Health Care Complaints Commission v FJV

Health Care Complaints Commission v FJV - [2022] NSWCATOD 123 - NSWCATOD 2022 case summary — Zoe

[8]

Particular Two of Complaint One

Particular Two of Complaint One alleges that FJV failed to do the following, in relation to Patient A's diabetes: 1. Order routine urinalysis, 2. Take finger prick blood sugar tests during consultations, 3. Consider the role of diabetes in Patient A's frequent symptoms of a urinary tract infection (UTI), 4. Record concerns regarding Patient A's compliance with diabetes control, 5. Provide advice to Patient A regarding the need to ensure regular reviews and the setting of targets for diabetes control, 6. Inform Patient A about complications associated with diabetes, or the benefits of controlling diabetes, particularly in relation to improvements in mental wellbeing.
In his Reply, FJV says that he discussed Patient A's blood sugar with her "at times when it was appropriate and Patient A was receptive to it".
FJV admits that he did not take finger prick blood sugar tests during consultations, but says that he relied upon Patient A's report of her home blood glucose levels measurements.
FJV does not admit that Patient A's reporting of UTI symptoms was frequent, given that she was a sexually active young female, and he says that the particular was too vague to admit.
FJV admits that he did not record his concerns about Patient A's non-compliance with her diabetes control.
FJV denies that he failed to advise Patient A of the need to ensure regular reviews and the setting of targets for her diabetes control, but he admits that he found it difficult to engage Patient A on the subject of diabetes control.
FJV denies that he failed to inform Patient A about the complications associated with diabetes or the benefits to be gained in controlling diabetes. He said that he discussed these matters with Patient A on several occasions when she was open to engaging in those conversations.
Dr Mullins, a general practitioner retained by the HCCC to provide an expert report in relation to FJV's treatment of Patient A, said the following in relation to FJV's management of Patient A's diabetes (Report of Dr Mullins dated 11 August 2020, Exhibit A 1, Tab 19): It was noted [Patient A] was an insulin dependent diabetic, on insulin pump, under the care of the endocrinologist, Prof Boyages. Pathology results for 13 November 2015 include a HbA1c of 8.7, which is above targets for good diabetes control. [FJV] records this HbA1c result on December 3 2015, and states patient "reports BSL's around 6", but this was not checked or confirmed. This is not consistent with HbA1c of 8.7, which indicates blood sugars average about 10 or greater. The pathology reports I have viewed record consistently high levels for BSL and HbA1c. There is no record of urinalysis at consultations. There is no record of any blood sugar testing at any consultations during the time period I have reviewed. This test I expect should be available in all GP rooms, and can be done with a simple finger prick blood test. There is no documentations of consideration of role of poor diabetes control in frequent presentations with symptoms consistent with a urinary tract infection, but glycosuria is reported frequently in microbiology reports, so further information was available. The role of the GP in diabetes management is to manage the chronic disease, & co-ordinate with other health providers to ensure optimal patient care, with checks for compliance and ensure regular review of diabetes care. A care plan was prepared on 28 June 2016, with team care arrangements, so she was eligible for medicare funded visits to allied health. It is important to be alert for signs and symptoms with intercurrent illness which may be a complication of the diabetes itself, or be a sign of inadequate control. It is important to encourage preventative activities including appropriate diet and exercise. There needs to be monitoring for signs of complications of the diabetes itself, including cardiovascular complications. Ophthalmologist or optometrist review is expected at least every 2 years, diabetes educator and dietician are also involved in many patients, particularly with poor control as reflected in the pathology results of elevated BSL & HbA1c being consistently above targets. I acknowledge there are no regular routine consultations for review of [Patient A's] diabetes, but rather presentations when she is either acutely unwell either physically or mentally, as FJV stated in the s 150 proceedings. This does make management much more difficult. The records do not record FJV concerns of patient's non compliance or advice given, particularly to ensure regular review and targets for diabetes control. There is no documentation of attempts to motivate her, and informing her of associated complications and benefits, including improvement in mental well being, with improved diabetes control. [Patient A] being under the care of an endocrinologist does not stop [FJV] from adjusting insulin dosage himself or referral to diabetes educator. The medical records do not show care of diabetes at standard expected of a General Practitioner, (RACGP Clinical Guidelines). The standard is significantly below what is reasonable expected and invites my strong criticism.
We accept Dr Mullins' evidence in relation to FJV's management of Patient A's diabetes. We accept that FJV made some attempt to engage Patient A with respect to the proper management of her diabetes, and we accept that this was a difficult task, but his attempts clearly fell significantly short of what constitutes proper management of a patient's diabetes by a general practitioner. FJV was required to be much more active, and to initiate the appropriate monitoring and steps in diabetes control.

[9]

Particular Three of Complaint One

Particular Three of Complaint One alleges that, from 5 November 2015 to 13 February 2018, in relation to Patient A's recurrent UTI symptoms, FJV failed to: 1. Order mid-stream urine tests, which would have been appropriate on account of the frequency of the UTI infections, 2. Investigate underlying causes or alternative diagnoses.
In his Reply, FJV, again, does not admit that Patient A was suffering from frequent UTI symptoms, and he denied that he failed to monitor her UTI symptoms generally. FJV said that Patient A had given a history, at her first consultation at FJV's practice, of recurrent UTIs, and this was carried forward in all correspondence. FJV denies failing to order mid-stream urine tests and says that those tests were ordered and appear in the medical record. FJV also denies failing to investigate underlying causes of alternative diagnoses when urinalysis was negative for a UTI. FJV pleads that, in circumstances where urinalysis was positive for a UTI, no further investigation was warranted.
FJV's clinical records disclose that Patient A reported UTI symptoms to FJV on 14 occasions between 3 December 2015 and 5 December 2017 (Report of Ms Mudliar 3/7/2020 Exhibit A 1 Tab 18). We consider that 14 reports in about two years can fairly be described as frequent (as it was in Complaint One Particular 2.c)
In her report, Dr Mullins said the following in relation to FJV's treatment of Patient A's UTI symptoms: [Patient A] has numerous presentations with symptoms consistent with a urinary tract infection and pathology results confirming a urinary tract infection on many of these occasions. Antibiotic treatment was appropriately given on these occasions. Follow up MSU to ensure complete eradication of the infection after antibiotic treatment was completed was not ordered. This is not always routine, but appropriate with frequent infections occurring & may have prompted investigations if done. Investigations of underlying causes or alternative diagnoses was not performed. Urinary tract infections increase in frequency secondary to hyperglycaemia, and so diabetes control needs to be reviewed. A simple finger prick BSL is easily done in general practice. Glucosuria was noted in pathology results, confirming high blood sugars. Gynaecological infections such as chlamydia cause similar symptoms. Underlying urinary tract pathology needs to be considered and investigated if appropriate. The standard is significantly below what is reasonably expected and invites my criticism. It does not invite my strong criticism as the primary issue is poor diabetes control, and the frequent urine infections is I consider primarily secondary to this.
Our reading of [Patient A's] medical records [Exhibit A1 Tab 31] shows that FJV did order mid-stream urine tests on many of the occasions that FJV presented with UTI symptoms, as a diagnostic tool. He did not, however, order follow-up mid-stream urine tests to check whether the medication prescribed had resulted in the elimination of the infection, which would have been appropriate, given the pattern of presentations. We note that, in the written submissions submitted in FJV's case, it was argued that further investigations were unwarranted in circumstances where the initial mid-stream urine test showed evidence of infection. We disagree with that proposition, given the frequency and pattern of Patient A's symptoms.
We agree with Dr Mullins that FJV failed to investigate adequately the cause, or alternative diagnoses, of Patient A's frequent UTIs to the appropriate standard.

