Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Patel [2019] NSWCATOD 151 Hearing dates: 8 August 2019 Date of orders: 04 October 2019 Decision date: 04 October 2019 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President, Dr G Yeo, Senior Member, Dr L Cotterell, Senior Member, B Radcliffe, General Member Decision: 1. Under cl 12(1) of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the inquiry into the complaint filed on 6 March 2019 in this matter is terminated. 2. The complaint filed on 6 March 2019 in this matter is dismissed. 3. There will be no order as to costs. Catchwords: PROFESSIONS AND TRADES - health care professionals - medical practitioners - Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (New South Wales) Regulation 2010 Cases Cited: Health Care Complaints Commission v Khan [2014] NSWCATOD 83 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Bhikhubhai Govindbhai Patel (Respondent) Representation: Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2019/00072300 Publication restriction: Nil REASONS FOR DECISION 1. On 8 August 2019, the Tribunal indicated that an order would be made permitting the Health Care Complaints Commission ('the HCCC') to withdraw the complaint dated 5 March 2019 and filed on 6 March 2019 ('the complaint') against Dr Patel ('the practitioner') under the provisions of the Health Practitioner Regulation National Law (NSW) ('the National Law'). 2. The Tribunal indicated that reasons would be provided. Background 1. The complaint the subject of these proceedings related to a chain of events which began on 5 December 2015. On that day, the practitioner was consulted by Patient A, who was 29 years old. 2. Patient A collapsed in the waiting room, in the practitioner's presence, before the consultation. During the consultation, Patient A reported dizziness for the previous three days, and a 'fainting feeling' on the day of the consultation. 3. Despite the indications of a cardiovascular problem, the practitioner did not ask Patient A whether any previous collapses had occurred. The practitioner did not obtain sufficient information about any warning symptoms before the collapse or any confusion after the collapse. The practitioner did not ask many of the questions a competent general practitioner would have been expected to ask in the circumstances of Patient A. 4. During the consultation, the practitioner did not take Patient A's temperature, which was clinically indicated. The practitioner did not take Patient A's pulse rate. He did not sufficiently investigate Patient A's blood pressure. He did not perform a cardiac auscultation or adequately use a stethoscope to listen to breath sounds, all of which was clinically indicated. 5. The practitioner diagnosed Patient A with a viral illness with dehydration without sufficient clinical findings. The practitioner failed to demonstrate appropriate judgment, in that he gave inadequate consideration to a differential diagnosis of heart failure, which was, in all of the circumstances, indicated. 6. The practitioner took Patient A's sitting blood pressure. He should also have taken Patient A's blood pressure standing and supine. The sitting blood pressure reading was low for someone of Patient A's age and medical history, and the practitioner did not give it sufficient consideration. 7. The practitioner, having diagnosed dehydration, recommended a treatment plan of Nurofen and increased fluid intake, in circumstances where, if the collapse had been caused by dehydration it would have had to have been a significant degree of dehydration which an increase in oral fluid intake may not have been sufficient to treat. 8. In all of the circumstances, the practitioner should have directed that Patient A be taken to hospital immediately, which he failed to do. 9. The practitioner telephoned Patient A's father later on the day of the consultation. Patient A's father told the practitioner that Patient A had vomited and was sleeping. The practitioner should, at that time, have realised that there were clinical signs that Patient A's condition was deteriorating, and should have directed that he must go to hospital. 10. The practitioner admitted the above conduct, which comprised Complaint One of the complaint, and conceded that it amounted to unsatisfactory professional conduct, in that it was conduct significantly below the standard reasonably expected of a practitioner at an equivalent level of training or experience. 11. The practitioner also admitted that he had failed to maintain adequate medical records for Patient A in accordance with cl 7(1) and Schedule 2(1) and (2) of the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed), and conceded that the failure amounted to unsatisfactory professional conduct. This conduct was the basis of Complaint Two of the complaint. 12. Complaint Three of the complaint alleged, in effect, that the conduct complained of in Complaint One and Complaint Two, taken together, amount to professional misconduct. This is conceded by the practitioner. 13. The practitioner admitted the entire complaint, including every particular of each of the three Complaints alleged in the complaint. 