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[2021] SACAT 44
General information, not legal advice.
SA Civil and Administrative Tribunal
2021-05-27
Original judgment source is linked above.
Chiropractic Board of Australia v White [2021] SACAT 44
The Chiropractic Practitioner Board of Australia referred a complaint to the Tribunal alleging that the respondent had engaged in professional misconduct. Allegations were said to have occurred regarding:
The respondent did not dispute he had practised without PII cover and without completing formal CPD requirements. However, he denied he had knowingly practised without insurance and claimed he was unaware of his lack of coverage until receiving a letter from the complainant in June 2019. He conceded his statements on annual renewal declarations and audit checklists were incorrect and involved a lack of due diligence on his part. He denied his statements to the Complainant and the insurer were false or misleading.
Health Practitioners - Complaint by the Chiropractic Board of Australia - Professional misconduct - Practising without professional indemnity insurance, Failure to comply with compulsory professional development, Failure to notify Board of breach, Falsifying records, False and misleading statements to authorities - Registration cancelled, Disqualified from applying for registration for 1 year, Reprimand
Health Practitioner Regulation National Law (South Australia) Act 2010
Health Practitioner Regulation National Law ss 128, 193
Rajagopalan v Medical Board of South Australia [1998] SASC 7142
Rajagopalan v Medical Board of South Australia [1997] SASC 6363
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) ALJR 170
Psychology Board of Australia v Rigley [2018] VCAT 1400
Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149
Health Care Complaints Commission v Luque [2019] NSWCATOD129
Craig v Medical Board of South Australia [2001] SASC 169
Nursing and Midwifery Board of Australia v Symons [2020] SACAT 28
Marin v Chiropractors Board of Australia [2020] SASCFC 74
Honey v Medical Practitioners Board of Victoria [2007] VCAT 526
Marin v Chiropractors Board of Australia [2020] SASCFC 74
Pharmacy Board of Australia v Elias [2020] VCAT 496
Psychology Board of Australia v Rigley [2018] VCAT 1400
1. This is a disciplinary proceeding in respect of a registered chiropractor.
2. The allegations have been referred to the Tribunal by the Chiropractic Board of Australia (the Board) under s 193 of the Health Practitioner Regulation National Law (South Australia) (the National Law). The National Law is to be found in schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Act).
3. The Board alleges that Dr White has behaved in a way that constitutes professional misconduct. In brief summary, it is alleged that he:
4. Dr White did not dispute that he practiced during the periods mentioned without appropriate PII cover and without completing the required formal CPD requirements. He conceded that there was a lack of "due diligence" on his part. However, he denied that he had knowingly practised without insurance or that he was reckless in that regard.[1] He asserted that he was not aware of his lack of PII cover until receiving a letter from AHPRA on 20 June 2019.[2] He conceded that statements in the annual renewal declarations and the audit checklist were incorrect and involved a lack of "due diligence" on his part. He denied that he knowingly made those false statements or that he was reckless in doing so.[3] He denied that the statements made to AHPRA or Guild Insurance were false or misleading.[4]
5. The parties tendered a Statement of Agreed Facts.[5] It sets out the facts admitted by Dr White. It also identifies the facts that remained in dispute. The complainant tendered a Case Book.[6] Dr White had no objection to the evidence contained therein. The complainant submitted that the Tribunal could draw inferences from the agreed facts and the materials contained in the Case Book to the effect that Dr White was aware prior to June 2019 that he had no PII cover, that he had knowingly made false renewal declarations and false statements on his audit checklist, and that the statements made to APHRA and Guild Insurance were knowingly false.
6. As Dr White was unrepresented, it was carefully explained to him that he could give evidence in the matter generally and specifically in relation to the disputed issues as to his knowledge and state of mind at relevant times. It was explained that the Tribunal was being asked to draw inferences from the evidence as to such matters and he could give evidence on oath or affirmation as to such issues. Dr White chose not to give formal evidence in the matter.
