Health Care Complaints Commission v FLJ - [2023] NSWCATOD 7 - NSWCATOD 2022 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v FLJ

[2023] NSWCATOD 7

NCAT Occupational|2022-11-24

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Court

NCAT Occupational

Decision date

2022-11-24

Source

Original judgment source is linked above.

Judgment (36 paragraphs)

[1]

Background

The Practitioner was born on [redacted]. In 2002, the Practitioner obtained a Bachelor of Medicine/Bachelor of Surgery from the University of New South Wales. On 9 January 2002, the Practitioner was first registered as a doctor in New South Wales. He practised medicine for the following 18 years, first, as a general medical practitioner and then in 2010, as a specialist medical practitioner in the Sydney region until the suspension of his registration by the Medical Council on 29 September 2020.
The Practitioner had been married but that marriage ended in about 2016. There are two children of that marriage who are now 10 and 7, who spend time with the Practitioner on alternate weekends.
Person A is a specialist medical practitioner who is the same age as the Practitioner. The Practitioner and Person A became friends in 2012, and came to know each other further at a medical conference. During 2014 and 2015 their friendship developed. In 2016, the Practitioner and Person A commenced an affair. The Practitioner fell in love with Person A and did not mind that she was not intending to leave her husband, also a doctor, with whom she had children.
In June 2019, the Practitioner suspected Person A was having a second affair with her business partner and a physical incident took place between the Practitioner and Person A in circumstances described in more detail below. Nonetheless, their relationship continued and they spent time with one another on Tuesday and Friday afternoons. Person A ended the relationship in February 2020.
Between 30 October 2019 and 21 May 2020, the Practitioner used several types of carriage services to harass/menace/offend and intimidate Person A.
On 29 May 2020, Person A's husband received a letter from the Practitioner, sent on 25 May 2020. The letter informed Person A's husband of the affair the Practitioner had had with his wife, and alleged other affairs. The letter enclosed a nude photograph of Person A and copies of intimate messages, including ones written by Person A, which had passed between Person A and the Practitioner.

[2]

The application to the Tribunal

On 7 June 2022 the Health Care Complaints Commission applied to this Tribunal for disciplinary orders. That application initially incorrectly sought an order pursuant to s 149C(1)(b) of the National Law. The Applicant sought leave, which was granted by consent, to amend the application to base the orders sought on s 149C(1)(c). Consequently, the primary order sought by the Applicant was: Cancellation of the Respondent's registration, pursuant to s 149C(1)(c) of the National Law with a non-review period of 2 years.
This remained the Applicant's application at the end of the hearing.
At the commencement of the second day of the hearing, the Practitioner indicated that the protective order which he asked the Tribunal to make was, in descending alternative order, (a) a reprimand (b) a suspension, or (c) cancellation for a lesser period than that sought by the Applicant.
During final submissions the Practitioner refined his position, seeking a reprimand, but in the alternative, if the Tribunal was to make an order which effectively continued his suspension, that the order be limited in time so that the overall period of his suspension be less than three years from 2 September 2020.
The Applicant has amended the particulars of the Complaint a number of times, including orally before us. Complaint 1 is that under s 144(a) of the National Law, the Practitioner has been convicted of a criminal offence in New South Wales. Complaint 2 is that the Practitioner was guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law in that he contravened s 130(1) of the National Law by failing to notify the National Board within seven days of being charged with a criminal offence. It is not asserted this conduct amounts to professional misconduct.
By way of Response filed 22 November 2022 (Exhibit 2), the Practitioner admitted Complaint 1, its background and particulars. The Practitioner admitted Complaint 2, adding he was not aware of the obligation to notify AHPRA of the criminal charges within seven days.
On the second day of the hearing the parties tendered a Statement of Agreed Facts. These facts are taken to have been proven to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336).
Whilst legally represented, the Practitioner chose not to be present at the hearing for reasons set out in a communication sent to his lawyers on 23 November 2022 (Exhibit 5; Appendix 1).
The hearing proceeded on the basis that the matter should be dealt with as a single hearing, subject to any issue as to costs.
Given the Practitioner has admitted the subject-matter of the complaints in writing to the Tribunal, no inquiry need be conducted into the complaints (s 165H National Law), although the circumstances of the criminal offences remain relevant (s 149C(1)(c) National Law).
Accordingly, we find that pursuant to s 144(a) of the National Law, the Practitioner has been convicted of criminal offences in New South Wales. We find that the Practitioner failed, for a period of 15 days, to notify the National Board of the criminal charges, thereby contravening s 130(1) of the National Law and consequently being guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(b) of the National Law.

[5]

Conviction for using carriage service to menace/harass/offend (Section 474.17(1) Criminal Code Act 1995)

The charge of using carriage services to menace/harass/offend involved the Practitioner sending a large number of communications to Person A between 30 October 2019 and 25 May 2020. The carriage services used by the Practitioner included attempted telephone calls, text messages, WhatsApp, Viber and email.
On 18 November and 7 and 17 December 2019, the Practitioner unsuccessfully attempted to telephone Person A, who did not respond to the communication on those days. The Practitioner has accepted that the volume of his attempts (37, 65 and 62 attempts respectively), constituted harassment.
Texts, WhatsApp, Viber and email communications sent by the Practitioner to Person A particularly on 6, 12, 15, 21 and 22 February 2020 were harassing, menacing and offensive. The Statement of Agreed Facts provided the following sample of the Practitioner's communications: "Wow. Breakfast with [redacted] huh? Enjoy. You die..." "You absolute low life slut... YOU SWORE. YOU LIED and BETRAYEO. Now YOU PAY... you flirt. You die... Enjoy the chat? You die Slut Slut... Whore it's you!! Whore You are the one engaging! You called him! You die, Whore... Enjoying the chat? Oh dear. YOU WILL PAY!... You have until 1 pm to come clean and talk or I will confront" [redacted] "I WILL DESTROY YOUR FAMILY, YOUR BUSINESS, YOUR CAREER AND YOUR FRIENDSHIPS…YOU WILL PAY DEARLY for that" "you blame me and my angry outbursts. I acknowledge that it doesn't help at all... ALL these outbursts? I am sorry for my immature reactions in response to your lies and betrayal, but anger and hurt is natural in that situation... But I agree, my acting out in blind rage doesn't help. The outward projection of the anger through abusive words and violent acts doesn't help. I am sorry for that More recently the threats don't help either... so you've used my anger and violence as a scapegoat. I still acknowledge that it was not helpful" "I WANT TO HURT YOU NOW" "Enjoy your dinner slut. You degusting piece of shit. You have ensured the end of your family. Despicable" "What a slut!" "You are a lying cheating slut of a cunt!!!" [errors in the original]
The offence of using carriage services to menace/harass/offend carries a maximum penalty of three years imprisonment and the sentencing magistrate observed that these types of communications are not uncommon and placed them at the mid-range or just below mid-range in terms of the seriousness of the offence.

