Health Care Complaints Commission v Amalakumar

The Complaint

1. Complaint One was as follows: Pursuant to section 144(a) of the National Law the practitioner was made the subject of a criminal finding for an offence. PARTICULARS OF COMPLAINT ONE 1. On 3 March 2017 at XXXX Local Court, the practitioner was made the subject of a criminal finding that an offence of common assault contrary to section 61 of the Crimes Act 1900 (NSW) was proven.
2. Complaint Two was withdrawn.
3. Complaint Three was as follows: is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened section 130(1) of the National Law. PARTICULARS OF COMPLAINT THREE 1. On and from 1 November 2016, the practitioner contravened section 130(1)(a)(i) [sic] of the National Law in that the practitioner failed to give the National Board written notice within 7 days after becoming aware of being charged on 25 October 2016 with a criminal offence punishable by 12 months imprisonment or more, namely one count of common assault contrary to section 61 of the Crimes Act 1900 (NSW). 2. On and from 10 March 2017, the practitioner contravened section 130(1)(a)(ii) [sic] of the National Law in that the practitioner failed to give the National Board written notice within 7 days after becoming aware of being the subject of a finding of guilt on 3 March 2017 for an offence punishable by imprisonment, namely one count of common assault contrary to section 61 of the Crimes Act 1900 (NSW).

Consideration of the Complaints

1. The Health Practitioner Regulation National Law ("National Law") says, in s 144(a): The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.
2. Complaint One has been made out. Particular 9 of the Statement of Agreed Facts sets out the finding of the Magistrate on 3 March 2017 that the practitioner committed common assault against his wife on 25 October 2016. Ultimately, no conviction was recorded and a six month good behaviour bond was imposed upon the practitioner (see particular 15 of the Statement of Agreed Facts).
3. In his written statement, the practitioner expressed his remorse for his actions towards his wife on 25 October 2016. The practitioner said that he was not brought up with violence in the household and violence towards women is unacceptable in the culture in which he was brought up.
4. The practitioner also expressed his remorse in evidence before the Tribunal.
5. The common assault occurred in the course of an argument about housework. The practitioner and his wife have subsequently largely resolved their differences about the performance of household chores.
6. The interim apprehended violence order did not prevent the practitioner from living with his wife.
7. The practitioner's wife wrote to the Magistrate's Court attempting to have the matter withdrawn in November 2016. We accept that she is now fully supportive of the practitioner.
8. As to Complaint Three, we note that there is a typographical error in both particulars 1 and 2, in that instead of "section 130(1)(a)(i) of the National Law", particular 1 ought to refer to "section 130(1) and subs (3)(a)(i) of the National Law", and "section 130(1)(a)(ii) of the National Law" in particular 2 ought to be "section 130(1) and subs (3)(a)(ii) of the National Law". We will treat those errors as having been corrected. The facts are conceded in paragraphs 11 and 12 of the Statement of Agreed Facts.
9. The National Law provides, in s 130: (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner or student does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) In this section - relevant event means - (a) in relation to a registered health practitioner - (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more; or (ii) the practitioner is convicted of or the subject of a finding of guilt for an offence, whether in a participating jurisdiction or elsewhere, punishable by imprisonment; or ….
10. The National Law provides, in s 139B(1)(b): (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. …
11. The practitioner said, in his statement, that he attended at the offices of a firm of solicitors and had a conversation with a solicitor, who he named, on the day following the assault. The solicitor told him that the charge against him could affect his registration as a medical practitioner, but advised him that he did not need to do anything about reporting it at that stage because he had not then been convicted or found guilty.
12. A few days after the Magistrate found the charge proven, the practitioner had a conference with his solicitor (the second solicitor), who was not the solicitor from whom he initially sought advice. It was the practitioner's evidence that the second solicitor told the practitioner that he did not need to notify "the Medical Board" at that time, because although the charge had been found proven, the practitioner had not been convicted. The Magistrate was to consider whether to enter a conviction at a later date.
13. We accept the practitioner's evidence as to the advice he obtained from the first and second solicitors. The practitioner impressed us as an open and truthful witness. The practitioner also impressed us as an intelligent person, who would not be likely to omit to follow legal advice when his registration as a medical practitioner was in issue. It seems that neither the first nor the second solicitor was aware of the obligation imposed upon the practitioner by s 130(1) of the National Law to make a report to the Australian Health Practitioner Regulation Agency (AHPRA) (which receives notifications for National Boards under the National Law), upon being charged with an offence punishable by 12 months imprisonment or more. Common assault is such an offence.
14. In early August 2017, the practitioner received a reminder to apply to renew his registration as a medical practitioner. He noticed that one of the questions on the form for the application for renewal related to whether he had any criminal convictions. The practitioner was unsure how to answer the question, so he sought advice from the second solicitor. Subsequently, on 17 August 2017, the practitioner sought advice from his medical defence organisation, Avant Mutual. He received the correct advice as to his obligation to report for the first time from Avant Mutual.
15. On 25 August 2017, the practitioner notified AHPRA that he had been charged with "Common Assault Domestic Violence" on 25 October 2016, that a finding of guilty had been made against him on 3 March 2017 and that the matter had been adjourned to 15 December 2017.
16. We accept the practitioner's evidence that he was not given the correct advice in relation to his obligation to report, and that he made a report to AHPRA reasonably promptly after receiving the correct advice.
17. Section 139B(1)(b) is set out in [16] above. It was argued in the practitioner's case that committing a contravention of the kind described in s 139B(1)(b) did not automatically mean that the practitioner had necessarily committed unsatisfactory professional conduct.
18. We reject the suggestion in the practitioner's case that we have any discretion as to whether a contravention of the kind set out in s 139B(1)(b) of the National Law constitutes unprofessional conduct. Section 139B(1)(b) is unlike s 139(1)(a) or s 139(1)(l), for example, in that it requires no evaluation, assessment or characterisation of the conduct alleged in order to be established.
19. Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such.
20. In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether "any other improper or unethical conduct relating to the practice … of the practitioner's profession" has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct.
21. In the present case, the contravention by the practitioner of a provision of the National Law has been established as a matter of fact. The section designates that contravention as unsatisfactory professional conduct. The Tribunal has no discretion, notwithstanding the fact that we accept that the practitioner contravened his reporting obligations under the National Law as a result of being given the wrong legal advice.

