Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dobie (No 2) [2022] NSWCATOD 153 Hearing dates: 25 March 2022 Date of orders: 24 November 2022 Decision date: 24 November 2022 Jurisdiction: Occupational Division Before: The Hon T Sheahan ADCJ, Principal Member Dr S Cowap, Senior Member Dr H Haikal-Mukhtar, Senior Member R Kusuma, General Member Decision: (1) The respondent Dr Peter Richard Dobie be reprimanded and his registration suspended for a period of twelve (12) months, pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW); (2) If and when the respondent Dr Peter Richard Dobie resumes practice after such a period of twelve months, he must practise subject to the following conditions, imposed pursuant to s 149A(1)(b): 1. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body: (a) The terms of the Council's Compliance Policy – Supervision are varied to require the practitioner to authorise the Council-approved supervisor to forward reports to the Council (in a Council-approved format) on a monthly basis; (b) At each supervision meeting, the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: - History taking; - Physical examinations; - Clinically appropriate investigations; - Clinical judgment; - Patient management strategies; - Medical record keeping; - Informed consent; - Patient follow up/ Patient clinical handover; - Appropriate prescribing practices; - To regularly review and discuss randomly selected clinical notes from patients in mainstream medical practice and in integrative medical practice; (c) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 2. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: (a) The audit is to be held within six (6) months from the end of the suspension imposed by these Orders, and subsequently as required by the Council; (b) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to: - Prescribing; - The matters set out in condition (1)(b) above; - Assessment, treatment and management of patients with Lyme Disease; (c) To authorise the auditor(s) to provide the Council with a report on their findings; (d) To meet all costs associated with the audit(s) and any subsequent reports. 3. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these Conditions. 4. These conditions are to be monitored by the Medical Council of NSW, which is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW), and: (a) Will be responsible for monitoring Dr Dobie's compliance with them; and (b) Will have the power to vary them, and/or impose such further conditions, as it considers necessary to ensure Dr Dobie's practice is safe for the public. (3) The respondent pay the applicant's costs of these proceedings as agreed or assessed. Catchwords: HEALTH — Professional registration and discipline — finding of professional misconduct – protective orders – cancellation or suspension of registration –reprimand – conditions – costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186, 95 NSWLR 334 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dobie [2021] NSWCATOD 195 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Lee v Health Care Complaints Commission [2012] NSWCA 80 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Peter Richard Dobie (Respondent) Representation: Counsel: P Aitken (Applicant) C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2021/00035880 Publication restriction: A non-publication order with respect to the names of the patients set out in the schedule to the Complaint was made on 26 February 2021. REASONS FOR DECISION Introduction 1. In our Judgment on Stage one of these proceedings, the Tribunal found the Respondent, Dr Peter Richard Dobie, guilty of professional misconduct: Health Care Complaints Commission v Dobie [2021] NSWCATOD 195, at [100]. 2. We have now conducted a Stage two hearing to determine what, if any, protective orders should be made against Dr Dobie. 3. Our duty is to design orders to protect the community, and maintain public confidence in the medical profession, rather than to punish the individual doctor for his offending conduct. 4. The finding of professional misconduct exposes Dr Dobie to the possibility of his registration being suspended or cancelled, but that outcome is not automatic: Chen v Health Care Complaints Commission [2017] NSWCA 186, 95 NSWLR 334. Our choice of penalty is a "matter of degree and judgment": Sabag v Health Care Complaints Commission [2001] NSWCA 411, at [82]. 5. Dr Dobie's registration is presently subject to a range of conditions imposed on him since 20 November 2020, and he is currently practising under "Category B" supervision (Ex R1, tab 5). 6. In our Stage one Reasons (at [18]), we noted that the Health Care Complaints Commission (HCCC) was seeking cancellation of Dr Dobie's registration, with a two-year "non-review" period. In the Stage two hearing, the HCCC submitted (par 29) that Dr Dobie's registration should be cancelled, and a non-review period imposed of "one to two years". 7. Dr Dobie's counsel argued that a severe reprimand, possibly a short suspension, and continued supervision, would be a sufficient penalty. 8. We should note immediately that Dr Dobie made many admissions of "unsatisfactory professional conduct", but denied "professional misconduct". 