BACKGROUND TO COMPLAINT ONE
On 21 March 2014, a Psychiatry Registrar at Macquarie Hospital made a mandatory notification to the Australian Health Practitioner Regulation Agency (AHPRA) concerning the practitioner's current mental state, including a ten year history of alcohol dependence and drug abuse.
On 6 August 2014 and 19 February 2015 the practitioner appeared before an Impaired Registrants Panel ("IRP") convened by the Council under section 152D of the National Law. On both occasions the practitioner voluntarily agreed that the following conditions be placed on his registration:
1. To notify your employer/s of these conditions and to authorise your employer to notify the Council of any issues arising in the workplace.
2. To attend a Review Interview with the Impaired Registrants Panel at the Council in six months or as otherwise directed by the Council.
3. To attend for treatment by a general practitioner of his choice, at a frequency to be determined by him and the treating practitioner. He is to notify the Council of the name of his treating general practitioner within four weeks. He is to authorise his treating general practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change).
4. That should he be prescribed or directed to take a:
(a) Schedule 4D Drug,
(b) Narcotic derivative.
(c) Non-prescription compound analgesic or cold medication,
he will notify the Council and the Council Appointed Practitioner/s. In addition, within seven days he must provide to the Council with written confirmation of such treatment from the treating practitioner ("Prescription condition").
5. To attend for random Urine Drug testing in strict accordance with the Council's protocol. Results of Urine Drug Testing to be forwarded to the Council, and the Council appointed and treating practitioners. He understands that such testing will be at his expense ("Urine Drug Testing Condition").
6. To attend for review by the Council Appointed Practitioners on a six monthly basis or as otherwise directed by the Council, at the Council's expense.
The practitioner's registration remained subject to the conditions until 24 July 2015 when his registration was suspended pursuant to s150 of the National Law.
[2]
PARTICULARS OF COMPLAINT ONE
1. The practitioner contravened Condition 5, the Urine Drug Testing Condition, in that he failed to attend for random urine drug testing on the following dates:
(a) 16 February 2015;
(b) 5 March 2015;
(c) 11 March 2015;
(d) 30 March 2015;
(e) 8 April 2015;
(f) 22 April 2015;
(g) 23 April 2015;
(h) 11 May 2015;
(i) 22 May 2015;
(j) 25 May 2015;
(k) 1 June 2015;
(l) 9 June 2015;
(m) 29 June 2015;
(n) 6 July 2015;
(o) 21 July 2015.
1. The practitioner contravened Condition 4, the Prescription Condition, in that he failed to notify the Council that on 17 November 2014 he was prescribed the Schedule 4D drug, Diazepam.
2. The practitioner contravened Condition 4, the Prescription Condition, in that he failed to notify the Council that on 20 July 2015 he was prescribed the following Schedule 4D drugs:
(a) Diazepam; and
(b) Temazepam.
[3]
COMPLAINT TWO
is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or
ii. engaged in 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 the suspension or cancellation of the practitioner's registration
[4]
BACKGROUND TO COMPLAINT TWO
The background to Complaint One is repeated.
[5]
PARTICULARS OF COMPLAINT TWO
1. The particular of Complaint One is repeated and relied upon
[6]
COMPLAINT THREE
Has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of medical radiation.
[7]
BACKGROUND TO COMPLAINT THREE
The background to Complaint One is relied upon.
The practitioner was assessed by a Council Appointed Psychiatrist on the following dates at the direction of the Council under section 152B of the National Law:
- 10 June 2014;
- 30 January 2015;
- 27 July 2016.
[8]
PARTICULARS OF COMPLAINT THREE
1. The practitioner suffers from,
(a) Methylamphetamine and alcohol misuse disorder;
(b) Borderline personality disorder.
[9]
COMPLAINT FOUR
Is not competent within the meaning of section 139(a) of the National Law in that he lacks the mental or physical capacity to practise as a medical radiation practitioner.
[10]
BACKGROUND FOR COMPLAINT FOUR
The background set out under Complaints One and Three is relied upon.
[11]
PARTICULARS OF COMPLAINT FOUR
1. Complaint Three and the particulars thereof are repeated and relied upon.
2. The practitioner's impairment is of a sufficient nature and degree that it detrimentally affects or is likely to detrimentally affect the practitioner's mental capacity to practise the profession.
[12]
COMPLAINT FIVE
has a criminal conviction in the State of New South Wales
[13]
PARTICULARS OF COMPLAINT FIVE
1. The practitioner was convicted at Downing Centre Local Court on 22 February 2016 of possess prohibited drug, namely 0.6 grams of methylamphetamine pursuant to section 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW).
2. The practitioner was convicted in his absence and ordered to pay a fine of $300.
[14]
COMPLAINT SIX
is not a suitable person to hold registration in the practitioner's profession.
