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. Complaints 1 and 2; unsatisfactory professional conduct 12The result of the admissions by the respondent, and the HCCC not pressing sub-particular 2.1 in Complaint 2, was that the only factual matter requiring a finding concerned the establishment of sub-particular 2.2 in Complaint 2. 13The HCCC's case is best explained by reference to Exhibit C. The first column indicates dates on which a service was rendered, or at least billed. Commencing on 22 October 2010 there are 20 highlighted dates when a service was rendered but there is no record of an assessment. The HCCC submitted that this indicated that on those days the doctor had seen a patient without having, on the same day, had an assessment of his fitness to practise. The respondent's answer to this allegation was twofold: (a)His evidence was that there had never been a day that he practised without first having the necessary assessment. (b)Exhibit C shows no more than that there is no record of an assessment on the particular day. It does not, and cannot, indicate that there was no assessment. 14The HCCC submitted that it could be inferred that because no record had been received by the Medical Council that there was necessarily no assessment. The Tribunal disagrees. Bearing in mind the Briginshaw standard, the Tribunal is of the view that unless it made a finding that the respondent was either dishonest in his evidence or unreliable then it could not reach the conclusion advocated by the HCCC. It is important to note that during the relevant period the obligation was on the assessing doctor to fax the form to the Medical Council. It was common ground that when the obligation switched to the respondent, the form was properly faxed on every occasion. Other than the Medicare records, which generated the first column in Exhibit C, there was no other evidence to contradict the respondent's position. The Tribunal accordingly finds that sub-particular 2.2 of Complaint 2 is not proved. Professional misconduct 15The result of the above is that the Tribunal, as far as proof of the complaints was concerned, was finally left only with the question of whether the admitted unsatisfactory professional conduct arising from Complaints 1 and 2 (but without sub-particulars 2.1 and 2.2) were such as to justify a finding of professional misconduct as alleged in Complaint 3. In order to establish professional misconduct the HCCC relied on the seriousness of the Complaints both in their own right and cumulatively. Any reference to Complaint 2 hereafter is made on the basis that it does not include sub-particulars 2.1 and 2.2. 16The HCCC submitted that "the correct approach to determining whether professional misconduct has been established" is set out in the following passage from Health Care Complaints Commission v Perroux [2011] NSWDC 99 at paragraph 18: "[18] The 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." 17The Tribunal agrees with the submission concerning the correct approach and has considered the question accordingly. 18The HCCC submitted that a failure to be properly insured is a particularly serious circumstance. Taken with the length of time for which the respondent was uninsured (some 20 months) the HCCC said that the definition of professional misconduct set out in Section 139E was met. If there was any doubt about this, submitted the HCCC, those doubts would be erased when the unsatisfactory professional conduct emanating from Complaint 2 was factored in. 19The HCCC referred the Tribunal to a number of authorities but in particular to the case of HCCC v Dr Il-Song Lee [2011] NSWMT 12 and to the decision of the Court of Appeal in the same matter, Lee v HCCC [2012] NSWCA 80. The HCCC submitted that as in Lee, the respondent's conduct in not taking out insurance, had been reckless. 20The Tribunal in Lee said the following in relation to the finding of recklessness: "37. With some reservation, the Tribunal's conclusion is that Dr Lee remained uninsured as a result of a combination of his poor administration, his casual attitude to his assumption that he was covered without the need for regular confirmation as well as a degree of arrogance and expectation that responsibility for ensuring his cover continued lay as much with authorities like the Medical Board and the insurance company as with himself. The Tribunal, in essence, finds that Dr Lee was reckless in his attitude to his insurance but was not overtly dishonest." 21The facts in Dr Lee are very different to the present matter, starting off with the length of time for which there was no insurance. The period in Dr Lee's case was some five years. There were distinct issues surrounding Dr Lee of his attitude both to his own requirements and to the necessity for others to ensure that he was properly insured. 