Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 Hearing dates: 4 April 2016 Date of orders: 07 June 2016 Decision date: 07 June 2016 Jurisdiction: Occupational Division Before: K P O'Connor, AM, ADCJ, Deputy President Dr E Kok, Professional Member Dr K Koster, Professional Member S Lovrovich, General Member Decision: 1. Pursuant to s 149C(1)(a) of the Health Practitioner Regulation National Law [NSW], the respondent's registration is cancelled. An application for review of the order under Division 8 may not made until 18 months after the date of this order. 2. The respondent pay the applicant's costs of these proceedings, as defined in s 3 of the Civil Procedure Act 2005. Catchwords: PROFESSIONAL DISCIPLINE – Medical Profession – Breach of treatment conditions of conditional registration – Unsatisfactory professional conduct – Mental capacity – Impairment – Incompetence – Cancellation of registration. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil Procedure Act 2005 Health Practitioners Regulation National Law, No 86a (NSW) Medical Practice Act 1992 Nurses and Midwives Act 1991 Cases Cited: BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 Caladine v HCCC [2007] NSWCA 362 Grant v HCCC [2003] NSWCA 73 HCCC v Greenwood [2011] NSWNMT 13 HCCC v Wang [2010] NSWNMT 9 Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 Health Care Complaints Commission v Gow (Suppression Order) [2007] NSWMT 3 Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151 Health Care Complaints Commission v Marquinez [2014] NSWCATOD 125 Health Care Complaints Commission v Street [2014] NSWCATOD 124 Health Care Complaints Commission v Vo [2014] NSWCATOD 10 Health Care Complaints Commission v XC [2015] NSWCATOD 9 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Ohn v Walton (1995) 36 NSWLR 77 Walton v Momot (NSWCA, 17 April 1997, unreported). Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Robert Astor-Finn (Respondent) Representation: Counsel: B Tronson (Applicant) No appearance (Respondent) File Number(s): 1520066 REASONS FOR DECISION 1. The Health Care Complaints Commission is applying under the Health Practitioners Regulation National Law, No 86a (NSW) for disciplinary findings and orders to be made against a registered medical practitioner, Dr Robert Astor-Finn (also known as Dr Robert Cranswick). 2. The respondent was first registered as a medical practitioner in 1988 in the United Kingdom, after completing his MB BS at the University of London. He moved to Australia in 1992 and has lived here most of the time since then, though he has returned to England to live and work on occasions. He was granted local conditional registration on 3 January 1992. He is divorced, and has a daughter who lives in England. He has family in England. He has been a local registered practitioner in five periods since then (1992-1993, as an RMO; 1995-2002, without any special conditions; 2005-2007, subject to special conditions; 2010-2014, subject to special conditions). His career has been affected by recurring instances of mental illness. In the last two periods mentioned (2005-2007 and 2010-2014) his registration was subject to strict conditions in relation to the mode of practice and adherence to strict health conditions. He was suspended in 2007 because of non-compliance with the health conditions. 3. He returned to practice on 19 October 2010 following a review by the Impaired Registrants Panel of the Medical Council. The conditions place on his registration included private health conditions. There was a further review in September, 2013. His registration was continued subject to similar conditions. On 25 March 2014 his registration was again suspended. 4. The Council found that he had ceased to comply with two of the private health conditions, as from about December 2013. Private health condition 2 required him to attend regularly a general practitioner of his choice. Private health condition 3 required him to attend regularly a psychiatrist. 5. It is accepted that he had satisfactorily complied with the conditions up to that point. 6. The Commission, following investigation, now applies for an order from the Tribunal cancelling the respondent's registration (s 149C(1)), with a further order that he not be permitted to apply for review of that order for a period of, at least 12 months (s 149C(7)); or for such other orders as the Tribunal thinks fit (see generally, ss 149A [NSW], 149B [NSW], 149C [NSW]) . The application is divided into three complaints. Complaints 1. Complaint One seeks a finding that the respondent has engaged in unsatisfactory professional conduct within the meaning of the National Law by contravening conditions of his registration (s 139B [NSW] (1)(c)(i)), in that he failed to comply with private health condition 2 (the GP condition) as from 17 December 2013 until the date of suspension of his registration (27 March 2014) and failed to comply with health condition 3 (the psychiatrist condition) as from 23 December 2013 to the date of suspension of his registration (27 March 2014). 