Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Simonson (No. 2) [2017] NSWCATOD 103 Hearing dates: 22 June 2017 Date of orders: 29 June 2017 Decision date: 29 June 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr K Edwards, Professional Member Dr K Keenan, Professional Member J Houen, Community Member Decision: (1) The registration of the respondent is suspended pursuant to section 149C(1) of the Health Practitioner Regulation National Law for a period of three months with effect one month from this date. (2) Immediately following the expiry of the period of the suspension of the respondent the following conditions shall take effect. (3) Not to work in a hospital setting in any capacity. (4) To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. (5) To submit to an audit of his medical practice by a person or persons nominated by the Medical Council of NSW to be held within 6 months from this date. (6) To submit to any further audit of his medical practice required by the Medical Council as a result of any matter arising in the course of or out of a previous audit. (7) The person or persons conducting the audit are to examine and assess the following matters, namely; (i) history taking (ii) physical examinations (iii) management plans (iv) the respondent's obstetrics/shared care practice including management of high-risk obstetric patients (v) appropriate referral of children to specialists and hospitals (vi) discussions with patients about end-of-life decisions (vii) compliance with good medical record keeping standards and legislative requirements (viii) compliance with these practice conditions (8) The conditions imposed on the respondent's registration may be altered, varied or removed by the Medical Council and in the event that the practitioner resides in NSW that Council shall be the appropriate review body for the purposes of Division 8, Part 8 of the Health Practitioner Regulation National Law. (9) To nominate a registered experienced medical practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with its Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body and to meet for a period of not less than one hour with the person approved as a mentor once during the course of every month. To commence within one-month from the date of the lifting of the suspension and to continue for a period of 12 months thereafter. (a) the mentor must be a person with whom the respondent does not currently have a personal relationship. (b) at each meeting the respondent is to include within his discussions with the mentor a discussion of the following matters namely. (i) the findings and observations of this Tribunal in these proceedings concerning the matters which were found to constitute professional misconduct. (ii) the management of any challenging or complex cases. (iii) the respondent's record keeping. (iv) the reflections of the respondent on the nature and state of his practice with particular emphasis on how he has responded to patient concerns and his management of any cases with adverse outcomes. (c) each meeting must be conducted face-to-face either in person or by means of an audiovisual link. (10) The respondent is to pay 90% of the costs of the complainant in an amount assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 in default of agreement. Catchwords: Medical practitioner found guilty of professional misconduct-appropriate protection order-held suspension of registration coupled with practice conditions appropriate-costs order made Legislation Cited: Health Practitioner Regulation National Law Cases Cited: Health Care Complaints Commission v Simonson [2017] NSWCATOD 87 HCCC v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Frank David Simonson (Respondent) Representation: Counsel: R Mathur (Applicant) S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) TressCox (Respondent) File Number(s): 2016/00378821 Publication restriction: Non-publication order with respect to the name of any patient of the respondent or with respect to any matter which might identify or tend to identify the name of any patient of the respondent which patient is the subject of these proceedings. reasons for decision Introduction 1. In a Decision, Health Care Complaints Commission v Simonson [2017] NSWCATOD 87 we found the respondent guilty of professional misconduct. The respondent carried on practice as a general practitioner in a south coast area of New South Wales. Concurrently he held a Visiting Medical Officer position with a local hospital through which he afforded treatment to his patients and others who were admitted as patients to the hospital. The misconduct of the respondent as found by us related to 5 patients who came under his care at the hospital. The details of the misconduct as found by us are set out in the earlier decision. For present purposes, it is sufficient to note that not all of the complaints brought against the respondent were found by us to have been established. Some of those which were established were held not to constitute unsatisfactory professional conduct, and others were so held and in the aggregate we determined that they constituted professional misconduct. Some of the misconduct related to a failure to record various matters in the hospital notes. Significantly, we found that the respondent had not acted appropriately whilst one of his patients was giving birth, and in his failure to arrange for a young patient to be transferred to an acute hospital facility in a timely fashion. By way of brief summary, the misconduct traversed the management and treatment of patients as well as the documentation of various matters. 