[8]

Sentences

In sentencing the Practitioner, her Honour took into account that the Practitioner had no previous criminal record and the extra curial punishment, namely that his registration as a medical practitioner had been suspended at that time for a period in excess of six months. Her Honour also took into account the fact that the Practitioner had pursued some rehabilitation with Dr Pulley, a psychiatrist, whom, as we discuss below, was engaged by the Practitioner as a consultant and a therapist.
During the hearing the Practitioner read the following statement to the court: I would like to express my sincere regret and remorse for my actions; not due to the consequences of them, but because no one should be treated the way I treated [Person A], let alone someone I care for and love. [Person A], can I please apologise for treating you that way? Your Honour, I apologise to you and the court for wasting your time and resources in the matter.
With respect to the assault occasioning actual bodily harm, the intentional distribution of an intimate image and the stalk [sic] intimidate charge, the Practitioner was placed on community correction orders for a period of 12 months with a condition that the Practitioner comply with the treatment plan in the report of Dr Pulley dated 2 February 2021 (discussed below), with a further condition that the Practitioner accepts the supervision of community corrections in respect of compliance with the treatment plan.
With respect to the Commonwealth charge of using carriage services to menace/harass and offend, the Practitioner was placed on a recognisance pursuant to s 21A of the Criminal Code to be of good behaviour for a period of 12 months to be provided by the Practitioner in the sum of $500. A similar condition of compliance with a treatment plan and supervision of that treatment plan were imposed on the recognisance.
Given that the Practitioner was sentenced on 26 March 2021, the community correction orders and the recognisance have expired.

[10]

The applicable legal principles when considering what order is to be made

Having found the complaints established, we turn to consider the nature of what orders, if any, should be made.
The Tribunal may exercise disciplinary powers conferred by Part 8 Subdivision 6 of the National Law. These include caution, reprimand, imposing conditions, ordering treatment or counselling (s 149A National Law) and suspension and cancellation of registration (s 149C(1)(c)). As indicated, the Applicant seeks an order for cancellation; the practitioner seeks a reprimand or suspension for a further limited period.
Section 149C(1) of the National Law provides: (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. [emphasis added]
What orders will be sufficient is a matter for the Tribunal to determine in each case (Chen v Health Care Complaints Commission [2017] NSWCA 186 at [13]) and each case will depend upon an evaluative judgment being made by the Tribunal as to the nature and seriousness of the conduct (Chen at [20]). The emphasis is upon the practitioner's current fitness to practise (Chen at [71]).
The object and guiding principle of the National Law is that the Tribunal must ensure the protection of the health and safety of the public is the paramount consideration (s 3A), and in providing that protection the Tribunal is to ensure that only health practitioners who are suitably tried and qualified to practise in a competent and ethical manner are registered (s 3).
As Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 explained: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. [footnotes omitted]
So far as Meagher JA refers to upholding public confidence, it is primarily connected to the practitioner's malpractice or incompetence and setting standards deterring others from such conduct. But the statement also uses the expression "or otherwise not fit to practise, including those who are guilty of serious misconduct".

[12]

What does unfit to practise mean?

As pointed out in Chen at [68], unlike s 149C(1)(a)(b) and (d), s 149C(1)(c) requires a finding about a practitioner being "unfit…to practise". Whilst the statutory language of the National Law does not involve any element of moral turpitude, the only time the word "unfit" is relevantly used in the National Law is in relation to registered health practitioners and students who have been convicted of or are subject of a criminal finding for an offence.
There is nothing in the National Law that would constrain the meaning of the word "unfit" in s 149C(1)(c). The Tribunal in Health Care Complaints v Sun [2022] NSWCATOD 147 at [70] said the natural definition of "unfit" in s 149C(1)(c) included "not deserving or good enough".
The question arises as to whether a practitioner can be "unfit" within the meaning of s 149C(1)(c) when, having been convicted of or made the subject of a criminal finding for an offence, that conviction or finding exhibits traits in the practitioner inconsistent with the honourable practice of an honourable profession, which regards integrity trustworthiness and high moral and ethical values as an integral part of the practice of medicine.
In Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, a case involving a lawyer convicted of manslaughter, Kitto J explained at [298]: It is not difficult to see in some forms of conduct, or in convictions of some kinds of offences, instant demonstration of unfitness for the Bar. Conduct may show a defect of character incompatible with membership of a self-respecting profession; or, short of that, it may show unfitness to be joined with the Bench and the Bar in the daily co-operation which the satisfactory working of the courts demands. A conviction may of its own force carry such a stigma that judges and members of the profession may be expected to find it too much for their self-respect to share with the person convicted the kind and degree of association which membership of the Bar entails. But it will be generally agreed that there are many kinds of conduct deserving of disapproval, and many kinds of convictions of breaches of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task."
The Court of Appeal observed in Council of New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 at [158]: "… As the judgment of Kitto J in Ziems demonstrates, the issue of fitness encompasses more than mere conduct. The "fit and proper person" test is directed to character, which may be determined by conduct alone, but which may also take into account other circumstances."
Given that fitness of a medical practitioner under s 149C(1)(c) is to be decided at the time of the hearing, all circumstances of the offence and all the circumstances impacting upon current fitness are relevant considerations.

