Health Care Complaints Commission v Guard

Dr Guard's Reply

1. Dr Guard did not file a Reply or any material prior to the commencement of the hearing, despite two orders by the Tribunal that she do so. She explained that it was her anticipation that she would be able to give oral evidence. The HCCC did not oppose her doing so and she was given leave to give oral evidence, subject to her providing a written outline of the position she took in respect of each complaint and the evidence she intended to give.
2. Dr Guard engaged with the HCCC's complaint by providing a document which became Exhibit 5.
3. In relation to Complaint One, Dr Guard accepts the part of that complaint set out in the first paragraph of the particulars.
4. In relation to the second part of the particulars to Complaint One, Dr Guard denies the allegation so far as it relates to Patient A. In Exhibit 5, Dr Guard refers to there being "complex issues" in relation to Patient A.
5. Dr Guard otherwise denies the complaints in relation to Patients B, C, D and E, asserting that the evidence in relation to those four patients was a product of her or her employees' clerical or computer error.
6. In relation to the third particular of Complaint One, Dr Guard denies the complaint particularising that all prescriptions were written prior to 29 May 2019 when the Medical Council imposed the condition not to practise medicine.
7. Dr Guard denied Complaint Two.
8. Dr Guard accepted Complaint Four particularising that the role of her PTSD should be noted.
9. Dr Guard is taken not to have accepted Complaint Five, simply particularising that she noted that she had not been registered for three years.
10. In relation to Complaint Six, the matter proceeded on the basis that Dr Guard required the HCCC to prove any impairment that she suffered was sufficient to establish Complaint Six. Whilst not specifically doing so, Dr Guard is taken to have not accepted the matters particularised by the HCCC under Complaint Six.
11. For completeness we note Complaint Six initially particularised that Dr Guard suffered from various mental disorders which were provided as a provisional diagnosis by the expert psychiatrist, Dr Newnham. Dr Guard denied that she had any diagnosable mental disorder apart from Post-Traumatic Stress Disorder.

Standard of Proof

1. The onus is on the HCCC to establish the complaints on the balance of probabilities with due regard to the factors referred to by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, at p 362: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."

Credit

1. The evidence of Patient A and Dr Guard in relation to when services, prescriptions and a medical certificate were provided by Dr Guard to Patient A, are diametrically different. One of them is not being truthful.
2. Patient A is a 59 year old man who made a complaint to the HCCC on 12 September 2019. There is a family connection between Patient A and Dr Guard. Dr Guard is the now estranged wife of Mr S. Mr S was the first husband of Ms T. Patient A is Ms T's second husband. Mr S and Ms T had two children, child U and child V, who became Dr Guard's stepchildren whilst she was married to Mr S and are currently still stepchildren to Patient A.
3. Patient A gave evidence upon his oath. It was explained to Dr Guard that in the event that she chose not to cross examine Patient A, then his sworn evidence would be before us without contest, whereas on the other hand, her evidence which was diametrically different to that of Patient A, would be the subject of testing. Dr Guard chose not to test Patient A on his evidence. She gave three reasons for not doing so: 1. Firstly, she said that her asking him questions would make him angry and she was apprehensive about him taking that anger out upon his two step-children who are currently aged 16 and 14 and the six children that he has with his current wife. Dr Guard was tested as to why it would be that her asking him questions on his sworn evidence would likely produce that result. Her answers in response to those questions were unconvincing. 2. Secondly, Dr Guard asserted that even though the proposition was not put to Patient A, we would be satisfied that Patient A fabricated these allegations to advantage himself in the context of Family Court proceedings. She asserted initially that there were multiple Family Court hearings happening at the time that Patient A made the complaint about her on 12 September 2019. When asked about what proceedings were pending at this time, Dr Guard conceded that although she hoped to get some time with the children who are now 16 and 14, at no stage did she file any application in the Family Court to attempt to achieve this. She said that she attempted mediation but provided no details as to when that was nor any documents to support this claim. There is no evidence that there were any relevant proceedings in the Family Court that might have motivated Patient A to bring a complaint against Dr Guard. 3. Thirdly, Dr Guard said that she was an unrepresented litigant with PTSD and her attempting to cross examine Patient A was likely to trigger adverse symptoms arising from that PTSD. When questioned, she explained that her PTSD was triggered by "angry men". This is apparently how she perceives Patient A. There had been no physical incident between Patient A and Dr Guard, and it was unclear to us what circumstances Dr Guard relied upon to establish that Patient A was an "angry man". The evidence (including text messages) that we have of interaction between Dr Guard and Patient A, is cordial with no hint of rancour.
4. None of the reasons given by Dr Guard for not challenging Patient A's evidence provide any reasonable basis to explain why she did not attempt to do so and consequently; Patient A's evidence comes before us as unchallenged sworn testimony.
5. Overall, we are unable to accept that Dr Guard was a reliable historian. One example is contained in the only reply that Dr Guard gave to the various requests made by the HCCC for information. It is a four page document dated 15 October 2019 (Tab 35 of Exhibit 2). In that document, Dr Guard refers to her appearance on 29 May 2019 at the s 150 hearing and to two days of criminal court hearings in which she was to be involved, scheduled for 30 and 31 May and writes: "I stated at the meeting on 29 May….that I had been planning some time off after those hearing dates, and I had done a lot of paperwork, including prescriptions to cover my patients, whilst I was away."
6. The 64 page transcript of that hearing on 29 May 2019 is at Tab 55 of Exhibit 2. Ultimately, Dr Guard conceded that what she asserted in her statement of 15 October 2019 was not what she told the delegates at the hearing.
7. At the hearing on 29 May 2019, Dr Guard told the delegates: 1. That "I have organised to start at 2 general practices owned by the same husband and wife that I was commencing in - my plan is to commence in June after I've completed dealing with the legal issues" (Transcript pg 3, lns 11-13) 2. That she had stopped working the Thursday before the hearing on 29 May 2019 because "I was contacted late on Thursday by Avant to say that because my premiums weren't up to date….so I haven't worked since I found out about that on Thursday" (Transcript pg 3, ln 20-23). 3. Dr Guard was asked what her plans were after the two days of the criminal court case and she responded, "First thing I have to do is get my medical defence insurance sorted out….then I am awaiting provider numbers for the two practices in Newcastle" (Transcript pg 11, lns 25-26 and 28-29). Dr Guard said she planned once she got her insurance up to date and her provider number that she would commence to practise again (Transcript pg 12, lns 1-23). 4. Towards the conclusion of the hearing, Dr Guard was informed that the delegates intended to make an order for her not to practise (page 61, ln 32). Dr Guard then asked the delegates whether or not she was able to pass on patient notes to new doctors if patients requested that and also whether she could forward test results onto somebody else. Dr Guard was told she could do both those things (Transcript pg 63, lns 13-24).
8. When confronted with these parts of the transcript and asked why she had written to the HCCC on 15 October 2019 that she had told the delegates that she had been planning some time off after the end of May, Dr Guard said that she believed that is what she had told them, later adding that had she had the funds to obtain a transcript or even the time and willingness to listen to the audio of the hearing (that she was aware was available to her before writing the 15 October 2019 document), she would not have made the error in what she had written. We do not accept that evidence. We find that what Dr Guard told the delegates that she planned to do in respect of the future practise of medicine on 29 May 2019 accurately reflected her intention at the time and we do not accept that by October she had forgotten what she had intended to do at the end of May and what she had told the delegates about that intention.
9. As we discuss in more detail below, we find Dr Guard's evidence in relation to the text that she sent to Patient A on 12 June 2019, as being inherently unlikely and not truthful.
10. More generally, we find that much of Dr Guard's evidence which directly related to specific complaints, was inherently unlikely.
11. Where the evidence of Patient A and the evidence of Dr Guard is in direct conflict, we prefer the evidence of Patient A.

