Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Torrinello [2015] NSWCATOD 90 Hearing dates: On the papers Decision date: 01 September 2015 Jurisdiction: Occupational Division Before: Boland J ADCJ Decision: 1. The Tribunal consents to the withdrawal of the complaint against Mr R Torrinello (formerly Dr R Torrinello) lodged 7 August 2014 under Sch. 5D cl 12 of the Health Practitioner Regulation National Law. 2. The application for disciplinary orders and findings is dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW). 3. No order as to costs. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW) – whether in the interest of the public for complaint against medical practitioner to be withdrawn. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mr R Torrinello (formerly Dr R Torrinello) (Respondent) Representation: Solicitors: S. Connors, Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 1420266 Publication restriction: An order is made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of the name of the patients set out in the Schedule to the complaint. reasons for decision Introduction 1. On 9 August 2014 the Health Care Complaints Commission (HCCC) lodged an application in the Tribunal seeking disciplinary findings and orders against Mr Rex Torrinello (formerly Dr Rex Torrinello) (the practitioner). Ultimately, at the request of both the HCCC and the practitioner's solicitors, the Tribunal's consent was sought and granted to withdraw the complaint, and to dismiss the application. 2. Below are the Tribunal's reasons setting out why it was determined that it was not in the public interest for the complaint to be heard. The proceedings in the Tribunal 1. The application filed on 9 August 2014 annexed a complaint in which the HCCC assert that the practitioner is guilty of unsatisfactory professional conduct, and professional misconduct. The complaint contains a large number of particulars and asserts, in broad terms, that the practitioner inappropriately prescribed testosterone when such prescription was not clinically indicated for a patient, and that he failed to maintain proper professional boundaries with four patients. It is also asserted he breached patient confidentiality in respect of one patient and failed to keep proper medical records. The practitioner makes no admissions in respect of the allegations. 2. When the application was first listed in the Tribunal the practitioner's lawyers sought to have the matter adjourned for nine months. In support of that application they relied on expert medical evidence from the practitioner's treating neurologist. That application was not opposed by the HCCC and the matter was stood over until February 2015. Thereafter, after several directions hearings, on 26 June 2015, I was advised that the HCCC no longer sought to pursue the complaint against the practitioner, but rather sought the Tribunal consent to the withdrawal of the application and complaint under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) and Schedule 5D cl 12 of the Health Practitioner Regulation National Law (the National Law) respectively. The practitioner's solicitors supported the HCCC's application. 3. The matter was stood over for the appointment of occasional members to constitute the Tribunal in accordance with s 165B of the National Law, and thereafter to be dealt with "on the papers" without the necessity for a hearing. Occasional members were nominated by the Medical Council of Australia, and 29 July 2015, pursuant to a delegation from the President, I appointed Professor Peter Procopis, Dr Alison Read and Dr Catherine Berglund as occasional members of the Tribunal. 4. Earlier, on 26 June 2015, a time-table for filing further submissions in support of the withdrawal application was made. Written submissions had been received from the HCCC on 25 June 2015 and further submissions were received on 3 July 2015. Although a provision was made for the practitioner to file submissions, if any, no such submissions were received. Accordingly I determined the matter on the papers having regard to the application, the complaint and the written submissions of the HCCC. Background 1. There is no evidence before the Tribunal about the practitioner's age, qualifications, when he was first registered, or his areas and place of practice. 2. The practitioner, who lives in a town on the south coast of NSW, states on oath in a Statutory Declaration sworn 2 April 2015 that he is in ill health and has retired. In May 2014 he underwent neck surgery and whilst hospitalised sustained a fall. He states: I have been diagnosed with neuropathy which affects me in various ways including my ability to swallow and speak, and also affects strength and function in my right arm. I am in pain. I underwent further surgery in relation to my neck condition in April 2015. 1. The practitioner also states that he ceased practising in March 2014 due to his ill health and although he initially sought non practising registration from the Australian Health Practitioner Regulation Agency (AHPRA) that he subsequently withdrew that application. 