Dr SS v Health Care Complaints Commission and Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40410/02 MT 40020/01 SHELLER JA STEIN JA HEYDON JA

Monday, 9 December 2002 Dr SS v HEALTH CARE COMPLAINTS COMMISSION and Anor Facts The claimant medical practitioner had been the subject of a complaint to the Health Care Complaints Commission ('HCCC') by patient A regarding the inappropriate conduct of the claimant over a 20 year period. The HCCC lodged a disciplinary complaint against the claimant, which the Medical Tribunal of NSW ('Tribunal') determined in 2001. The Tribunal found the claimant guilty of professional misconduct and removed his name from the Register of Medical Practitioners. The claimant successfully appealed this decision and the Court of Appeal ordered the matter be reheard.

During the course of the initial hearing, patient B became aware of the disciplinary proceedings against the claimant. Patient B made a formal complaint to the HCCC in June 2001. The essence of patient B's statutory declaration was a number of allegations that the claimant's conduct with patient B had been inappropriate.

In February 2002, the HCCC sought to add the allegations from patient B to the complaint which was to be reheard. The Tribunal allowed the complaint to be amended to include the complaints from both patient A and patient B.

The claimant, by amended summons, has sought an order that the parts of the complaint which relate to patient B be permanently stayed.

Per Stein JA (Sheller, Heydon JJA agreeing), dismissing the summons:

Where the delay in bringing the complaint was caused by the complainant and not the prosecutor, that delay should not normally and by itself lead to a permanent stay order unless it will result in an unfair trial. In the present case, the patient's explanation for the delay was not inadequate or unreasonable.

The central question to determine whether a permanent stay order is required is whether the delay is such as would necessarily render a trial unfair.

The power of the Court of Appeal to permanently stay proceedings in the Medical Tribunal should only be exercised in very exceptional circumstances.

In considering whether to order a stay of disciplinary proceedings, consideration must be given to the protective character of the proceedings and the importance of protecting the public from professional misconduct by medical practitioners.

The nature of the patient's complaint and the circumstances of the case are such that the absence of the claimant's medical records will not make a fair trial impossible.

Although the delay and destruction of records may prejudice the claimant, these two factors will not deprive the claimant of a fair hearing at the Tribunal.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40410/02 MT 40020/01

SHELLER JA STEIN JA HEYDON JA

Monday, 9 December 2002 Dr SS v HEALTH CARE COMPLAINTS COMMISSION and Anor Judgment

