Health Care Complaints Commission v Coleman [2020] NSWCATOD 47 | Case summary

NCAT Occupational|2020-03-13

Introduction

Dr Coleman is a physician and immunologist who was practising in New South Wales prior to 2016. He is the respondent to the application for disciplinary findings and orders filed in the Tribunal under the Health Practitioner Regulation National Law (NSW) ('the National Law') by the Health Care Complaints Commission (the HCCC) on 18 April 2016 which is the subject of these proceedings ('these disciplinary proceedings').
Dr Coleman was indicted on 66 charges relating to alleged criminal conduct occurring in the course of the provision by him of health care to patients ('the first indictment'). Following a trial in the District Court, on 3 September 2018, Dr Coleman was acquitted of 50 of the 66 charges. The jury was unable to reach a verdict in relation to the other 16 charges.
On 19 February 2019, the Director of Public Prosecutions served a second indictment upon Dr Coleman. The second indictment contains 14 of the 16 charges in relation to which the jury could not reach a verdict.
No trial date has been set down with respect to the second indictment.
Dr Coleman has obtained a certificate under the Costs in Criminal Cases Act 1967 (NSW) with respect to his costs in relation to 15 of the 66 counts on the first indictment. Dr Coleman is seeking to delay the setting down of the trial of the charges in the second indictment until the outcome of his application for reimbursement to him for the costs the subject of the certificate is known.
Dr Coleman now seeks to have these disciplinary proceedings temporarily stayed, or, alternatively, adjourned, until after the charges in the second indictment are finally resolved or until all criminal proceedings against him are resolved.
The HCCC is opposed to the grant of a stay in the matter and seeks to have the matter proceed to a hearing.