2. Complaint Two seeks a finding pursuant to s 144(d) that the respondent suffers from an impairment within the meaning of the National Law. 3. Complaint Three seeks a finding that the respondent is not competent to practise the profession (s 149C [NSW] (1)(a)) as he does not have sufficient physical and/or mental capacity to practise the profession, by reason of the impairment the subject of Complaint Two, and because it is of a sufficient nature and degree that it detrimentally affects or is likely to detrimentally affect the practitioner's mental and physical capacity to practise the profession. Non Appearance of Respondent 1. The Tribunal in proceedings of this kind is engaged in an 'inquiry'. The National Law requires notice of any inquiry into a practitioner's conduct to be given, and the time limit governing the notice and the information to be included is specified (see s165I). The practitioner has a right to be represented at the hearing by an Australian legal practitioner, or, by leave, any other person (s 165J [NSW] (1) and (2)). 2. The respondent has failed, with one possible exception, to respond to any of the communications of the Commission in relation to these proceedings. On 27 November 2015 the Commission applied for an order for substituted service for notice of the application. The Commission had made enquiries of services he had attended in his local health district during 2014 as to the residential addresses he gave. The Commission concluded that he had left his last known residential address. The Commission also checked births, deaths and marriages records. It made on-line searches against identities he was known to use, and that had found some written statements in the name of one of those identities ('Lin Mandeb Miri'). Other inquiries and searches are detailed in the material filed with the Tribunal. 3. On 11 December 2015 the Tribunal granted leave to effect substituted service. 4. The Commission provided an affidavit as to the steps then taken. On 16 December 2015 the solicitor for the Commission (Ms N Williams) posted to the last recorded electoral address of a person bearing the respondent's exact former name, the application for disciplinary findings and orders dated 2 April 2015, the complaint dated 1 April 2015, the application for substituted service and the Tribunal's decision in respect of the application. In addition, Ms Williams sent copies of this material to three email accounts known to have been used by the respondent, one proved undeliverable, but the other two were delivered, though no read receipt was received. Further Ms Williams deposed that on 4 January 2016 she received a telephone call from a person who had received the posted material, stating that he had the same name but was not the respondent, and had no knowledge of the matter. 5. The respondent did not appear at the hearing. 6. Section 165J [NSW] (3) provides: (3) This section does not prevent the Tribunal from proceeding in the absence of the registered health practitioner or student concerned, as long as the practitioner or student has been given notice of the inquiry or appeal. 1. Counsel for the Commission, Ms Tronson, referred to the information that had been given to the earlier Tribunal as to searches undertaken by the Commission for an address for direct personal service and to the affidavit of Ms Williams. 2. We were referred to cases dealing with the issue of what amounts to effective notice in cases where a respondent cannot be found to effect service directly, and there is no response to substituted forms of service: see, for example, HCCC v Greenwood [2011] NSWNMT 13 at [14]; Health Care Complaints Commission v Marquinez [2014] NSWCATOD 125 at [7] to [9]; Health Care Complaints Commission v Hutchinson [2014] NSWCATOD 151 at [3]. 3. We ruled that the steps taken were sufficient to meet the notice requirement of s 165J(3), and therefore we would proceed in the absence of the respondent. 4. In giving our ruling, we did suggest that perhaps in future in a case with similar features it might be helpful also to apply to Commonwealth authorities such as Medicare and Centrelink for any information that they could lawfully disclose consistent with their privacy obligations; or to inquire as to any steps that those authorities might be able to take as an intermediary in passing on communications to the respondent given the seriousness of the proceedings for the respondent. Material before the Tribunal 1. The Tribunal had before it four volumes of material, three relating to the substance of the application (volumes 1, 2 and 3) with the other (volume 4) relating to the service issues. 