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Particular Four of Complaint One

Particular Four of Complaint One alleges that, throughout his treatment of Patient A, FJV's care and treatment of her mental health was inadequate in that he did not have a 'detailed specific therapeutic technique or approach to managing Patient A's mental health'.
Particular Four also alleges that FJV made himself available to Patient A after hours by providing his personal telephone number to her instead of advising her to present at a hospital or contact Lifeline when she felt unwell.
In his Reply, FJV denies Particular Four of Complaint One. He said that Patient A was "under the care of a psychologist and a psychiatrist at all material times, and it was appropriate that her care and management was substantially managed by them". FJV says that referring Patient A to the psychologist and psychiatrist for specialist input was appropriate management. He says "In addition to that, I engaged in talking therapy with her during the consultations she had with me where she needed to discuss her mental health".
FJV admits providing Patient A with his personal mobile phone number so that she could contact him after hours. He says that he did that when he was particularly concerned about her health and safety. He says that he advised her of the option to present to a hospital or contact Lifeline on "numerous occasions".
There is no doubt that FJV provided Patient A with his personal mobile phone number so that she could contact him outside of consulting hours.
In her report, Dr Mullins noted that FJV's care of Patient A was "predominantly focussed" on her mental health. However, she also said that he did not devise a specific technique or approach to his treatment of Patient A's mental health. Dr Mullins noted that FJV does not have any "specific training or qualifications in mental health, or drug and alcohol treatment". Dr Mullins noted Patient A's admissions as an inpatient, and the involvement of a psychiatrist and a psychologist through part of the relevant period. Dr Mullins noted that Patient A was referred to a particular psychologist on 30 January 2017. However, on 24 July 2017, FJV's notes of a consultation with Patient A say that she saw the psychologist that morning, and "feels it is not working with him any more". FJV said, in the notes of that consultation that he "agreed to do counselling for her weekly". Dr Mullins said that "counselling", from the notes, consisted of discussing Patient A's problems, problem solving for immediate current problems, positive thinking strategies and the identification of emotions. Dr Mullins said that FJV did give some positive advice, and set Patient A "homework" to reinforce the advice. However, as Patient A's high risk behaviour and excess alcohol consumption continued, and was known to FJV, the more appropriate management plan with Patient A would have been to facilitate re-engagement with her psychologist and psychiatrist.
Dr Mullins was strongly critical of FJV's suggestion to Patient A on 27 June 2016 and 24 July 2017 that she engage in weekly counselling sessions with him. Dr Mullins noted "This is not just short term to ensure [Patient A's] safety until specialist care is available".
Ms Mudliar, the investigator, noted in her report that FJV's account of his prescribing of Seroquel for Patient A amounted to simply providing repeat prescriptions, because she had been diagnosed with depression prior to consulting with him.
Dr Mullins said, in her report, that the only record of the reason FJV prescribed Seroquel for Patient A is in the notes for the consultation on 29 March 2016 where "insomnia depression" is recorded. Dr Mullins said that Seroquel is indicated for the treatment of schizophrenia and depressive episodes associated with bipolar disorder. There is no record of Patient A being diagnosed with those conditions. However, Dr Mullins says that she is aware that Seroquel is frequently used for the insomnia associated with severe depressive illness, chiefly by psychiatrists. Dr Mullins said that she does not initiate its use for that purpose.
FJV's medical notes do not disclose whether FJV initiated the treatment. He said, in the s 150 hearing, that it was initiated prior to him commencing to treat Patient A. In her statement, Patient A said that she "suffered from anxiety and depression before I began seeing [FJV]" as her general practitioner. The purpose of the ongoing prescription of the Seroquel by FJV is opaque on the records available.
Dr Mullins said, in her report: Seroquel was increased 27 June 2016, with worsening of depressive symptoms. [Patient A] was advised to consider hospital admission, which did occur on 4 July 2016. It is not possible to ascertain who is making the decisions about doses and use of the Seroquel from the medical records. The prescribing Doctor, in my opinion, should ascertain efficacy and ongoing need, & presence of any adverse effects. There is no notation of efficacy or side effects or monitoring by FJV.
The assessment and treatment of a patient's mental health is part of the function of a general practitioner. However, if it is apparent that the patient's mental health issue requires specialist input or management, on account, for example, of its complexity or severity, then a competent practitioner will refer the patient to a psychologist or a psychiatrist, or both, depending upon the issue. It may be that, in the course of assessing or treating a patient with a mental health issue, it becomes apparent to the general practitioner that insufficient progress is being made, or that the severity or complexity of the issue has escalated, in which case, again, the referral of the patient to a psychologist or psychiatrist is likely to be appropriate.
Patient A had complex and serious mental health issues. FJV was aware that she had engaged with mental health professionals prior to consulting with him. He was also aware of her sessions with her psychologist and her periodic admissions to inpatient treatment facilities. In all of the circumstances, it was not appropriate for him to embark upon routine counselling with her. It should have been plain to him that her mental health issues required regular and frequent engagement with a psychologist and a psychiatrist, and he should have encouraged that to a much greater degree than he did. We note that FJV did refer Patient A to a psychologist and to a psychiatrist. We take into account that Patient A was not always compliant and did not always follow up on referrals. We also take into account the submission in FJV's written submissions that the affordability of sessions with the psychologist was an issue for Patient A's mother. However, FJV's assumption of an ongoing counselling role with Patient A was inappropriate given the complexity and severity of her mental health issues. The absence of any treatment plan made it even more inappropriate. The on-going counselling should have been left to the specialists in the area, and FJV's involvement in mental health counselling should have been far less than it was, and confined to circumstances where Patient A's psychologist or psychiatrist was not accessible to her.
FJV fell significantly short of the standard expected of a general practitioner in relation to his management of Patient A's mental health. We note that Dr Mullins was strongly critical of his approach to Patient A's mental health.
Dr Mullins said, in her report, that the provision, by FJV, of his mobile phone number, to Patient A, breached the professional boundary. Dr Mullins said that a more appropriate action would have been for FJV to advise Patient A to present to a hospital or to contact Lifeline in an emergency situation.
FJV pleaded that he had told Patient A, on numerous occasions, to contact Lifeline or present to hospital.
FJV said that he gave Patient A his mobile number out of concern for her safety. He failed to see that, by giving Patient A his mobile number, he was encouraging her to resort to him, after hours, when she felt that she needed help. This was, in fact, what happened. As a result, the relationship between FJV and Patient A became more than doctor patient relationship, and became a relationship in which FJV inappropriately involved himself in Patient A's personal and family life in a manner which was inconsistent with his role as Patient A's general practitioner.
Dr Mullins was strongly critical of FJV because of professional boundaries being breached in relation to providing Patient A with his mobile phone number. We agree that FJV breached professional boundaries in encouraging Patient A to call him after hours on her mobile phone.

