Hanna v Medical Council of NSW

Relevant Legislation

1. The powers exercised by the Medical Council through its committee of delegates are given by s 150 of the National Law. As they relate to the present matter, they provide: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's … registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) …. (2) A suspension of a registered health practitioner's … under subsection (1) has effect until the first of the following happens - (a) … (b) the suspension is ended by the Council. (3) … (4) A Council for a health profession may take action under this section - (a) whether or not a complaint has been made or referred to the Council about the practitioner …; and (b) whether or not proceedings in respect of a complaint about the practitioner … are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the [Health Care Complaints] Commission agrees with the imposition of the condition. (6) …. (7) ….
2. The appellant's right of appeal is conferred by s 159(1). The scope of the Tribunal's proceedings is the subject of s 159(3). 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession - (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; … (2) … (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given.
3. The powers of the Tribunal on appeal are governed by s 159C, as follows: 159C Tribunal's powers on appeal [NSW] (1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper. (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
4. The jurisdiction is a protective one, directed to the immediate action that might need to be taken in the public interest. The Tribunal is engaged in a reconsideration of the decision under appeal, and may have regard to evidence beyond that which was available to the original decision-maker. See further, Bova v Pharmacy Council of NSW [2014] NSWCATOD 40 at [14] ff; and Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115.
5. We are exercising afresh the administrative discretion found in s 150(1), having regard to the material now before us. We do not merely review the committee's decision and decide, for example, that it was one that was open to it to be made in the circumstances. We must assess separately and independently whether 'it is appropriate for the protection of the health and safety of any persons or persons' or 'is otherwise in the public interest' for action to be taken against a practitioner to suspend the practitioner's registration or permit the practitioner to remain in practice subject to conditions.
6. The Tribunal, like the Council was, is called on to deal with conduct of concern in circumstances where there may be continuing dispute as to precisely what occurred, and at a time when investigations by complaint bodies such as the Health Care Complaints Commission may have not commenced, or be uncompleted. In proceedings of this kind, we are not required to make formal findings of fact on the material before us.
7. A suspension order may well be imposed in circumstances when a conclusive finding as to what occurred and why it occurred may not yet be possible. This is a protective jurisdiction in which the paramount consideration is the health and safety of the public (or of particular individuals). We need to consider whether there is an unacceptable risk to the public in allowing the practitioner to continue in practice for the time being.
8. As it happens, in this case there is no longer any dispute by the appellant over what occurred, as we explain below. The issue for us is therefore whether there remains an unacceptable risk to the health and safety of the public (or particular members of the public) in allowing him to return to practice.
9. Nor is it relevant to these proceedings to undertake assessment as to whether the conduct under notice might constitute 'professional misconduct' or 'unsatisfactory professional conduct', or to make findings as to the fitness of the practitioner to retain registration as a medical practitioner. These are all matters that may fall to be addressed at a later stage, if and when disciplinary action is taken against the appellant by the relevant authority, the Health Care Complaints Commission in this instance.

The Appeal

1. The hearing proceeded on 15 and 16 November 2016, with evidence on 15 November and closing submissions on 16 November. They included written submission from the respondent, appraising the evidence given by the appellant.

Material before Tribunal

1. The respondent tendered an agreed bundle of documents (Ex 1) which included: the Police brief for the prosecution at the local court, additional documents prepared by the Police for the District Court appeal, the transcript of the local court proceedings, the reasons for decision of the Medical Council, testimonials as to character relied upon by the appellant at the Court hearing and before the Medical Council, and his prior professional disciplinary history. The evidentiary certificates as to the appellant's registration history were added at hearing.
2. The appellant tendered the pre-sentence report prepared for the sentencing hearing at the Local Court on 29 March 2016 (author, Stacy Williams, Community Corrections Officer) (Ex 2) and the Compliance Policy - Chaperone dated 1 March 2016 issued by the Medical Council.

