Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Vaughn [2022] NSWCATOD 82 Hearing dates: 13 July 2022 Date of orders: 28 July 2022 Decision date: 28 July 2022 Jurisdiction: Occupational Division Before: The Hon D A Cowdroy, AO QC, Principal Member J Scanlan, Senior Member L Mackenzie, Senior Member J Houen, General Member Decision: (1) The disclosure of the names of the persons listed in Schedule A of the Complaint and in Schedule A of the Amended complaint be prohibited pursuant to section 64 of the Civil and Administrative Tribunal Act 2013. (2) Had the respondent practitioner been registered, his registration as an occupational therapist would have been cancelled pursuant to section 149C (4) (a) of the National Law. (3) The respondent be disqualified from registering as an Occupational Therapist for a period of two years from the date of these orders pursuant to section 149C (4) (b) of the Health Practitioner Regulation National Law. (4) The National Board and the Occupational Therapy Council of New South Wales record the fact that the Tribunal would have cancelled the practitioner's registration in the National Register kept by the Board as provided by section 149C (4) (c) of the Health Practitioner Regulation National Law. (5) The respondent pay the applicant's costs pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law. Catchwords: OCCUPATIONS — medical practitioners — misconduct and discipline — unsatisfactory professional conduct – professional misconduct Legislation Cited: Health Care Complaints Act 1993 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Bannister v Walton (1993) 30 NSWLR 699 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Clyne v New South Wales Bar Association [1960] HCA 40; 104 CLR 186 FTZK v Minister for Immigration and Anor [2014] are HCA 26 Ghosh v Health Care Complaints Commission [2020] NSWCA 353 Grenfell v Director-General of the Department of Finance and Services (2013) NSWADT 57 HCCC v Iskander [2015] NSWCATOD 30 HCCC v Stephan [2017] NSW CATOD 15 HCCC v XC [2015] NSWCATOD 9 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 Health Care Complaints Commission v Litchfield [1997) NSWSC 297; (1997) 41 NSWLR 630 Health Care Complaints Commission v Lui [2016] NSWCATOD 133 Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 Health Care Complaints Commission v Philipia [2013] NSWCA 342 Latoudis v Casey (1990) 170 CLR 534 McCarthy v The Law Society of New South Wales (1907) 43 NSWLR 42 NSW Bar Association v Meakes [2006] NSWCA 340 NSW Medical Board v Dinakar (2009) NSWMT 8 Office of Local Government v Toma [2016] NSWCATOD 21 Ohn v Walton (1995) 36 NSWLR 77 Qasim v HCCC [2015] NSWCA 282 R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 Slezak, Dr Peter [2011] NSWMPSC 10 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Brendan Luke Vaughn (Respondent) Representation: Solicitor: Health Care Complaints Commission (Applicant) Respondent (self-represented) File Number(s): 2022/00027858 Publication restriction: The disclosure of the names of the persons listed in Schedule A to the Complaint and of Schedule A of the Amended Complaint be prohibited pursuant to s 64 of the Civil and Administrative Tribunal Act 2013. REASONS FOR DECISION 1. By Amended Application filed on 31 May 2022, the Health Care Complaints Commission seeks orders in accordance with ss 39 (2) and 90B (3) of the Health Care Complaints Act 1993 (NSW) and 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") in respect of Brendan Luke Vaughn ("the practitioner" or "the respondent") who was formerly registered under the National Law as an Occupational Therapist. 2. The practitioner obtained his Bachelor of Applied Science from the University of Sydney in 2005 was first registered to practise in New South Wales as an Occupational Therapist on 1 July 2012. Following registration as an Occupational Therapist (General), registration number (OCC0001724117), the practitioner commenced employment at the Department of Ageing Disability and Home Care ("DADHC"). Subsequently after that government agency ceased providing services, the practitioner commenced working as an employed occupational therapist at The Benevolent Society ("TBS") on 29 July 2017. His employment was terminated at TBS on 21 September 2020 following the revelation of his conduct referred to hereunder. 