[13]

"In the public interest" in s 150(1)

In addition to the use of the expression "in the public interest" in s 149C(1)(c), it is also used in s 150(1) of the National Law. Section 150(1) provides the Medical Council (and on appeal the Tribunal) power to suspend a practitioner's registration and is in the following terms: 150(1) a Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration… [emphasis added]
The expression in the public interest in s 150 has been considered both by the Tribunal and the Court of Appeal.
The Applicant relies in its submissions upon the often-quoted statement about public interest in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56(7)(f)]: 56(7)(f) A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits.
In Karimi v Medical Council of New South Wales [2017] NSWCATOD 180 at [123] (6)(b) the Tribunal referenced the statement in Crickitt and slightly reframed it: The "public interest" consideration will always also include the need for patients and others to have confidence in the competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession.
In Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Brereton JA at [9] (with whom Emmett AJA at [135] and Simpson AJA at [136], generally agreed) cites this proposition from Karimi with apparent approval.
However, in Pridgeon v Medical Council of NSW [2022] NSWCA 60, the Court of Appeal (Bell CJ, White JA and Harrison J), having referred to this statement in Ghosh at [27] and the Medical Council's reliance upon it at [37], say at paragraph [68]: 68. First, in the context of Subdivision 7, the reference to the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. In the present case, the relevant public interest must be in the conduct by Dr Pridgeon of his profession as a medical practitioner. There may, arguably, be some wider, unspecified public interest in limiting the potential for the rule of law to be undermined by conduct of a medical practitioner that is said to be in defiance of an order of the court, but which is unrelated to the practice of medicine which the National Law regulates. However, the honourable reputation of the medical profession that is said possibly to be affected by conduct of that description is not a concern that relevantly informs the particular public interest in the protection of the public with which s 150 is concerned.
The Court of Appeal in Pridgeon has not specifically said that they were compelled to the conclusion that the earlier appeal court's acceptance in Ghosh, of what was said in Crickitt and Karimi, was wrong (see Nguyen and Nguyen (1990) 169 CLR 245 at [21] of the joint judgment). However, it would seem clear that the Court of Appeal in Pridgeon interpreted the words "in the public interest" in section 150(1) to have a different and narrower meaning than that envisaged in Crickitt and Karimi, as seemingly approved in Ghosh. The Court of Appeal in Pridgeon said "in the public interest" under s 150 was the public interest in the protection of the public's health and safety arising in the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted and not related to an unspecified public interest of exhibiting traits consistent with the honourable reputation of the medical profession, unrelated to the practice of medicine.
In this case, when the Practitioner's registration was suspended under s 150 on 29 September 2020, the Medical Council provided these reasons: PROTECTION OF THE HEALTH OR SAFETY OF ANY PERSON OR PERSONS Dr [FLJ]'s charges are not involved with the practice of medicine. There may be cases of intimate partner violence where a medical practitioner's behaviour does pose a risk to the health and safety of the public which would justify suspension, but in the present cases the practitioner has no history of poor performance or complaints relating to practice and we believe that considerations of the public interest are more apposite to this case. PUBLIC INTEREST The legal test for the public interest is set by Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56]: A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits. We are of the opinion that it is necessary to exercise power to suspend Dr [FLJ] in the public interest. We find that the public's confidence in medical practitioners would be damaged if they knew that a medical practitioner who had been charged with extremely serious counts of intimate partner violence was allowed to continue to practice while those results were being investigated. Nor do we think that Dr FLJ's alleged behaviour and his delay in reporting the charges demonstrate traits consistent with the honourable practice of an honourable profession. These concerns cannot be dealt with by conditions and the only suitable option available in the public interest is suspension.
If the Medical Council had confined itself to the same reasoning but adopted the test for suspension under s 150(1) set out in Pridgeon, the practitioner's registration would not have been suspended.

[15]

Can [68] of Pridgeon be confined to s 150(1) and its own facts?

Arguably [68] of Pridgeon may be able to be confined to s 150(1) and its own facts. It was a case in which the doctor had been charged under Federal and State laws with offences arising from his role in supporting a mother by secreting and raising her twin girls for a period of four years in circumstances where the doctor knew the Family Court had ordered that the girls' best interests were served by living with their father.
On its face, the opening words of [68] confines it to Subdivision 7 proceedings (under s 150(1)), without any attention being given to whether the same words have the same meaning in the preceding section of the Act.
It is also notable that the words "in the public interest" are used in different contexts in the two different subsections. In s 150(1) "in the public interest" is used as an adjectival phrase to describe the action about which the Medical Council must be satisfied. We have already discussed the use of the word "unfit" in s 149C(1)(c). There "in the public interest" is used as an adjectival phrase to qualify the adjective "unfit" in the adjectival phrase "unfit…to practise". The word "unfit" does not appear in s 150.
There is a significant difference between proceedings under s 150(1) and s 149C(1). The purpose of the former is to consider urgent action akin to an interlocutory injunction where the Council or Tribunal is not required to make factual findings (see Hanna v Medical Council of NSW [2017] NSWCATOD 2 at [20]; Karimi at [123(5)]; Gosh at [9].) but can be "satisfied that it is appropriate" to make an order. The Court of Appeal in Pridgeon observed at [56], "The context indicates... that the power of the Medical Council to suspend a doctor's registration under s 150 should be reserved for urgent cases". In the context of cases involving criminal charges, as in Pridgeon and the present case, it is a power usually exercised before convictions have been recorded. Section 149C(1)(c), on the other hand, provides power to the Tribunal to suspend or cancel a practitioner's registration in circumstances where a practitioner has been convicted of or made the subject of a criminal finding for an offence and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession. These proceedings are in the nature of a final hearing before the Tribunal where factual findings must be made, and reasons given for those findings.
The Court of Appeal referred to the circumstances in Pridgeon as being "by any measure a rare and exceptional case" at [62]. The court used the expressions "in the circumstances of the present case" at [65] and "in the particular circumstances of this case" at [66].
The Court of Appeal observed at [50]: "Nor has Dr Pridgeon been convicted of any offence" and formed the view that the Tribunal had paid only lip service to the presumption of innocence saying at [65], "Although the Tribunal was at pains to say that it accepted the presumption of innocence, the statement that the charging of Dr Pridgeon with serious criminal offences was enough to justify his suspension from practice is entirely inconsistent with its existence. It deprives the presumption of any meaningful content".
Further, the Court of Appeal concluded s 70NAE of the Family Law Act 1975 (Cth) and/or ss 286 of the Criminal Code Act 1899 (Qld) provided Dr Pridgeon "a good arguable defence" [66], (although in relation to s 70NAE, the Court of Appeal did not explore how, given Dr Pridgeon's contravention had gone on for a period of four years without him attempting to have the Family Court order varied, the requirements of s 70NAE(4)(b) were arguably satisfied; see for example Justice Cronin's comment in Peake & Cousins (No 2) [2018] FamCA 1056 at [43]).
Consequently, there is a strong basis for arguing that what the Court of Appeal said at [68] is to be confined to s 150 and to its own facts, leaving open the ability to give the same words, "in the public interest" in s 149C(1)(c), the wider meaning provided in Crickitt and Karimi.