Orders Sought

1. The appellant submitted that the public interest considerations to which s 150 refers (i.e. the protection of the health or safety of any person or persons or the public interest more generally) - would be adequately secured by an order which allowed him to continue in practice pending the outcome of the appeal to the Court of Criminal Appeal.
2. He sought an order that would permit him to return to practice subject to conditions. He did not place before us a precise statement as to the conditions he proposed.
3. It emerged in the course of the hearing that the conditions envisaged were ones that prevented contact with patients under 18 (reflective of the condition that applies in any case to a registered child offender), and presence of a chaperone when treating females. The respondent submitted that the Tribunal should confirm its order.
4. In addition the respondent argued that it was not open to the Tribunal in this instance to vary the suspension order and instead allow a return to practice subject to conditions.
5. Ms Lowson, for the respondent, submitted that the Tribunal's order-making powers on appeal as either to 'terminate, vary or confirm a period of suspension' or to 'revoke, vary or confirm the conditions'. It followed, she submitted, that the Tribunal could not respond to a suspension by substituting a set of conditions on the registration'. Secondly, she submitted that, were the Tribunal minded not to accept this submission and decided to allow the appellant to resume practice on conditions, there was no registration in existence to which those conditions could attach. The appellant's registration had expired on 30 September 2016, and not been renewed. Therefore, it was submitted the Tribunal was left with the choice of confirming the suspension or setting it aside. The intermediate course of imposing conditions was not available either as a matter of construction of s 159C, or because the appellant was no longer registered.
6. Mr Jackson, for the applicant, provided the Tribunal with written submissions in reply to the respondent's objection.
7. We will return to the respondent's objection later in our reasons.

Appellant's Evidence

1. The appellant gave oral evidence and was cross-examined.
2. He began by informing the Tribunal that he had withdrawn the appeal to the Court of Criminal Appeal. The respondent had received no prior notice of this change of circumstance. At the stay hearing, for example, the appellant had pressed as a strong consideration favouring a stay of the suspension the fact that he had an appeal on foot to the Court of Criminal Appeal.
3. He made the following points in his evidence: (1) He now unreservedly accepts that he was properly convicted as charged. (2) He has accepted his actions and his guilt. (3) He accepts unreservedly that his conduct was traumatic for B. (4) He has, with the benefit of a counselling, come to appreciate that his conduct was unacceptable, and in that respect has considered how he would feel if something similar had happened to his own daughter (presently, 17, like B). (5) He gave give no satisfactory explanation for his conduct at the time, and is now seeking help in that regard. (6) As to the seriousness of the conduct, he answered that he now appreciated that it might prevent him from ever practising medicine again. (7) In his pre-sentence report (Ex 2) for the District Court hearing, he acknowledged that he was accurately recorded by the author as denying the commission of any offence, and asserting that what occurred (which he essentially depicted as confined to an embrace that involved kissing) was consensual and blamed B for instigating contact. (8) He now fully accepted the outcome at Court, and no longer saw his loss of the case at the local court as due to inadequate representation by his barrister (one of the grounds of the appeal to the District Court). . (9) He had committed himself to complying with the terms of his sentence. He had now completed 100 hours of community service. He described the work he engaged in on a community works detail at Wollongong every Thursday (such as general rubbish removal and graffiti removal work), and referred to its positive value for him as a person. (10) His domestic circumstances were that he was living apart from his wife and two children (daughter, 17, son, 15), at his mother's home. His children, he said, were fully aware of the charges and the circumstances. (11) He blames no-one else but himself, he is very ashamed and disgusted by what he did. He has brought shame on his family. (12) With the assistance of counsellors and his family, he has grown and learnt.
4. He was closely cross-examined, and taken in cross-examination to the variance between his position now and statements he had made previously, such as in his evidence at the local court and before the s 150 committee. He was questioned on such matters as to the extent of his disclosure of his misconduct to his family and to witnesses from his clinic who had testified on his behalf, the extent to which he now accepted the detail of B's version of events, the extent to which he still considered that she consented to any of the conduct, the impact of the conduct on B, and its gravity. He was also questioned in relation to his family circumstances, his business and financial circumstances (he was declared bankrupt in 2012).
5. In his notification of his conviction to the Medical Council made July 2016, he said that he had 'since the conviction' laid off a junior member of staff. He was questioned as to why he had acted in this way. He said that this was due to the child protection registration order, and its prohibition on working with persons under 18.
6. He also denied that he deliberately failed to inform the s 150 committee that his name had been placed on the child protection register. He said that he signed the register on 22 July 2016. He said that he believed the committee knew of this development, and he did not need to raise it.
7. We do not need on this occasion to address and resolve all the differences highlighted by the cross-examination.
8. In answer to questions from members of the Tribunal, he advised that he been receiving counselling from his GP since February 2016. He had been referred to a psychiatrist, Dr Ashraf Phillips, of Campbelltown. He said he had seen him many times since losing the appeal to the District Court in July. He said that he was also seeing a Counsellor who was a clinical psychologist at the same medical centre as Dr Phillips. He said that he was currently using the following prescribed medication, Zoloft, to treat depression: initially (July) 100 mg; now (November), 150 mg. He also said he made occasional use to aid sleeping of Temazepam and Stilnox.
9. As to his currency of medical knowledge and experience, he said that since July he had no physical contact with his former practice, there had been some telephone contact. He had sought to keep up his CPD points. He said that he had passed a full performance assessment in recent times. He said that he had practised in the skin care field for the last 28 years.
10. He was asked about when he had started to review his previous responses to the allegations against him. He said it had begun just before the stay hearing, it had taken a while and referred to the benefit he had been receiving from the psychological counselling.
11. In response to further cross-examination, he said that he had raised with his GP his feelings of depression around January 2016, initially in relation to the impact of bankruptcy on his financial circumstances, and he then raised the assault case and its impact, both of which gave rise to the referral to the psychiatrist.

