Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Chowdhury (No 2) [2015] NSWCATOD 127 Hearing dates: 10 August 2015 Decision date: 11 November 2015 Jurisdiction: Occupational Division Before: K O'Connor ADCJ AM, Deputy President Dr M Higgins, Professional Member Dr M Diamond, Professional Member J Houen, Lay Member Decision: 1. That the respondent's registration be cancelled, to take effect seven days after the date of these orders. That the respondent not be permitted to apply for review of the order for a further two years. 2. That the respondent pay the applicant's costs of the proceedings. Catchwords: PROFESSIONAL DISCIPLINE – Medical Profession – Non-compliance with conditions of registration – Finding of Professional Misconduct – Appropriate Order. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a Cases Cited: Clyne v NSW Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 NSW Bar Association v Meakes [2006] NSWCA 340 Re Dr Than Le, unreported, NSWMT, 20 September 2001 Prakash v HCCC [2006] NSWCA 6 Ex p Tziniolis (1996) 67 SR (NSW) 448 HCCC v Fraser (No 2) [2014] NSWCATOD 84 Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Swapan Chowdhury (Respondent) Representation: Counsel: C O'Donnell (Applicant) P Blacket SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Turner Freeman (Respondent) File Number(s): 1420245 Publication restriction: Disclosure of the patient names that appear in the material filed by the parties, and in the record of the proceedings is prohibited. REASONS FOR DECISION 1. The Tribunal has found the respondent guilty of professional misconduct: see HCCC v Chowdhury [2015] NSWCATOD 65 (2 July 2015). These reasons deal with the issue of the appropriate disciplinary order, and should be read in conjunction with our previous decision. 2. The Tribunal's order-making powers are found at ss 149A to C of Health Practitioner Regulation National Law (NSW) No 86a (National Law). In this case the central issue is whether an order should be made that prevents the respondent from continuing to practise. Sections 149A and 149B of the National Law sets out the orders that leave unaffected the practitioner's right to continue in practice, i.e.: 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. 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. 1. Section 149C sets out the orders that prevent the practitioner from continuing to practise, i.e.: 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. … (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. 1. All of the orders are discretionary. It does not follow that because a practitioner has been found guilty of professional misconduct that he or she must have their registration suspended or cancelled. 2. The applicant's submission in this case is that the findings are so serious that the respondent should have his registration cancelled for, at least, two years. The submission emphasises the nature of the findings made by us in relation to the respondent. They bore on his honesty and candour in dealing with the regulatory authorities (the Medical Council, and ultimately this Tribunal). The submission also referred to his prior disciplinary history, which included a finding of professional misconduct for the same kind of misconduct the subject of these proceedings (non-compliance with conditions). 3. The respondent's submission is that, despite the lack of candour on the part of the respondent and the findings made by this Tribunal that do not accept the respondent's evidence, nevertheless, because it does not touch upon his competence to practise medicine, the appropriate sanction is to reprimand him, fine him, but not deregister him. Further, the respondent submitted that if the Tribunal felt it desirable that he undertake a course in Ethics, then that may be appropriate. 4. The respondent's submission continued by referring to the protective purpose of disciplinary orders. The respondent submitted that the protective purpose would not be impaired by allowing him to continue in practice. The respondent submitted that there was no evidence that any conduct the subject of the proceedings has affected the respondent's capacity from a medical point of view. 5. The respondent's submission in the alternative was that if the Tribunal does decide to show more strongly its disapprobation of the conduct of the respondent, a suspension would be sufficient. 6. The respondent submitted finally that deregistration is a last resort, and the practical effect would be such that an order would end the respondent's medical career. Professional and Disciplinary History 1. Our earlier decision gave an account of the respondent's professional history, and his disciplinary history in more recent years. A brief recapitulation follows. 2. The respondent qualified in medicine in his country of birth, India. He migrated to Australia at the age of 27 in 1982. He has held Australian registrations since that time. He practised in Alice Springs for three years, then Perth for 15 years. He then moved to Sydney in 2000. He continued in practice until April 2007. He resumed practice on 4 October 2011. His registration was suspended on 25 July 2013 and reinstated on 16 October 2013. Since then he has worked in the practice of Dr Mark Vic of Bondi. We were informed at the hearing that he works there 16 hours a week, Monday to Thursday. Dr Mark Vic provided a testimonial endorsing the respondent's competence as a practitioner, and commending his continuation in the profession. 3. As to his disciplinary history, the adverse elements are as follows: * • Imposition of conditions on registration after a performance review panel inquiry, October 2004; * • Non-compliance with those conditions. This conduct was the subject of s 150 Medical Council inquiry and Medical Tribunal hearings in the period 2008-2010, history explained in previous decision. The ultimate result was a finding of professional misconduct, imposition of a reprimand and placement of conditions on his registration to take effect if he reregistered. (As noted earlier he had not renewed his registration in April 2007.) He did reregister on 4 October 2011 and the conditions took effect. * • Non-compliance with those conditions. This conduct was the subject of a s 150 Medical Council inquiry in June 2013 (that resulted in a suspension that commenced 25 July 2013 and was lifted on 16 October 2013, following his making of an arrangement for supervision with Dr Vic). The inquiry was followed by the present application to the Tribunal. Gravity of Misconduct 1. In its submissions the applicant pointed to the following factors in support of its proposed cancellation order: 1. Our findings going to his honesty in our earlier decision. We found that he had knowingly made a false statement to the Medical Council on 13 December 2012 and again in a letter he wrote to the Council, and received by it on 2 January 2013, when he stated that he had fulfilled the conditions of approved supervision under Dr Ismail. 