Health Care Complaints Commission v Dr Hampshire [2013] NSWMT 17

Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Hampshire [2013] NSWMT 17 Hearing dates: 18/09/2013 - 19/09/2013 Decision date: 20 September 2013 Before: Elkaim SC DCJ Dr E O'Brien Dr M Cox Mr R Smith Decision: See paragraph 46 Catchwords: Failure to insure, breach of conditions, whether professional misconduct Legislation Cited: Health Care Liability Act 2001 Health Practitioner Regulation National Law (NSW) Medical Practice Regulation 2008 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 HCCC v Dr Il-Song Lee [2011] NSWMT 12 Health Care Complaints Commission v Perroux [2011] NSWDC 99 Lee v HCCC [2012] NSWCA 80 Pillai v Messiter [No 2] (1989) 16 NSWLR 197 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Robert Bernard Hampshire (Respondent) Representation: C O'Donnell (Applicant) M Lynch (Respondent) Health Care Complaints Commission (Applicant) Hicksons (Respondent) File Number(s): 2012/40036 Publication restriction: Suppression order in respect of patients named in the evidence

Judgment 1The Tribunal has heard a Notice of Complaint brought by the Health Care Complaints Commission (the "HCCC") against Dr Robert Bernard Hampshire (the "respondent"). The original notice was dated 14 November 2012. At the commencement of the hearing the HCCC was given leave, by consent, to rely initially on an Amended Notice of Complaint and then a Further Amended Notice of Complaint (itself subject to a later minor amendment). The final notice includes three specific complaints. 2Complaint 1 alleges that the respondent has been "guilty of unsatisfactory professional conduct" under Section 19(3) of the Health Care Liability Act 2001 (the "HCL"). The complaint alleges that the doctor practised without professional indemnity insurance from 1 January 2008 until 3 August 2009. The respondent admitted the facts alleged against him and also that his conduct amounted to unsatisfactory professional conduct. The latter conclusion is an automatic product of Section 19(3) of the HCL. 3Complaint 2, Particular 1, alleges unsatisfactory professional conduct but now under Section 139B(1)(c) of the Health Practitioner Regulation National Law (NSW) (the "National Law"). It is alleged that the doctor, while subject to conditions of practice, did so in contravention of two of the conditions. The conditions under which the respondent practised at the relevant time can be seen in the Evidentiary Certificate in Exhibit A, Tab 1. 4The first of the contravened conditions (Condition 4) was that he was not permitted to consult with any more than 25 patients in a week. This particular was admitted and, now due to section 139B(1)(c) of the National Law, that the conduct amounted to unsatisfactory professional conduct. 5Particular 2 relates to the second of the contravened conditions of practice (Condition 5). This condition, at the relevant time, was in the following terms: "5. Was to be assessed as fit to practise by a registered medical practitioner approved by the Board prior to commencing work each day. To authorise the assessing doctor to inform the board of failure to attend for assessment, or if he is unfit to practise on any given day or there is significant change in health status (including a significant temporary change)." 6Sub-particulars 2.1 and 2.2 allege that on certain days in the specified period, the respondent had practised without having an assessment at all. Ultimately sub-particular 2.1 was not pressed. 7Sub-particulars 2.3, 2.4 and 2.5 allege that on the nominated days a medical practitioner who was not an approved practitioner carried out the assessment. To be clear, the allegation accepts an assessment had been carried out, but alleges the assessor was not an approved medical practitioner. 8Sub-particulars 2.3, 2.4 and 2.5 were admitted, and once again by operation of law, that the conduct amounted to unsatisfactory professional conduct. 9Complaint 3 alleges that Dr Hampshire has been guilty of professional misconduct under Section 139E of the National Law. The basis for the complaint are the same facts as alleged in Complaints 1 and 2 but said to justify, both individually and cumulatively, the establishment of the allegation of professional misconduct. 10In approaching the complaints the Tribunal was mindful that, firstly the onus was on the HCCC to prove the complaints and, secondly that although the standard of proof is on the balance of probabilities, it should nevertheless apply the standard set out in Briginshaw v Briginshaw (1938) 60 CLR 336. 11The respondent's history is comprehensively set out in the exhibits. His training, qualifications and progress as a medical practitioner (including disciplinary matters) can be found in his statement in Exhibit A, Tab 1. The Tribunal does not consider it necessary to repeat this history in this decision.