA in Medical Board of Queensland v Bayliss at 614: "In that regard, there are admittedly difficulties about what may legitimately be referred to in identifying the matters of law to be decided on a case stated. In Boese v Fairleigh Estate Sugar Co (1919) 26 CLR 477, 483, the High Court exclaimed against the 'mass of material' including the original plaint, the judgment of the magistrate from which an appeal had been taken to a District Court judge, the evidence taken, his Honour's own judgment, and the case stated. It is clear from this and other authorities that at least the evidence at the hearing below is not to be included, or, if included, that it is not to be referred to in deciding the questions of law arising on the case stated . . . It is to my mind doubtful whether the Tribunal's reasons can be resorted to. Section 43(1) of the Act required the 'facts' and 'the grounds of decision for appeal' to be set forth in the case, which appears to me to be an exhaustive description of what may be included in it. If the reasons may legitimately be referred to, they can, in my opinion, at most be used, as Windeyer J has said, in 'elaboration' of express statements in the case itself. See Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210, 217. It follows that they may not be used to contradict, to vary, or even to fill in any real or supposed gap, in such statements". [47] In Marshall at 217, Windeyer J did say that the "Board's reasons can, I think, only be used by the Court to the extent that they contain some further express findings of fact in elaboration of the express statements in the case itself. They may, however, be illuminating in a case such as this, where the question is whether the Board's conclusion was open to it on the facts found". Here, counsel for each party formulated submissions on the questions ultimately for this Court's decision against a factual background established by the reasons for judgment of the Tribunal, notwithstanding that all such matters were not strictly stated as facts in the case -- 13 of 21 -- 14 stated. I am of the view that this Court is permitted to have regard to those agreed background circumstances; doing so would appear to be within the approach recognised by Windeyer J and not contrary to the views of McPherson JA. To the extent that the issues raised on the hearing of the appeal were debated in an agreed context derived from the reasons for judgment this Court should consider the issues raised by the case stated in that context. [48] But it must also be said that the drafting of the case stated is highly unsatisfactory. For example, the following are stated as facts in para 3: "(7) The appellant has a disposition toward and actually holds paranoid beliefs. (8) The appellant's responses to his paranoid beliefs were unprofessional. (9) The appellant has significant difficulties with his personality functioning. (10) The appellant finds it difficult rationally to consider his own behaviour and how it appears to others. . . . (14) The appellant needs a therapeutic environment in which to deal with his behaviour. (15) The appellant's isolation in the profession will get worse unless he can reflect on the issues in psychotherapy. (16) The appellant must develop some insight into his thinking patterns, emotional reactions and behaviour in order to re-establish relationships with his colleagues and to maintain the standards required for him to practise as a neurosurgeon." Those statements are indicative of the problem with much of the content of the case stated. Each of those statements may well be a finding made and justified in the light of the evidence before the Tribunal. But standing alone it is not a finding of fact of material assistance to this Court on this hearing; those facts are only intelligible in the light of the evidence given about them. Without that evidence the significance of the facts cannot be properly gauged or assessed. But nevertheless the case stated contains sufficient material on which this Court can consider the critical question of law, namely whether conditions can be imposed on registration pursuant to s 30K(2) without the necessity of making specific findings within s 17F. [49] The background facts which appear to have been accepted by each side can be relevantly summarised as follows. The appellant graduated in medicine from the University of Queensland and commenced practice in 1980. He became registered as a specialist neurosurgeon in about 1987 and developed a high reputation and extensive practice. In January 1994 he pleaded guilty to one charge of defrauding the Commonwealth of approximately $38,000, the offence commonly referred to as Medicare fraud. His sentence included a period of imprisonment. Consequently he was charged before the Tribunal with misconduct in a professional respect by reason of the conviction. On 23 June 1994 he was suspended from practice for 12 months. On his re-admission his right to practice was subject to a number of conditions imposed by the Tribunal. Thereafter he experienced