2. In the Statutory Declaration the practitioner states that, due to his ill health, he does not anticipate he will be able to work in the future. He undertakes not to practise medicine in Australia and further undertakes that he will not seek registration as a medical practitioner in Australia again. He also acknowledges should he again attempt to obtain registration that the HCCC may proceed with disciplinary action against him. Significantly, as noted above, the practitioner states "I make no admissions in relation to these proceedings". 3. In a report by Dr R McGrath, dated 24 February 2015, addressed to the practitioner's solicitors (which was noted to be dictated but not signed by that doctor) he opined that, in December 2014 when he last saw the practitioner, he was improving significantly from a neurological perspective. He went on to explain: [The practitioner] of course is not back to normal. He has ongoing severe pain which is probably a combination of nerve dysfunction and his neck disease. Right now I do not think [name of practitioner] is cognitively well enough to deal with Court proceedings. I understand that these are complex issues. [The practitioner] remains anxious and has difficulty concentrating with the pain medication that he has on board. Given that these deliberations could affect the rest of his ability to practice and his reputation in general I do not think that anyone would risk participating in deliberations which are beyond his current state of mind. 1. Unfortunately, no updating medical evidence was provided by the practitioner's lawyers in support of this application, particularly corroborative evidence concerning the practitioner's surgery in 2015. 2. After receipt of submissions from the practitioner's solicitors, the Director of Proceedings (HCCC) having considered the factors set out in s 90C of the Health Care Complaints Act 1993 (NSW) consulted with the Medical Council of NSW. While the Director has formed the view there is sufficient evidence to prove the complaints against the practitioner, she states that "the public interest does not warrant prosecuting the matter at present". The Medical Council of NSW, by letter dated 18 May 2015, concurred with the Director's decision. The relevant law 1. The starting point in considering this application is Schedule 5 D cl 12 of the National Law. That section, which is a NSW provision, provides as follows: (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if-- (a) any of the following circumstances apply-- (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal. 1. The member of the Tribunal presiding is defined in s 165B for the purposes of that section that deals with the constitution of the Tribunal as follows: (4) In this section:"presiding member" means the member referred to in section 165B (2) (a). 1. Section s 165B (2) (a) is as follows: (2) Except as provided by subsections (4) and (5), the Tribunal, when conducting an inquiry or hearing an appeal under this Law, is to be constituted by-- (a) 1 Division member who is an Australian lawyer of at least 7 years' standing or, in the case of medical practitioner proceedings, 1 Division member who is a senior judicial officer; and … 1. The Director of Proceedings prior to seeking the Tribunal's consent to the withdrawal of the complaint considered the matters in s 90C of the Health Care Complaints Act . That provision is as follows: (1) The Director of Proceedings is to take into account the following matters when making a determination as to whether or not a complaint should be prosecuted before a disciplinary body: (a) the protection of the health and safety of the public, (b) the seriousness of the alleged conduct the subject of the complaint, (c) the likelihood of proving the alleged conduct, (d) any submissions made under section 40 by the health practitioner concerned. (1A) When determining whether a complaint should be prosecuted by the Commission before a disciplinary body, the Director of Proceedings is to consider making a determination with respect to any associated complaint that has been referred to the Director of Proceedings (other than an associated complaint that is a complaint that has been discontinued or terminated and not reopened) so that the complaints are prosecuted concurrently. (2) For the purpose of enabling the Director of Proceedings to fulfil the Director's functions under this section in relation to a complaint referred to the Director, the Commission is to provide the Director with any submissions received under section 40 in relation to the complaint. 1. Section 55 of the Civil and Administrative Tribunal Act is in the following terms: (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure. 1. As with any application under the National Law the guiding object of the law (s 3A) is at the forefront of decision making. It requires that the health and safety of the public must be the paramount consideration when a Tribunal exercises a power under the National Law. Evidence and submissions in support of the application 1. Ms Brianna Butt, the legal officer with the carriage of the matter at the Health Care Complaints Commission provided a statement in support of the application dated 24 June 2015. The statement sets out the history of the proceedings and summarises the matters particularised in the complaint brought against the practitioner. Annexed to Ms Butt's statement are copies of the complaint, and relevant correspondence. 