Health Care Complaints Commission v Alexakis

NCAT Occupational|2021-06-28

REASONS FOR DECISION

Before the Tribunal is an application made by a medical practitioner registered under the Health Practitioner Regulation National Law (NSW) ("National Law"), ("the practitioner") for a temporary stay of proceedings brought against him by the Health Care Complaints Commission ("HCCC"). The application is made because there are proceedings currently in the Supreme Court of New South Wales which will determine the most significant issues raised by the HCCC. The application is opposed by the HCCC.
The application by the practitioner has been made relying upon the affidavits of Kirstin Jaye Fulcher on 26 February 2021 and 24 June 2021, and upon both oral and written submissions. The HCCC has also provided both written and oral submissions.

Facts

The practitioner had provided professional medical services to a patient known as Patient B from approximately January 2014. At that time Patient B was approximately 80 years of age. The practitioner continued to treat Patient B from January 2014 until 5 October 2017. Such treatment was performed by the practitioner at the home of Patient B and during visits by the practitioner whilst the patient was admitted to Concord Repatriation General Hospital (between 20 June 2015 and 23 January 2017) and at the Royal Prince Alfred Hospital (RPA) (from 6 May 2017 to 16 May 2017 and again from 26 May 2017 to 26 June 2017).

Execution of wills

During the period of his medical supervision of Patient B, the patient executed several wills. During his second admission to RPA, Patient B asked the practitioner to put him in contact with a solicitor so that the solicitor could assist him in arranging his financial affairs. The practitioner duly did so, arranging for Solicitor C, who had previously acted for the practitioner's father, to consult Patient B.
On 8 June 2017, Patient B revoked a former will dated 25 May 2016 which had named the Salvation Army as executor and beneficiary for the majority of his estate. Patient B thereupon made a new will on 8 June 2017 ("the June will"). Under the terms of such will, the practitioner was to receive 65% of his estate and was also nominated as his executor.
On 10 July 2017, Patient B revoked his 8 June 2017 will and made a new will ("the July will"). The July will appointed Solicitor C as executor and bequeathed the practitioner a property located in metropolitan Sydney and approximately 90% of his estate. Patient B died on 21 November 2017 aged 83 years of age.

Challenge to will

Solicitor C renounced probate of the July will. Instead, the practitioner, being a person interested in the estate as referred to in section 75 of the Probate and Administration Act 1898 (NSW) applied for administration of the estate with the will annexed. On 2 October 2019 a notice was published on the Supreme Court website stating that the practitioner would make an application for administration of Patient B's will. The notice also stated that the solicitor nominated as executor in the July will had renounced probate on 9 September 2019.
The Salvation Army and a relative of Patient B (the defendants) have challenged the authenticity of the July will and the June will.
Accordingly, the practitioner commenced proceedings in the Supreme Court of New South Wales, Equity Division, Probate List on 28 June 2019 in proceedings number 2018/23579. The practitioner, by his amended statement of claim, seeks orders which would, inter alia, grant him letters of administration with the will dated 10 July 2017 annexed. The effect of such a grant by the Supreme Court would validate the July will.
Defences have been filed by the defendants which allege that the July will and June will were each executed in suspicious circumstances; were executed as a result of undue influence and fraud on the part of the practitioner; and opposing the practitioner's application for a grant of administration of Patient B's estate. A further amended statement of cross claim has been filed by the Salvation Army seeking an order that a grant of probate of the previous will made by Patient B on 27 May 2016 be granted to the Salvation Army. Other parties are named as cross-defendants but are not relevant for the present application before this Tribunal.
The Supreme Court proceedings have proceeded to the stage where they are now ready for hearing and according to the recent affidavit of Kirstin Jaye Fulcher sworn 24 June 2021 the proceedings are currently listed for a 10-day hearing commencing on Monday, 6 December 2021. If the hearing is not concluded by the end of the law term, the matter will proceed part-heard on Monday, 31 January 2022. The Tribunal proceedings have not been set down for hearing and the practitioner has yet to file any evidence.