[17]

Post Pridgeon cases

Pridgeon was decided only in April 2022. We have found only three cases since then that have considered Pridgeon in the context of considering cancellation under s 149C(1)(c). Two have adopted a different approach to [68]. The third case has not considered the point. The first Health Care Complaints Commission v Sun [2022] NSWCATOD 147 has seemingly been decided on the assumption that the statement in [68] applies to s 149C(1)(c); the second, Health Care Complaints Commission v Morris [2022] NSWCATOD 120, adopted the earlier broader test similar to that seemingly approved in Ghosh (but also decided the case by finding a nexus between the criminal charges and the practice of nursing). The third case is Health Care Complaints Commission v Hatoum [2022] NSWCATOD 72.
In Sun, an oral and maxillofacial surgeon, had been convicted and imprisoned on two occasions for supplying methylamphetamine (colloquially known as "ice") for financial reward. At [74] the Tribunal took the meaning of "in the public interest" in s 149C(1)(c) to be the same as the interpretation given to those words in [68] of Pridgeon, "albeit in the context of proceedings under s 150". Nonetheless, the Tribunal concluded at [75] there was a close nexus between the criminal conduct and the health practitioner's professional role and responsibilities, even though the charged conduct did not occur in the workplace and said at [76]: "Given his qualifications, he could not have been in any doubt about the harm likely to be caused to the community by persons having access to the drugs he supplied". Accordingly, the Tribunal found the requirements in s 149C(1)(c) were satisfied. Unlike the present case, in Sun the Tribunal also dealt with a separate complaint under s 149C(1)(d) that the practitioner was not a suitable person for registration in the practitioner's profession. At [86] the Tribunal upheld this separate complaint partly based upon the very serious nature of his 2017 conviction, but also based upon the practitioner's degree of naivety about his serious improper conduct, lack of insight into that conduct, deceptive conduct, poor clinical practice and record keeping failure.
The Applicant has relied in submissions upon the other case of Morris. In that case, a nurse, working in a cancer hospital, falsely told colleagues, over three years, that she suffered from terminal cancer. She was convicted, under s 192E(1) of the Crimes Act 1900 (NSW) (a section with a maximum penalty of 10 years imprisonment), of obtaining financial advantage by deception, namely $16,000 in sick pay.
The Tribunal found that either approach would lead to the cancellation of the nurse's registration. On the one hand , although at [85] the Tribunal indicated it was cognisant of the remarks in Pridgeon "albeit in the context of section 150," "of the concept of public interest being linked to the health and safety of the public", when discussing the expression "fit in the public interest to practise" in s 149C(1)(c), the Tribunal at [83] and [85] referred to earlier statements which provided a broader test: 83(1) The term "public interest" is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]; 85 "Public interest" also may be taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within them: Health Care Complaints Commission v Wood [2020] NSWCATOD 60 at [17].
Then at [108] the Tribunal concluded that had the nurse been currently registered "it would have been necessary and appropriate to make an order cancelling her registration to publicly condemn the Respondent's conduct, to act as a specific and general deterrent, to uphold the standards of the nursing profession and to preserve public confidence in the profession".
On the other hand, in Morris at [90] to [92] the Tribunal found that there was a nexus between Ms Morris's criminal behaviour, categorised as "egregious dishonesty" and her role as a nurse: 90. It is a fundamental requirement of being a registered nurse that one is scrupulously honest in their dealings with their work colleagues and patients. 91. A health professional who cannot be trusted to tell the truth presents a substantial risk to the public in a health services setting. Honesty is essential for health professionals because covering up, concealing or minimising mistakes or adverse outcomes are anathema to the proper conduct of health professions because such behaviour may pose a risk to the safety of patients: Health Care Complaints Commissions v Picones [2018] NSWCATOD 56 at [104]-[105]. 92. As the Tribunal noted in Health Care Commission v Hutchinson [2014] NSWCATOD 151 at [38], accepting the Commission's submissions in this regard: Any collegiate work environment operates on trust; a busy and stressful work environment such as a hospital or other health care facility, where weighty responsibilities are discharged by its workers, particular so. Nurses and other healthcare workers are entitled to assume that they do not run the risk of becoming a victim of fraud, when they befriend a co-worker and/or share personal details of theirs with that co-worker.
So, had the Tribunal in Morris thought a narrower interpretation of s 149C(1)(c) was to be applied, that test would have been satisfied.
In Hatoum a practitioner had been convicted of criminal offences arising from his falsification of medical histories in attempts, in one case to defraud an insurance company and in another to excuse an overseas student from the breach of a condition of his visa. At [220] the Tribunal notes the practitioner submitted that Pridgeon should be applied to excuse the practitioner as no complaint was made against the Respondent about his skill and competency as a medical practitioner, (notwithstanding the clear nexus between the criminal offences and the doctor's practice of medicine). At [251] the Tribunal seemingly adopted and emphasised the statement in Crickitt at 56(7)(f) as continuing to apply to considerations under s I49C(1)(c). The issue raised by [68] of Pridgeon was not the subject of specific argument or discussion.

[18]

Conclusion about the test to be applied to s 149C(1)(c) following Pridgeon

In relation to the test set out in [68] of Pridgeon, having regard to the opening words of that paragraph, the "rare and exceptional nature" of the case, the different purposes of s 149C(1)(c) and s 150, the use of the word "unfit" in s 149C(1)(c), the different grammatical uses of the phrase "in the public interest" in the two subsections, the court's emphasis on the presumption of innocence before conviction on criminal charges, and the fact that Pridgeon and Ghosh are inconsistent on the point, we conclude that the test in Crickitt and Karimi should be applied to s 149C(1)(c) at least until another Court of Appeal definitively says it should not. We reach that conclusion notwithstanding the normal rules of statutory interpretation and what we might speculate the Court of Appeal meant by [61] which has been discussed above.
We have concluded for the purposes of s 149C(1)(c) the "public interest" consideration may include consideration of whether the Practitioner's criminal offence exhibits traits in the Practitioner inconsistent with the honourable practice of an honourable profession, and it is not necessary for a nexus to be established between the criminal offence and the practice of medicine. Consistently with the reasoning in Chen, the word "unfit" in s 149C(1)(c) should not be constrained to exclude a criminal conviction that would meet the description in Crickett and Karimi. Whether the unfitness arising from a criminal offence may lead to suspension or cancellation, will depend on the nature and seriousness of the offence. A practitioner involved in crimes of family violence against an intimate partner has the capacity to bring the profession into disrepute whether or not a nexus can be established between public health and safety issues around family violence and the practitioner's practice of medicine.
We note in passing this interpretation of [68] of Pridgeon sits comfortably with the power that the National Board has exercised pursuant to s 38(1)(b) of the National Law to develop "Registration Standard: Criminal History 1 July 2015". Whilst factor eight of those standards places significant weight on the likelihood of a crime posing a future threat to a patient or client of the health practitioner, the ten factors, taken as a whole, speak to the wider consideration described in Crickitt and Karimi.

