Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Brennan (No. 2) [2018] NSWCATOD 51 Hearing dates: 12 December 2017 (on the papers) Date of orders: 11 April 2018 Decision date: 11 April 2018 Jurisdiction: Occupational Division Before: The Hon G Mullane ADCJ, Principal Member Dr L Cotterell, Senior Member Dr I Symington, Senior Member J Houen, General Member Decision: Orders of 12 December 2017 1. The respondent's application for further time for submissions is refused. 2. The registration of the respondent medical practitioner is cancelled. 3. The respondent is not able to apply for review of this cancellation until after 14 July 2018. 4. If the respondent intends to make such an application the Tribunal recommends that he undertake a course in medical ethics with particular emphasis on professional boundaries. Order of 11 April 2018 1. The respondent practitioner must pay the applicant's costs of or incidental to the proceedings as agreed or as assessed. Catchwords: PROFESSIONS AND TRADES –– Medical Practitioner –– Disciplinary Proceedings –– Professional Misconduct –– Stage 2 –– Consequent Orders and Costs Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Keith Ian Brennan (Respondent) Representation: Counsel: Nil Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2016/00378628 Publication restriction: Publication or broadcast without the leave of the Tribunal of the name or other identifying information of any child or patient of the practitioner mentioned in these reasons is prohibited. REASONS FOR DECISION Introduction 1. The Stage 1 hearing in these proceedings concluded on 23 September 2016 and the decision was made on 17 May 2017. The orders made comprise: 1. The practitioner Keith Ian Brennan is guilty of professional misconduct; 2. The proceedings are to be listed for a further one day of hearing to determine the outcomes of the proceedings on a date to be fixed by the Registrar; 3. The Health Care Complaints Commission must file and serve any further documents upon which it seeks to rely within 28 days; 4. The respondent practitioner is to file and serve any further documents on which he seeks to rely within 28 days after he is served with the documents from the Commission; and 5. Publication or broadcast without the leave of the Tribunal of the name or other identifying information of any child or any patient of the practitioner is prohibited. 1. On 19 May 2017, 2 days after the Stage 1 decision, the practitioner offered to the Medical Council to consent to cancellation of his registration. On 14 July 2017 his registration was suspended by an order made by the Tribunal by consent of both parties. 2. The Health Care Complaints Commission filed its Stage 2 submissions on 17 November 2017 and presumably served a copy on the respondent practitioner on or about that date. The submission comprised submissions as to the disciplinary orders to be made and also submissions in support of an order for the respondent practitioner to pay the applicant's costs of the proceedings. The Findings as to Professional Misconduct 1. The findings in the reasons of 21 April 2017 were of 12 incidents where the practitioner breached professional boundaries by pursuing an intimate relationship with Patient A. They were serious breaches and included occasions of incidents of sexual assault. 2. The Tribunal concluded that because of the serious nature of the instances of unsatisfactory professional conduct and an instance of providing a false and misleading response to the Health Care Complaints Commission, the instances of unsatisfactory professional conduct taken together amounted to conduct of a sufficiently serious nature in terms of protection of the public to justify the suspension or cancellation of the practitioner's registration and therefore constituted professional misconduct. The Practitioner's Statement 1. The practitioner relied upon a statement dated 1 September 2016 in these Stage 2 proceedings. The Practitioner's Background 1. The findings of the Tribunal in par 10 of the Stage 1 reasons have been taken into account in this Stage 2 decision. The practitioner's career in the 28 years from 1983 to 2011 was admirable. The evidence discloses no adverse matters in that period. It discloses considerable dedication in the period since he graduated in medicine in 2002 to maintaining and enhancing his skills as a medical practitioner and to providing his patients with an excellent service. 2. The evidence also discloses that he has been very generous to his patients in terms of his time, his concern for them and at times even by way of financial assistance. There is also evidence that he has performed other services to the community. He still serves with the rank of captain in the Army Reserve of which he has been a member since he was 17. He has been a medical officer in the ADF and served for three months in Iraq in 2005 and on two occasions in 2005 and 2007 in East Timor and on one occasion in 2008 in the Solomon Islands. He is active in the Veterans' Movement. 