2. We have referred, briefly, to the respondent's registration history in Australia. As we have noted there have been a number of interruptions in his registration. The material before us indicates that these interruptions have been linked to recurrence of his mental health condition. There is no evidence in any of the material placed before us that the respondent has ever been the subject of a patient complaint. Our conclusion is that in his periods of stability he has been a competent practitioner. 3. Ms Tronson took the Tribunal carefully through the evidence upon which the Commission relied. 4. The Commission's case is that as from late 2013 the respondent suffered a relapse, then ceased to comply with the health conditions. This is supported by the consultation records of the relevant practitioners. Further, the material, in particular the treatment records and reports provided by his treating practitioners, warrant the making of orders removing the respondent from the profession. Publicity 1. The respondent has a history of psychiatric illness, which has, as we have noted, included long periods of stability during which he practised medicine competently. As will emerge, we accept the essence of the Commission's case, and agree that order for cancellation of registration is required. 2. We do not consider it necessary or desirable to recite in any great detail the matters put before us. In our view, this would not be helpful to the respondent's ability to deal with his present circumstances and for any prospects of recovery. He is entitled, we consider, to be accorded a degree of privacy and circumspection in what we record in these reasons, consistent with the public's right to be made aware of practitioners who are no longer able to satisfy the standards required of them, and why that is so. This is an area of deliberation where the personal protection appropriately given to people with mental illnesses is in tension with the wider community's interest in protection from unsafe medical practice. 3. These concerns led us, while these reasons were being prepared, to raise with the applicant the question of whether the Tribunal should go further and exercise its power to suppress the identity of the respondent (see Civil and Administrative Tribunal Act 2013, s 64; National Law, Sch 5D cl 7). We noted in our request for a submission (25 May 2016) that the Commission had, in our view appropriately, attributed the breach of conditions to the recurrence of the respondent's mental impairment. In these circumstances, we asked whether it would be better not to publicise the identity of the respondent to the world, as occurs in jurisdictions that deal exclusively with mental impairment issues, such as mental health review and guardianship. 4. The Commission made submissions in reply on 31 May 2016. As the Commission noted, the general principle is that proceedings of the present kind take place in public. There must be special or exceptional circumstances that warrant a departure from that principle: see, generally, Health Care Complaints Commission v Vo [2014] NSWCATOD 10 at [181]-[186]; Walton v Momot (NSWCA, 17 April 1997, unreported). 5. In Health Care Complaints Commission v XC [2015] NSWCATOD 9 the Tribunal granted a non-publication order on the basis of an unchallenged professional assessment that disclosure of the respondent practitioner's identity would, due to her addiction history of which she was deeply ashamed, give rise to a risk of suicide. (The respondent had ceased practice.) On the other hand, in Vo the Tribunal refused an application for a non-publication order limited in time to the next 12 months. The respondent claimed that publication of his identity during this time would have an adverse impact on his daughter's preparation for the HSC exam (a year hence). No evidence was presented as to the likely impact of disclosure on the child. 6. In contrast in Health Care Complaints Commission v BXD (No 2) [2015] NSWCATOD 135 the parent doctor's name was suppressed, having regard to evidence that the revelation of her name would identify her daughter and seriously affect the prospects of the daughter's rehabilitation. The mother's treatment of her daughter had been part of the case. 7. As the Commission submitted, there is no evidentiary material of a similar kind in this case. This is of course a function of the respondent's non-participation in the proceedings, itself likely to be linked to mental impairment. 8. The Commission drew attention to the decision of the Medical Tribunal in Health Care Complaints Commission v Gow (Suppression Order) [2007] NSWMT 3 (21 October 2008). There an application to suppress the identity of the practitioner was refused. That was a case that had its origins in significant misconduct, misprescription of a drug of addiction, and the subsequent death of the patient. The practitioner was found guilty of manslaughter, and a suspended sentence was imposed. The disciplinary order did not affect his registration, instead conditions were imposed. 