[11]

Particular Five of Complaint One

Particular Five of Complaint One alleges as folllows: Between 5 November 2015- 13 February 2018 in the course of treating Patient A, the practitioner inappropriately counselled Patient A in relation to her ongoing alcohol abuse which was outside the scope of the practitioner's skill, knowledge and competence, and in doing so breached section 2.2 of the Medical Board of Australia's 'Code of Conduct' ('the Code of Conduct')
FJV denies Particular Five. He says: …it is well within the skill, knowledge and competence of a general practitioner to provide such counselling and is, indeed, expected of a general practitioner to provide such counselling.
In her report, the investigator, Ms Mudliar, said that the clinical records show that FJV counselled Patient A on her use of alcohol "and its effects on her decision making" on multiple occasions.
Ms Mudliar said, in her report, that FJV had said, at the s 150 hearing, that he did not refer Patient A to a drug and alcohol specialist as she was "reticent about seeing anyone and had a very negative attitude toward doctors and treatments". Ms Mudliar noted, however, that Patient A was referred to the Hills Clinic on a number of occasions between 2016-2018. Addiction and other mental health conditions are treated at the Hills Clinic.
Dr Mullins, in her report, notes that FJV does not have specific training or qualifications in mental health, drug or alcohol treatment. Dr Mullins says: Alcohol and drug use is best treated by experienced clinicians at Drug & Alcohol service. [Patient A] was considered a high risk patient, with regular use of excess alcohol & illicit drugs intermittently, and poorly controlled diabetes. I acknowledge that on review of the medical records compliance of [Patient A] is an issue which makes management of her physical and mental health difficult. However, numerous consultations include details of excessive alcohol consumption during the weekly "counselling sessions & [FJV] needed to seek professional help for his patient. Patient safety is of concern when treatment is not by the appropriate professional. [FJV] acknowledges his own personal experience influenced his care, as admitted at the s 150 hearing. However, he appears to have failed to recognise the counter-transference occurring during the consultations at the time. The Medical Board Code of Conduct specifically states that good patient care includes " Recognising and working within the limits of your competence and scope of practice: & ensuring that you have adequate knowledge to provide safe clinical care". The standard is significantly below what is reasonably expected and invites my strong criticism.
A degree of counselling of a patient with respect to alcohol and drug use is within the purview of a general practitioner who has no specific training or qualifications in drug and alcohol treatment. However, as the extract from the Code of Conduct quoted by Dr Mullins indicates, each general practitioner is expected to know the limit of their competence in this area (as in all areas). When that limit is reached, when the patient requires more specialised treatment than the general practitioner can provide, the general practitioner is expected to refer the patient to a specialist. General practitioners differ, one from another, in their professional experience, training, aptitude and interests. The extent to which any general practitioner may usefully counsel a patient with respect to the patient's alcohol and drug use will be specific to that general practitioner.
Patient A had serious and complex alcohol and drug issues. FJV wrongly believed that his personal experience of addressing an addiction to codeine, which arose out of his use of codeine to alleviate the symptoms of Crohn's disease, suited him to drug and alcohol counselling. At the s 150 hearing, FJV agreed that the clinic at which he was practising had promoted him to potential patients as a general practitioner who had an interest in providing drug and alcohol counselling. FJV admitted that, after his experience with Patient A, he realised that he was out of his depth in this area.
FJV's personal experience was not usefully able to be applied to Patient A's very different circumstances and mix of diagnoses. FJV should have realised, quite early in the course of the period of slightly more than two years during which Patient A consulted him, that Patient A would be likely to obtain more benefit from specialised drug and alcohol treatment than she was obtaining from his approach. We acknowledge that FJV referred Patient A to a psychologist for treatment in relation to her alcohol and drug use. However, having done that, it was inappropriate for him to engage in providing his own, prolonged, independent counselling.
Particular Five of Complaint One has been established.

[13]

Particular Seven of Complaint One

Particular Seven of Complaint One alleges: Between 5 November 2015 - 13 February 2018 in the course of treating Patient A, the practitioner inappropriately criticised two other health professionals involved in Patient A's care, in direct conversations with Patient A, which was in breach of section 4.2 of the Code of Conduct.
The Code of Conduct says, in 4.2: 4.2 Respect for medical colleagues and other healthcare professionals Good patient care is enhanced when there is mutual respect and clear communication between all healthcare professionals involved in the care of the patient. Good medical practice involves: 4.2.1 Communicating clearly, effectively, respectfully and promptly with other doctors and healthcare professionals caring for the patient. 4.2.2 Acknowledging and respecting the contribution of all healthcare professionals involved in the care of the patient. 4.2.3 Behaving professionally and courteously to colleagues and other practitioners including when using social media.
In her statement, Patient A said the following: 40. The issue of whether I trusted him (ie [FJV]) was something that had come up previously in a consultation session where he asked me "do you trust me?". I had been slow to respond and a bit hesitant to answer but eventually said "yeah, I do". There had also been a discussion about my not being able to cry in front of him, the way that I could in sessions with my psychologist. 41. I felt that [FJV] wanted me to be able to cry in front of him as some sort of confirmation that I trusted him just as much. I recall him saying during a consult "I'm going to make you cry one of these days". This was said in a joking manner and I can't recall the exact conversation it was said in. I do remember him joking that to stop me holding back my tears, he was "going to be more mean, like [name]" (referring to my psychologist). 42. There were occasions where I expressed to [FJV] my frustrations with my psychologist. [FJV] discouraged me from seeing him and said that he was happy to provide counselling instead. … 55. [FJV] had prescribed me Seroquel for my anxiety and depression. When [FJV] was not at the practice, I saw [another male GP] for prescriptions. [The other male GP] told me "I'll tick that you're bipolar so you get it on the PBS and that way, it's cheaper for you. It doesn't hurt to bend the rules now and then". I'm not sure if [FJV] was doing this as well. I'm not sure if my medical records state that I'm bipolar: if they do, it is an incorrect statement because I have not been diagnosed as such. 56. [FJV] mentioned to me during an occasion when we went walking, that [the other male GP] was "strange". He said words to the effect of "the patients find him a bit odd. I've seen their notes and he goes into sexual issues when there's no need to even ask those questions. I caught him taking photos of my wife's boobs at the Christmas party". I agreed with him that [the other male GP] was a really strange guy and I felt him to have a weird personality with an off sense of humour when I had seen him.
FJV admits Particular Seven and we find it proven to the requisite standard.
Complaint One has been established.