7. It is for the Board to prove its case. Dr White does not have to prove anything. The required standard of proof is proof on the balance of probabilities, with due regard to the principles expounded in Briginshaw v Briginshaw.[7] We have regard to the seriousness of the allegations and the potential consequences for Dr White. Applying the principles expounded in the cases cited, we are comfortably satisfied of the following findings of fact.
9. Between 2008 and 15 January 2012, Dr White held an appropriate PII cover through Guild. In January 2012, the policy was due for renewal. Dr White spoke to a Guild representative by telephone on 16 January 2012 and indicated that his practice was "part-time". A "client statement" was then sent to Dr White by post and email, reflecting this change and showing the amount to be paid for renewal. No payment was made. On 20 March 2012 a "Cancellation of Cover" Notice was posted to Dr White, advising that his policy had been cancelled as from 15 January 2012 due to non-payment. Guild attempted to telephone Dr White but there was no response.[10]
10. From 15 January 2012 to 20 June 2019 Dr White did not have any appropriate PII cover in relation to his practice of chiropractic.[11] His failure to hold appropriate PII cover constituted a breach of s 129 of the National Law.
11. Section 128 of the National Law requires registered health practitioners to undertake CPD as required by the relevant approved standard. The relevant standards for the chiropractic profession required at all times completion of 25 hours of CPD per year, with at least half of that CPD being for formal learning activities. Dr White concedes that he did not meet this requirement at any time between 1 December 2012 and 21 August 2019.[12] He admitted at interview (and we find) that the only CPD requirements completed from 2013 to 2018 were informal requirements.[13] Although his pleadings suggest that he did "some" formal training,[14] there is no evidence of this. He has provided evidence of informal training. He was in breach of s 128 of the National Law throughout this period.
12. On or about 30 December 2013, 1 December 2014, 30 November 2015, 30 December 2016, 27 December 2017, and 31 December 2018, Dr White completed applications to renew his registration. In each case, he made a declaration that:
14. On or about 29 May 2018 Dr White was provided with correspondence from AHPRA notifying him that he had been selected for random audit of his compliance with registration standards for the period 1 December 2016 to 30 November 2017.[18]
16. Dr White also declared on the Audit Checklist that he had completed a first aid course in the last three years. He failed, however, to attach a copy of the certificate as requested.[21] It is now conceded that he held no such certificate.
17. In respect of the PII requirements, Dr White declared on the Audit Checklist that he had been covered from 1 December 2016 to the present (July 2018) by arranging his own insurance cover.[22] However, he failed to provide evidence of that cover as required. It is now conceded that he had no such cover.
18. On 11 September 2018 an officer of AHPRA emailed Dr White and requested provision of:
20. No further information or evidence was provided, despite a further request dated 1 February 2019.[26]
21. It is worthy of note, in the context of the above chronology, that Dr White completed an application for renewal on 31 December 2018.[27] In that application, he declared that he had met the CPD and PII requirements for the previous year, claims that are now conceded to be false. He also declared that he held a current first aid certificate, another claim now conceded to be false. As an aside, we find it somewhat surprising that the 2018 renewal did not attract more scrutiny, considering the outstanding audit requirements.
22. On 20 June 2019 AHPRA wrote to advise Dr White that it would conduct an investigation into his failure to provide the requested evidence and whether he had made false declarations on his renewal application. Dr White was required to provide the evidence by the following day.[28]
23. On 21 June 2019 Dr White telephoned Guild. The call was recorded, and the transcript is in evidence before us.[29] It is clear that Dr White already knew that he was not insured. He made no enquiry about that. He called to arrange insurance. He said that he had previously held a policy with Guild, "I think back in 2010".[30] He was provided with advice about his duty of disclosure.[31]
24. The following conversation included the following:[32]
IX: And have you held a continuous professional indemnity liability insurance cover over the past three years?
NM: Yes
IX: Yeah. So because you've got, currently have a continuous cover, three years without any gap, we will cover you retroactively for your previous claim which may arise, okay.
NM: Okay.
IX: And you currently have with someone else, yeah, that insurance?
NM: Yes, that's right.
