Health Care Complaints Commission v EDE

NCAT Occupational|2019-12-03

Introduction

On 26 August 2019 the Health Care Complaints Commission (HCCC) in an application for disciplinary orders and findings commenced proceedings lodged in this Tribunal seeking protective orders against Mr EDE, a formerly registered physiotherapist (the practitioner).
By letter dated 22 November 2019 the HCCC wrote to the Tribunal and applied under clause 12(1) of Schedule 5D of the Health Practitioner Regulation National Law (the National Law) to withdraw the complaint. In support of the application the HCCC rely on an affidavit of Feneil Shah (Mr Shah) affirmed 22 November 2019. Mr Shah is the solicitor with the care and conduct of this matter on behalf of the Director of Proceedings, HCCC.
At the heart of the application is the undisputed diagnosis of the practitioner's treating specialist that he sadly suffers from a progressive neurodegenerative condition for which there is no present cure. Steps were put in train for the practitioner's registration to be surrendered. That occurred on 21 November 2019.
For the reasons which follow, I have determined it is in the public interest for the proceedings currently before the Tribunal to be withdrawn.

The nature of the application and my capacity to determine it

In Health Care Complaints Commission v Singh [2016] NSWCATOD 85, I considered how a complaint about a medical practitioner, who was no longer in Australia, and could not be located overseas to be served with the complaint, should be treated.

The relevant provisions of the National Law

It is convenient to start by noting the originating proceedings in the Tribunal seek orders variously under s 149A, s 149B and/or s 149C of the National Law. The proceedings are brought under s 139B(1)(c) and s 139B(1)(l).
The HCCC allege that, in 2018, the practitioner breached a condition on his registration in that he failed to provide evidence of enrolment in a Physiotherapy Council of New South Wales (the Council) approved course on dry needling or acupuncture.
It is further asserted that the practitioner knowingly misled a Council assessor that he had not performed any needling procedures since April 2018. It is further asserted that the practitioner knowingly misled the assessor about notations in his clinical notes being recorded in error on his practice computer system. It is further asserted the practitioner misled the Council by stating in an email he had not been practising dry needling or acupuncture in contravention of conditions on his registration.
This application is brought under cl 12 of Schedule 5D of the National Law. That clause provides as follows: 12 Certain complaints may not be heard [NSW] (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.

Relevant background

The practitioner obtained a Diploma in Physiotherapy in 1980 and was first registered as a practitioner in 1981.
From 2016 to July 2018 the practitioner provided physiotherapy services at an eastern suburbs centre as an independent contractor.
On and from 27 April 2018 following proceedings under s 150 of the National Law, the practitioner's registration was subject to conditions.
On 31 July 2018 the practitioner's registration was suspended.
On 5 September 2018 the practitioner executed an enduring Power of Attorney pursuant to which he appointed his wife as his attorney. On the same day he also executed a Deed of Enduring Guardianship in which he appointed his wife as his enduring guardian with powers including the power to decide where he should live and what health care he should receive.
Following proceedings under s 150A of the National Law held on 5 November 2019, the Council lifted the suspension on the practitioner's registration (in order that his registration might be surrendered) and a request was made via email to the Australian Health Practitioner Regulation Agency (AHPRA) to cancel the practitioner's registration. It appears that the email was accompanied by a letter from the practitioner's wife.
A search of the register conducted by Mr Shah discloses that, as at 21 November 2019, the practitioner is no longer registered.
The matter was listed for a directions hearing before me on 27 September 2019. On that occasion, the practitioner's wife and sister in law attended. At that directions hearing I canvassed how the matter may proceed and Mr Shah volunteered to provide copies of relevant provisions of the National Law to the practitioner's wife. I take this opportunity to note my gratitude and that of the Tribunal to Mr Shah for his assistance to the practitioner's wife who, until receipt of the directions hearing notice, had no knowledge of the disciplinary proceedings.
The matter was again listed before me in a directions list on 22 November 2019 when Mr Shah foreshadowed this application. The wife's sister, who has been assisting her with these proceedings, appeared by telephone. No objection was taken to these proceedings being heard on the papers. I was satisfied such a course reflected the objects underpinning the Civil and Administrative Tribunal Act 2013 (NSW), s 36.

