Barratt v Medical Board of Australia [2012] NSWMT 22

Medical Tribunal New South Wales Medium Neutral Citation: Barratt v Medical Board of Australia [2012] NSWMT 22 Hearing dates: 23, 24, 25 July 2012 Decision date: 09 November 2012 Before: Colefax SC DCJ; Ms. A. Collier; Dr. S. Howle; Dr. V. de Carvalho Decision: 1. Appeal against decision to refuse to grant an application for general registration dismissed. 2. Appellant to pay respondent's costs as agreed or in default of agreement as assessed. Catchwords: Medical Practitioner - not fit and proper person - not able to practice competently and safely - insufficient recency of practice - appeal against decision of Medical Board of Australia's refusal to grant general registration - onus on proof of appeal - hearing de novo - costs follow the event Legislation Cited: Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (now repealed) Medical Practice Regulation Cases Cited: In Re Dr Geoffrey Ian Barratt and the Medical Practice Act 1992 [2004] NSWMT 7 Ohn v Walton (1995) 36 NSWLR 77 Health Care Complaints Commission v Perroux (No. 2) [2011] NSWMT 15 Category: Principal judgment Parties: Geoffrey Barratt (Appellant) Medical Board of Australia (Respondent) Representation: Ms. Baker - (Respondent) Geoffrey Barratt; in person, unrepresented (Applicant) File Number(s): 40001 of 2010 Publication restriction: No

Judgment

Introduction 1On 12 December 2011 the New South Wales Board of the Medical Board of Australia refused an application by Dr Geoffrey Barratt for general registration under the provisions of the Health Practitioner Regulation National Law (NSW) ("the National Law"). 2In its written reasons for that decision, the Board stated that it had decided Dr Barratt was not a suitable person to hold general registration because: (a)"the nature, extent, period and recency of [his] previous practice of medicine [was] not sufficient to meet the requirements specified in the Approved Medical Board of Australia's Recency of Practice Registration Standard"; and (b)"[he was] not a fit and proper person for general registration in the profession"; and (c)"[he was] unable to practise the profession competently and safely." 3In coming to those conclusions the Board relied upon the following three considerations: (a)"repeated failure to comply with the conditions that were placed on [his] previous registration"; (b)(b) "lack of insight into [his] own responsibility for [his] inappropriate behaviour over many years"; and (c)"concerns relating to [his] clinical skills/competence and [his] failure to satisfy the Medical Board of Australia's Recency of Practice Registration Standard requirement". 4Pursuant to section 175 of the National Law, Dr Barratt has appealed to this Tribunal against that decision to refuse registration. 5The Tribunal convened to hear the appeal on 23, 24 and 25 July 2012. 6On that occasion Dr Barratt appeared unrepresented for himself and Ms Baker, a solicitor advocate with the Crown Solicitor's Office, appeared for the Board. 7At the commencement of the hearing Dr Barratt conceded that the Board had made out the factual bases upon which the application had been rejected. However, Dr Barratt submitted in his opening address that the proper outcome of the appeal should be that his application should be granted - subject to conditions. The nature and quality of that concession, however, will need to be revisited later in these reasons by having regard to the written submissions filed by Dr Barratt dated 22 August 2012 (see paragraph 12 below). 8The evidence in the proceedings concluded on 25 July 2012 at which time Ms Baker provided both written and oral submissions to the Tribunal. 9At the conclusion of those submissions, Dr Barratt was given the opportunity (after the intervening luncheon adjournment) to immediately make oral submissions or to have the (further) opportunity of obtaining legal assistance to prepare written submissions. He chose the latter. 10The Tribunal accordingly directed Dr Barratt to file and serve those written submissions by 5 p.m. Friday 24 August 2012. The Board was directed to file and serve any written submissions in reply by 5 p.m. 7 September 2012. 11On 13 August 2012 Dr Barratt (by e-mail) sought a variation of the direction concerning his submissions. He sought to be able to make oral as well as written submissions. Later that day the Tribunal replied and indicated that any application to vary the directions as to submissions would need to be made in a formal sitting of the Tribunal (constituted by the Deputy Chairperson alone). Details as to where and when that application could be made were provided. These two pieces of correspondence have been marked for identification 1 in the Deputy Chairperson's chambers and placed in the Tribunal file. 12Dr Barratt did not avail himself of any such opportunity. Rather, on 24 August 2012, he filed written submissions date 22 August 2012 in relation to the substantive appeal proper. The Board, in correspondence dated 7 September 2012, chose not to prepare any written submissions in reply. 13For the reasons which we set out below, the appeal and Dr Barratt's application for general registration are dismissed. 14In order to understand our ultimate conclusion it is necessary to refer to a series of events commencing as long ago as December 1974 when Dr Barratt was first registered as a medical practitioner in New South Wales. 15In the intervening years as the chronology will reveal, Dr Barratt has been before this Tribunal on three previous occasions; and has come before the various disciplinary committees and boards of the New South Wales Medical Board on many occasions. 16This detailed history is set out to show: first, why we have concluded that Dr Barratt is not competent to practise the profession of medicine; and secondly why, independently, we have concluded that whatever other deficiencies he may have as a practitioner, those deficiencies could not adequately be addressed by approving his application subject to conditions. Specifically, as the chronology will reveal, Dr Barratt has over and over again breached conditions attaching to his registration. And as recently as the present hearing he has unambiguously stated that even in 2012 he regards himself in effect as free to determine when and if he would adhere to any conditions which might be imposed. 17The Tribunal therefore has been satisfied that he is not a fit and proper person to be registered.