Health Care Complaints Commission v Brush

The Complaints

1. The complaints referred to NCAT by the Commission were in the following terms: That Mr Brush being a registered osteopath:

Complaint 1 Was made the subject of a criminal finding of an offence.

Background to Complaint 1 On 21 February 2013, Mr Brush entered a guilty plea to a charge of sending text messages in a manner that "reasonable persons would regard that use as being menacing, harassing or offensive" contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). The Local Court found the charge proven, but discharged Mr Brush, without proceeding to conviction on condition that he pay the sum of $1000 and be of good behaviour for 12 months.

Complaint 2 Is guilty of "unsatisfactory professional conduct" within the meaning of ss 139B(1)(a) and 139B(1)(l) of the National Law.

Background to Complaint 2 Mr Brush was employed as an osteopath at the City Clinic, King Street, Sydney. He first consulted with Patient A in approximately August 2011 for a series of treatment sessions. In April 2012, Patient A again consulted Mr Brush and he provided ongoing and regular care until November 2012.

Particulars of Complaint 2 1. Mr Brush failed to observe proper professional boundaries in that in approximately April 2012 Mr Brush digitally penetrated Patient A in his treatment room during a consultation. 2. Between 13 May 2012 and 15 March 2013, Mr Brush engaged in a personal and/or sexual relationship with Patient A. 3. Between 17 April 2012 and March 2013, Mr Brush failed to observe professional boundaries in that he and Patient A exchanged approximately 12,000 SMS messages which were inappropriate having regard to the number, frequency and timing of the text messaging which included content of a personal and sexual nature. 4. Mr Brush failed to appropriately deal with Patient A's reported distress, in that he did not refer her for any psychological support or by discussing the matter with another osteopath, psychologist, medical practitioner or relevant health authority when: Patient A suggested on 22 June 2012 that she would take 46 Panadeine Forte tablets which she had in front of her. On 24 August 2012, when Patient A threatened to take 10 Endone tablets. 1. Mr Brush failed to keep adequate clinical records in that he failed to record consultations with Patient A on the occasions as set out in Schedule B to the Complaint [Schedule B lists 17 consultations]. 2. Mr Brush failed to keep adequate clinical records in that he failed to record and describe the treatment provided to Patient A on the occasions as set out in Schedule C to the Complaint [Schedule C lists 16 consultations]. 3. In approximately April 2012 at the outset of a personal relationship between Mr Brush and Patient A, Mr Brush failed to terminate treatment with Patient A and/or failed to refer Patient A to an alternative osteopath for ongoing osteopathic care. 4. Mr Brush failed to adequately communicate with Patient A's other health care providers by: Failing to provide any report of progress and/or management of Patient A to the orthopaedic surgeon who performed an operation on Patient A on 14 August 2012. Failing to provide any report of progress and/or management of Patient A to the physiotherapist who was also treating Patient A after surgery on 14 August 2012. 1. Mr Brush failed to appropriately manage termination of the therapeutic relationship with Patient A on 27 November 2012 in that he failed to refer Patient A for future care to another osteopath or any other clinician.

Complaint 3 Is guilty of "unsatisfactory professional conduct" within the meaning of ss 139B(1)(i) and 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) (the National Law)..

Particulars of Complaint 3 (1) Mr Brush contravened s 130(3)(a)(i) of the National Law by failing to notify the Osteopathy Board of Australia (National Board) within seven days of the subject offence. (2) Mr Brush contravened s 130(3)(a)(ii) of the National Law, by failing to notify the National Board within 7 days after being made the subject of a finding of guilt for the subject offence. (3) Mr Brush contravened s 129 of the National Law in that between 30 June 2011 and 24 September 2013 he practised as an osteopath without being covered by approved professional indemnity insurance. (4) Mr Brush made a false declaration in an online renewal for registration application to the National Board of Australia that he held approved professional indemnity insurance.

Complaint 4 Is guilty of professional misconduct (ss 139E(i) and 139E(ii) of the National Law).

Complaint 5 Relying on the particulars of Complaints 1, 2 and 3, the Commission alleges that Mr Brush is not a suitable person to hold registration as an osteopath (s 140 of the National Law).

