application by practitioner to terminate proceedings under Sch 5D cl 12 (1) of the National Law
application opposed by HCCC
practitioner unregistered and undertakes not to seek re-registration
Source
Original judgment source is linked above.
Catchwords
Osteopathyapplication by practitioner to terminate proceedings under Sch 5D cl 12 (1) of the National Lawapplication opposed by HCCCpractitioner unregistered and undertakes not to seek re-registrationserious allegations of misconduct involving intimate touching not clinically warrantedmisconduct not concededpublic interest in proceedings
Legislation Cited: Health Practitioner Regulation National Law 2009 (NSW) ('the National Law') Sch 5D cl 12(1)Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') s 55, s 64
Cases Cited: HCCC v Do [2014] NSWCA 307HCCC v Litchfield (1997) 41 NSWLR 630, [1997] NSWSC 297Re Parajuli [2010] NSWMT 3HCCC v Bours (No 1) [2014] NSWCATOD 113HCCC v Sharah [2015] NSWCATOD 99HCCC v Harley [2014] NSWCATOD 110HCCC v Khan [2014] NSWCATOD 83HCCC v Perry [2015] NSWCATOD 76HCCC v Campbell [2014] NSWCATOD 107HCCC v BQB [2014] NSWCATOD 157HCCC v Manners [2014] NSWCATOD 156HCCC v Torrinello [2015] NSWCATOD 90
HCCC v Sarfraz [2015] NSWCATOD 75
Judgment (7 paragraphs)
[1]
Background
Mr Duggan is the respondent to a complaint of unsatisfactory professional conduct and professional misconduct filed by the HCCC on 9 June 2015 in relation to his practice as an osteopath in 2009 and 2010.
Mr Duggan was first registered as an osteopath in 2005. He trained in Victoria and was, at the time of the complaints, in practice in regional NSW. He now lives in Victoria.
The complaints relate to three female patients. Two of the patients were students of osteopathy at the time of the incidents; one of whom was at the time undertaking practical placement at Mr Duggan's osteopathy practice under Mr Duggan's supervision. The matters are carefully particularised in the complaint, but for the purpose of this application they can broadly be characterised as alleging clinically unjustified touching of the patients' pubic areas by Mr Duggan and inadequate consent, diagnostic and treatment documentation practices in association with these events.
Mr Duggan was charged with a number of counts of indecent and sexual assault relating to these and other female patients, and was acquitted in criminal proceedings which concluded in 2012.
The HCCC lodged a complaint with the Tribunal in this matter on 9 June 2015.
The HCCC served two volumes of evidence upon Mr Duggan on 7 August 2015. These volumes were not before the Tribunal in this application.
The matter was listed for a five day hearing in the week of 23 November 2015. At a directions hearing on 2 October 2015 Mr Duggan sought leave to make an application under Sch 5D cl 12 of the National Law for the Tribunal to terminate the inquiry. A/DCJ Boland gave directions for Mr Duggan to file the application by 9 October 2015, set a reply date for the HCCC of 30 October 2015, a hearing date of 27 November 2015 for the application and vacated the other four hearing days.
On 23 October 2015 Mr Duggan filed written submissions in support of his application, including a letter dated 20 October 2015 from the Chief Executive of Osteopathy Australia, a letter of 22 October 2015 from the Director of NSW Registration AHPRA, a letter of 30 September 2013 from Meridian lawyers, a list of web links to press articles and extract from one article concerning the criminal proceedings, and a copy of a sworn affidavit of Mr Duggan dated 26 August 2015 stating that he "would not be re-applying for registration as an osteopath or health care professional at any time in the future". (Bundle Two)
The HCCC opposed the application. On 30 October 2015 the HCCC filed an outline of submissions and attachments which comprised the witness statements made to police by Patients A-C in 2010, and detailed expert reports commissioned by the HCCC dated 1 December 2014 by Jennifer Paull (Bundle One).
There was no written response from Mr Duggan to the complaint before the Tribunal.