Background

The complaints the subject of these disciplinary proceedings were initiated by Patients A, B, C, D, E and F and the NSW Medical Council.
Patient A's complaint to the HCCC was made on 17 December 2003 and relates to a consultation with Dr Coleman on 18 November 2003.
Patient B's complaint to the HCCC was made on 26 April 2013 and relates to a consultation with Dr Coleman on 17 October 2011.
Patient C's complaint to the HCCC was made on 3 December 2012 and relates to a consultation with Dr Coleman on 14 March 2012 by Patient C and Patient D. Patient C is Patient D's carer.
Patient E's complaint to the HCCC was made on 2 August 2012 and relates to consultations with Dr Coleman on 14 June 2012 and in or about August 2012.
Patient F's complaint to the HCCC was made on 21 October 2014 and relates to consultations with Dr Coleman on 17 June 2010 and 17 September 2012.
The complaint from the Medical Council of NSW was made on 20 June 2014, under s 150D of the National Law, following a process under s150 of the National Law, and relates to Patients B, C and D.
On 20 June 2014, the Medical Council imposed conditions upon Dr Coleman's registration, one of which required that he not consult, treat, interview or examine any female patient without a chaperone being continuously present.
On 22 March 2016, under s 150 and s 41P of the National Law, with Dr Coleman's consent, a condition was placed upon his registration as a medical practitioner, by the Medical Council of NSW, which prevented him from practising medicine.
A Court Attendance Notice dated 8 April 2016, which required Dr Coleman to attend at the Local Court on 8 June 2016 at 9:30am was served upon Dr Coleman by the NSW Police prior to that court date. The Court Attendance Notice related to alleged offences based upon some of the alleged conduct of Dr Coleman during the consultations set out above with Patients A, B, D, E and F.
On 18 April 2016, these disciplinary proceedings were commenced in this Tribunal.
On 2 August 2016, Dr Coleman's registration as a medical practitioner was suspended by the Medical Council of NSW under s 150 of the National Law.
On 28 August 2017, the first indictment was presented in the District Court, charging Dr Coleman with 66 offences. Some of the conduct of Dr Coleman in relation to Patients A, D and E was relevant to some of the charges on the indictment. Many of the charges on the first indictment related to Dr Coleman's alleged conduct towards patients who are not complainants in these disciplinary proceedings. The first indictment related to 46 patients in total, including Patients A, D and E.
The trial of Dr Coleman on the first indictment began on 28 August 2017 and ended on 29 July 2018. Patients A, D and E gave evidence at the trial. Dr Coleman gave evidence also, including evidence in relation to the allegations in relation to Patients A, D and E. The jury found Dr Coleman not guilty on 50 of the 66 counts, including the counts which related to Dr Coleman's alleged conduct towards Patients A, D and E. The jury was unable to reach a verdict on the other 16 counts. The jury was discharged.
On 19 February 2019, the second indictment was served upon Dr Coleman. Fourteen of the sixteen counts from the first indictment upon which the jury was unable to reach a verdict are charged again in the second indictment. None of the allegations made by complainants in these disciplinary proceedings form the basis for any of the counts on the indictment.
In her affidavit of 28 February 2020, the solicitor for the HCCC, Ms Dinihan, summarised the information given to her in a telephone conversation on 17 February 2020 with Mr Fitzhardinge, a solicitor in the Office of the Director of Public Prosecutions (ODPP) who has the carriage of the prosecution of Dr Coleman.
Ms Dinihan said that Mr Fitzhardinge told her that the ODPP was in possession of information from approximately 30 alleged victims of Dr Coleman whose allegations had not formed the basis for any of the charges in the first indictment. Patients B and F were included in this cohort. Mr Fitzhardinge said that he thought that it was likely that Patient B's allegations would be the subject of a future charge, but that it was likely that Patient F's allegations would not. He said that it was likely that there would be a third indictment, but that it was not a certainty.
