of Patient A and B and Person C referred to in these reasons or in any document filed or tendered in the proceeding are prohibited.
[2]
BACKGROUND
This matter was set down for hearing for three days. The first day of the hearing was listed for 14 August 2019. As will be seen, with the assistance of the applicant, the hearing was confined to one day only. The circumstance in which that saving to the public purse occurred, is set out below.
The application, which commenced this proceeding, was filed on 14 December 2018. Shortly before the hearing on 14 August 2019, the applicant filed and served an amended application. At the hearing the respondent did not oppose the applicant being given leave to rely upon the amended application as it had the effect of removing Complaint Four and paragraphs (c) and (h) of the particulars set out for Complaint Six. Accordingly the applicant was permitted to move on that amended application.
On 26 June 2019 the respondent provided to the Tribunal a copy of a letter dated 18 June 2019 addressed to ADCJ Boland, a copy of a letter dated 18 June 2019 to Ms Jaimee Dinihan (HCCC) and a document dated 30 April 2019 which was titled "Statement of Brian Kenneth Crickitt". All three identified items were hand written and the address given by the respondent was "Hunter Correctional Centre", Cessnock. Those three documents were collectively marked as exhibit R1 in the hearing.
As will be seen hereafter, it is common ground that the respondent is an inmate at a correctional facility at Cessnock in rural NSW having been convicted of having murdered his former spouse (in this judgment referred to as Patient B). The respondent was convicted on 8 December 2016 following a lengthy "judge alone" trial. He was sentenced on 5 May 2017 to 27 years imprisonment with a non-parole period of 20 years.
In his letter to ADCJ Boland the respondent said, inter alia, "As I explained to the HCCC, if this were simply the fact that I have been convicted that I had to be deregistered I would not be taking any action. However, the inclusion of other allegations, several without any basis, I feel I need to at least provide this statement." In the last sentence of the letter the respondent wrote "Could you please also allow me to resign my medical registration and prevent further waste of time and public funds."
In the statement dated 30 April 2019, the respondent said as follows:
"(i) I acknowledge that I have been convicted of the murder of Patient B ("the conviction") and that, to date, appeals I have brought against the conviction have been unsuccessful.
(ii) I am currently serving a period of imprisonment arising from the conviction.
(iii) I strongly proclaim my innocence of this crime and further legal action is being pursued. Despite my innocence, I understand that, if the NSW Civil and Administrative Tribunal pursues this matter at this time it has little option but to order my deregistration."
The respondent further in his statement addressed the specific complaints set out in the Application document which had been filed on 14 December 2018. Complaint Two sought a finding against the respondent arising from the uncontested evidence that the respondent had treated Patient B over an extensive period of time whilst she was his spouse. In his statement the respondent said:
"Complaint Two.
Particular 1. I acknowledge that for most of the time between 1988 and 2009 I acted as treating General Practitioner for Patient B and acknowledge in general principle that it is unwise to treat close family members."
The respondent in his statement asked that the following circumstances be taken into account when considering "Complaint Two". He said:
"(a) I repeatedly advised and encouraged Patient B to attend other practitioners including General Practitioners.
(b) Patient B resisted that advice and declined to attend other treating General Practitioners except for brief occasions.
(c) Patient B required regular review and treatment for a number of chronic medical conditions which I endeavoured to manage by regular referrals to appropriate specialists. To have left Patient B untreated and unreferred could be considered neglect."
The Registry Office staff made arrangements for the respondent to be able to attend the hearing via an audio and visual media link from the Cessnock Correctional Centre. The respondent did, by that means, attend at and participate in the hearing.
When the hearing commenced, the Tribunal enquired of counsel for the applicant, why it was necessary for the Tribunal to hear all of the complaints set out in exhibit H1 (the Amended Complaint Application) if the Tribunal concluded it would be appropriate to make the protective order, sought by the applicant, based exclusively upon the evidence which was relied upon to support Complaint One?
In answer to the question posed, counsel for the applicant made the following concession:
"The applicant concedes it is open to the Tribunal to consider if it is satisfied complaint one is made out and on that complaint the Tribunal would make the orders sought by the applicant, it is unnecessary for the Tribunal to determine the balance of the complaints brought in the action if the Tribunal considers it is unnecessary to do so."
