Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Mercurio [2017] NSWCATOD 136 Hearing dates: 30 August 2017 Date of orders: 30 August 2017 Decision date: 12 September 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ, Principal Member Dr M Cox, Professional Member Dr H Wilson, Professional Member M Kelly, Community Member Decision: (1) The registration of the respondent is cancelled. (2) The respondent is to pay the costs of the complainant in the sum of $17677.40. Catchwords: Medical practitioner- refusal to terminate proceedings without enquiry- finding of professional misconduct consequent on admission by respondent-registration cancelled- costs order made Legislation Cited: Health Practitioner Regulation National Law Cases Cited: HCCC v Do [2014] NSWCA 307 HCCC v Torrinello [2015] NSWCATOD 90 HCCC v Khan [2014] NSWCATOD 83 HCCC v BQB [2014] NSWCATOD 157 HCCC v Sarfraz [2015] NSWCATOD Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Daniele Mercurio (Respondent) Representation: Counsel: P Lowson (Applicant) A Saxton solicitor (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2016/00378836 Publication restriction: Non-publication order of the name of any material which identifies or might tend to identify the name of any patient of the respondent. reasons for decision 1. In these proceedings, the complainant Health Care Complaints Commission (HCCC) has alleged that the respondent, Dr Daniele Mercurio 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 and practice as a cosmetic surgeon conducted by the respondent in a suburb of Sydney, New South Wales. We set out below the form of Complaint with omissions to ensure the anonymity of the patients of the respondent. The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Daniele Mercurio ("the practitioner") of (deleted) NSW being a medical practitioner registered under the National Law, COMPLAINT ONE A is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE A From 1987 until 1997, the practitioner practised as a general practitioner in the (deleted) area of Sydney, New South Wales. In 1998, the practitioner began training in Cosmetic Medicine and Surgery. In 2002, he was elected Fellow of the Australian College of Cosmetic Surgery. In 2006, the practitioner established the ABC Skin and Cosmetic Clinic in Sydney. In 2007, he ceased operative cosmetic work. PARTICULARS OF COMPLAINT ONE A 1. The practitioner, between 23 November 1998 and 5 August 2014, on the occasions set out in Schedule A, prescribed for Patient A drugs within the meaning of Schedule 8 of the NSW Poisons List, proclaimed under Section 8 of the Poisons and Therapeutic Goods Act 1966 ("the Poisons Act"; "the Schedule 8 drugs"), namely Oxycodone and Morphine: a. without conducting an appropriate assessment of the patient; b. without making appropriate referrals for specialist assistance; c. without an appropriate therapeutic purpose; d. in a quantity in excess of recognised clinical standards. 2. The practitioner, between 23 November 1998 and 5 August 2014 (excepting from 31 July 2002 to 31 July 2004), on the occasions set out in Schedule A, failed to comply with section 28(3) of the Poisons Act, by prescribing for Patient A Oxycodone, a Type C drug of addiction, within the meaning of the Poisons Act: a. when the practitioner knew or should have known that Patient C was a drug dependent person; and b. without the proper authority of the Director-General of the Department of Health (or Secretary of the Ministry of Health from 5 October 2011). COMPLAINT ONE B is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or section 139B(1)(l) of the National Law in that the practitioner: i. contravened a provision of the regulations under the National Law; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE B As for Complaint One A. PARTICULARS OF COMPLAINT ONE B 1. The practitioner, between 23 November 1998 and 31 August 2003, contravened Clause 13 and Schedule 2 of the Medical Practice Regulation 1998, in respect of his medical records for Patient A in that he failed to record: a. the results of any physical examination of the patient; b. the diagnosis made; c. the plans for management of the patient; d. the results of pain chart questionnaires; e. agreements made between the patient and doctor. 2. The practitioner, between 1 September 2003 and 31 August 2008, contravened Clause 5 and Schedule 2 of the Medical Practice Regulation 2003, in respect of his medical records for Patient A in that he failed to record: a. the results of any physical examination of the patient; b. the diagnosis made; c. the plans for management of the patient; d. the results of pain chart questionnaires; e. agreements made between the patient and doctor. 3. The practitioner, between 1 September 2008 and 30 June 2010, contravened Clause 4 and Schedule 1 of the Medical Practice Regulation 2008, in respect of his medical records for Patient A in that he failed to record: a. the results of any physical examination of the patient; b. the diagnosis made; c. the plans for management of the patient; d. the results of pain chart questionnaires; e. agreements made between the patient and doctor. 