Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v ERL [2021] NSWCATOD 78 Hearing dates: 25 March 2021 Date of orders: 09 June 2021 Decision date: 09 June 2021 Jurisdiction: Occupational Division Before: Sheahan AO ADCJ, Principal Member Dr M Diamond, Senior Member Dr H Haikal-Mukhtar, Senior Member Ms R Kusuma, General Member Decision: The Tribunal makes the following orders: (1) Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW) ("the National Law"), the publication of the names of the respondent and of the complainants known as Patients A – G is prohibited except to the Medical Council of New South Wales; (2) An order pursuant to s 149C(4)(b) of the National Law that the Tribunal would have cancelled the respondent's registration as a medical practitioner if he had still been registered; (3) An order pursuant to s 149C(4)(c) that the National Board record the fact that the Tribunal would have cancelled the practitioner's registration had he still been registered; (4) An order that the respondent is disqualified from being registered as a medical practitioner with no right of review for a period of eight years, pursuant to s 149C(4)(b); and (5) The practitioner is to pay 50% of the costs of the Health Care Complaints Commission of and incidental to these proceedings, as agreed, or failing agreement, as assessed under the Legal Professional Uniform Law Application Act 2014 (NSW). Catchwords: HEALTH — professional registration and discipline — complaints — medical practitioner found guilty of unsatisfactory professional conduct and professional misconduct — non-publication order — protective orders — costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Legal Professional Uniform Law Application Act 2014 (NSW) Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Vo [2014] NSWCATOD 127 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) ERL (Respondent) (name suppressed) Representation: Counsel: D New (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Respondent's agent (Respondent) File Number(s): 2020/00125417 Publication restriction: Under cl 7 of Schedule 5D to the Health Practitioner Regulation National Law (NSW) publication of the names of the respondent and the relevant patients is prohibited except to the Medical Council of New South Wales. REASONS FOR DECISION Introduction 1. In this matter the Health Care Complaints Commission (HCCC or the Commission) seeks findings and disciplinary orders against a medical practitioner, pursuant to s 149C of the Health Practitioner Regulation National Law (NSW) ("the National Law"), plus an order for its costs. 2. The Commission filed a Further Amended Complaint (FAC) immediately prior to this Tribunal's hearing on 25 March 2021 and the practitioner's partner/guardian (see Ex A2), who appeared before us on his behalf, as his agent, was content for the matter to proceed on the basis of the complaint in that final form. 3. Also, in November 2020, the practitioner applied for a non-publication order in his favour, and in respect of the complainants (Ex R1, tab J). After hearing argument on both sides, the Tribunal has decided to make that order, on the grounds that publication of these Reasons, if not formulated on that basis, could adversely impact on the practitioner's mental health, and possibly lead him to self-harm. In making our decision on the request for such an order, we had regard to the discussion of the relevant principles in Health Care Complaints Commission v Vo [2014] NSWCATOD 127; and Health Care Complaints Commission v XC [2015] NSWCATOD 9. We will refer to the respondent practitioner as "ERL". 4. The parties relied on extensive documentary evidence, to which no objection was taken, and called no oral evidence. The Tribunal regrets that the practitioner did not appear before us to give an account of himself. 5. The Commission was represented by Ms Danielle New of counsel, and she and the practitioner's agent made both written and oral submissions. Background 1. The Commission received a number of complaints about the behaviour of the practitioner with female patients in the period 2012–2014, but held back on taking disciplinary action until the criminal justice system had concluded its consideration of some of them. 2. At the relevant time the practitioner was a long-time, busy General Practitioner ("GP"), whose career was unblemished, despite some occasional strange and eccentric behaviour. He admits to having had "issues with ineffective communication and his bedside manner…" (see the later of the 16 June 2020 emails in Ex R2). 3. After the police investigated several complaints, ERL went through two criminal trials and one appeal. In the end result, he was found not guilty on a number of sex-related charges, on the grounds of mental illness, and acquitted altogether on one further charge. The female complainants in those matters were found to be "credible and reliable" witnesses, and we are content to adopt the courts' findings in respect of the practitioner's conduct. 4. In addition, and independently of the criminal matters, the Commission now seeks to act on a complaint from a seventh female patient ("Patient G") regarding inappropriate treatment and prescribing. 5. In final form, the Tribunal was asked to deal with five "complaints" detailed and particularised in the FAC: 1. In Complaints One and Two, we are asked to find that the practitioner has an "impairment", as defined in s 5 of the National Law, and that, as a result, he is not competent to practise medicine (under s 139). 2. In Complaint Three, we are asked to find the practitioner: 1. guilty of unsatisfactory professional conduct (under s 139B), in that he engaged in improper or unethical conduct, or 2. otherwise unsuitable to hold registration (under s 144), because of the findings against him in the criminal matters. 