On 18 February 2020, Ms Dinihan spoke to Mr McCarthy, who is counsel for the DPP in the matter of Dr Coleman. Mr McCarthy said that the trial dates for the second indictment, being six weeks beginning on 4 May 2020, had been vacated and no further dates had been set.
Mr Laxon, who is Dr Coleman's solicitor, also made enquires of the ODPP as to the future of the as yet uncharged allegations. Mr Laxon received an email from Mr Fitzhardinge, on 10 March 2020, which stated that the matter in relation to Patient F had 'been directed to proceed no further', but that the matter in relation to Patient B together with others 'are to proceed at this stage'.
I infer from all of the evidence that the allegations made by Patient C have never been in contemplation as the basis for any criminal charge.
In his affidavit of 30 January 2020, Mr Laxon said: 24 The Respondent was required to borrow extensive amounts of money from friends and family during the trial, after his own resources had been exhausted. The Respondent remains indebted to Laxon Lex and to trial counsel Ms Pauline Davic, in substantial amounts for legal costs incurred during the course of the First Trial. 25. Following the conclusion of the First Trial the Respondent applied for a costs certificate under the Costs in Criminal Cases Act 1967. On 30 August 2019 Judge P Hock granted a certificate in respect of 15 Counts from the First Indictment but refused the application in respect of a further 26. A copy of the Certificate dated 30 August 2019 pursuant to section 2 of the Costs in Criminal Cases Act 1967 can be found at page 176 of Exhibit JL1. 26 A request for payment has been made, but no money has been received as yet from the Attorney General's Department in respect of those counts where a certificate was granted. However, on the assumption that eventually some legal costs will be recovered, that money will be allocated in paying outstanding debts of the First Trial and funding for the trial of the Second Indictment. The District Court thus far has been reluctant to allocate a date for commencement of the Second Trial while the costs awarded of the First Trial remain unpaid.
In his affidavit of 30 January 2020, Mr Laxon said that Dr Coleman's indemnity insurer, MIPS, had refused to indemnify him in relation to the criminal proceedings. Mr Laxon provided a further affidavit of 12 March 2020. In that affidavit, Mr Laxon said: 3 I refer to paragraph 26 of my earlier affidavit. On 11 March 2020 I was advised by Ms Zoe Carney of the New South Wales Department of Communities and Justice that she is currently waiting on advice from the Crown Solicitor in respect of the Respondent's costs application and is unable to provide any indication on when payment of the Respondent's costs will be made. 4. I refer to paragraph 27 of my earlier affidavit. At the time I affirmed my affidavit, the Respondent's indemnity insurer Medical Indemnity Protection Society (MIPS) had refused to reimburse or cover the Respondent's legal costs of the HCCC application. On 28 February 2020 I was advised by Russell Jones of MIPS that MIPS now agreed to Laxon Lex representing the Respondent in the HCCC application.
I infer from paragraph 4 of Mr Laxon's affidavit of 12 March 2020 that MIPS had, on or before 28 February 2020, agreed to pay Dr Coleman's reasonable legal costs for his representation in these disciplinary proceedings. Otherwise, MIPS would have had no need, or occasion, to agree to Laxon Lex representing Dr Coleman in these disciplinary proceedings. Mr Laxon, in cross examination, said that he was 'hopeful' that MIPS would pay Dr Coleman's legal fees.
Among the documents exhibited to Ms Dinihan's affidavit, there is a Notice of Motion in the District Court of NSW Criminal Division, by which Dr Coleman seeks an adjournment of the criminal proceedings against him until 'payment' has been made to him. The document is redacted in a way which makes it unclear, but I assume that the payment referred to is the payment sought under the certificate given pursuant to the Costs in Criminal Cases Act 1967 in relation to 15 of the 66 counts on the first indictment. This application for a stay of the criminal proceedings has not yet been pursued, and neither has it been withdrawn. The criminal proceedings were adjourned in March 2020, and the hearing dates vacated, on account of Dr Coleman's position with respect to outstanding costs, but they were not stayed.