Protective Orders

1. Ms Gaff, a psychologist, provided a report and gave evidence in the practitioner's case. Ms Gaff had four sessions with the practitioner, and was satisfied that, during the sessions, the practitioner had learned relaxation techniques, conflict resolution skills and interpersonal communication skills which would help him manage any future difference of opinion more appropriately. It was clear from Ms Gaff's evidence that the practitioner engaged genuinely and openly with Ms Gaff and was committed to making the required changes to his thinking and approach to conflict.
2. The practitioner, in his evidence, explained the techniques that he had learned from Ms Gaff, and the way in which they were of use to him.
3. The practitioner's commitment to his family, and to maintaining a harmonious domestic life, was readily apparent from his evidence.
4. As part of his continuing education, the practitioner has undertaken courses on women's health almost every year since 2013.
5. The practitioner has also undertaken other courses for general practitioners, including, earlier this year, a course in relation to domestic violence which he found very useful and which caused him to reflect on the issue in the context of helping his patients.
6. Numerous references were tendered in the practitioner's case. We have had regard to all of them. It is evident that the practitioner is a very hard working man, who is dedicated to the service of his patients, and that he is also a family man who is committed to providing a harmonious and constructive home for his family.
7. The charge in Complaint Three is serious. It is important for the maintenance of the integrity of the system for the disciplining of health practitioners set up by the National Law that practitioners comply with the reporting obligations which form part of the system. In cases where the omission to report is deliberate or careless, a protective order would almost invariably be appropriate, both to reinforce the importance of reporting to the practitioner in question, and also to provide a general deterrence to other health practitioners.
8. The practitioner in this case relied upon legal advice from two unrelated solicitors, each of whom was advising him in relation to the criminal charge. The practitioner indicated in evidence that, with the benefit of hindsight, he should have sought advice on his reporting obligations from his professional indemnity insurer at an earlier stage. However, we note that the first solicitor and the second solicitor did not simply tell the practitioner that they did not know what his reporting obligations were. We find that they purported to give him advice in relation to those obligations, and that advice was wrong.
9. In all of the circumstances of this unusual case, we do not consider that it is necessary or appropriate to make a protective order in relation to Complaint Three.
10. Having regard to the practitioner's remorse, his wife's attitude to the matter, the fact that there has been no repetition of the conduct the subject of Complaint One, the work that the practitioner has done to address the causes of his conduct and the practitioner's good character and standing in his community, we consider that the appropriate order is to caution the practitioner in relation to Complaint One.
11. We make the following orders: 1. The practitioner is cautioned with respect to the conduct the subject of Complaint One. 2. The disclosure to any person or entity of the name of the practitioner's son or the name of the practitioner's wife is prohibited. 3. Any application for costs must be filed and served upon the other party within 14 days of the date of the publication of these reasons. 4. Any response to an application for costs must be filed within 14 days of the service of the application.

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: 18 November 2019