3. While at high school he became an honorary ambulance officer and then joined the Ambulance Service when he finished high school. He was in the Ambulance Service in 1983/1984. He then served with the NSW Police as a police officer in 1984–2000. He has suffered from Post-Traumatic Stress Syndrome from an incident when he was a police officer in about 1997 when he was driving a police vehicle in pursuit of a stolen motor vehicle. The vehicle being pursued crashed on the Sydney Newcastle Freeway and three of the occupants were ejected and died at the scene. The symptoms of Post-Traumatic Stress Syndrome started to appear at a later date and he first attended on a psychiatrist to address this around 1999. He subsequently underwent treatment, medication and Cognitive Behaviour Therapy for about two years. 4. The interests and services that he has undertaken as a medical practitioner are quite diverse and have involved considerable additional training. They include: 1. Training for insertion and removal of Mirena and Implanon contraceptive devices; 2. Designated Aeromedical Examiner with CASA to do medical assessments for pilots and air traffic controllers; 3. Qualified in Under Water Medicine and can assess and treat under water medical emergencies. Also qualified to conduct Occupational and Recreational Dive Medicals; 4. Completed an Emergency Management of Severe Trauma (EMST) Course; 5. Completed an Emergency Life Support Course; 6. Completed 12 months training in Anaesthetics (Anaesthetics Registrar) at Maitland Hospital; 7. Completed a course "Effective Management of Anaesthetic Crisis"; 8. Completed an Emergency Team Training Course; 9. Completed Medical Emergency Retrieval Course with the ADF; 10. Completed the Helicopter Emergency Underwater Training Course; and 11. Completed a course on Mental Health through Hunter Urban Division of GPs. References Relied on by the Practitioner 1. 33 of the references relied upon by the practitioner were by people who did not allege that they were aware of the details of the unsatisfactory professional conduct of the practitioner which the Tribunal found had occurred. 2. Most of the material provided by the practitioner was filed in October 2017. Events after the Stage 1 Hearing and Refusal of the Practitioner's Application for Additional Time to File Further Submissions for this Hearing. 1. Pursuant to the Stage 1 orders, the matter was to be listed for a further one day for this Stage 2 hearing. 2. The date fixed was 28 July 2017. Orders were made for the filing of any material by both parties for this hearing. After the Stage 1 decision the practitioner had become ill and had consulted a consultant psychiatrist, Dr Arvind Kendurkar. He was admitted to Toronto Private Hospital under Dr Kendurkar on 5 July 2017. He was still there on 13 July 2017. Dr Kendurkar diagnosed him as suffering from "acute exacerbation of his mental health symptoms" and advised the solicitors for the practitioner on 13 July 2017: "Mr Brennan currently displays symptoms of Major Depressive Disorder and PTSD. He also has orthopaedic issues due to previous work injuries (possibly sustained during his time with Army) with chronic back ache. He has also been worried about the possibility of developing alcohol use disorder, with recent stressors of case and leaving his job, on the background of his emotional vulnerabilities." 1. The doctor reported that the practitioner would need to be hospitalised until at least 20 July 2017. 2. He said also: "It is worth mentioning that although he may be fit for discharge in the next few days, he would remain vulnerable and would need psychological support in the near future, to help him recover." 1. On 19 May 2017 the practitioner contacted the Health Care Complaints Commission and sought to volunteer to consent to his registration being cancelled. 2. Subsequently on 14 July 2017 in these proceedings an order was made suspending the practitioner's registration. The order was consented to by the Health Care Complaints Commission and by the practitioner. 3. That day Dr Kendurkar advised that depending on his mental state in the following week, the tentative date for discharge of the practitioner from hospital was 20 July 2017. 4. The hearing date of 28 July 2017 was vacated and the matter was listed for directions on 10 August 2017. Dr Kendurkar advised the practitioner's lawyers on 31 July 2017 that the practitioner was still an in-patient in the Toronto Private Hospital. He said that he had been discharged on 20 July 2017 and soon after discharge his mental state deteriorated and he was re-admitted on 27 July 2017. 5. He advised that the practitioner was likely to require another two or three weeks hospitalisation, depending on his response to the treatment. 6. In relation to the proceedings, the doctor's opinion was: "Considering current emotionally frail mental state, he is not able to fully participate in the process, at this stage. With review of treatment, he may be able to participate in near future. I will update you on the progress closer to his discharge." 