Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99

District Court New South Wales

Medium Neutral Citation: Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 Hearing dates: 15 August 2011 Decision date: 16 August 2011 Before: Dr W Jammal Dr E Kertesz Dr M Gleeson, PhD Murrell SC DCJ Decision: Unsatisfactory professional conduct Catchwords: Unsatisfactory professional conduct Professional indemnity insurance Exempt from insurance Legislation Cited: Health Care Liability Act 2001 Health Care Liability Regulation 2001 Health Care Liability Regulation 2007 Medical Practice Act 1992 Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Qidwai v Brown (1984) 1 NSWLR 100 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 HCCC v Allen [2010] NSWMT 8 Lucire v HCCC [2011] NSWCA 99 Forge v ASIC [2004] NSWCA 448 Category: Principal judgment Parties: HCCC Dr D Perroux Representation: Ms Mathur HCCC File Number(s): 40034/11

Judgment

Background 1The doctor was a registered medical practitioner with experience in general practice and a long-standing interest in alternative healing techniques. She worked in an alternative community, offering services in the areas of mental and addictive disorders, general counselling and women's health. She offered half her consultation time free of charge. Much of her pro bono work was undertaken at an ear acupuncture recovery centre, where she treated patients with addictive and mental disorders by using ear acupuncture and counselling. In addition, she undertook pro bono work through an ashram and an acupuncture association. The doctor did not prescribe conventional drugs, performed no conventional medical procedures and sought no pathological investigations. She described herself as a "spiritual healer" (Exhibit A, tab 40). If patients required drugs or procedural interventions, she referred them to an orthodox medical practice. She was well regarded within the alternative community in which she resided (Exhibit A, tab 37). There was no complaint about the manner in which she treated patients with medicine and alternative medicine. 2In 2002, the Health Care Liability Act 2001 (the HCL Act) commenced. Pursuant to ss 19(1), (4)(a) and (b) of the HCL Act, medical practitioners were required to carry professional indemnity insurance unless they were employed by a "public health organisation" or were exempt under the regulations. From 2002, when applying for renewal of registration, practitioners were required to indicate whether they held approved professional indemnity insurance or were exempt from holding such insurance. From 1 October 2008, s 127A of the Medical Practice Act 1992 required practitioners to provide documentary evidence of the basis upon which they claimed exemption. 3In each annual application for registration renewal between 2002 and 2009, the doctor claimed exemption on the basis of "statutory liability protection". When the doctor lodged her 2009 application for renewal of registration and failed to provide adequate evidence of the claimed exemption, Ms Harvey of the NSW Medical Board spoke to the doctor and explained the requirement. The doctor's response was unhelpful. Pursuant to s 19(2)(b) of the HCL Act, the Board suspended the doctor from practising medicine. The doctor obtained the professional indemnity insurance that was appropriate for non-procedural general practitioners earning less than $40,000 gross per annum. On 5 August 2009, the suspension was removed. The Medical Board referred the matter to the Health Care Complaints Commission (the HCCC). The doctor retired from practice on 30 June 2011, and on 15 July 2011 her name was removed from the Register.