[15]
PARTICULARS OF COMPLAINT SIX
1. Complaint Five and the particulars thereof are repeated and relied upon both individually and cumulatively.
[16]
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 November 2017
There a number of relevant principles which guide the Tribunal in its work. These include the following.
First, in hearing matters under the National Law, a Tribunal may conduct proceedings as it thinks fit (see s 167B of the National Law), and is not bound to observe the rules of law governing the admission of evidence: cl 2 of Schedule 5D (Proceedings before Professional Standards Committees or Tribunals) of the National Law.
However, while the Tribunal may inform itself in any way "it thinks fit", it should base its decision upon material which tends logically to show the existence or non-existence of facts relevant to the issues to be determined: Sudath v Health Care Complaints Commission [2012] NSWCA 171 at [75]. See too the statement of Evatt J in R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228 where his Honour said:
But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."
As is observed by Aronson and Groves in Judicial Review of Administrative Action (5th Ed) at 581:
Provisions which free a tribunal or other body from the rules of evidence are best regarded as facultative. They are intended to provide procedural flexibility but not to displace logic or reasons. A decision-maker freed from the rules of evidence must therefore still consider the whether the material it can consider should in fact be considered. The litmus test is usually whether the material is rationally probative. It follows that provisions which free tribunals from the rules of evidence do not allow decision-makers to "draw inferences or jump to conclusions, which the available material did not adequately support".
(footnotes omitted)
Secondly, the Commission bears the onus to provide the alleged complaints to the civil standard, that is, the balance of probabilities. This explained in Rejfek v McElroy [1965] HCA 46 by the High Court which stated:
10. . . . The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 , per Dixon J. (1938) 60 CLR, at p 362 . . .
11. But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691 per Dixon, Evatt and McTiernan JJ. (1940) 63 CLR, at p 714.
This was further explained in In the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 where the Federal Court of Australia stated at [48]:
When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-2).
In Forster v Hunter New England Area Health Service [2010] NSWCA 106 the Court of Appeal stated:
22. In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid).
23. Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2).
Thirdly, the Tribunal is entitled to draw inferences from the failure of the respondent to attend the hearing and from his "silence": Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323 at [42] - [50]; Lucire v Health Care Complaints Commission v Health Care Complaints Commission [2011] NSWCA 99 at [124] - [141]; Meakes v NSW Bar Association [2006] NSWCA 340 at [70] - [78]. In Wingate, the NSW Court of Appeal, per Basten JA, with whom McColl JA and Harrison AJA agreed, stated at [47]:
In Bowen-James [Bowen-James v Walton (NSWCA, 5 August 1991, unrep)], after referring to passages in Edelsten and passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued:
"In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical practitioner, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim. There is a public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in In Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly of what was said at 141-2, cannot apply. Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts."
(emphasis added)
Complaint Three - impairment
The evidence of Dr Friend (16 August 2017) establishes that the respondent suffers from substance misuse and addiction and meets the Diagnostic and Statistical Manual 5 diagnostic criteria for Alcohol Use Disorder of moderate severity and Stimulant (methamphetamine) Use Disorder (severe). The report of Dr Friend of 19 September 2017 confirms that:
Mr Farrell suffers from substance use disorder (methamphetamine and alcohol), and characteristically substance use disorders are chronic lapsing disorders that can detrimentally affect a practitioner's capacity to practise their profession safely. Mr Farrell is in the early stages of recovery, and by definition this means that he has been abstinent for less than 12 months. Mr Farrell had a lapse into the use of methamphetamine only two weeks ago prior to my last assessment of him, and there is no way of objectively determining whether Mr Farrell has remained abstinent or has relapsed (ie There are no urine test results with the appropriate chain of custody). He will continue to suffer from an "impairment" as defined by the National Law for the foreseeable future.
Dr Friend considers, and we agree and find, that the respondent suffers from an impairment as defined in s 5 of the National Law.
The meaning of impairment has been considered in many authorities. In Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73, the Tribunal considered that currency of impairment may be demonstrated by evidence of deficiency at a particular time combined with the absence of any evidence of improvement since that time.
Given the evidence that we have summarised above, we find Particular One to Complaint Three established. In summary, we find that the respondent's Alcohol Use Disorder and Stimulant (methamphetamine) Use Disorder matters are each an impairment within the meaning of s 5 of the National Law, being a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect the respondent's capacity to practise the profession of medical radiation.
Particular Two of Complaint Three was that the respondent suffered from Borderline Personality Disorder. The only direct reference we discern in relation to this is Dr Friend's reporting of that diagnosis (Mr Farrell has been diagnosed with") in her report of 27 July 2016. This does not appear to be Dr Field's own opinion, as the reference is prefaced by the remarks "In the Medical Records other diagnoses are mentioned, some of which might also cause or contribute to impairment". Dr Field then states "Mr Farrell has been diagnosed with Borderline Personality Disorder". She comments that it is apparent from the respondent's longitudinal history that there is a repetitive pattern of behaviour which is consistent with this diagnosis. She then states that this diagnosis in and of itself would not impair a practitioner, however comorbid with substance abuse and dependence, then the tendency to chaotic, self-defeating and impulsive behaviour would increase the risk of relapse and militate against successful engagement in treatment.