22The respondent here, like Dr Lee, had failings in having proper administration of his practice. However, the reasons were very different. The respondent had lost the services of his secretary due to ill health. He was probably, if only intermittently, suffering from his own health problems, which ultimately came to be diagnosed in 2009. In about June 2009 the respondent attempted to put his administration in order although the process took some time. 23The Tribunal does have some reservations about elements of the respondent's evidence, in particular arising from paragraph 32 of his statement (Exhibit 1, Tab 1) where he says that in August 2008 he sent a fax to a firm of insurance brokers asking them to arrange insurance because Avant had declined to insure him as he was not registered. This would suggest that he continued to practise knowing he was not insured. The Tribunal did not fully understand the respondent's evidence as to the events that then occurred; however, the Tribunal is not satisfied that he deliberately continued to practise knowing that he was not insured. There were attempts to rectify his registration status that was affecting his capacity to be insured. However the ultimate resolution of the problem in late 2009 seems to have taken somewhat more than a reasonable period of time. 24While the Tribunal accepts that practise without insurance is a significant failing the surrounding circumstances do not permit it to take the step required to reach a finding of professional misconduct. The Tribunal does not think the respondent's conduct falls within the following description in Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at 200: "But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner." 25The conclusion just reached is not affected by Complaint 2. This is because there are a number of factors, which will be set out below, which substantially mitigate the seriousness of the respondent's conduct in relation to Complaint 2. 26Particular 1 of Complaint 2 concerns about four weeks, at the beginning of the respondent's resumption of practise, of seeing more patients than Condition 4 permitted him to see. The Tribunal accepts his evidence that this was a product of an early failure to properly plan the number of patients that he was seeing. Taking into account that the number of patients in excess of the maximum is not great, that the respondent himself brought the matter to the attention of the Medical Council and that there has been no repeat of the problem, the Tribunal is of the view that the unsatisfactory professional conduct should be gauged at a particularly low level. It is to be noted that the respondent's permitted number of weekly patients was increased to 30 on 9 March 2011. 27Turning to Particular 2, there is no doubt that at first sight there is a clear breach of Condition 5. The Condition makes it clear that the doctor is not to practise unless he has an assessment by an approved medical practitioner. The difficulty in attributing a degree of seriousness to the conduct, which it would otherwise attract, is the mitigation emanating from the conduct of the Medical Council itself. This statement is not made by way of criticism of the Council but rather as explaining the basis for the respondent's apparent failure to comply, with precision, with the terms of Condition 5. 28It is apparent that the respondent was made aware of the Conditions on 12 May 2010. The respondent commenced seeing patients on 17 May. By this time no assessing doctor had been approved but the respondent had made arrangements with the Radiology practice in the same building to have assessments on a daily basis (Exhibit 1, Tab 1, paragraph 57). 29On 22 June 2010 the Medical Board (as the Medical Council was then known) wrote to the respondent (Exhibit A, Tab 5B). In this letter the Board reminded the respondent of the conditions under which he was permitted to practise and provided certain comments by way of assistance to him in ensuring compliance with the conditions. 30In respect of Condition 5 the Board asked the respondent to nominate a medical practitioner to carry out the assessment role by 1 July 2010. The Board said that upon receipt of the name of the nominated practitioner and acceptance of the role by the practitioner, an approval process would be put in place which "usually takes between 5 and 12 days". There was no suggestion in the letter, or enquiry about, any concern that the respondent was practising without assessments by approved practitioners. 31The respondent wrote back to the Medical Board on 24 June 2010 (Exhibit A, Tab 5C). In this letter the respondent frankly told the Board that he may have exceeded the 25 patients per week limit. In addition, he said that he had made arrangements for Dr Kitchener, from the radiology practice, to see him to perform the necessary assessments. 