Background

1. The background set out in the Further Amended Complaint is not controversial, save that as is clear from another part of the Complaint, the statement under the heading "Background to Complaint Six" which asserts that Dr Guard was suspended from practice on 29 May 2019 was inaccurate. On that day a condition was placed on her registration "not to practise medicine".
2. The practitioner was first registered in New South Wales on 8 January 1996; the practitioner commenced practice in a solo practice at Bowraville in 2002. In April 2018 the practitioner moved her solo practice premises from Bowraville to Macksville.
3. On 19 December 2016, following a three day hearing, the Civil and Administrative Tribunal found Dr Guard guilty of professional misconduct (Health Care Complaints Commission v Guard [2016] NSW CATOD 164) and imposed practice conditions upon her registration, including random audits of note keeping, a provision for a professional mentor, a restriction on the number of patients Dr Guard treated per day, a requirement that Dr Guard notify the Medical Council in writing each fortnight of the number of patients she consulted per day and her daily working hours and a provision that the imposed conditions could be reviewed by the Medical Board of Australia.
4. The findings that underpinned the orders made included that Dr Guard had failed to keep a drug register in appropriate form and had failed to make adequate clinical notes and records contrary to Schedule 2 of the National Law. As a consequence, conditions were placed upon Dr Guard's registration for the purposes of assessing "her compliance with good medical record keeping standards and legislative requirements and compliance with conditions".
5. Between 2002 and 2019, Dr Guard was the subject of in excess of 20 complaints.
6. On 29 May 2019, the practitioner attended s 150 proceedings convened by the Medical Council of NSW. The s 150 delegate imposed, inter alia, a condition that Dr Guard not practise medicine.
7. On 8 October 2019 the Medical Council of NSW wrote to Dr Guard about information it had received regarding breaches of the condition that she not practise medicine (Exhibit 2, tab 56). The council indicated that it proposed to suspend Dr Guard's registration and afforded Dr Guard an opportunity to make submissions as to why the Council should not do so. We have no evidence that Dr Guard responded to that communication. On 12 November 2019 the Medical Council of NSW ordered that Dr Guard's registration be suspended effective from 5pm that day (Exhibit 12).

Complaint One

1. As set out above, in Complaint One, the HCCC initially relied upon s 139B(1)(c) and (l) conjunctively as well as in the alternative. In a detailed analysis of the authorities in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [41]-[66] Boland ADCJ, Deputy President discusses why, on the construction of s 139B, the facts which may establish any of the 11 unsatisfactory professional conduct grounds preceding s 139(1)(l) may of themselves, if proven, constitute unsatisfactory conduct, and additionally may also constitute "any other improper or unethical conduct". This analysis is consistent with an analogous interpretation of the words "is otherwise" in s 144(e) of the National Law in Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [108]-[116] where, amongst other things, the Court of Appeal at [115] cites with the apparent approval the decision of Boland ADCJ, Deputy President in Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [60]. However, in final submissions counsel for the HCCC did not press any part of Complaint One based upon s 139B(1)(l).

Complaint One, Particular 1

1. As previously indicated, Dr Guard accepts that this part of Complaint One is made out.
2. The order made by the Tribunal on 19 December 2016 required Dr Guard to notify the Medical Council in writing each fortnight of the number of patients she consulted per day and her daily working hours (see Tab 48 of Exhibit 2 at paragraph 32). She complied with that condition on her registration up until 11 February 2018 (Tab 53 provides all the documents). Thereafter Dr Guard accepted that for a period consisting of 32 consecutive fortnights from 11 February 2018, she failed to comply with that condition.
3. At the s 150 hearing on 29 May 2019, Dr Guard brought compliance with that condition up to date by producing the logs for those 32 fortnights on the morning of the hearing (see written Reasons for Decision dated 11 July 2019 (following the hearing on 29 May 2019) at Exhibit 2; Tab 41 at pg 2) and the transcript of the hearing of 29 May 2019 (see Exhibit 2; Tab 55 at pg 45, ln 27, pg 46, lns 12-19).
4. Accordingly, we find that Dr Guard is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that she has contravened a condition of her registration.

Complaint One, Particular 2

1. The HCCC asserts that between 10 June 2019 and 26 August 2019, Dr Guard breached the condition placed upon her on 29 May 2019 that she not practise medicine in that she provided medical services to a number of patients after that date.

Patient A

1. As indicated, where it is in conflict, we prefer the evidence of Patient A over that of Dr Guard.
2. Patient A gives evidence that during the process of him moving house on the weekend of 8 and 9 June 2019, he sustained an injury to his right knee. Patient A then gives evidence that the following occurred on 11 June, 17 June, 4 July and 2 August 2019.

