New South Wales Medical Tribunal CITATION : In Re Dr Kumar MEHTA [2005] NSWMT 16 TRIBUNAL: Medical Tribunal PARTIES : Dr Kumar MEHTA (Applicant) Health Care Complaints Commission (Respondent) FILE NUMBER(S) : 40005 of 2005 CORAM: Walmsley, SC DCJ - Glass, Assoc Prof A - Sutton, Dr V - CATCHWORDS: Application for Review LEGISLATION CITED: Ss. 64(3), 92, 94(2) Medical Practice Act 1992 (NSW) CASES CITED: In Re Dr Jonathan Bentley and the Medical Practice Act (26 May 2005).; Zaidi v HCCC (1998) 44 NSWLR 82 at 88 to 89 DATES OF HEARING: 6 June 2005 DATE OF JUDGMENT: 6 June 2005 LEGAL REPRESENTATIVES: Mr M Ainsworth (Applicant) Mr P Strickland (Respondent) ORDERS: (1) The Tribunal finds that the applicant is a fit and proper person to practise as a medical practitioner in the state of New South Wales (2) The Tribunal orders that the name of Vipal Kumar Mehta be reinstated to the register of medical practitioners kept under the Act (3) Pursuant to section 94(2) of the Act, the Tribunal orders that his registration be subject to the conditions put forward by the Commission, save that (a) in condition 3, clause 3 reads "Clause 4". That merely corrects a typographical error in the conditions put forward. However the next two do not (b) on the 22nd line of condition 4, the period of possible extended supervised practice is to be 12 months (c) in condition 6 on line 1, the number "6" is substituted for "3", and on line 2 of condition 6, the period will be two years (4)The Tribunal orders that the applicant pay the Commission's costs (5)The Tribunal orders the return of exhibits JUDGMENT: DEPUTY CHAIRPERSON: 1 This is an application under Section 92 of the Medical Practice Act , ("the Act"), for orders permitting the applicant to resume practice as a medical practitioner, his name having been removed from the register on 29 November 2002. 2 A differently constituted Tribunal on that day made the following orders, namely, that the name of Vipal Mehta be removed from the register of medical practitioners; that pursuant to Section 64(3) of the Act, an application for review of the order not be made until two years from the date upon which it came into effect; and that he pay the costs of those proceedings. 3 The basis for the complaint leading to those orders was his having had an improper relationship with a patient, failing to refer her to another practitioner, and failing to keep proper records in relation to her. When making the orders the Tribunal as then constituted noted: "In his favour, his misconduct had been confined to one patient, thus he was not a serial predator, but would require some time to come to terms with his misconduct and be able to show real reformation." 4 The Tribunal, as noted, decided that at least two years should go by before any application for re-registration should be considered. The application before this Tribunal was filed two years and almost two months later. 5 The application proceeded before us today. Mr M Ainsworth of counsel appeared for the applicant and Mr P Strickland and Ms Gerace appeared for the respondent ("the Commission"). 6 The relevant principle has been dealt with by the Court of Appeal in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 88 to 89 and very recently, by a differently constituted Tribunal in In Re Dr Jonathan Bentley and the Medical Practice Act , judgment having been given on 26 May 2005. At page 12, the Tribunal said of an applicant: "You must satisfy the Tribunal that it would be consistent with the protection of the public that the order be revoked or the conditions deleted. You must satisfy the Tribunal and comfortably satisfy the tribunal, that it is no longer appropriate that that order remain, or that if there are conditions, those conditions be attached to his registration. In assessing the application, the protection of the public is paramount, and the protection of the medical profession itself is also an important consideration." 7 Those are the principles which this Tribunal considers it appropriate to apply here. 8 It is necessary to refer to the applicant's background and some of the evidence put forward on his behalf. 9 The applicant was born on 3 September 1945 in India and he is almost 60. He graduated in 1967 with the degrees of bachelor of medicine and bachelor of surgery from the Punjab University, and from 1967 to 1971, he practised in India. In 1971 he came to Australia and for 15 months practised at St Joseph's Hospital in Auburn and at Manly Hospital. 10 In December 1972 he married. He and his wife had three children. In 1973, he and his wife moved to Newcastle, where the applicant joined a general practice; and thereafter he worked in a general practice in Newcastle until he was deregistered at the end of 2002. 11 The significant events which led to the orders which were made on 29 November 2002 are of some relevance here because of the applicant's onus to satisfy the Tribunal to its comfortable satisfaction that it is no longer appropriate that the orders remain. The protection of the public, and to a lesser degree, the medical profession, must be at the forefront of the Tribunal's considerations. 