9. At Stage one, the Tribunal found in his favour on only four of the many particulars (approximately 180) included in the complaints the HCCC made concerning four particular patients Dr Dobie treated for various periods between 2010 and 2017 (Patients A to D), but noted (at [31]) that the s 150 hearing held on 13 November 2020 had referred to a "considerable number of complaints" made to the Medical Council of NSW about him between 1997 and 2020. The Evidence 1. The evidence for the Stage two hearing comprised a folder of material from each party (Exs A1 and R1 respectively), and oral evidence from Dr Dobie himself, and one of his referees, Dr Mark Donohoe. His other referees and his supervisor, Dr Mahasty Taheri, were not available to give evidence. The HCCC 1. The HCCC included in Exhibit A1 (at tabs 1, 3, 6 and 9) four other complaints made about Dr Dobie, apart from those involving Patients A to D, concerning the period 2011 to 2018, the latest such complaint having been made in August 2020. The HCCC also put before the Tribunal Dr Dobie's responses to those four "new" complaints (Ex A1, tabs 2, 4-5, 7-8, and 10-12). 2. Patients A, B and D were female, while Patient C was male. 3. Unlike the complaints made in respect of Patients A, B and C, Lyme disease (or Borreliosis) was not involved in the case of Patient D, nor in these four "new" complaints, which involved shingles/possible MS (No 1), chicken pox (No 2), a chest infection with possible haemoptysis (No 3), and possible CIRS/mould biotoxins (No 4). 4. All four "new" complaints were made by females, but No 4 involved the treatment of a male couple. 5. The HCCC also included in Exhibit A1 (at tab 13) an ABC News item, dated 11 January 2016, concerning Lyme disease. The ABC quoted Dr Dobie as saying (p 2): "I'm certainly concerned. I think all doctors treating this illness are concerned about possible disciplinary action, but I feel a moral obligation to treat these patients and I will continue to treat them to the best of my ability". 1. The major focus of the complaint regarding Patient D was "allegedly inappropriate prescription practices" in respect of a patient complaining of pain, insomnia and weight gain (see Reasons, at [33]-[38]). 2. Our conclusion at Stage one regarding Dr Dobie's treatment of each of the four Patients A-D, was that he was guilty of professional misconduct (at [57], [58], [70], [71], [78]-[80], [89]-[92]). Complaint Five related specifically to his practices regarding notes and records, in respect of which he conceded that his deficiencies amounted to "unsatisfactory professional conduct", but which we found did not satisfy the test of professional misconduct (at [96]). 3. In concluding that Dr Dobie was guilty of professional misconduct, we accepted the submissions of the HCCC (pars 90-92), emphasising eleven unsatisfactory aspects of his practice (see [99]). Dr Dobie 1. Exhibit R1 contains a detailed statement by Dr Dobie, dated 4 March 2022 (tab 1), an updated CV (tab 2), material regarding CPD he has undertaken (tabs 3 and 4), supervision reports (tab 5), and five references (tab 6). 2. In his statement (tab 1), Dr Dobie outlines his acceptance of our Stage one finding of misconduct, and the particular criticisms it involves (see pars 6, 7, 13, 18, 21, 23, 24, 27, 35, and 38), and his assurance of continuing to work closely with his supervisor (pars 42-44). 3. He also states (pars 1, 3, and 50-52): "1. I have read the Tribunal decision dated 2 December 2021. I fully accept the findings made by the Tribunal. I sincerely apologise to Patients A, B, C and D and to the profession as whole (sic). … 3. I no longer treat Lyme disease. I try to have a balanced and evidence based approach to diagnosis and treatment recommendations. I realise in hindsight that my management was unstructured, risky and expensive, particularly in the treatment of Lyme Disease. I accept that my inappropriate fixation on Lyme disease led me to depart from the basic tenets of medicine. I needed to return to the fundamentals of medicine, and this is what I have tried to do with my supervisors over this time. … 50. I consider my practice has been greatly improved as a result of my interaction with my supervisors, the courses I have undertaken and as a result of the many hours of reflection I have spent considering the complaints and the Tribunal's decision. 51. I have also sought guidance from my medical colleagues. 52 Once again, I would like to apologise for my conduct and fully accept the findings of the Tribunal." 1. In his oral evidence, Dr Dobie said that he changed his practice after writing his response of 2 September 2020 to the fourth "new" complaint (Ex A1, tabs 9-12), but he conceded that that change took him five years from 2016, when he first began to question his focus on Lyme disease. 2. He now agrees with his referee, Dr Mark Donohoe, who says (Ex R1, tab 6, p 61): "I think it is clear that Dr Dobie now appreciates the shortfall in patient care that occurred as a result of transferring that USA training to Australian patients. He appreciates now that Lyme disease is not an appropriate diagnosis in Australia, and treatment using US protocols for proven Lyme disease is not compatible with the required quality of patient care in Australia. He has appropriately changed both his opinion and practice as a result" 1. Dr Donohoe specialises in Chronic Fatigue Syndrome, and environmental toxicology. He has known Dr Dobie for some 32 years; they worked together for five years early in their careers; and he now accepts referrals from him. The Tribunal accepts the sincerity of Dr Donohoe's support for Dr Dobie in his current predicament. Discussion 1. Dr Dobie was born in October 1956, and first registered in May 1981. He commenced practice as a General Practitioner (GP) in 1983, so the subject complaints came after many years in the profession. 