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. The Complaint 4In November 2010, the HCCC complained to the Medical Tribunal that the doctor had been guilty of unsatisfactory professional conduct and/or professional misconduct in that she had practised without professional indemnity insurance and/or had engaged in improper or unethical conduct relating to the practice of medicine. The particulars of complaint are: 1. Between 1 January 2002 and 1 July 2009, the practitioner practised as a medical practitioner without being covered by approved professional indemnity insurance as required by section 19(1) of the HCL Act. 2.The practitioners submitted annual renewal forms for registration renewal to the NSW Medical Board each year from 2002 to 2009, in which she falsely declared that she was exempt from holding professional indemnity insurance, when she knew, or ought to have known that she was not exempt." The HCCC submits that the doctor's conduct was sufficiently serious to amount to professional misconduct warranting a twelve-month suspension of the right to practise. Ex Parte Hearing 5The doctor did not appear at the hearing. Correspondence received from the doctor confirms that the doctor has been aware of the hearing dates for some time. Informal enquiries made by the HCCC suggest that the doctor recently travelled interstate because of the death of a close relative. 6As the doctor had notice of the hearing, the Tribunal was empowered to proceed in her absence: s167C (3) of the Health Practitioner Regulation National Law (NSW). The Tribunal determined that it was appropriate to do so. The material before the Tribunal indicated that the doctor's absence was probably a result of her attitude to the hearing. Further, the doctor had made no attempt to contact the HCCC or the Tribunal to request an adjournment because of unexpected personal circumstances. As the doctor has retired from practice, the impact of the Tribunal's decision will be considerably less than would be the case for a practising member of the profession. 7The doctor resides in a remote alternative community. She has no electronic address. The most reliable means of communication is by sending correspondence to her local post office. The bulk of the HCCC documentary evidence was forwarded to the doctor's post office several months ago. A telephone enquiry with the post office revealed that the doctor had not collected material that had been sent more recently. Consequently, the Tribunal rejected the tender of that material. 8As the doctor had not been put on notice as to the outcome sought by the HCCC, the Tribunal decided that the doctor should be afforded an opportunity to be heard on that issue, and on any application for costs: see Lucire v HCCC [2011] NSWCA 99 from [50] and Forge v ASIC [2004] NSWCA 448 at [412]-[427]. The Doctor Was Not Entitled To Claim Exemption From Insurance Cover 9Until 1 July 2010, s 19 of the HCL Act provided: "(1) A person is not entitled to practise as a medical practitioner unless the person is covered by approved professional indemnity insurance. ... (3) Practising as a medical practitioner without being covered by approved professional indemnity insurance is, for the purposes of the Medical Practice Act 1992, unsatisfactory professional conduct. (4) This section does not apply to or in respect of the medical practitioner: (a) who is an employee of a public health organisation (but only to the extent that the medical practitioner practices as such it an employee), or (b) who is exempt under the regulations from the requirement to be covered by approved professional indemnity insurance. " Clause 4 of the Health Care Liability Regulation 2007 (now repealed, which was in similar terms to historical versions of cl 5 of the Health Care Liability Regulation 2001) provided: "4(1) In accordance with section 19(4)(b) of the Act, the following medical practitioners are exempt from the approved insurance requirement: ... (c) a medical practitioner whose medical practice is limited to the rendering, on a voluntary basis, of medical assistance in emergency situations or first-aid, ... (g) a medical practitioner who, while practising medicine in accordance with the function conferred or imposed by or under any State or Commonwealth Act or regulation, does not, under that Act or regulation, incur any personal liability, ... (2) An exemption under sub clause (1) (b)-(i) applies to a medical practitioner only to the extent to which the medical practitioner practices medicine in the circumstances described in the exemption concerned." The Health Care Liability Regulation 2007 (and its historical versions) contained no definition of "public health organisation." However, it may readily be inferred that a "public health organisation" is an organisation operated by the government, or which has acquired a special government status. Since its commencement, s 7 of the Health Services Act 1997 (the HS Act) has defined a "public health organisation" as: "(a) a local health district, or (b) a statutory health corporation, or (c) an affiliated health organisation in respect of its recognised establishments and recognised services." Those expressions are further defined: ss 8, 11 and 13. 10The doctor was not employed by a "public health organisation" within the meaning of the HS Act. She was not employed by a government operated health organisation. Whether an organisation is a "public health organisation" has little to do with whether it is working in the public interest. Nor was the doctor working under State or Commonwealth legislation that conferred indemnity from personal liability. Nor was she rendering "assistance in emergency situations or first-aid". In any event, as well as undertaking pro bono work for the disadvantaged, she was working part time as a fee-generating general practitioner. Consequently, she required insurance for the non-exempt aspects of her work. Issues 1. Whether the Tribunal is comfortably satisfied that, at the time that the doctor completed the applications for registration renewal, she knew that she was not exempt from the requirement to hold professional indemnity insurance. 2. Whether the doctor's conduct was sufficiently serious to amount to professional misconduct. 3. Appropriate outcome. The Doctor's Intent 11The Tribunal accepts the HCCC's submission that, as most doctors appreciate that professional indemnity insurance provides important protection for the public, most doctors act responsibly in relation to such insurance. Acting responsibly, most doctors not only ensure that they hold insurance (or are exempt because the legislature has deemed that their patients are otherwise protected) but also ensure that the regulator is properly informed of their insurance status. Conversely, in most cases it can be inferred that a doctor who fails to meet these expectations has deliberately breached the expected standards of behaviour. The HCCC submitted that the doctor must have realised that she was making false statements to the effect that she was exempt from professional indemnity insurance. However, the doctor did not live, reason or approach the practice of medicine in a conventional manner. 