The Tribunal's power to adjourn or stay

The Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') provides, in s 51: 51 Adjournment of proceedings The Tribunal may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement).
The CAT Act further provides, in s 29(2)(a): 29(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its general jurisdiction - (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
These disciplinary proceedings are within the Tribunal's general jurisdiction. The term 'interlocutory decision' is defined in s 4(1) of the CAT Act to include: (a) the granting of a stay or adjournment.
There is no doubt that the Tribunal has the power to make the orders sought by Dr Coleman.

Prejudice to Dr Coleman

It was argued on behalf of Dr Coleman that he would be prejudiced in the defence of the 14 charges to be tried again on the second indictment, and any further charges which may be pursued either by the amendment of the second indictment to include further charges or by the presentation of a third indictment.
The prejudice Dr Coleman predicted that he might suffer was conveniently summarised in the supplementary submissions filed in his case on 12 March 2020. They are as follows (amended to preserve Patient B's anonymity): a. The respondent's right to silence being undermined in relation to [Patient B], about whom he has not been required to give evidence in the criminal proceedings as yet; b. The respondent's right to silence being undermined in relation to aspects of his medical practice, that are common to all HCCC complaints and the criminal proceedings, and which have not been divulged; c. The respondent's exposure to cross examination at large in the NCAT proceedings about subject matter which will be the subject of criminal proceedings; d. The respondent being placed in a position of having to choose between the defence of his registration as a doctor and the defence of his freedom from incarceration as a citizen; e. Being required to take steps and make forensic decisions including calling of witnesses and giving of evidence which he would not otherwise be required to take; f. The need to call expert evidence in the NCAT proceedings, which he was not required to do in the criminal trial due to the way in which the prosecution was conducted, but which he may still be required to do in future criminal proceedings. This will require Dr Coleman to lay out aspects of his defence to the criminal charges which he has not previously disclosed; g. The oppression the respondent faces in preparing at the same time for the NCAT proceedings and the criminal proceedings, engaging multiple lawyers and giving evidence before two jurisdictions at the same or similar time, being cross examined in two places by different questioners with different legal tests to be applied. h. The risk that findings will be made about the NCAT proceedings which could generate adverse publicity which will impact on the criminal proceedings, in light of the extensive history of adverse publicity in the criminal proceedings.
The respondent relied upon the decision of the High Court in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5.
In Zhao, the Commissioner of the Australian Federal Police ('the Commissioner'), pursuant to the Proceeds of Crime Act 2002 (Cth), sought the forfeiture of some property of the respondents, as proceeds of crime, at a time when a charge was pending against the second respondent, Xing Jin, who was the first respondent, Ms Zhao's, husband ('the forfeiture proceedings'). Xing Jin was charged with aiding and abetting Mae Ja Kim (his aunt) to deal with money or property that was the proceeds of crime, and was worth $100,000 or more, contrary to ss 11.2 and 400.4 of the Criminal Code (Cth). The property in relation to which forfeiture was sought was Ms Zhao and Xing Jin's home, a residential unit registered in Xing Jin's name and a motor vehicle. The County Court of Victoria had made an order restraining the respondents from disposing of the property. The offence specified as the basis for the forfeiture proceedings was substantially the same offence which was awaiting trial. The High Court determined that the issue in the forfeiture proceedings was identical to the issue in the criminal proceedings. The respondents also filed applications seeking the exclusion of the two residential properties from the restraining order and from forfeiture, together with compensation ('the exclusion proceedings').
The decision of the High Court in Zhao concerned an application made by the respondents for a stay of both the forfeiture proceedings and the exclusion proceedings until the completion of the criminal proceedings against the second respondent. The County Court of Victoria refused to grant the stay. The Court of Appeal of the Supreme Court of Victoria set aside the judgment and orders of the County Court and ordered that the forfeiture proceedings and the exclusion proceedings be stayed.
The High Court framed the issue before it in the following way at [19]: The question is therefore whether the second respondent should be placed in a position where he must decide whether to prejudice this criminal trial or his defence of the forfeiture proceedings and his case in the exclusion proceedings.
The High Court accepted that the Proceeds of Crime Act 2002 (Cth) expressly contemplates that restraining orders and forfeiture orders may be made regardless of whether criminal proceedings have been instituted, and that (at [34]): … criminal proceedings may generally be considered not to be an impediment to the continuation of the forfeiture proceedings.
The High Court said, at [39]: It may be accepted that forfeiture proceedings should not be unduly delayed. No litigation should be delayed except for good cause, especially criminal proceedings. On the other hand nothing in the POC Act or in the nature of forfeiture proceedings under the Act suggests that they must proceed at all costs. It could hardly be said, from any point of view, that they are more important than criminal proceedings and should be given priority.
The High Court accepted the second respondent's argument that, if he were required to give evidence in the forfeiture proceedings, there was a real risk that his defence of the criminal case would be prejudiced. The evidence he would be likely to wish to give in the forfeiture proceedings would include information which would amount to the waiver of his right to silence in the criminal proceedings.
The Commissioner argued, in Zhao, that the potential prejudice to the second respondent could be overcome by the making of orders in the forfeiture proceedings maintaining the confidentiality of the evidence given, and by providing for the second respondent to give evidence in closed court. The High Court did not accept that the potential prejudice to the second respondent could be avoided by these measures. The High Court noted that even if the evidence provided by the second respondent were not able to be used in his prosecution on account of the Proceeds of Crime Act 2002 (Cth), s 266A, it may be possible for the prosecution to obtain that evidence, and the possession of that evidence by the prosecution may, by itself, prejudice the second respondent's defence.
It was argued in Dr Coleman's case that he is in a similar position to the second respondent in Zhao, with a similar risk of prejudice if these disciplinary proceedings are not stayed. The HCCC argued that there was no real prospect of prejudice, and that the application for a stay should fail.

The National Law, s 243(1)

The National Law, in s 243(1), provides: 243 Conduct may constitute offence and be subject of disciplinary proceedings (1) If a person's behaviour constitutes an offence against this Law or another Act and constitutes professional misconduct, unsatisfactory professional performance or unprofessional conduct under this Law - (a) the fact that proceedings for an offence have been taken in relation to the behaviour does not prevent proceedings being taken before an adjudication body under this Law for the same behaviour; and (b) the fact that proceedings have been taken before an adjudication body under this Law in relation to the conduct does not prevent proceedings for an offence being taken for the same behaviour.
As I have said, there was a provision of similar effect in the Proceeds of Crime Act 2002 (Cth) under consideration in Zhao (see [42]).