9. With some hesitation, we have decided not to suppress the identity of the respondent in the absence of any evidence or submissions from the respondent. Complaint One: Contravention of Personal Health Conditions 1. Private health conditions are imposed for the immediate benefit of the affected practitioner and ultimately for the protection of the public. A practitioner must properly observe them. In this case there is no suggestion that the respondent made a decision not to continue treatment out of malice or disrespect for the condition. The evidence points to his action being the first indication of a relapse. 2. That he may again have been experiencing difficulty first emerged at the hearing by the impaired registrants' panel review in September 2013. He participated in that hearing. The panel expressed concern that the respondent had resigned from his employment earlier that week without having secured an alternative position. Then, on 23 November 2013 the respondent advised the Council that Dr Nielssen was no longer his treating psychiatrist. There was a further review interview on 6 December 2013. The respondent advised that he would see Dr Oreb, general practitioner, on 24 December 2013, and Dr Maheshwari, psychiatrist, on 20 December 2013. On 24 December 2013 Dr Nielssen sent an email to the Council noting that the respondent had moved from him to Dr Sokolovic and back to himself during the course of 2013, and expressed concern that the respondent might be experiencing a relapse. On 4 March 2014 Dr Maheshwari advised that he was not the respondent's treating psychiatrist. 3. We were taken to Medicare records of attendances on GPs and psychiatrists by the respondent in the period September 2013 to March 2014. 4. We are satisfied that the regularity of attendance and the direction expected of the treating practitioner (the GP in the case of condition 2, the psychiatrist in the case of condition 3) had broken down by September 2013. There is evidence of the respondent moving between practitioners and to new practitioners in the period September 2013 and March 2014, but this was done with little or no consultation with the practitioners with whom he had regularly dealt up to that time. We are satisfied that he was no longer complying with the two conditions. 5. A breach of a registration condition is a serious matter. We find proven the contraventions alleged by the Commission. They were of sufficient seriousness to warrant a finding of unsatisfactory professional conduct within the meaning of s 139B(b). 6. We agree with the Commission that this is not a case where the additional finding of 'professional misconduct' should be sought. We agree with the Commission's submission that the breaches of the health conditions appear to be a symptom of his condition and, as such, it is not appropriate in the present case for the moral opprobrium inherent in a finding of professional misconduct to be attached to those breaches. 7. We agree that professional conduct may be considered unsatisfactory even though the circumstances suggest that the conduct was likely to have the product of, or affected by a health condition affecting the practitioner's capacity for sound judgment. We agree with the dichotomy drawn by Adamson J in BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 at [100]. A finding of unsatisfactory professional conduct may be made against a practitioner affected by a mental health condition on an objective basis taking account of the nature of the conduct. However, a finding of professional misconduct ought only be made if, first, the conduct viewed objectively was of a sufficiently serious nature that it could properly be characterised as professional misconduct, and, secondly if, having regard to any mental health explanation for the conduct, it remains reasonable in the circumstances to attribute to the practitioner 'professional culpability' for the conduct (as Adamson J put it). Impairment 1. 'Impairment' is defined relevantly by s 5 as impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect— (a) for a registered health practitioner ... the person's capacity to practise the profession; ... 1. The Commission submits that the respondent is affected by an impairment within the meaning of that provision, as he has a 'physical and/or mental disorder, namely a shizoaffective disorder, with episodes of severe psychosis and severe mood disturbance, that detrimentally affects or is likely to affect his capacity to practise as a registered health practitioner'. 2. The present definition of impairment matches the definitions found in the Medical Practice Act 1992 (NSW) and the Nurses and Midwives Act 1991 (NSW). We agree with the Commission that case law interpretations that predate the National Law, as well as those since, can be taken into account. 