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Particular One of Complaint Two

Particular One of Complaint Two alleges that, between 5 November 2015 and 13 February 2018, FJV breached professional boundaries when he inappropriately disclosed aspects of his personal life to Patient A, including information about his health and addiction issues, and thereby contravened section 8.2 of the Code of Conduct.
The Code of Conduct provides, in section 8.2: 8.2 Professional boundaries Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: 8.2.1 Maintaining professional boundaries. 8.2.2 Never using your professional position to establish or pursue a sexual, exploitative of other inappropriate relationship with anyone under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law. 8.2.3 Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress.
In her statement of 20 November 2019, Patient A said that, starting in December 2017, she and FJV began to go for walks together which would last 3 to 4 hours, on average. She said that there were four or five such walks.
Patient A said that FJV disclosed the following information about himself in the course of the walks:

Details about when he started abusing codeine and "got into trouble" with the Medical Council of NSW.
That he had taken codeine at work and that he became addicted to it.
That he used to drink a lot of alcohol, particularly Jack Daniels.
That he had lied to the Council and diluted urine samples that he had to give them for testing.
Information about his childhood and family.
Information about himself as a parent.
Information about his custody battles with his ex-wife.
Information about the circumstances of his separation from his ex-wife.
Information about his financial circumstances.

Patient A's diary (Exhibit A1 Tab 10), her texts (Exhibit A1 Tab 7), and FJV's texts to her (Exhibit A 1 Tab 8), record other disclosures by FJV relating to his friendships, his mental health, his relationship with his wife/ex-wife, his physical health, his financial status, his children and his substance abuse.
FJV admits Particular One of Complaint Two.
We find that Particular One of Complaint Two has been proven.

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Particular Four of Complaint Two

Particular Four of Complaint Two alleges that, on 29 November 2017, in the course of treating Patient A, FJV breached professional boundaries when he inappropriately questioned Patient A about sex.
FJV does not admit Particular Four and says that he did not recall questioning Patient A about sex at the consultation on 29 November 2017. He says that his notes for that consultation say that Patient A presented on that day in distress and he counselled her.
In her complaint, Patient A said that, on 29 November 2017, in the course of a consultation in which she was agitated, FJV suggested that she do various things to settle herself and asked whether she had tried sex as a means of reducing her anxiety. A bit later in the consultation, FJV wrote his mobile phone number down and handed it to Patient A.
In her statement, Patient A repeated her account of the 29 November 2017 consultation, consistently with her complaint.
Patient A sent a text to a friend on 29 November 2017 which gave a brief account of her consultation with FJV, consistent with Patient A's complaint, and notes "Sex was talked about…and he gave me his number". A further text by Patient A to a friend on 29 November 2017 was also consistent with the account in the complaint.
Patient A recorded in her diary that FJV asked her "if sex helped with the anxiety" and alluded to FJV's provision to her of his mobile phone number.
FJV did not require that Patient A be available for cross-examination. No evidence has been adduced which contradicts Patient A's many relevantly consistent accounts of the consultation of 29 November 2017. We accept Patient A's evidence.
Dr Mullins, in her report, referred to the Medical Board of Australia document Sexual Boundaries: Guidelines for Doctors ("the Guidelines"), which defines sexual harassment to include: (e) requesting details of sexual history or sexual preferences not relevant to the clinical issue
Dr Mullins said that, assuming Patient A's account is accurate, she believed that FJV's conduct amounted to sexual harassment and was contrary to the Guidelines.
Dr Mullins said that FJV's conduct was significantly below what is reasonably expected. We agree.

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Particular Ten of Complaint Two

Particular Ten of Complaint Two alleges that, during February 2018, in the course of treating Patient A, FJV breached professional boundaries "when he inappropriately offered Patient A money for a holiday in Bali".
In his reply, FJV denies Particular Ten, and says that he did not offer Patient A money "to pay for a trip to Bali".
In her statement, Patient A said: During a consult prior to the trip to Bali in or around January 2018, [FJV] offered to lend me some spending money for my holiday. I declined the offer as I don't like owing anybody anything. I declined because it wasn't right and I didn't want [FJV] to hold this thing over me, that he had financially helped me. It seems like another form of control. In addition to my personal reasons for refusing the offer, [FJV] had previously mentioned to me that he was short on money.
Patient A included this incident in her complaint.
It was the evidence of Patient A's mother that it was her understanding that FJV had offered to give Patient A "spending money to go on the trip", meaning the proposed trip to Bali.
There is no allegation that FJV offered to pay for a trip to Bali for Patient A. The allegation, which is clear from all of the relevant materials, is that he offered to give her spending money for the proposed trip to Bali. We note that FJV has not pleaded to that allegation.
As we have said, FJV did not require Patient A for cross-examination. Patient A's complaint and her statement are consistent, and she evidently told her mother about FJV's offer.
The evidence establishes the allegation in Particular Ten of Complaint Two. The relevant standard of proof is on the balance of probabilities, but even if it were the "Briginshaw standard", as submitted on behalf of FJV, the standard would have been met. We agree with Dr Mullins' assessment, in her statement, that FJV's conduct, in offering to provide Patient A with spending money for her proposed trip to Bali, was significantly below the standard expected.