3. Whilst the practitioner is no longer registered, s139G (1) of the National Law applies if the person is no longer a registered health professional. Section 139G relevantly provides: – (2) a notification may be made, and proceedings may be taken, under this Part in relation to the person's behaviour while registered as if the person was still registered under this Law by the National Board established for the health profession. (3) for the purposes of subsection (2), this Part (other than Division 2) applies, with any necessary changes, to the person as if a reference to a registered health practitioner included that person. The Complaints 1. The complaints are reproduced below as follows: COMPLAINT ONE "[The practitioner] is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of Occupational Therapy. BACKGROUND TO COMPLAINT ONE The practitioner obtained a Bachelor of Applied Science from the University of Sydney, in 2005. The practitioner was first registered to practise in New South Wales as an Occupational Therapist on 1 July 2012. Upon registration, the practitioner commenced employment at the Department of Ageing Disability and Home Care ""DADHC"). The practitioner commenced working as an employed Occupational Therapist at the Benevolent Society ("TBS") on 29 July 2017. The practitioner was terminated from his employment at TBS on 21 September 2020. PARTICULARS OF COMPLAINT ONE 1. Between 9 January 2020 and 15 September 2020, the practitioner inappropriately billed clients A - U for services on the dates and for the amounts set out in Schedule B to the Complaint, in circumstances where on each occasion services billed were not performed by the practitioner. 2. By reason of Particular 1, the practitioner engaged in inappropriate and unprofessional conduct, in contravention of the Occupational Therapy Board of Australia 'Australian Occupational Therapy Competency Standards' effective 20 February 2018. 3. By reason of Particular 1, the practitioner engaged in inappropriate and unprofessional conduct, in contravention of the National Disability Insurance Scheme (Code of Conduct) Rules 2018, effective 17 May 2018. COMPLAINT TWO The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i, engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars therein are relied upon individually and in cumulation. The Schedule 1. Attached as Schedule A to the Amended Complaint is an identification of each client referred to the Particular 1 of Complaint One in respect of whom it is alleged that services were inappropriately billed. Annexed to the Amended Complaint is Schedule B which identifies the client in respect of whom it is alleged that services billed were not performed. The names of the clients are not referred to in Schedule B but are identifiable by reference to Schedule A. Schedule B states the date of the claimed service and the amount of billing charged against each client. The total amount of the services allegedly not provided amounts to $16,686.46, Practitioner's Reply 1. The practitioner has not sought to oppose the orders sought in respect of any of the complaints and has not appeared at the hearing before the Tribunal. Pursuant to section 165J (3) of the National Law, the Tribunal may proceed in the absence of the practitioner "as long as the practitioner or student has been given notice of the enquiry or appeal". In HCCC v Stephan [2017] NSW CATOD 15 at [26]: the Tribunal held: Notwithstanding the fact that a practitioner may not attend, the Tribunal Is not precluded from proceeding with an enquiry into a Complaint as long as the practitioner has been given notice of the hearing (s 165 will)l (a) and s 165J (3)". 1. Similar observations were made by the New South Wales Court of Appeal in Ghosh v Health Care Complaints Commission [2020] NSWCA 353 at [89] – [98]; see also HCCC v XC [2015] NSWCATOD 9 at [71]. 2. The Tribunal file records that the practitioner has been notified of the proceedings, and of the hearing date by order of the Tribunal dated 4 March. The orders made on that day established a timetable requiring the Applicant to provide to the Practitioner all Its material to be relied upon by the Applicant by 14 April 2022 and the Respondent to File a Reply and all material upon which he relied by 27 May 2022. The hearing was fixed for 13 July 2022 at 10 AM for a three-day hearing. By subsequent order made on 24 June 2022 the third day allocated for the hearing namely 15 July 2022 was vacated. 3. By email from the respondent to the applicant's solicitor dated 13 July 2022 the respondent acknowledged that the hearing would take place on 13 July 2022 and he relevantly stated: I have decided that I do not wish to participate in the hearing today and will not be attending. 1. By email from the respondent to the applicant's solicitor dated 9 June 2022 the respondent stated, inter alia, I have attached a letter to state that I fully admit to the complaints that have been made against me. 1. The letter signed by the respondent attached the email states, inter alia: I have made the decision to fully admit to the complaints that have been made to the Health Care Complaints Commission. 