1. On 4 August 2017 the solicitors for the practitioner requested a further adjournment of the directions hearing. That was consented to. The date of the listing for 10 August 2017 was vacated and the proceedings were adjourned for directions at 9:30 am on Monday 4 September 2017. 2. The reason for that adjournment was that the practitioner was still not well enough to attend a directions hearing or a hearing. He was still in hospital and Dr Kendurkar advised that he would be there for a further 2 -3 weeks. 3. On 4 September 2017 there were appearances for both parties. The Tribunal was informed that the practitioner had been discharged from the Toronto Private Hospital on 12 August. 4. The Stage 2 hearing proceedings Directions were made for the respondent to file and serve any further documents to be relied upon at the Stage 2 hearing by 3 October 2017 and for the Health Care Complaints Commission to file and serve any further documents to be relied upon at that hearing by 17 October 2017. It was noted that the respondent would be representing himself at the Stage 2 hearing. 5. There was later a request by the applicant that the matter be dealt with on the papers without appearances and that was granted. 6. The respondent practitioner on 15 October 2017 filed and served a brown folder and indexed and numbered a bundle of 60 documents and also identified 9 other documents relied upon. The Tribunal also had before it, the respondent's Stage 2 61 page submission filed in December 2016. 7. The panel met on 12 December 2017 without any appearance for either party. There was an application by the Respondent that day by email for additional time to file submissions for the hearing. That application was refused because of the long period since the Stage 1 decision, it was 4 months since he was released from hospital, the period of more than 3 months since the more recent directions for filing of his documents, the large volume of material he was already relying upon, and concern of the panel members that delay in the final decision was contributing to the practitioner's mental health problems, particularly because his documents already filed disclosed he was anticipating the outcome would be a disqualification for 2 years, which was considerably worse than the range the Panel was considering. The Tribunal made the order refusing additional time for the practitioner to file documents and the Stage 2 orders. At the time panel did not deal with the issue of costs, which were an application of the applicant for the respondent to pay its costs. Evidence from Patients and Others 1. There were statements from 27 persons who were patients of the practitioner including some who were one of a couple or a member of a family who were all patients of the practitioner. There were supportive statements by numerous others. 2. The occupations of the patients included retirees, students, a real estate agent, two solicitors, a radiographer, business people and police officers. Some of the patients were long-standing friends of the practitioner or had become friends of him more recently. 3. The evidence in the statements group clearly establishes that the practitioner is an exceptional medical practitioner. He has excellent diagnostic skills, clinical skills and treatment skills. It also establishes that he has excellent skills in communicating with his patients, keeping them fully informed, and being empathetic in his dealings with patients, dealing with them in ways that ensure they have excellent health services and are confident that he will ensure that occurs. 4. The pharmacist who provided a statement dispenses prescriptions by the practitioner for many of his patients. He described his experience of being "overwhelmed by his patients' unanimous praise and their endorsement of his professionalism and commitment to quality medicine". He says that the practitioner is available for contact by the pharmacy at any time by telephone to discuss patients and medications. He describes the practitioner as "an asset to the medical profession and an excellent general practitioner". 5. The physiotherapist in his statement has known the practitioner for five years. as a patient. They met through social contact. His clinic is next door to that of the practitioner. He commends the practitioner's professional approach and says he is always "thorough", "supportive" and "positive". He also commends the practitioner's support in the community of returned service people. He says "In my experience he has always been a very honest and caring person who is always extremely driven and motivated to succeed with whatever task he has set his mind to" He describe the practitioner as "a strong advocate for those who need an extra voice". 