3. The following principles are established: i. There is no requirement for the Tribunal to make a finding as to a particular diagnosis. It is enough that whatever the condition possessed by the practitioner it is 'prejudicial to the orderly conduct of her [or his] mental and physical duties as a ... practitioner': Grant v HCCC [2003] NSWCA 73 at [12] per Meagher JA. ii. Impairment must be demonstrated by reference to evidence or an unequivocal admission by the practitioner: HCCC v Greenwood [2011] NSWNMT 13 at [62]. iii. The Tribunal must consider whether the practitioner is currently impaired: Caladine v HCCC [2007] NSWCA 362 at [11] per Beazley JA. Currency of impairment may be demonstrated by evidence of deficiency at a particular time combined with the absence of any evidence of any improvement since that time. To similar effect, see HCCC v Wang [2010] NSWNMT 9 at [93] (there making this observation in relation to a finding as to present competence). 1. At hearing we reviewed the reasons for decision of the inquiry held in May, 2005 that led to imposition of conditions of a health nature on the respondent's registration for the first time; the reasons for decision of the inquiry held in July, 2007 that led to suspension of his registration; the medical reports considered by those inquiries; and subsequent medical reports considered when his registration was renewed in October, 2010; and at the most recent suspension hearing in March 2014. There is also a later report from Dr Sokolovic dated 30 May 2014. Of particular significance are the reports of Dr Fisher, the Council appointed psychiatrist, who assessed the respondent for the reregistration inquiry of 2010, and then four times in 2013. 2. We have also reviewed the recent reports of impaired registrant panels (6 September 2013, 6 December 2013). 3. Soon after being suspended, the respondent was involuntarily admitted to the Concord Centre for Mental Health. He was a patient there from 5 April 2014 to 24 April 2014. He was released back into the community, subject to a Mental Health Review Tribunal six month community treatment order (CTO). The most recent material before us covers these developments: see clinical records from the local health district for the period 5 April 2014 to 24 April 2014; and for the period 23 April to October 2014; Dr Chin's letter and clinical notes (10 October 2014). The material contains an account of his interactions with health staff, and his attendances for treatment. He did not comply to any great degree with the conditions of the CTO, and regularly disputed the accuracy of the assessments of his state of mental health (breach notices were regularly issued as from 23 May 2014). 4. We agree with the Commission's submission that while we are not bound by any final assessments made by earlier decision making bodies (the impaired registrants panels, the Medical Council s 150 inquiry reports) or by the practitioners in their clinical notes, this body of material provides relevant evidence as to the respondent's mental state. 5. We agree that the mental state of the respondent, in particular as revealed by the material from September 2013 to October 2014, indicates a re-emergence of the severe psychosis of the kind identified on earlier occasions. A notable early report is that of Dr R G Gall, consultant psychiatrist, United Kingdom issued in 2002, when the respondent had returned to England and was practising there. 6. The respondent's failure to adhere to the CTO is, we consider, a further manifestation of his mental health condition, as is the lack of insight displayed by him during 2014. In relation to the lack of insight, see Vol 3 of the applicant's material, Tab 66 p 22, letter from the respondent dated 29 May 2014; emails, Tab 66 pp 176-178, from respondent dated 23 August 2014. The last formal mental health assessment in the material before us is dated 7 October 2014 (Tab 66, p 180). The author (the staff specialist psychiatrist, Dr Carolyn Jones FRANZCP) describes the respondent as presenting with symptoms of bipolar disorder and psychotic symptoms including paranoia, grandiosity and persecutory delusions. That assessment also records that he has been reported to police as a missing person. 7. We are satisfied that the respondent was at the point affected by a severe mental impairment. We are asked to find that it is a 'schizoaffective disorder with episodes of severe psychosis and severe mood disturbance'. We do not need, we think, to be that formal in our finding. It is sufficient for the purpose of Complaint Two to find that the respondent had as at October 2014 a severe mental impairment. There is no further information that might suggest any alteration or improvement in that condition. We are satisfied that the impairment is current. 8. We are satisfied that by October 2014 (the last date at which there was any interaction between the respondent and his carers) the respondent was refusing treatment, and avoiding contact with those who were trying to ensure that he stayed on his medications. He has ceased living in the social housing unit where he had been residing for some time in 2014, and he may well now be homeless. Lack of Competence 1. Section 139 [NSW] provides: Competence to practise health profession [NSW] A person is competent to practise a health profession only if the person— (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language. 