1. Accordingly, the Tribunal is satisfied that the practitioner has been given notice of the hearing and admits to the complaints made against him. The Tribunal will accordingly determine the complaints in the absence of the practitioner or of any representation on his behalf. Proceedings under section 150 of the National Law 1. A hearing was conducted pursuant to section 150 of the National Law on 14 October 2020, as a result of which conditions were imposed upon the practitioner's registration, namely pursuant to section 150 (1) (b) of the National Law the practitioner was prohibited from practising as an Occupational Therapist as from 20 October 2020. Report of Dr Adrian Keller 1. Dr Keller, a consultant psychiatrist, has provided a report dated 26 May 2021 ("the report") concerning his examination and assessment of the practitioner's mental state. The report notes that the practitioner self-notified to the Occupational Therapy Council of NSW on 22 September 2020 following revelations of overestimation of billable hours in respect of NDIS clients. On 23 September 2020 a mandatory notification was received from the practitioner's former employer namely TBS concerning the same issues. 2. The report notes that the practitioner was born 7 March 1983. Dr Keller relevantly states in his report that: "… the only motivation in fraudulently reporting his billable hours was to keep up with his required KPIs and maintain his employment. He reported that he was earning a fixed salary and there is no personal financial gain for him as a consequence of his actions. He stated that his fraudulent behaviour involved multiple clients, approximately 20, which enabled him both to try and conceal the fraud but also to minimise the impact on the individual NDIS plans of specific clients." 1. Dr Keller opined: In my opinion, Mr Vaughn has a long-standing diagnosis of generalised anxiety disorder and persistent depressive disorder (dysthmmia). During 2019/2020 he experienced a serious exacerbation in the context of significant work stressors all. In the context of this exacerbation of his illness, he displayed poor judgement, and in his desperation, he engaged in fraudulent behaviour to try and salvage his position in the workplace which he believed was under threat. In my opinion, whilst Mr Vaughn is in the early remission of this episode of illness, he remains an "impaired practitioner" according to the definition of the law. As things stand, Mr Vaughn is not currently practicing [sic] as an occupational therapist and has no immediate plans to return to practice. I believe that should there be consideration of Mr Vaughn returning to practice, he would benefit from being placed under the "impaired registrants' pathway" to ensure monitoring of his mental health and the stipulation of specific practice conditions. 1. In conclusion, Dr Keller stated his finding as follows: In my opinion, Mr Vaughn is an impaired practitioner. Mr Vaughn has a mental impairment, comprising persistent depressive order (dysthymia) and generalised anxiety disorder. This has been long-standing relapsing and remitting disorder, present for over 10 years. In my opinion, this disorder both detrimentally affects and is likely to detrimentally affect, his capacity to practise the profession of Occupational Therapy. 1. Dr Keller recorded that the practitioner was admitted to the South Coast Private Hospital. The practitioner was admitted on 23 September 2020 with severe anxiety with panic attacks with suicidal ideation. Following treatment, the practitioner was discharged on 14 October 2020. Dr Keller's Supplementary Report 1. Dr Keller provided a supplementary report dated 11 May 2022. He confirms that the initial consultation held with the practitioner in May 2021 took place at the request of the Occupational Therapy Council of NSW. 2. Dr Keller noted that the applicant had decided not to reapply for reregistration of his occupational therapist qualification. The practitioner was working as a disability support worker as an employee and has done so for over 12 months and is now working over 30 hours per week. Dr Keller notes that the stress of these proceedings has caused distress for his daughter. 3. In answer to the specific questions asked of him, Dr Keller opined: In my opinion, Mr Vaughn does not currently suffer from an Impairment within the meaning of Section 5 of the National Law. His mental health diagnoses of Persistent Depressive Disorder and Generalised Anxiety Disorder are now in clear remission. There is no evidence over the past 12 months that there has been any functional impairment, either in his occupational or personal functioning, related to his mental disorder. He is actively seeking appropriate treatment for these conditions. 1. In respect of the practitioner's competency to practise under section 139 of the National Law, Dr Keller opined: In my opinion, Mr Vaughn is competent with respect to his mental capacity. There is no impairment, related to his mental health, that diminishes his competence to practise the profession of occupational therapy. The issue of whether Mr Vaughn has sufficient recency of practice within the profession of Occupational Therapy to be considered competent is a separate matter, and one not related to his mental health. 