Will Dr Coleman be prejudiced in his defence of criminal proceedings if these disciplinary proceedings are not stayed?

Dr Coleman has been acquitted of the charges in relation to Patients A, D and E. There is no suggestion that those charges could ever be revived. The complaint of Patient C has not been the subject of any charge, and there is no suggestion that it will become the subject of any charge.
Elements of the complaints of Patient B and Patient F were the subject of charges on a Court Attendance Notice in 2016, but have not been included in any indictment. There is no indication that committal proceedings have been finalised in relation to the charges. As I set out above, an officer of the Office of the Director of Public Prosecutions has advised both of the parties that it is not presently contemplated that any criminal charges will be pursued in relation to Patient F. The officer said that the charges in relation to the complaint of Patient B (and other matters not related to complainants in these disciplinary proceedings) 'are to proceed at this stage'.
Dr Coleman gave evidence and was cross-examined in relation to Patients A, D and E at the trial of the first indictment.
At present, the only prospect of a criminal prosecution in relation to evidence which overlaps with these disciplinary proceedings would be a prosecution concerning elements of Patient B's complaint.
It was argued in Dr Coleman's case that his right to silence would be undermined in relation to Patient B in the event that these disciplinary proceedings were heard in advance of the hearing of criminal proceedings in relation to Patient B's allegations.
Further, it was argued in the respondent's case that he may wish, in defending these disciplinary proceedings, to adduce evidence in relation to 'aspects of his medical practice that are common to all HCCC complaints and the criminal proceedings and which have not been divulged'. In other words, it was argued that the evidence given in these disciplinary proceedings may be used against Dr Coleman in criminal proceedings in relation to complainants who are not complainants in these disciplinary proceedings.
It was argued on behalf of Dr Coleman that, if the disciplinary proceedings were heard before the remaining criminal proceedings, Dr Coleman may need to give evidence in these disciplinary proceedings which would leave him exposed to cross examination at large about subject matter which may be the subject of future criminal proceedings. It was argued that Dr Coleman could be placed in the position of having to choose between the full defence of these disciplinary proceedings and the proper defence of criminal proceedings. Further, it was argued that Dr Coleman may wish to call expert evidence in defence of these disciplinary proceedings. No expert witnesses were called to give evidence in Dr Coleman's case on the first indictment. It was argued that, if the content of such expert evidence is known to the prosecution in advance of the finalisation of all criminal proceedings, Dr Coleman could be prejudiced in his criminal defence.
The HCCC argued that Dr Coleman disclosed his answer to all of the allegations of the complainants in the criminal proceedings and the disciplinary proceedings by saying, in evidence, in the trial of the first indictment, that he never conducted an examination of any complainant for a reason other than a clinical reason.
The HCCC also argued that, in the event that any evidence were adduced in the disciplinary proceedings which gave rise to a concern that any criminal proceedings could be affected, Dr Coleman could seek, and the Tribunal could give, a certificate under s 128 Evidence Act 1995 (NSW). The Tribunal could also close the hearing room and make non-publication orders.
There are a number of differences between the circumstances in this matter and the circumstances in Zhao. In Zhao, the High Court determined that the charges underlying both the forfeiture proceedings and the criminal proceedings were the same charges. In this matter, in relation to Patient B, some of the allegations of fact underlying the disciplinary complaints are the same as some of the alleged facts underlying the criminal charges set out on the Court Attendance Notice of 2016. In the event that Patient B's complaint becomes the subject of charges on an indictment, it can be assumed that this will continue to be the case. Notwithstanding the overlap in the alleged facts, the complaints the subject of these disciplinary proceedings are quite different from the criminal charges. They are wider in scope, and their purpose is to bring about the examination of Dr Coleman's alleged behaviour in order to assess whether or not it constituted unsatisfactory professional conduct or professional misconduct, with a view to the protection of the public in the context of obtaining health care. In Zhao, the forfeiture proceedings and the criminal proceedings were both on foot and being pursued. In these disciplinary proceedings there seems to have been no progress in relation to the criminal charges concerning Patient B since the Court Appearance Notice of 2016, whereas the disciplinary proceedings are being pursued.
In Zhao, the possible prejudice to Mr Jin in the criminal proceedings, had the forfeiture proceedings been heard first, was described by the High Court as 'plain', whereas no countervailing urgency in relation to the forfeiture proceedings was identified to resist the application for a stay. In contrast, some of the complainants in these disciplinary proceedings, namely Patients A, D and E, have given evidence in the criminal trial of the first indictment, which included the charges which related to them, and no further criminal proceedings are in contemplation with respect to them. Patient C made his complaint on 3 December 2012 in relation to a consultation on 14 April 2012. Patient C has not been involved in any criminal proceedings in relation to his own complaint, and nor will he be so involved. Patient F made her complaint on 21 October 2014 about consultations with Dr Coleman on 17 June 2010 and 17 September 2012. Nothing has been done with respect to criminal charges concerning Patient F's allegations since the Court Attendance Notice in 2016, and it is clear that nothing further will happen with respect to criminal charges. Patient B's complaint was made on 26 April 2013 in relation to a consultation with Dr Coleman on 17 October 2011. The criminal charges in relation to Patient B may appear on an indictment at some future time, but it is not guaranteed, and no time frame has been provided as to when that might happen. Further delay in these disciplinary proceedings is undesirable from the standpoint of the complainants and of the public generally. It is desirable that proceedings of this kind be finalised in a timely way, even where the practitioner has been suspended from practice.
In Zhao, the High Court believed that there was a real possibility that the prosecutor in the criminal proceedings might come into possession of any evidence which would be given in the forfeiture proceedings in Mr Jin's case, and that, even if the prosecutor were not able to use that evidence directly in the criminal proceedings, the possession of that evidence by the prosecution might affect Mr Jin's defence. Were these disciplinary proceedings to proceed to a hearing, the Tribunal would have the means, by the closing of the hearing room, the granting of s 128 certificates, and by the making of non-publication orders, to ensure that no-one beyond the parties and their representatives will come into possession of potentially prejudicial evidence. This is mostly relevant to any future criminal proceedings with respect to allegations by Patient B. It is unlikely that relevant evidence will be adduced in these disciplinary proceedings which would undermine Dr Coleman's right to silence with respect to patients who are not the complainants in the disciplinary proceedings.