Proceedings by HCCC

Arising from a complaint made against the practitioner, the HCCC filed a Complaint in the Tribunal on 15 May 2020. The Complaint comprises five individual complaints ("the complaints"). Complaint One and Complaint Two allege that the practitioner is guilty of two instances of unsatisfactory professional conduct within the meaning of section 139B(1)(a) of the National Law in respect of prescribing, and management of a patient known as Patient A. This patient is unrelated to Patient B and to the Supreme Court proceedings and is not relevant to this application.
Complaint Three alleges two instances of unsatisfactory professional conduct contrary to section 139B(1)(b) of the National Law. Complaint Three alleges that the practitioner failed to observe proper professional boundaries with respect to Patient B in matters relating to the practitioner's attention to Patient B and particularly in relation to the circumstances leading to the execution of Patient B's several wills.
Complaint Four alleges unsatisfactory professional conduct with respect to the treatment provided by the practitioner to Patient B.
Complaint Five alleges professional misconduct by the practitioner under section 139E of the National Law arising out of the matters relied upon in Complaints One to Four inclusive.

Common subject matter in Tribunal and Supreme Court proceedings

Improper Influence

Complaint Three, Particular 1 of the complaints raised against the practitioner by the HCCC is an assertion that the practitioner failed to observe proper professional boundaries in that he visited Patient B on at least 10 occasions in a non-professional capacity and without clinical indication.
Complaint Three, Particular 3 alleges that the practitioner failed to observe professional boundaries with RPA and Concord Hospital staff in that the practitioner contacted Patient B's specialist concerning Patient B's health, leave from the hospital, and discharge and transfer from hospital.
The Salvation Army in the Supreme Court proceedings alleges that during Patient B's second admission to RPA, the practitioner visited Patient B on most evenings after hours and allegedly discussed Patient B making a will with the practitioner as a substantial beneficiary.

Referral to Solicitor C

Complaint Three, Particular 2 alleges that during the second admission to RPA, Patient B requested that the practitioner arrange for a solicitor to attend him at the hospital for the purpose of assisting with his will, and that the practitioner arranged for Solicitor C to attend. The allegation asserts that: 1. Solicitor C had assisted the practitioner's father with his will so there was a potential conflict of interest; 2. the request for legal assistance made by Patient B ought to have been referred to Patient B's treating health practitioners at RPA or to the NSW Trustee and Guardian.
The Salvation Army pleads in the Supreme Court proceedings that: 1. there were allegedly suspicious circumstances in the making of Patient B's will on 10 July 2017, including the fact that the practitioner introduced Patient B to Solicitor C; 2. the purported will dated 10 July 2017 allegedly resulted from undue influence on the part of the practitioner and Solicitor C; 3. there was fraud on the part of the practitioner and Solicitor C regarding the 10 July 2017 will; 4. Patient B was subject to a special disability in his dealings with the practitioner and was liable to exploitation by him.

Practitioner's home visits to Patient B

Complaint Three, Particular 4 alleges that between 25 June 2017 and 5 October 2017 the practitioner failed to observe proper professional boundaries in that he: 1. conducted almost daily home visits (approximately 92 visits) to Patient B where, at most, weekly home visits were clinically indicated; 2. regularly attended to dressings for Patient B which ought to have been performed by community nurses.
The Supreme Court pleadings of the Salvation Army allege that: 1. from about 2013 the practitioner, as Patient B's general practitioner, occupied a position of trust and had a relationship of undue influence over Patient B; 2. the practitioner told Patient B that he would arrange for Patient B to be discharged from RPA and that he would then care for him at home, when the practitioner knew he would be unable to do so.

Practitioner's submissions

The practitioner submits that the pleadings show that the Supreme Court will be required to determine issues of law which form the basis of the complaints made by the HCCC against the practitioner.
Further, the Supreme Court will also be required to determine issues of fact common to both proceedings before this Tribunal and in the Supreme Court.
A common issue arising in both proceedings will be the practitioner's professional obligations. If the Tribunal proceedings are heard first, the potential exists for the Tribunal to make findings which would prove to be inconsistent with findings of the Supreme Court. Such a potential should be avoided.
The practitioner claims that prejudice may potentially be suffered by him if the Tribunal proceedings were to conclude before the Supreme Court proceedings. There is a substantial overlap between the two proceedings and the practitioner's defence to the Tribunal proceedings will almost entirely overlap with his application in the Supreme Court. Such is evident from the fact that Complaint Three, Particular 6 states: "The practitioner engaged in the conduct set out above in particulars 1, 2, 3, and 4, as he was motivated to be named as a beneficiary of Patient B's Will in circumstances where Patient B had agreed to name the practitioner as a beneficiary if he assisted Patient B return and be cared for at home on an ongoing basis."
It is submitted that the practitioner should not be put in a position where he has to make forensic decisions in the Supreme Court proceedings which could have consequences for his defence in the Tribunal proceedings. Further, the practitioner should not be prejudiced by the fact that other parties to the Supreme Court proceedings should seek to gain an advantage in the Tribunal proceedings by accessing and using evidence in the Tribunal proceedings.