Consultation 11 June 2019

1. At 9:48am on 11 June 2019 Dr Guard sent Patient A the following SMS to his cellular telephone: Good morning [Patient A]. How is the knee this morning? Will be coming around, but later morning…"
2. Patient A says that later that day, Dr Guard visited his home and she consulted with him, examining his knee in the smaller lounge room of Patient A's home whilst he was reclining in a lounge chair in which he could keep his knee raised. His knee was swollen at the time.
3. Dr Guard accepts the authenticity of the text message and that she attended Patient A's home on 11 June 2019 during which time she examined his knee.
4. Patient A says further that Dr Guard had with her at the time of this consultation, a prescription pad and letterhead. Dr Guard denied that she did.
5. Patient A gave evidence that at the end of this consultation, Dr Guard wrote a medical certificate on her letterhead and two prescriptions.
6. It is Dr Guard's case that she wrote no prescriptions and gave no medical certificate on 11 June 2019 and that, whilst she is the author of the three documents, they were provided to Patient A prior to 29 May 2019 and the prescriptions in particular were provided on the date that they are dated, namely 5 April 2019.
7. The medical certificate is at Tab 11 of Exhibit 2. It is a certificate that Dr Guard agrees is in her handwriting. It is in the following terms: Re Patient A Patient A's birth date Patient A has a knee injury � requires the rest of the week (6 days) to rest it. He is unfit to drive. Signed Dr Guard
8. Dr Guard could give no explanation as to why this certificate, which she agreed was authentic, did not bear any date.
9. The two prescriptions which Patient A said that Dr Guard wrote on that day were for Targin and Endone (Tabs 12 and 13 of Exhibit A). Both those prescriptions are dated 5 April 2019.
10. Patient A gives evidence that following the consultation, he sent an email to his employer at 3:34pm on 11 June 2019 which was in the following terms: Potentially not good news. The Doctor thinks it may either be a ruptured ligament or a meniscus tear and that the swelling in the joint is blood. So I have a certificate that says to rest it for the next 6 days (no driving, minimal walking, keep the leg horizontal as much as possible). Will review on Monday and if there's little or no improvement then it will be an immediate urgent referral to an Orthopaedic Surgeon, and will potentially require an Arthroscope.
11. The 11 June 2019 was a Tuesday and six days took the certificate to the following Monday.
12. Patient A provides a text message sent to him by Dr Guard at 8:17am on Wednesday 12 June which is in the following terms: Good morning (Patient A) I meant to say - I got some panadeine forte if nobody has had an opportunity to get to the chemist - I'll bring some with me just in case.
13. Dr Guard was cross examined about this text message. She conceded firstly, its authenticity and secondly, the words "opportunity to get to the chemist" was a reference to get to the chemist with the prescriptions for Targin and Endone. So, even on Dr Guard's version, the subject matter of her text of 12 June 2019 were the two prescriptions for Targin and Endone at Tabs 12 and 13. Dr Guard's explanation however was that on the previous day she had a discussion with Patient A about the need for him to fill the prescriptions that she had written for him for these drugs on 5 April 2019, which she said Patient A had never filled. We found that explanation inherently unlikely.
14. On the balance of probabilities, we find that the evidence of Patient A should be accepted, and that Dr Guard consulted with Patient A and wrote the two prescriptions and the medical certificate on 11 June.

Consultation on 17 June 2019

1. Patient A has provided a copy of an SMS message sent to him by Dr Guard at 7:03pm on Monday 17 June which was in the following terms: Hi on my way ETA 7.30pm just came home to get antibiotic syrup supplies
2. Dr Guard arrived at Patient A's home later that evening. Dr Guard accepts that she examined Patient A's knee. We accept counsel for the HCCC's submission that that was sufficient to establish the complaint so far as it refers to this date.
3. Patient A gives evidence that at the end of this examination, Dr Guard wrote a referral for Patient A to undergo medical imaging of his leg. He said that he saw that she wrote the date on the top lefthand corner of that document as being 23 May 2019 (this document is at Tab 17 of Exhibit 2). Patient A says that he also saw Dr Guard write a referral for him to have a Cortisone injection into his knee and again he says that he saw Dr Guard backdate that referral to 23 May 2019 (this referral is at Tab 18 of Exhibit 2).
4. Dr Guard does not deny the authenticity of these referrals which are on her letterhead. She says however that the referrals were written on the date that they are dated, 23 May 2019.
5. Both referrals refer to Patient A's right knee. Whilst Dr Guard gave some general evidence about Patient A having a difficulty with his knees prior to 29 May 2019, there is no corroborative evidence that that is so. In fact, in the draft email dated 2 May 2019, written by Patient A with the intention of sending it to his employer (Exhibit 10; tendered by Dr Guard) there is no mention of any problem with Patient A's knees. During her oral evidence, Dr Guard asserted that towards the end of 2019, all of her medical records had been packed up and put in plastic containers and lodged at a storage service. She further asserted that subsequently, because she did not attend to the payment of the storage costs, the owner of the storage facility took all her medical records to the tip (where, inferentially, they were permanently lost or destroyed). Dr Guard says she is consequently unable to produce any medical records of Patient A that would corroborate her assertion that Patient A had difficulties with his knees prior to 29 May 2019. The explanation in relation to the destruction of Dr Guard's medical records had not been given at any time prior to the giving of her oral evidence.
6. We accept Patient A's evidence about his observation that on 17 June 2019 Dr Guard backdated the referrals for diagnostic imaging and cortisone injections in respect of his right knee.

Consultation on 4 July 2019

1. Patient A gives evidence that on or about 4 July 2019 Dr Guard provided a home consultation at which they discussed a follow-up cardiac stress test and blood tests in relation to his heart condition. Patient A says that during the consultation, he saw Dr Guard write out a referral for a cardiac stress test which she backdated to 23 May 2019. A copy of that referral is at Tab 23 of Exhibit 2. Dr Guard denies that this consultation took place on or about 4 July and asserts that the referral was written on the date that it was dated, namely 23 May 2019. We accept Patient A's evidence in preference to the evidence of Dr Guard.

Consultation on 2 August 2019

1. Patient A says that he saw Dr Guard on 2 August 2019 and on that occasion the results of his blood tests, including his cholesterol levels were discussed. By way of corroboration of that consultation, Patient A points to an email that he sent to his employer on the same day (Tab 29 of Exhibit 2). That email is in the following terms: Had a session with the GP today going over the results of the tests I had recently. The good news is that my Heart function is now almost normal, and therefore it can be said that the procedure in April was successful. The slightly bad news is that my Cholesterol, whilst moving in the right direction, is not moving fast enough and needs to be brought down further given that I still have a partial blockage of one artery branch and we don't want the stents in the other branches getting blocked. This is really no great surprise, as we have been procrastinating on increasing the dosage of the Statin drugs in line with the Cardiologist's recommendation because of my struggles with the side effects. The blood tests have come back negative for other things that they were tested for, so the fatigue and aching limbs is now 99.99% certain to be caused by the drugs. This now means that I have to go through a bit more trial and error, trying to find a dosage/drug combination that mitigates the side-effects as much as possible whilst achieving the required reduction in Cholesterol. That unfortunately means that things will probably get worse before they get better.
2. Dr Guard does not dispute that Patient A wrote this email to his employer on 2 August. She also accepts that she provided Patient A with the test results on 2 August. Dr Guard's case is that Patient A was an intelligent person. Dr Guard contended there had been previous consultations between Patient A and herself prior to 29 May in respect of issues relating to his heart function, dosage of Statin drugs and cholesterol levels and that Patient A had all the information he needed to write the August email from past consultations and the new written pathology report. Dr Guard provided a draft email (Exhibit 10 dated 2 May 2019) to support her contentions. However, whilst Exhibit 10 does discuss the same medical problems and issues, the email of 29 August 2019 contains statements about current heart function and cholesterol levels which are not in the May email. We conclude that Patient A would not have been able to construct the email of 2 August 2019 unless he had received from Dr Guard the advice and opinion set out in that email. We are comfortably satisfied that Dr Guard did significantly more than simply hand the results of pathology testing to Patient A on this day and that there was in fact a detailed consultation as to what the results meant for him and his future medication and treatment.
3. We are all the more comfortable in our findings in respect of Dr Guard's treatment of Patient A after 29 May 2019 given the volume of additional evidence provided by Patient A as to Dr Guard's treatment of other family members after 29 May 2019 (which evidence is corroborated by text messages from Dr Guard, the authenticity of which was not disputed by her). Overall there is extensive evidence that Dr Guard continued to treat other family members during the period after 29 May 2019 (although that treatment was not the subject of any particulars in relation to Complaint One). There is evidence that Dr Guard was involved in advising in relation to various ailments. This included advising upon and prescribing medications for school sores for a number of Patient A's children; referring all of Patient A's children to a paediatrician and attending the appointment; referral of one of Patient A's children to a psychologist; advising on a hand injury of one of Patient A's children and expressing an intention "to do bloods" for three of Patient A's children. When Dr Guard was tested about her intention to "do bloods", she said she would simply be acting in the role of a pathology nurse and not as a medical practitioner when taking that blood. We don't accept that evidence as being credible.