2. Having found that the respondent was guilty of professional misconduct, it then becomes necessary for us to consider what protective orders should appropriately be made in all the circumstances. Protective Orders 1. The power to make protective orders consequent upon a finding of professional misconduct is set out in section 149 C of the Health Practitioner Regulation National law, the relevant parts of which are as follows; 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. The relevant principles which inform the matters to be taken into account in making protective orders are conveniently set out 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. It is well-established that although the principal concern is one of protection of the public, it is recognised that the imposition of protective orders may, consequentially, have a punitive effect. The Evidentiary Material 1. The respondent relied upon a statement which he had filed in the proceedings together with a number of supporting references. 2. The respondent was born on 25 October 1952. He was first registered as a medical practitioner in New South Wales on 19 December 1986. He has held a number of positions within various medical entities in the area covered by the Southern Area Health Service. He holds a number of postgraduate awards and diplomas. Practice conditions were imposed on his registration on 7 December 1995 following findings of unsatisfactory professional conduct by a Professional Standards Committee arising out of the administration and prescription of certain drugs of addiction. Those conditions were removed on 29 September 2006. Further conditions were imposed from 8 August 2014 as a result of the circumstances which gave rise to these proceedings. 3. We now deal with the references tendered on the respondent's behalf. We should point out that although each of the referees was given a copy of the Notice of Complaint, they were advised that the respondent denied "most of the particulars" therein contained. Each of the references predate our decision, so none of the referees is aware of our findings. On this basis, each of these references must have limited relevance. 4. A reference was provided by Dr Barry Stevens who also practised as a general practitioner in the local area and who, together with his wife, became a patient of the respondent. The respondent was described as a very caring, skilful doctor with impressive qualifications, a good work ethic, thorough and sensitive in his handling of patients. He does not indicate that he had read the Notice of Complaint. 5. Craig Howker was a paramedic at the local ambulance station and came into contact on many occasions with the respondent. He attested to the respondent's compassion and attention to the needs of his patients and to the high level of clinical care afforded to them by the respondent. He and his wife became patients of the respondent. He described the respondent as demonstrating "a high level of integrity, professionalism and responsibility in every aspect of his professional and personal life." Mr Howker had read the Notice of Complaint. 6. Dr Alex Mitchell worked part-time in the practice of the respondent for seven years. He described the respondent as being a caring and considerate doctor who was very experienced in emergency medicine and who was well respected by his peers. He considered the respondent "a credit to the profession." He had read the Notice of Complaint. 7. Dr Geoffrey Thomas was a general practitioner who provided services as an anaesthetist for nearly 20 years at the local hospital when the respondent performed surgical work. He attested to the respondent's surgical skills and, having attended the respondent as a patient, his general clinical competence. He thought that the behaviour described in the Notice of Complaint was "completely out of character" with his observations of the respondent. 8. Dr Robert Morton worked closely with the respondent at the local hospital over "many years." He provided medical services and as an anaesthetist became the respondent's supervisor from October 2014 to August 2015. He described the respondent as exhibiting patient centred care, and was skilled especially in caring for the terminally ill. He described the respondent's practice of medicine as "sound." He had read the Notice of Complaint. 9. Sandra Toussaint had worked with the respondent at the local hospital for over 20 years as a Senior Registered nurse. She described him as caring, kind and compassionate, excelled when working with emergency cases and was "extremely understanding" of drug and alcohol patients. She thought that the respondent might have suffered because of controversy caused by his efforts to retain the local hospital "as a fully functioning hospital." 10. Petrina Pickup worked with the respondent as a registered nurse at the local hospital for eight years and attested to his caring and compassionate nature and his skills in dealing with emergencies. He is her general practitioner. 11. Geoffrey Harling worked for about nine years with the respondent when he became an intensive care paramedic in the local ambulance service. He had a good working relationship with the respondent and attested to his skills in caring for emergency patients. He is a patient of the respondent. 