4. The practitioner, between 1 July 2010 and 4 August 2014, contravened Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010, in respect of his medical records for Patient A in that he failed to record: a. the results of any physical examination of the patient; b. the diagnosis made; c. the plans for management of the patient; d. the results of pain chart questionnaires; e. agreements made between the patient and doctor. COMPLAINT TWO A is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT TWO A As for Complaint One A. PARTICULARS OF COMPLAINT TWO A 1. The practitioner, between 28 April 2010 and 11 October 2013, on the occasions set out in Schedule B, prescribed for Patient B Testosterone, a drug within the meaning of Schedule 4 Appendix D of the NSW Poisons List, and Testosterone Undeconate: a. without conducting an appropriate initial assessment of the patient; b. without making appropriate referrals for specialist assistance; c. without an appropriate therapeutic purpose; d. without counselling the patient regarding the benefits and effects of the drugs, including in relation to their long term use; e. without conducting ongoing assessments of the patient's response to the drugs. 2. The practitioner, between 11 October 2013 and November 2014, supplied to Patient B, a prescribed restricted substance within the meaning of Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (a "prescribed restricted substance"), namely Somatropin (Human Growth Hormone): a. without conducting an appropriate initial assessment of the patient; b. without making appropriate referrals for specialist assistance; c. without an appropriate therapeutic purpose; d. without counselling the patient regarding the benefits and effects of the drug, including in relation to its long term use; e. without conducting ongoing assessments of the patient's response to the drug. 3. The practitioner, between 11 October 2013 and 11 November 2014, failed to record the name, strength and quantity of the prescribed restricted substance Somatropin (Human Growth Hormone) supplied to Patient B, and the date on which it was supplied, contrary to clause 56 of the Poisons and Therapeutic Goods Regulation 2008. COMPLAINT TWO B is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (l) of the National Law in that the practitioner has: i. contravened a provision of the regulations made under the National Law; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT TWO B As for Complaint One A. PARTICULARS OF COMPLAINT TWO B 1. The practitioner, between 28 April 2010 and 30 June 2010, contravened clause 4 and Schedule 1 of the Medical Practice Regulation 2008, in respect of his medical records for Patient B in that he failed to record: a. the results of any physical examination of the patient; b. the diagnosis made; c. the plans for management of the patient; d. the results of pain chart questionnaires; e. agreements made between the patient and doctor. 2. The practitioner, between 1 July 2010 and 11 October 2010, contravened clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010, in respect of his medical records for Patient B in that he failed to record: a. the results of any physical examination of the patient; b. the diagnosis made; c. the plans for management of the patient; d. the results of pain chart questionnaires; e. agreements made between the patient and doctor. COMPLAINT THREE A is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT THREE A As for Complaint One A. PARTICULARS OF COMPLAINT THREE A 1. The practitioner, between 14 May 2009 and 14 October 2010, on the occasions set out in Schedule C, prescribed for Patient C the Schedule 8 drugs Morphine and a drug within the meaning of Schedule 4 Appendix D of the NSW Poisons List ("a Schedule 4 Appendix D drug"), namely Diazepam: a. without conducting an appropriate initial assessment of the patient; b. without making any further enquiries to ascertain whether the patient had engaged in drug seeking behaviours, or "doctor shopping"; c. without making appropriate referrals for specialist assistance; d. without an appropriate therapeutic purpose; e. in a combination of narcotics and benzodiazepines contrary to recognised clinical standards. 