1. As to the practitioner's current diagnosis and/or diagnoses, Dr Keller reiterated that the practitioner suffered from persistent depressive disorder requiring ongoing psychological treatment which the practitioner is currently receiving. In respect of the practitioner's generalised anxiety disorder, Dr Keller opined that such a disorder was a chronic condition which required similar treatments including medication and psychological therapy. He noted an improvement in the respondent's level of functioning. 2. As to applying conditions on the practitioner's registration, Dr Keller considered that if reregistration was contemplated at some future time, he would require assessment at that time. He states: Giving (sic) that he has a relapsing, remitting condition, his mental health at the time of applying for registration would be a relevant issue for consideration. 1. Dr Keller speculated that some conditions which could be applied to the practitioner's registration as an occupational therapist would be to include: (i) regular reviews by treating psychiatrist and treating psychologist and the requirement to follow specific recommendations. Dr Keller noted that at the present time Mr Vaughn is not under the care of a psychiatrist, but should he have a further relapse of his illness, then re-referral to a psychiatrist would be prudent. (ii). Conditions with respect to practice were difficult to identify at the present given the lack of recency of practice and the unclear duration of remaining unregistered. Relevant considerations would be the level of supervision of the practitioner; the specific workplace in which he would work and the maximum number of hours of work per week. Standard of proof 1. Section 144 of the National Law refers to the grounds which may be included in a complaint. Such grounds include relevant to the following: (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (d) Impairment A complaint the practitioner has an impairment (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. 1. The Tribunal must be satisfied that the subject matter of a complaint against the practitioner has been proved: section 149 (a) of the National Law. It is a misnomer to refer to the burden of proof in a tribunal hearing since s 140 of the Evidence Act 1995 does not directly have application to the Tribunal's decision-making: see Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; see also FTZK V Minister for Immigration and Anor [2014) HCA 26 at [33] – [36] . It has been repeatedly accepted that it is appropriate for the Tribunal to be satisfied that the subject matter of the complaint has been proved to its satisfaction, and that the principle referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 which determines that the level of satisfaction is related to the gravity of the charge, will be applied. The Tribunal must be satisfied that the allegations are established to its comfortable satisfaction: see Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [53] ; Bannister v Walton (1993) 30 NSWLR 699; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; McCarthy v The Law Society of New South Wales (1907) 43 NSWLR 42 at 58. Findings Complaint One: 1. The Occupational Therapy Board of Australia's publication entitled "Australian Occupational Therapy Competency Standards" ("the Standards") became effective on 1 January 2019. Section 2 thereof establishes Competency Standards. It states the requirements for a practitioner, inter alia: Standard 1 Professionalism An occupational therapist practices in an ethical, safe, lawful and accountable manner, supporting client health and well-being through occupation and consideration of the person and their environment. 1. The standard then sets out 17 specific examples of the requirements and refers to the need to adhere to legislation relevant to practise and compliance with the required codes as follows: "An occupational therapist: 1. Complies with The Occupational Therapy Board of Australia's Standards, Guidelines and Code of Conduct." 1. National Disability Insurance Scheme (Code of Conduct) Rules 2018 relevantly states in Part 2 – NDIS Code of Conduct, section 6 which relevantly states: "In providing support or services to people with disability, a Code-covered person must: (d) act with integrity, honesty and transparency" 1. The Tribunal is satisfied, on the admitted facts, that the practitioner billed for services which were not performed by him. Such conduct demonstrates a failure to comply with the standards expected of an occupational therapist in that it lacks integrity, honesty and transparency. As such the conduct was contrary to the NDIS Code of Conduct and contrary to the Standards of the Occupational Therapy Board of Australia Consequence of Conduct 1. Complaint