Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Townsend [2014] NSWCATOD 65 Hearing dates: 26 and 27 May, 2014 Decision date: 16 June 2014 Jurisdiction: Occupational Division Before: F Marks ADCJ (Principal Member) Dr M Giuffrida (Professional Member) Dr M Higgins (Professional Member) G Ettinger (General Member) Decision: The registration of the respondent is cancelled with effect 28 days from this date The respondent may not apply for review for 1 year The respondent to pay the costs of the complainant Catchwords: Health Practitioner-breach of practice condition-held constitutes professional misconduct justifying cancellation of registration Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission V Dr Della Bruna [2014] NSWCATOD 31 Prakash V Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Richard Townsend (Respondent) Representation: Counsel W Hunt (Applicant) M Lynch (Respondent) Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 1420053 reasons for decision INTRODUCTION 1The Tribunal has before it two complaints made by the Complainant, the Health Care Complaints Commission against the respondent, Dr Richard Townsend. (1)Complaint 1 alleges unsatisfactory professional conduct under section 139B of the Health Practitioner Regulation National Law (NSW), ("The National Law") based on alleged contravened conditions of registration. There is background information contained within the Notice of Complaint concerning Complaint 1. It states that on 5 June 2007 a Professional Standards Committee imposed a number of conditions on the respondent's registration following a finding of unsatisfactory professional conduct. The condition included a requirement to complete "at the earliest opportunity and no later than the end of 2008" a short certificate course conducted by the Department of General Practice Monash University entitled "Issues In General Practice Prescribing". That condition was amended on 9 December 2008 requiring enrolment by no later than the end of 2008 in that course with completion at the earliest opportunity. This amendment was made following the respondent's unsuccessful request to have the condition removed. It appears that the condition was amended administratively requiring enrolment by no later than 20 April 2009. The respondent failed to enrol by this date and has since failed to make any attempt to enrol However, the respondent did apply on 5 June 2012 and 18 September 2012 to the Medical Council to have the condition removed, but these applications were declined. The particulars of Complaint 1 allege a contravention of this practice condition imposed on 9 November 2011 by both failing to enrol and failing to complete the course within the time periods specified. (2)Complaint 2 alleges that the respondent is guilty of professional misconduct under section 139E of the National Law in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of registration or that he engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to such conduct of a sufficiently serious nature. The particulars furnished with respect to this second complaint are those which apply to Complaint 1. THE EVIDENCE 2A great deal of documentary evidence was tendered in the proceedings including a number of medical reports, Reasons for Decision of the Professional Standards Committee of 5 June 2007, the Decision of the Committee dated 30 April 2012, and correspondence between the respondent's solicitors and the Medical Council of NSW and the complainant. We shall refer to this and other documentary evidence where necessary during the course of these Reasons for Decision. The respondent gave evidence and was cross-examined. 3The parties were able to reach agreement on a number of factual issues which were helpfully set out in the written submissions of the Complainant. We thank counsel for both parties for their assistance in facilitating their production. The material provided has been incorporated in the following narration. (1)Dr Townsend was born on 11 December 1938 and is now aged 75. He became registered as a Medical Practitioner on 17 December 1964. (2)On 5 June 2007 a Professional Standards Committee imposed a number of conditions on Dr Townsend's registration as a result of a finding of unsatisfactory professional conduct in relation to his prescription of benzodiazepines without exercising responsible medical judgement as to whether it was appropriate to issue such prescriptions. The period involved, in totality as particularized, spanned from 18 May 1998 to 18 October 2002. Condition 4 required Dr Townsend "To complete at the earliest opportunity and not later than by the end of 2008, the Short Certificate Course conducted by the Department of General Practice, Monash University, East Bentleigh, Victoria entitled "Issues in General Practice Prescribing". In addition, a condition was imposed prohibiting Dr Townsend from prescribing, supplying, dispensing or administering any prescribed restricted substance in Schedule 4 Appendix D of the NSW Poisons List. (3)Since that time Dr Townsend, on the evidence, has not prescribed any restricted substance and has complied with that condition. (4)However he has not attempted to enrol, nor has he enrolled and undertaken the Course required in Condition 4. This prompted a referral to the Professional Standards Committee ("PSC"). (5)On 30 April 2012 a PSC, after a hearing on 9 November 2011, found Dr Townsend guilty of unsatisfactory professional conduct, reprimanded him and directed a condition be imposed: "To complete at his own expense the course "Issues in General Practice Prescribing" conducted by distance mode by the Department of General Practice, Monash University, Victoria. The course must be completed by 30 April 2013." (6)There were supplementary conditions requiring that Dr Townsend provide evidence of enrolment in the course to the Medical Council of New South Wales by 30 May 2012 and provide the Council with documentary evidence of satisfactory completion of the course within one month of completing the course. 