2. The practitioner, between 14 May 2009 and 14 October 2010, on the occasions set out in Schedule C, failed to comply with section 28(3) of the Poisons Act, by prescribing for Patient C Morphine, a Type C drug of addiction, within the meaning of the Poisons Act: a. when the practitioner knew or should have known that Patient C was a drug dependent person; and b. without the proper authority of the Director-General of the Department of Health (or Secretary of the Ministry of Health from 5 October 2011). COMPLAINT THREE B is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (l) of the National Law in that the practitioner has: i. contravened a provision of the regulations made under the National Law; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT THREE B As for Complaint One A. PARTICULARS OF COMPLAINT THREE B 1. The practitioner, between 14 May 2009 and 30 June 2010, contravened Clause 4 and Schedule 1 of the Medical Practice Regulation 2008, in respect of his medical records for Patient C in that he failed to record: a. the results of any physical examination of the patient; b. the diagnosis made; c. the plans for management of the patient; d. the results of pain chart questionnaires; e. agreements made between the patient and doctor. 2. The practitioner, between 1 July 2010 and 14 October 2010, contravened Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010, in respect of his medical records for Patient C in that he failed to record: a. the results of any physical examination of the patient; b. the diagnosis made; c. the plans for management of the patient; d. the results of pain chart questionnaires; e. agreements made between the patient and doctor. COMPLAINT FOUR A is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT FOUR A As for Complaint One A. PARTICULARS OF COMPLAINT FOUR A 1. The practitioner, between 14 October 2008 and 16 November 2010, on the occasions set out in Schedule D, prescribed for Patient D the Schedule 8 drug Morphine, and the Schedule 4 Appendix D drug Diazepam: a. without conducting an appropriate assessment of the patient; b. without making any further enquiries to ascertain whether the patients had engaged in drug seeking behaviours, or "doctor shopping"; c. without making appropriate referrals for specialist assistance; d. without an appropriate therapeutic purpose; e. in a combination of narcotics and benzodiazepines contrary to recognised clinical standards. 2. The practitioner, between 5 June 2013 and 26 November 2013, on the occasions set out in Schedule D, failed to comply with section 28(3) of the Poisons Act by prescribing for Patient D Morphine, a Type C drug of addiction, within the meaning of the Poisons Act: a. when the practitioner knew or should have known that Patient D was a drug dependent person; and without the proper authority of the Director-General of the Department of Health (or the Secretary of the Ministry of Health from 5 October 2011). COMPLAINT FOUR B is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (l) of the National Law in that the practitioner has: i. contravened a provision of the regulations made under the National Law; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT FOUR B As for Complaint One A. PARTICULAR OF COMPLAINT FOUR B 1. The practitioner, between 5 June 2013 and 26 November 2013, contravened Clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010, in respect of his medical records for Patient D in that he failed to record: a. the results of any physical examination of the patient; b. the diagnosis made; c. the plans for management of the patient; d. the results of pain chart questionnaires; e. agreements made between the patient and doctor. COMPLAINT FIVE is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT FIVE As for Complaint One A. PARTICULAR OF COMPLAINT FIVE 1. The practitioner, between 2 July 2010 and 28 April 2015, on the occasions set out in Schedule E, provided treatment for himself including that he self-prescribed medications, contrary to guidelines issued by: a. the Medical Board of Australia (specifically sections 9.2.1 and 9.2.2 of Good Medical Practice: A Code of Conduct for Doctors in Australia, dated July 2010 and March 2014); and b. the Medical Council of New South Wales (as contained in Guideline for self-treatment and treating relatives, dated 4 October 2011 and 2 December 2014). COMPLAINT SIX is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or ii. engaged in 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. BACKGROUND TO COMPLAINT SIX As for Complaint One A. PARTICULARS OF COMPLAINT SIX 1. The following particulars are repeated and relied upon individually: a. particular 1 and/or 2 of Complaints One A; b. particulars 1 – 4 of Complaint One B are repeated and relied upon in combination; c. particular 1 and/or 2 of Complaints Two A; d. particular 1 and/or 2 of Complaint Three A; e. particular 1 and/or 2 of Complaint Four A; f. particular 1 of Complaint Five. 2. Any combination of two or more of the particulars relied upon individually in particular 1 above are relied upon in combination. 