Conclusion in respect to Patient A

1. We find that between 10 June 2019 and 26 August 2019, Dr Guard breached practice condition 1 of her registration in that she provided medical services to Patient A on the dates and in the circumstances as set out in Annexure A to the Further Amended Complaint.

Patients B, C, D and E

1. Particulars to Complaint One also detail, from Medicare data, medical services and consultations that Dr Guard had with four other patients between 30 June 2019 and 25 August 2019 (Tab 59, pgs 68, 22 and 29; Tab 58 is a certificate of disclosure from the Medicare system and Tab 61 is a summary page).
2. Dr Guard does not dispute the authenticity of the Medicare data. Her explanation is that there has been a computer or clerical error in the data entry into the Medicare records by either herself or an employee. Dr Guard has provided no documentation at all that would support the contention she makes, including no evidence from her employee. The contention by Dr Guard that all of this information relates to medical services and consultations provided to these patients prior to 29 May 2019 is inherently implausible, particularly given the number of them. We find that the complaints so far as they relate to Patients B, C, D and E are made out.

Conclusion in respect of Complaint One, Particular 2

1. It follows that Particular 2 of Complaint 1 is made out.

Complaint One, Particular 3

1. The HCCC complains that between 31 May 2019 and 17 October 2019, Dr Guard breached the condition not to practise medicine by providing at least 38 prescriptions on the dates and in the circumstances set out in Annexure B to the Complaint. The source document for Annexure B is the DHS Patient Prescriber Report provided on 3 December 2019 under s 130(3) of the Health Insurance Act 1973 (Cth). The schedule sets out the patient's name, the name of the pharmacy at which the prescription was filled and the date of the prescription.
2. Dr Guard does not dispute that all of these prescriptions to all of these patients were dated after 29 May 2019. Her assertion however is that in April and May 2019, she had formed the intention to have June/July 2019 off and had written prescriptions for long-term patients so that her patients did not have to worry about getting prescriptions from another doctor during her absence. Dr Guard said that some of these prescriptions were sent to pharmacies directly and others were given to the patients prior to 29 May 2019. Dr Guard asserted that at some point, a pharmacist pointed out to her that it was inappropriate to "forward date" prescriptions and after that consultation she marked prescriptions "do not dispense until 00/00/00". We do not know the identity of the pharmacist and Dr Guard called no evidence from this pharmacist. It is also unclear as to when this conversation allegedly took place.
3. For us to accept that Dr Guard had written all of these prescriptions prior to 29 May 2019, would require us to also accept that as at that date, Dr Guard had formed the intention to cease practice in June and July 2019. As we have earlier discussed in these reasons, given that Dr Guard said the opposite to the delegates in the hearing on 29 May 2019, we are unable to accept that that was in fact Dr Guard's intention as at that date.
4. Whilst it is possible that some of the prescriptions were "forward dated" (there are five examples where this seems to have happened), it is by no means clear that forward-dating happened before 29 May 2019 and in any event, we find that the overwhelming number of the prescriptions which had been particularised in Annexure B to the complaint were written by Dr Guard after 29 May 2019.
5. We find that Dr Guard continued to practise by providing patients with prescriptions after 29 May 2019 and accordingly, the third particular of Complaint One is made out.

Overall conclusion in relation to Complaint One

1. We find Dr Guard is guilty of unsatisfactory professional conduct under s 139B(1)(c) of the National Law in that she has contravened two different conditions to which her registration was subject, namely "to notify the Medical Council in writing each fortnight of the number of patients she consulted per day and her daily working hours" and from 29 May 2019 "not to practise medicine".

Complaint Two

1. Complaint Two is that Dr Guard was guilty of unsatisfactory professional conduct when, on 11 June 2019, during a home visit with Patient A, she wrote prescriptions for Targin 50/5 and Endone 5mg in circumstances where she backdated the prescriptions to 5 April 2019 in contravention of clause 80(1)(a) of the Poisons and Therapeutic Goods Regulation (2008) ("PTGR"). That regulation provides: Regulation 80(1) A person who issues a prescription for a drug of addiction must ensure that the prescription includes the following details: (a) The date on which it issued.
2. Both Endone and Targin are included as brand names under the general descriptor "Oxycodone" in Schedule 8 of the relevant Poisons Standard as drugs of addiction.
3. As already indicated, we are comfortably satisfied, to the relevant standard, that on 11 June 2019, Dr Guard backdated two prescriptions, one for Targin and the other for Endone for Patient A to 5 April 2019.
4. By failing to comply with Regulation 80(1)(a) of the PTGR, Dr Guard has engaged in improper or unethical conduct relating to the practise of her profession and is guilty of unsatisfactory professional conduct under s 139B of the National Law.
5. Accordingly, we find that Complaint Two is made out.
6. We would also add, whilst not a particular of Complaint 2, it is Dr Guard's assertion that prior to 29 May 2019 she "forward dated" prescriptions which were, inter alia, for drugs of addiction. This is as much a breach of regulation 80(1)(a) of the PTGR as backdating prescriptions for drugs of addiction.