4In its Decision, the Committee noted evidence given by Dr Townsend that he had worked as a sole practitioner in a suburban practice since 1967. Until February 2008 he worked full-time, 4 ½ days a week seeing about 50 patients per week. He said he suffered from a number of health issues including severe neck pain from February 2008 and commenced working thereafter on a part-time basis. In a statement dated 19 September 2011 he said that his practice had changed considerably following the hearing in 2007 and was significantly diminished in size. He said he had about 100 patients in total but did not see many of them on a regular basis. He had no new patients but continued to treat long-term patients, between 10 and 15 in number, working 10 to 12 hours a week. He did home visits as many of his patients were elderly and housebound. 5He complained of multilevel severe degenerative changes in his spine from February 2008, an attack of renal colic in April 2008 and further spinal problems in June 2010. On 30 July 2009 he said he suffered a heart attack and had bypass surgery on 4 August 2009. He said he did not return to work until January 2010. Furthermore, he said that the stress of having this prolonged matter on an ongoing basis and the refusal of the Medical Board to amend or vary the condition had caused him "great anxiety." He said that he had offered to do a different course or some other form of educational exercise. 6He said that he had approached Monash University for information about the course and was told that this would require at least 20 hours of study per week for approximately 6 months. He said that he would be required to complete 4 assignments and required computer access as it was a distance-learning course. 7In the course of this statement Dr Townsend referred to the cost of the course as being approximately $2300, but it was not always offered every semester, he did not have a computer and had no computer skills, he had never studied by distance learning and was not capable of computerised research and had no word processing skills. He said that he could not do the amount of research and study required of the course and could not learn the necessary computer skills. 8There is evidence that the course was not offered in 2009 and that the respondent was aware of this. 9As noted in its Decision, when giving evidence before the Committee Dr Townsend said that he could not afford to pay for the course as he was only working part time, and after his heart attack in July 2009 he put the course aside and at that stage was not really aware of what the course was about, that sitting and reading for hours would have been difficult for him and that he did not consider that the course would be useful to him because he had cut back his practice and was seeing fewer patients. He was adamant that he had no intention of computerising his practice or acquiring computer skills. Because of the need to buy textbooks and the cost of the course, he regarded the requirement to undertake it as a financial penalty that he could not afford. 10On 2 May 2012 the Medical Council notified Dr Townsend of the conditions attaching to his registration as a result of the PSC decision of 30 April 2012. 11On 4 June 2012 the Medical Council of New South Wales noted that evidence of enrolment had not been received by 30 May 2012 as specified in the most recent condition imposed and sought such evidence by 11 June 2012. 12On 5 June 2012 Dr Townsend made application to the Medical Council for removal of the relevant conditions. The non-exhaustive bases for this application included back pain, management of his cardiac condition, challenges to the reasoning process of the PSC (without seeking appellate review) and a lack of utility. In a letter in support of this application, solicitors acting for Dr Townsend complained in part that the continued obligation to attend a course directed inter-alia to the prescribing of drugs was no longer appropriate to his circumstances because there was no contemporary evidence of any concerns about inappropriate prescribing by him. It was submitted that there was no obvious connection between the educational course he was required to undertake and any prescribing which he currently undertook in the course of conducting his practice. 13On 22 June 2012 Dr Townsend made a further application for review including financial hardship and his limited relevant prescribing in practice as additional grounds for review of the condition. 14On 20 July 2012 the Medical Council informed Dr Townsend that the Conduct Committee of the Council had refused those applications on 10 July 2012. 15On 4 September 2012, the Medical Council wrote to Dr Townsend seeking evidence of enrolment in the course by 19 September 2012. 16On 18 September 2012 Dr Townsend sought a further review of the relevant condition asserting a lack of utility in him undertaking the course and asserting the protective measure was in fact of punitive effect. 17On 30 October 2012 the Medical Council advised Dr Townsend that the Conduct Committee of the Council had dismissed the application on 9 October 2012 and referred the matter to the Health Care Complaints Commission. This was the catalyst for the commencement of these proceedings before this Tribunal. 18Medical reports from Dr Townsend's treating doctors became evidence in the proceedings. There was evidence of multi-level degenerative disease throughout the lumbosacral region, elevated blood pressure, more severe from time to time and a suggestion that this might be affected by stress. The various medical reports indicated that Dr Townsend had some physical limitations but on the whole they are indicative that he is able to carry on his present practice regime, albeit with some difficulty from time to time. 19Correspondence in 2012 from the relevant department at Monash University indicates the course in question can be undertaken by distance learning. Students had seven weeks to complete the course and average study time per week was said to be "around 10 hours". The cost of the course for a domestic student in 2013 was said to be $2326. It was said that although students needed to be in electronic contact with the University, assignments could be submitted in hard copy. Even though assignments could be submitted in hard copy, there is no doubt that students would need access to a computer for communication in electronic form with the University. 