Health Care Complaints Commission v Edwards

NCAT Occupational|2014-07-10

reasons for decision 1The respondent, Dr John Edwards (the respondent), is a health practitioner and more specifically a medical practitioner registered under the Health Practitioner Regulation National Law No 86a (the National Law). He is resident in New South Wales and practises at Charlestown, NSW. In relation to his professional conduct, he is subject to the disciplinary oversight of NSW authorities (see esp Part 5A and Part 8 of the National Law). 2The Health Care Complaints Commission (the applicant) has applied to the Tribunal for disciplinary findings and orders to be made against the respondent. The application alleges that the respondent has failed to comply with conditions (ii) and (iii) of an order made on 14 September 2011 by the Medical Tribunal (the predecessor to this Tribunal). On that occasion, the Tribunal dealt with a disciplinary application relating to his prescribing practices in relation to medications. 3On that occasion, the Tribunal made findings of unsatisfactory professional conduct and professional misconduct against the practitioner. It reprimanded him and imposed conditions on his registration. The conditions included the following: (ii) To complete within 12 months of the date of this Decision and at his own expense, the distance education course in 'Issues in General Practice Prescribing' conducted by the Department of General Practice, Monash University, Melbourne: (a) by close of business 1 March 2012, he must provide documentary evidence to the Council of his enrolment in the 'Issues in General Prescribing' course; and (b) Within two weeks of completing the 'Issues in General Practice Prescribing' course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (iii) To participate in and complete within 12 months of the date of this Decision and at his own expense, the course 'Dealing with Difficult Doctor-Patient Relationships' conducted by the Cognitive Institute: (a) He is required to supply to the Council a copy of the Institute's Certificate detailing satisfactory completion (or otherwise) within two weeks of its receipt. 4In making these orders the Tribunal exercised some of the powers given by s 149A(1) (i.e. (a), (b) and (d)): 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner- (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling; (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. 5The applicant's notice of complaint now before us asserts in Complaint 1 that the conduct now alleged constitutes 'unsatisfactory professional conduct' under s 139B(1)(c)(i) of the National Law. Section 139B(1)(c)(i) provides relevantly: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following- (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of- (i) a condition to which the practitioner's registration is subject; 6Complaint 2, is essentially in the alternative, and asserts that the conduct alleged constitutes 'professional misconduct' under s 139E of the National Law, which provides: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

Orders Sought 7If found proven, the applicant has submitted that the following disciplinary orders should made:

The registration of the respondent on the roll of medical practitioners be cancelled.
The respondent not be eligible to seek review of that cancellation for a period of one year. 8In addition, the applicant has applied for an order that the respondent pay the costs of the applicant.

The Hearing 9In preparation for the Tribunal's hearing, and in accordance with directions given by the Tribunal, the applicant had served on the respondent the bundle of documents on which it relied. The respondent failed to appear at the hearing. 10At the hearing the applicant presented the following additional material to the Tribunal. It supplemented the bundle with the following: the Medical Council's formal letter dated 15 September 2011 to the respondent advising him of the outcome of the proceedings that gave rise to the conditions the focus of the present application; the evidentiary certificates (confirmation of registration status, and a relevant extract from the national register supplied by the Australian Health Practitioner Regulatory Agency (AHPRA), the Medical Council's s 244A certificate setting out his registration history (with an amendment made at hearing at item 5 of a typographical kind); a 'recent correspondence folder'; a 'summary of directions hearings'; a chronology of events; and submissions. 11 As this material included some documents that had not been previously provided to the respondent and some that had only been sent two days before the hearing, the applicant undertook to ensure that the respondent be provided with the additional material, in particular the chronology and the submissions. The Tribunal gave a direction that the respondent be permitted to reply to the further material by close of business Friday 25 July 2014. There has been no reply from the respondent.

Consideration 12We have reviewed the material upon which the applicant relies. We will not detail all of it here. The Medical Council actively monitored the respondent's compliance with the orders made in September 2011. He was given several opportunities after 1 March 2012 to demonstrate that he had enrolled in the Monash university course (condition (ii)). The course occupies a semester and includes four assessment requirements. We were advised at hearing that the Cognitive Institute course was a short one, one session of four hours. In the minute of the meeting of the Medical Council of 14 August 2012, the history of its dealings with the respondent and enquiries made of Monash University is set out. The Council formally decided to refer a complaint on this matter to the applicant. It referred a complaint in relation to non-compliance with condition (iii) at a later point. 13The respondent did make one reply at the investigation stage to matters raised by the applicant. He sought to explain his behaviour in an email dated 2 November 2012 (at tab 18 of the bundle). He acknowledged that he had not carried out the Tribunal directives, and that he had 'no adequate excuse'. He referred to major family issues that he said had 'distracted' him. He stated that he intended to complete the courses in the next available semester. He said that he had carried out other restrictions placed on him by the 2011 orders relating to prescription of medications, and had confined his surgery to minor surgery for skin and related problems. These indications are not in contest in these proceedings. He said that he wished to continue his current practice. 14We note that the respondent was invited to provide further details about the family issues or other difficulties he had experienced by way of mitigation and that he did not respond to the letter. 15There is no evidence that he has since taken the actions promised in relation to undertaking the two courses required by condition (ii) and condition (iii). 16The respondent did involve himself in the Tribunal's pre-hearing process at two points: the first directions hearing (12 December 2013) Justice Blanch, and at the final directions hearing held 2 May 2014 by telephone before Acting Judge Boland, Principal Member. The applicant's solicitor's provided us with notes of comments made by the respondent. One refers to remarks made by the respondent at the telephone directions hearing. It states that he referred to the issue of depression, and that Boland ADCJ raised with him with the possibility that he might consider surrendering his registration. It notes that the solicitor had also been in contact with the respondent separately by email at an earlier time, and he referred in that exchange to the issue of depression.