That concession was helpfully supported by a further concession, made by the applicant, during submissions at the conclusion of the hearing and is as follows:
"The applicant concedes that the conviction of the respondent on 8 December 2016 is a finding of greater generality. Complaints numbered 3, 5 and 6 are all matters associated with the facts which led to the conviction and the Tribunal could find are subsumed within the conviction."
The remaining complaint left to be addressed was, in those circumstances, "Complaint Two". That complaint is stated as follows:
The respondent "is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has:
(i) Engaged in conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
(ii) Engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
PARTICULARS OF COMPLAINT TWO
Between 1984 and 31 December 2009 or 1 January 2010, the practitioner was the treating general practitioner for Patient B, who was the practitioner's wife, contrary to a policy "Medical Practitioners: Treating relatives and self" which was introduced by the NSW Medical Board in August 2001."
In support of its case the applicant informed the Tribunal it would rely upon the written submission provided by it (marked as exhibit H2 for identification) and would not seek to cross-examine the respondent or to make any further submission. The applicant further informed the Tribunal that if Complaint Two was established it would not warrant cancellation of the respondent's registration (i.e. if it was the only complaint upon which the applicant moved).
[3]
THE SUBMISSIONS OF THE RESPONDENT ON COMPLAINT TWO
The respondent made an oral submission as follows:
The respondent said he knew he should not treat his wife (Patient B). He knew it was ill advised to do so. He did not know it was contrary to the NSW Medical Board to do so in August 2001 and following. The respondent pointed out it was contrary to his preference not to treat Patient B that he did so. The respondent said he endeavoured to have Patient B see other practitioners however she did not do that.
[4]
THE EVIDENCE RELIED UPON TO SUPPORT COMPLAINT ONE
The applicant relied upon the evidence contained at Tabs 8, 9, 10 of exhibit H3 together with the Certificate of Conviction contained in Tab 11. The applicant also relied upon the admission contained in exhibit R1.
Tab 8 is the judgment of the Supreme Court of NSW made 8 December 2016: R v Crickitt [2016] NSWSC 1738. The decision was a "judge alone" decision.
The judgment first notes the Crown case was that the accused (the respondent in this case), "deliberately injected insulin into the left buttock of the deceased [his wife] on the night of 31 December 2009 or in the early morning of 1 January 2010. The Crown submitted that if the Court accepted that fundamental proposition, there could be no doubt that this was done with the intention to murder the deceased because she was not a diabetic and there was no legitimate medical reason for the accused to inject her with insulin."
The trial judge found the respondent had treated his wife for many years for her numerous medical complaints including "a thyroid condition called "Grave's Disease", glaucoma, arthritis, a possible bi-polar condition, depression, asthma, blood pressure and insomnia."
The trial judge found he was satisfied the Crown had established, beyond reasonable doubt, that the respondent did obtain a supply of insulin improperly on 31 December 2009 by means of a prescription made out for another patient.
The trial judge was satisfied on the same standard of proof that Patient B died as a result of an overdose of insulin and that it was the respondent who administered that dose.
The judgment concludes with the following:
"Accordingly, I make the following findings beyond reasonable doubt.
(1) That the accused improperly obtained a supply of insulin on 31 December 2009 otherwise than in the normal course of his work as a medical practitioner by means of the (Patient A) NovoRapid prescription.
(2) That on 31 December 2009 the accused administered a quantity of insulin by way of injection to the deceased.
(3) That the administration of the insulin to the deceased was a deliberate act on the part of the accused and that this act caused the death of the deceased.
(4) That the injection of insulin to the deceased by the accused was done with an intention to cause her death.
It follows….I find the accused guilty of the murder of (Patient B)."
Tab 9 in exhibit H3 is a copy of the judgment which imposed the sentence upon the respondent on 5 May 2017. That judgment evidences that the respondent received a sentence of 27 years imprisonment with a non-parole period of 20 years and 3 months. It stated the respondent will not be eligible for release at any date earlier than 1 March 2037.
Tab 10 in exhibit H3 is the judgment of the Court of Criminal Appeal, Supreme Court of NSW, handed down on 26 October 2018. The decision of that court was to dismiss the appeal filed by the respondent against his conviction for murder.