6. The clinical psychologist who provided a statement has known the practitioner 29 years, having originally met him as a member of the Police force. He has been a patient of the practitioner for six years. He describes the practitioner as "unambiguously focused on positive outcomes for his patients" and "vigilant in addressing the mental health needs of many people who may have otherwise not have access to psychology". The clinical psychologist has had close contact with patients referred by the practitioner and on many occasions has heard "their unsolicited feedback in relation to Dr Brennan and his professional caring interactions with them". 7. Like many others of the practitioner's patients, he describes the practitioner as "very thorough" and as being attentive to the patient needs. He said "he takes a real interest in their well-being across the biopsychosocial spectrum. I am aware that many of these people socialise with each other and that has led to the situation where they have specifically wanted Dr Brennan to be their family GP." He also describes the practitioner as a "caring and thoughtful GP". He says that he has always found the practitioner to be "honest, open and dedicated to enabling his patients to have a full, valuable and meaningful life". 8. In his career as a general practitioner, the practitioner has worked in three different locations in the outlying suburbs of Newcastle. There is evidence that establishes that a large number of patients have followed him each time he has moved. 9. One reference is from a general surgeon to whom the practitioner has referred many patients and who has known the practitioner for more than 15 years since when the practitioner was a medical student. Later the practitioner was his intern at the John Hunter Hospital. They became good friends. The surgeon testified that he "noticed that this guy had what it took to be a great doctor possibly due to his maturity. He was kind to patients, had good diagnostic skills and was keen to learn whatever he could in the ward". 10. He says that the practitioner is very thorough in his investigations and that his patients that he has referred to the surgeon "all sing his praises". He says "Keith is similar to a Medical Sherlock Holmes. If a patient has an issue he will pursue the problem until he has the answer and can help the patient". He has said that the practitioner's referrals to the surgeon "are well thought through". 11. He says "I love his passion for the work and his commitment to his patients. Over all he is a good caring doctor who is committed to the art of healing and improving his patient's lives". 12. There is a statement by a urological surgeon, who has known the practitioner for about 18 years, has received referrals of patients since the practitioner commenced practising as a general practitioner in the Newcastle area in about 2007. He has often had communications with the practitioner by correspondence or telephone calls and at meetings of medical practitioners. He says in his statement that the practitioner's patients "speak very highly of him and the care that he has provided. Certainly by the quality of his work, he has demonstrated a good rapport with his patients and he is very thorough in managing their medical issues". 13. There is also a statement by a senior medical officer in the Australian Defence Forces. He speaks very highly of the practitioner. He has known him for about 10 years. The practitioner has achieved a rank of major and is the officer commanding of One Health Company, Combat Support Service Battalion, located in Newcastle. He has known the practitioner since about 2007 when they both were medical officers in the ADF. Since 2015, he has had contact with the practitioner through the Army Reserve. 14. He described the practitioner's performance as a medical officer in the ADF as "very professional" and said "he has a caring attitude towards soldiers and goes out of his way to assist in any way he can. He had a tour of Iraq and Timor as a MO and his performance was of a high standard. He works very hard at the One Health Coy, working weekends and Tuesday nights. He is outstanding as a MO and an Army Officer. I would employ him any time for overseas duties and any medical duties as required". 15. He also speaks very highly of the practitioner's character, his integrity, and his excellent reputation. 16. He says "he demonstrates high values and principles of a medical officer. Further, he demonstrates command presence, positively influences peers, promotes professional development of subordinates; leads by example; is accountable for words and actions. He is an effective performer and a team player. He is a highly respected member of the unit". 17. The patients that have given statements have known the practitioner for periods of about two years to about 10 years. 18. A Detective Superintendent of NSW Police, who met the practitioner more than 25 years ago while working together in the NSW Police Force and Australian Army Reserve, says that he finds the practitioner to be "intelligent, hardworking professional and a person of the utmost integrity". He has become a close family friend of the practitioner. He is not a patient of the practitioner. 