Protection of the public

The practitioner states that he is already subject to conditions which restrict his practice which were imposed following a hearing convened pursuant to section 150 of the National Law on 24 November 2017. The conditions, imposed under section 150(1)(b) of the National Law, impose significant restrictions upon the manner in which the practitioner can practise, a prohibition upon him administering any drug of addiction, and a requirement to be mentored.
In March 2019, the practitioner made an application under section 150A of the National Law for a variation of two conditions. The conditions were varied, the delegates finding that the practitioner had made "a significant change" in his practice to improve his knowledge and understanding of drugs of addiction and pain management. Accordingly, the conditions were varied to remove the limit of consulting with 30 patients a day (increasing to 36 patients a day), and to permit him to work alone in practice without other medical practitioners.
In summary, the practitioner submits that: 1. he is not a danger to the safety and health of the public; 2. any prejudice to the HCCC is not of significance taking into consideration that the witnesses are mainly medical witnesses and the only civilian witness is a community nurse whose evidence is confined; 3. there has already been a significant delay: the initial complaint concerning the practitioner's practice was raised by email on 28 June 2017 whilst Patient B was still alive. Section 150 proceedings were held by the Medical Council of New South Wales on 24 November 2017; 4. there is a commonality of witnesses, and of allegations in both proceedings; 5. the proceedings in each case arise out of the same factual matrix in relation to the undue influence and suspicious circumstances alleged, and alleged improper conduct on the part of the practitioner; 6. judicial comity requires that where there are overlapping proceedings, the Tribunal should give way to the jurisdiction of the Supreme Court as the latter will make a determination which is binding in rem i.e. it is a determination binding for all purposes; 7. the allegations made in the Complaint relating to Patient B include matters which necessarily involve the application of the Probate and Administration Act, for example the right of the practitioner to apply for administration, the lodgement of the statutory notification on the Supreme Court website, and the duty of the practitioner under the Act to apply for probate; 8. if the Supreme Court should find that there was no undue influence or suspicious circumstances or fraud as alleged, such finding would significantly impact upon the proceedings before the Tribunal: the same conduct alleged against the practitioner will be considered in the Supreme Court as would be considered in the Tribunal. 9. in the interests of justice, a temporary stay is required.

HCCC's submissions

The HCCC submits that: 1. the purpose of granting a temporary stay is to permit any obstacle in the way of a fair hearing to be removed during the period of the stay: see R v Woods & Williams [2010] NTSC 69 at [104]; 2. a temporary stay should be granted when it is necessary to prevent an injustice: see Medaris v Lars Halvorsen & Sons Pty Ltd (1943) 44 SR (NSW) 71 at 76 per Jordan CJ; 3. there is a difference between a temporary stay of civil proceedings where there are concurrent criminal proceedings, and the present circumstances; 4. the Tribunal proceedings are entirely different in their nature to the Supreme Court proceedings as was considered by Bryson J in The Owners - Strata Plan No 51487 v Broadsand Pty Ltd [2001] NSWSC 813 at [9] and [10], and that it may be acceptable and necessary to accept that "two courts in this State should consider the same facts in different legal guises"; 5. how the proceedings could impact upon the consideration of the practitioner's forensic defences is not apparent; the interests of justice do not require a stay.