2. All five referees adhered in writing to their pre-Stage one references, having considered the Tribunal's Reasons for Decision, but, after his oral evidence at this hearing, we remain unconvinced that Dr Dobie has indeed achieved true insight into his failings. 3. The CPD material (Ex R1, tabs 3 and 4) indicates that Dr Dobie has sought relevant training opportunities, but only intermittently. 4. The supervision reports from Dr Taheri, between November 2021 and January 2022 (tab 5), although rather formulaic, indicate reasonable performance by Dr Dobie, generally improved judgment, and responsiveness on his part to mentoring, but there remain deficiencies in his note-keeping and history-taking. Dr Taheri is working closely with him; Dr Dobie seems to respond to her critical feedback; and she should help him to further improve in these areas. 5. We accept that Dr Dobie has proven abilities, good motives and intentions, and realises that his focus on Lyme disease and other similar diagnoses (eg, CIRS as late as 2020) was misplaced, and led to seriously unprofessional results, and no benefits to his patients. He has responded to each of this Tribunal's concerns with appropriate CPD, and other strategies, to improve his practice, and ensure he avoids similar conduct in the future. 6. After surveying our Stage one findings (submissions, par 7) the HCCC submits (par 8): "8. … that the following further aspects of the respondent's conduct bear on the assessment of both the extent of the departure from proper standards and also the issues of deterrence and whether the respondent has sufficiently moderated his clinical approach such that the Tribunal could be satisfied there is no risk of poor clinical conduct in the future: a. the persistence over lengthy periods of time in adhering to the treatment of Lyme disease in the face of other possible and more likely explanations for the patient's presentation, and in the absence of reliable indicators for Lyme disease diagnosis; b. consequent neglect of the patients' interests by failing to engage relevant specialists for review and input into the patients' diagnosis and management; c. the lack of clinical judgment exhibited by a practitioner with many years experience in general practice, including where using more "conventional" pharmaceutical treatments (in the case of Patient D); d. the vulnerability of patients reliant on the respondent's clinical advice for treatment of complex issues, particularly Patients A and D, and the vulnerability of a patient anxious about her pregnancy and unborn child (Patient B); and e. the ongoing issues that the respondent's supervisor has identified concerning adequate record-keeping and history-taking, notwithstanding the attention to these deficits given in the current proceedings, as well as other deficits such as inadequate referral information and issues around other general practice matters including mental health treatment and antibiotic prescribing. Whether this is a reflection of years not engaged full-time in regular general practice or some other issue is not clear." 1. The submissions go on (pars 9-15) to survey the options provided by Sections 149, 149A, 149B and 149C of the Health Practitioner Regulation National Law (NSW) (the National Law), and continue (pars 16-18): "16. As such, a finding of professional misconduct may not automatically lead to cancellation of a practitioner's registration. It is clear that de-registration may, in serious cases, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession. 17. The applicant submits that this matter is such a case, involving serious and prolonged forms of professional misconduct which had the potential to threaten and endanger patient safety and wellbeing (unnecessary intravenous medication for Patients A and C and the medication regime for Patient D), and questionable ethical decision making (for example diagnosing Lyme disease rather than considering other competing explanations, in circumstances where there was no clear evidence of tick bite for any of Patients A, B and C and no real support for sexual transmission in the case of Patient B). 18. In terms of inappropriate prescribing to Patient D, the misconduct was relatively prolonged and the proper exercise of clinical judgment was lacking in terms of considering possible drug dependence and need for the medications. Questions of general deterrence are of particular importance in the determination of appropriate protective orders for matters, as is promoting the community's confidence in the profession, where departures from conventional medicine are conducted without due regard for competing clinical explanations and prolonged through a rigid and seemingly blinkered view of what was wrong and how it should be treated." 