25. These were clearly false statements made by Dr White. He knew he did not have current insurance with Guild. He knew he did not have current insurance with "someone else". He had not held continuous cover for the previous three years. We have no doubt that he made these statements, knowing them to be false, and in an attempt to obtain retroactive cover. He obtained cover and was sent a Certificate of Currency.
NW: What I need is some sort of documentation or certificate of currency. Now I understand my policy, because I'm coming from Vero Insurance it also covers me for, I think he said the preceding two or three years
27. This statement was false and misleading. Dr White was not "coming from Vero Insurance". He had not been insured with that company. He was deliberately and falsely creating the impression that he had been insured with Vero. There was a further call the same day to similar effect.[35] In the phone calls, he induced Guild to believe that he had been insured with another company for a continuous period of the preceding three years. On that basis, he was told that he would have unlimited retroactive cover, and such was reflected in the insurance documentation. His false representations of course put the validity of his new cover (and particularly the retroactive aspect of that cover) at risk.
28. Following the telephone advice from Guild, Dr White wrote to AHPRA on the 24 June 2019 and enclosed the Certificate of Currency. He asserted that the policy gave him retroactive cover for the years 2016-2019.[36]
29. Dr White was required to attend for an interview on 7 August 2019. The interview was deferred as he reported that he was unwell. The interview occurred on 21 August 2019.[37] Dr White stated that he was unaware of the fact that he was uninsured until he received the AHPRA's letter on 20 June 2019.[38] He had then taken immediate action to obtain insurance from Guild. He stated (inter alia):[39]
NW: I was given the advice from the consultant that I would be issued with what they call retroactive coverage and he explained to me that retroactive coverage would cover me for a period between, I think, for the years sort of 2018, 2017, and 2016, was the advice that I received by the consultant. .....
NW: And his reasoning in relation to that was because I'd been a previous member with Guild and I held a previous policy with Guild for significant time.
30. This was a misrepresentation of what he had been told by the Guild consultants.
31. Further questions were put to Dr White by letter dated 3 October 2019.[40] He replied by email on 16 October 2019.[41] In answer to a question as to why he told Guild that he had held PII cover for the preceding three years, he suggested that he was unaware at the time that his original cover with Guild had lapsed.[42] That response is manifestly false. He clearly knew at the relevant time that his Guild policy had lapsed and advised Guild that he had cover with "someone else".
32. Dr White also maintained his previous explanation that he had been granted retroactive cover by Guild because he had held cover with them previously for a significant period.[43] This claim is also manifestly false. It must have been absolutely clear to Dr White from the various telephone calls that he was only granted retroactive cover because he led Guild to believe that he had been covered continuously with another insurer. We have no doubt that Dr White deliberately misled Guild and then sought to deliberately mislead AHPRA.
33. We return to consider Dr White's state of mind when he made renewal declarations between 2013 and 2017. We find that he must have been aware that he had done no formal CPD during the relevant years. He must have known that he was making false declarations in that respect. Indeed, an admission to that effect was drawn from him during interview. He could give no explanation as to why he had made false declarations about his CPD.[44]
34. We have a strong impression that he knew he was not insured throughout the period from 2013 to 2017. He had received notice of cancellation of the policy.[45] He had an annual reminder via the annual registration process about the need to be insured. We find it hard to believe that a professional person would be blissfully unaware of such an important aspect of practice for such a long period of time. However, we will not make a finding that he knew of his uninsured status during that period. We will deal with him on the basis that he was unaware until 2018 that his insurance had lapsed.
35. The failure to be aware that his insurance had lapsed can only be described as reckless. It is a fundamental aspect of practice that appropriate PII cover is in place. Failure to ensure this is not mere lack of due diligence. It is a fundamental professional failing.
36. We do not accept that Dr White's state of ignorance continued after he was required to submit the Audit Checklist. At this point, he was forced to acknowledge that his declarations in relation to CPD were not correct. He was required to produce evidence of CPD and PII cover. He clearly put time and effort into the provision of evidence of his informal CPD. It would have been a simple task to provide evidence of PII cover if it existed. We find the inference irresistible that he was aware, by the time he submitted the Checklist, that he had no PII cover. For this reason, he ignored the requirement to attach evidence of such cover and also ignored subsequent reminders. We find that his declaration, in the checklist, that he had arranged his own insurance, was knowingly false.