Evidence in support of the application

Mr Shah affirmed a comprehensive affidavit on 22 November 2019. It is unnecessary for me to repeat the contents of his affidavit as much of the procedural history contained in it is set out above.
Mr Shah annexes to his affidavit a letter from Dr Rebekah Ahmed, MBBS(Hons) FRACP PhD of the Royal Prince Alfred Hospital, Departments of Neurology and Geriatric Medicine, Memory and Cognition Clinic dated 6 September 2019. In her letter Dr Ahmed states: [The practitioner] has been a patient of the Multidisciplinary Memory and Cognition Clinic since the 27th June 2019. He presented with an at least three-to-four-year history of progressive cognitive complaints including decreased motivation, poor decision making and sweet preference, and had been seen by a previous neurologist and given the diagnosis of behavioural variant frontotemporal dementia (BvFTD) in August 2018. I agree with this diagnosis and explained to [the practitioner] and his wife when I reviewed them in June that he has a diagnosis of bvFTD, which is a form of young onset dementia. This is a progressive neurodegenerative condition for which unfortunately there is no cure. It is a form of young onset dementia characterised by poor insight, poor decision making and global cognitive impairment particularly affecting the frontal regions of the brain. The practitioner's MRI shows moderate cerebral atrophy particularly affecting the frontal and temporal regions. On cognitive testing, he has deficits in frontal executive function with poor decision making and global cognitive impairment. On the Addenbrooke's cognitive examination which is a measure of cognitive function, he scores 70/100, normal greater than 88. I understand that [the practitioner] is no longer working as a physiotherapist. He is currently undergoing investigation by the Health Complaints Commission and I feel that currently given his frontal executive and global cognitive impairment and lack of insight into his condition, he does not have capacity to represent himself for this complaint. Given that his condition is a terminal neurodegenerative condition he will not improve and will continue to decline.

Consideration

It is clear from Dr Ahmed's letter that the practitioner sadly has a diagnosis the effect of which he will never practise again. Mr Shah's deposes in his affidavit that the practitioner's wife states that the practitioner's practice has been sold.
Mr Shah in the letter in support of this application set out matters he submits support the withdrawal of this application as being in the public interest. I agree entirely with his submissions which I note are as follows: 1. The Commission and the Council with AHPRA have revised [the practitioner's] registration status as set out in the affidavit with a view to the Commission withdrawing its complaint. 2. The severity, permanence and terminal nature of the diagnosis of [the practitioner] suggests there is no risk to the public from [the practitioner] in the future as a health practitioner. 3. [The practitioner] is aged 65 years old. 4. [The practitioner] has the support of his family and health practitioners who will be monitoring him. 5. There is no evidence of direct patient harm as a result of the conduct complained of. 6. [The practitioner's] conduct whilst serious may (on the medical evidence) be explained as a result of his medical diagnosis. 7. This case raises no novel matters of general principle which should deprive the Tribunal and the Council of resources to hear other matters in the Tribunal.
Adopting the 7 points above, I am satisfied it is in the public interest that the proceedings be withdrawn.

Non publication order

As noted above, the HCCC sought the withdrawal of the complaint. Although the practitioner's wife attended one directions hearing accompanied by her sister, the discussions about how the disciplinary proceedings would be dealt with occurred between the HCCC and the wife's sister.
Although the wife is the practitioner's guardian under a Deed of Enduring Guardianship and his Attorney under a Power of Attorney, those appointments do not authorise her to conduct litigation on the practitioner's behalf. If the matter had proceeded to a defended hearing the wife or her sister could have sought an appointment from the Guardianship Division of this Tribunal as a guardian with a legal services function to appear on behalf of the practitioner. Given the nature of the present application, it appeared to me unnecessary to require a guardianship appointment be made as it would cause delay, expense and further distress to the practitioner's wife. However, I am conscious that these reasons disclose sensitive personal information about the practitioner's current diagnoses and if he was represented an application for a non publication order could have been made.
Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) enables the Tribunal, of its own motion, in appropriate circumstances to make a non-publication order. Section 64 provides as follows: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
The principles applicable to an application for a non-disclosure or suppression order are well known. In disciplinary proceedings the overarching principle of open justice is only displaced in special or exceptional circumstances.
I am satisfied from the medical reports before me that there are special or exceptional circumstances why the practitioner's name should not be published. The practitioner tragically has a diagnosis for which there is presently no known cure. His cognitive abilities are affected. The HCCC's submissions very fairly acknowledge that the practitioner's conduct, whilst serious, may have been as a result of his medical condition. I am satisfied that the practitioner and his family should be afforded privacy in light of his tragic diagnosis.

ORDERS 1. The Tribunal consents to the withdrawal of an application for disciplinary findings and orders lodged on 26 August 2019. 2. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting publication of the name of the practitioner.

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: 03 December 2019

At a glance

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