12. Christina Beresford worked as a midwife in the local area including the local hospital. She came into contact with the respondent and his patients on occasions and regarded him as being thorough, knowledgeable and extremely caring. 13. Chris Branson is an intensive care paramedic with the local ambulance service and has known the respondent since October 2007, having worked with him, and as a patient of the respondent. He attested to the respondent's skills in dealing with emergency cases and as being caring and attentive to the needs of his patients. He also attested to his clear clinical documentation. The Submissions of the Parties 1. Counsel for the complainant emphasised the seriousness of the misconduct found against the respondent particularly with respect to patients C and E. When dealing with the circumstances of patient C we observed, at [80], that we did not accept the evidence of the respondent about what occurred during the course of the delivery of the baby because it conflicted with the evidence of all other persons whose statements were available to us. Furthermore, at [82] we commented that certain aspects of the evidence of the respondent "clearly bears all of the hallmarks of recent invention and provides another instance where the recollection of the respondent cannot be accepted." We agree with the submission made on behalf of the complainant that these matters demonstrate a lack of insight by the respondent into his behaviour because he endeavoured to persist in asserting that his version of events was correct in the face of the overwhelming evidence to the contrary. 2. The respondent did not proffer any additional evidence following the delivery of our reasons for decision on 1 June 2017. He has not provided any acknowledgement that findings adverse to his interests have been made and has thereby not provided any evidence at all that he possesses any insight into the deficiencies which have constituted the misconduct found against him and, obviously, has not expressed any contrition or remorse for what occurred. The same approach applies to the findings which we have made with respect to the respondent's management of patient E in delaying referring her for specialist investigative examination. 3. The complainant emphasised that the element of specific deterrence was rendered more significant by reason of the lack of insight demonstrated by the respondent and his failure to express any contrition or remorse. We shall return to this aspect later. 4. The complainant sought suspension of the registration of the respondent for a period of three months together with the imposition of certain practice conditions. 5. The submissions of the respondent emphasised that many of the particulars of misconduct found proven against him were not, essentially, of a serious nature. Whilst those matters which relate to the failure to make proper records might be seen to be of a lesser significance, we do not consider the circumstances which attended to patient C should be seen in the same light. The expert evidence is to the effect that the respondent, having been clearly asked to take over the care of the delivery of the baby (despite his denial that he was so asked), should have done so or should have deferred to the specialist obstetrician who was then present. Whilst we acknowledge that the circumstances which applied to patient E were most difficult, the fact that it was difficult to make a diagnosis coupled with the belief by the respondent that the patient might require surgical investigation required that he have the patient transferred at an earlier stage that he did. In their totality, we regard the findings of misconduct as indicating serious professional misconduct, and we reject this submission. 6. The respondent also submitted that all of the misconduct found proven occurred in a hospital setting and that he was unlikely to transgress again because he had lost his VMO position at the local hospital and would henceforth practice only within his private general practice where he has encountered no such difficulties. We do not accept this submission. Firstly, aspects of the misconduct concerned the medical treatment afforded by the respondent to patients, and there is no reason why the skills which he failed to exercise would not also apply within private general practice. Furthermore, it was the evidence of the respondent during the course of the initial hearing that he made many of the clinical notes on his own system which he used as part of his general practice. To this extent his failure to record significant matters might arguably reflect a more generalised failure not confined to the hospital system. 7. We also reject the submission of the respondent that suspension is not justified for reasons which we shall shortly elaborate. 8. The remainder of the submissions of the parties concentrated on the practice conditions which should be imposed consequent upon the expiry of a period of suspension, which we indicated to the parties we intended to make. We had the opportunity of engaging with the parties concerning the nature and extent of these conditions and the parties have reached agreement with the practice conditions which we intend to apply. 