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[2014] NSWCATOD 107
NCAT Occupational
2014-09-05
Jennifer Boland AM, Ms J
Original judgment source is linked above.
The application 1An oral application was made for leave to withdraw an application for disciplinary findings and orders, with an attached complaint, filed in the Civil and Administrative Tribunal, Occupational Division on 17 March 2014. The application was made by Ms J Dinihan on behalf of the Health Care Complaints Commission. The application was supported by Mr Brown, solicitor, who acts for Dr Angela Campbell. 2Dr Campbell is a 52 year old general practitioner, who, I am told, engaged in practice in Macquarie Street, Sydney 3In support of this application Ms Dinihan relies on a statement which she has prepared, dated 4 September 2014. It became exhibit "A" in this application.
The relevant legislative provisions 4The application is made under Sch 5D of cl 12 of the Health Practitioner Regulation National Law (the National Law). . That clause relevantly provides: (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if-- (a) any of the following circumstances apply-- (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. 5That is the relevant section of the provision, save and except for subs (3) which provides: (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal. 6The other relevant provision is s 55 of Civil and Administrative Tribunal Act 2013 (NSW). That section provides the Tribunal may dismiss an application, at any stage of any proceedings before it, in any of the circumstances there set out. Those circumstances include if the applicant or the appellant, or more than one applicant or appellant, withdraws the application or appeal to which the proceedings relates. 7In the decision of Health Care Complaints Commission v Khan, [2014] NSWCATOD 79, I considered whether or not an application, such as the present one, could be determined by a single member prior to the hearing of the proceedings, or whether such an application must go before a full Tribunal. I determined that it was possible, and may be appropriate, for such applications to be brought before a single member who would normally preside at the final hearing. In the case of the medical practitioner this is a judicial officer. In those circumstances, and in conformity with that decision, I am satisfied that there is jurisdiction for me to deal with this application.
Evidence in support of the application 8Turning then to the evidence in support of the application. First, there is an affidavit sworn by Dr Campbell on 7 August 2014. In her affidavit Dr Campbell deposes at [2] that she has been very unwell for a period of time, and her illness culminated in her being "scheduled", ( I understand that to be scheduled pursuant to the provisions of the Mental Health Act 2007 (NSW)), and being admitted to a hospital in March 2013. Thereafter she deposes she was subject of a community treatment order, and that she has been receiving treatment from a psychiatrist, Dr Basil Cameron (Dr Cameron), since July 2013. 9At [3] Dr Campbell deposes: "As a result of my illness and the effects of medication I am taking I feel unwell and fatigued on a daily basis, and I have a great deal of difficulty concentrating and attending to my day to day affairs. My health does not seem to me to be improving despite treatment I am receiving, and I have been advised by my psychiatrist, and I accept, I may not be able to practise medicine." 10Dr Campbell notes in [4] that she has ceased practise, has left her rooms and has had the assistance of her personal solicitor, Mr Pearson of Creagh & Creagh solicitors. She also deposes that she has read, and accepted, the reports of Dr Cameron, her treating psychiatrist, and notes that she accepts that she is unlikely to be fit to practise medicine again. Significantly, in [6] Dr Campbell deposes that she wrote to the Australian Health Practitioner Regulation Agency (AHPRA) on 9 July 2014, informing them of her retirement and asking that her name be removed from the Register of Medical Practitioners. 11The medical evidence in support of this application is found in two reports of Dr Cameron, dated respectively 20 May and 29 May.2014. In his report of 20 May 2014, Dr Cameron opines that Dr Campbell's diagnosis includes bipolar disorder currently in depressive phase, delusional disorder of a persecutory type and paranoid personality disorder. He notes: At no time since my first meeting with her on 20 July 2013 have I seen any change in her clinical picture. It is my impression that the Axis 11 diagnosis is very significant, as detailed in the Cummings Unit notes and from the history I obtained from her daughter. For several years Dr Campbell has shown these personality traits and has been delusional. While her mood disturbance may fluctuate in severity, I think overall her prognosis is poor. 12In his report dated 29 May 2014, Dr Cameron confirms his diagnosis and opines that it is highly unlikely that Dr Campbell will be fit to return to practise in the work of her medical practice. 13In correspondence from the Health Care Complaints Commission to Ms Miranda Hill, the executive officer of the Medical Council of New South Wales, Ms Karen Mobbs, Director of Proceedings, notes that "The practitioner has been suspended since 25 February 2013. Dr Campbell has requested her name be removed from the Register." Ms Mobbs goes on to note: While there is sufficient evidence to prove a complaint and justify prosecution before the New South Wales Civil and Administrative Tribunal, I am of the view prosecution is not warranted as Dr Campbell has requested that AHPRA remove her name from the Register. If the matter did proceed to a hearing and professional misconduct or lack of competence was proven, the only option available to the NCAT would be to disqualify Dr Campbell from applying for registration for a period of time. 14Ms Mobbs goes on to note that, if Dr Campbell did apply for re-registration in the future, consideration may be given to prosecuting the complaint at that time.
Discussion and conclusions 15Dealing then with the criteria which would make it appropriate, or not in the public interest, to continue the complaint I consider the following matters. First, I am satisfied, from the medical evidence adduced, that the practitioner is suffering a severe illness and is unlikely to be able to practise in the foreseeable future. Secondly, she has taken the necessary steps and removed herself from the Register. As a result of removing herself from the Register, I am satisfied that there is no present or foreseeable risk to the public. In that regard I take into account s 3A of the National Law, that is, the primary objective in New South Wales of the law is to ensure the health and safety of the public. 16Other matters that are normally relevant in determining a complaint include the deterrent to other members of the profession that the publication of findings ensures. The material before me refers to publicity which occurred in 2013. Overall, bearing in mind the practitioner's illness, her concessions, her withdrawal of her registration, and the fact that there already has been publicity this aspect of proceedings becomes a less important criterion in this matter. 17I also take into account the cost and time to the practitioner, to the Health Care Complaints Commission, and indirectly, to the public of the cost of proceedings in the Tribunal. 18For all of these reasons I am satisfied it is appropriate for the complaint to be withdrawn, and I am further satisfied, for administrative purposes, it is appropriate that the application be dismissed pursuant to the provisions of s 55 of the Civil and Administrative Tribunal Act. 19Accordingly, my orders will be as follows: (1)Grant leave to the Health Care Complaints Commission to make an oral application to withdraw the complaint and application for disciplinary findings and orders filed 14 March 2014. (2)The Tribunal consents to the complaint in respect of Ms Angela Campbell, formerly Dr Angela Campbell, referred to by the Tribunal by the Health Care Complaints Commission, being withdrawn under cl 12 of sch 5D of the Health Practitioner Regulation National Law No.86a (3)The application by the Health Care Complaints Commission for disciplinary orders filed on 17 March 2014, is dismissed pursuant to s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (4)The hearing dates fixed for 27, .28, 29, 30 and 31 October 2014 are vacated. (5)No order as to costs.
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: 29 September 2014
Health Care Complaints Commission
Campbell