Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Brunner [2017] NSWCATOD 49 Hearing dates: 27 March 2017 Date of orders: 05 April 2017 Decision date: 05 April 2017 Jurisdiction: Occupational Division Before: The Hon F Marks ADCJ Dr R Napier (Professional Member) Prof R Batey (Professional Member) Y Rowling (Community Member) Decision: The respondent is found guilty of professional misconduct. The respondent is to pay the costs of the complainant agreed in the sum of $2535.50 The proceedings are otherwise dismissed Catchwords: Medical practitioner – admission of professional misconduct – finding of professional misconduct-public interest – proceedings not continued and dismissed-costs order Legislation Cited: Health Practitioner Regulation National Law Poisons and Therapeutic Goods Act 1966 Cases Cited: HCCC v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Helmut Brunner (Respondent) Representation: Counsel M Darmody solicitor (Complainant) S Barnes (Respondent): Solicitors: Health Care Complaints Commission (Complainant) TressCox (Respondent) File Number(s): 2016/00378778, 1620217 Publication restriction: Non-publication order of the name of or any material which might tend to identify the name of any patient of the respondent reasons for decision Introduction 1. In these proceedings, the complainant, Health Care Complaints Commission (HCCC), has alleged that the respondent, Dr Helmut Brunner is guilty of professional misconduct as that expression is defined in the Health Practitioner Regulation National Law ("the Act"). The proceedings are constituted by a Complaint which refers to the general practice conducted by the respondent on the North Coast of New South Wales. It is alleged that he prescribed a number of drugs of addiction to 12 patients during the period from June 2013 to November 2013 and that, in general terms, he did so without conducting an appropriate assessment of the patients, without making appropriate referrals for specialist assistance, without an appropriate therapeutic purpose and in a quantity in excess of recognised clinical standards. Furthermore, in some cases the respondent was alleged to have prescribed these drugs without obtaining a proper authority of the Director-General of the Ministry of Health under the provisions of the Poisons and Therapeutic Goods Act ("the PTG Act"). Furthermore, there are allegations that the respondent breached the provisions of Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation in that his medical records were defective and non-compliant. 2. In a Reply document signed on behalf of the respondent by his solicitor acting for him in the proceedings he admitted in writing to all of the Complaints and Particulars thereof brought against him. In doing so the respondent conceded that he was guilty of professional misconduct. 3. Professional misconduct is defined in section 139E of the Act in the following terms; 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. This definition in turn refers to the definition of unsatisfactory professional conduct which is contained in section 139B. It is only necessary to refer to part of the provisions of this section as follows; 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. 1. It will be seen that by a combination of these provisions of the Act, the respondent has conceded that he is guilty of conduct which is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and which is sufficiently serious to justify cancellation or suspension of his registration. In determining whether suspension of registration is appropriate in any given case, a number of factors are taken into account having regard to the protective nature of the jurisdiction of this Tribunal under the provisions of the Act. A concise statement of the relevant principles is to be found in the judgement of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said; 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. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Accordingly, in determining whether suspension or cancellation is appropriate consequent upon a finding of professional misconduct not only is the seriousness of the misconduct taken into account, but also the public interest in creating community confidence in the integrity of the medical profession, and the deterrent effect that any order might have on other members of the medical profession as well as the respondent. It is against this background that the current proceedings are to be determined. The factual background 1. The respondent is age 75 and has been registered as a medical practitioner since 1979. He has never previously been the subject of any adverse complaint concerning his general practice. 2. After these proceedings were commenced he surrendered his registration effective on 28 October 2016. In a statement dated 17 November 2016 the respondent said that he would never return to the practice of medicine. The application to discontinue the inquiry 1. Both parties sought an order that the Tribunal refrain from continuing with any inquiry into the Complaint brought against the respondent. This application was brought under the provisions of clause 12 of Schedule 5D of the Act which is in the following terms; 12 Certain complaints may not be heard [NSW] (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 application was brought relying on clause 12 (1) (a)(iii) and (b). It followed representations made to the complainant by solicitors for the respondent indicating that the respondent admitted that he was guilty of professional misconduct, that he had surrendered his registration and that he intended never to practice medicine again. He also offered to pay the costs of the complainant. Once it became aware of these circumstances, the complainant consulted with the Medical Council of New South Wales and was advised by that Council that it agreed to the complaint being withdrawn. 2. In support of the application the respondent submitted that because the provisions of the Act were directed primarily to the protection of the safety of the public by reason especially of section 3A, once it was clear that the respondent would never practice medicine again by reference to his written professed intention, the safety of the public was protected and the public interest dictated that it would be unnecessary to continue with the proceedings. The submission referred to a number of decisions of this Tribunal where consent had been given to the withdrawal of the proceedings. 