37. In his renewal application of December 2018,[46] he falsely declared that he had completed the CPD requirements for the previous year despite knowing that this was false and having already admitted making a false declaration concerning this in the audit year. He also declared that he held a current first aid certificate although he had not done a course since 2007. He clearly knew this claim was false. We have no doubt that he knew by this time that he did not have PII insurance. His claim to the contrary was knowingly false.
38. We have found that Dr White was aware of the true situation as to his PII at the latest by July 2018 when he completed the Audit Checklist. He failed to give notice to the Board within seven days that appropriate PII arrangements were no longer in place. His failure was a breach of s 130 of the National Law. He did not advise the Board of the true situation at any time before receiving the letter from AHPRA in June 2019.
39. As we have indicated, Dr White chose not to give evidence to the Tribunal. During final addresses, however, he was invited to make submissions about the inferences (as to deliberate falsehood) which the complainant had encouraged the Tribunal to draw. Given his lack of legal training, it was somewhat inevitable that Dr White responded by repeatedly confirming his contention that he had not known that his various statements were false. Mr Hurburgh, for the complainant, subsequently submitted that the complainant would not object to these factual contentions put by Dr White from the "bar table" being treated by the Tribunal as evidence from Dr White. To do so would make no difference to our findings. The inferences that we draw from the evidence are irresistible. We would firmly reject the 'evidence' of Dr White where it conflicts with our findings. His claims lack credibility and fly in the face of the known facts.
40. We have no doubt that to practice without appropriate PII cover for such an extended period of time is professional misconduct. It was conduct that placed patients at significant risk if an incident was to occur. To recklessly make false declarations concerning the existence of PII cover is also professional misconduct. To knowingly make a false declaration about PII cover is even worse.[47]
41. A failure to complete CPD requirements over such an extended period, combined with (knowingly false) renewal declarations which state that those requirements have been met, is professional misconduct.
42. Dr White was knowingly dishonest in the audit checklist and in his 2018 renewal declaration. His dishonesty caused the regulator to renew his registration when that was not appropriate. It allowed him to continue to practise without PII cover. It put patients at financial risk if a professional negligence claim was to be made. This also amounts to serious professional misconduct.
43. Dr White was dishonest in his dealings with Guild and thereby placed the validity of his new cover at risk. Such dishonesty is totally inconsistent with the standard of conduct to be expected of a health professional. It is again professional misconduct.
44. Finally, Dr White made dishonest statements to AHPRA at interview and in subsequent correspondence. Integrity in dealing with the regulator is of the utmost importance. These dishonest statements also amount to professional misconduct.[48] Unfortunately, Dr White's lack of honesty and candour was still evident in the proceedings before the Tribunal. He appeared unwilling to admit the obvious.
45. The purpose of disciplinary action is entirely protective and does not involve any element of punishment. The purposes for which disciplinary action may be imposed have been discussed in many cases and need not be restated here.[49] The Tribunal reviewed some of the authorities in Medical Board of Australia v Tunbridge [2020] SACAT 34 at [19]- [24].
46. We will deal with the conduct overall. It is very serious professional misconduct. It demonstrates an alarming disorganisation, lack of professional insight, and persistent dishonesty. We hold serious concerns as to how such characteristics might affect other aspects of Dr White's chiropractic practice. It was not suggested by either party that there is any psychological or medical explanation for the subject conduct. This leaves us without any convincing explanation as to why this conduct occurred.
47. At interview, Dr White stated that he was the victim of a serious physical assault in 2012. He was hospitalised with serious injuries and had time off work. This affected his ability for some time to undertake professional development. Subsequently, he has been caring for his mother who is very unwell. This also affected his ability to complete CPD. These factors do not appear to adequately explain any other aspects of the subject misconduct. Since 2012 it appears that Dr White has practised on a part-time basis. This continues at present. Dr White told the Tribunal he is currently practising about 8 hours per week.