19. He commends the practitioner's excellent reputation in the Police, Emergency Service and Army for the provision of high quality medical care, particularly in relation to psychological illness, including Post Traumatic Stress Disorder, which affects many people in those organisations. 20. He says that in his statement: "Keith has a gregarious compassionate and infectious personality that draws people to him. He is also extremely loyal, trusting and simply enjoys helping people. If Keith has a fault then it is his inability to say no to people close to him. This can make him somewhat naïve at times. I have seen many facts of his professional and personal life that have been complicated by these personality traits. Both Keith and his lawyers have made me aware of the nature of the complaints he is facing. He has been extraordinarily honest to me in respect to this. I cannot help but feel that some of his personality traits have contributed to these complaints. Having said that I am confident that he is the type of character who would admit to any wrongdoing, learn from his experience and ensure that he did not make the same mistakes into the future." 1. The evidence before the Tribunal establishes that the nature of the findings of the unsatisfactory professional conduct and professional misconduct are matters that are completely inconsistent with the excellent character and integrity that his patients and others who deal with him have generally observed. The Outcome 1. The Tribunal finds that essentially the unsatisfactory professional conduct by the practitioner was his breach of professional boundaries and subsequent conduct in seeking to defend himself when those breaches became the subject of investigation. 2. There have been serious consequences for the practitioner including some prior to the Stage 2 hearing, largely as a result of the proceedings and publicity of the Stage 1 findings in a newspaper which was referred to in the statements of witnesses, and this has contributed to his mental health problems and hospitalisation. 3. In addition the practitioner has suffered a substantial financial loss by way of loss of income since suspension of his registration. That is continuing. 4. In addition, the Tribunal has taken into account that the practitioner volunteered to submit to cancellation of his registration on 19 May 2017, the day before the newspaper article of 20 May 2017. He consented to an order on 14 July 2017 suspending his registration, was suspended on 14 July 2017 and had remained suspended almost 5 months at the time of the Stage 2 hearing in December. 5. As at 12 December 2017, the Tribunal was aware that he had been unable to practice since the suspension order. The Tribunal decided that a cancellation period that would provide an appropriate outcome of the proceedings would be one that would serve the need to deter the practitioner and other practitioners from such conduct, and protect the reputation of the profession and the trust the community has in the profession. The orders of 12 December with the earlier suspension would result in the practitioner's registration being suspended and cancelled for a total period of one year plus any period after 14 July 2018 till any application to review the cancellation is filed, processed and determined. The Tribunal has taken onto account that because the practitioner is such an excellent clinician, any period of cancellation or suspension will deny his patients his excellent services for that period and in that regard is contrary to the public interest. 6. The Tribunal also decided to offer advice for the practitioner suggesting he undertake a course which might assist him to better understand and adhere to ethical issues regarding his relationships with patients. Costs 1. The applicant sought numerous findings of unsatisfactory professional conduct and a finding of professional misconduct. The applicant has been successful in its application. The practitioner has been found guilty of professional misconduct. 2. The applicant sought an order for cancellation of the practitioner's registration and was successful. It did not succeed in its application for an order that the practitioner not be able to apply for review of the cancellation for 2 years. But obtained such an order for 7 months. 3. The respondent did not establish any factor that would seriously weigh against or mitigate a costs order to the successful applicant and therefore there should be a costs order as sought by the applicant (Health Care Complaints Commission v Philipiah [2013] NSWCA 342). Orders 1. Accordingly the orders of 12 December 2017 were made and an order for costs is been made as follows:- 1. The respondent practitioner must pay the applicant's costs of or incidental to the proceedings as agreed or as assessed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2018