Issues for determination

1. As Mr Brush substantially admits the conduct the subject of the Complaints, two central questions must be determined:

• Whether the conduct on which the Commission relies establishes that Mr Brush is guilty of "unsatisfactory professional conduct", "professional misconduct" and/or is not a suitable person to hold registration as an osteopath, and
• If so, whether any disciplinary orders should be made under Part 8, Division 3, Subdivision 6 of the National Law.

1. While Mr Brush admits the conduct the subject of the Complaints it is nonetheless necessary to examine that conduct as its nature and seriousness is relevant to the consideration of each of these questions.
2. The Commission bears the burden of proving the Complaints, on the balance of probabilities. The evidence necessary, where, as in this case the allegations if found proven carry potentially serious consequences, namely loss of livelihood, was identified by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, by exclusion that is, not "slender and exiguous proofs" (per Rich J at 350), nor "inexact proofs, indefinite testimony, or indirect inferences" (per Dixon J at 362).

Was Mr Brush made the subject of a criminal finding for an offence?

1. While Mr Brush admits contravening s 474.17(1) of the Criminal Code Act he submits there were mitigating circumstances and his conduct must be viewed in context.
2. The Police Facts Sheet relating to the subject charges tendered in the Local Court states that over a four-hour period Mr Brush and his former wife exchanged a series of text messages over access and custody arrangements relating to their children. Those sent by Mr Brush include: Pack your bags and get the fuck out of your job your home and my life! You'll be lucky if I don't try and to kill you if I see you so better make sure you just keep away from me. … I feel so sick about what's going to happen to you and the girls.
3. Mr Brush's former wife made a report to Police on the day of the incident claiming she "felt terrified" and "concerned for her safety and that of her children". Mr Brush was issued with an Apprehended Violence Order in relation to his former wife her but not the children.
4. Mr Brush admits entering a guilty plea but not "unreservedly". He claims the messages were sent in the context of a "very nasty divorce". He admits being "as mad as hell" and concedes it was a mistake to send the messages. He claims he is not "Mr Domestic Violence", and has never and will never harm his former wife or children. He said his children "mean everything to me" and he acted as he did to protect his right to continue to have a meaningful relationship with them.
5. Mr Brush claimed that sometime last year his former wife apologised to him for reporting his conduct to Police.

Consideration

1. We understand Mr Brush to contend that because he was not convicted he was not made the subject of a criminal finding.
2. As noted the Local Court exercised its power under s 19B(1)(d) of the Crimes Act 1914 (Cth) to discharge Mr Brush without proceeding to conviction on condition that he pay a fine and be of good behaviour for 12 months under (s 19B(1)(d) of the Crimes Act). Such order can only be made if the Court is satisfied that the charge is proven (s 19B(1)(b) of the Crimes Act).
3. The National Law defines "criminal finding" to include a finding that an offence has been proved and the discharging of, or the making of an order releasing, the offender conditionally on entering into a good behaviour bond or on other conditions decided by the court (s 138). Applying that definition it follows that notwithstanding that a conviction was not recorded, Mr Brush was made the subject of a "criminal finding". Complaint 1 is proven.