1. In Complaint Four, we are asked to find the practitioner guilty of unsatisfactory professional conduct (under s 139B) in that he inappropriately prescribed medication to Patient G, demonstrating knowledge, skill and judgment significantly below the standard reasonably expected of a GP. 2. In Complaint Five, we are asked to find the practitioner guilty of professional misconduct on the basis of our consideration of Complaints Three and Four, individually or collectively. 1. The Commission has sought the following orders (submissions, par 9): 1. An order pursuant to s 149C(4)(b) of the National Law that the Tribunal would have cancelled the respondent's registration as a medical practitioner if he had still been registered; 2. An order pursuant to s 149C(4)(c) that the National Board record the fact that the Tribunal would have cancelled the practitioner's registration had he still been registered; 3. An order that the respondent is disqualified from being registered as a medical practitioner with no right of review for a period of eight years, pursuant to s 149C(4)(b); and 4. Costs as agreed or assessed. Evidence and Submissions 1. The comprehensive submissions made by the Commission outline its case, and the relevant medical evidence, in detail. They were not challenged in any real sense, and we accept them without setting them out in detail here. 2. The practitioner admitted Complaints One and Two, but not Three to Five. He has not been registered as a medical practitioner since September 2014. He asserts: 1. "disease of the mind" (Ex A1, tab 58, at par 16) as the reason for his alleged sexual misbehaviour; 2. that he has already been tried and punished for any wrongdoing; 3. (in a statutory declaration (Ex R1, tab B)) that he "will not seek to re-register as a Medical Practitioner"; and 4. (in his submissions, p 3) that he cannot recall Patient G (Complaint Four), or any of the alleged "circumstances surrounding the consultations" involving her. 1. The expert practitioners who gave reports and/or evidence in both these and the relevant criminal proceedings — their reports and evidence being before this Tribunal, but not discussed in detail here so as not to identify the practitioner — have identified a number of physical and mental conditions which relevantly affect him: Bipolar 1 Affective Disorder (of the more serious variety, acknowledged as "severe", and as having psychotic features); Progressive Supranuclear Palsy (with limited neurological functioning); and poorly controlled Diabetes Mellitus (which, when associated with the practitioner's bipolar condition, can adversely affect judgment). 2. His agent further submits (submissions, p 2) that he also suffers from "hypotension, hypercholesterolaemia, supraventricular tachycardia and arthritis", some residual "consequences of a long sleeve gastrectomy, laparoscopy hiatus hernia repair, and ballooning of an oesophageal stricture", "dementia" (Ex A1, tab 49, and Ex R1, tab C, p 3), and "high falls risk" (see p 4 of the "tool" document in Ex R2). 3. Now aged in his late sixties, the Tribunal accepts that ERL's health has steadily deteriorated in recent times, and that his prognosis is clearly poor. His agent told the Tribunal on 16 June 2020 (email included in Ex R2) that "he will never be able to function as a normal person again, he cannot look after himself, let alone work as a general practitioner", and, at the hearing, she relied upon a 17 September 2020 medical assessment by Dr Anthony Samuels (on behalf of the Commission) (Ex A1, tab 49, and Ex R1, tab C) that his condition and cognitive function preclude him from "ever working again" (p 10). As Dr Samuels opines (p 10, at par 80), "ongoing deterioration over time is inevitable". 4. His agent refers to ERL's inability to "look after his own affairs" (submissions, p 4), but to his being "extremely remorseful, apologetic" (submissions, p 3), and to his desire "to live the remainder of his life in peace" (submissions, p 5), "surrounded by his family and friends" (Ex R2, his agent's memo, dated 30 September 2020). In her oral submissions at the hearing, she referred to his situation as "end of life", he being in need of constant care and supervision. 5. The presiding Judge at ERL's second criminal trial noted (Ex A1, tab 26, and Ex R1, tab E, at [339]) that the relevant allegations against him were made after he had worked as a GP for more than thirty years without any such complaints being made against him: "… his otherwise criminal behaviour began at around the time he was diagnosed with diabetes, an illness which exacerbates bipolar affective disorder…". His Honour concluded (at [342]) that it was probable that at the time of the behaviour subject of the criminal charges the practitioner was "in the manic phase of [his bipolar disorder]…", and so not "able to reason with a moderate degree of composure". His Honour accepted that the complainants gave no consent to his offending behaviours. Submissions 1. The Tribunal accepts the following submissions put by the Commission: "10. Disciplinary proceedings are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637E. 11. The Tribunal, when determining the Application, must have the health and safety of the public as its "paramount consideration" (s 3A of the National Law). 12. An important aspect of the protective jurisdiction exercise[d] by the Tribunal is the need to uphold and maintain public confidence in the medical profession and not to undermine the reputation of the medical profession. 13. This is relevant to the present context where impairment, competency and sexual misconduct are the basis for the complaints. … 83. … the Court of Appeal in HCCC v Do [2014] NSWCA 307 expressly found that the objective of protecting the health and safety of the public is not confined to protecting the patients of a particular practitioner from the continuing risk of his or her misconduct but includes protecting the public from similar misconduct of other practitioners and upholding public confidence in the practitioner's profession. 