1. Appropriately, the courts recognise that there is a close relationship between a finding of impairment based on a disorder affecting mental capacity and a finding of lack of competence to practise medicine (Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168] per Sackville AJA), and it is not necessary to provide detailed explanation for moving from one step to the other (at [2] per Giles JA). 2. This, we are satisfied, is a case of a severe disorder. The respondent presently lacks the mental competence required to practise the profession of medicine. Appropriate Order 1. The Commission applies for an order of cancellation. The circumstances in which an order of cancellation may be made are those set out in s 149C(1). In this case the only circumstance raised is that provided for in paragraph (a), i.e. 'the practitioner is not competent to practise the practitioner's profession'. We have found that the respondent is not presently competent. We have nothing to suggest that any rehabilitative steps are occurring which might suggest any prospect of recovery of competence. There is, for example, no long term positive prognosis that might influence us to exercise a lesser power such as suspension for a specified period, subject to review. Similarly we have no material which might influence us to impose rehabilitative conditions as part, for example, of a suspension order. 2. The ultimate purpose of disciplinary proceedings, and disciplinary orders, is the protection of the public. We accept the Commission's submission that the respondent has displayed lack of insight in numerous occasions into the nature of his condition, including in the most recent clinical evidence. As the respondent has not participated in the proceedings (the conduct, in our view, not being wilful in the ordinary sense, but a manifestation of his illness), we have nothing which would permit is to make a less final order. In this instance the welfare and safety of the public can only be adequately protected by an order of cancellation. 3. A practitioner whose registration has been cancelled may apply for review of the order (s 163A [NSW]). Section 149C(7) permits the Tribunal to include in its cancellation order a term that precludes the making of a review application until after a specified time. The Commission suggested 12 or 18 months. In our view, the longer period is appropriate in this case. Costs 1. The ordinary rule in relation to costs governing this Tribunal (Civil and Administrative Tribunal Act 2013, s 60) does not apply in relation to applications of the present kind: National Law, Sch 5D [NSW], cl 13(4). The governing rule for this class of proceeding is set out in cl 13(1): (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. 1. Awards of costs have a compensatory purpose. It will be seen that the Tribunal has a broad, unfettered discretion. A costs discretion of this kind is conventionally exercised in favour of the successful party, and that is the approach that is ordinarily to be adopted in professional discipline jurisdictions of the present kind (Ohn v Walton (1995) 36 NSWLR 77; see further, Health Care Complaints Commission v Street [2014] NSWCATOD 124 at [97] ff). 2. We are mindful that in this case we have no submissions from the respondent, because of his non-appearance. It may reasonably be inferred from the material that we have considered that the respondent is likely to be in financially difficult circumstances, and possibly has no means to pay any order for costs. These considerations are not relevant to the primary question of whether to exercise the discretion. Ordinarily a successful party is entitled to expect an award of costs unless there are factors related to their conduct of the litigation that warrant a reduction of those costs. While the financial circumstances of the respondent are not relevant in that regard, they may justify some consideration being given to time payment conditions or a deferral, beyond say 28 days, of when the award becomes due and payable. But to make any concession of that kind we would require some evidence as to the respondent's actual situation in that regard, and have none. We will therefore make the usual order. Order 1. Pursuant to s 149C(1)(a) of the Health Practitioner Regulation National Law [NSW], the respondent's registration is cancelled. An application for review of the order under Division 8 may not made until 18 months after the date of this order. 2. The respondent pay the applicant's costs of these proceedings, as defined in s 3 of the Civil Procedure Act 2005. 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: 07 June 2016