At the hearing on 27 November 2015 it became apparent that Mr Duggan did not understand that he was still obligated to provide a response to the complaint, pursuant to earlier directions from 9 July 2015, even though he was pursuing this application for proceedings to be terminated.
The Tribunal noted that procedural matters can be difficult for a lay person to follow. However it drew to Mr Duggan's attention the importance of a response to the complaints; that is, whether complaints, and the particulars underlying them, are conceded or contested is a relevant factor in a decision about the exercise of discretion to terminate the inquiry. Ms Mathur for the HCCC submitted that, given Mr Duggan was unrepresented, he should not be pressed to make a response in person to the particulars for the purpose of the application.
It was agreed by the parties that the current position was that Mr Duggan did not concede the complaints.
[2]
Relevant Law
Section 55 of the CAT Act provides that:
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.
Sch 5D cl 12 of the National Law provides that "Certain complaints may not be heard" as follows:
(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.
(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.
Thus both s 55 of CAT and Sch 5D cl 12(1) of the National Law confer a discretion to be exercised only if certain conditions are satisfied.
Under the CAT Act the Tribunal may dismiss a matter in which the complaint has been withdrawn, or is frivolous or vexatious or otherwise misconceived or lacking in substance, or for want of prosecution, without an express requirement to consider the public interest.
[3]
Submissions
In his written submissions Mr Duggan relied upon the decisions in HCCC v Harley [2014] NSWCATOD 110, HCCC v Khan [2014] NSWCATOD 83 and HCCC v Campbell [2014] NSWCATOD 107 to argue that it is in the public interest to terminate the inquiry by reference to the following factors:
1. Mr Duggan's undertaking to surrender his registration as an Osteopath upon the matter being terminated;
2. Mr Duggan's sworn undertaking not to re-apply for registration as a health practitioner in the future;
3. The support of Osteopathy Australia to this course of action;
4. The possible outcome of proceedings, deregistration, would be better achieved by the practitioner's undertaking, as this would be at lower cost to the respondent and the public;
5. The practitioner's undertaking would better protect the public than an order from the Tribunal;
6. The public interest in deterrence has been satisfied by previous publicity associated with the criminal proceedings;
7. Mr Duggan's lack of professional indemnity insurance and consequent lack of legal representation;
8. Mr Duggan's inability to afford expert witnesses for the Tribunal process;
9. A difference in professional approach between NSW and Victorian trained osteopaths and the lack of a Victorian trained expert in the proceedings.
In oral submissions Mr Duggan argued that he was "significantly disadvantaged" in presenting his case as he lacked legal representation.
Mr Duggan also argued that any public interest in setting professional standards would not be met as he was not in a position to be able to test the evidence: by virtue of his lack of legal representation, his lack of access to expert witnesses, and his inability to recall professional matters relevant to the matter due to the passage of time and the impact of stress.
In a written outline of submissions the HCCC argued that s 55 of the CAT Act was plainly not satisfied. The complaint had not been withdrawn. The proceedings are not frivolous, vexatious, misconceived or lacking in substance. The patient statements and expert report demonstrate a prima facie case to be answered.
The HCCC submitted that despite the respondent's current status as unregistered and his current intention not to re-apply for registration, satisfying Sch 5D cl 12(1)(ii) of the National Law, it is in the public interest to continue with the proceedings so that the full evidence in support of the complaints can be heard and findings on each particular made.
[4]
Reasons
There is no basis to terminate the inquiry by virtue of s 55 of the CAT. The HCCC has not withdrawn the complaint. Even on the limited material filed it is abundantly clear that the complaint is not frivolous or vexatious or otherwise misconceived or lacking in substance.
Nor is it in the public interest to terminate the inquiry under Sch 5D cl 12 of the National Law, for the reasons which follow.
The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions.
In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection":
(a) Any need to protect the public against further misconduct by the practitioner;
(b) The need to protect the public through general deterrence (of other practitioners);
(c)The need to protect the public by reinforcing high professional standard and denouncing transgressions;
(d) The maintenance of public confidence in the profession;
(e) The desirability of making available to the public any special skills possessed by the practitioner.