Complaint 2

1. Patient A provided a statement to the Commission dated 9 May 2013 and gave oral evidence in these proceedings. While there were some differences in their respective accounts of their personal relationship, Patient A and Mr Brush agree that the relationship was at all times consensual and, for a period, passionate, if not tumultuous. The relationship commenced in May 2012 and came to an end in March 2013 when Patient A discovered that Mr Brush was in a relationship with another woman. Throughout the course of the relationship each sent the other sexually explicit text messages and photographs on numerous occasions.
2. Patient A initially saw Mr Brush for treatment on a weekly basis and from August 2012, twice weekly. According to Patient A, in November 2012 she decided to stop seeing Mr Brush for treatment, in part because of the cost and in part because of misgivings alluded to by her Pilates instructor about the appropriateness of the type of treatment being provided by Mr Brush.
3. In a notification made to the Commission in May 2013, Patient A's treating psychologist reported that Patient A had been referred to her for counselling on account of lack of confidence following a long period of recovery from hip surgery and the breakdown of a relationship. The psychologist opined that in February 2013, Patient A was suffering severe depression, which she attributed in part to the deterioration of the relationship with Mr Brush.
4. On 15 August 2013 the Commission notified Mr Brush of the allegations made by Patient A, setting out in broad terms the particulars of Complaint 2 (apart from Particulars 4, 8 and 9). In an email in reply sent the following month Mr Brush admitted the alleged conduct. He wrote in closing: The biggest mistake I made was not dropping [Patient A] as a patient before anything had even started. Once we had started a personal relationship I made [Patient A] perfectly aware right from the outset of just what a vulnerable position I had chosen to put myself into by agreeing to develop our relationship outside of the clinic. Towards the end of our relationship, both [Patient A] and her mother made repeated threats about reporting me to the board as well as threats of self-harm which made it increasingly difficult for me to end the affair. … On a personal level: Above all else, I pride myself on being a real man. One indispensable characteristic of being a man is possessing strength of character at significant moments in life, such as these, as well as the strength to follow my conscience when it comes to affairs of the heart. I am unwavering in speaking the truth when facing the case against me by [Patient A] and [Patient A's treating psychologist] and am preparing to face the consequences of my choices with equally unwaivering determination. I am guilty of nothing other than following my heart in pursuing [Patient A] romantically and for which I make no apology. It disheartens me that [Patient A] would drag our failed relationship into the public domain and degrade what should have been a private affair into an attempt to hurt me and bring my life to shame. For me personally being scorned by my ex-lover in this way pains me more than anything else.
5. In oral evidence Mr Brush admitted not referring Patient A for psychological treatment when on two nominated occasions she threatened to overdose on pain relief medication. He claimed that the two incidents particularised in Complaint 2 were "only half if it" and throughout the course of their relationship, Patient A repeatedly made numerous "fake suicide" threats. He said he initially came to Patient A's assistance but later decided he was no longer prepared to submit to "emotional blackmail".
6. Mr Brush testified that shortly after meeting Patient A he formed the opinion she was suffering from "broken dancer syndrome" (by which we understand to him to mean a person unable to continue a career as a dancer because of injury) and recommended that she seek psychological assistance. He said early on the relationship he concluded Patient A was "unhinged".

Is Mr Brush guilty of unsatisfactory professional conduct?

1. Relying on the particulars of Complaints 2 and 3 the Commission alleges that Mr Brush was guilty of "unsatisfactory professional conduct" within the meaning of s 139B(1)(a), 139B(1)(b) and 139(1)(l) of the National Law, which state: Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. (b) 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. … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.

Does all or part of the conduct particularised in Complaint 2 demonstrate that the judgment possessed, or care exercised by Mr Brush fell below the relevant standard?

1. As noted, Mr Brush admits the conduct particularised in Complaint 2. The Commission contends that that conduct fell significantly below the standard reasonably expected of a practitioner with an equivalent level of training and experience to Mr Brush. Mr Brush, it will be recalled, holds a master's degree in osteopathy and at the commencement of the sexual relationship with Patient A had been in practice for a little over three years.
2. In support of its contention that Mr Brush's conduct fell below the relevant standard the Commission points to the Code of Conduct for registered health professionals (the Code of Conduct) and the opinion of osteopath Mr Scott Read.
3. Issued by the Board under s 39 of the National Law, the Code is intended to provide guidance to registered health practitioners. Section 41 of the National Law states that the Code can be used as evidence in proceedings under the National Law of what constitutes appropriate professional conduct or practice of the health professions.
4. Mr Read is a registered osteopath and has been in practice since 2003. At the request of the Commission Mr Read provided an opinion about whether the conduct the subject of the complaint fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience to Mr Brush. He concluded that the conduct the subject of Complaints 2 and 3 demonstrate that the judgement/care exercised by Mr Brush fell significantly below the standard of a practitioner of an equivalent level of training or experience (see report of Mr Read 13 January 2013).