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Particular Eleven of Complaint Two

Particular Eleven of Complaint Two alleges that, on 28 December 2017 and 31 January 2018, FJV breached professional boundaries, and breached section 3.4 of the Code of Conduct, when he discussed Patient A's health with a close family member of Patient A, without Patient A's consent, and also when he discussed with Patient A his upcoming consultations scheduled with Patient A's close family member.
FJV admits the allegation in Particular Eleven of Complaint Two.
The Code of Conduct, in section 3.4, says: 3.4 Confidentiality and privacy Patients have a right to expect that doctors and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations. Good medical practice involves: 3.4.1 Treating information about patients as confidential. 3.4.2 Appropriately sharing information about patients for their health care, consistent with privacy law and professional guidelines about confidentiality. 3.4.3 Using consent processes, including forms if required, for the release and exchange of health information. 3.4.4 Being aware that there are complex issues related to genetic information and seeing appropriate advice about disclosures of such information. 3.4.5 Ensuring your use of social media is consistent with your ethical and legal obligations to protect patient confidentiality and privacy.
The context for this particular is that Patient A's mother was also a patient of FJV throughout the period the subject of the complaint.
In its written submissions, the HCCC gives the following outline of the evidence relevant to this particular, which FJV accepts: a. the patient's complaint that she met the practitioner on 28 December 2017 at the [named] hotel; b. the patient's statement that she found out from her mother that the practitioner had disclosed information about her during a consultation with her "[FJV] told her I should be going to [named] hospital. c. the practitioner's text to the patient ("your mother asked me to change the referral to [name of area containing hospital]"). d. the practitioner's texts with the patient on 28 December 2017 (Patient: How'd it go with my mum. Practitioner: Ok. Your Dad was there too…Practitioner: I'm about to go get a drink. Did you need to meet? I've finished work now…I'm out of grog so I was just gonna go to Dan Murphy and get some but I can meet you somewhere… Patient: [Name of Hotel]); e. the mother's statement (about 28 December): [FJV] said I've been seeing her regularly out of hours…I was really concerned for her safety because she was self harming and drinking…she was in a really bad way mentally. (About 31 January) [FJV] sent me a text message and ask to see me at the surgery regarding [Patient A]…there was no clinical reason for me to consult with [FJV] on that day…[FJV] said… [Patient A] is in great danger of harming herself…; f. the mother's diary about 28 January 2018 and 31 January 2018; g. the practitioner's referral to [Name of hospital]; h. the Code of Conduct; i. the expert report (that the conduct is significantly below what is reasonably expected).
The mother's diary, referred to in f, above, is an account of Patient A's mother's visit to FJV's surgery in response to FJV's text message. In the conversation at the surgery, FJV discussed Patient A's mental health with her mother and discussed future treatment options.
We agree with Dr Mullins' view that this conduct is significantly below what is reasonably expected of a general practitioner. It is also in breach of the Code of Conduct, section 3.4, including 3.4.1, 3.4.2 and 3.4.3.

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Particulars Twelve and Thirteen of Complaint Two

Particular Twelve of Complaint Two alleges that, on 31 January 2018, FJV breached professional boundaries and breached section 3.4 of the Code of Conduct when he discussed a consultation that had occurred with Patient A's close family member in a personal conversation with Patient A.
Particular Thirteen of Complaint Two alleges that, on 31 January 2018, the practitioner breached professional boundaries and breached section 3.4 of the Code of Conduct when he disclosed information by text message to Patient A about a consultation the practitioner had had with Patient A's close family member.
FJV admits Particulars Twelve and Thirteen of Complaint Two.
In its written submissions, the HCCC gives the following outline of the evidence relevant to these particulars, which FJV admits: a. the patient's complaint: "on the 31st of January there was a huge conflict at home that had resulted from [FJV] telling me what my mother had discussed with him". He had sent me text messages of messages that my mother had sent him, times when my mother and father had gone into consultations with him and very briefly what was discussed; b. the practitioner's text to the patient sending her an image of his text to the mother; c. the patient's statement: "I also found out from [FJV] what had been discussed about me, in consultations he had with my mum,,, [FJV] would also tell me when my mum was booked in to see him…On 31 January 2018…When I met [FJV] at the [name of river] that night, he told me what had happened in the consultation with my mum..I was so angry about what [FJV] had disclosed to me, specifically, that my mother had said words to the effect of "she's either going to take her life now or in 10 years". d. the patient's text to her friend on 1 February 2018 "[mum] told [FJV] yesterday that she knows I'm gonna kill myself whether its this week or in 10 years". e. the mother's statement (about her discussion with the practitioner): I recall telling [FJV] "it has always been my concern that she would take her own life, whether it be now or in 10 years time". (about her subsequent discussion with the patient) "[Patient A] then said "you think I'm going to harm or kill myself, if not now, then in the future". When I heard this, I immediately thought that [FJV] must have reported back to [Patient A] my comments about being concerned she would commit suicide". f. the Code of Conduct; g. the expert report (that the conduct is significantly below what is reasonably expected).
We agree with Dr Mullins that FJV's conduct, the subject of this particular, was significantly below the standard expected of a general practitioner. The conduct was in breach of the Code of Conduct, section 3.4, including 3.4.1, 3.4.2 and 3.4.3.

[27]

Complaint Three

Complaint Three is a complaint of unsatisfactory professional conduct under section 139B(1)(b) of the National Law, in that FJV has: 1. contravened clause 7 and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed) ('the 2010 Regulation). 2. Contravened clause 6 and Schedule 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016 ('the 2016 Regulation').
Particular One of Complaint Three (which was the only particular of Complaint Three) is as follows: 1. Between 5 November 2015 - 13 February 2018, in the course of treating Patient A, the practitioner contravened Clause 7 and Schedule 2 of the 2010 Regulation and Clause 6 and Schedule 4 of the 2016 Regulation, in respect of his medical records for Patient A in that the practitioner failed to record: a. whether Patient A had been advised of the potential side effects of taking Duromine, most notably mental impairment. b. whether Patient A was attending specialist appointments and what specialists were involved in her care. c. detailed information in her care plans which set out the management/treatment plan for Patient A's medical conditions. d. any detail of Patient A's family medical history in her health summary. e. any detail of Patient A's alcohol intake in her health summary in circumstances where she had alcohol abuse issues. f. when Patient A's next blood tests were due. g. whether Patient A was complying with her medication. h. whether any physical examinations had been performed.
FJV admits Complaint 3, including all of Particular One, and admits that this is conduct which amounts to unsatisfactory professional conduct.
The Health Practitioner Regulation (New South Wales) Regulation 2016 ('the 2016 Regulation') in clause 6 says: 6 Records relating to patients (1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 4, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation. (2) A contravention of subclause (1) by a medical practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) Subclause (1) does not apply to the following - (a) a public health organisation within the meaning of the Health Services Act 1997, (b) a private health facility within the meaning of the Private Health Facilities Act 2007, (c) a nursing home within the meaning of the Public Health Act 2010. (4) Subclause (3) does not affect the application of subclause (1) to a medical practitioner appointed, employed, contracted or otherwise engaged by a medical corporation referred to in subclause (3).
The Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed), ('the 2010 Regulation') clause 7, was in the same terms as clause 6 of the 2016 Regulation.
The 2016 Regulation, Schedule 4, provides as follows: Schedule 4 Records kept by medical practitioners and medical corporations in relation to patients (Clauses 6(1) and 7(4)) 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following - (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment or other medical service that is given to or performed on the patient by the medical practitioner who is treating the patient - (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment. (5) Any written consent given by a patient to a medical treatment or other medical service proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient. 2 … 3 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment. 4 Form of records (1) An abbreviation or shorthand expression may be used in a record only if the abbreviation or expression is generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community. (2) Each entry in a record must be dated and must identify clearly the person who made the entry. (3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper. 5 Alteration and correction of records A medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in a way that obliterates, obscures or renders illegible information that is already contained in the record. 6 Delegation If a person is provided with a medical treatment or other medical service by a medical practitioner in a hospital, the function of making and keeping a record in respect of the patient may be delegated to a person other than the medical practitioner, but only if - (a) the record is made and kept in accordance with the rules and protocols of the hospital, and (b) the medical practitioner ensures the record is made and kept in accordance with this Schedule.
The 2010 Regulation, Schedule 2 was, relevantly, to the same effect.
It is plain, and FJV admitted at the s 150 hearing, that it would have been difficult for a colleague to understand what stage of management Patient A was up to, had they had to participate in her medical care.
In those circumstances, a medical practitioner seeking to assume Patient A's medical care in reliance only on FJV's notes, would have been unable to do so, safely and reliably.
Complaint Three has been established.