3. Furthermore, it was submitted that cessation of the proceedings would save significant legal costs, would minimise the use of the resources of this Tribunal and would enable the matter to be finalised in a timely fashion. 4. The respondent sought, and the complainant supported, the making of an order allowing the Complaint to be withdrawn and dismissed together with an order that the respondent pay the costs of the complainant in an agreed sum of $2535.50. 5. In making these submissions, the respondent conceded, properly, that the orders sought would preclude the ability of the Tribunal to deter other medical practitioners and to enhance the confidence of the public in the integrity of the profession because there would be no publication of any decision. Consideration 1. The provisions of subclause (3) of clause 12 of Schedule 5D make it clear that the power to decide not to conduct an inquiry is to be exercised only by the member of the Tribunal presiding. Accordingly, the material which follows concerning this aspect of the proceedings represents the reasons of the presiding member only. I should state for completeness that because the reference in the subclause is to the "member of the Tribunal presiding" it is arguable that the Tribunal constituted in the manner provided for by the Act must be convened at the time that the decision is made, otherwise it cannot be said that the person concerned is actually presiding over the Tribunal. For this reason, all of the members sat during the course of the hearing. Fortuitously, as will be seen, this enabled the proceedings to be finalised expeditiously on the day set aside. 2. Both parties agreed that any decision to be made under clause 12 is discretionary. It is conditional upon a determination that it is not in the public interest for the inquiry to continue. In my opinion, important elements of the public interest include the deterrent effect on other medical practitioners as well as the enhancement of confidence by the public in the integrity of the profession. 3. It is not necessary to emphasise the concerns of the public and the legislature about the inappropriate dissemination of drugs of addiction to persons who either are or may become addicted. There are many instances where this type of behaviour indulged in by medical practitioners has resulted in cancellation or suspension of registration. Accordingly, the professional misconduct to which the respondent has pleaded guilty is of a most serious kind, especially in the circumstances of these proceedings involving 12 patients. The seriousness of this misconduct is such that it is important that it be dealt with appropriately, rather than being "swept under the carpet" by withdrawal of the proceedings. 4. I formed the view during the course of hearing submissions, which I shared with the parties, that I was disinclined to allow the proceedings to be withdrawn having regard to all of the circumstances and in particular the serious nature of the professional misconduct. It was also important, in my opinion, that some mechanism be created that would alert any relevant authorities to the circumstances of these proceedings and the nature of the complaints brought against the respondent if, although unlikely, he decided to seek reregistration in the future. 5. After discussion with the parties, they agreed that they would not oppose a finding of professional misconduct being made by the Tribunal, based upon the nature and extent of the misconduct described in the Complaint document coupled with the admissions and concessions of the respondent. On this basis, the Tribunal determined that it would proceed to conduct an inquiry into the Complaint. Finding of professional misconduct 1. The material which follows constitutes the reasons of the Tribunal in determining that the respondent is guilty of professional misconduct in the manner alleged in the Complaint document. In making this finding we rely on the provisions of sections 165 H and 149 of the Act which are in the following terms; 165H No inquiry required if complaint admitted [NSW] No inquiry need be conducted into a complaint referred to the Tribunal under this Law if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.; 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if- (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal 1. The respondent has admitted in writing that he is guilty of all of the matters about which complaint is made in the Complaint document and that he is guilty of professional misconduct. Having regard to these admissions, and having regard to the serious nature of the misconduct as we have briefly described it earlier in these reasons for decision, we are comfortably satisfied on the balance of probabilities that the respondent is guilty of professional misconduct, and we so find. Non-continuance of the inquiry 1. The following material represents the reasons for the presiding member in determining not to continue with the inquiry concerning the professional misconduct of the respondent. 2. Having regard to 1. the finding of professional misconduct which has been made, and which I understand would be brought to the attention of the relevant authority if the respondent sought reregistration in the future, 2. the fact that these reasons for decision will be published and will be available publicly to the community generally and to other medical practitioners specifically, 3. the fact that the respondent is now aged 75, is no longer practising as a medical practitioner and has professed in writing that he will not do so in the future, and, 4. the respondent has agreed to pay the costs of the complainant 1. I am satisfied that it is not in the public interest for the inquiry to continue and the proceedings may be dismissed accordingly without making any protective order. Orders 1. 1. the respondent is found guilty of professional misconduct. 2. 2.the respondent is to pay the costs of the complainant agreed in the sum of $2535.50 3. 3. the proceedings are otherwise dismissed ********** 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: 05 April 2017