Consideration

1. In effect, the appellant's evidence constituted fresh evidence.
2. He now no longer actively contests the fact of his conviction. We were left uncertain as to the degree to which he accepts the detailed findings of the Magistrate.
3. He engaged in a grave abuse of the trust of a young woman.
4. The Magistrate was satisfied that 'the facts occurred as deposed by the complainant' (Transcript, 110; Ex 1, 446). We will give a summary of the B's evidence.
5. B said that in his initial meetings that day, he had asked a number of questions about her personal life. He knew that she had arrived for work that day in a 'teary' state, after a dispute with her father that morning. She commenced work about 1 pm. It proceeded in an orderly way at first, with her escorting patients into his office, and then leaving.
6. At around 4.30pm he called her in to his office on her own, sat down beside her, and discussed with her some of the personal matters talked about earlier. He went on to ask her out for dinner that evening. She said he told her that the 'other girls' were going. She agreed to go. She left the office and asked a woman who worked in the reception area if she was going. She said no. She then sent a text message to the appellant saying she could not go, and giving an excuse. The appellant asked her to come to see him in his office. She did so.
7. He locked the office door behind her. She saw that. She tried to open it, and it would not open. While the appellant vigorously contested many of the details of her account before the Court, he did admit that he had kissed her. The Court, as we have noted, accepted B's version of events, which was recorded in the Court's judgment as follows (Ex 1, 443-4): He was looking at me in a way he was not looking at me before, so I tried to open the door. He moved closer to me. He started kissing my face. I had my hands clenched in fists. I was trying to push him away. I wouldn't open my mouth. He put his hand at the back of me with open palms and slid them down to my bum. He grabbed it with both hands. He moved his hands to my pelvic area. He tried to grope my pelvic area. He hands [sic] were in my vaginal area. I pushed him away on his chest and he stepped backwards and unlocked the door and let me out. He said, 'I hope I didn't scare you'.
8. In accepting this evidence, the Magistrate had regard to the reports of B's workmates as to her distress after leaving the office, was particularly critical of vacillations and inconsistencies in the appellant's version of events and gave high weight to the consistency of B's account.
9. The Magistrate concluded (Ex 1, 446): I have found that he has lied as to the circumstances of the offence; precisely, I am satisfied, because he knew she did not consent. He did not ask before he kissed her, he took advantage of his position of authority to control the situation. He was at the very least reckless as to whether she consented or not in that he was indifferent to her feelings but consumed by his own and decided to act on them regardless. The offences went far beyond a kiss. I am satisfied that he grabbed her backside and touched in the area of her groin. The touching in that area does not require proof of the purpose of the action being for sexual gratification but I am nevertheless satisfied on the accused's own evidence that he acted in part because he was male, that he enjoyed the encounter, that there was an element of sexual gratification clearly in the acts that he forced on the complainant on this day and I am satisfied that those are acts which right-minded person [sic] would consider to be contrary to community standards of decency; that they are indecent acts.
10. The appellant committed an offence of violence of a sexual nature against a young woman in his employ.
11. The events are relatively recent, they occurred a little over 18 months ago. They involve the exploitation of a young woman who was in a very vulnerable position, the first day at a new job, in circumstances where she must have had, given her age, little workforce experience. The appellant's conduct that day points towards him grooming her for his invitation to go out with him that evening. On the Magistrate's findings, he misled B into believing it was a staff event, as distinct from a one-to-one invitation. He then engaged in the aggressive and non-consensual conduct recorded in the Magistrate's findings, set out above.
12. His opportunity to behave as he did was assisted by: his place as the young woman's employer, an expectation that a person in her position would have held that he would behave with integrity, and the usualness of private meetings, one-to-one, between a person employed as a secretary and the person the secretary assists.
13. The appellant's behaviour points, in our view, to maladjustments in his ability to deal with feelings of attraction to women, and difficulties in maintaining appropriate standards of conduct in relation to employees to whom he is attracted personally.