2. We found that he was not a witness of credit as to the evidence he gave asserting that he had undertaken 40 hours of observership of Dr Ismail's practices in the specified period (October to December 2012).. Given our finding that, at most, he undertook two hours of observership, it followed, it was submitted, that he had given false evidence to the Tribunal. 3. His disciplinary history, in particular the fact that he has now been found guilty of professional misconduct for the second time in five years, in relation to like conduct (non-compliance with conditions imposed on registration). 4. His lack of contrition or remorse for his misconduct. 1. In reply, the respondent submitted: 1. Though outside the original timetable, the respondent had now fully complied with all the conditions imposed by the Tribunal decision of 2010. 2. The respondent had from the outset (4 October 2013) made genuine attempts to find a supervisor acceptable to the Council but that had been difficult to achieve. The respondent referred to our acknowledgement in our previous reasons of those attempts; and that the Council had, as a result, revised the timetable, with the new time limit for compliance set at 31 December 2012. 3. There has been no complaint in relation to his competence as a medical practitioner since his return to practice in October 2011. 4. He has a positive, current testimonial from Dr Vic (as previously noted), given with an awareness of his disciplinary history including the present proceedings. 5. That, therefore, there was no threat to the 'paramount consideration' of the registration and disciplinary system – 'the protection of the health and safety of the public' (National Law, s 3A [NSW]). 6. The false statements belonged to a particular context, his relationship with the regulatory authorities, and should not be seen as so egregious as to bear on his fitness to continue in practice. 1. We were referred by both submissions to case law relating to the protective purpose of disciplinary orders. Disciplinary orders serve to protect members of the public from harm and abuse, they serve to maintain public confidence in the profession, they serve to support the maintenance of high standards of conduct in the profession, and they provide a benchmark to other members of the profession in relation to minimum acceptable standards of competence and ethical conduct. 2. Both parties referred to leading cases that have enunciated these principles (e.g. Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-2, Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, NSW Bar Association v Meakes [2006] NSWCA 340 at [114]) as well as several recent Tribunal cases including ones decided since the National Law took effect. 3. We will not in these reasons recapitulate those authorities in any detail. 4. We accept that, in this case, we are not dealing with any issue of practitioner competence, in the sense of a failure of diagnosis, mistaken treatment, unwarranted physical or mental harm to a patient or improper interactions with patients that transgress professional boundaries. 5. This is a case about honesty, integrity and fitness of character. 6. Disciplinary tribunals have repeatedly emphasised that where conditions are imposed on a practitioner's right to continue to practise they must be 'scrupulously' observed: see, for example, Re Dr Than Le, unreported, NSWMT, 20 September 2001 at [95]; and Prakash v HCCC [2006] NSWCA 6 at [74]. 7. In issue in this regard in these proceedings was the respondent's adherence to the conditions in the period 4 October 2011 to 31 December 2012. While he had difficulty in finding a supervisor acceptable to the Council, it cannot be said that he sought scrupulously to observe the conditions. He failed to adhere to the conditions in their most fundamental aspect, that of undertaking a substantial and intensive program of clinical observership under the supervision of an experienced general practitioner of standing. He made no real attempt to comply. This occurred in a context where he had been away from practice for more than four years. 8. He compounded his misconduct by making false statements to the Council in mid-December 2012, asserting he had fulfilled this fundamental condition. The 'report' he provided a few days later repeated these falsehoods. He persisted with these falsehoods in his evidence to the s 150 inquiry and to this Tribunal. 9. The respondent's counsel sought to draw a distinction between the making of false statements that might relate to how a doctor might have treated a patient, and, on the other hand, a case such as the present, where the false statements were made to regulatory authorities (Council officers, the Council s 150 committee and the Tribunal). He pressed the view that a falsehood relating to treatment of a patient was more serious and might warrant cancellation, but a falsehood addressed to a regulatory authority is less serious and can be met, appropriately, with a sanction that does not affect the right to practise. 10. We are not prepared to endorse a distinction of this kind. The seriousness of proven misconduct will vary with the nature of the misconduct, its frequency and its impact. A falsehood may impact in a serious way on the health or safety of a patient. But equally a falsehood may impact seriously on the capacity of the community to obtain adherence to professional standards, and the capacity to ensure that orders of its regulatory authorities are treated with respect. 11. We found that the respondent only committed to two of the forty hours of supervision that he had been ordered to undertake. This is an egregious breach of the order of the 2010 Tribunal. We accept the applicant's submissions that it is implicit from our findings in our earlier decision that he made that statement with a consciousness of its falsehood, and that continued in his evidence to the s 150 hearing and before this Tribunal. 