1. After surveying the case law (pars 19-22), the HCCC submitted (pars 23, 27 and 29) that: "23. … [The] respondent's conduct was "sufficiently serious" so as to justify cancellation, even having regard to the consequences of such an order at this point, and that the issues of deterrence and continuing concerns surrounding the respondent's history taking and record-keeping and some other clinical deficits identified by the supervisor speak in favour of a period of further reform to be achieved in a non-review period of one to two years as nominated below. … 27 This Tribunal would find it difficult to make a particularly positive assessment of the respondent, in all the circumstances, and having regard to his years of experience. The respondent's conduct was a serious breach of the standards that the public have a right to expect of a practitioner. … 29. In the present circumstances, the applicant submits that given the gravamen of the proven allegations against the respondent; the need to protect the public through general deterrence (of other practitioners); the need to protect the public by reinforcing high professional standards and denouncing transgressions and the maintenance of public confidence in the profession, there is need for a significant action by way of orders under the National Law. In short, it is submitted that cancellation is the appropriate protective order and that a period of one to two years within which registration cannot be sought would be appropriate to impose." 1. The Tribunal accepts the HCCC's quoted submissions in their entirety, save that we are not convinced that cancellation, rather than reprimand and/or suspension, is called for. 2. Dr Dobie's poor standard of practice with his Lyme patients, several of whom were vulnerable, extended to his more general practice type patients, such as Patient D, and he does not appear to have adequately reflected on the harm he caused or might have caused. 3. As the HCCC submissions note (par 31), this is a case where a "paramount" consideration of the public interest calls for public denunciation of the practitioner's conduct, despite the passage of time since the major incidents occurred, during which time this practitioner has taken steps to improve his professional performance: Health Care Complaints Commission v Do [2014] NSWCA 307. 4. We do not believe, however, that Dr Dobie has yet shown sufficient "reformation" – Lee v Health Care Complaints Commission [2012] NSWCA 80, per Barrett JA at [73] – despite there apparently being no further complaints since late 2020, and we propose to reprimand him and order suspension of his registration for a period of one year, following which he can resume practice on strict conditions. Costs 1. The HCCC seeks an order for its costs, under Schedule 5D, clause 13 of the National Law: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342, at [42]-[46]. 2. The respondent, as the "losing party", has put forward no reasons for the Tribunal to depart from the usual rule that costs "follow the event". 3. While we accept that Dr Dobie made a large number of admissions, successfully defeated a small number of other particulars, and is on a "journey of reflection and learning", the hearings have focused, as the HCCC contends (par 39), on "understanding the range and nature of the misconduct and what may have caused it", and the amount of progress (or lack of it) Dr Dobie has made on his "journey". 4. We will make the usual order for costs. Orders 1. The Tribunal orders that: 1. The respondent Dr Peter Richard Dobie be reprimanded and his registration suspended for a period of twelve (12) months, pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW); 2. If and when the respondent Dr Peter Richard Dobie resumes practice after such a period of twelve months, he must practise subject to the following conditions, imposed pursuant to s 149A(1)(b): 1. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body: 1. The terms of the Council's Compliance Policy – Supervision are varied to require the practitioner to authorise the Council-approved supervisor to forward reports to the Council (in a Council-approved format) on a monthly basis; 2. At each supervision meeting, the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: - History taking; - Physical examinations; - Clinically appropriate investigations; - Clinical judgment; - Patient management strategies; - Medical record keeping; - Informed consent; - Patient follow up/ Patient clinical handover; - Appropriate prescribing practices; - To regularly review and discuss randomly selected clinical notes from patients in mainstream medical practice and in integrative medical practice; 1. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 2. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: 1. The audit is to be held within six (6) months from the end of the suspension imposed by these Orders, and subsequently as required by the Council; 2. The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. The auditor(s) should pay particular attention to: - Prescribing; - The matters set out in condition (1)(b) above; - Assessment, treatment and management of patients with Lyme Disease; 1. To authorise the auditor(s) to provide the Council with a report on their findings; 2. To meet all costs associated with the audit(s) and any subsequent reports. 3. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these Conditions. 4. These conditions are to be monitored by the Medical Council of NSW, which is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW), and: 1. Will be responsible for monitoring Dr Dobie's compliance with them; and 2. Will have the power to vary them, and/or impose such further conditions, as it considers necessary to ensure Dr Dobie's practice is safe for the public. 1. The respondent pay the applicant's costs of these proceedings as agreed or assessed. ********** 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 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: 24 November 2022