[19]

Cases involving family violence

It is useful to reflect on two cases decided before Pridgeon that dealt with practitioners who had been convicted of family violence offences.
Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177, involved family violence offences by a medical practitioner against his former wife. The Tribunal, when dealing with the part of the complaint made under s 144(e) National Law ("the practitioner is otherwise not a suitable person to hold registration"; a complaint not relied upon in this case) said: 87. The practitioner's conduct is of the kind which could be found to render him unsuitable to practi[s]e. Violence, particularly against women, in a domestic situation is well recognised in the Australian community as abhorrent, but tragically it continues to occur. We adopt as cogent the press statement on the release of the "Women's safety package Stop the Violence measure", announced by the then Prime Minister, the Hon Malcolm Turnbull MP, on 24 September 2015, which was the subject of a press release, made on that day by him and other relevant Ministers, which stated: Women and children in Australia have the right to feel safe and live without fear of violence. Yet, one in six Australian women has experienced violence from a current or former partner, and 63 women have been killed so far this year. For Indigenous women the situation is even worse - they are 34 times more likely to be hospitalised as a result of family violence. In recent weeks, we have seen yet again the devastating impact that domestic and family violence has on our community. The tragic and avoidable deaths of women and their children at the hands of current or former partners or family members highlight the need for urgent action. We must elevate this issue to our national consciousness, and make it clear that domestic, family or sexual violence is unacceptable in any circumstances. [emphasis in the original]
In Health Care Complaints Commission v Lidman [2020] NSWCATOD 48, a case where a male nurse had been convicted of two family violence offences against a former partner, and had received a good behaviour bond on each occasion, the Tribunal said: 10. It is not a requirement of the National Law that there be a direct nexus between the occurrence of the offence and the professional role, however where there is no nexus a more careful inquiry into the public interest factors may be required. There may be instances in which 'public interest' is taken to encompass the goal of broader protection of the reputation and standing of the profession such that it is able to maintain the trust of the public. When health professionals are convicted of serious criminal offences involving violence, sexual assault or the sexual exploitation of children, for example, the public's ability to entrust their care to those health professions may be imperilled if the convicted practitioner continued to practise within that profession. 11. We find that the criminal act of assault against a partner in a domestic setting may be such that a practitioner is unfit in the public interest to practise as a nurse. The protection of the health and safety of the public is the paramount consideration under the NSW version of the National Law, and all of our functions under the Law must be guided by this consideration. Family and domestic violence remains one of the most serious and sustained threats to the health and safety of the Australian public, in particular to women and children. 12. The practitioner's conduct in assaulting his then partner is conduct that is incompatible with respect for the health, welfare and safety of the public. The assault in this matter was a serious one, and took place in the presence of the victim's daughter. [our emphasis]
As the word "may" in paragraphs 10 and 11 of Lidman signals, family violence offences are not homogeneous and span a very wide spectrum. The criminal justice responses to proven family violence can range from not registering a conviction to a significant period of incarceration. In both Haasbroek and Lidman the respective practitioners were not incarcerated under the criminal law. Taking the circumstances of the offences into account in both cases, the Tribunal reprimanded each of the practitioners.

[21]

The first report

In the first report, Dr Pulley provided a detailed personal history from the Practitioner and a history about the course of his relationship with Person A, the offences forming the basis of the criminal charges, and about his presenting and past psychiatric and medical conditions. Dr Pulley provided a mental state examination and diagnosed the Practitioner as suffering a major depressive disorder and possessing obsessive compulsive personality traits. He opined it was likely that the Practitioner's depression developed over at least six to 12 months prior to the offending behaviour and that it was precipitated by the end of his marriage, the deterioration and end of his relationship with Person A and the terminal illness and death of his mother.
Dr Pulley opined that the Practitioner was not a mentally ill person as defined by the Mental Health Act (NSW). The Applicant does not claim the Practitioner suffers from any relevant impairment.
Dr Pulley opines at [59] and [60]: 59 [The practitioner's] personality style contributed to the offending behaviour by limiting his awareness of the sense of anger, abandonment and betrayal that he felt towards the end of the relationship with [Person A]. Rather than deal with these issues, he deceived himself that his actions in harassing [Person A] to find the 'truth' and in contacting [Person A's] husband were justified and appropriate in resolving the situation and would be of benefit to the other parties involved. The notion that, with an open dialogue, they could find 'closure' in such a situation originates in his solution-focused personality style and was an inappropriate strategy for addressing the situation at hand. I find it encouraging that [the Practitioner] has, with his own reflection, come to see that [his] actions were not justified and could not have achieved a good result for anyone involved and were motivated by his own sense of anger and betrayal. 60 [The Practitioner's] depressive state strongly contributed to the offending behaviour by seriously aggravating the sense of abandonment and betrayal he felt at Person A's actions, and impairing his ability to endure the negative emotions that he felt at the time. His ability to reason with regard to emotive issues and process his emotions was impaired by his depression.
Dr Pulley offered the following opinion in relation to the Practitioner's prospects of rehabilitation at [61] and [62]: 61. [The Practitioner] has excellent prospects for rehabilitation. He is a highly responsible member of society, generally motivated to help people and achieve his work. He has no prior criminal history. He has no attitudes that condone his offending behaviour or any other antisocial behaviour. He does not have a significant substance abuse problem. He quickly addressed his alcohol intake at an early stage when the issue was raised. He has developed good insight and is psychologically minded. From the outset, he has shown genuine remorse about his behaviour and a willingness and determination to address his own psychological factors that contributed to the offending behaviour. At no time as he sought to blame [Person A] for his actions. 62. In my opinion it is highly unlikely that [the Practitioner] will reoffend in any way. In my opinion he has a great deal to contribute to the community in his chosen career. It is noteworthy that he works as a [specialist] in the public sector rather than seek greater monetary reward as a private [specialist]. This demonstrates a sense of altruism in valuing his contribution to the community and to the education of young doctors above seeking personal gain.

[24]

Did the Practitioner comply with the treatment plan?