some difficulties with his peers and also practical difficulties in making satisfactory arrangements with hospitals for performing operations. -- 14 of 21 -- 15 [50] All of that led to some disputation with members of the Board and on 14 July 1998 the Board resolved to hold an inquiry into the appellant's eligibility to remain registered; that fact was stated in para 3(2) of the Case Stated. Section 30D of the Act provides that if "the board is concerned that a person whose name is on the register may be unfit to practise medicine, the board may hold an inquiry into the eligibility of the person to remain registered as a medical practitioner". It was pursuant to that provision that the Board acted on 14 July 1998. [51] The case stated does not state facts with respect to that inquiry, but that was dealt with to some extent in the reasons for judgment of the Tribunal. Both counsel referred to aspects of that in the course of argument, and it appears to be agreed that a committee of assessors was appointed pursuant to s 30E of the Act and that that committee signed their findings and recommendations on 11 February 1999. An eminent neurosurgeon from New South Wales was appointed one of the committee members "to provide an independent approach from someone who did not know the appellant personally". That committee found that the appellant was eligible to remain registered as a medical practitioner subject to certain conditions. The Board was advised of that decision in accordance with s 30I of the Act. The Board then resolved pursuant to s 30K(2) that "conditions should be imposed on the medical practitioner's registration to practise medicine", and the Board formulated the conditions which should attach to the registration of the appellant. [52] The appellant objected to those conditions and appealed to the Tribunal against the Board's decision: sections 21 and 30M of the Act. That appeal was by way of rehearing: s 21B(1). That is the hearing which has given rise to this appeal. It appears that at the outset of the hearing before the Tribunal the Board submitted a redraft of the conditions which it claimed should attach to the appellant's registration. As already noted a number of medical specialists (including at least one from interstate) gave evidence and were extensively cross-examined. It would appear that most of that evidence was relevant to the issue whether conditions should be imposed and, if so, in what terms. The Tribunal determined that the appellant's registration should be subject to conditions, but with some changes from those submitted by the Board; some conditions were deleted and others were reworded. Ultimately the order of the Tribunal was as follows: "1. The Respondent record the following conditions in the Register of Medical Practitioners, Queensland, and the Register of Specialists, Queensland:- (i) the practitioner must participate in treatment with a psychiatrist of his choice to be selected by him from a list of five provided by the Board for a period of three (3) years from today; (ii) the practitioner must attend treatment at a frequency to be determined by that treating psychiatrist; (iii) the practitioner must provide the treating psychiatrist with a copy of the Tribunal's judgment and reasons of 7 August 2000 and with any further material the treating psychiatrist shall reasonably require. (iv) the practitioner must consent to the treating psychiatrist reporting to the Board immediately if there is a termination of treatment or a significant change in his health but -- 15 of 21 -- 16 otherwise on a quarterly basis regarding dates of attendance only; (v) the practitioner must attend for review by a psychiatrist nominated by the Board at the Board's expense at such times as the Board may from time to time determine but no more frequently than at six (6) monthly intervals; (vi) the practitioner must consent to the psychiatrist nominated by the Board reporting to the Board following each such review assessment; (vii) (a) the practitioner must engage a practising neurosurgical peer to act as his support colleague; (b) for three (3) years from today the practitioner must attend meetings at least monthly with the support colleague to discuss his cases and surgical procedures particularly those cases on his operating lists; (c) the practitioner must participate in neurosurgical morbidity and mortality meetings either with the support colleague or as arranged by the support colleague; (d) the practitioner must jointly with the support colleague submit a six monthly report to the Board which report must include details of:- 1. the date and duration of his meetings with the support colleague; 2. the dates and places of neurosurgical morbidity and mortality meetings participated in by the practitioner; 3. the dates, places and nature of other education activities engaged in by the practitioner; (viii) the practitioner must meet the annual CME requirements of the Royal Australasian College of Surgeons with a maximum of one overseas meeting per year to count