Tab 11 in exhibit H3 is a copy of the Certificate of Conviction of the respondent for the murder of a women aged 61 years. This certificate relates to the conviction of the respondent for the murder of Patient B.
The complaints particularised in exhibit H1, and relating to counts 1, 3, 5 and 6 are as follows:
Count One states the respondent "has been convicted of an offence within the meaning of s.144 of the National Law". S144 of the National Law provides, in relation to NSW, a ground of complaint about a registered health practitioner includes:
(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.
The respondent concedes he has been so convicted.
Complaint Three states the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. The complaint includes a claim the respondent engaged in improper or unethical conduct relating to the practice or purported practice of medicine. The particulars relied upon include the findings made against the respondent in his trial for murder. Specifically, the complaint cites the creation of a false entry in Patient A's medical records. It further alleges the respondent collected the NovoRapid FlexPen, the subject of the false entry and that he did not provide that medication to Patient A.
Complaint Five seeks a finding that the respondent is guilty of professional misconduct under s 139E of the National Law. The applicant states that the respondent has, contrary to that section of the National Law, engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration. The applicant relies on the particulars set out for Complaints One and Two.
Complaint Six is made upon the ground that the respondent is otherwise not a suitable person to hold registration as a medical practitioner within the meaning of s 144 of the National Law. The complainant relies on all the particulars provided for the earlier pleaded complaints, together with the facts which were found by Justice Hoeben CJ at CL in the judgment published 8 December 2016 (set out earlier in these reasons).
The applicant relied upon the admissions made by the respondent in exhibit R1.
The applicant provided to the Tribunal and the respondent, a document titled "Applicants Submission". That document was marked for identification as exhibit H2. That document included a minute of the protective order sought by the applicant. During the hearing the minute was amended slightly after hearing from the respondent. The order sought is as follows:
"1. Pursuant to s.149C(1) the practitioner's registration is cancelled.
2. Pursuant to s.149C(7) the practitioner cannot re-apply for registration for a period of 20 years or upon his conviction, entered 8 December 2016, being overturned.
3. Pursuant to s 149C(5) the practitioner is prohibited from providing all "Health Services" as defined in s.4 of the Health Care Complaints Act 1993 (NSW)(Prohibition Order) which includes the following services, whether provided as public or private services unless and until he is registered as a health practitioner:
(a) medical, hospital, nursing and midwifery services,
(b) dental services,
(c) mental health services,
(d) pharmaceutical services,
(e) ambulance services,
(f) community health services,
(g) health education services,
(h) welfare services necessary to implement any services referred to in paragraphs (a)-(g),
(i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices,
(j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services,
(j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services,
(k) services provided in other alternative health care fields,
(k1) forensic pathology services,
(l) a service prescribed by the regulations as a health service for the purposes of this Act.
4. The Respondent pay the Applicant's costs."
In addition to the protective order sought by the applicant, as set out above, the applicant sought order 1 as set out in Tab 1 of exhibit 3 being in the following terms:
"An order pursuant to s64 of the Civil & Administrative Tribunal Act 2013 prohibiting the disclosure of the names of Patient A and B and Person C in the attached Complaint dated 13 December 2018."
During the morning session of the hearing on 14 August 2019, the respondent stated he had written to the Australian Health Practitioners Regulatory Authority (AHPRA), earlier in 2019, asking that he be removed from the register of medical practitioners. The applicant did not have a copy of the letter however, undertook to make inquiries to see if a copy could be located and produced.
Following the lunch adjournment on 14 August 2019, the applicant informed the Tribunal that their enquiries disclosed a letter had been received by the above specified body and that the applicant had been informed the registration of the respondent had been cancelled/removed, by that body, effective from 14 August 2019. If such an event had occurred, that placed the applicant in a difficult position and alternative orders may have to be sought. As a consequence the Tribunal made the following directions/orders.
On 14 August 2019 the Tribunal made the following orders, directions and/or notations:
"1. Judgment is reserved.
2. The Applicant HCCC, is to forthwith use its' best endeavours to obtain from AHPRA copies of any correspondence received by it from the respondent (since his incarceration), in which he sought to have his registration as a medical practitioner cancelled or discontinued, together with any response to such correspondence which an officer of AHPRA caused to be sent to the respondent.