3. Complaints One A, One B, Two A, Two B, Three A, Three B, Four A, Four B, and Five and the particulars thereof are repeated and relied upon cumulatively. COMPLAINT SEVEN has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practice the profession of medicine. BACKGROUND TO COMPLAINT SEVEN In 2001, the practitioner was diagnosed with Parkinson's disease. On 18 February 2015 proceedings under section 150 of the National Law were held in relation to complaints concerning the practitioner's conduct in relation to the prescribing of medication. On 10 June 2015, the practitioner attended upon a Council Appointed Psychologist for neuropsychological testing, pursuant to a direction by the Council under section 152B of the National Law. On 30 June 2015, the practitioner attended upon a Council Appointed Neurologist for assessment, pursuant to a direction by the Council under section 152B of the National Law. On 22 July 2015, the Council held proceedings under section 150C of the National Law, resulting in the suspension of the practitioner's registration. PARTICULAR OF COMPLAINT SEVEN 1. The practitioner suffers from multiple domain Mild Cognitive Impairment, characterised by cognitive, fine motor and expressive language problems. COMPLAINT EIGHT is not competent to practice medicine, within the meaning of section 139 of the National Law in that he lacks: (a) the mental or physical capacity to practice as a medical practitioner; (b) sufficient communication skills for the practice of medicine. BACKGROUND TO COMPLAINT EIGHT As for Complaint Seven. PARTICULAR OF COMPLAINT EIGHT 1. The particular of Complaint Seven is repeated and relied upon. 1. It will be seen that the several complaints and the particulars thereof assert misconduct of a most serious kind. Application to not conduct an inquiry 1. Up to the time of the commencement of the hearing on 30 August 2017 the respondent maintained that he was not guilty of professional misconduct and denied that the factual circumstances sought to be alleged against him constituted misconduct. When the hearing commenced an application was made that the Tribunal refrain from continuing with the enquiry into the Complaint, such application being 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 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 first day set aside. 2. At the conclusion of the discrete hearing of this application I determined to dismiss the application. The reasons which follow are my reasons for having done so. 3. 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. 4. The respondent is aged 61. He has suffered for many years from Parkinson's disease. Unfortunately, it has now advanced to a stage where he is unable to practise medicine. A report from Associate Professor Geoffrey Herkes, a consultant neurologist dated 30 May 2017 indicates that the respondent's current symptoms include a tremor and soft voice and that "his disability in my opinion … would preclude him returning to work on medical grounds." There is additional supporting medical opinion. 5. The respondent wrote to AHPRA on 26 May 2017 indicating that he wished to retire and surrender his registration as a medical practitioner "effective immediately." However, before this could be undertaken, it was necessary for the respondent's status to be altered from suspended to "non-practising". This occurred on 4 August 2017, but as at the date of the hearing before the Tribunal cancellation of the respondent's registration had not been effected by AHPRA. 6. In addition to undertaking to do everything necessary to effect the cancellation of his registration, the respondent, through his solicitor, undertook that he would not reapply in the future for registration. 7. The respondent gave oral evidence in support of his application that no enquiry be conducted. It was clear from the manner in which the respondent walked to and from the witness box and from his very soft voice, requiring amplification to be heard, that he suffers from marked physical disabilities which supports his contention that he is not physically able to practise medicine. 8. During the course of his evidence the respondent stated that he made no admissions that he was guilty of any misconduct as alleged in the several matters contained in the Complaint document. 9. It was submitted on behalf of the respondent that given his current ill health and his stated intention not to practise in the future that the Tribunal could be comfortably satisfied that he did not in any sense pose any risk for the protection of the public. 10. The complainant resisted the respondent's application. In doing so the complainant emphasised the nature and extent of the misconduct alleged against the respondent. For example, it was said that complaint 1A alleged an inappropriate prescription of drugs of addiction on 352 occasions over about 15 years "without conducting appropriate assessments, without making appropriate referrals, without an appropriate therapeutic purpose and in a quantity in excess of recognised clinical standards and without the proper authority for oxycodone……..". Complaints of a similar nature were made with respect to 3 other patients. There were also complaints alleging poor record keeping, and the self- prescribing of certain medication. 