It is the Applicant's position that the Practitioner has not complied with the treatment plan. In [8],[9] and [10] of the Applicant's supplementary submissions [exhibit 9] the Applicant argues: 8. The respondent relies on the report of Dr Rafe Pulley dated 24 November 2021. The applicant notes the Community Corrections order imposed on the respondent by the Local Court on 26 March 2021 required the respondent comply with the treatment plan proposed by Dr Pulley. The treatment plan (at page 142 of the documents provided by the applicant) required the respondent to attend appointments with his psychiatrist not less than once every month 63. 9. Other conditions (63-(f)), including taking medicine as prescribed, abstention from alcohol, and submitting to urinalysis, were apparently predicated on these appointments. 10. Dr Pulley's report of 24 November 2022 explains he has not had contact with the respondent since 1 February 2021; that is, before the respondent was convicted and sentenced on 26 March 2021. [emphasis in the original]
The Applicant maintained these assertions during oral argument, submitting that the orders of the Local Court on 26 March 2021 required the Practitioner to attend appointments with his psychiatrist not less than once a month for a period of 12 months (the duration of the Community Corrections order and the recognisance).
Firstly, we reject the assertion made by the Applicant at [10] of its supplementary submissions that Dr Pulley explained he had not had contact with the Practitioner since 1 February 2021. In fact Dr Pulley says the opposite, and we accept that following the finalisation of the Practitioner's court matter (on 26 March 2021) there was an agreement between the Practitioner and himself in relation to any ongoing treatment and how that would be achieved, if needed. The Applicant has chosen not to cross examine Dr Pulley about the making of that agreement with the Practitioner or why Dr Pulley formed the opinions expressed by him.
Secondly, as indicated, the full text of the first condition of the treatment plan is: [The Practitioner] should attend appointments with his psychiatrist or delegate at regular intervals. Frequency should be as clinically indicated and deemed necessary by psychiatrist or delegate and not less than once every month.
This is not a condition that requires at least 12 sessions regardless of whether the treating psychiatrist believes those sessions are necessary. We accept Dr Pulley had formed the view there was no clinical requirement for ongoing treatment.
To buttress an assertion that the Practitioner failed to obtain treatment when he needed it, the Applicant also relies upon a statement by the Practitioner's criminal lawyer on 2 February 2020 [Exhibit 3, page 39 line 6 to 15]: 'he recently commenced, in November of last year, on medication for the first time... [the respondent] reports to me that… he remains very depressed and I can tell your Honour, in conference with me, it's obvious that he's a man who's suffering from significant depression.'
That observation is consistent with the diagnosis contained in Dr Pulley's first report (major depressive disorder) In any event, given that we have Dr Pulley's expert opinion, the lay opinion of the Practitioner's criminal lawyer does not diminish the opinions formed by Dr Pulley after 26 March 2021.
We conclude the Practitioner's treating psychiatrist indicated shortly after 26 August 2021 that further appointments were not clinically indicated and were unnecessary. Dr Pulley also concluded there was no ongoing need for treatment (which we infer included medication). We also infer Dr Pulley did not direct urine samples be taken. Consequently, we reject the Applicant's submission that the Practitioner has not complied with the various conditions of the treatment plan.

[26]

To what extent should the Practitioner's period of suspension to date be taken into account?

Based upon the assertion that the practitioner has not engaged in treatment, the applicant relies upon (Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) to support the submission that the Practitioner's period of suspension should not be taken into account when considering its application for cancellation of the Practitioner's registration for two years (the Applicant's supplementary submissions; [12]).
In Qasim that practitioner suffered from a paranoid disorder. The Tribunal had found lack of competence to practise because of that mental impairment. When cancelling that practitioner's registration for a period of four years, the Tribunal had not taken into account the period the practitioner had already been suspended. The Court of Appeal said at [74] and [75]: 74… it is submitted that, in exercising its discretion to make such an order, the Tribunal was required to take into account the fact that Dr Qasim had been suspended from practice for a period of three and a half years from December 2010. That submission proceeds on a wrong view as to the purpose of the disciplinary powers of the Tribunal. That purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34]; see also National Law, ss 3(2) and 3A. 75. The matters to be considered by the Tribunal in making what in effect was a four year disqualification order included the period of time likely to be required for the practitioner to change her conduct so that she was competent to practise without risk to the health and safety of the public. In addressing that question, the Tribunal noted that Dr Qasim had "limited insight into her impairment" and that she did not accept that she had a mental illness which required treatment: [176]. In circumstances where it was not suggested that at any time during the three and a half year suspension period from 2010 Dr Qasim had accepted already that she had a mental illness and commenced undertaking appropriate treatment, the fact of that period was not relevant to that question. Accordingly there was no failure of the Tribunal to take into account a mandatory relevant consideration and it did not err in law in not doing so. This ground also should be dismissed.
When considering what protective order should be made, the extent to which the Tribunal can take into account a period of suspension, will depend upon the facts of an individual case. Here there is no suggestion that the Practitioner suffers from a mental impairment. Nor does the complaint relate to the Practitioner's competence to practise medicine. The Practitioner's criminal offences arise in the context of his intimate relationship with Person A. He expressed remorse for those crimes in court on 26 March 2021 and restated that remorse before us (see Exhibit 5). Dr Pulley provided evidence that the Practitioner took medication and had a brief psychotherapeutic intervention between 12 October 2020 and 1 February 2021 and responded well to treatment. Dr Pulley opined that by 1 February 2021 the Practitioner did not present as having any clinically significant psychological symptoms and appeared to have developed insights into underlying issues that contributed to his behaviour towards Person A. Dr Pulley opined that, by a time which we infer was shortly after 26 March 2021, there was no clinical requirement for ongoing treatment. In those circumstances we conclude, consistently with what has been said in Qasim, that, when considering what protective orders should be made, we can take into account in the Practitioner's favour the period of suspension from 12 October 2020 (the date he commenced treatment) to date.