3. In the event AHPRA provides any documents to the applicant in response to action taken pursuant to direction 2 hereof, the applicant is to provide a copy of same to the respondent and to the Tribunal.
4. In the event that the respondent's registration as a medical practitioner has been cancelled by AHPRA, at the request of the respondent or otherwise, prior to the conclusion of the hearing on 14 August 2019, the applicant is to file and serve, as soon as practicable, evidence of same together with a Minute of Protective Order which is sought by the applicant, arising from that cancellation.
5. In the event of the applicant filing and serving a Minute of Protective Order Sought, pursuant to direction 4 hereof, it is to, at the same time, file and serve any further submission which it seeks to rely upon to support that proposed Minute.
6. Within 14 days of the respondent receiving any document filed by the applicant pursuant to directions 4 and 5 hereof, the respondent is to provide to the Tribunal and the applicant, a copy of any response to the further or substituted protective orders sought by the applicant and any submission made in support of same. In the event of the respondent not making any response pursuant to this Direction, the Tribunal may conclude that the failure to respond means the respondent does not seek to be heard further in relation to the making of any such protective order."
On 16 August 2019 the applicant provided to the Tribunal a letter dated that day, addressed to the Tribunal and also addressed to the respondent, together with a copy of a letter the respondent had sent to AHPRA NSW dated 10 April 2019. The letter from the applicant included the following:
"…on 14 August 2019, Dr Crickitt's name was removed from the register following an inquiry by the Commission about Dr Crickitt's letter of 10 April 2019. It has now been confirmed by AHPRA that the removal occurred by way of administrative error. Once a practitioner has been suspended pursuant to s.150 of the Health Practitioner Regulation National Law, the suspension can only be lifted by the Medical Council of NSW or following final Tribunal orders."
Included in exhibit H3 at Tab 6 is a copy of a decision given and orders made on 22 October 2015 by the Tribunal. This decision dealt with an appeal by the respondent (in this case) to orders which had been made by the Medical Council of NSW suspending the registration of the respondent pursuant to s 150 of the National Law. The Tribunal (a differently constituted Tribunal) made orders dismissing the appeal and ordering that the suspension continue for 6 months "or as earlier terminated by the Medical Council of NSW".
Although no authority for the proposition set out in the letter from the HCCC of 16 August 2019 was given, it is in our view axiomatic that once an order has been made under s 150 against a practitioner by either the Medical Council or the Tribunal it cannot be ignored or set aside by AHPRA of its own motion.
During the hearing the applicant provided a document which was inserted into exhibit H3 as Tab 1A. That document was created by AHPRA and is titled "Confirmation of Registration Status" and is dated 1 August 2019. The document evidences, inter alia, the registration details for the respondent and states that at 1 August 2019 his "Practice Eligibility" is "Suspended".
Under the heading "Previous conditions" the document evidences as follows:
"From 5 April 2016 until 16 May 2017:
The Medical Council of NSW has considered it appropriate to impose the above public conditions on Dr Brian Kenneth Crickitt's registration under s.41P and 150(1)(b) of the National Law (NSW)….."
"These conditions will have effect until the matter about the practitioner is disposed of, or the conditions are removed by the Medical Council of NSW."
It is common ground that the respondent was found guilty of murder on 8 December 2016 and has been incarcerated at least since that time.
For the purpose of this proceeding we propose to move to a determination accepting that at the date of the hearing (14 August 2019) the respondent was the subject of a continuing order made under s 150 of the National Law.
[5]
DETERMINATION
The order sought by the applicant for the cancellation of the registration of the respondent as a medical practitioner is sought pursuant to s 149C(1) of the National Law. That section empowers the Tribunal to, inter alia, cancel the registration of a registered health practitioner if the Tribunal is satisfied:
(c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession.
The section recited above, requires the Tribunal to have regard to the conviction. In this case the conviction was for the crime of murder. The findings which led to the conviction included findings of improper and unethical actions by the respondent in his capacity as a medical practitioner.