14. On 21 August 2017, the Coroner found that, had Patient A been diagnosed and treated properly on 5 December 2015, it is more likely than not that he would have survived. Surrender of Registration 1. On 17 April 2019, the practitioner wrote to the Australian Health Practitioners Regulatory Authority (AHPRA) to surrender his registration with effect from 18 May 2019. The practitioner provided a statutory declaration stating that he has "no intention of ever re-applying for registration as a medical practitioner". 2. The practitioner was recorded as having surrendered his registration on 29 May 2019. 3. The practitioner is 78 years old. Withdrawal of complaint 1. The National Law provides, in s 165H: 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 practitioner has admitted the subject matter of the complaint in writing by means of a letter to the Tribunal prepared on his instructions by his solicitors and dated 2 August 2019. In that letter, the practitioner also expressed his deep regret for the death of Patient A. 2. The National Law provides, in Schedule 5D: 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. 1. On 18 June 2019, the HCCC wrote to the Tribunal seeking to withdraw the complaint. Clause 12(1)(a)(iii) has therefore been satisfied. 2. Although the National Law does not expressly confer power upon the Tribunal to dismiss proceedings, it is clear from cl 12 of Schedule 5 D and from s 165H that it is intended that, in specified circumstances, no enquiry will be undertaken by the Tribunal following the filing of a complaint. 3. The Civil and Administrative Tribunal Act 2013 ('the CAT Act') provides, in s 55(1) that the Tribunal may dismiss proceedings if the applicant withdraws the application to which the proceedings relate. Section 55 is in Part 4 of the CAT Act. Section 35 of the CAT Act, which is also in Part 4, says: Each of the provisions of this Part is subject to enabling legislation and the procedural rules. 1. The issue of whether the Tribunal can dismiss proceedings was considered by Boland ADCJ in Health Care Complaints Commission v Khan [2014] NSWCATOD 83 at [27]–[30]: 27 While each of s 165H and c 12 expressly provide, in the circumstances set out in the respective sections, for the Tribunal not to conduct a hearing, or cease a hearing once commenced, the National Law does not contain a specific power to dismiss proceedings. That is readily understandable given the principal objective of the legislation in New South Wales is the health and safety of the public. 28 Clause 7 of Schedule 7 of the National Law is instructive. It provides as follows: 7 Interpretation best achieving Law's purpose (1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation. (2) Subclause (1) applies whether or not the purpose is expressly stated in this Law. 29 Thus, giving a broad interpretation to cl 12, it may be argued that clause carries the implication that if a Tribunal decides not to conduct an inquiry, or to terminate an inquiry it has commenced to hear, that it may dismiss the complaint limiting its reasons for the dismissal to its consideration of why it is not in the public interest for the inquiry to continue. Such an interpretation provides a cost effective and timely resolution to a complaint. 30 However, the better view may be that if the HCCC and/or the parties seek a complaint should be withdrawn in the circumstances outlined in cl 12 of Schedule 5D, that s 55 (1)(a) should be utilised in conjunction with that clause, and as part of the Tribunal's practice and procedure powers, to dismiss the complaint. This is a practical outcome as any complaint is now filed in the Tribunal as an annexure to an application. 1. We agree that s 55(1)(a) may be used by the Tribunal in conjunction with cl 12 of Schedule 5D of the CAT Act to dismiss the complaint. 2. In view of the admissions made by the practitioner, his expression of deep regret, the surrender of the practitioner's registration and his sworn undertaking not to practice medicine again, in the context of his age of 78 years, we are satisfied that the practitioner poses no further risk to the public as a medical practitioner, and that protective orders are, therefore, not necessary. 3. In considering whether it is in the public interest for the inquiry to continue, we weigh the public interest in the deterrent effect of any order which may arise out of an inquiry against the financial and emotional cost of conducting that inquiry, particularly having regard to the likely impact upon the family of Patient A. Counsel for the HCCC informed us that Patient A's family have considered the matter and, in all of the circumstances, do not oppose the inquiry not proceeding. 4. We are satisfied that it is not in the public interest for the inquiry to continue. Orders 1. The Tribunal makes the following orders: 1. Under cl 12(1) of Schedule 5D of the National Law, the inquiry into the complaint filed on 6 March 2019 in this matter is terminated. 2. The complaint filed on 6 March 2019 in this matter is dismissed. 3. There will be no order as to costs. ********** 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: 04 October 2019