12. At our first hearing, and again in submissions at the present hearing, the respondent attempted to shift the blame for this state of affairs to Dr Ismail, his supervisor for the period October to December 2012. As we noted in our previous reasons for decision, it was for the respondent to drive the relationship with Dr Ismail and ensure compliance. That Dr Ismail may have done little to ensure that the respondent complied is beside the point. 13. In our view, the respondent's conduct manifests a defect of character. If pressed by circumstances where he has to make a choice between giving a truthful and candid answer that may have adverse consequence for him and giving a false or evasive answer which avoids those consequences, he will do the latter. While the present instances bear on his relationship with the regulator in the environment of adherence to conditions affecting his registration, we cannot be confident that he would not behave in the same way if he were the subject of an investigation arising from a patient complaint relating to diagnosis or treatment. 14. The observations of Walsh JA in Ex p Tziniolis (1996) 67 SR (NSW) 448 at 461 have been repeatedly cited in cases where there are adverse findings as to the honesty and integrity of a practitioner. The last sentence of those observations is: 'If a man [sic] has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.' 1. As his counsel frankly acknowledged, this is not a case of the kind where a practitioner found guilty of misconduct now admits the misconduct, apologises for it, and is promising to take steps, or has taken steps, by way of rehabilitation that might give some assurance that he can be trusted to conduct himself or herself in future in an a way that is acceptable to the profession and acceptable to the community. 2. There is no expression of contrition or remorse in this case. 3. We were referred at hearing to the evidence given by a psychiatrist engaged by the applicant for the 2010 Tribunal hearing. The psychiatrist assessed the respondent, and found that he was suffering from a mental condition. We accept, as did the Tribunal on that occasion, that this condition may have contributed to the incompetence that gave rise to the imposition of conditions on the registration. But it is now five years' later, and no similar material has been put to us as to this issue. We accept that he has, in Dr Mark Vic, found a mentor who has assisted in ensuring that he fulfil the conditions that were imposed on his registration. That is a positive factor. 4. It was suggested at hearing that one course open to the Tribunal might be to permit the respondent to continue in practice, subject to conditions that might involve education in ethics and the like. 5. In our view, the imposition of conditions of that type must be based on a foundation that is credible both to other members of the profession and to the community generally. That foundation starts with a recognition on the part of the practitioner as to why he or she needs to acquire a better understanding of ethical obligations, and a preparedness to commit cooperatively to the process of re-education. In this case we have no indications of that kind. 6. In our view, the respondent remains, regrettably, committed to the belief that he has done nothing wrong in relation to what he said to the Council or, in evidence, to the Tribunal. We think, therefore, that he cannot be trusted to embrace the need for ethical training and to reflect in his future conduct a commitment to the lessons of that training. 7. Disciplinary orders serve, as is noted in the case law, a variety of protective ends. It is critical to the effective operation of a system of regulation that regulated persons co-operate fully with the regulator. Regulated persons practise under a registration or licence bestowed by the community. As a result they acquire an exclusive right to practise the regulated activity. It is intrinsic to the efficient and effective operation of the regulatory system that members of the regulated occupation or profession deal in a frank, candid and truthful way with the regulator. This plainly did not occur on the occasions under notice in these proceedings. 8. We have no confidence that the respondent recognises the significance of his responsibilities in this regard. We referred earlier to his repetitions of the falsehoods first stated to the Council officers on 13 December 2012 in the report tendered later that month. The report was itself token in character, and bore no relationship to the detail contemplated by the template with which he had been supplied. Had he honestly responded to the items in the template it would have been manifest that he had not done most of the things required by an order of that kind. This conduct bespeaks of disrespect for the role of regulation in public protection. 9. A deficiency of character has, in our opinion, been evident since his original failures to comply with the conditions imposed in 2004. 10. He voluntarily chose not to renew in April, 2007, and might have returned to practice as early as late 2008, had the 2008 Tribunal not exceeded the prosecutor's application which simply sought practice restrictions. Following the Court of Appeal decision setting aside the 2008 Tribunal on procedural fairness grounds (details in our previous decision), he had to wait on the outcome of the further Tribunal hearing of 2010 which resulted in the conditions under notice in these proceedings. The situation now is that the respondent resumed practice in October 2011 after a break of four and a half years, and with the exception of the three months after the Medical Council suspension in July 2013 has practised continuously since then. We accept that there is no evidence of any patient complaints in that period. 11. Nonetheless, we consider that a severe disciplinary order of the kind sought by the applicant is warranted. We are not satisfied that the deficiency of character identified first revealed almost ten years ago has been addressed, and resolved. 12. In our view, the order sought by the applicant should, for the above reasons, be granted. 13. There is the usual application for costs. The respondent did not oppose the application. We will make the usual order (as to which see HCCC v Fraser (No 2) [2014] NSWCATOD 84 at [125]-[127]; and Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] per Meagher JA). Order 1. That the respondent's registration be cancelled, to take effect seven days after the date of these orders. That the respondent not be permitted to apply for review of the order for a further two years. 2. That the respondent pay the applicant's costs of the proceedings. 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: 11 November 2015