We are satisfied that the conviction entered against the respondent, evidenced circumstances of the crime the respondent has been found to have committed, which in our view render the practitioner unfit, in the public interest, to practice as a medical practitioner or as a "registered health practitioner" as specified in s 149C(1)(c) of the National Law. In so finding we accept the applicant has made out Complaint One as stated in exhibit H1.
We are satisfied that the complaints numbered 3, 5 and 6 as set out in exhibit H1 are subsumed into the facts which support the complaint set out as Complaint One in that document.
We find that the respondent has been guilty of the matter set out as Complaint Two (treating his former spouse as a medical practitioner). We accept that any action which the Tribunal may have taken against the respondent, had Complaint Two been the only complaint the Tribunal was required to determine in this case, would have been to impose conditions or apply sanctions, permitted by the National Law, with outcomes far less significant for the respondent than cancellation of his registration as a medical practitioner.
Having reached the conclusions as set out above we conclude it is appropriate to make the protective order sought by the applicant in paragraphs 1 to 3 inclusive of annexure B to the document marked as exhibit H2 in the hearing.
[6]
COSTS
The applicant sought as order 4 in annexure B to exhibit H2, an order that the respondent pay the costs of the applicant.
In support of this order the applicant relied upon the submission appearing under the heading "Costs" in the document marked as exhibit H2.
In the submission the applicant cited a number of authorities to support the submissions that in the normal course costs will "follow the cause". The applicant submits there is nothing in this case which would move the Tribunal to make an order other than the order sought by it.
As stated earlier, this matter was listed for a three day hearing. In fact the case was determined with one hearing day only. That course was enabled by the concessions given by the applicant and the agreement of the respondent that the hearing be conducted in that manner. That action by the applicant is a matter which the Tribunal will take into account in determining this costs application.
The respondent informed the Tribunal that he had used all his financial resources to pay for his legal representation in his trial and his appeal against his conviction. He also pointed to the fact that he had offered to have his registration cancelled voluntarily and had written to AHPRA requesting that action in April 2019.
The applicant's response to the submissions of the respondent on costs was to submit that, whilst on the one hand acknowledging the making of the costs order sought may turn out to be futile if the respondent does not have any means to meet the order, on the other hand that assertion by the respondent has not been tested in this hearing and in any event, the authorities cited by the applicant in the submission made, support the assertion that claimed impecuniousness is not a fact which is a bar to the Tribunal making the cost order sought.
The applicant further submitted that it was necessary to conduct the proceeding because, as the evidence shows, the respondent could not voluntarily have his registration cancelled in the face of a current order operating pursuant to s 150 of the National Law.
The applicant submitted that the Tribunal needs to have regard to the fact that the respondent did file a response to the complaints and therefore this was not a case which could clearly be categorised as "undefended". Further, in the event the action had been undefended it would still require a determination by the Tribunal that it was appropriate to make the orders sought by the applicant.
In the circumstances of this case therefore we conclude the applicant is entitled to an order for costs as sought and we will so make.
[7]
ORDERS
The Tribunal makes the following orders:
1. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the disclosure and publication of the names of Patient A and B and Person C referred to in these reasons or in any document filed or tendered in the proceeding are prohibited.
2. Pursuant to s 149C(1) the registration of Brian Kenneth Crickitt as a medical practitioner is cancelled.
3. Pursuant to s 149C(7) the practitioner cannot re-apply for registration for a period of 20 years or upon his conviction, entered 8 December 2016, being overturned.
4. Pursuant to s 149C(5) the practitioner is prohibited from providing all "Health Services" as defined in s 4 of the Health Care Complaints Act 1993 (NSW) (Prohibition Order) which includes the following services, whether provided as public or private services unless and until he is registered as a health practitioner:
(a) medical, hospital, nursing and midwifery services,
(b) dental services,
(c) mental health services,
(d) pharmaceutical services,
(e) ambulance services,
(f) community health services,
(g) health education services,
(h) welfare services necessary to implement any services referred to in paragraphs (a)-(g),
(i) services provided in connection with Aboriginal and Torres Strait Islander health practices and medical radiation practices,
(j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services,
(j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services,
(k) services provided in other alternative health care fields,
(k1) forensic pathology services,
(l) a service prescribed by the regulations as a health service for the purposes of this Act.
1. The Respondent pay the Applicant's costs.
[8]
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: 11 September 2019