2. Ms Butt also provided a document described as "Application to Withdraw Complaint received by the Tribunal on 3 July 2015". The document includes submissions in relation to the power to be exercised to enable a complaint to be withdrawn and the public interest. 3. In considering the latter question, Ms Butt submits "In the particular circumstances of the present case, the public interest is best served by not proceeding with the inquiry for the following reasons" and she then refers to: 1. the fact the practitioner is not currently registered due to his ill health and his stated intention not to practise in the future; 2. that the matters the subject of the complaint can be taken into account by AHPRA in relation to any future application for re-registration and 3. that the HCCC can seek to have the proceedings reinstated, or file a new complaint, if Mr Torrinello does seek to be registered. 1. Ms Butt makes the following two submissions at [9] and [10]: The protection of the public is an important general factor in assessing the public interest in disciplinary proceedings. In this case, this is served in the particular circumstances of the case by Mr Torrinello's non registration status and his intention not to practice in the future. The main public interest factor in proceedings with the inquiry in this case would be the deterrent factor. On balance, any public interest in proceeding with the inquiry is outweighed by the reasons not to proceed. Relevant principles and purpose of disciplinary proceedings 1. The principles and purpose of disciplinary proceedings are set out in many leading judgments including particularly those of the NSW Court of Appeal when dealing with proceedings involving members of the legal and medical professions. 2. In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA, with whom Basten and Emmett JJA, agreed said at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. Later at [39] Meagher JA, after referring to the fact that the Tribunal directed its attention solely to the risk to the public of future malpractice by the practitioner, said "It did not address at all the public interest in having the respondent's conduct denounced as unacceptable". Discussion and conclusions 1. The evidence before me about the practitioner's ill health, retirement and registration status are not subject of dispute. I accept that if the matter proceeded to a hearing and the practitioner's registration was cancelled that would achieve no greater protection of the public than his present non-registered status, albeit that he would have to apply to the Tribunal under s 163A for re-instatement. In short, I am satisfied that there is no direct risk to the health and safety of the public. 2. Accordingly, my principal focus must be on the upholding of the high standards of the profession, the confidence of the public in the profession and the deterrent effect of an order cancelling a practitioner's registration for conduct of the nature pleaded in the complaint. 3. The practitioner has executed a Statutory Declaration in this matter. In that document he makes no admissions about the complaints asserted against him. If proved, the matters pleaded in the complaint are serious, and could well lead to an order for cancellation of his registration. 4. I must also take into account and weigh in the balance that the HCCC may not prove all or any of the particulars in the complaint. This is not a case where any material has been filed by the HCCC so I am unable to make any comment about the likelihood of a success prosecution save to note that the Director has made a determination to prosecute and such determination is a serious factor to be taken into account, as is her decision to seek to withdraw the complaint. 5. There is no doubt that the conduct of the hearing would be expensive both for the practitioner and the HCCC (even if the practitioner was ordered to pay costs) and there would be an indirect cost to the public in the expenses of the Tribunal. Other cases, where there may be a risk to public safety, could be delayed in obtaining a timely hearing. 6. Weighing each of the matters I have identified I am satisfied, on balance, that the complaint should be withdrawn. In reaching that conclusion I have given less weight than may be the case in other matters to the important objects of disciplinary proceedings of upholding the high standards of the profession, maintaining public confidence in it, and the deterrent effect of the proceedings on other practitioners. ORDERS 1. The Tribunal consents to the withdrawal of the complaint against Mr R Torrinello (formerly Dr R Torrinello) filed 7 August 2014 under cl 12 Schedule 5D of the Health Practitioner Regulation National Law. 2. The application for disciplinary orders and findings (with the complaint annexed) is dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW). 3. No order as to costs. ********** 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: 01 September 2015