Complaint Four - competence
Section 139(a) of the National Law provides that a person is "competent" to practise a health profession only if the person has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession. In Astor-Finn it was further noted that the courts recognise that there is a close relationship between a finding of impairment based on a disorder affecting mental capacity and a finding of lack of competence to practice medicine, and it is not necessary to provide detailed explanation for moving from one step to the other.
In Lindsay v Health Care Complaints Commission [2010] NSWCA 194 Sackville AJA stated at [168]:
There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine . . .
However, his Honour continued at [170]:
Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances.
In In the matter of Roderick Doyle Motun and the Medical Practice Act 1992 as amended, Medical Tribunal of NSW, 2 August 2000, unreported, the Medical Tribunal considered whether the medical practitioner was impaired and found that he was suffering from anxiety and depression and paranoid personality traits which conditions were likely to affect his capacity to practise medicine. The Tribunal found the complaint of impairment proved, but in the light of treatment which the doctor was receiving and the lack of complaints concerning his treatment of patients, the Medical Tribunal considered that his impairment was not such as to render him incompetent to practise medicine providing that the existing conditions on his registration were continued.
In our view, the evidence of Dr Friend also supports a finding that the respondent lacks competence to practise his profession. We have set out above at par [75] an extract from Dr Friend's report of 19 September 2017. That report continues:
The issue for consideration is at what point he is safe to return to practise, subject to appropriate limitations. Mr Farrell's capacity to practise will not be adversely affected by his addiction or substance withdrawal if he remains abstinent from alcohol and methamphetamine. He has been largely abstinent since he entered rehabilitation, although has lapsed twice by his own admission in the last 10 months. Notwithstanding Mr Farrell's laudable candour, I have seen no objective evidence that he has remained abstinent more recently.
If there were more evidence of abstinence for at least three months, engagement in appropriate treatment, stability in psychosocial functioning (eg employment, living arrangements) then it would be reasonable to assume he that he would be safe to return to supervised practise with a high level of oversight and monitoring.
Complaint Six - suitable person
The Commission correctly set out the relevant principles in its written submissions. In summary, those principles include the following:
1. Suitable person' is not defined in the National Law, however some assistance as to its meaning is provided by s 55(1) of the National Law: Health Care Complaints Commission v Roopra (No 2) [2013] NSWDT 3. Section 55 of the National Law provides a list of matters rendering a person unsuitable including:
(a) … the individual has an impairment that would detrimentally affect the individual's capacity to practise the profession to such an extent that it would or may place the safety of the public at risk; or
(b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or
. . .
(h) … the individual is for any other reason--
(i) not a fit and proper person for general registration in the profession; or
(ii) unable to practise the profession competently and safely.
1. In Roopra the Tribunal in that case noted that one consideration was whether the conduct in question could be characterised as 'one off' or 'isolated' in nature;
2. Considerations such as the maintenance of the reputation of the profession and the trust that is reposed in the profession by the public are relevant to the determination of the question of suitability of an individual for registration: Roopra at [285];
3. Factors that provide assistance to the determination of suitability include professional integrity, personal integrity, insight into the reason why the conduct attracted the severe criticism of the Tribunal, insight into the steps required to remediate any personal or professional deficits identified by the offensive conduct, steps taken towards such remediation, the respondent's otherwise good character, the nature of the respondent's prior professional practice including any prior misconduct: Health Care Complaints Commission v Vu [2012] NSWPYT 1 at [69], adopted in Roopra at [287].
4. The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration: In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
5. A person's fitness is to be gauged in the light the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955) 93 CLR 127 the High Court said at [9], pp 156-157:
The expression ' fit and proper ' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.
Principles re disciplinary action
To assist the respondent, and to give some guidance to the profession at large, we set out below the guiding principles in such determinations.
The Tribunal has a range of powers which appear in ss 149A and149B of the National Law, relevantly being:
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 (including, but not limited to, psychological 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.
149B Power to fine registered health practitioner in certain cases [NSW]
(1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units.
(2) A fine is not to be imposed unless -
(a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and
(b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest.
(3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct.
(4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession.
In certain cases, the Tribunal may suspend or cancel a registered health practitioner's registration. Section 149C relevantly provides:
149C Tribunals may suspend or cancel registration in certain cases [NSW]
(1) The 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--
(a) the practitioner is not competent to practise the practitioner's profession; or
(b) the practitioner is guilty of professional misconduct; or
(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; or
(d) the practitioner is not a suitable person for registration in the practitioner's profession.