11. Furthermore, the complainant emphasised that the seriousness of the conduct alleged against the respondent needed to be addressed by the fact that he had not made any admissions, nor had he demonstrated any insight or shown any remorse. No doubt this state of affairs was brought about by the denial of misconduct which the respondent had always, to this stage of the proceedings, maintained. It was submitted that where the respondent makes an application to terminate the enquiry but makes no admissions involving allegations of a serious kind, the balancing of the various elements of public interest favoured the rejection of the application. 12. There are a number of decisions of members of this Tribunal dealing with applications made under clause 12 of Schedule 5D of the Act. The effect of some of these decisions has been to not conduct or terminate an enquiry, and others have been to contrary effect. In some cases, the health practitioner has conceded misconduct, and in others has denied such conduct. In some cases, the allegations against the practitioner have been of a most serious kind, and others of lesser significance. In some cases, the practitioner has been found to be suffering from an underlying condition which would preclude him or her from ever practising medicine again, and the physical or mental condition of others has been affected by age. Each case must be considered having regard to its own facts, and this may account for the diversity of results. I do not consider that it is necessary or appropriate to seek to analyse each of the decisions, but I will refer to the elements constituting public interest discussed in them. 13. In order to properly consider the public interest in this enquiry and, in particular, the public interest in the continuity of the enquiry which the Tribunal is conducting, it is necessary to have regard to the context in which the inquiry is to take place, namely that provided by the Act. An appropriate place to start a consideration of this matter is the objects of the Act which are to be found in section 3 and 3A. They are in the following terms; 3 OBJECTIVES AND GUIDING PRINCIPLES (1) The object of this Law is to establish a national registration and accreditation scheme for- (a) the regulation of health practitioners; and (b) the registration of students undertaking- (i) programs of study that provide a qualification for registration in a health profession; or (ii) clinical training in a health profession. (2) The objectives of the national registration and accreditation scheme are- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and (b) to facilitate workforce mobility across Australia by reducing the administrative burden for health practitioners wishing to move between participating jurisdictions or to practise in more than one participating jurisdiction; and (c) to facilitate the provision of high quality education and training of health practitioners; and (d) to facilitate the rigorous and responsive assessment of overseas-trained health practitioners; and (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners. (3) (not reproduced) 3A OBJECTIVE AND GUIDING PRINCIPLE [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. As is clear, the paramount consideration which must inform the work of this Tribunal in the consideration of these proceedings is the protection of the health and safety of the public. This leads to a consideration of the jurisdiction and powers of this Tribunal in terms of the protective orders which may be made consequent upon a finding of misconduct under the Act. As will be seen, the Act describes both "unsatisfactory professional conduct" (section 139B) and "professional misconduct" (section 139E). It is this latter form of misconduct which justifies an order for cancellation or suspension of registration of a health practitioner. It is well-established by authority that any such order is protective in nature, although it may have a consequential punitive effect on the practitioner by, for example, depriving him or her of the ability to earn a livelihood from the practice of the profession. 2. In determining whether cancellation or 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. This must constitute a significant public interest having regard to the objects of the Act. 2. 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 alleged against the respondent is of a most serious kind, especially in the circumstances of these proceedings involving 4 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 not conducting an enquiry. This is another public interest element. 