Particulars 1, 2, 3 and 7

1. The gravamen of Complaint 2 is Mr Brush's conduct in engaging in a sexual relationship with a patient (Particular 2). Mr Brush continued to treat Patient A for most of that ten-month relationship.
2. Section 8.2 of the Code deals with "professional boundaries" and states: 8.2 Professional boundaries Professional boundaries refers to the clear separation that should exist between professional conduct aimed at meeting the health needs of patients or clients and a practitioner's own personal views, feelings and relationships which are not relevant to the therapeutic relationship. Professional boundaries are integral to a good practitioner-patient/client relationship. They promote good care for patients or clients and protect both parties. Good practice involves: a). maintaining professional boundaries b). never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care; this includes those close to the patient or client, such as their carer, guardian, spouse or the parent of a child patient or client c). recognising that sexual relationships with people who have previously been a practitioner's patients or clients are often inappropriate, depending on the extent of the professional relationship and the vulnerability of a previous patient or client …
3. The Code recognises the inherent risks of not maintaining professional boundaries in a practitioner/patient relationship. These include the risk that the practitioner will be unable to maintain professional detachment and objectivity; and the risk that the patient will be unable to make a reasoned and "best interest" decision about whether to consent to treatment recommended by the practitioner and/or to continue the patient/practitioner relationship.
4. While relevant to the assessment of the nature and seriousness of the impugned conduct, the fact that the sexual relationship between the parties was consensual and both parties were adult does not, as we understand Mr Brush to suggest, exculpate his conduct.
5. There are no mitigating circumstances which might justify the decision of Mr Brush to commence and continue a sexual relationship with Patient A. This is not a case for example where because of the practitioner's specialist skill or experience no other suitably qualified practitioners are available to treat the patient.
6. Mr Brush's decision to enter and continue a relationship with Patient A represented a serious error of judgement. His decision to continue the concurrent relationships in circumstances where early in the relationship he had formed the view that Patient A was "unstable", is of particular concern. While a relatively inexperienced practitioner at the time the sexual relationship commenced, his decision to engage in that relationship nonetheless demonstrates judgment significantly below that which could reasonably be expected of a practitioner of his experience.
7. The conduct outlined in Particular 1 (digital penetration of Patient A during treatment session), Particular 3 (exchange of sexually explicit text messages with Patient A) and Particular 7 (failure to terminate the practitioner/patient relationship on commencing a sexual relationship with Patient A) are aspects or incidents of Particular 2. That conduct also demonstrates that Mr Brush's judgement fell "significantly below" the relevant standard.

Particulars 5, 6 and 8

1. Clause 8.4 of the Code states: Maintaining clear and accurate health records is essential for the continuing good care of patients or clients. … Good practice involves: a). keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients or clients, medication and other management … d). ensuring that records are sufficient to facilitate continuity of care.
2. Particulars 5 and 6 (failure to maintain adequate clinical records) and Particular 8 (failure to communicate with Patient A's treating surgeon and physiotherapist) demonstrate the dangers of failing to maintain professional boundaries.
3. Mr Brush concedes that good clinical practice requires that adequate clinical notes be kept of all consultations and failing to make any records for 33 consultations conducted with Patient A. In these proceedings he said, "Once I blurred the boundaries what sort of notes could I keep?"
4. It is especially troubling that Mr Brush failed to keep records of many of the consultations which fell in the period after Patient A underwent hip surgery in early August 2012.
5. Mr Brush also concedes good clinical practice required that he should have liaised and communicated with Patient A's treating surgeon and physiotherapist in the period following surgery. While there is no evidence that Patient A's treatment was compromised as a result of that lack of communication, the potential for that to occur is self-evident.
6. We are satisfied that Particulars 5, 6 and 8 demonstrate that the judgment possessed and care exercised by Mr Brush was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Particular 4

1. Mr Brush admits not referring Patient A for psychological treatment after she threatened to overdose on pain relief medication on two occasions.
2. On the available evidence it is difficult to make any reliable finding about whether, as claimed, in the early part of their relationship Mr Brush encouraged Patient A to seek psychological treatment and provided her with some assistance. However by his own admission he made no efforts to assist Patient A or refer her to alternative treatment on the occasions detailed in Particular 4. The judgement and care exercised by Mr Brush is not to be assessed by reference to the standards that might reasonably be expected to apply to parties in a personal relationship, but rather those that apply to health practitioners in a treating relationship. Mr Brush's decision to dismiss Patient A's threats of self-harm demonstrate that the judgment possessed and care exercised by him was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Particular 9

1. Mr Read is of the opinion that Mr Brush's failure to refer Patient A to another practitioner following her decision to terminate the patient/practitioner relationship constitutes a breach of s 3.13 of the Code which provides: In some circumstances, the relationship between a practitioner and a patient or client may become ineffective or compromised and may need to end. Good practice involves ensuring that the patient or client is informed adequately of the decision and facilitating arrangements for the continuing care of the patient or client, including passing on relevant clinical information.
2. Read as a whole, s 3.13 of the Code appears in our opinion to be primarily directed to practitioner-initiated termination of the treating relationship.
3. The decision to terminate the treating relationship was initiated by Patient A. When she made that decision she was under the care of a physiotherapist to whom she had apparently been referred by her treating surgeon. As discussed above, Mr Brush's conduct in failing to liaise and communicate with other clinicians involved in Patient A's care in our opinion fell short of the relevant standard. We are not satisfied however that his failure to refer Patient A to another clinician in circumstances where she was already under the care of another health practitioner, demonstrates that the judgment possessed, and/or care exercised by Mr Brush was significantly below the relevant standard.