1 SHELLER JA: I agree with Stein JA. 2 STEIN JA: By an Amended Summons dated 3 June 2002 the claimant medical practitioner (who will be referred to as 'SS') sought an order in the following terms: An order that the proceedings against the Plaintiff in the Medical Tribunal of NSW … concerning the complaint by patient [B] against the Plaintiff … be permanently stayed. 3 Besides the order for a permanent stay, two other declarations were sought. However, they do not become material for consideration unless the court grants a permanent stay. 4 The application arises in the following circumstances. In 1997 a complaint was made to the Respondent, Health Care Complaints Commission (the Commission) by a former patient of SS, who will be referred to as patient 'A'. The complaint was heard by the Medical Tribunal in December 2000. The complaint of patient A was that the claimant had conducted a sexual relationship with her for 20 years whilst she remained his patient. The hearing before the Tribunal attracted a degree of media publicity. 5 On 16 February 2001 the Tribunal found the claimant guilty of professional misconduct under the Medical Practice Act 1992 and ordered that his name be removed from the Register of Medical Practitioners. The claimant successfully appealed and the Court of Appeal set aside the decision of the Tribunal and ordered a re-hearing of A's complaint, [2001] NSWCA 206. The gravamen of the Court of Appeal's decision, delivered on 5 September 2001, was that the Tribunal had failed to give adequate reasons for its findings. 6 In or about January 2001 patient B read an article in the Daily Telegraph about the hearing in the Medical Tribunal concerning patient A and SS. She had previously been a patient of the claimant between 1975 and mid 1983 and later between 1 February 1990 and 16 July 1992. After discussing the matter with her husband, family and close friends, she made a complaint to the Commission about the conduct of SS. She swore a lengthy statutory declaration on 6 June 2001. It seems that her complaint was first served upon the claimant on 22 June 2001 at the time of the hearing of the appeal. 7 On 4 February 2002 the Medical Tribunal convened to hear the complaint against SS by patient A, which complaint had been ordered to be re-heard. It was, of course, differently constituted than the tribunal which heard the complaint in December 2000. The Tribunal was asked by the Commission to amend the complaint before it to include particulars relating to the complaint by patient B. The amendment was granted. This meant that the following paragraphs were included in the complaint as amended: 3. In about 1979 or 1980 the practitioner inappropriately made personal disclosures to Patient B when, during a professional consultation he said to her words to the effect of "I have feelings for you and I think you know that". 4. In about May 1982, the practitioner had sexual contact with Patient B during a professional consultation. 5. In about December 1982, the practitioner inappropriately (a) telephoned Patient B at her home, (b) arranged to meet her and (c) thereafter, on the same day, had sexual contact and sexual intercourse with her while she was still his patient. 6. Between about 1990 and 1992 the practitioner had sexual contact with Patient B during professional consultations. 8 Following the amendment of the complaint, counsel for SS, Mr Paul Byrne SC, sought and obtained an adjournment of the hearing of the complaint. The present proceedings were thereafter commenced. 9 The claimant, in support of the application for a permanent stay regarding patient B, places central emphasis on the delay in her making the complaint to the Commission. In doing so Mr Byrne accepts that there has been no relevant delay by the Commission in prosecuting the complaint, cf Walton v Gardiner (1993) 177 CLR 378. 10 Although the most serious complaint made by patient B is of sexual intercourse with the claimant in December 1982 (particular 5), the complaint also includes allegations against the doctor in 1979 or 1980 (particular 3); sexual contact during a consultation in May 1982 (particular 4) and sexual contact during consultations between 1990 and 1992 (particular 6). 11 The claimant submits that the delay in making the complaint, especially regarding the complaint of sexual intercourse in December 1982, was not adequately explained by patient B. It is submitted by Mr Byrne that her explanation for the delay in complaining is an unreasonable one. This unreasonable explanation by patient B, so it was submitted, supports the making of a permanent stay order. 12 I accept that the reasons given to explain or justify a delay in complaining can be a relevant factor in determining whether to grant the relief sought. However, where the delay is not by the prosecutor of the complaint, unexplained delay by a complainant should not normally, by itself, lead to a permanent stay order being made less it will result in an unfair trial. 13 However, in my opinion it cannot be concluded that patient B's explanation for the delay in complaining was inadequate or unreasonable. I will explain why I have so concluded. 14 Although patient B did not complain to the Commission until early 2001, it was her reading of the newspaper report of the Tribunal hearing into patient A's complaint against the doctor which triggered her complaint. Dr SS was named in the article, which contained reference to a continuing sexual relationship between patient A and the claimant for more than 20 years ending in 1997. It would have struck home to patient B, when reading the newspaper report, that the period mentioned encompassed the periods in which she was a patient of the claimant. 15 Prior to complaining to the Commission patient B had not remained silent about SS. Although not naming the doctor, she had told some of her close women friends. Statements of the friends confirm this. She also confided in her fiancé prior to her marriage to him in 1994. 16 Patient B also revealed the relationship to her psychiatrist, Dr Sheridan, in the mid 1980s. The papers contain Dr Sheridan's report. From late 1991 patient B saw another psychiatrist, Dr Skinner. According to Dr Skinner, she first mentioned her sexual relationship with the doctor in February 1992. She discussed the relationship with Dr Skinner through 1992, 1993 and thereafter. Patient B was urged to consider complaining to the Commission. In fact she approached the Commission in 1999 to make an anonymous complaint, but this did not proceed. 17 As I have said, it was the reading of the newspaper article in January 2001 about patient A's complaint against the doctor and the Medical Tribunal hearing, which triggered her official complaint to the Commission. 18 In assessing whether patient B's explanation for the delay in making the complaint was adequate and reasonable in itself, regard must also be had to the consensual nature of the sexual relationship which she maintains she had with the claimant. Clearly, patient B was fond of the claimant. If it were not for the newspaper publicity which she read, the likelihood is that she would never have complained to the Commission. 19 In my opinion, patient B's explanation for the delay in complaining to the Commission is an adequate one, and cannot be said to be unreasonable. This means that we can move to the critical issue in the case, namely whether the lengthy delay has caused any hearing of the complaint by the Tribunal to be necessarily an unfair one. 20 The claimant submits that he cannot have a fair hearing of the complaint made by B against him because he has no records. He says that all of his records regarding patient B have been destroyed. He has little or no recollection of her. Further, he says that he is prejudiced by the fact that there are no records now held by many of the medical practitioners that the complainant has consulted. Accordingly, the claimant says that the extended delay in bringing the complaint has deprived him of the chance of a fair hearing of the complaint by patient B. 21 In paragraph 52 of the written submissions of the claimant 11 reasons are given which, so it is submitted, demonstrate that the claimant cannot receive a fair hearing before the Tribunal. It is convenient to record and comment upon them in turn.