One alleges that the practitioner is guilty of unsatisfactory professional conduct as defined in section 139B (1) (a) of the National Law because of the above conceded improper conduct. Section 139B (l) defines such conduct as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioners generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following – (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The National Law does not define the words "improper" nor "unethical": however, as referred to in Health Care Complaints Commission v Lui [2016] NSWCATOD 133 at [51] – [52], improper conduct means contrary to moral precept, immoral or in contravention of some code of conduct. See also Health Care Complaints Commission Shrimpton [2019] NSWCATOD 25 and [67] – [69]. If the conduct of the practitioner is not in conformity with the standard of professional conduct and practice, it may be regarded as "improper": see R v Byrnes (1995) 183 CLR 501 [514] – [515]; [1995] HCA 1; Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [40] – [41]; see also Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72] – [73]. In Slezak, Dr Peter [2011] NSWMPSC 10 at [80], [83] and (87], the Tribunal observed that improper or unethical conduct is determined by reference to the views of reasonable members of the profession. Conduct which has a tendency to bring into disrepute, or does being a professional calling into disrepute, is conduct which, by reasonable standards is seen as falling below the standard of conduct expected by that class of persons: see Office of Local Government v Toma [2016] NSWCATOD 21. 2. Candour and honesty are fundamental requirements of a practitioner. In Grenfell v Director-General of the Department of Finance and Services (2013) NSWADT 57 at [15], the Tribunal said: The issue whether a person is fit and proper due to past… Conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, and any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of misconduct, the impact of the affliction of time, and the applicant's present circumstances and reputation. 1. The applicant has submitted the practitioner's conduct was improper and unethical for the following reasons: a. the Respondent was aware that he was employed by TBS, a NDIS provider, and that his employment was subject to compliance with the billable hour's framework within the NDIS; [1] b. the Occupational Therapy Board of Australia Code of Conduct, section 1.2 outlines that practitioners "must be ethical and trustworthy"; c. the Respondent was aware of the importance and requirement of appropriate billing, as this was part of his performance objective to "achieve a billable client service hours target of 5 hours each day", namely 25 hours per week, set out in his performance improvement plan ('PIP') dated 2 December 2019, which had a series of actions and tasks implemented in order to achieve this; [2] d. the Respondent was previously warned that he had failed to follow a practice directive issued 6 June 2018 to record all billable and non-billable activity in Outlook calendar in a meeting held with him on 7 August 2018; [3] e. the Respondent in the same meeting on 7 August 2018 was also warned that he failed to book in the required number of client billable appointments on a consistent basis to ensure that he met his billable hours' target on a consistent basis; [4] f. as a result of the meeting on 7 August 2018, a PIP was implemented on 9 August 2018 which included an objective to achieve client service hours in accordance with his individual target. The Respondent was advised that failure to meet those targets may have resulted in disciplinary action being taken, including termination of his employment; [5] g. the PIP was lifted on 26 September 2018 after it was determined by TBS that the respondent 'had lifted [his] performance to a satisfactory level required for [his] role' [6] and so the Respondent ought to have been aware of the requirements to lift the PIP implemented on 2 December 2019; and h. the Respondent raised with Ms Moore (of TBS) the difficulties he was facing with his mental health in December 2019 [7] immediately before engaging in the conduct; i. the Respondent had weekly one on one support meetings and regular telephone check-ins with his manager as well as supplementary OT group meetings [8] and had ample opportunity to raise any concerns regarding issues in meeting his billable hours. 1. Based upon the unchallenged facts set out in the material submitted to the Tribunal, the Tribunal concurs and accepts the applicant's submissions concerning the conduct of the respondent. Dishonest billing by a practitioner constitutes a serious breach of the Standards of the Occupational Therapy Board of Australia and of the NDIS Code. The dishonest conduct in this instance has resulted from the fact that billing was made inappropriately and for services which were never rendered. 