Summary

1. We find Mr Brush's conduct particularised in Complaint 2 (except Particular 9) constitutes unsatisfactory professional conduct within the meaning of s 139(1)(a) of the National Law. Given that finding it is not necessary to address whether, as asserted by the Commission that conduct also could be characterised as unsatisfactory professional conduct within the meaning of s 139(1)(l) of the National Law.

Failure to notify the Board of "relevant events"

1. A registered health practitioner must notify the National Board within seven days of becoming aware of a "relevant event" (s 130(1) of the National Law). A relevant event is defined to include: being charged with an offence punishable by 12 months imprisonment or more; being made the subject of a finding of guilt for an offence, punishable by imprisonment; and, not holding appropriate professional indemnity insurance (s 130(2) of the National Law).
2. Mr Brush admits not notifying the Board within seven days of (i) being charged with an offence under s 474.17(1) of the Criminal Code Act and (ii) being made the subject of a finding of guilt in relation to that charge. In these proceedings he stated that he understood the notification requirements under the National Law only applied if a conviction was recorded.
3. Even if that claim is accepted, by failing to notify the Board within seven days of being charged with an offence and being made the subject of a finding of guilt in relation to that charge, Mr Brush contravened the National Law.
4. That conduct constitutes "unsatisfactory professional conduct" within the meaning of s 139B(1)(b) of the National Law.

Practising without professional indemnity insurance

1. A registered health practitioner must not practise the health profession in which they are registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner's practice of the profession (s 129(1) of the National Law).
2. Mr Brush admits to practising as an osteopath without holding professional indemnity insurance throughout the period, June 2011 to September 2013. He claims that he first discovered he did not hold the requisite insurance when he sought to obtain evidence of his insurance at the request of the Commission. He claims that in late September 2013 when he became aware that his insurance had lapsed, he immediately cancelled all treatment appointments and resigned from the clinic where he was working.
3. Mr Brush subsequently reapplied for professional indemnity insurance. His insurer initially declined his application but reversed that decision on 29 October 2013 and agreed to insure Mr Brush subject to conditions.
4. Mr Brush's had paid his insurance premiums by direct debit from his credit card until June 2011. In these proceedings he stated that the probable explanation for the non-payment was an administrative error on the part of his credit card provider. He claimed his insurer did not notify him that his insurance had lapsed.
5. Even if the administrative error explanation is accepted, by failing to hold professional indemnity insurance between June 2011 and September 2013, Mr Brush contravened s 129(1) of the National Law.

Making a false declaration to the Board

1. On renewing his registration as an osteopath online in November 2011, October 2012 and November 2013, Mr Brush answered "yes" to the following question: During your preceding period of registration, have you practiced in accordance with the Board's professional indemnity insurance arrangements registration standard when practicing the profession in Australia?
2. Complaint 3 relates only to the declaration made in November 2013. While by that time Mr Brush's insurance had been reinstated, there can be no argument when he made that declaration Mr Brush was aware that in the preceding 12 months when he was in practice he did not hold professional indemnity insurance.
3. By knowingly making a false declaration to the Board in November 2013, Mr Brush engaged in improper conduct within the meaning of s 139(1)(l) of the National Law.

Did Mr Brush engage in professional misconduct?

1. Relying on the conduct particularised in Complaints 2 and 3, individually and cumulatively the Commission contends that Mr Brush's conduct constitutes "professional misconduct". Professional misconduct of a registered health practitioner is defined by s 139E of the National Law to mean: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Is the impugned conduct of a sufficiently serious nature to justify suspension or cancellation of Mr Brush's registration?