Complaint Three

1. Complaint Three was withdrawn at the commencement of the hearing.

Complaint Four

1. On 16 January 2019 the HCCC issued a Notice to Produce documents pursuant to s 21A of the Health Care Complaints Act 1993 (NSW). The notice required Dr Guard to produce patient records for Patient F by 23 January 2019. A copy of the Notice is at Tab 30 of Exhibit 2 which attached Patient F's complaint. The Notice required a written response to the complaint and a copy of Patient F's medical records by 23 January 2019.
2. Dr Guard accepts that she failed to comply with that Notice.
3. On 12 April 2019 the HCCC wrote to Dr Guard referring to the Notice of 16 January 2019, noting that as at 12 April 2019, no information had been received in relation to Patient F. Dr Guard was provided with a second Notice, this time under s 34A(1)(a) and (b) of the Health Care Complaints Act, seeking a detailed history of Dr Guard's care and treatment of Patient F and a statement by her of reasons as to why she had failed to provide a response to the first Notice or any response to Patient F's complaint. She was also required to provide copies of all medical records relating to health services for Patient F and was asked to provide any documents to support any explanation she gave for failing to comply with the first Notice.
4. In response to the second Notice, Dr Guard sent an email dated 26 April 2019 which was two days after the deadline set for her to comply with the second Notice. That email (at Tab 33 of Exhibit 2) referred to the papers served upon her saying, amongst other things: Please do not think I am ignoring them….I have spent a lot of time reflecting on the management of this patient….I have considered my response to this complaint, and how I should answer it. Unfortunately, no matter which angle I approach it, my response will be critical of two of my colleagues, one of whom is a Fellow of the College of Addiction Medicine. This is something which I have spent a lot of time reflecting on….So this patient and his management has not been put out of my mind - in fact it has been something I have been contemplating and reflecting on….I spent yesterday formulating my response, by combining parts of various draft response I had written, and once I have gone over it, and I am sure that I have responded as fully as possible, I will email it to you. The copies of the notes will follow by express mail or courier, whichever will be quicker….I apologise to the HCCC for the delay.
5. Dr Guard accepts that at no time did she provide either the promised response or copies of the notes.
6. We find that Dr Guard is guilty of unsatisfactory professional conduct under s 139B(1)(e) of the National Law in that the practitioner has contravened s 21A(3) and s 34A(4) of the Health Care Complaints Act.

Complaint Five

1. Complaint Five asserts that Dr Guard is guilty of professional misconduct under s 139E(b) of the National Law in that when complaints One, Two and Four, which have been established, are considered cumulatively, they amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of Dr Guard's registration.
2. Section 139E of the National Law, defines the meaning of professional misconduct of a registered health practitioner as: (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.
3. There are 12 categories of unsatisfactory professional conduct set out in s 139B of the National Law.
4. When discussing the meaning of "professional misconduct" during final submissions, counsel for the HCCC made reference to Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. There, Lopes LJ famously described misconduct "which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency".
5. But as Basten JA pointed out in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]- [20], within the statutory confines of s139E: 19. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice… 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...
6. It is a matter of degree and judgment as to whether unsatisfactory professional conduct is sufficiently serious to justify suspension or cancellation.
7. We conclude that when taken together the proven unsatisfactory professional conduct of Dr Guard is sufficiently serious to justify an order for suspension or cancellation of Dr Guard's registration.
8. In fact, any of the complaints standing alone are sufficiently serious to lead to the same conclusion. The most serious breaches relate to the backdating of the two prescriptions for drugs of addiction. This is a serious departure from professional standards and is unethical, because doing so undermines the legislative framework in place to control the availability of drugs of addiction. Not complying with a condition of registration imposed after a finding of professional misconduct, not complying with a condition of registration imposed after a s 150 hearing and not responding to notices under the HCC Act are also serious breaches.

Complaint Six

1. The HCCC asserts that Dr Guard suffers from a mental impairment, condition or disorder that detrimentally affects her ability to practise the profession of medicine or is likely to do so.
2. Section 5 of the National Law defines impairment as meaning: a physical or mental impairment, disability, condition, impairment 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
3. Principles relevant to our consideration of whether Dr Guard has a relevant impairment are conveniently set out in Health Care Complaints Commission v Astor-Finn [2016] NSWCATOD 73 at [43]: 43. The following principles are established: i. There is no requirement for the Tribunal to make a finding as to a particular diagnosis. It is enough that whatever the condition possessed by the practitioner it is 'prejudicial to the orderly conduct of her [or his] mental and physical duties as a ... practitioner': Grant v HCCC [2003] NSWCA 73 at [12] per Meagher JA. ii. Impairment must be demonstrated by reference to evidence or an unequivocal admission by the practitioner: HCCC v Greenwood [2011] NSWNMT 13 at [62]. iii. The Tribunal must consider whether the practitioner is currently impaired: Caladine v HCCC [2007] NSWCA 362 at [11] per Beazley JA. Currency of impairment may be demonstrated by evidence of deficiency at a particular time combined with the absence of any evidence of any improvement since that time.