3. Other elements of public interest identified in decisions of the Tribunal include; 1. the expense likely to be incurred, the demands on the resources of the Tribunal and the delay occasioned if an enquiry proceeded (see HCCC v Torrinello [2015] NSWCATOD 90, HCCC v Khan [2014] NSWCATOD 83) 2. the health practitioner has voluntarily surrendered registration and undertaken on oath not to seek reregistration (see HCCC v BQB [2014] NSWCATOD 157, HCCC v Sarfraz [2015] NSWCATOD 75) 3. the determination by the HCCC with the agreement of the Medical Council of NSW not to proceed with the prosecution of the complaints (Sarfraz previously cited) 4. the likelihood that in the event of a successful prosecution of the complaint the HCCC would be unable to recover costs because of the impecunious circumstances of the practitioner as one element of other relevant matters (BQB previously cited) 5. the fact that the practitioner suffers from a serious illness which would preclude him or her engaging in further practice (BQB previously cited, Sarfraz previously cited) together with a consideration of the age of the practitioner 1. I should also point out that when these proceedings commenced the complainant was under the impression that they were to be defended and had prepared for a hearing extending over two days if this was necessary, as had been fixed by the Tribunal for many months. Three volumes of extensive material had been prepared and were available for the hearing. None of the persons whose statements were included in the materials, including an expert who have been retained by the HCCC had been required for cross examination on their statements. Accordingly, the HCCC had already incurred its costs up to and including at least the first day of hearing and was ready to proceed. Furthermore, the Tribunal was fully constituted and all of its members were present in anticipation of the substantive hearing commencing. In these circumstances, the resources of the Tribunal had already been expended. Consideration 1. The determination of this matter involves, as I have previously indicated, the application of the provisions of clause 12 of Schedule 5D which I have previously set out. An immediate difficulty which confronted the respondent was that the only ground upon which he could rely was (1) (a) (ii). As at the date of the hearing the registration of the respondent as recorded by AHPRA was that he was registered as a non-practising practitioner. As I previously indicated, urgent representations have been made to AHPRA to cancel the registration of the respondent but, apparently due to the absence of a person charged with this task, this had not occurred prior to the hearing, but was expected to be undertaken very shortly. I indicated that if I was persuaded to exercise the discretion in favour of the application made by the respondent I might be prepared to defer making a decision until after the respondent's registration had been cancelled by AHPRA on the basis that this was imminent. However, for reasons on which I shall shortly elaborate I was not otherwise prepared to exercise discretion in his favour. 2. In my opinion the most significant public interest elements which apply in these proceedings are the deterrent effect that any finding of professional misconduct will have on other health practitioners, the seriousness of the several complaints and the particulars thereof alleged against the respondent coupled with his denial of them and the necessity to maintain public confidence in the integrity of the profession. All of these matters are significant, and with respect to the last of them, it is important that this Tribunal not be seen to allow a health practitioner to avoid confronting allegations of serious misconduct unless there is a significant reason for doing so. In my opinion, in the circumstances of these proceedings, these matters outweigh the undoubted sympathy to be extended to the respondent by reason of his medical condition and his consequent inability to practise medicine. 3. Furthermore, for the reasons which I have earlier outlined there can be no question of any saving in costs or the resources of the Tribunal, because they had already been incurred. 4. For these reasons, I determined to dismiss the application brought by the respondent, because I was unable to form the opinion required by clause 12 (1) (b). The further course of the proceedings 1. After the presiding member announced the dismissal of the respondent's application under clause 12, the Tribunal constituted by all members proceeded with the substantive hearing. The complainant tendered the three volumes of material into evidence and closed its case. The respondent did not adduce any evidence. We then commenced hearing submissions from counsel for the complainant. 2. During the course of her submissions counsel commenced taking us to each of the several complaints and particulars thereof and to some of the supporting evidence. This included a report from the Pharmaceutical Services Unit, an expert report of Dr Emery Kertesz and patient records. We also had access to the evidence relating to the complaint based on an allegation of impairment. 