This statement was approved in Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [24] applying the National Law.
In HCCC v Do [2014] NSWCA 307 Meagher JA, with whom the other members of the NSW Court of Appeal agreed, reflected the first four of these factors when he stated:
"The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." [35]
[5]
Orders:
1. A non publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of the names of patients A-C in the schedule to the complaint and any other person named in Bundle One of evidence;
2. The application by Mr Duggan for the Tribunal to terminate proceedings is dismissed;
3. Costs are reserved for determination until the substantive matter is concluded;
4. The matter is set down for hearing on the 15, 17, 18, 19 and 22 February 2016;
5. Leave to either party to apply with 3 days' notice to re-list for directions on or before 19 December 2015.
[6]
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
[7]
Amendments
26 February 2016 - Typographical error in publication restriction
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: 26 February 2016
Under the National Law the Tribunal may decide not to conduct an inquiry, or to terminate an inquiry or appeal, if, the complaint is non-compliant or withdrawn, or the respondent ceases to be a registered health practitioner and in the opinion of the Tribunal it is not in the public interest to continue. (In contrast, under 12 (2) the Tribunal must not conduct an inquiry if the practitioner dies.)
Determining what is in the public interest in continuing an inquiry is guided by the objects and guiding principles of the National Law. While the CAT Act and the National Law operate in conjunction in these proceedings, the National Law objectives are overriding.
Section 4 of the National Law provides that, "An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3."
Section 3(2)(a) of the National Law provides that one objective of the national registration and accreditation scheme is "protection 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."
Section 3A, particular to NSW, adds that, "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration."
A decision of the HCCC to apply to withdraw a complaint is guided by statute. Section 90C of the Health Care Complaints Act 1993 (NSW) provides the "criteria relevant to determinations of Director of Proceedings" as follows:
(1) The Director of Proceedings is to take into account the following matters when making a determination as to whether or not a complaint should be prosecuted before a disciplinary body:
(a) the protection of the health and safety of the public,
(b) the seriousness of the alleged conduct the subject of the complaint,
(c) the likelihood of proving the alleged conduct,
(d) any submissions made under section 40 by the health practitioner concerned.
(1A) When determining whether a complaint should be prosecuted by the Commission before a disciplinary body, the Director of Proceedings is to consider making a determination with respect to any associated complaint that has been referred to the Director of Proceedings (other than an associated complaint that is a complaint that has been discontinued or terminated and not reopened) so that the complaints are prosecuted concurrently.
(2) For the purpose of enabling the Director of Proceedings to fulfil the Director's functions under this section in relation to a complaint referred to the Director, the Commission is to provide the Director with any submissions received under section 40 in relation to the complaint.
The determination of the public interest is to be made by the Tribunal. The Tribunal is not bound by the approach of the parties, even if they are in agreement in an application.
The gravamen of the HCCC submissions centred on the serious nature of the allegations, which are not conceded. The HCCC submitted that the severity of the alleged misconduct warrants inquiry and determination in the public interest.
The HCCC further submitted that the orders sought could not be obtained if the inquiry were terminated, in particular an order under s 149C(4)(b) recording that a practitioner's registration would have been cancelled had they been registered, and a prohibition order under s 149(5A) and (5).
In oral submissions Ms Mathur for the HCCC argued that a current stated intention not to return to practice was not determinative of the public interest, nor could it afford protection to the public in a case where the practitioner had up to 40 years of working life ahead of him, there were very serious matters of misconduct alleged, and there was the likelihood of a prohibition order being sought by the HCCC if those matters were proved.
The HCCC submitted that the cases of HCCC v Harley [2014] NSWCATOD 110, HCCC v Khan [2014] NSWCATOD 83 and HCCC v Campbell [2014] NSWCATOD 107 were all distinguishable on their facts. That is, Harley involved misconduct related to the nurse's own drug addiction and impairment; Khan involved a 68 year old practitioner with prescribing offences, and in Campbell the doctor was also impaired. In particular because the doctor in Campbell has been scheduled under Mental Health Act the issue of deterrence was not a significant feature of that case.