20It is interesting to note that in some of the medical reports, particularly from Dr Thomas Gavaghan, the respondent's treating cardiologist there is reference to the respondent being required to undertake a course which includes 20 hours per week over a period of six months. We understand from the evidence given in the proceedings that Dr Townsend inflated the time required to be expended in undertaking the course because he considered that he would be slower than most students. 21As and from the 2014 academic year the course has been changed so that it can only be undertaken online necessitating the use of a computer. The cost is approximately $5125. 22At the present time the respondent continues to operate his practice on a part-time basis. He says that he has between 200 and 300 patients, by which we understand that this is the number of patients on his records, although some may not have seen him for some considerable time, and some may see him on an irregular basis and may also have other medical practitioners who treat them. He says that he is treating about 30 patients whom he sees regularly and of whom he sees 10 to 12 a week. He continues to do house calls. He drives to their homes for this purpose. 23He said in cross-examination that he intended to retire "fairly soon", probably by the end of 2014. He said that all of his current patients were elderly noting that they ranged from age 50's to 80's. Some of the patients he described as being "vulnerable", for whom he provided palliative care. Between a third and a half of his patients lived at home and hoped to die at home. In the main he prescribes warfarin, antihypertensive and antibiotic drugs for his patients, although he uses antibiotic drugs sparingly. He also prescribes when necessary analgesic and narcotic analgesic drugs and a few of his patients take Panadeine Forte as well as Panadol Osteo. He prescribes morphine rarely but has never written a prescription because he takes this drug from his doctor's bag's supply. Under cross examination he conceded that use of his doctor's bag technically was the same as prescribing. DR TOWNSEND'S REASONS FOR FAILING TO COMPLY WITH THE PRACTICE CONDITION 24There is a deal of evidence about why Dr Townsend has failed to comply with the practice condition. Some of it was given by him in evidence in these proceedings, and some of it is contained within the documentation admitted into evidence. A number of reasons are given, and it is difficult to ascribe any particular significance to any particular reason, because the importance of the reasons varied from time to time depending upon Dr Townsend's circumstances. The reasons, in no particular order of significance, are: (1)a variety of medical conditions which affected Dr Townsend from time to time and to varying degrees. These included musculoskeletal problems, heart problems, anxiety, and blood pressure. (2)the cost of the course which was said to create financial pressure on him (3)a lack of utility in undertaking the course. He felt this way "from the word go", and he said that he would not have benefited from it (4)a lack of interest in acquiring computer skills (5)an inability to use a computer (6)a reluctance to seek assistance from any other person who might be able to use a computer and who might have access to a computer who could undertake the necessary work of communicating with the University and in reproduction of assignments in electronic form (7)a reluctance to undertake a form of formal study of the kind necessary to undertake the course (8)a feeling that the imposition of the condition has imposed an unfair financial burden on him and was essentially unfair in any event. We note in this regard that in a reference provided to Dr Townsend by Mr Robert Inkster dated 8 September 2011 he refers to Dr Townsend feeling that "his reputation as a professional and ethical medical practitioner has been unfairly tarnished" as a result of the 2007 disciplinary proceedings. This signifies that, at the least, Dr Townsend has told Mr Inkster that the relevant decisions were unfair to him. 25Having regard to all of these matters in the aggregate, it is inescapable, in our opinion, that Dr Townsend has been intransigent over a long period of time in resisting compliance with this practice condition, albeit that he may have had genuine feelings from time to time that he has been unable to attempt the course because of his several medical conditions and his inability to use a computer. There is a mix of contumelious disregard for the need to comply and a heartfelt concern about his inability to do so. ARE THE COMPLAINTS MADE OUT? 26It is well established that in determining these proceedings the Tribunal must be "comfortably satisfied" that the complaints have been made out, and we shall proceed to deal with these matters on this basis. 27The proceedings are governed by the provisions of the National Law. The respondent conceded that he was guilty of unsatisfactory professional conduct as alleged in Complaint 1. We are entitled to take that concession into account in determining these proceedings. However, for reasons which we shall shortly set out, we are so satisfied independently of any concession made by the respondent. 28Unsatisfactory professional conduct is defined in section 139B of the National Law. By Section 139B (1) (c) a contravention by a medical practitioner of a condition to which his or her registration is subject constitutes unsatisfactory professional conduct. There can be no doubt on the evidence, as conceded by the respondent, that he failed to provide evidence of enrolment in the relevant course by 30 May 2012 or by any later date and that he failed to complete the course by 30 April 2013 or by any later date. 29Complaint 2 alleges that the respondent is guilty of professional misconduct under section 139E of the National Law. This requires that the Tribunal be able to find, relevantly for these proceedings, to the requisite standard of proof that the respondent is guilty of unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. The respondent submitted that his admitted unsatisfactory professional conduct did not satisfy the test of what constitutes professional misconduct. 