9. The parties also made competing submissions concerning the question of costs. Again, they were able to reach sensible agreement about this issue and it is not necessary that we deal with it further. Consideration 1. As is obvious from the discussion above, we have grave concerns that the respondent has not expressed any insight into his misconduct. A failure to express contrition and remorse is a by-product of his inability to recognise the nature and extent of the misconduct found against him. Whether this failure results from a general lack of understanding, an uncaring attitude, or even arrogance, or a combination of two or more of these, we do not know. Whatever the cause, we agree with the complainant that this failure demands that an appropriate protective measure be taken. If the misconduct had been more serious it may have been necessary to have considered cancellation of registration. However, in the circumstances, we consider that a period of suspension will give the respondent an opportunity to reflect on his behaviour, on the findings that we have made about his behaviour and, hopefully, on measures that he might take to avoid engaging in misconduct of this kind in the future. 2. We agree that a period of three months suspension is appropriate having regard to the fact that, apart from the difficulties encountered by the respondent in the administration and prescription of certain drugs of addiction, the respondent has conducted a general practice for many years in circumstances which have attracted praise from a number of fellow medical practitioners and paramedics some of whom have become patients of the respondent. This is especially so when coupled with the practice conditions which we intend imposing. One of these will require the respondent to engage with a mentor for a period of 12 months. 3. We are hopeful that a period of suspension will also create a sufficient personal deterrent to the respondent from engaging in misconduct in the future. A protective order of this nature will also provide a deterrent to other medical practitioners, and will take into account the necessity to uphold the integrity and reputation of the medical profession in the eyes of the public. 4. It is not necessary that we discuss in any detail the remaining orders which we shall make. It is sufficient to note that they are, in our opinion, appropriate to be made in all the circumstances, including the costs order. Orders We make the following orders; 1. The registration of the respondent is suspended pursuant to section 149C(1) of the Health Practitioner Regulation National Law for a period of three months with effect one month from this date. 2. Immediately following the expiry of the period of the suspension of the respondent the following conditions shall take effect. 3. Not to work in a hospital setting in any capacity. 4. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 5. To submit to an audit of his medical practice by a person or persons nominated by the Medical Council of NSW to be held within 6 months from this date. 6. To submit to any further audit of his medical practice required by the Medical Council as a result of any matter arising in the course of or out of a previous audit. 7. The person or persons conducting the audit are to examine and assess the following matters, namely; 1. history taking 2. physical examinations 3. management plans 4. the respondent's obstetrics/shared care practice including management of high-risk obstetric patients 5. appropriate referral of children to specialists and hospitals 6. discussions with patients about end-of-life decisions 7. compliance with good medical record keeping standards and legislative requirements 8. compliance with these practice conditions 1. The conditions imposed on the respondent's registration may be altered, varied or removed by the Medical Council and in the event that the practitioner resides in NSW that Council shall be the appropriate review body for the purposes of Division 8, Part 8 of the Health Practitioner Regulation National Law. 2. To nominate a registered experienced medical practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with its Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body and to meet for a period of not less than one hour with the person approved as a mentor once during the course of every month. To commence within one-month from the date of the lifting of the suspension and to continue for a period of 12 months thereafter. 1. the mentor must be a person with whom the respondent does not currently have a personal relationship. 2. at each meeting the respondent is to include within his discussions with the mentor a discussion of the following matters namely. 1. the findings and observations of this Tribunal in these proceedings concerning the matters which were found to constitute professional misconduct. 2. the management of any challenging or complex cases. 3. the respondent's record keeping. 4. the reflections of the respondent on the nature and state of his practice with particular emphasis on how he has responded to patient concerns and his management of any cases with adverse outcomes. 1. each meeting must be conducted face-to-face either in person or by means of an audiovisual link 1. The respondent is to pay 90% of the costs of the complainant in an amount assessed on the basis set out in the legal costs legislation as defined in section 3A of the Legal Profession Uniform Law Application Act 2014 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: 29 June 2017