Ms Mathur submitted that the allegations in this matter were more serious than those of prescribing offences raised in the above cases. She drew attention to the patient statements and the fact that, at the conclusion of the relevant treatment sessions, the women reported feeling "at best, uncomfortable; at worst, violated" as indicating that the matters were serious and required investigation.
The media coverage of the previous criminal process could not meet the public interest in deterrence in this case, which required full factual findings in order to maintain professional standards and confidence in the profession.
The HCCC noted that although the proceedings are protective and not punitive in nature, the financial hardship of the practitioner is not a factor in determining the public interest in proceeding with the inquiry.
Ms Mathur noted that, even if he was unable to commission fresh expert reports specifically for these proceedings, the practitioner would be able to tender expert reports that he indicated were favourable to him from the criminal proceedings.
Ms Mathur acknowledged that acting without legal representation is difficult and that this would of necessity be disadvantageous to Mr Duggan. However she submitted that this disadvantage was not so gross as to affront procedural fairness. She further alerted Mr Duggan to the HCCC's obligations to the Tribunal, and through it, to him, to prosecute the matter fairly including for example their duty to draw attention to material adverse to its own case.
In reply, Mr Duggan argued that he would be unable to use experts from the previous criminal proceedings and so he would be disadvantaged.
In HCCC v Do, the Court of Appeal held that the Tribunal had fallen into legal error by focusing only upon the risk of reoccurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct, nor the full implications of the findings that the practitioner's skill and judgement had fallen significantly below the standard reasonably expected: [39]. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by ss 3A and 4 of the National Law: [40].
It is our view that terminating these proceedings based upon the practitioner's willingness to surrender his registration would fall into the same error. Here the very serious nature of the misconduct alleged, and the factual dispute as to events and their clinical justification, mean that an inquiry is required.
Since the inception of the NCAT a number of decisions have considered the provisions on the termination of proceedings in the Occupational Division.
Cases in which an application to the Tribunal to exercise its discretion to terminate proceeding without an inquiry have been granted include: HCCC v Harley [2014] NSWCATOD 110; HCCC v Khan [2014] NSWCATOD 83; HCCC v Perry [2015] NSWCATOD 76; HCCC v Campbell [2014] NSWCATOD 107; HCCC v BQB [2014] NSWCATOD 157; HCCC v Manners [2014] NSWCATOD 156; HCCC v Torrinello [2015] NSWCATOD 90; HCCC v Sarfraz [2015] NSWCATOD 75.
All of the above cases in which an application to terminate proceedings without an inquiry have been granted have involved the HCCC applying, or consenting to the practitioner's application, to terminate proceedings. This is relevant because, as noted above, this means that the HCCC has itself already undertaken a consideration of the protection of the health and safety of the public, including addressing matters such as the seriousness of the alleged conduct, likelihood of it being proved, and submissions made by the practitioner. The Tribunal's consideration of the public interest is independent, and its exercise of discretion is not limited to these factors, but as will be seen, such factors have also been considered germane in the cases determined to date.
There are a number of other features common to the cases noted above where an application to terminate without inquiry has been granted by the Tribunal; namely:
1. the practitioner has undertaken not to re-apply for registration in the future,
2. the practitioner has admitted the misconduct or impairment, and
3. the practitioner has often been aged 60 or over and has, or will, retire from work altogether.
None of the cases in which an application to terminate has been granted involve allegations of unwarranted intimate physical contact in a clinical setting. We regard such allegations as extremely serious.
There appears to be only one NSW case to date in which an application under Sch 5D cl 12 to terminate the inquiry was dismissed. The application was made by the practitioner and was opposed by the HCCC. In HCCC v Sharah [2015] NSWCATOD 99 the medical practitioner was 79, admitted all four complaints of unprofessional conduct, misconduct and impairment, and undertook not to re-register in the future. That case involved an allegation of unwarranted intimate physical contact in a clinical setting, among a number of other matters.