30In approaching this matter we are required to consider and characterise the conduct complained of in terms of whether it meets the test imposed by section 139E. The test is formulated by reference ultimately to a justified course of action, namely suspension or cancellation of registration, consequent upon a finding of seriousness. As we shall discuss shortly, the relevant authorities at appellate level are to the effect that any orders of suspension or cancellation have a significant protective element and are not to be motivated by notions of punishment. This raises for consideration the question whether or not when considering whether the respondent is guilty of professional misconduct within section 139E, the Tribunal must approach the question of justification of cancellation or suspension of registration as embracing within it a qualification imposed by questions of a protective element to the exclusion of any consideration of punishment. In that suspension or cancellation can only be ordered by reference to the protective nature of the jurisdiction of the Tribunal, it is probable that this concept is imported into a consideration of the serious nature of the conduct. 31We approach the matter by comparing the conduct of the respondent with that which we understand would be expected of a medical practitioner. The objects of the National Law are set out in sections 3 and 3A. By section 3A, "the protection of the health and safety of the public must be the paramount consideration." By section 3, the object of the Law is to establish a national registration and accreditation scheme for.... "the regulation of health practitioners." There are detailed provisions in the Law dealing with the accreditation of various authorities, the registration of health practitioners and, in particular dealing with their competence to practice in New South Wales. There are a number of extensive provisions allowing for various entities, and this Tribunal to deal with complaints against health practitioners and establishing relevant disciplinary powers. Included within the regime is a right to impose practice conditions on health practitioners. 32Accordingly, there is imposed upon health practitioners in New South Wales a detailed regime which regulates their conduct in the carrying out of their practice. The recognition of practice conditions within this regime and the means of enforcing them by way of disciplinary procedures reflect the intention of the legislature to ensure that these matters are approached by health practitioners and those responsible for ensuring compliance, with appropriate seriousness. A failure to adhere to the provisions of practice conditions should be regarded as a serious matter, the nature of which needs to be considered in all the circumstances. 33Prima facie, therefore, the admitted failure by the respondent to comply with the practice condition as alleged in the Notice of Complaint is a serious matter. Prima facie a failure to comply with a practice condition may arguably be of a sufficiently serious nature to justify suspension or cancellation, because it constitutes a breach of the statutory regime established to regulate health practitioners in New South Wales. In order to determine whether this prima facie failure is of a kind which would justify suspension or cancellation it is necessary to have regard to all of the circumstances surrounding the imposition of the practice condition and its admitted breach. 34We commence this consideration by acknowledging that it is not appropriate for this Tribunal to re-examine or question in any way the reasoning of the Committee in imposing this condition, nor the reasoning of the Medical Council in refusing applications to vary it. We state this for completeness; we should not be taken to have any doubts about the justification for the imposition of the practice condition, nor refusals to vary it. On the contrary, the practice condition was in effect a continuation of a condition which was originally imposed by the PSC in June 2007. There was a good and valid reason for the imposition of the condition because of the proven misconduct of the respondent during the period 1998 to 2002. 35The respondent has, in effect, failed to comply at any stage with this practice condition, although we are concerned for the purpose of dealing with this particular matter with the contravention of the condition imposed on 9 November 2011. However we note that this condition was imposed following a finding that the respondent was guilty of unsatisfactory professional conduct for which he was reprimanded because of his failure to have complied with the earlier condition. The respondent's failure to comply with the practice condition has been persistent, consistent and represents a flagrant disregard of the force and effect of the practice condition which is binding on him by law. We have already made comment that the various reasons advanced by the respondent for his failure to comply contain a mix of contumelious disregard and concern about his ability to do so. 36The importance of compliance with practice conditions in the public interest and as protective measures has been emphasised on many occasions. See, for example, Prakash v Health Care Complaints Commission [2006] NSWCA 153, especially at [74],"When conditions are imposed, as they were here, for restoration to practice, those conditions must be scrupulously observed...." per Santow JA 37Overall, having regard to all of the circumstances we are of the opinion that the breach by the respondent of the practice condition which constitutes unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration for the purpose of section 139E, and is therefore professional misconduct. Of course, such a conclusion does not mandate that suspension or cancellation must follow, and the appropriate consequential orders must be determined by reference to all of the relevant circumstances. WHAT CONSEQUENTIAL ORDERS SHOULD BE MADE 38It is then necessary to consider what consequential orders should be made following this