12 Evidence before the Tribunal as differently constituted in 2002 shows the applicant did not appropriately accept responsibility for his very serious transgressions in crossing the boundaries with his patient, and he attempted to cast blame on the patient, even then, though his own conduct was, and had for some time been, under scrutiny, and his insight a significant issue. 13 Before this Tribunal, the applicant, through his counsel, submitted that he now has appropriate insight. The applicant gave evidence this morning and was cross-examined. Mr Strickland drew his attention in cross-examination to his failure in the proceedings in 2002 to appreciate fully the serious part that he had played in the inappropriate relationship. 14 Before us, the applicant conceded that that had been reflective of his views then, but now acknowledged that it was an incorrect view, and that he now appreciated that his own conduct and not that of his patient had been the significant causal factor. He said he had developed this insight after the last Tribunal hearing and at a time when he was being treated by his current psychiatrist, Dr Wright. He told this Tribunal that if permitted to practise again, he plans to work shorter hours. He says that there are less stresses on him now. He has less financial pressures, and he proposes to take other steps in his life to ensure that pressures do not increase. We accept that he has already taken steps to avoid stress. 15 He says he has discussed his possible return to practice with his ex-medical partner. He says he now has a much better appreciation of the need to have boundaries between doctor and patient, and will no longer treat family and friends, as he did in the past, and which, we took him to say, was, in a sense, culturally­ based, being a practice reflective more of matters which occurred in the culture from which he came before living in Australia. 16 He says that there always were chaperones used in his old practice, and he would continue to use them, if permitted to return to practise. 17 He is considering a return to practise in Newcastle. He proposes to continue to have psychotherapy. He said that he finds Dr Wright a good mentor, and he considers that a continuing relationship with Dr Wright in the course of having psychotherapy would be a useful relationship, as he will continue to have him as a mentor. 18 He said that he would be happy to have his work reviewed by the Medical Board from time to time. 19 Having cross-examined the applicant, Mr Strickland told the Tribunal that he no longer wished to cross-examine Dr Wright, although the Commission had earlier said that he was required for cross-examination. 20 Further, Mr Strickland said that the Commission would no longer oppose the application, provided certain conditions were attached to any right to practise. 21 Mr Ainsworth informed the Tribunal that the applicant had no issues with the conditions put forward by the Commission. 22 The Tribunal has had regard for the impressive and many testimonials tendered by the applicant, and paid particular regard for the views of Dr Wright and Dr Westmore, the psychiatrist who saw him for the Commission. 23 The issue of insight is and has been a concern of the Tribunal. Having regard for the documentary evidence and the oral evidence of the applicant, the Tribunal is satisfied that he has insight that he did not previously have, and that it is appropriate that the orders sought be made. 24 The Tribunal is satisfied consistently with the need to protect the public and the need to protect as well the medical profession, that it is no longer appropriate that the previous orders remain in force. The Tribunal has, however, made some small changes to the conditions put forward by the Commission. In general terms, this gives a longer period of supervision. 25 We did not mark the documents put forward by the Commission, but think it appropriate that the conditions proposed by the Commission and the New South Wales Medical Board policy, which has attached to it certain levels of supervision divided into levels 1, 2 and 3, should become formal exhibits in the proceedings, and accordingly they will be marked exhibit 2. 26 References to the conditions then will be made in the orders that we are about to announce. The findings and orders of the Tribunal are these: (1) The Tribunal finds that the applicant is a fit and proper person to practise as a medical practitioner in the state of New South Wales. (2) The Tribunal orders that the name of Vipal Kumar Mehta be reinstated to the register of medical practitioners kept under the Act. (3) Pursuant to section 94(2) of the Act, the Tribunal orders that his registration be subject to the conditions put forward by the Commission, save that: (a) in condition 3, clause 3 reads "Clause 4". That merely corrects a typographical error in the conditions put forward. However the next two do not; (b) on the 22nd line of condition 4, the period of possible extended supervised practice is to be 12 months; (c) in condition 6 on line 1, the number "6" is substituted for "3", and on line 2 of condition 6, the period will be two years. (4) The Tribunal orders that the applicant pay the Commission's costs. (5) The Tribunal orders the return of exhibits. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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