1. In evaluating whether the conduct we found to constitute unsatisfactory professional conduct is "sufficiently serious" to justify the sanction of suspension or cancellation, circumstances which bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the impugned conduct, the existence of any mitigating factors and an assessment of where the conduct falls on the spectrum of unsatisfactory professional conduct. Whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]. The gravity of the impugned conduct is not to be measured by reference to the worst cases, but by reference to the extent it departs from proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
2. Of the conduct found to constitute unsatisfactory professional conduct, engaging in a concurrent sexual and treating relationship with Patient A (Complaint 2, Particular 2), in our opinion is the most serious. Its seriousness was aggravated by the duration of the concurrent relationships (eight months) and, as recognised by Mr Brush, Patient A's vulnerability as evidenced by her repeated threats to self-harm. We find that conduct "sufficiently serious" to warrant suspension or cancellation.
3. We find the balance of the conduct particularised in Complaint 2 found to constitute unsatisfactory professional conduct, considered together with Complaint 2, Particular 2 also constitutes professional misconduct.
4. The conduct the subject of Complaint 3 while serious, in our opinion was less serious. Assessed individually we are not satisfied that the particulars of that conduct were sufficiently serious to justify suspension or cancellation of Mr Brush's registration. Apart from the making of the false declaration to the Board, we are not satisfied that the conduct particularised in Complaint 3 was of a sufficiently serious nature to justify suspension or cancellation of Mr Brush's registration even when considered together with the conduct in the subject of Complaint 2.
5. The inescapable conclusion in relation to the making of the false declaration to the Board (Complaint 3, Particular 4) is that Mr Brush made a deliberate and conscious decision to mislead the Board and did so for personal gain: to maintain his registration as a heath practitioner. Considered together with the conduct the subject of Complaint 2 we find that conduct to be of a sufficiently serious nature to justify suspension or cancellation of Mr Brush's.
6. It follows that Mr Brush is guilty of professional misconduct within the meaning of s 139E of the National Law.

Is Mr Brush not a suitable person to hold registration as an osteopath?

1. The Commission submits that Mr Brush is not a "suitable person to hold registration" as an osteopath, relying on: Mr Brush's conduct in relation to the charge of contravening s 474.17(1) of the Criminal Code Act The particulars of Complaint 2 and 3, individually and cumulatively.
2. The Tribunal may suspend or cancel a registered health practitioner's registration if satisfied the practitioner is not a suitable person for registration in the practitioner's profession (s 149C(1)(d) of the National Law).
3. The expression "not a suitable person for registration" is not defined by the National Law. The Commission submits that s 55 of the National Law provides guidance as to its meaning. Headed "Unsuitability to hold general registration", s 55 states that a National Board may decide an individual is not a suitable person to hold general registration, if, among other things: (h) in the Board's opinion, the individual is for any other reason (i) not a fit and proper person for general registration in the profession; or …
4. The Commission submits that the expression "not a fit and proper person" while broader than the notion of "being of good character" includes a consideration of character.
5. The Commission submits that the principles enunciated by the Court of Appeal in McBride v Walton (unrep, NSWCA, 15 July 1994) and consistently adopted by the NSW Medical Tribunal (see for example, HCCC v Meyer [2008] NSWNMT 22 at [78] and HCCC v McKay [2007] NSWNMT 5), provides useful guidance on the factors to be taken into account in determining whether a practitioner is of good character: To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.
6. The Commission argues that the particulars of Complaint 5 cannot be satisfactorily explained as an error of judgment but rather evince a defect of character. This is not a case, argues the Commission, of a single error of judgment but rather of a total disregard for professional responsibilities under the Code and the National Law, over an extended period. Of relevance, argues the Commission, is the absence of any evidence of a change or improvement in Mr Brush's character since the impugned conduct occurred.

Consideration

1. We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law).
2. While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills.
3. While concerning the conduct which led Mr Brush being made the subject of a criminal finding, in our opinion does not indicate that he is not a suitable a person to hold registration as an osteopath. The decision not to record a conviction indicates that the sentencing court viewed the conduct as falling at the low end of the scale. The conduct was of short duration and has not been repeated. We accept Mr Brush's claim that at the time he was extremely distressed at the prospect of having his access to his children limited. While that does not excuse, it nonetheless provides an explanation for his actions.
4. More troubling is the conduct the subject of Complaint 2. We agree with the submission made by the Commission that this conduct was not as Mr Brush contends the result of a "single mistake" - namely embarking on a sexual relationship with a patient - but rather a series of egregious errors repeated over a significant period. It was open to Mr Brush at any time to terminate the treating relationship. His conduct reveals poor judgement, disregard for the responsibilities imposed under the Code of Conduct and the National Law and a callous disregard for Patient A's welfare. Mr Brush's lack of contrition and failure to acknowledge the need for rehabilitation, which we consider below, lends weight to the Commission's submission that he is not of good character.
5. Where, as in this case, character is relied upon to support the contention that the practitioner is not a suitable person to hold registration, generally firm evidence will generally be required to demonstrate that the practitioner's personal qualities are incompatible with those essential for the discharge of their professional responsibilities. While the impugned conduct continued over a significant period, it did not as stated by the Commission occur over a period of years. The dividing line between proven misconduct and conduct that warrants a finding that a practitioner is not of good character is not always clear. On the basis of the particulars relied upon by the Commission Mr Brush's conduct comes dangerously close to, but probably doesn't cross that line. We are not comfortably satisfied that Mr Brush is not a suitable person to practice as an osteopath.