84. Public protection warrants the respondent's [disqualification]. No other measure is appropriate given the combination of the respondent's impairment and the conduct that the District Court found he engaged in while he was impaired. 85. The criminal court findings strike at the heart of the respondent's fitness and propriety to practice [sic]. 86. The behaviour associated with the respondent's diagnosis potentially places patient lives at risk (for example the way in which Patient G was treated). 87. The Commission submits that it is open for the Tribunal to find that there is a real and significant concern about the respondent's competency to practice [sic] in the profession, that the Tribunal can be satisfied that the respondent poses an unacceptable risk of harming his patients if he continued to practice [sic] and that any permitted registration would damage the reputation of the medical profession." 1. The submissions put by ERL's agent acknowledge (p 1) that this proceeding is "first and fore mostly [sic] concerned with public safety and the need to protect the public from risk". No issue was taken with the summary we have just set out of the HCCC's position. Discussion and findings 1. It is beyond argument that this practitioner is "impaired" (s 5), and that the extent of his impairment is of such severity as to cause him to not be "competent" to practise as a GP. 2. Hence, the Tribunal finds Complaints One and Two proven to the required standard. 3. In respect of Complaint Three, the Tribunal accepts and acts upon the combined findings made in the criminal courts (pursuant to cl 5 of Sch 5D to the National Law). All the relevant evidence and findings of the criminal courts are before this Tribunal. The Commission relies upon that material, and indeed so does the practitioner, his agent arguing that he should not be punished a second time for the relevant conduct. 4. The Tribunal relies upon all that material to uphold Complaint Three, and to find unsatisfactory professional conduct (as in improper and unethical conduct) and professional misconduct, on the part of the practitioner, pursuant to ss 139B(1)(l) and 139E of the National Law. 5. On Complaint Four, the Commission presses only the issues concerning the prescribing of medication, and the keeping of inadequate records, in respect of Patient G. 6. The evidence relied upon by the Commission to substantiate Complaint Four was put before the Tribunal (submissions 71–78), and the practitioner (by reason, it is said, of his cognitive shortcomings, and/or his unfitness to give oral evidence to this Tribunal) has put nothing to contradict the Commission's material. 7. The Tribunal accepts the evidence (including the expert evidence), and the submissions presented by the Commission, on this complaint, and so finds that the practitioner's conduct demonstrates knowledge, skill and/or judgment possessed, and/or care exercised, significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 8. The Tribunal finds that the practitioner is guilty of unsatisfactory professional conduct in relation to Patient G. 9. Considering together the Tribunal's determinations in respect of Complaints Three and Four, the Tribunal also upholds Complaint Five. 10. The Tribunal, therefore, will make the substantive orders numbered (a) to (c), set out above at [11]. 11. We turn, therefore, lastly, to the question of costs (proposed order (d)). Costs 1. The practitioner submits, without putting before us any supporting evidence, that he is an aged pensioner of negligible means. He is said (Ex R2, email 16 June 2020) to have lost his family home, and all his worldly possessions, and to have incurred significant debt because of legal expenses. 2. The relevant principles on costs are set out in the very last paragraph of the Tribunal's Reasons in Health Care Complaints Commission v XC, to which reference was made at [3] above. 3. A costs order is compensatory, not punitive, and costs generally follow "the event", here ERL's failed contest in three out of five complaints. 4. We do, however, acknowledge that he surrendered his registration, and also acknowledge the cooperative way in which the matter proceeded before this Tribunal, and the consequent shortening of the necessary hearing time. 5. In the circumstances, we believe an order should be made for the Commission to recover 50% of its costs. These costs can be agreed or assessed, and ERL and his agent will be able to put before the Commission any evidence to support their assertions of impecuniosity. Orders 1. The Tribunal makes the following orders: 1. Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW) ("the National Law"), the publication of the names of the respondent and of the complainants known as Patients A – G is prohibited except to the Medical Council of New South Wales; 2. An order pursuant to s 149C(4)(b) of the National Law that the Tribunal would have cancelled the respondent's registration as a medical practitioner if he had still been registered; 3. An order pursuant to s 149C(4)(c) that the National Board record the fact that the Tribunal would have cancelled the practitioner's registration had he still been registered; 4. An order that the respondent is disqualified from being registered as a medical practitioner with no right of review for a period of eight years, pursuant to s 149C(4)(b); and 5. The practitioner is to pay 50% of the costs of the Health Care Complaints Commission of and incidental to these proceedings, as agreed, or failing agreement, as assessed under the Legal Professional Uniform Law Application Act 2014 (NSW). ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 09 June 2021 - Acronym used to identify respondent substituted in citation and at [3], [8], [16]–[18], [20], [34] and [36] 18 June 2021 - Order 1 (non-publication order) modified DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2021