The evidence of Dr Newnham

1. Dr Newnham is a general psychiatrist appointed by the Medical Council of NSW to provide an independent psychiatric assessment and report to assist the Council in determining whether Dr Guard suffers from an impairment as defined in the National Law in terms of her capacity to practise medicine. She interviewed Dr Guard on 10 July 2020 and provided a report on 15 July 2020. Dr Newnham was also present during a substantial portion of day 1 of the hearing and then again on day 2 when Dr Guard gave oral evidence in chief regarding her health and living arrangements during the second half of 2019 to the current time.
2. As detailed below (in the reasons given for the refusal of Dr Guard's adjournment application), attempts to have Dr Guard attend Dr Newnham for a second interview approximate to the final hearing were unsuccessful.
3. Dr Newnham had prepared a second report "on the papers", having been provided by the HCCC with medical records from Dr Guard's psychiatrist, psychologist and treating health professionals. Dr Guard objected to its lateness and the volume of material that Dr Newnham had read for that second report. The second report and Dr Guard's medical records were not admitted into evidence, apart from one page that was tendered successfully from that supplementary material.
4. Nonetheless, Dr Newnham, having heard Dr Guard's oral evidence, updated her original opinion by confirming that opinion and adding that she had certain additional concerns.
5. In her initial report, Dr Newnham records that Dr Guard has been the subject of 21 complaints between 2002 and 2019 and set out in general terms the nature of the types of complaints that had been made. Dr Newnham opined that Dr Guard did not fully appreciate the seriousness of the past complaints made against her.
6. She raised concerns that Dr Guard had significant impairment in higher order executive functioning, pointing to statements made by her that demonstrated a lack of awareness of medico legal issues and the role of medico legal representation, and that payment of medico legal premiums was known to Australian medical practitioners as a fundamental prerequisite to continue to practise.
7. Dr Newnham recorded Dr Guard's self-diagnosis of PTSD as a result of the violence in her marriage to Mr S. Dr Guard has used an online questionnaire. This self-diagnosis of PTSD was accepted by Dr Guard's former treating professionals. Dr Guard told Dr Newnham in 2020 that the triggers for her PTSD included people intoxicated by alcohol, males and "bullies".
8. Dr Newnham opined that in July 2020 Dr Guard was taking escitalopram at the very high dose of 60mg daily (more than the maximum recommended dose). Dr Guard reported that this drug was initially prescribed for depressive mood, lack of motivation and frequent periods of tearfulness and that she had responded well to the drug. Dr Newnham also opined that Dr Guard's use of Duromine, as a patient with uncontrolled PTSD, was highly irregular. Dr Guard did not give any evidence responding to these expressed concerns.
9. It seems Dr Guard had not told her treating psychiatrist about the current proceedings as she did not believe they were relevant to his treatment of her PTSD. Dr Newnham comments that: Statements made by Dr Guard demonstrate a lack of complete awareness about the role of a treating psychiatrist assessing and treating a fellow medical practitioner, ie that a full psychosocial history is extremely relevant and necessary to provide comprehensive mental health care to fellow doctors.
10. Dr Newnham reports that Dr Guard has a complex medical history including a complex immunological disorder with both immunodeficiency and autoimmune components. Dr Guard has had multiple severe infections throughout her life, including recurring pneumonia. She has had pulmonary hypertension and has had an episode of heart failure. She has a sacral radiculopathy, scoliosis and kyphosis and has had multiple neurosurgical procedures.
11. Dr Newnham discusses the professional boundary issues that Dr Guard has had with Patient Z. Dr Guard frequently attended Patient Z's home after Patient Z had self-harmed and would suture her wounds there. Dr Newnham commented: In describing her interactions over a number of years with Patient Z, Dr Guard demonstrated a profound lack of appreciation of specific vulnerabilities of patients with Dissociative Identity Disorder and Borderline Personality Disorder. She also demonstrated a profound disregard for her obligations in setting boundaries with patients who do not have the capacity to set boundaries themselves as a direct result of complex childhood trauma. She demonstrated no awareness as to how the dynamic between Patient Z and herself had evolved to the point where Patient Z alleged sexual assault. The fact that she placed the blame for this situation on a woman with extreme emotional vulnerability is of grave concern and demonstrates a serious impairment in professional judgment. Her apparent inability to appreciate that the wound care she described administering to Patient Z would be viewed by her peers as highly problematic on several levels again raises concerns about her higher order executive functioning.
12. In Dr Newnham's mental state examination of Dr Guard, she opines: Her description of her personal relationships was delivered in a superficial and highly detached manner. Given that her personal relationship history sounded chaotic and at times highly tumultuous, this indicated a degree of affective incongruity … At times she demonstrated a loss of goal-directed thinking and needed to be redirected.
13. Dr Newnham described Dr Guard's disdain for the three delegates at the s 150 hearing in May 2019 leading Dr Newnham to comment: She demonstrated impaired insight into the seriousness of the cumulative complaints against her and of her current suspension. She did not give an indication that she had reflected on the concerns of the council in a meaningful way. There were frequent examples of Dr Guard being seemingly unaware that her responses to my questions would be viewed by the Medical Council as problematic.
14. Dr Newnham concluded that there were continuing concerns about Dr Guard's level of personal organisation and personal and professional judgment and that her assessment highlighted that Dr Guard exhibited significant impairments in social judgment which have implications for the practice of medicine and highlighted a significant risk of harm to patients. Dr Newnham had concerns of the possibility of neuropsychological impairment as a result of an organic process. Dr Newnham opined that Dr Guard suffered from severe medical conditions that may be associated with neuropsychological complications, in particular, a complex autoimmune disorder and cardio-vascular issues.
15. Dr Guard led no evidence to address any of the concerns expressed by Dr Newnham.
16. Dr Newnham provided a provisional diagnosis that Dr Guard was suffering from various conditions and disorders, but the only disorder confirmed as a final diagnosis at the hearing was PTSD.
17. Dr Newnham concluded by offering the following opinion pertaining to Dr Guard's impairment: Despite the lack of accurate diagnostic clarification at this stage, Dr Guard clearly meets statutory definition for Impairment under the National Law. She demonstrates a lack of ability to appropriately reflect on her practice of medicine, doctor/patient boundaries and does not demonstrate that she is willing to take steps that ensure that patients are safe in the future. She demonstrated a degree of cognitive disorganisation and likely executive functioning impairment which has been reflected concerns about her medical practice over the course of several years. (as per original)
18. In July 2020 Dr Newnham concluded Dr Guard was not currently fit to resume practice of medicine. Dr Newnham did not deviate from that opinion at the hearing before us.

Consideration of whether Dr Guard has an impairment

1. We take into account and place considerable weight upon Dr Newnham's opinion that Dr Guard has a relevant impairment.
2. There are a number of matters that emerged during the hearing which were supportive of and consistent with the opinion expressed by Dr Newnham in relation to Dr Guard's impairment. Those matters included: 1. Dr Guard continues to suffer from PTSD which is unresolved and for which she has not been adequately treated. She has failed to pay for her psychologist to continue treatment of her PTSD. 2. Dr Guard obscured doctor/patient boundaries. Dr Guard accepted (although this was not the subject of a particular complaint) that she treated members of her family constellation both before and after 29 May 2019 and that this was problematic. 3. Despite having it highlighted to her that there were issues prescribing to family members and friends at the s 150 hearing on 29 May 2019, Dr Guard was unable to tell the tribunal the reasons why treating family/friends is not recommended. She could only say that there are a list of reasons, that it had ended badly for her and that there were potential conflicts of interest. 4. The applicable Code of Conduct (Good Medical Practice: a Code of Conduct for Doctors in Australia March 2014) provided as follows: 3.14 Personal Relationships Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. 1. The current code of conduct replicates this provision at 4.15, adding: In particular, medical practitioners must not prescribe Schedule 8 psychotropic medication and/or drugs of dependence….to anyone with whom they have a close personal relationship. 1. Dr Guard regularly provided medical services to adults and children with whom she had personal relationships. Tab 59 of the material discloses long and frequent consultations at the homes of relatives. Dr Guard, seemingly on a regular basis, filled prescriptions for family members so she had a stock of medication on hand should a family member require medication. As well as antibiotics, Dr Guard prescribed psychoactive medications, risperidone and s 8 medications to family members and to a person who resided in her home and fulfilled the position of a nanny. 2. We have earlier referred to Dr Newnham's assessment of the concerning nature of Dr Guard's relationship with Patient Z. 3. Dr Guard's attitude to the retention and security of patient records was also problematic. The Code of Conduct at the relevant time (Good Medical Practice: Code of Conduct for Doctors in Australia March 2014) provided that the maintenance of medical records was essential for the continuing good care of patients and that good medical practice involved: 8.4.2 Ensuring that your medical records are held securely and are not the subject of unauthorised access … 8.4.7 Promptly facilitating the transfer of health information when requested by the patient. 1. Dr Guard acknowledged the minimal requirement for the retention of records was seven years if the patients were aged 18 and longer if less than 18. 2. Dr Guard had an unquantified mix of written and computerised medical records. In relation to the latter, she was unable to identify the current location of computers and any electronic backups of patient records. 3. We have earlier made reference to the loss or destruction of most, if not all, of Dr Guard's written patient records as a result of Dr Guard not making an appropriate arrangement with a storage facility. 4. Tab 60 details a high proportion of prescriptions for drugs listed in Schedule 8 of the Poisons Standard and in Appendix D of the Poisons and Therapeutic Goods Regulations 2008 (NSW). Dr Guard's explanation was that she had a large number of palliative care and chronic care patients. Nonetheless there are concerns about a number of examples of high dose and quantity prescriptions of these drugs. One example involved giving a patient prescriptions for a variety of doses of Targin and Oxycontin from which the patient could pick and choose the strength that they required. In another example. Dr Guard provided prescriptions to a patient for at least three different antibiotics "just in case". 5. On 28 October 2020 Dr Smith, who was then Dr Guard's general practitioner and a doctor with whom she had previously shared a practice, wrote to her saying, amongst other things: With regard to your emailed request for prescriptions, I have serious reservations with providing prescriptions for Lexapro at 60mg per day 6 months supply, Panadeine Forte at 6 per day with 6 months supply and Gastrostop at 12 per day with 6 months supply. As previously stated to you, I recommend you have a regular local GP who can review your Meds and general health more regularly and determine if your medications remain appropriate. In addition, as I am sure you appreciate, your dosage of Lexapro, Panadeine Forte and Gastrostop is high. We had agreed on a graduated reduction on many occasions quite some time ago. I am not prepared to prescribe Panadeine Forte in the doses that you request, rather will provide you with a single script of Panadeine forte by 120 tablets only. I am not prepared to prescribe Gastrostop. I am not prepared to prescribe Lexapro at 60mg per day. You should consult the Psychiatrist who last reviewed your dosage, remembering his recommendation in late 2019 that this dosage should be temporary and subject to review by him in consultation with yourself. 1. Although Dr Guard said she subsequently saw Dr Smith face to face and he did relent and give her prescriptions for some of the drugs, we are uncertain as to if and when this happened. Doctor Smith was not called by Dr Guard to give evidence. On its face the contents of the letter demonstrate a propensity to over-medicate and a lack of ability to appropriately reflect upon advice she had been given in respect of her own health. It is supportive of Dr Newnham's opinion of a degree of cognitive disorganisation and likely executive functioning impairment. 2. In the second half of 2021 and the beginning of 2022 Dr Guard secreted herself and became a recluse.
3. Dr Guard said that she still did not know if she wanted to return to clinical practice and whether she was physically or mentally up to it. There has been a significant degree of chaos in Dr Guard's life since May 2019. Dr Guard is yet to make a decision about whether or not she wants to return to clinical practice, opining that her future may be in some non-clinical setting.
4. Dr Guard suffers from physical back pain and cannot currently easily walk or stand. Dr Guard conceded her physical health adds to her difficulties in working as a general practitioner at the current time.
5. At the end of the hearing, Dr Guard said she was very aware now, that she made poor decisions from late 2018 in prescribing and treating her family constellation, including the children from her former blended family and a young woman who was at one time a regular member of her household. She admitted she should not have written so many prescriptions for her former husband and she should have stopped working sooner.