towards those CME requirements and with at least 75 percent of the requirements counted to be in fields related to neurosurgery; (ix) the practitioner must submit a diary of CME activities to the Board each six months commencing by 31 January 2001 in respect of the period to 31 December 2000; (x) the practitioner must do all in his power to further his application to rejoin the Neurosurgical Society of Australasia and to maintain any such membership granted to him." [53] As the Tribunal was rehearing the matter it had all the powers of the Board (which would include the power to impose conditions pursuant to s 30K(2)); it may also have had the powers conferred by s 32B if it treated the appeal as a review pursuant to s 32 of the Act. Pursuant to s 32B(1)(d) the Tribunal would have had power to "make an order altering the conditions to which the person's registration is subject -- 16 of 21 -- 17 (including by imposing new conditions)". The Board and the Tribunal clearly acted on the basis that the conditions in question were being imposed pursuant to s 30K(2) of the Act; it is in terms: "If, because of the inquiry, the board is of the opinion that conditions should be imposed on the medical practitioner's registration to practise medicine, the board may make the necessary recording in the register". The Board imposed conditions thereunder and the Tribunal, in the exercise of its powers, varied those conditions after hearing the appeal. The contention of the appellant is that conditions could only be imposed in accordance with s 17F of the Act. That is the issue essentially raised by the first of the questions for consideration by this Court; the question is identical to that which would be raised if para (a) of the appellant's proposed case stated was adopted. [54] Mr Cooke, senior counsel for the appellant, developed his argument that s 17F was the dominant provision by taking the Court through some relevant provisions in the Act. Section 4 provides that the expression "competent to practise medicine" has the meaning given to it by s 4A; that section is in these terms: "A person is competent to practise medicine only if the person - (a) has sufficient physical capacity, mental capacity and skill to practise medicine; and (b) has sufficient communication skills for the practise of medicine, including an adequate command of the English language". Section 4 also provides that the term "impairment" has the meaning given to it by s 4B; that section, so far as is relevant, is in these terms: "(1) A person is considered to suffer from impairment if the person suffers from a physical or mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise medicine". Mr Cooke then moved to those provisions of the Act which deal with registration (Division 1 sections 17 to 17G). Section 17 provided that a person who had "recognised medical qualifications" and had completed a period of internship was entitled to general registration. The Board was given power to impose conditions on registration in the circumstances specified in s 17C. Reference was then made to s 17F(1), which provided that the Board "may impose conditions on a person's registration if the board is satisfied that the person suffers from an impairment and the conditions are reasonably required having regard to the impairment". To make the position clear, s 17G provides that an "entitlement to registration under this Act does not prevent conditions being imposed" on that registration. Mr Cooke emphasised the use of the term "entitled" in s 17 and s 17G. [55] The argument for the appellant is that those provisions, s 17 to s 17G inclusive, all relate to entitlement to registration. The argument contrasts those provisions with the sections found in Division 3 (s 19 to s 19D) which is headed "Grounds for refusing registration". Those sections, so the argument goes, refer to "eligibility" which is to be contrasted with "entitlement" to registration. As it was put by counsel: "you have to be entitled before you can become eligible" for registration. [56] Section 19A provides that the Board may register a person only if it is satisfied that the person "is competent to practise medicine" and is of good character. In an -- 17 of 21 -- 18 appropriate case the Board could hold an inquiry into eligibility pursuant to s 25, which is in these terms: "(1) The board may hold an inquiry, in such cases as it considers appropriate, into the eligibility of an applicant to be registered as a medical practitioner. (2) The inquiry may include an inquiry into the applicant's competence to practise medicine." That section is in a division of the Act dealing with "Registration Procedures" and clearly an inquiry under that section is an inquiry held prior to registration and designed to establish eligibility for registration. The inclusion of the expression "competence to practise medicine" also indicates that such an inquiry may be with respect to the persons "physical capacity, mental capacity and skill to practise medicine". [57] Counsel moved from there to Part 4B