Observations

The Tribunal has general power to grant a stay. Section 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) provides as follows: 43 Effect of pending general applications and appeals ... (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.
The power to grant a stay lies at the sole discretion of the Tribunal. Such discretion must be exercised judicially. As was stated in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37, the principles to be followed can be derived from the terms of section 43(3) and from considerations applied by courts in deciding whether or not to grant a stay pending an appeal: see [7] to [9].
The Tribunal considers that the interests of justice are its paramount consideration. In Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 the High Court of Australia held at [47] that the risk of prejudice to the second respondent if a stay was not granted to restrain proceedings brought against the respondent's wife concerning forfeiture of property as proceeds of crime justified a stay of proceedings. One of the considerations was the fact that unless the proceedings were stayed, the prosecution could be informed in advance of the other proceedings which the respondent could not defend without disclosing his defence. As a result, the prosecution would be provided with an unfair advantage which would lead to an unfair trial.
In Coleman v Health Care Complaints Commission of NSW [2020] NSWCA 337 ("Coleman") an application for a stay of Tribunal proceedings was sought by a medical practitioner facing both criminal proceedings and disciplinary proceedings. At [32] the New South Wales Court of Appeal said: "As is apparent from Zhao, prejudice to an accused person can similarly arise where the person, although not subjected to compulsory examination, is placed in the position of having to decide, before the criminal trial, whether to defend civil proceedings and by doing so expose their case on issues common to both the criminal and the civil proceedings."
The Court of Appeal at [40]-[48], in granting the stay, identified three issues which can be summarised as follows: 1. the fact that the Tribunal proceedings were "wider in scope" than the criminal proceedings was of limited significance: if there was overlap i.e. both proceedings are to deal with any of the same alleged misconduct, the potential for prejudice remains; 2. the prejudice to the practitioner was "equally plain" as that to the second respondent in Zhao; 3. the claim by the HCCC that the Tribunal proceedings were urgent was rejected.
The fact of two different proceedings which encompass many of the same facts does not constitute an abuse of process as was considered in Jackson (formerly Subramanian) v Legal Practitioners Admission Board [2007] NSWCA 289 at [34]; Health Care Complaints Commission v Black [2014] NSWCATOD 35; Chief Executive of the Office of Local Government v Bagnall (No 1) [2017] NSWCATOD 106. The question for consideration is whether there are sound reasons why a stay should be granted.

Consideration

The proceedings have been commenced in this jurisdiction by the HCCC in fulfilment of the obligation to uphold the objectives of the National Law, particularly section 3A which provides: 3A Objective and guiding principle [NSW} In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
The National Law expressly foreshadowed the possibility of concurrent proceedings. Section 145G of the National Law provides: 145G Inquiries etc not prevented by other proceedings [NSW] A complaint can be referred to a Committee or the Tribunal, and dealt with by the Committee or Tribunal, even though the practitioner or student concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint.
In fulfilment of such obligation, disciplinary powers may be exercised by the Tribunal as provided in ss 149, 149A, 149C and 149D of the National Law to ensure that the objective contained in section 3A of the National Law and the integrity of the medical profession is maintained, irrespective of other proceedings relating to the practitioner.
Complaint Three relates to the alleged influence by the practitioner over Patient B, and the circumstances surrounding the execution of the July will, being allegations of improper professional conduct. However, the central focus is whether professional boundaries were exceeded, such as to constitute a breach of section 139B(1)(l) of the National Law. If established, disciplinary sanctions could be imposed upon the practitioner.
The authorities relied upon by the practitioner support the proposition that a stay should be granted in circumstances where there is a risk of prejudice to a party involved in other proceedings. In Coleman, McFarlan JA stated at [27]: "Section 145G of the National Law permits complaints under the Law to be dealt with by the Tribunal "even though the practitioner … concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint" (see also s 243). As Zhao demonstrates, a provision of this type does not however oust or limit the Tribunal's power to stay proceedings in the Tribunal if the interests of justice require it. Circumstances that may result in a stay were referred to in Zhao at [35], in the context of the issues in that case, as follows: 'Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial.'"
The HCCC submits that the authorities relied upon by the practitioner should be confined to instances where there are civil proceedings and related criminal proceedings. The HCCC draws attention to the observations of Bryson J in The Owners - Strata Plan No 51487 v Broadsand P/L [2001] NSWSC 813 at [9]: "… the decisions do not establish broad principles, nor do they establish any clear practice or course of proceedings; and it would not be appropriate for them to do so as each matter must be addressed in its own circumstances".
The issues raised in the Supreme Court proceedings will determine, in accordance with the laws of evidence, whether the practitioner engaged in conduct constituting undue influence and/or fraud. They are serious matters for the practitioner, not only for his personal reputation, but also since any finding adverse to him would impact upon his professional reputation. Adverse findings could also have an impact upon the allegations made in the Complaint filed by the HCCC.
Conversely, should the practitioner be exonerated of the issues raised against him by the Salvation Army and the other defendants/cross-claimants in the Supreme Court proceedings, such result could have a profound impact upon the proceedings before the Tribunal.
The Tribunal, however, is only concerned with the question of whether the complaints are established as alleged. That enquiry will focus on whether the practitioner has breached ethical standards under section 139B(1)(l) of the National Law. Evidence seeking to establish that the practitioner failed to observe proper professional boundaries would be the subject of consideration before this Tribunal.
If the proceedings before this Tribunal continue, the practitioner submits there is a real risk of inconsistent findings being made on the same subject matter. Such a result is clearly not in the interests of justice. However, the Tribunal is only to consider alleged breaches of professional boundaries: any determination made by the Tribunal will relate to the subject matter. In contrast, the determination of the Supreme Court will determine whether or not the practitioner engaged in conduct which renders the July will invalid.
The extent to which any forensic decisions by the practitioner may be impaired or interfered with should both proceedings continue simultaneously is a factor to be considered but is secondary to the critical matter of the separate nature of the proceedings in each jurisdiction.