What if any disciplinary orders should be made?

1. Headed "Disciplinary Powers of Tribunals" Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where, as in this case the Tribunal is satisfied the practitioner is guilty of professional misconduct and has been made the subject of a criminal finding for an offence the Tribunal may suspend the practitioner's registration for a specified period or cancel their registration (s 149C(1) of the National Law).
2. The Tribunal is directed that in exercising its functions under the National Law, the protection of the health and safety of the public must be the paramount consideration (s 3A of the National Law).
3. Wright J in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88] summarised the principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].

Orders sought by the parties

1. The Commission seeks the following orders: Cancelling of Mr Brush's registration (s 149C(1) of the National Law) Disqualifying Mr Brush from seeking a review of the decision to cancel his registration for at least three years from the date of our decision (s 149C(7) of the National Law) Prohibiting Mr Brush under s 149C(5) of the National Law from providing the following health services unless and until he is registered as an osteopath: (a) Any form of massage therapy or therapy involving physical contact of the body; (b) Any treatment or therapy involving body movement, joints or the musculoskeletal system; (c) Any other alternative or healing or healthcare or therapies; and (d) Any health education services.
2. Mr Brush opposes these proposed orders and submits a more appropriate order would be to suspend his registration for up to 12 months. He states that if, the Tribunal required reassurance that the subject conduct will not be repeated, which he contends is unnecessary, he would be prepared to submit to appropriate conditions. Mr Brush states that he has already paid an extremely high price for his actions. He says his decision to enter a sexual relationship with Patient A has cost him everything: his livelihood, children and reputation.
3. He said he can "live with" the fact that he allowed himself to be seduced by a patient. He said when the relationship commenced he did predict that it would come back to "bite [him] so hard" and that Patient A would act like a "scorned lover" and use the Commission to extract revenge. He said when the relationship commenced he and Patient A had "that talk" and mistakenly, as it turned out, he concluded that she would not "dob him in" if, or when, the relationship ended. He claimed the relationship with Patient A was a "one in 10,000" and his first and definitely last relationship with a patient.
4. On questioning, Mr Brush said he acknowledged that the practitioner not the patient bore the responsibility for maintaining professional boundaries. He agreed with the proposition that Patient A put herself at risk by entering an intimate relationship with him. He said his decision to embark on the relationship had been a "massive error" on his part.
5. Mr Brush says he should not be judged solely on "one huge mistake", namely having a relationship with the "wrong person". On questioning he said he did not intend to convey by that statement that it was ever appropriate for a practitioner to have a sexual relationship with a patient.
6. Mr Brush said in this case the "hunter had become the hunted". On questioning he explained that he saw himself as "the hunted" and Patient A, the Commission and the Tribunal as "the hunter".
7. Mr Brush states that in considering what order to make, the Tribunal should take into account that he has never denied the relationship with Patient A and that there has never been a complaint made about his professional competence.

Should Mr Brush's registration as an osteopath be cancelled?