The claimant has no specific memory of patient B. This claim is, at least on one view, inconsistent with an affidavit of the claimant's solicitor, Helen Jane Turnbull, sworn 10 April 2002. She says that her instructions are that while the claimant does remember having treated patient B, he has no recollection of her treatment in any detail and no recollection of conversations with her, (para 14).

The claimant has no memory of the type of treatment provided to patient B. In para 10 of the claimant's affidavit (sworn 9 April 2002) he says that he cannot recall anything specific by way of clinical data or conversations with [patient B] (my emphasis).

The claimant has no records which relate to the complainant. This is at the heart of the claimant's claim of unfairness. He says that his records would have been culled a number of years ago in accordance with his usual practice With regard to this, destruction of records between 1975 and 1983 is understandable. That all records relating to B's attendances on him between February 1990 and July 1992 were culled by 2001 may be less obvious. It may be noted however that there are third party records of attendances by patient B on SS (from the Health Insurance Commission (HIC)) between 1990 and 1992. By way of contrast one curious feature with regard to the complaint of patient A, made in late 1997 and ranging over the period between 1975 and 1996, is that SS makes no complaint concerning the absence of medical records. Indeed, he gave evidence before the first Tribunal that his medical notes were available but that he had culled his correspondence, which was important to him. He said that he did not cull his notes, (see transcript of evidence pp 168 and 186). The claimant also submits that he is prejudiced by the absence of records of other medical practitioners at the relevant times. While it is true that a number of practitioners have indicated that they have no records, others do have records, eg Dr Riley (November 1982 - March 1994), Dr Skinner (since November 1991) and importantly, Dr Sheridan.

The claimant has only a vague recollection of treating members of the complainant's family and is unable to distinguish between various sisters in the family.

The claimant has no diaries of the relevant period.

The claimant has no financial records for the relevant period.

It is difficult to see that this would be very relevant.

7-8. The claimant does not have any correspondence from the complainant.

9-10. The claimant has been unable to find any staff member who has any memory of the complainant. In particular, his receptionist of 25 years, Ms Fleming, has no recollection of the complainant as a patient.

