Bar-Mordecai v Medical Council of NSW

NCAT Occupational|2016-05-12

Introduction

These reasons deal with an application made by Dr Guy Kingsley Herron (the practitioner) in which he seeks an order that the Medical Council of NSW (the Council) be the review body to review conditions placed on his registration. The conditions were imposed after disciplinary proceedings conducted in the former Medical Tribunal of NSW.
The practitioner's basis for the order sought is set out in his general law application. In summary, he contends, first, that in respect of one condition (Practice Condition 1) it was an oversight by the former Tribunal that review by the Council of that condition was not included in the former Tribunal's orders. He secondly contends, in respect of "Health Condition 6", that the Council is well able to review that condition. The condition requires he attend on a psychiatrist "for so long as the treating psychiatrist considers appropriate". The practitioner's treating psychiatrist, Dr Michael Diamond, has provided a report in which he opines ongoing psychiatric consultations with the practitioner are unnecessary.
Although the Medical Council appeared and was represented before me at two directions hearings, they did not seek to be joined as a party and neither did the Health Care Complaints Commission. Consequently, there was no contradictor to this application. With the consent of the applicant, the matter was determined on the papers.
I have determined under s 163 (1) (a1) of the Health Practitioner Regulation National Law (the National law) that the Council is the appropriate review body. The reasons for my decision are set out below.

The Medical Tribunal of NSW proceedings.

The former Tribunal in its reasons noted that the HCCC referred a complaint to that Tribunal alleging unsatisfactory professional conduct and professional misconduct by the practitioner. The gravamen of the complaint was that the practitioner had maintained a personal and sexual relationship with a patient (Patient A) while continuing a doctor/patient relationship with her, her husband and their children.
The complaint also asserted the practitioner had failed to keep appropriate medical records for Patient A's husband. The practitioner conceded all the complaints alleged against him.
The former Tribunal noted that the practitioner had admitted the conduct the subject of the complaint immediately he was approached by the HCCC in February 2011.
The Tribunal, in considering appropriate protective orders, discussed evidence relating a twelve month period when the practitioner was a resident medical officer and self-injected pethidine. The Tribunal noted how he later relinquished his Schedule 8 prescribing rights. The Tribunal accepted the practitioner's explanations for his conduct and why he said it would not occur in the future.
The former Tribunal concluded its reasons as follows: However the Complaint was made to the Health Care Complaints Commission more than two years ago. Over those two years Dr Herron has been diligent in addressing the issues which gave rise to all of the conduct which is the subject of the Complaint. The whole of the evidence demonstrates genuine insight into and contrition for his wrongdoing and the taking of positive steps to address the issues which allowed the conduct to occur. Accordingly the Tribunal is satisfied that Dr Herron is not presently probably permanently unfit to practice. In addition the Tribunal is satisfied that the health and safety of the public would be protected by Dr Herron being reprimanded and conditions placed on his registration requiring ongoing psychiatric treatment, mentoring and working in a group practice. These conditions would enable his therapy to continue until his treating psychiatrist considers that it is no longer necessary and allow for working conditions which would protect against the professional isolation which led to these proceedings. The conditions are informed by but not identical to the suggested conditions provided to the Tribunal by counsel for the parties. Firstly the requirement to work in a group practice and have his place of practice approved by the Council will remain in place until Dr Herron successfully applies to the Council to have the conditions changed. Secondly the Tribunal is of the view that the appointment of a mentor for six months is insufficient and that the mentor should be a medical practitioner specialising in general practice.
The former Tribunal ordered that the practitioner be reprimanded and his registration be subject to conditions. The first condition requires the practitioner to advise the Council prior to changing his place of practice. Conditions 2, 3 and 4, which deal with mentoring, are to be reviewed by the Council. Condition 5 requires the practitioner to maintain membership of the Royal Australian College of General Practitioners.
Condition 6, which appears under the heading "Health Conditions" is in the following terms: HEALTH CONDITIONS (6)Dr Herron is to continue to attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist and for as long as the treating psychiatrist considers appropriate. Dr Herron is to notify the Council of the name of his treating psychiatrist within 2 weeks and is to authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status.
The practitioner's solicitors submit it is the view of the Medical Council that, absent the making of an order under s 163 (1) (a1), conditions 1, 5 and 6 can only be reviewed by the Tribunal. That submission is corroborated by a letter from the Council dated 24 November 2016.
In support of the application the solicitors submit that, from the reasons of the former Tribunal, the failure to include Condition 1 in the conditions that could be reviewed by the Council was an oversight. I accept this to be the case by reason of the explanation in the former Tribunal's reasons. That is a matter that ordinarily could be corrected under the "slip rule" (see Civil and Administrative Tribunal Act s 5, and s 63; Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 ).
It is not clear from the information before me whether Condition 6 was recorded on the public register maintained by the Australian Health Practitioner Regulation Agency (AHPRA) or whether, under s 226 of the National Law, it was not recorded. It may well be that it was in the contemplation of the former Tribunal that condition 6 would not be recorded on the register. But I can make no finding on this issue absent any evidence.