12In support of that submission that the doctor knew that she was making false statements, the HCCC relied upon statements made by the doctor on 1 July 2009 when Ms Harvey of the Board first spoke to the doctor (Exhibit A, tab 3). Initially, the doctor asserted that she had "statutory protection", stating that a requirement for insurance did not make sense for a doctor in her circumstances. Later in a conversation, after stating that she had "divine protection" and was "self-governing", the following exchange occurred: Ms Harvey: "Do you think that you are above the law?" Doctor: "No, it is just common sense. Why should I abide by laws that are foolish? I have practised since 1987 and had never needed insurance. Why do we live by fear based concerns?" 13The HCCC also referred to the doctor's written submissions (Exhibit A, tab 37) in which the doctor referred to her "statutory liability protection" claim for exemption as a "somewhat novel and creative approach". 14Further, in the submissions, the doctor raised alternative bases for exemption. First, she claimed a "public health organisation" exemption on the basis that she had been practising under the auspices of an ashram, an acupuncture association and an ear acupuncture recovery clinic, each of which was a "public health organisation" because it was devoted to the public interest. Second, she claimed that she spent much of her time working with drug addicts, who were "in a permanent condition of 'emergency'", entitling her to rely upon the "emergency" exemption to the insurance requirement. The HCCC submitted that the multiple and inconsistent bases upon which the doctor now sought to claim exemption suggested that she was disingenuous. 15The Tribunal does not accept that this evidence establishes insincerity, let alone that, at the time that she lodged the renewal applications, the doctor knew that she had no entitlement to exemption. The statements are consistent with the doctor's unorthodox philosophy. Further, in support of each of the renewal applications, the doctor provided a handwritten note indicating the nature of the continuing professional education that she was undertaking. The notes make plain the nature of the doctor's practice. They refer to the doctor working part-time as a general practitioner, developing healing techniques such as ear acupuncture, and studying approaches such as "a course in miracles". Any reasonable reader of this material would doubt that the doctor had "statutory liability protection". The notes are inconsistent with intent to mislead. Professional Misconduct? 16Pursuant to section 19(3) of the HCL Act, because she practised without insurance the doctor is guilty of unsatisfactory professional conduct. 17The Tribunal must consider both the doctor's conduct in erroneously claiming exemption from insurance in each of the years 2002 to 2009, and her conduct in practising without insurance during that period. 18The issue is whether, when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration: s 37 Medical Practice Act 1992, s 139E Health Practitioner Regulation National Law (NSW). Characterisation is not to be determined by backward reasoning, first determining the appropriate outcome and then characterising the conduct based on the outcome. The definition of professional misconduct is focused on the nature of the conduct, which must have the capacity to justify such an order, whether or not such an order should be made in a particular case: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67]. Whereas the characterisation of conduct depends upon the "seriousness" of the conduct, additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public: s 2A (3) of the Act. 19The "seriousness" of unsatisfactory professional conduct depends on the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638. "Misconduct in a professional respect" means conduct that incurs the strong reprobation of colleagues of good repute and competence. Frequently, such conduct involves "moral turpitude", but it need not do so: Qidwai v Brown (1984) 1 NSWLR 100, per Preistley JA at [104]. For example, conduct that is not a deliberate departure from accepted standards but which portrays indifference and an abuse of the privileges associated with registration as a medical practitioner may constitute "misconduct in a professional respect": Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at [200]. 20In HCCCv Allen [2010] NSWMT 8 the Tribunal found that a doctor had been careless and reckless in making a statement to the Board, but had not deliberately or intentionally sought to mislead the Board. There was evidence from a peer practitioner to the effect that the doctor's conduct attracted her strong criticism. The Tribunal found the doctor guilty of professional misconduct, and reprimanded him. 21In this case, the HCCC did not tender evidence to the effect that the conduct in question incurred the strong reprobation of colleagues of good repute and competence. In relation to this matter, the medical members of the Tribunal were able to provide some guidance. 22It is not easy to characterise the doctor's conduct. Ultimately, the Tribunal has concluded that, when viewed as a whole, the doctor's unprofessional conduct is not sufficiently serious to amount to professional misconduct. The Tribunal is mindful that its task is to protect the public. Professional indemnity insurance is critical to public protection. In this case, the doctor wrongly claimed exemption on a number of occasions and practised without insurance for seven years. When confronted by the regulator in July 2009, the doctor manifested an unattractive arrogance and lack of insight into her professional obligations. 23On the other hand, the doctor did not deliberately mislead the regulator. She openly disclosed the nature of her practise. She did not display " indifference and an abuse of the privileges associated with registration". Rather, she acted irresponsibly and without insight into the reasons for requiring universal insurance. She was ignorant about the bases upon which exemption could be claimed and she failed to make enquiry. Because of her strong commitment to healing and the non-interventionist nature of her practise, she could not envisage that there was any possible need for professional indemnity insurance. However, personal conviction can provide no excuse for failing to comply with a universal professional indemnity insurance scheme that is designed to protect the public. 24The Tribunal finds the doctor guilty of unsatisfactory professional conduct. 25The Tribunal will adjourn the proceedings to afford the doctor an opportunity to be heard on the question of outcome. 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: 17 August 2011