Findings 17It is plain on the material before us that the respondent has failed to comply with conditions (ii) and (iii) of the orders made in September 2011. 18In making the orders that included the conditions now under notice, the Tribunal exercised the powers conferred by s 149A of the National Law, noted above at [4], ones that do not affect the practitioner's continued right to practise and maintain registration. 19The applicant now applies for orders that affect his continued right to practise. The Tribunal's power in this regard is given by s 149C, and it provides relevantly to this case: 149C Tribunals may suspend or cancel registration in certain cases [NSW] (1) A Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- (b) the practitioner is guilty of professional misconduct. 20While non-compliance with condition (iii), a one day short course, might, arguably, be seen as a less serious transgression, condition (ii) related to a course of a significant kind that bore directly on the important issues of professional conduct that had given rise to the adverse findings made against the respondent in the 2011 decision. The respondent's failure to enrol in and undertake that course was clearly a significant failure on his part, compounded by his non-attendance at the Tribunal hearing where he may have been able to offer an explanation or demonstrate contrition and a preparedness to rectify the failure. 21A registered person is obliged to adhere to the standards of the profession or occupation, and that includes adherence to the complaints investigation and disciplinary processes of the profession or occupation. The disciplinary processes have as their ultimate objective the protection of the public. In relation to the issue of adherence to conditions imposed as part of a disciplinary order, we refer to the Medical Tribunal's statement in Re Dr Than Le (20 September 2001) cited with approval by the Court of Appeal in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [74]: Particularly when imposed in a disciplinary context, such restrictions [i.e. conditions on registration] are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. 22We also adopt the more general observations recently made by this Tribunal in Health Care Complaints Commission v Townsend [2014] NSWCATOD 65 in relation to the seriousness of non-compliance with conditions, and the point at which non-compliance may justify a finding of professional misconduct, 23We are satisfied that the respondent's failure in not observing the two conditions, and in particular condition (ii), amounts to unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. .

Disciplinary Order 24The respondent is 68 years old. He graduated from the University of Melbourne in 1973. He received provisional registration to practise in NSW at the Royal Newcastle Hospital for a period in early 1975. His registration record shows that he became a fellow of the Royal College of Surgeons, England in 1980 and a fellow of the Royal College of Surgeons, Edinburgh in 1982. On 3 November 1982 he was granted general registration to practise in NSW, and he maintained (near-continuous) registration until June 2003; and from August 2005 to 30 June 2010. (He was unregistered between 30 June 2003 and 1 August 2005 for non-payment of registration fees.) The Medical Council has stated that his registration was not subject to any conditions in the period 3 November 1982 to 30 June 2010. The AHPRA extract (confirmation of registration status) set out the conditions imposed by the Tribunal order of 11 September 2011, and included further conditions imposed by the Medical Council for the period 19 March 2014 until current. The matters the subject of conditions 1 to 5 are the subject of a referral to the Health Care Complaints Commission. 25We have alluded in our reasons to the references said to have been made by the respondent to the issue of depression. We note also that the material includes a record of his evidence to the Tribunal on 9 August 2011 in connection with the complaint that led to the orders under notice in these proceedings. Without setting that text out in detail, we note that at page 13 he referred to a period of depression and inactivity around 2002, though no corroborative evidence was provided. It may be that the Medical Council should endeavour to ascertain to what extent the respondent may be affected by a health or impairment issue. 26As matters presently stand, in our view, the appropriate order is the one sought by the applicant.

Costs 27The applicant has applied for its costs of the proceedings under the discretionary power to award costs given by cl 13 of Schedule 5D of the National Law (which overrides s 88 of the Civil and Administrative Tribunal Act 2013). As to the exercise of the cl 13 discretion, see Health Care Complaints Commission v Cieslak [2013] NSWNMT 23 at [23]; and Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[45]. There is no reason not to make the usual order.

Order

The registration of the respondent on the roll of medical practitioners be cancelled.
The respondent not be eligible to seek review of that cancellation for a period of one year.
Respondent to pay the applicant's costs of the proceedings, as agreed or assessed. 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: 13 August 2014

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