14. His evidence at our hearing was insubstantial. We saw, perhaps, the beginning of a process of recognition of the gravity of the conduct in which he engaged. We are unconvinced that he accepted that he had behaved with the degree of calculation and indifference to B's position, as found by the Court. He continued to cavil with parts of B's account.
15. He showed, in our view, little insight into the gravity of his behaviour, and had difficulty in placing himself in the position of a young person in a vulnerable setting. He had begun to think about that situation as the father of a daughter of the same age, but he had not, as we saw it, even commenced to develop a perspective that was founded on general considerations of respect for the autonomy and dignity of those with whom he dealt and to whom he felt an attraction.
16. While he may have begun a program of rehabilitation, he did not provide us with any evidence, in the form of affidavits or the like, from the GP, the psychiatrist and the counsellor on whom he has attended during 2016, and especially since July 2016.
17. We are unable to make any informed appraisal of the extent of his recognition of the wrong in which he engaged, the steps he has taken to have identified the attributes of personality and outlook that underlie the behaviour, the advice he has been given as to who to address and reform those attributes, and the progress he has achieved. We were invited by respondent's counsel to draw an adverse inference, i.e. that this material would not have assisted his case and was therefore withheld. While the submission was open to be made, we need not go that far to dispose of this case.
18. It may be that the appellant's conduct was an isolated event, explicable by factors present in the appellant's life at the time. He referred in evidence to the marital and family stress he was under, and the financial stresses he was under as a result of failed business ventures. Some of this material is canvassed in the Stay Decision. But again we have no expert evidence to assist us in reaching any conclusion in his favour of that kind.
19. The stark findings of the Magistrate are the only evidence as to propensity.
20. In our view, he continues to present a serious risk to the safety of persons who are in a vulnerable relationship to him (whether as patients or employees) that he may behave again in the way he did in July 2015 if similar circumstances and opportunities arise.
21. We have not reached the point where it might be appropriate to give consideration to allowing him to return to practice subject to a chaperone condition.
22. In our view, prior to imposing a chaperone condition, the relevant decision-maker would need to be satisfied that the practitioner had attained by that time a state of recognition and rehabilitation of a high degree in relation to the circumstances that have given rise to consideration of a chaperone condition. As we see it, a chaperone condition lies towards the end of a process of rehabilitation. It is not to be imposed as a means through which an errant practitioner may avoid a process of rehabilitation, with the result that the chaperone is cast in the role of primary guarantor to the public that the practitioner will not repeat the misbehaviour to which it relates.
23. In the case of BCS v Dental Council of NSW [2015] NSWCATOD 157 the Tribunal on appeal confirmed a decision of a s 150 committee to allow a dentist to remain in practice subject to a chaperone condition. There was substantial expert evidence in that case that led the Tribunal to state that, if conduct (alleged to have occurred some time ago) did occur, it was 'prepared to accept that without a chaperone the risk of the appellant acting in an inappropriate manner with female patients is now likely to be low': at [45]. This observation is in line, we consider, with the approach to this issue which we think appropriate. The chaperone condition is being imposed against a background of satisfaction that the risk of recurrence is now low. Moreover, we note that in that case, the Tribunal had before it a highly detailed chaperone condition, which it commended as 'measured and proportionate': [48].
24. The appellant is, as we see it, at a very early stage of coming to terms with the gravity of his conduct, and obtaining appropriate professional assistance in relation to the habits of mind, life factors and personality issues that led him to act as he did. He abused the trust of a young woman on her very first day of employment.
25. There was reference in the material to the appellant's prior registration and disciplinary history. It referred to the imposition of practice conditions requiring audit of keeping of medical records, which resulted from a performance review, for the period 2008-2010; and which were widened and continued for the period, 2010-2013. There is also reference to a reprimand imposed in 2011. We have taken no account of this material in these deliberations.