48. Dr White apologised to the Tribunal for his admitted conduct. He suggested that he has made modifications to his practice in order to ensure that the deficiencies are not repeated and that he is insured in future. We perceived, as the hearing progressed, that the seriousness of the matter might be gradually dawning on Dr White. Near the end of the hearing, he acknowledged for the first time that his conduct might constitute professional misconduct. We are hopeful that this may be a first step towards appropriate insight and remedial action, but that process appears to us to be in its infancy.
49. To this stage, we consider that Dr White has shown very limited insight. He has failed to acknowledge the obvious. He has not demonstrated any adequate understanding of the seriousness of his conduct or the character flaws that such conduct reveals. He has not demonstrated any sufficient steps to address those issues.
50. The Board submitted that Dr White should be suspended for a period of six months and then have conditions imposed to ensure that he was complying with PII and CPD requirements. We do not consider that this would adequately protect the public. We have no confidence that Dr White can be trusted to practice lawfully and safely six months from now. We have no confidence that he can be trusted to comply with conditions. We also have a broader concern that the suggested conditions would give little assurance as to his practice more generally.
51. Dr White's conduct is substantially below the standard to be expected of a practitioner of his training and experience. It is also conduct that was inconsistent with him being a fit and proper person to be registered. We do not consider that Dr White can be regarded as a fit and proper person to be registered at the present time. There is insufficient evidence to assure us that the demonstrated character flaws and professional deficiencies have been adequately addressed. We cannot confidently predict if or when that may occur. The appropriate action is to cancel his registration.[50]
53. We have decided to disqualify Dr White from applying for registration for a period of one year. He will not automatically return to the register after that period. He will only do so when he can satisfy the Board that he is a fit and proper person in all respects to be registered. If the Board decides to re-register Dr White in the future, it can impose such conditions as it then considers appropriate.
54. The disqualification for a period of one year is necessary, in our view, to:
55. The complainant seeks costs. Dr White submitted that his financial position is difficult and that his part-time practice is his only source of income. These are matters that may be taken into account by the Board in enforcing a costs order, but they are not relevant to the question of whether costs should be awarded. It is appropriate that the complainant have an order for costs.
57. Dr White is to pay the Board's costs of these proceedings.
58. Finally, we express our concern that a practitioner was able to practice for such a long period without PII cover. It is apparent that the audit process is a limited safeguard and will not necessarily reveal non-compliance in a timely way. We are surprised that Dr White was able to renew his registration in December 2018 without having met audit requirements communicated to him in or before July 2018. Perhaps consideration should be given to a requirement that a Certificate of Currency be provided with each renewal application.
[7] Rajagopalan v Medical Board of South Australia [1998] SASC 7142, affirming Debelle J in Rajagopalan v Medical Board of South Australia [1997] SASC 6363; Briginshaw v Briginshaw [1938] HCA 34, (1938) CLR 336 at 362-363; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) ALJR 170 per Mason CJ, Brennan, Deane, and Gaudron JJ at 170-171.
[47] Psychology Board of Australia v Rigley [2018] VCAT 1400 at [48].
[48] Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149 at [[97]- [99]; Health Care Complaints Commission v Luque [2019] NSWCATOD129 at [70]-[71].
[49] Craig v Medical Board of South Australia [2001] SASC 169 at [41]- [48]; Nursing and Midwifery Board of Australia v Symons [2020] SACAT n8 at [50]- [51]; Marin v Chiropractors Board of Australia [2020] SASCFC 74 per Kourakis CJ at [73].
[50] Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at [43], [49]-[51].
[51] Marin v Chiropractors Board of Australia [2020] SASCFC 74 per Kourakis CJ at [73].
[52] Pharmacy Board of Australia v Elias [2020] VCAT 496 at [8]- [10]; Psychology Board of Australia v Rigley [2018] VCAT 1400 at [48].
Chiropractic Board of Australia
White [2021] SACAT 44