Conclusion in relation to Complaint Six

1. It is necessary for the HCCC to establish that the impairment is current at the date of hearing. That however can be achieved by demonstrating impairment at a particular point in time and establishing that the evidence does not demonstrate any improvement of that impairment in the intervening period.
2. We are comfortably satisfied that as at the date of Dr Newnham's first report in July 2020, Dr Guard met the statutory definition for impairment under the National Law. The evidence does not suggest any improvement in Dr Guard's impairment since then and in fact, points in the opposite direction.
3. Whilst Dr Guard is clearly an intelligent woman, we are comfortably satisfied that Dr Guard still has a degree of cognitive disorganisation and likely executive functioning impairment which would detrimentally affect her capacity to practise the profession of medicine and that she lacks the ability to appropriately reflect on her practice of medicine and doctor/patient boundaries and lacks a willingness to take steps to ensure patient safety. Accordingly pursuant to s 144(d) of the National Law, Dr Guard has an impairment within the meaning of s 5 of the National Law, being a mental impairment, condition or disorder that detrimentally affects and is likely to detrimentally affect her capacity to practise the profession of medicine.

Application for a non-publication directions

1. The HCCC made an application for non-publication directions in relation to the names of any patients and the names of any children that featured in the evidence.
2. Dr Guard sought non-publication directions in relation to the name of the family practice and the two doctors at that practice that she gave evidence she intended to engage as her new general practitioner.
3. Clause 7(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. To the extent that the National Law does not cover the field s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (New South Wales) provides a similar power.
4. Whilst the principles of open justice apply and the details of this decision are available to the public, we are of the opinion it would be appropriate to make the directions for limited non-publication sought by the parties. Of course, that order may be the subject of a later application for variation or discharge.

Order for refusing adjournment application

1. On the first day of the hearing, Dr Guard made an application that the hearing be adjourned.
2. The HCCC neither consented to nor opposed this application.
3. We granted Dr Guard leave to make the application. We dismissed the application, reserving our reasons which we now give.
4. The provisions of the National Law provide that protection of the health and safety of the public must be the paramount consideration [s 3A]. and that the Tribunal should hear and determine inquiries expeditiously [s 11(1)]. Section 3(d)-(e) of the Civil and Administrative Tribunal Act 2013 (NSW) [the NCAT Act] includes the following Objects: (d) To enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible and (e) To ensure that the decisions of the Tribunal are timely, fair, consistent and of high quality
5. Section 36 of the NCAT Act again emphasises as a guiding principle the facilitation of a just, quick and cheap resolution of the real issues in proceedings and specifically refers to parties complying with directions made by the Tribunal in that context.
6. The Tribunal has published guidelines in relation to adjournment applications which include the need to manage cases and hearings fairly and efficiently and make sure cases are heard as soon as possible and allowing an adjournment only if a party requesting it has a good reason and it is fair in all the circumstances to adjourn the hearing.
7. Factors to take into account are the grounds for requesting the adjournment; whether the need for the adjournment is the fault of one of the parties; any disadvantage to the parties if an adjournment is allowed or refused and the impact of any delay on the principle that the Tribunal must facilitate the just, quick and cheap resolution of issues in the proceedings.
8. The High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 commented upon modern case management principles saying "…that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question but to other litigants" (our emphasis).
9. Dr Guard did not file any evidence in support of the application. The submissions she made in support of the application related to: 1. The fact that the HCCC had filed and sought to rely upon further substantive evidence both on the afternoon of the working day before the hearing and on the morning of the hearing itself and 2. An assertion by Dr Guard that she had not been given a proper opportunity to have an updated report prepared by a psychiatrist about her mental health.
10. The first contention was easily dealt with on the basis that, if the HCCC sought to rely upon substantive new evidence, it would need to establish, absent Dr Guard's consent to its tender, that there was no denial of procedural fairness to Dr Guard. If it was unable to do so, then the HCCC would not be permitted to adduce any substantive new evidence which had been filed and served so late. Accordingly, the first contention failed.
11. We also note in passing the HCCC chose not to make its own adjournment application for the purpose of giving Dr Guard time to consider that late served material and in particular Dr Newnham's second report and that material was not admitted into evidence when the HCCC attempted to tender it.
12. In relation to the second contention, it is useful to set out some events and communications relevant to the history of Dr Guard's mental health assessment in these proceedings.