2. Accordingly Complaint One is established. Complaint Two 1. Complaint Two alleges professional misconduct which is defined in section 139E of the National Law as follows: 139E Meaning of "professional misconduct" [NSW]. For the purposes of this Law, professional misconduct of the registered health practitioner means – (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration 1. The applicant submits that the conduct engaged in by the respondent constitutes professional misconduct because of the following considerations: a. the inappropriate billing was not isolated and occurred on 83 occasions, in which the practitioner engaged in a repeated pattern of behaviour, over-billing in relation to 21 patients over a 9-month period; b. the practitioner had worked for TBS from on or about 29 July 2017 and so ought to have been aware of the appropriate billing methods for clients of TBS; c. the practitioner had previously received support and management for appropriate billing by way of a PIP implemented on 9 August 2018 which was successfully lifted on 26 September 2018; d. the conduct occurred against the backdrop of the respondent being subject to a PIP implemented on 2 December 2019 shortly prior to the conduct, to address related conduct, namely meeting billing targets; e. the amount of money inappropriately billed was a significant amount, totalling $16,686.46; f. the practitioner only stopped the behaviour, notifying his employer and AHPRA after a client's mother had suspected the overbilling for services not performed and it was brought to his attention; g. the clients in question were individuals receiving funding under the NDIS, funding which is pre-determined and assessed by the NDIS as 'reasonable and necessary' based on the clients' needs, and it is paramount this funding is appropriately accessed for services actually performed, including occupational therapy services, to ensure people living with disability receive the supports they require; h. whilst the Commission accepts the practitioner has admitted the conduct and has developing insight, this must be considered against his apportioning of blame and responsibility to others in an attempt to minimise his culpability in relation to the conduct. 1. The Tribunal notes the following principles which have been established concerning professional misconduct: a. there is no category of unsatisfactory professional conduct which is not capable of forming professional misconduct; [9] b. the traditional common law definition of professional misconduct is that ''which would be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency'; [10] c. professional misconduct may be made out by a deliberate departure from professional standards or 'such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration'; [11] d. whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment; [12] e. the gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards; [13] f. the exercise requires an assessment of the conduct itself as well as any remorse or insight, shown by the respondent. [14] 1. In view of the Tribunal finding made with respect to Complaint One, the Tribunal considers that Complaint Two is established. Disciplinary Sanction 1. Having concluded that Complaints One and Two are established, the Tribunal must consider the appropriate disciplinary sanction. Pursuant to section 149A of the National Law, the Tribunal is empowered to discipline the practitioner. Section 149A (3) provides: If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only – (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerning to be imposed when the practitioner is registered. 1. Accordingly the Tribunal is empowered to make orders under section 149A directed to the practitioner. Consideration 1. The Tribunal is mindful of the objects of the National Law as contained in section 3A thereof, namely that the paramount consideration must be the protection of the health and safety of the public: see Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24] In this respect, the observations of the Medical Tribunal of New South Wales in the matter of Dr William McBride and the Medical Practice Act, number 40022 of 1995 (decision 1 May 1996) are pertinent. In that decision the Tribunal found that it was unable to place: "… trust and confidence in that practitioner to be scrupulously honest and straightforward in the event that some conflict should the future arise between his duty to be honest and self-interest". 