The Tribunal in Sharah noted [at 32-33]:
"While the respondent conceded [the complaints], he disputed a number of the particulars relied upon. This was not a case of full and frank admissions of the particulars as seen in some of the cases where the discretion not to proceed has been exercised favourably to the respondent.
Further, there was the contest that remained over the allegations [of touching] made by Patient A. The allegations were very serious, and it was in the public interest, in our opinion, for those allegations to be ventilated and dealt with."
The Tribunal also noted that, because a prohibition order was being sought, and there was evidence that the practitioner remained active in the wider community, "There was, on the face of it, a risk to the public in this case that needed to be addressed": [34].
The above factors that weighed against a decision to terminate proceedings in Sharah are all present in this case.
In addition, in HCCC v XC [2015] NSWCATOD 9 in which the applicant raised, but did not pursue, the issue of a Sch 5D cl 12 application, the Tribunal noted in obiter that it was unlikely that it would have held the exercise of discretion to terminate proceedings to be in the public interest [at 96]. This was because there were no concessions and no evidence from the practitioner. Therefore, the Tribunal was of the opinion that,
"The giving of reasons in this matter are necessary to provide factual findings in order that a future Tribunal dealing with a re-instatement application can, in determining such application, assess risks to patient safety having regard to the principles in s 3 and 3A of the National Law." [95]
If, as the practitioner asserts, there are important differences of professional standards and practice arising from differences in training in Victoria and NSW that bear on the allegations then this is a factor that weights in favour of the inquiry continuing rather than the opposite.
We do not accept the practitioner's argument that the public interest in deterrence in this matter has been served by the previous criminal process.
The public interest in disciplinary proceedings is distinct from that in the criminal process. In HCCC v Litchfield (1997) 41 NSWLR 630, [1997] NSWSC 297, the Court of Appeal noted (at 633-634):
"Even if the factual questions [in criminal and disciplinary proceedings] were identical, the difference in the onus of proof prevents the issues being the same. Whether particular conduct has been established beyond reasonable doubt is not the same question as whether that conduct has been established on the balance of probabilities. Thus an acquittal does not bar civil proceedings against the accused arising out of the same facts.
…
Disciplinary proceedings consequent upon a conviction in criminal proceedings are not barred by autrefois convict or any wider principle of double jeopardy. The converse is also true and adverse disciplinary action does not bar later criminal proceedings arising out of the same facts.
The proposition that an acquittal does not inhibit disciplinary proceedings arising out of the same facts is well established in other common law jurisdictions. It is also sound in principle because both the onus of proof and the purpose and focus of the proceedings are different."(internal citations omitted)
Later in the same judgment, the Court of Appeal noted the particular public interest in the maintenance of professional standards concerning intimate physical contact in health practices:
"Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9:
'The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest'."
We conclude that there is a strong public interest in an inquiry into the issues of assessment, investigation and consent taking in a treatment setting involving intimate contact with the bodies of patients, such as are raised in this matter.
The alleged "cost burden being placed on all practicing osteopathy registrants in NSW" as a result of professional regulation (Osteopathy Australia, in their letter of 20 October 2015 "encouraging" the Tribunal to consent to the application, Bundle Two) is not a relevant consideration.
The lack of professional indemnity insurance cover and absence of legal representation is not an uncommon occurrence in disciplinary proceedings before this Tribunal. Practitioners can and do represent themselves. Although self-representation is by no means an easy feat, it does not follow that it is in the public interest to dismiss proceedings on the basis that legal representation is lacking. The Tribunal is mindful of the difficulties faced by unrepresented practitioners and our duties under s 38(4) and (5) of the CAT Act to ensure that we conduct proceedings in a way that is accessible and understandable.
At the conclusion of the hearing the following orders were made. These written reasons were delivered subsequently.