[28]

Complaint Four

The National Law provides, in s 139E: 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.
In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said, at [20]-[21]: 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 21. Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.
Complaint Four alleges that FJV is guilty of professional misconduct under s 139E of the National law, in that he has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and/or 2. 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.
The Particulars of Complaint Four are as follows: 1. Each particular of Complaint One justifies a finding of professional misconduct. 2. Each particular of Complaint Two justifies a finding of professional misconduct. 3. In the alternative, when two or more particulars of Complaint One and/or Complaint Two are taken together, a finding of professional misconduct is justified.
FJV admits that he is guilty of professional misconduct under s 139E of the National Law.
The HCCC, in its written submissions, said: 54. If complaint 1 is proven, the Commission submits that it is conduct of a sufficiently serious nature to justify suspension or cancellation because the patient had chronic health conditions, and the practitioner's poor management put her at risk. 55. If complaint 2 is proven, the commission submits that it is conduct of a sufficiently serious nature to justify suspension or cancellation due to the factors outlined below. 56. The patient was vulnerable. She was 20 years old, had a history of sexual/emotional abuse, suffered depression and anxiety and sought counselling due to a domestic violence relationship at the time. The practitioner knew the patient was vulnerable "he knows how vulnerable I am. He knows I think pretty much every male has taken advantage of me" "knows I'm shit with boundaries, that I get dependent". 57. The practitioner's conduct placed the patient at risk. The expert explains: "There were numerous warning signs with [FJV] revealing his own personal crises, social invitations and specific activities out of work hours, and attempts to give the gift of money. [FJV's] lack of insight into the "counter-transference" occurring in his therapeutic relationship with [Patient A] put a very vulnerable patient with significant mental health issues at increased risk.
The HCCC went on to say that FJV clearly understood that what he was doing was wrong, with respect to his provision to Patient A of "extra support", his meetings and texts with Patient A and his breaches of confidentiality. Furthermore, the HCCC submitted, on the basis of Patient A's mother's statement, that Patient A's mother told FJV, on 31 January 2018, that she was becoming uncomfortable with him seeing Patient A out of hours, and that it was not part of a traditional doctor patient relationship.
The HCCC submitted that, when Complaint 1 and Complaint 2 are taken together, a finding of professional misconduct was justified.
In his written submissions, FJV accepted the HCCC's submissions with respect to Complaint 4.
We find FJV guilty of professional misconduct, as alleged in Complaint Four, on the basis of those particulars of Complaint One and Complaint Two which we have found proven, above.

[29]

Complaint Five

The National Law relevantly defines 'impairment' in s 5 as follows: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; …
Complaint Five alleges that FJV has an impairment within the meaning of s 5 of the National Law, that detrimentally affects or is likely to detrimentally affect FJV's capacity to practise medicine. Particular One alleges that FJV has a mood disorder, Particular Two alleges that FJV has a previous diagnosis of Opioid Misuse and Particular Three alleges that FJV 'has significant personality vulnerabilities, which stem from a conflicted relationship with his father and some exposure to physical violence as a child.
FJV admits that he has an impairment within the meaning of s 5 of the National Law. FJV admits that he has a mood disorder. FJV further admits that he had a previous diagnosis of Opioid Use Disorder, which was in remission at the time that he filed his amended Reply, but was no longer in remission at the time of the hearing. FJV admits that he has personal vulnerabilities, but said that the origin of those vulnerabilities is complex and cannot be described as simply as in Complaint Five.
In his statement of 29 May 2022, FJV says that he is experiencing a relapse of Opioid Use Disorder. He also says that, in 2021, he was diagnosed with Autistic Spectrum Disorder. He also has Crohn's disease.
The HCCC tendered an expert report of Dr Samuels, a psychiatrist, dated 15 February 2022. Dr Samuels saw FJV on 15 February 2022 for the purposes of preparing a report for the Tribunal. Dr Samuels had previously examined FJV and provided a report dated 1 July 2020 for the purposes of the s 150 hearing.
In his report of 15 February 2022, Dr Samuels said that, in his opinion, FJV was suffering from an impairment, "namely a depressive and anxiety disorder, Autism Spectrum Disorder and an Opioid Misuse Disorder which appears to be in remission and which stemmed from the management of his underlying Crohn's disease which is fairly well controlled on a new medication". As we have said, FJV's Opioid Use Disorder is no longer in remission.
Dr Samuels said, in his report of 15 February 2022, that FJV should not "return to any form of clinical medicine involving patient care".
We find that FJV has an impairment within the meaning of the National Law and that he is presently not fit to practise medicine as a general practitioner.