11. The HIC records only go back to 1984 and there is no previous record of patient B's attendances on any medical practitioner or on the claimant prior thereto. 22 In summary, the claimant submits that he will suffer significant actual prejudice such that he cannot have a fair trial of the complaint made by patient B. The claimant's prejudice, occasioned by his routine destruction of records relating to the complainant, has irretrievably damaged his ability to defend himself in a way similar to the practitioner in Re Davis (1995) 81 A Crim R 156. 23 It is not doubted that there is power in the court to permanently stay proceedings in the Medical Tribunal, (Herron v McGregor (1986) 6 NSWSLR 246, Gill v Walton (1991) 25 NSWLR 190 and Walton v Gardiner). However, that power should only be exercised in very exceptional circumstances. The remedy is available to prevent injustice and abuse of process (Jago v District Court of NSW (1989) 168 CLR 23). While the factors to be taken into account in determining whether a permanent stay should be ordered so as to vindicate a person's right to be protected from an unfair trial cannot be precisely defined, Mason CJ said in Jago that they included the length of the delay, the reasons therefor and the prejudice suffered by the person accused. The remedy was to be ordered only in an 'extreme case' and a stay based on delay alone would be very rare (at 33 - 34). What was required 'must be a fundamental defect which goes to the root of the trial' (at 34). Further, it must be where there is nothing that a trial judge can do to relieve against the unfair consequences, see Barton v The Queen (1980) 147 CLR 75 at 111 (per Wilson J). Mason CJ said that where delay is the sole ground of complaint, a person seeking a permanent stay must show that the lapse of time must necessarily make the trial unfair so that any conviction would bring the administration of justice into disrepute (at 34). See also Deane J at 57 - 58. 24 Walton v Gardiner concerned a permanent stay of disciplinary proceedings in the Medical Tribunal, whereas many of the earlier authorities concerned the stay of criminal prosecutions. The court indicated that although the weighing process in determining whether a stay (in disciplinary proceedings) was appropriate was similar, it needed to be adapted to take account of the differences in the kind of proceedings. In particular, in the case of disciplinary proceedings, consideration must necessarily be given to the protective character of the proceedings and to the importance of protecting the public from professional misconduct by medical practitioners. 25 This latter point was also made by the Full Court of the Federal Court in Re Davis: … It is true that both proceedings arise out of the same set of allegations. If there will be difficulties in Dr Davis answering the criminal charges because of the lapse of time and the destruction of his medical records, there will also be difficulties for him in dealing with the Medical Board investigation. But that does not mean that the result, in terms of a stay, must be the same in each proceeding. There are important differences between the two proceedings. The Medical Board proceedings are not punitive in character. Although an order striking a practitioner's name from the register ordinarily has serious consequences for the practitioner, such an order is made to protect the public, not to punish the practitioner. Consistently with this distinction, a different standard of proof applies. An allegation of professional misconduct need be proved only to the civil standard of proof, a balance of probabilities. Charges of indecent assault, like other criminal charges, must be proved beyond reasonable doubt. The difference in the standard of proof reflects a view that it may be acceptable, as an act of public protection, to exclude from practice a person against whom it is impossible to prove the facts beyond reasonable doubt. [at 162 - 163] 26 The Full Court found that Dr Davis had suffered a special prejudice by the destruction of his medical records. The court explained why this was so important in the particular case (at 164). Their Honours were satisfied that the case met the demanding test for a permanent stay of the indecent assault charges. A fair trial was not possible. 27 Later, there was an application for a permanent stay of disciplinary proceedings against the practitioner. This was refused by Higgins J in G v Medical Board of the ACT, Supreme Court of the ACT, Unreported, 13 May 1994. In effect his Honour did not find that the prejudice to the practitioner occasioned by the delay was such as would mean that he could not have a fair hearing. The Full Federal Court (by majority) dismissed an appeal against the decision (Davis v Medical Board of ACT, Unreported, 27 June 1994). 28 While one can understand the claimant's reliance on the grant of a permanent stay of the criminal proceedings in Davis, it is a far cry from the present case. Leaving aside the important distinction between the nature of the proceedings (disciplinary as compared to criminal), it is plain to see why Dr Davis's medical records could be important to him receiving a fair trial. He was a gynaecologist and was necessarily engaged in intimate medical examinations of patients. The relevance of the medical records was obvious. 29 Here the claimant is a consultant physician and the evidence is that he treated patient B for diabetes and bulimia. No allegation is made by the patient of any improper physical examination by the claimant. Indeed, it is difficult to see that if the claimant had his medical records, they would have other than limited relevance. The notes, of course, would be likely to assist his memory of the complainant. 30 It is also material that the allegations made by patient B are such that it is unlikely that the doctor's staff would be able to give much relevant evidence, although this is not completely clear. Essentially the complaint boils down to oath against oath. The most serious allegation of sexual intercourse in December 1982 is claimed to have occurred in the claimant's car in the vicinity of a park. Patient B says that the claimant telephoned her at home one evening and arranged to pick her up outside her home. Other incidents (particulars 4 and 6) involved kissing and hugging in the privacy of the claimant's rooms. 31 In my opinion, the absence of the medical records of the claimant is not such as to make a fair trial impossible. There are some medical records available from other medical practitioners, importantly Dr Sheridan. The nature of the allegations made by patient B also diminishes the importance of the unavailability of the claimant's records. 32 The delay, including the destruction of the records, will clearly inflict a significant prejudice on the claimant. However, I am not convinced that in all of the circumstances it is impossible to have a fair trial. It will be necessary for the Tribunal to give itself similar but suitably adapted directions to those discussed in Longman v The Queen (1989) 168 CLR 79 and also Crampton v The Queen (2000) 206 CLR 161. This will help alleviate some of the prejudice to the claimant caused by the delay. It will acknowledge the difficulties faced by the claimant in meeting allegations brought many years after the events. 33 As Hodgson JA remarked in R v Littler (2001) 120 A Crim R 512, the remedy of a permanent stay is a remedy of last resort and only used in the most exceptional circumstances. 34 I am unpersuaded that the hearing of patient B's complaint by the Tribunal will involve such oppressive unfairness to the claimant, incapable of being overcome, so that it would be an abuse of process. The case is not so exceptional and unusual so as to justify the remedy. 35 In the result I am not satisfied that the proceedings before the Tribunal concerning the complaint by patient B should be permanently stayed. Accordingly, it is unnecessary to consider the further declarations sought in the Amended Summons, which is dismissed with costs. 36 HEYDON JA: I agree with Stein JA.

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