Onerous

It was argued that it would be onerous for Dr Coleman to have to defend disciplinary proceedings and criminal proceedings at the same time. It is far from clear, however, that the trial of the second indictment, or any further indictment, will coincide with the Tribunal hearing in these disciplinary proceedings if a stay is not granted.

Financial

Dr Coleman's issues with respect to the costs of the criminal proceedings are relevant as part of the context for the consideration of the application for a stay. However, in the light of the present position of the Medical Indemnity Protection Society, it would appear that Dr Coleman will have the means to participate fully in the hearing of these disciplinary proceedings.

Conclusion

For the reasons set out above, Dr Coleman's application for a stay will be refused.
A directions hearing will be listed in October. In the current Covid-19 pandemic, disciplinary proceedings are not able to be heard in person, but only by AVL or telephone. It is hoped that, by October, it will be possible to allocate a hearing date to this matter for a hearing in person.

Orders

1. The application for a stay of Tribunal action no. 2016/00378664 is refused.
1. The matter is listed for a directions hearing on Friday 23 October 2020 at 9:30am. In addition, there will be an order in the following terms: The disclosure of the name of any of the complainants in this matter, referred to in the proceedings as Patients A, B, C, D, E and F, is prohibited under s 64(1) of the Civil and Administrative Tribunal Act 2013.

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: 06 May 2020

Health Care Complaints Commission v Coleman

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