Other considerations raised by the practitioner

The practitioner submits that there is no urgency in the disposal of the Tribunal proceedings, since he is now practising under conditions, and that by virtue of the conditions imposed upon him, initially on 29 November 2017, the Medical Council of New South Wales did not consider that the practitioner should not be allowed to practise. Further, in March 2019 those conditions were varied to remove certain restrictions. Again, the Medical Council did not consider that the protection of the public and the profession required the practitioner to be suspended.
The practitioner refers to the extensive delay incurred before the proceedings were instituted in this Tribunal. Such delay gives rise to the submission made by the practitioner that the HCCC does not consider that the health and welfare of the community are at risk if the practitioner is permitted to continue to practise pending the outcome of the Supreme Court proceedings. It is also submitted by the practitioner that there is no urgency in bringing the Tribunal hearing forward, especially since the Supreme Court proceedings have been listed for hearing this year.

Findings

The Tribunal is mindful of the submissions of both parties and of the overlap of the factual matters. It notes as follows: 1. the proceedings in the two jurisdictions are of a fundamentally different nature. The proceedings in this Tribunal are solely to determine whether, on the facts as they are known, the practitioner has engaged in conduct which exceeds the professional boundaries as alleged in Complaint Three, thereby constituting a breach of section 139B(1)(a) or (l) of the National Law. The Tribunal will not be investigating the question of whether the July (or June) will of Patient B is valid. This enquiry is solely the function of the Supreme Court proceedings; 2. unlike criminal proceedings where there could be a real prejudice to a practitioner who is named as a defendant in concurrent proceedings, and who wishes to exercise the right of silence, the Supreme Court proceedings instituted by the practitioner are civil proceedings. The practitioner has already provided his evidence in anticipation of the hearing in the Supreme Court proceedings. Accordingly, there is no forensic benefit in postponing the Tribunal proceedings because some matter may be disclosed which would affect a defence in criminal proceedings; 3. whilst there may be a commonality of the factual matrix, and of witnesses, the Tribunal will only be considering those matters in relation to the alleged breach of the National Law; 4. any inconvenience to the practitioner is not a reason to grant a stay. The Tribunal respectfully adopts the observations of Dixon J in Union Steamship Co of New Zealand Ltd v The Ship Caradale (1937) 56 CLR 277 at 281; [1937] HCA 1 where his Honour recognised: "The inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration." Nevertheless, the stay was refused because it was considered that, despite concurrent proceedings arising in the Supreme Court of Victoria, the Admiralty jurisdiction was an appropriate forum to hear the specific issues. 1. it will be a matter for the Tribunal to consider whether it accepts the expert evidence adduced by the medical expert relating to the conduct of the practitioner in making the application for probate. Such evidence is enmeshed in the consideration of whether the practitioner has engaged in conduct in breach of section 139(1)(a) of the National Law. Such evidence does not seek to address the issue of the validity of Patient B's will.
The Tribunal considers that because of the above considerations and the essentially different enquiries to be embarked upon by the Court and the Tribunal, and of the different standards of proof applying in each forum, whilst there may be a degree of evidentiary overlap, the Tribunal proceedings should continue.
For these reasons the Tribunal refuses the application for a stay of these proceedings.

Orders

The Tribunal orders that: 1. The application made pursuant to section 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) that these proceedings (2020/00148494) be stayed pending further order, is refused. 2. The name of Patient A and of Patient B is not to be disclosed to any person.

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

Amendments 27 July 2021 - "Patient B's death on" omitted at [3] to correct error 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: 27 July 2021

At a glance

Court

Decision date

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (11)

Cited By (1)