[31]

Protective orders

The HCCC and FJV have agreed to request that the Tribunal make the following set of protective orders: 1. Pursuant to section 149C(4)(a) of the National Law, that if the practitioner were still registered, the Tribunal would have cancelled his registration. 2. Pursuant to section 149C(4)(b) of the National Law, that the practitioner is disqualified from being registered as a medical practitioner for 2 years. 3. Pursuant to section 149C(4)(c) of the National Law, that the National Board record the fact that the Tribunal would have cancelled the practitioner's registration in the National Register kept by the Board. 4. Pursuant to section 149C(5A) of the National Law, the respondent is prohibited from providing any health services, until such time that he is re-registered as a medical practitioner. 5. The practitioner pay the Commission's cost pursuant to Clause 13, Schedule 5D of the National Law, as agreed or assessed.
The HCCC submitted that the following considerations are relevant to the question of the appropriate protective orders: 1. The protection of public safety and health is paramount (National Law, s 3A), 2. The maintenance of the standards of the medical profession, the preservation of public confidence in the profession and the protection of the community (Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]), 3. Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (National Law, s 3(2)(a)), 4. The Tribunal's jurisdiction is protective, not punitive (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637), 5. It is unavoidable that protective orders may be incidentally punitive (Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] and [31]).
We accept that those factors are relevant, and we take them into account.
The HCCC submitted that the order sought with respect to the cancellation of FJV's registration is appropriate because FJV is not presently competent to practise medicine, and the protection of the public is paramount.
The HCCC submitted, in summary, that FJV's boundary violations had an adverse impact upon Patient A's therapeutic relationship with her psychologist. We agree. The HCCC further submitted, in summary, that, by meeting Patient A informally whilst she was on leave from an in-patient psychiatric facility, FJV's conduct had the potential to undermine the in-patient treatment she was receiving. Again, we agree.
The HCCC submitted, in summary, that FJV's conduct had an adverse impact upon Patient A's ability to seek support from her family. Again, we agree.
The HCCC submitted that FJV's conduct has had a long term effect on Patient A, in that it is evident, from her statement, that FJV's conduct aggravated her difficulties with trust, including in the context of seeking medical help. We accept that submission.
FJV did not take issue with the HCCC's submissions on the orders sought, and he agreed to the making of the orders.
FJV has a history of breaches of the Code of Conduct. This began between May 2003 and May 2004 with the use of codeine he was prescribing and obtaining in the name of another person. FJV was diagnosed with Opioid Use Disorder. Conditions were imposed on his registration, including conditions requiring that he submit to periodic urinalysis. FJV falsified a number of urine samples, by diluting them, and misled the Medical Board in relation to the results. FJV experienced further issues with respect to the abuse of codeine between 2004 - 2007. He misled his psychiatrist and the Medical Board in relation to his codeine use. In proceedings in the Medical Tribunal, FJV was found guilty of unsatisfactory professional conduct and professional misconduct. He was reprimanded, and conditions were imposed on his registration. At the time of those orders, FJV had completed 30 - 40 sessions with his psychiatrist and 43 sessions with his treating psychologist and was thought to have displayed significant progress and good compliance over the preceding year.
On 29 July 2009, FJV breached his critical compliance conditions by failing to attend urinalysis and failing to immediately notify the Medical Board. He was de-registered from 27 August 2009, with a non-review period of 4 months. He was reinstated on 15 October 2010.
Despite his experience, and his acknowledgement, upon exiting the impaired registrants' program in 2014, of the importance of having a general practitioner, a psychiatrist and a psychologist, FJV apparently stopped seeing his treating psychiatrist and psychologist in 2014, and did not seek support or treatment in 2017- 2018.
We determine that a two year disqualification period is appropriate. In our assessment, given the multiple challenges that FJV is facing, two years is the minimum period that he needs to reflect, undertake therapy and complete further training with respect to professional boundaries, were he to change his mind and decide to seek the reinstatement of his registration.
The HCCC submitted that a prohibition order should be made in relation to FJV under s 149C(5) of the National Law, which provides: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
The HCCC submitted that a prohibition order was justified on the basis that FJV poses a substantial risk to the health of members of the public on the basis of his conduct the subject of these proceedings and its impact upon Patient A. The HCCC submitted that FJV might be tempted, for financial reasons, to seek work, and has previously been held out as a drug and alcohol counsellor. However, it was submitted, FJV has shown himself unsuitable for counselling roles. We agree that FJV presently poses a substantial risk to the health of members of the public, were he to seek to engage in any patient focussed role, and a prohibition order is appropriate. FJV has agreed to a prohibition order.
The costs of these proceedings should follow the event, in the usual way. An order for costs in favour of the HCCC will be made.

[32]