1. The Tribunal considers that authorities relating to fitness of a medical practitioner and legal profession should apply with equal force to an occupational therapist. The ultimate test is whether the practitioner is a fit and proper person to be registered as a medical practitioner: see NSW Bar Association v Meakes [2006] NSWCA 340. The principles of "good character" which form an integral requirement for registration of a practitioner are set out in Health Care Complaints Commission Karalasingham (2007] NSWCA 267. At [45] Basten JA explained the words "not of good character" do not "bear a special or technical meaning". The Tribunal must assess the conduct comprising the subject matter of the complaint to determine whether the practitioner satisfies the requisite test of "good character". The upholding public confidence in the standards of the profession is the objective. The authorities have established that where appropriate, the cancellation of the registration of practitioners who are not fit to practise or are guilty of serious misconduct is required: see Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; Clyne v New South Wales Bar Association [1960] HCA 40; 104 CLR 186 at 201 – 202; Health Care Complaints Commission v Litchfield [1997) NSWSC 297; (1997) 41 NSWLR 630 at 637. 2. The Tribunal observes that the practitioner had been aware of the billing process from at least July 2017 when working for TBS. His conduct in wrongfully billing clients only came to notice on 17 September 2020 when a family member of a client complained to the respondent and to customer care at TBS, stating relevantly: "I have just seen the statement for NDIS and I'm shocked to see that charges have been made right through this year when [name redacted] hasn't had services yet. Could you please advise why charges have been claimed or get someone to contact me in regard to this." 1. The enquiry resulted in investigations which were brought to the respondent's attention on 21 September 2020. It was only as a consequence of the complaint and of the investigation that the respondent notified his National Board. 2. The Tribunal notes that the respondent did not profit financially from his unauthorised billing, and that his motive in doing so was not for financial gain. The Tribunal is also mindful, as referred to in the first report of Dr Keller that the transition to his new workplace at the Benevolent Society resulted in a change in the work environment. In consequence the respondent was removed from the public sector to the private sector in which the respondent found that his caseload quickly "ramped up". He informed Dr Keller that he felt the pressure of "billable target KPIs" and found that he was falling behind his colleagues. A performance management process was commenced in 2019 and simultaneously TBS underwent a major management restructure as a result of which the practitioner's previous manager, who had been very supportive of the practitioner, was made redundant. The practitioner found that all of his colleagues who had transitioned from the DADHC as occupational therapists, had departed. The respondent felt overwhelmed and as he felt under pressure of losing his position he began to make the fraudulent entries. Because his clients numbered 20, he was able to conceal the fraud and to minimise the effect on specific clients. 3. Dr Keller considered that the practitioner had a long-standing diagnosis of generalised anxiety disorder. It was for this reason that the original complaint filed in these proceedings sought findings that the practitioner was suffering from an impairment as defined in section 5 of the National Law. However the subsequent report of Dr Keller considered that the practitioner was no longer suffering from an impairment. For this reason the Amended Complaint was filed in substitution for the Complaint. 4. Nevertheless, the following matters cause the Tribunal the concern: 1. the conduct complained of was perpetrated solely to assist the applicant with his KPIs; 2. but for the client complaint, it is not known how long such conduct would have continued; 3. the conduct of the practitioner disadvantaged his clients in that the services to which they were entitled may have been curtailed or restricted once they had reached a specified limit because of the wrongful debits made against them when no such services were provided. 1. There is no evidence that the thought processes of the practitioner were impaired to the extent that he did not understand that his conduct was fraudulent. His conduct was deliberate and done with intent to assist him in his employment. 2. It is usually a prerequisite for an order cancelling a practitioner's registration that a finding be made that the practitioner is probably "currently unfit to practice [sic – practise] and is likely to remain so for a significant or indefinite period": see HCCC v Iskander [2015] NSWCATOD 30 at [174]. The conduct which the practitioner has engaged in demonstrates that he is not fit to be registered as a practitioner. 