32The now Medical Council, responded on 1 July 2010 (Exhibit A, Tab 5D). In this letter the nomination of Dr Kitchener is noted and the respondent is informed about the process that will take place in order for Dr Kitchener to be approved. The Medical Council, now knowing that the respondent was practising and seeing Dr Kitchener, made no comment that he should not do so until approval was received. 33While the Tribunal accepts that the terms of Condition 5 are clear it can well understand Dr Hampshire's evidence to the effect that the Medical Board appeared to have given him implicit approval to continue to practise while the approval process took place, provided the necessary assessment did in fact take place on each day that he saw patients. 34Evidence (by telephone) was taken from Drs Kitchener and Gacs both of whom carried out assessments of the plaintiff. Based on their evidence, the Tribunal is satisfied that although they may not have been approved at the relevant time they carried out the assessments contemplated by Condition 5. It is also to be noted that on no single occasion did the respondent fail the assessment. 35In the circumstances set out above the Tribunal once again attributes a low level of inappropriate conduct in its assessment of the unsatisfactory professional conduct derived from the establishment of Particular 2 of Complaint 2. 36The Tribunal is therefore not convinced that a finding of professional misconduct arises from Complaint 2 or from the addition of Complaint 2 to Complaint 1. 37In summary the Tribunal is satisfied that the practitioner has been guilty of unsatisfactory professional conduct as alleged in Complaints 1 and 2 (the latter excluding sub-particulars 2.1 and 2.2) but is not satisfied that the practitioner was guilty of professional misconduct as alleged in Complaint 3. Protective orders 38The Tribunal's approach to the making of orders consequent upon its findings is that the orders should have as their primary purpose the protection of the public and of the medical profession. 39The respondent has a long history of appearances before the Tribunal and other disciplinary bodies. This history does not impact on the appropriate protective orders for the current complaints. 40There is little doubt, and there was no argument to the contrary, but that the respondent should be reprimanded. 41The Tribunal is also of the view that in respect of Complaint 1 the respondent should be fined. This option is available under Section 149B of the National Law. The Tribunal believes that no other order or combination of orders is appropriate in the public interest. It would not be effective to impose yet further conditions on the respondent and the conduct does not justify suspension or cancellation of the respondent's registration. 42The maximum fine is 250 penalty units. The Tribunal thinks that taking into account the seriousness of a failure to insure but set against the background of the present circumstances that the fine should be 45 units. This equates to the sum of $4,950. 43It was pointed out to the Tribunal that under Section 150H(2) the current conditions under which the respondent practises will cease to have effect following this decision. The Tribunal does not think it appropriate that it review the conditions and, subject to what follows, that there should be any change in the conditions. The present management of the conditions by the Council and the system of review that is in place is entirely appropriate. An order will therefore be made that the current conditions as set out in the Confirmation of Registration Status (Exhibit A, Tab 1) should continue subject to review by the Medical Council. The caveat mentioned above is that the Tribunal recommends to the Medical Council that if it is the view of the Review Panel that Condition 5 of the published conditions should be deleted then that would be an appropriate course to follow. 44In relation to costs, the HCCC submitted that costs should follow the event so that an order should be made that the respondent pay the HCCC's costs of the proceedings. The respondent submitted that he should pay no more than 50% of the HCCC's costs as a reflection of the HCCC not succeeding on parts of Complaint 2 and the whole of Complaint 3 and also because, in the absence of Complaint 3, the other complaints could have been dealt with without the referral to the Tribunal. 45The Tribunal agrees with the respondent's submissions and, in the exercise of its discretion, will order accordingly. Final orders 46(1) The respondent is reprimanded. (2)The respondent is to pay a fine of 45 units equivalent to the sum of $4,950. (3)The fine of $4,950 is to be paid to the Medical Council of NSW within 60 days of the date of these orders. (4)The respondent's registration is to continue to be subject to the conditions under which he currently practises. (5)The respondent is to pay 50% of the HCCC's costs of the proceedings. ********** 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: 20 September 2013