finding. The powers which are available to this Tribunal are contained within sections 149A, 149B and 149C of the National Law which are in the following terms; 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner- (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. (2) The Tribunal may do any one or more of the following in relation to the student- (a) caution or reprimand the student; (b) impose the conditions it considers appropriate on the student's registration; (c) order the student to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the student to complete an educational course specified by the Tribunal. (3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only- (a) to prevent the practitioner being registered unless the order is complied with; or (b) to require the conditions concerned to be imposed when the practitioner is registered. (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled. (5) The order or condition concerned is then a critical compliance order or condition. 149B Power to fine registered health practitioner in certain cases [NSW] (1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units. (2) A fine is not to be imposed unless- (a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and (b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest. (3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct. (4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession. 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied- (a) the student has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the student unfit in the public interest to undertake clinical training in the health profession; or (b) the student is otherwise not a suitable person to undertake clinical training in the health profession. (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order- (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time. 39There are a number of authorities at appellate and other level which have established the proper approach to the determination of appropriate orders in the exercise of the powers of the Tribunal. The relevant principles have recently been summarised, comprehensively and succinctly in Health Care Complaints Commission V Dr Della Bruna [2014] NSWCATOD 31. At [88] and following the Tribunal said; In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. Although the Tribunal has concluded that Dr Della Bruna's conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 was a decision under the Medical Practice Act 1992 (NSW) but the relevant provisions of that Act are substantially the same as the applicable provisions of the National Law and the Court of Appeal's reasoning is equally applicable to the present case. At [67] it was held: 40However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [which are substantially the same as ss 149 to 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C(1) of the National Law is to a similar effect]. Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2) [see s 149B(2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case : see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ). In Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3, the Medical Tribunal said at [200]: The authorities also clearly establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice: see Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 - 425 (Latham CJ, Dixon and Williams JJ (Rich and Starke JA dissenting)); The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported), (Kirby P, Mahoney and McHugh JJA). This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practise - see Health Care Complaints Commission v King [2013] NSWMT 9 at [25]). The expression used by the High Court in Ex parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlies an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practise at the time of making the order and is likely to remain so for a significant period. 41In determining what orders are appropriate, it is necessary for the Tribunal to consider all relevant circumstances in light of the legislation and the principles established by the authorities set out above. 42In submissions, the complainant said that the appropriate order to be made in all the circumstances was one cancelling the registration of the respondent. Not only was the respondent in disregard of the practice condition in circumstances which could not justify this conduct, but it was also important that the Tribunal emphasise the necessity of recognising the significance which should attach to compliance with conditions of this kind by medical practitioners. In effect, the practice condition was imposed for the protection of the public, the respondent has resisted compliance with the practice condition over a long period of time and to fail to exercise the power of cancellation or suspension of registration would allow the respondent to escape the consequences, albeit that the power was to be exercised with principal concern for the protection of the public and the enhancement of proper standards of professional practice. The result would be that this respondent would continue to practice medicine unaffected by his persistent failure to comply with a practice condition imposed in a regular and authorised manner by an entity with undoubted power to do so. 43As against this, it was submitted on behalf of the respondent that his conduct which gave rise to the imposition of the practice direction ceased, on the evidence, by 2007, and no good purpose would be served by depriving the respondent from continuing to practice medicine in a manner now being undertaken by him in 2014. It was said that there were no indicia which would indicate any need for a practice direction of this kind to now be applied to the respondent. Furthermore, although the respondent consistently breached the practice condition over a period of time, he endeavoured on a number of occasions to have it reviewed, albeit unsuccessfully, and there were substantial reasons why he was unable to comply. In these circumstances, it was said that orders other than cancellation or suspension were appropriate. Through counsel, the respondent invited the Tribunal to create a regime providing for supervision or mentoring as a means of adequately creating a protective situation. 