Application for non-publication order

The practitioner applied for a non-publication order with respect to his name, or anything tending to identify him, and with respect to his children's names.
The Civil and Administrative Tribunal Act 2013 provides, in s 64: 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.
There is a similar, though not identical, provision in clause 7 of Schedule 5D of the National Law.
It was submitted, in support of the application for a non-publication order, that this matter involved circumstances which are exceptional, or out of the ordinary, by virtue of FJV's pre-existing physical and mental health conditions, and the impact that publication of his name might have on his mental health.
The evidentiary basis for the application was said to be the report of 26 May 2022 of Mr Ferris, a psychologist who began treating FJV in April 2022, together with FJV's statement of 29 May 2022. When he wrote his report, Mr Ferris had conducted three sessions with FJV.
Mr Ferris caused FJV to complete a Personality Assessment Inventory (PAI) on 25 May 2022.
Mr Ferris said, in his report: [FJV], whilst knowing he needs to take responsibility of his first suspension, let alone this one, is highly afraid of the upcoming hearing given the trauma and cost associated with his first suspension and the process associated with it [sic]. Since his suspension, [FJV] has not worked, but currently has a role lined up pending the finalization of the current hearing (not associated with medical practice). A public disclosure [FJV] feels would cost him this work opportunity, as well as the relationship he is currently in. It also fears it likely to trigger his ex-wife to remove his access to his children, as well as ceasing the little support he has from his parents [sic]. Whilst these issues are not necessarily the concern or the responsibility of the HCCC, the PAI results clearly raise the risk of suicidality, and, when discussed with [FJV], he has stated a likelihood of suicide if he was to lose all of these supports and future opportunities - perceiving a high level of helplessness without them. Given that [FJV] wished to accept the registration decision of the HCCC, and has no desire to practise medicine at this point in time - as well as recognising his inability to interact interpersonally with clients, I see little benefit from the hearing results being made public. The decision does nothing to protect the well-being of the general public. However, there is a clear and imminent risk of harm to [FJV] if the hearing outcome was public knowledge.
FJV said, in his statement of 29 May 2022, that he had no plans to practise medicine in any form in the near future. FJV said: 18. At present, I am currently more unwell than I have been in a long time. I am desperately ashamed of my actions in this matter and my inability to prevent my health issues from affecting those around me. I never ever meant to hurt anyone. I am barely capable of getting out of bed in the mornings and I am not fit to give oral evidence in this matter. This is not because I don't want to, I am simply not able to do it. 19. I also recognise that the judgment in this matter will be published in the public sphere and I am terrified about the affect that that will have on my life and the lives of my children [sic]. 20. I am a very introverted and private person and so much of this matter involves some of my most intimate and personal mental health struggles. These struggles are already flared up but every time I think of those struggles being published under my name where anyone can read them, I am completely overwhelmed with fear and humiliation.
FJV also said "to have this judgment published permanently with my name on it would be intolerable for me and I have no idea how I could possibly cope with it".
It is evident from both the Civil and Administrative Tribunal Act 2013 and the National Law that the principles of open justice apply to proceedings under those Acts (see Health Care Complaints Commission v FCE (No 2) [2021] NSWCATOD 203).
The principles of open justice were set out in Council of the Law Society of NSW v CZD [2017] NSWCATOD 31 at [26]-[29]: 26. The principle of open justice is a widely recognised principle of the common law. The rationale for the principle and the limited circumstances recognised at common law for departure from the principle is well explained by McHugh JA in John Fairfax and Sons Limited v Police Tribunal (1986) 5 NSWLR 465 as follows (at 476-477): The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is 'necessary to enable it to act effectively within' its jurisdiction. 27. Also relevant are the comments of Kirby P (as his Honour then was) in his dissenting reasons in John Fairfax Group Pty Ltd (receivers and managers appointed) & Anor v Local Court of New South Wales & ors (1991-1992) 26 NSWLR 131. There his Honour explained: It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ... A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported. 28. The reports contain many authorities dealing with the principle, and the exceptions to it. While the core principle remains the touchstone, particular care must be exercised when considering the precise terms of a statutory provision that provides exceptions to the principle.
The question for the Tribunal, when considering an application for a non-publication order under s 60(1) of the Civil and Administrative Tribunal Act 2013, is whether the Tribunal is satisfied that the making of the order sought is desirable 'by reason of the confidential nature of any evidence or matter or for any other reason'.
The starting point for the consideration is that, consistent with the principles of open justice, the name of a person who is the subject of disciplinary proceedings is expected to be disclosed unless there is a good reason for the making of a non-publication order.
The risk of a negative emotional reaction to disclosure, such as embarrassment or humiliation, is not a good reason (see Council of the New South Wales Bar Association v EFA (No 2) [2021] NSWCATOD 84 at [45]).
The HCCC opposed the making of a non-publication order with respect to FJV's name. It was argued that Mr Ferris' opinion, set out at [174] above, indicated that the risk of suicide would only arise if the cascade of negative events feared by FJV if his name were published; the loss of access to his children, the loss of the support of his parents and the loss of an opportunity for work, actually occurred, and that this was highly unlikely. We reject this submission. Mr Ferris, in his report, said that he had administered a Personality Assessment Inventory ('PAI') to FJV. Mr Ferris said that the PAI showed that FJV is "clearly committed to treatment, and has a favourable prognosis due to his understanding of the need of treatment and the desire to make improvements in his life circumstances". Mr Ferris also said "the PAI results clearly raise the risk of suicidality, and when discussed with [FJV], he has stated a likelihood of suicide if he was to lose all of these supports and future opportunities - perceiving a high level of helplessness without them". In other words, the PAI revealed the risk of suicide, and FJV discussed with Mr Ferris the circumstances in which he predicted that that risk might eventuate. However, neither FJV nor Mr Ferris can be sure whether, or when, or in what circumstances that risk might find expression.
FJV is presently dealing with several challenging issues. His Crohn's disease is better managed than it has been in the past, but it is still present. His Opioid Misuse Disorder has relapsed. In May 2021, at the age of 49 years old, FJV was diagnosed for the first time with Autistic Spectrum Disorder. Mr Ferris said, in his report, of the diagnosis: This diagnosis has been eye-opening for FJV, who now feels he can place many of his social difficulties and emotional experiences in a context he understands and feels tremendously sad that this diagnosis could not have been made earlier, to give him a chance of making positive improvements in his life before things went wrong.
The physical and mental illnesses with which FJV is dealing, together with the new diagnosis of Autistic Spectrum Disorder and the fact that the PAI reveals a risk of suicide, constitute a compelling set of reasons to make a non-publication order with respect to FJV's name.
Upon the publication of this decision, the facts of this case will be easily accessible to members of the public and members of the medical profession. Any deterrent or warning effect to be gleaned from this matter can be gleaned from the facts set out in this decision. It is not necessary for FJV's name to be published for the deterrent or warning effect to be experienced.
FJV will be disqualified from being registered as a medical practitioner and prevented from reapplying for a period of two years. FJV does not presently intend to reapply for re-registration. He has said that he intends to change his career. Should he change his mind about that, he would have to make an application, after two years, under s 163B of the National Law, for the reinstatement of his registration, and, in the course of pursuing that application, he would have to prove that he is fit to practise medicine before his registration could be reinstated. So, while it is true, that, if a non-publication order is made, the public will not be able to ascertain from this decision whether FJV has orders against him under the National Law, the public will be protected by the rigorous process which must be undergone to achieve reinstatement.
The names of FJV's children will also be the subject of a non-publication order, as there is no public interest in their publication and their publication would identify FJV.

[33]

Conclusion

We have found FJV guilty of unsatisfactory professional conduct and professional misconduct. FJV presently has an impairment that detrimentally affects his capacity to practise medicine.
We make the following orders: 1. Pursuant to section 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), if the practitioner were still registered, the Tribunal would have cancelled his registration. 2. Pursuant to section 149C(4)(b) of the Health Practitioner Regulation National Law (NSW), the practitioner is disqualified from being registered as a medical practitioner for 2 years from the date of these orders. 3. Pursuant to section 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the National Board is to record the fact that the Tribunal would have cancelled the practitioner's registration in the National Register kept by the Board. 4. Pursuant to section 149C(5A) of the Health Practitioner Regulation National Law (NSW), the respondent is prohibited from providing any health services until such time that he is re-registered as a medical practitioner. 5. The practitioner is to pay the Commission's costs pursuant to Clause 13, Schedule 5D of the Health Practitioner Regulation National Law (NSW), as agreed or assessed. 6. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the respondent's name (including any other identifying information as provided in s 64(4)) in connection with these proceedings, is restricted to the parties and their legal representatives, and to any other person or body where disclosure is necessary for the effective implementation and administration of the orders made in the proceedings, and is otherwise prohibited. 7. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the respondent's children (including any other identifying information as provided in s 64(4)) in connection with these proceedings is prohibited.

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Judgment (34 paragraphs)

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Cases Cited (8)