The relevant statutory provisions

Section 163 of the National Law sets out the appropriate review body to conduct a review of conditions imposed on a health practitioner's registration. The appropriate review body, if nominated in a "relevant order", may be the Council for the relevant profession, the National Board or the Tribunal. Subject to s 163 (1) (a1) if no nomination is made in the orders the default position is that the review body is the Tribunal. However, if the practitioner's registration has been cancelled, s 149E mandates that any review under s 163B must be by the Tribunal.
Section 163 (1) (a1), a remedial provision, was inserted into the National Law in 2012. It permits "on application by the person the subject of the review, or the Commission [the Health Care Complaints Commission] the Tribunal List Manager has power to determine whether the review should be conducted by a Council, a National Board or the Tribunal. The HCCC and/or the Council are not nominated in the section, or in s163A as the respondent to such an application. That lacuna in the legislation discussed in Bar-Mordecai v Medical Council of NSW [2014] NSWCATOD 142 will be overcome on the coming into force of the Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 (NSW) (see s 163C (4)).
Section 163A enables a person to apply to the appropriate review body for a review of a "relevant order". Relevant order includes "an order that conditions be imposed on the person's registration in a health profession". In this instance the practitioner is entitled to apply for a review to this Tribunal (as the successor of the Medical Tribunal of NSW) for a review of the conditions on his registration.
Section 163B provides the appropriate review body may conduct an inquiry into the review and may, amongst other matters, "alter or remove the conditions to which a person's registration is subject, including by imposing new conditions".
Section 163C sets out the matters to be taken into account when conducting the inquiry into the review. Those factors are not directly relevant to the present application.

Guidelines applied in earlier decisions made under Section 163 (1) (a1).

Without attempting to exhaustively discuss the factors that may be taken into account in the exercise of discretion afforded to the Tribunal List Manager under s 163 (1) (a1) those factors have been highlighted in several earlier decisions of this Tribunal and the former Nursing and Midwifery Tribunal of NSW. (see Rachel Coe v Health Care Complaints Commission [2013] NSWNMT 11).
The factors include:

the requirement to consider the objects in s 3 and s 3A of the National Law.
the seriousness of the conduct as found by the earlier Tribunal that led to the imposition of the conditions;
whether it is necessary for the proper conduct of the inquiry that the practitioner be subject to cross-examination in a Tribunal hearing context;
whether the review body would be aided by documents produced under Summons, which could demonstrate compliance or non-compliance with conditions, or be provide relevant records in respect of the practitioner's health, either physical or psychological;
the nature of the conditions, and evidence of the practitioner's compliance with the conditions;
any issues relating to the monitoring of the conditions, and the length of monitoring that has occurred,
the experience and expertise of the Councils in monitoring conditions;
the timeliness and costs associated with a review before a fully constituted Tribunal of four persons compared a review by the Council or Board.

Evidence and submissions relied on in this application

This application is supported by a report from Dr Gerard M Barold dated 1 March 2015. The report sets out Dr Barold's role as a mentor for the practitioner. At paragraph 5 of his report Dr Barold opined: It is my considered opinion that,….. [the practitioner] has clearly reached the point that he can be considered to be an ethical medical practitioner who can be expected to practise in a professional and safe and appropriate manner. I also believe that he does not pose any threat to the community and, as such, I do NOT consider it necessary for [the practitioner] to continue mentoring. (original emphasis).
I note that in accordance with the former Tribunal's order, the mentoring condition was reviewed by the Council and removed.
The application is also supported by a report of Dr Michael Diamond dated 23 February 2015. Dr Diamond noted in his report that the practitioner had complied with the health condition. Dr Diamond opined: The requirement for treatment for Dr Herron has now run its course. From the starting position where he had distress about his predicament and distress about what he had done in terms of harming his patients, he progressed steadily by gaining cumulative understanding and insight into his misconduct.
Dr Diamond, when commenting on the other conditions placed on the practitioner's registration, noted that the practitioner expressed no intention of returning to solo practice and that he had retained his membership of the RACGP. Dr Diamond concluded his report noting that he was supportive of all conditions placed on the practitioner's registration being removed.

Discussion and conclusions.

The evidence of Dr Barold and Dr Diamond supports a finding that an order that the Council, rather than the Tribunal, assess the appropriateness of the remaining conditions, will adequately ensure the health and safety of the public (see s 3A).
I have read the reasons for decision of the former Tribunal, and that Tribunal's determination, for the reasons it gave, that the practitioner's registration should not be cancelled or suspended, rather that he should be reprimanded and conditions placed on his registration. While the practitioner's boundary violation was a most serious one, I too take into account the factors considered by the former Tribunal and extracted earlier in these reasons. I am satisfied that this is not a case where cross-examination of the practitioner about his conduct and post Tribunal events is necessary to determine whether the remaining conditions should be removed. Nor am I satisfied that a review body would be assisted by documents produced under Summons.
In this case the Council has already removed the mentoring condition. Dr Diamond's report provides cogent evidence in support of the removal of the remaining conditions. That report can be assessed efficiently and cheaply by the Council who are likely to be able to deal with the review application "on the papers". That type of review will be cheaper than a review by the Tribunal even if the Tribunal conducted the review of the papers. This is because it would be necessary to constitute a panel as provided in s 165B of the National Law, and for that panel to reach a decision after either face to face or other electronic communication between the members.
This is a case where the Council's experience and expertise are the predominant factors supporting a review by the Council rather than the Tribunal.
I conclude, because of the nature of the remaining conditions, and the fact those conditions can be reviewed cheaply and efficiently by the Council members applying their expertise, that the appropriate review body is the Council, not the Tribunal.

ORDERS 1. Under s 163 (1) (a1) of the Health Practitioner Regulation National Law the Medical Council of NSW is designated as the appropriate review body to review conditions placed on the registration of Dr Guy Kingsley Herron by the former Medical Tribunal of NSW on 1 March 2013. 2. 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: 12 May 2016

Amendment (Review) Act 2016(NSW)

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