3. After the luncheon adjournment Mr Saxton, solicitor for the respondent announced that the respondent was prepared to admit all of the complaints brought against him and that in the aggregate that he was guilty of professional misconduct. He subsequently signed a statement to that effect pursuant to the provisions of section 165E which was produced to us. It was submitted on behalf of the respondent that we could then finalise the proceedings by finding that the complaints were proven and that the respondent was guilty of professional misconduct. 4. Section 165E is 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. 1. The respondent then renewed the application under clause 12 on the basis that that once the Tribunal had found the respondent guilty of professional misconduct, in all the circumstances it was unnecessary to continue with the enquiry and make any order affecting the registration of the respondent because it would shortly be cancelled in any event and he had undertaken not to apply for reregistration. 2. During the course of the proceedings, the Tribunal constituted by all of us found that on the basis of the evidentiary material which had been adduced thus far in the proceedings and on the basis of the written admission under section 165H, we were comfortably satisfied that each of the complaints and grounds had been established and that in the aggregate the respondent was guilty of professional misconduct as defined in section 139E of the Act. 3. For completeness, we set out section 139E 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. 1. In so finding, we took into account the expert opinion of Dr Kertesz concerning the matters referred to in section 139B(1)(a). We add for completeness that we were entitled to so find following the written admissions of the Respondent by reason of section 149 of the Act. 2. We also took into account other provisions of the Act which apply to so much of the Complaint which relates to impairment and the medical condition of the respondent. It will be seen that by the combined operation of sections 144 and 149C of the Act that there is power to complain about and cancel registration for an impairment. 144 GROUNDS FOR COMPLAINT ABOUT REGISTERED HEALTH PRACTITIONER [NSW] The following complaints may be made about a registered health practitioner- (d) A complaint the practitioner has an impairment. 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 1. It is not controversial that an impairment will constitute lack of competence as that word is defined in section 139 of the Act. 2. It then became necessary for the presiding member to determine the fresh application under clause 12. What follows are my reasons for refusing this second application. I have previously set out a discussion of the various elements which go to a consideration of the public interest. In my view, the public interest in declining the application is even more important in circumstances where professional misconduct has been established. Furthermore, the respondent still faced the question of registration previously referred to. Once the previous application had been declined, it followed logically that this further application should be declined. 3. The Tribunal as fully constituted then considered the appropriate protective order. The respondent primarily sought that no protective order be made, but in all the circumstances we declined to entertain this result given the nature and extent of the seriousness of the misconduct found against him. This is particularly so given the failure of the respondent, at least until after the luncheon adjournment to exhibit any insight, contrition or remorse. The complainant sought cancellation of the respondent registration and that a period of between three and five years be imposed before permitting him to reapply to become registered. 4. Whilst we had no difficulty in concluding that the appropriate protective order was in all the circumstances one of cancellation of registration, we were not persuaded that it was necessary to fix any period within which the respondent would be precluded from applying for reregistration. The respondent is, unfortunately, seriously impaired by his underlying condition with no hope of improvement and would face serious practical difficulties in securing registration. Furthermore, the finding of professional misconduct would also create a relevant impediment to reregistration. These are the reasons for us so finding. 5. The complainant sought a costs order in its favour. The respondent agreed to pay the complainant's costs in the sum of $17,677.40 and submitted to an order to that effect. Orders Consequent upon the finding of professional misconduct which we made we made the following orders on 30 August 2017 1. the registration of the respondent is cancelled as of 30 August 2017 2. the respondent is to pay the costs of the complainant in the amount of $17,677.40 ********** 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: 12 September 2017