The Respondent's Preliminary Objection

1. We have outlined the respondent's arguments earlier in our reasons. In light of our conclusion, it is not necessary to address them in detail. In Khan v Medical Council of NSW [2016] NSWCATOD 88, the Tribunal (Marks ADCJ, Principal Member) heard similar arguments: see [27]-[31]. The Tribunal, on that occasion, like now, declined to rule authoritatively on them as it refused the appellant's application for leave to appeal out of time after considering whether an exception should be made because of the prospects of success of the appeal, and the issue did not crystallise.
2. Without expressing a final conclusion, the arguments of the respondent are dubious. The order-making powers of the Tribunal relate to appeals from the s 150 committee. It would be an odd outcome if a Tribunal, so minded, could not 'vary' a suspension in such a manner that it is set aside and replaced by an order imposing conditions, as occurred, for example, in Dr Reid v Medical Council of NSW [2014] NSWCATOD 152. The words of s 159C ought not be construed in a way that defeats the apparent purpose of the appeal right, to allow a full reconsideration of the s 150 committee's decision. The appeal will take place well away from the time urgency that often surrounds s 150 processes, and the appeal will often have a body of evidence that had not been assembled at the time of the s 150 hearing. Reid was such a case.
3. As to the second point, founded on the appellant's absence of a current registration, the Tribunal is inclined to agree with the submissions on behalf of the appellant. Section 176D provides that if a practitioner is suspended under the National Law he or she 'is taken during the period of suspension not to be registered under the Law, other than for the purposes of this Part.' The Part to which the exception refers is Part 8, 'Health, Performance and Conduct'. The powers given by s 150 and the Tribunal under s 159C belong to that Part. In our view, this is a clear expression of a Parliamentary intent to preserve the interest in registration of a practitioner affected by the complaints and disciplinary system. It also explains the pointlessness of a practitioner seeking to remain registered while suspended. The Tribunal doubts that its power to substitute conditional registration for suspension is constrained because time has passed, and the registration has lapsed at the time of the appeal hearing.

Costs

1. The respondent made the usual application for the Tribunal to order the appellant to pay its costs of the proceedings under cl 13 of Sch 5D of the National Law. The appellant has not made any submissions in reply. As the appellant has not been successful, the Tribunal makes the usual order.

Order 1. Appeal dismissed. 2. Decision under appeal confirmed. 3. Appellant to pay the respondent's costs of the appeal, as agreed or 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: 16 February 2017