1. On deciding whether in the circumstances of this case it is appropriate to exercise the power conferred by s 149C(1) of the National Law we must bear in mind that cancellation of a practitioner's registration is but one of a number of orders available, where, as in this case a practitioner is found guilty of misconduct. While at all times the safety of the public is the paramount consideration any order made must nonetheless be commensurate with the seriousness of the impugned conduct.
2. The parties agree that the gravamen of the Complaints is Mr Brush's action in engaging in a concurrent sexual and practitioner-patient relationship.
3. The evidence given and submissions made by Mr Brush in these proceedings reveal a breathtaking lack of insight. While we accept he now deeply regrets having entered into an intimate relationship with Patient A, it is difficult not to conclude that the reputational and associated harm he has suffered is the main reason he regrets his actions. Mr Brush's evidence does not leave us with a sense of reassurance that he now recognises the impropriety of engaging in a sexual relationship with a patient, particularly one whom he believed to be "unbalanced". The comment the "hunter has becomes the hunted" suggests that Mr Brush feels aggrieved by the making of the complaint and its subsequent investigation and prosecution. This suggests he lacks a real understanding of the extent to which his actions transgress the standards that apply to his profession.
4. While Mr Brush admits not keeping adequate clinical records and liaising with Patient A's treating practitioners in the period after surgery, his evidence does not indicate that he recognises the significance of that omission or acknowledges the potential risk it posed to Patient A's health and safety.
5. Mr Brush has not undertaken any rehabilitation and apparently has no plans to do so. It would appear he believes remedial action is unnecessary because there is no prospect he will "make the same mistake again". Somewhat surprisingly Mr Brush elected not to provide any character references to support his claim that his misconduct was an aberration and not representative of his otherwise good character and professionalism.
6. Whether the conduct the subject of our misconduct finding is likely to be repeated depends upon, among other things, Mr Brush's recognition of its inappropriateness and evidence of rehabilitation, both demonstrated and prospective. In the absence of any reliable evidence that Mr Brush has developed insight or put in place measures to safeguard against a reoccurrence we could not be confident that there is no material risk that the conduct will be repeated.
7. We gave careful consideration to whether these concerns could be adequately addressed by making a less restrictive order, such as imposing a condition on Mr Brush's registration that he not treat female patients. Mr Brush adduced no evidence which enables us to assess the likelihood such an order would be complied with and whether it is capable of being monitored. For that reason we decided not to make that order.
8. We conclude the appropriate order is the cancellation of Mr Brush's registration. We have decided not to order, as the Commission urges, that he be disqualified from reapplying for registration for a period of three years but instead decided that an 18-month disqualification is more appropriate. A three year disqualification period in our opinion is unnecessarily punitive. It may be, as a result of this decision, Mr Brush recognises the need to undertake remedial steps. If Mr Brush elects to apply for re-registration he will need of course to satisfy the relevant admission body that he has developed insight and put in place protective measures to ensure his misconduct will not be repeated.

Should a "prohibition order" be made?

1. Section 149C(5) of the National Law gives the Tribunal power to make a prohibition order: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order" ) do any one or more of the following- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently (emphasis added).
2. We are satisfied that if Mr Brush were to work in one of the practice areas nominated by the Commission - massage therapy, therapy involving physical contact of the body; treatment or therapy involving body movement, joints or the musculoskeletal system; any other alternative or healing or healthcare or therapies - there is a material risk the conduct of our misconduct finding might be repeated. If that were to occur, in our opinion Mr Brush would pose a substantial risk to the health of members of the public.
3. While it may be undesirable that Mr Brush undertake "health educational services" we are not reasonably satisfied that if he were to do so he would pose a substantial risk to the health of members of the public. It follows that the power to make that part of the order proposed by the Commission cannot be exercised.

Orders

1. Pursuant to s 149C(1) of the National Law, the Tribunal decides to cancel Mr Brush's registration.
2. Pursuant to s 149C(7) of the National Law, Mr Brush cannot seek review of Order 1 before 18 months of the date of this decision.
3. Pursuant to s 149C(5) of the National Law, Mr Brush is prohibited from providing the following health services unless and until he is registered as an osteopath: (a) Any form of massage therapy or therapy involving physical contact of the body; (b) Any treatment or therapy involving body movement, joints or the musculoskeletal system; (c) Any other alternative or healing or healthcare or therapies.
4. The Commission may make further submissions on the issue of costs, providing its submissions are filed and served within 14 days of the date of this decision. If it elects not to make further submissions, the Commission must notify the Tribunal and Mr Brush in writing within 14 days of the date of this decision.
5. Within 14 days of receiving (i) notice that the Commission does not intend to make further submissions on costs or (ii) the Commission's further submissions on costs, Mr Brush must file and serve any submissions in reply.
6. Within seven days of receiving any submissions from Mr Brush the Commission must file and serve submissions in reply. 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: 27 October 2015