44For the respondent, emphasis was placed upon the various factors which created difficulties, and perhaps an impossibility, for the respondent in undertaking and completing the relevant course. We acknowledge that, on the evidence, that the respondent would have had difficulty in pursuing the course from time to time by reason of his several medical conditions. However, the impact that those conditions had on him varied from time to time and were not present consistently throughout the period with which we are concerned. In terms of his medical conditions we are of the opinion that from time to time the respondent could at the least have enrolled and commenced to undertake a course, whether or not he was able to complete it by reason of any particular medical condition. We make this comment acknowledging that the course was not offered in 2009. 45Furthermore, we do not regard the necessity to be in electronic communication with the University as being, in fact, a significant impediment. Of course, the respondent did not seek any assistance from anyone to enable him to do this so there is no evidence of his ability to do so. As a matter of common sense and everyday knowledge we observe that, whether on a paid or unpaid basis, there would have been during the relevant period available to just about everyone in the community, and a medical practitioner in particular, some means to enable electronic communication through the use of a computer. At least until the 2014 year, the 4 assignments could have been submitted in hard copy, presumably even handwritten. 46It was also urged upon us that there was no longer any necessity for the respondent to undertake such a course and for the practice condition to remain. As we have previously observed, the starting point for the determination of these proceedings is the fact that the practice condition was imposed in a regular and lawful manner, and has the force of law accordingly. 47The respondent said that having regard to all the relevant circumstances of these proceedings that this Tribunal should take into account matters of a contemporary nature as they apply to him. In this regard we note that he continues to prescribe a number of drugs, which we have mentioned, to patients who suffer from serious and terminal conditions. Whilst we concede that the respondent no longer prescribes drugs of the kind which were subject to the practice condition imposed upon him, there is nothing that has been put to us which would persuade us that it is entirely appropriate that the respondent be permitted to prescribe drugs and other medicines without having undertaken some course of study. In his evidence, the respondent said that he attended regional practice meetings and other ad hoc meetings at which there may have been discussion of the prescribing of various substances. Furthermore, he said that he read newsletters, articles in newspapers and received information from drug manufacturers about prescribing issues. But as against this he does not have access to the dissemination of any information which is the subject of broadcast by electronic means. We are unable to conclude that there is no utility in the respondent remaining subject to a practice condition of this kind to such an extent that, in some way, the very serious breach of it by him should be overlooked. 48We are also concerned that the respondent has always considered that the imposition of the practice condition in question was of no utility to him, and he has appeared to resent it as being an unnecessary burden both financially and otherwise. There has been no recognition on his part of the necessity to do his very best to comply with the condition, and we are of the view that he has not attempted to do so. This flagrant breach of authority is indicative to us of conduct that demonstrates that his judgement in the practice of his profession is significantly below the standard reasonably expected of a practitioner of his level of training and experience. There is simply no evidence of any expression of contrition or remorse in having breached the practice condition over a long period of time. On the contrary, the respondent appears to have resented its imposition and studiously refrained from undertaking the course, let alone seeking to enrol in it. We would expect that all medical practitioners would respect the force and effect of practice conditions lawfully imposed on them from time to time, and respect any decisions lawfully made to decline to remove them. This is a standard mandated by the National Law, and which the community expects to be observed by all medical practitioners. The respondent's conduct is significantly below this standard. 49Because the serious nature of the breach by the respondent of the practice condition imposed upon him constitutes, as we have found, professional misconduct, and because we are not satisfied that the surrounding circumstances upon which he relies should in some way be seen to mitigate the effect of the breach, we conclude that in all the circumstances it is appropriate that an order be made cancelling the registration of the respondent. In so concluding we are conscious of the need to protect the public generally, to ensure the maintenance of professional standards and public confidence in the practice of medicine, and to deter other health practitioners from breaching practice conditions. We are of the opinion that a minimum period of deregistration of one year is adequate. COSTS 50The complainant sought an order for costs which was not resisted by the respondent. We are of the opinion that all the circumstances a cost order in the usual form is appropriate. ORDERS (1)the registration of the respondent is cancelled with effect 28 days from this date (2)the respondent may not apply for review for one year (3)the Tribunal should undertake any review (4)the respondent is to pay the costs of the complainant in an amount assessed under the Legal Profession Act in default of agreement. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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 June 2014