[28]

Nexus between the crimes and the practise of medicine

Fullagar J in Ziems at [24], contrasted criminal conduct which had a nexus to a practitioner's professional conduct and that which did not: "Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister ... But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former."
In this case and relevant to the question of a nexus between convictions for family violence and the practise of medicine, the Applicant emphasises the statement in the second sentence of [11] in Lidman ("Family and domestic violence remains one of the most serious and sustained threats to the health and safety of the Australian public, in particular to women and children"), and makes the following submissions: Medical practitioners by virtue of their role in the societal framework are often first points of contact for domestic violence victims. The ability of the public to entrust their care to a doctor is jeopardized, if the public cannot trust that the doctor to whom they may wish to disclose domestic violence is not an upstanding empathetic confidant, but is rather a perpetrator. Having doctors who perpetrate domestic violence licensed to practice, has potential to impact the willingness of a patient to seek medical assistance from a doctor and undermines the public confidence in the medical profession.
Two comments can be made about such a sweeping submission. Firstly, not all medical practitioners fulfil the role of first responders at the coalface. In this case, given the Practitioner's specialisation, it is unlikely that a patient would have occasion to disclose domestic violence. Secondly, the statement seems to advocate the cancellation of registration for any medical practitioner who has been convicted of any type of domestic violence offence. As we've already observed, family violence offences are not a homogeneous group of crimes and can involve incidents at the very low end of the range to those that are shockingly egregious.

[29]

Conclusion in respect of protective orders

We accept that, in the context of criminal charges, the "unfit in the public interest" consideration will always include a need for patients to have confidence that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine.
Taken as a whole, the events particularised in Complaint 1 constitute serious crimes in the context of an intimate relationship which had the capacity to bring the medical profession into disrepute. We are satisfied that the Practitioner used threats to attempt to coerce and control Person A. He said he wanted to hurt her and "you die". He made threats that he would end and destroy her family and career. His crime on 25 May 2020 partly attempted to carry through on these threats. He made Person A become increasingly concerned for her safety and the safety of her family.
We have regard to the effect and continuing impact the criminal behaviour of the Practitioner had upon Person A. She says in her statement 28 June 2022 at [20] that she has sought counselling and is on medication each night for anxiety, "My fear of the practitioner has turned into a fear of my case being public information. I often wondered whether I had made a mistake bringing this forward to the Police…".
In submissions relating to appropriate protective orders both parties attempted to compare the facts in this case with earlier decisions.
The Applicant referred to Lidman and Haasbroek. Both cases involved family violence offences. In both the practitioners were reprimanded. The Applicant submitted at [27] that by way of comparison these cases "involved spontaneous aberrant behaviour of limited duration on the part of the practitioners". The Practitioner in response took issue with that categorisation, pointing out that in Lidman there was a serious assault and a breach of an AVO two years apart and in Haasbroek there was an assault and two breaches of an AVO over about one year. It is not suggested in this case that the Practitioner breached his AVO. We find each of these cases had features which were more serious and features which were less serious than the present case.
For his own part, the Practitioner referred by way of comparison to Medical Board of Australia v Juviraj Arulanandarajah [2021] VCAT 85 and Health Care Complaints Commission v Carr (No 2) [2021] NSWCATOD 56. In the first case the practitioner, whilst heavily intoxicated, sexually assaulted a friend and a former colleague at his house after a social function. He received a greater sentence than the Practitioner in this case. Having found a significant number of mitigating factors the practitioner was reprimanded and suspended for three months. It is difficult to draw any comparison with the second case and this one as whilst the complaints against the dentist involved sexual assault in the workplace, they also involved a number of other complaints which overall led to the cancellation of the practitioner's registration for a period of one year.
We did not derive any benefit from the attempts during submissions to draw comparisons between these four cases and the present one.
Apart from the offences which are the subject of these proceedings the Practitioner has no other criminal record. He has not been involved in any other disciplinary proceedings.
The Practitioner has not provided any character references asserting that his suspension means that he has been estranged from his place of work and the suppression order that has been made by the Local Court and the sensitivity of the subject matter make it difficult to provide potential referees with an adequate background.
We take into account Dr Pulley's evidence, particularly that which goes to the aetiology of the Practitioner's mental state at the time of the offences and the effect of the treatment the Practitioner received.
We take into account the Practitioner's genuine and repeated expressions of contrition.
We accept there has been significant damage to the Practitioner's reputation. Senior and junior doctors at his hospital are aware of his criminal convictions.
The Practitioner submits and we accept that if the orders sought by the Applicant are made, having not practised for a period of nearly two and a half years, a cancellation of his practising certificate for a further two years would mean he would be out of practice for five and a half years because realistically it would take another year for any application for reregistration to be dealt with (assuming it is successful).
The circumstances of the criminal conduct of the Practitioner justifies severe condemnation, which is not achieved by a reprimand as primarily sought by the Practitioner. The Tribunal is of the view those circumstances are not of such significance that cancellation of the Practitioner's registration, as sought by the Applicant, is warranted. Rather, the Tribunal is of the view a significant period of suspension is warranted.
We take into account the Registration Standard Recency of Practice 1 October 2016 (detailed in Exhibit 11) which indicates that for a practitioner with two or more years of clinical experience who has not practised for more than three years there is a need for that practitioner to provide a plan for professional development and re-entry into practice. If the practitioner is suspended for less than three years, then the standard is that the practitioner not recommenced practice until they complete the equivalent of one year of relevant CPD. We are of the view that could be achieved between now and 3 August 2023 in the event that the Practitioner wishes to return to practise.
As indicated, we take into account the substantial part of the Practitioner's period of suspension, from October 2020 when he commenced treatment to date (a period of two years and three months). We conclude that it is appropriate for us to impose a further period of suspension until 3 August 2023, making the total relevant period of suspension two years and 10 months. Given that the behaviour which forms the basis of the complaint does not relate to the Practitioner's practice of medicine, it is not necessary to place any conditions upon the Practitioner's registration.

[30]