of the Act which deals with "Removal from and Alteration of the Register". Section 30 provides that the Board may remove from the Register the name of a person who is not entitled or eligible to be register. That leads to s 30D which is in these terms: "(1) If the board is concerned that a person whose name is on the register may be unfit to practise medicine, the board may hold an inquiry into the eligibility of the person to remain registered as a medical practitioner. (2) The inquiry may include an inquiry into the medical practitioner's competence to practise medicine." Again, by virtue of the definition, the inquiry could have regard to the person's "physical capacity, mental capacity and skill to practise medicine". Further (as with s 25) the structure of the provision strongly suggests that "eligibility" (which is not defined) is wider than "competence". That is the section under which the respondent Board acted in this case. It is also clear that the inquiry referred to in s 30K is the inquiry held pursuant to s 30D. [58] It seems clear from s 30D that the inquiry may inquire into more than "the medical practitioner's competence to practise medicine"; but the section itself does not define the ambit of "eligibility" to remain registered or otherwise limit the scope of the inquiry which is triggered by the Board's concern the person may be "unfit to practise". It is here that the argument for the appellant goes back to s 19A. In the light of that provision the submission was made that the only relevant consideration additional to being "competent to practise medicine" was being "of good character". [59] It was also submitted that it would be anomalous if the Board could impose conditions on a medical practitioner's registration after registration pursuant to s 30K which were different or more extensive to the conditions which could be imposed before registration pursuant to s 17F. That led to the submission on behalf of the appellant that it was a condition precedent for the imposition of conditions pursuant to s 30K that there be a finding that the person "suffers from an impairment" as defined in s 4B. [60] I am not convinced that those arguments are valid. Given the terms of ss 30D, 30I and 30 K, there appears to be no restriction on the subject matter of the inquiry on the type of conditions that may be imposed other than that the inquiry must be concerned with the person's eligibility to practise medicine and that the imposition -- 18 of 21 -- 19 of the conditions must be justifiable by the inquiry which advised the Board that conditions should attach to the registration. But even if the submission that s 17F applies was valid no definable mental impairment would have to be established as a condition precedent. The term "condition" in s 4B has a wide meaning. It would be sufficient if the inquiry established the person suffered from a physical or mental condition which justified the imposition of conditions. [61] Paragraph 6 of the case stated was in terms that the "ground of the Tribunal's decision . . . was that the conditions were reasonably required in the public interest". The point was taken by Mr Cooke for the appellant that the Act did not empower either the Board or the Tribunal to impose conditions simply because they were "reasonably required in the public interest". Whilst there is no express power to impose a condition merely because it is in the public interest, it is nevertheless clear that the public interest is an overriding consideration when most decisions are being made pursuant to the Act. The Preamble to the Act refers to "the control of the practice of medicine" and the whole of the Act could be said to be designed to ensure that the practice of medicine is conducted in the public interest. Section 6 empowers the Governor in Council to refer to the Tribunal "any other matter considered to require investigation by the Tribunal in the public interest". The Board is constituted not only by medical practitioners but also persons "nominated by the Minister to represent the Government" and a member "representing users of the services of medical practitioners". The Tribunal is constituted by s 33 for "the better control and discipline of medical practitioners". All of those provisions suggest to my mind that the purpose of the Act is to control and regulate the practice of medicine by medical practitioners in the public interest. One of the principal aims is to ensure that only properly qualified persons can hold themselves out as medical practitioners; to that extent the public interest is protected. [62] In Bayliss it was recognised in para 25 by McMurdo P and Thomas JA that "it was appropriate . . . in the context of deciding the right of continuation of practice of a medical practitioner, to advert to the public interest". If, consequent upon an inquiry held pursuant to ss 30D and 30I the Board considered that conditions should be imposed upon a medical practitioner pursuant to s 30K the Board would not, in my view, be exceeding its powers and jurisdiction