Costs
As a general rule, the costs of proceedings before the Tribunal should follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [45].
The Commission has been successful in establishing five of its six complaints against the respondent. In the circumstances, we propose that respondent should pay the Commission's costs of the proceedings. We will make a final determination and order after we receive the respondent's submissions.
We are satisfied that this diagnosis is not Dr Field's own professional opinion, but her report of another practitioner's opinion at some earlier, unknown, time. In the circumstances, we are not satisfied on the balance of probabilities that the respondent has Borderline Personality Disorder.
Given the evidence that we have summarised above, we find Particular Two to Complaint Three not established.
In our view, it is implicit in this statement that Dr Friend's opinion Mr Farrell is not currently "safe" or competent to practise. This is consistent with her opinion in her earlier reports of 16 August 2017 ("If Mr Farrell can demonstrate a sustained period of abstinence from the use of alcohol and amphetamines then he will have the mental capacity to practise the profession safely . . . I would like to see a more convincing commitment to his recovery and treatment before he can be assumed to be at a reduced risk of relapse and therefore safe to practise") and 27July 2016 ("the alcohol and methamphetamine misuse disorders are sufficient to adversely affect his capacity to practise as a radiographer").
We note that, quite properly, the Commission's counsel brought to our attention Dr Miller's report dated 30 January 2015. Dr Miller concluded that She said there was no evidence that the respondent's recreational drug use affected his clinical practice or that he was a risk to the public. However, given that Dr Friend conducted a health assessment of the respondent as recently as 23 August 2017, we consider that Dr Friend's opinion as expressed in her reports of 16 August and 19 September 2017 should be given great weight than Dr Miller's opinion.
Accordingly, we find Complaint Four established.
However, we do not find Compliant Six established. The only matter relied on by way of particulars is the fact of the respondent's conviction for possessing 0.6 grams of methylamphetamine, in respect of which he was fined $300. Although we have found the conviction established, we do not consider that this matter alone warrants a finding that of unsuitability to practise.
The inclusion of only the fact of the conviction as a particular of Complaint Six may have been a drafting error. Perhaps the drafter wanted to include the particulars to the other Complaints. The error, if indeed it was an error, could perhaps have been cured if the respondent had been present at the hearing. However, in the respondent's absence, it was not appropriate, and procedurally unfair to proceed on a basis other than that set out in the filed application and complaint.
In determining the appropriate disciplinary outcome, the relevant principles to be applied include the following:
1. Any action taken by Tribunal is discretionary: the Tribunal "may" suspend or cancel the practitioner's registration;
2. The paramount consideration is to protect the public: s 3A of the National Law; Re Dr Parajuli [2010] NSWMT 3 at [31]; the jurisdiction is not punitive: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637;
3. In the exercise of this protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the relevant profession, the preservation of public confidence in the that profession and the protection of the community: Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113];
4. The purpose of the proceedings include the need to deter others from engaging in similar conduct: NSW Bar Association v Meakes [2006] NSWCA 340 at [114]:
. . . it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services.
1. The nature of the jurisdiction of the Tribunal is not to punish the respondent, but to protect the public and to maintain proper standards in the chiropractic profession: Clyne v New South Wales Bar Association [1960] HCA 40; Prakash v Health Care Complaints Commission [2006] NSWCA 153;
2. There are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include the reminder to other members of the profession of the public interest in maintaining high professional standards (the deterrent aspect to the protective nature of the jurisdiction: Health Care Complaints Commission v Do [2014] NSWCA 307 and the unacceptability of certain kinds of conduct and the maintenance of confidence in the high standards of the profession: New South Bar Association v Meakes [2006] NSWCA 340;
3. The conduct of the respondent must be measured against what is reasonably expected of a practitioner of an equivalent level of training and experience and by the standard of the profession. In Health Care Complaints Commission v Litchfield (1977) 41 NSWLR 630 the Court stated at 638:
The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.
1. The test for cancellation of a practitioner's registration under the National Law was stated by the Tribunal in Health Care Complaints Commission v Ahmad [2015] NSWCATOD 103 at [278] to [281] as follows:
[278] In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": Health Care Complaints Commission v Perroux [2011] NSWDC 99 at [18].
[279] The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: s 3A of the National Law.
[280] Whether the gravity of the misconduct was such that there is no appropriate alternative to cancellation is a matter of degree and interpretation: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
[281] Past cases referred to the determination of whether the practitioner is "permanently unfit to practice" in making an order for de-registration: Stanoevski v Law Society of New South Wales [2008] NSWCA 93 at [52]- [54]. More recent consideration of these cases clarify that an undue focus on the word "permanent" is a gloss. It is demonstrated current unfitness, not a prophesy of permanent unfitness, that is required to justify deregistration: Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 at [102]; Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31.