3. Section 149C (4) of the National Law relevantly provides: If the person is no longer registered, the Tribunal may – (a) decide that if the person is still registered the Tribunal would have suspended or cancel the person's registration, and (b) if the tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person is registered to record the fact that the tribunal would have suspended or cancelled the person's registration in the National register kept by the Board. 1. Since the conduct referred to in orders Complaints One and Two was repetitive and intentional, the Tribunal is satisfied that had the practitioner been registered it would have cancelled the registration of the practitioner and directed that the practitioner be disqualified from seeking reregistration for a period of two years from the date of these orders. Such order is not punitive in its nature: rather, it comprises a disciplinary sanction to protect the public should the practitioner be tempted to engage in similar conduct in the future and it also serves the purpose of upholding public confidence in the standards of the profession. In this respect the observations of Meagher J in Health Care Complaints Commission v Do (supra) at [35] are instructive. His Honour said, relevantly: Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. Costs 1. The applicant seeks an order that the respondent pay the cost of these proceedings. No opposition has been made to the making of such an order. 2. Under Schedule 5D, clause 13 of the National Law, the Tribunal has power to require a party appearing before it to pay the cost of another party. The New South Wales Court of Appeal in Health Care Complaints Commission v Philipia [2013] NSWCA 342 at [42] has confirmed that as a general rule the cost of proceedings before the Tribunal should follow the result: see also NSW Medical Board v Dinakar (2009) NSWMT 8; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67]. 3. The award of costs is compensatory and is not intended to punish the other party: see Latoudis v Casey (1990) 170 CLR 534 at [543] per Mason CJ: Ohn v Walton (1995) 36 NSW LR 77; Qasim v HCCC [2015] NSWCA 282 at [85] . 4. The Tribunal considers that the usual rule as to cost prevails namely that the unsuccessful party, namely the practitioner pay the costs of the applicant. Orders 1. The Tribunal orders that: 1. The disclosure of the names of the persons listed in Schedule A of the Complaint and in Schedule A of the Amended complaint be prohibited pursuant to section 64 of the Civil and Administrative Tribunal Act 2013. 2. Had the respondent practitioner been registered, his registration as an occupational therapist would have been cancelled pursuant to section 149C (4) (a) of the National Law. 3. The respondent be disqualified from registering as an Occupational Therapist for a period of two years from the date of these orders pursuant to section 149C (4) (b) of the Health Practitioner Regulation National Law. 4. The National Board and the Occupational Therapy Council of New South Wales record the fact that the Tribunal would have cancelled the practitioner's registration in the National Register kept by the Board as provided by section 149C (4) (c) of the Health Practitioner Regulation National Law. 5. The respondent pay the applicant's costs pursuant to clause 13 of Schedule 5D of the Health Practitioner Regulation National Law. ********** Endnotes 1. TAB 17 TBS Position Description – Occupational Therapist dated 12 April 2019. 2. TAB 8 TBS Performance Improvement Plan of the respondent dated 2 December 2019. 3. TAB 7 Letter to Respondent from TBS dated 26 September 2018. 4. TAB 7 Letter to Respondent from TBS dated 26 September 2018. 5. TAB 6 TBS Performance Improvement Plan for the respondent dated 9 August 2018. 6. TAB 7 Letter to Mr Vaughn from TBS dated 26 September 2018. 7. TAB 12 Respondent's email to Ms Moore dated 18 September 2020 enclosing undated letter of Respondent. 8. TAB 13 Letter to Mr Vaughn from TBS dated 21 September 2020. 9. Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21]. 10. Allinson v General Council of Medical Education and Registration [1984] 1 QB 750. 11. Pillai v Messiter [No.2] (1989)16 NSWLR 197. 12. Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. 13. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [638]. 14. Health Care Complaints Commission v King [2013] NSWMT 9. 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 05 August 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 and cl 9 of the Civil and Administrative Tribunal Regulation 2013 the Tribunal makes the following corrections above decision: Paragraph 8 contained an error including the words "the Respondent" in the second sentence which was deleted. Paragraph 18 contained an error including the words "2024" which was substituted with "2020" Paragraph 36 – the word "respondent's" appearing in the first sentence was substituted with "applicant's". In Order 4, the words "suspended or" was deleted. In paragraph 59(4), the words "suspended or" was deleted. 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: 05 August 2022