if it took into account the public interest (that is, the interests, amongst others, of potential patients of the medical practitioner) in determining what conditions should be imposed. Because of that, I am not convinced that the Tribunal here erred in law in concluding that "the conditions were reasonably required in the public interest". [63] Given the wide terms of s 30K(2) the Tribunal had power to record conditions in the registers without relying on s 17F of the Act; in other words, the Tribunal did not have to make a specific finding of an impairment as defined in s 4B before it could impose conditions. On the proper construction of the Act the Tribunal had the power to impose conditions on the appellant's registration. [64] That leads to another question which is inherent in question 1 of the case stated, namely whether the power extended to imposing "the conditions" which the Tribunal in fact imposed. That to my mind also gives rise to the question which the appellant formulated in para (b) of his proposal. The appellant's question really asks this Court to conclude that the conditions in fact imposed by the Tribunal were so unreasonable as to indicate an error of law on its part in the exercise of its -- 19 of 21 -- 20 discretion. That, of course, is the test derived from the judgments in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223; there Lord Greene MR said at 230 that a decision can be upset if it is proved to be "a decision that no reasonable body could have come to". He distinguished that situation from that where the court considered the decision to be unreasonable. (See also Parramatta City Council v Pestell (1972) 128 CLR 305 at 327, and Perera v Queensland Community Corrections Board [1990] 1 Qd R 553.) [65] The real problem here is that the appropriateness and reasonableness of conditions cannot effectively be considered on a case stated. Here the Board, the body appointed by statute to oversee and regulate the practice of medicine in this State, was concerned that the appellant "may be unfit to practise medicine". Because of that, and acting pursuant to the legislation, the Board constituted a committee of assessors (including at least one medical specialist from interstate to preserve neutrality) to inquire into the eligibility of the appellant to remain registered as a medical practitioner. That committee advised the Board that conditions, broadly similar to those now under consideration, should be attached to the appellant's registration. The Board acted in accordance with that advice. From the Board's decision the appeal was taken to the Tribunal. As already noted, extensive evidence was there taken from a wide variety of medical specialists. The judge constituting the Tribunal was assisted by two "eligible medical practitioners", sitting as assessors in accordance with s 33 of the Act. It was their duty to advise the judge "as to what in their opinion is the proper determination of any question of fact which may arise" in the matter before the Tribunal. It is reasonable to assume that they did so in this case. As already noted, the outcome was that the Tribunal varied to some extent the conditions attaching to the appellant's registration. [66] This Court does not have the benefit of all of that primary material and advice; indeed, in a case stated it would be improper to place that material before this Court. In those circumstances it is not possible for this Court to say that no reasonable Tribunal could have arrived at the decision the Tribunal did in this case. When a court is considering the application of the Wednesbury test it is not sufficient to say that the reasons for judgment on which the decision is based appear prima facie to be reasonable; the court has to go back to the essential facts, the evidence, and consider whether a reasonable Tribunal could have, in the light of that evidence, arrived at the decision in question. [67] It is not for this Court to look at the conditions imposed isolated from the evidence before and material available to the Tribunal and consider whether or not all or any of the conditions imposed are unreasonable. As already noted, the relevant test is not whether this Court considers a condition to be unreasonable. For that reason it is my view that it is futile for this Court to analyse the substance of the conditions imposed in any way. [68] That result is a consequence of the only appeal from a decision of the Tribunal being by way of case stated. This is not an appeal by way of re-hearing. [69] It follows that question 1 in the case stated should be answered "yes", and in consequence it is not necessary to answer the other questions. The order of the Court should therefore be: The questions in the case stated should be answered as follows. -- 20 of 21 -- 21 Question (1): Yes Question (2): Unnecessary to answer Question (3): Unnecessary to answer Question (4): Unnecessary to answer Order that the appellant pay the respondent's costs of and incidental to the case stated to be assessed. -- 21 of 21 --