The second charge

As indicated, the Applicant also complains and the Practitioner accepts, that he is guilty of unsatisfactory professional conduct because he failed to give notice of the criminal charges against him within the prescribed time (s 130(1),s 139B(1)(b) and s 144(b) National Law).
On 26 July 2020 the Practitioner was charged with four criminal offences with maximum penalties of five, three, three and five years imprisonment respectively.
On 31 July 2020 the police, by way of lodging a complaint with the Health Professional Councils Authority (HPCA), provided notice of the charges. The HPCA notified the Applicant of the charges on 3 August 2020 [pages 15-22; Exhibit 3],
The Practitioner did not inform APHRA of the charges until 17 August 2020. It is agreed this was 15 days late.
By way of Response filed 22 November 2022, the Practitioner admits Complaint 2, adding he was not aware of the obligation to notify AHPRA of the criminal charges within seven days.
Section 139B(1)(b) of the National Law provides that unsatisfactory professional conduct of a registered health practitioner includes a "contravention by the practitioner (whether by act or omission) of a provision of this Law".
Section 130 of the National Law specifies that registered health practitioners must give the National Board notice of certain events. The provision relevantly provides that: (1) A registered health practitioner ... must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner ..., give the National Board established for the practitioner's ... health profession written notice of the event … (3) In this section - relevant event means - (a) in relation to a registered health practitioner - (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more".
Once a practitioner becomes aware that a relevant event has occurred there is a strict liability to provide written notice. Ignorance of the notification obligation in s130 does not excuse a failure to notify (see for example Health Care Complaints Commission v McCarthy [2021] NSWCATOD 201 at [20]; Health Care Complaints Commission v Kaye [2022] NSWCATOD 24 at [125]).
There was discussion during submissions as to whether, because awareness in the mind of a practitioner is necessary, there was nonetheless a subjective element to the test. On the face of the legislation the awareness is not simply that of being charged with an offence but being aware the offence is punishable by 12 months imprisonment or more. In this case, for example, the charge of assault occasioning actual bodily harm arose in circumstances where imprisonment would not be an expected outcome.
The Applicant argued that, given there is a strict liability to report and the overall legislative purpose, it is implicit in s 130, that once a practitioner has an awareness they have been charged with a criminal offence there is an additional onus on them to become aware as to whether that offence is punishable by 12 months imprisonment or more. Given the Practitioner has accepted the second complaint is established, we do not need to further consider whether the section imposes such an additional onus on a practitioner.
In this case the Practitioner asserts only that he was unaware of the duty to report. Once a finding of a breach of s 130(1)(b) is made, a finding of unsatisfactory professional conduct is mandated by s139B(1)(b) of the National Law (Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 at [27]).
The Applicant relies on the following statement in Health Care Complaints Commission v Bolton [2021] NSWCATOD 160 at [100] and [190]: 100. Provisions requiring the notification of certain types of criminal charges to AHPRA are a significant tool in the regulatory framework. By not notifying a transgression, a practitioner in effect deprives regulatory bodies of the opportunity to assess risk and take appropriate action to protect the health and safety of the public at the earliest possible stage. Moreover, by not notifying, a practitioner continues to hold the benefits of registration, and depending on the nature of the transgression, could potentially give themselves the opportunity to continue the same or similar conduct which brought them to the attention of the police and criminal justice system in the first place . … 190. …These provisions are part of the protective architecture of the National Law. It is the compliance by practitioners with these provisions that allow[s] regulatory authorities to decide whether a health practitioner's criminal history is relevant to the practi[c]e of their profession and thus ensure that only those health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.
The Applicant submitted at 17(e)-(g): 17(e)…the respondent claims ignorance of his reporting obligations. Whether the Tribunal accepts the respondent's justification as genuine and truthful or not, it remains of grave concern that a doctor of some 17 years did not turn their mind to consider the question of the existence of any professional notification obligations in the face of significant police scrutiny and did not diligently make relevant enquiries with his indemnity insurer or Medical Board. (f) Failing to promptly notify AHPRA about the very serious charges laid on 26 July 2020 meant that important information was withheld from the regulator with respect to whatever risk assessment it may wish to undertake about his suitability or fitness to be registered as a registered doctor; (g) Regardless of the above factors, the obligation rests squarely on the practitioner under section 130 of the National Law to notify AHPRA within 7 days, which he did not do
Whilst we accept the statement from Bolton to which the Applicant refers, in this case the criminal behaviour does not pose a risk to the health and safety of the public and continuation of registration did not create an opportunity to continue the same or similar criminal conduct. The Applicant's submission that, in this case, failure to properly notify APHRA about the charges meant that important information was withheld from the regulator is not correct given the notification made by the police on 31 July 2020.
We conclude that it is appropriate to reprimand the Practitioner for the unprofessional conduct occasioned by the 15 day breach of s 130(1) of the Law National.

[31]

Non-publication order

Clause7(1)(b)(iv) of Schedule 5D of the National Law provides that the Tribunal may, if the person presiding thinks it is appropriate in the particular circumstances of the case, direct that any specific evidence not be published. Section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (New South Wales) provides a similar power.
Both parties have joined in seeking a non-publication order under the later Act in the following terms: An order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication of: the name of the Respondent; the name of Person A set out in the Schedule to the Complaint; the speciality of Patient [sic] A and the Respondent being [name of speciality involved]; and the name of any hospital where Person A or the Respondent has been employed.
We note that the order sought would also need to rely upon s 64(1)(c).
On 26 March 2021, the Local Court made a non-publication and suppression order with respect to any information that would tend to identify Person A. The order was made to have had effect throughout Australia until 26 March 2031.
On 1 December 2022, this Tribunal made an interim non-publication order in the terms now sought on a final basis.
Person A, who is a medical specialist, has provided a statement dated 10 June 2022 (pages 97-99; Exhibit 3). She says there are junior and senior [members of her specialty] who are aware that she is the victim of the Practitioner's crimes. The Head of Department informed her that registrars at the hospital at which the Practitioner worked had found her name listed publicly on the Internet via searched court cases. Although there's been a lot of speculation about her involvement in this case which causes her constant anxiety, so far she as she is aware, details of her case have not become public knowledge. Person A says that she is ashamed of what has happened and deeply regrets the mistakes that she made. She fears that she and her family will be judged and that her children will hear of her mistakes through other doctors in her school community. As mentioned in the agreed facts, her husband is also a medical practitioner, and she does not want him "to suffer the consequences of her betrayal". She indicates that her husband and herself have worked through this so far, but she cannot bear to face humiliation of him, and potentially her children. She explains that many of their closest friends are doctors whom they have known for a long time, and she fears losing her support network if her name becomes public. She also has a fear that patients might be able to use search engines to identify her connexion to this case, and is also concerned that applicants for advanced trainee positions with whom she conducts interviews will hear about her personal mistakes, including applicants from the hospital at which the practitioner worked. Person A says that her fear of the Practitioner has turned into a fear of her name becoming public information.
Given the statement made by Person A there can be no question that a non-publication order should be made for her protection in respect of her name, specialty and hospital.
It is unusual in a case such as this to suppress the name of the perpetrator. However, given that there may already be discoverable information connecting the Practitioner to Person A, and particularly given that they work in the same specialty, we are satisfied that making an order also suppressing the Practitioner's name, specialty and hospital shall give added protection to Person A.
Whilst the principles of open justice apply and the details of this decision are available to the public, we find it would be appropriate to make the order for limited non-publication sought by the parties.

Health Care Complaints Commission v FLJ

At a glance

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Judgment (36 paragraphs)

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Legislation Cited (6)

Cases Cited (30)

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