Chronology relevant to the adjournment application

1. On 10 July 2020 Dr Guard was assessed by Psychiatrist, Dr Newnham.
2. On 17 July 2020 Dr Newnham completed her initial report (the report). The report opines that Dr Guard meets the statutory definition for impairment under the National Law.
3. On 8 February 2021, an application for disciplinary findings and orders and complaint was filed by the HCCC against Dr Guard in NCAT. It does not refer to the report nor complain about any impairment of Dr Guard arising from the concerns expressed in the report.
4. On 16 February 2021, Dr Guard was sent a s 40 letter in relation to Dr Newnham's report [misspelt in the letter as Newman] and given 28 days to respond. There is no evidence of any response by Dr Guard.
5. On 26 March 2021 a directions hearing took place at which Dr Guard appeared. The matter was listed for final hearing on 12 and 13 August 2021. Orders were made on this date for Dr Guard to file a Reply to the complaint and her material by the 4 June 2021 but at no time did Dr Guard comply with these orders.
6. On 9 July 2021, Dr Guard sent an email to the HCCC saying that she was currently in hospital and asked for confirmation of the date of the hearing. The HCCC replied giving the dates.
7. On 3 August 2021, the HCCC made application for the hearing dates to be vacated. The HCCC expressed concerns about Dr Guard's engagement in the current proceedings noting that she hadn't served any material and that she had advised she was in hospital. Additionally, the HCCC proposed to add a complaint alleging Dr Guard's impairment "to have the two complaints heard together".
8. On 5 August 2021 the Tribunal vacated the hearing which had been set down for later that month.
9. On 10 December 2021, an Amended Complaint was filed by the HCCC, which now contained a complaint of impairment.
10. On 13 December 2021, Dr Guard was served with the Amended Complaint.
11. On 4 February 2022, there was a Directions hearing at which Dr Guard appeared. The matter was listed for hearing on 25, 26 and 27 July 2022. Orders were made on this date for Dr Guard to file a Reply to the Amended Complaint and her material by 17 June 2022 but Dr Guard failed to comply with these orders by that date or at all.
12. On 10 February 2022, the HCCC sent a letter to Dr Guard to ascertain her willingness to attend a further appointment for psychiatric assessment. A response was requested by 24 February 2022.
13. On 23 February 2022, Dr Guard responds: I'm fine to do another review. Will it be with the same psychiatrist or another?
14. It's reasonable to assume that at that point Dr Guard was not raising any objection about having the further assessment done by Dr Newnham and thereafter the HCCC took steps to make that arrangement.
15. On 7 April 2022, the HCCC sent an email to Dr Guard to advise her of the appointment with Dr Newnham and asked that she advise by 22 April 2022 whether she will be attending the updating assessment.
16. On 22 April 2022, Dr Guard emailed the HCCC: After much thought and consideration, and in consultation with trusted colleagues, I do not believe it to be appropriate, or in my best interests, to see the same psychiatrist as last time. Perhaps there is an alternative council approved psychiatrist that I can see.
17. On 28 April 2022, the HCCC advised Dr Guard that the appointment with Dr Newnham was cancelled and that it was trying to arrange another appointment with a new psychiatrist.
18. On 2 June 2022, the HCCC sent an email to Dr Guard informing her that Dr Michael Atherton had agreed to assess her for the purposes of this hearing and that the HCCC was awaiting confirmation of an appointment date from his rooms. The email inquired of Dr Guard "Can you please advise if you have any difficulty with Dr Atherton?" This email was sent to the same email address at which Dr Guard had received every other email.
19. On 21 June 2022, the HCCC wrote to Dr Guard noting that it had not received any response from her and that it had not been able to arrange a new CAP report and asked her whether she intended to participate in the proceedings. This was a reasonable question given that the Order of 4 February 2022 required Dr Guard to file and serve a Reply and any material upon which she relied by 17 June.
20. On 23 June 2022 at 3.09pm, Dr Guard responded saying she was a bit surprised by the letter because she says it was her understanding that "you are going to be in contact with me about a new appointment. Have I missed something?"
21. On 23 June 2022 at 3.16pm, the HCCC responded that it did not receive any reply to her email of the 2 June. The email also inquired whether Dr Guard received the notification to download the HCCC documents it sent over on 11 May 2022 and also noted that she has not responded to indicate whether she wished a hard copy of those documents to be sent.
22. On 5 July 2022, the HCCC advised Dr Guard that it is seeking a supplementary report "on the papers" from Dr Newnham and invited her to take up an opportunity to attend for a further appointment with her, requesting a response by Wednesday 6 July.
23. On 19 July 2022, the HCCC informed Dr Guard that it has retained Dr Newnham to provide a supplementary report.
24. On 19 July 2022 at 4.15pm, Dr Guard asserted by email that she did not receive the email of the 2 June regarding Dr Atherton and asked if the hearing could be adjourned so she could see Dr Atherton.
25. On 20 July 2022, Dr Newnham provided a supplementary report "on the papers" having had access to records from Dr Guard's consultant psychologist, psychiatrist and general practitioner. The report was filed and served on the 22 July but, as mentioned, neither the report nor the records and notes from Dr Guard's treating practitioners (apart from one page) were admitted into evidence because of the lateness of the filing.

Consideration of the adjournment application

1. As can be seen from the chronology, this matter commenced in February 2021. One period of three days that had been set to hear the matter had been vacated in August 2021. Two sets of orders have been made for Dr Guard to file material upon which she relied and she failed to comply with them. In addition, Dr Guard, on more than one occasion, failed to fulfill her statutory obligation to respond to notices to produce documents and provide information. One of those notices directly sought to engage Dr Guard in relation to the issues raised by Dr Newnham about her mental health.
2. Dr Guard was not entitled, as of right, to have the HCCC provide an alternative expert to the one that they had initially engaged.
3. The HCCC attempted unsuccessfully to accommodate Dr Guard's request for a new expert, in order to encourage her to become involved in the process of updating the assessment in respect of her mental health.
4. On two occasions Dr Guard refused an invitation to engage in an interview with Dr Newnham for the purposes of the preparation of the supplementary report, notwithstanding Dr Guard had initially raised no objection to Dr Newnham doing so. We had some difficulty in accepting that the only email that Dr Guard did not receive from the HCCC was the one in which it suggested Dr Atherton as an alternative expert. But even assuming Dr Guard is being honest about her not receiving that email, with the hearing looming, there was a period of nearly four weeks (23 June 2022 to 19 July 2022) between when she was aware of that email and her informing the HCCC of her allegation that she had not received it.
5. We had some sympathy for the position that the HCCC ended up in. By attempting to accommodate Dr Guard it ran out of time to get an updated report from Dr Newnham "on the papers" and consequently we were not able to admit that report when it ultimately became available on the eve of the hearing.
6. At no relevant time did Dr Guard seek to file any expert evidence from her treating psychiatrist, any other treating professional or any other medical expert relating to the issues raised by Dr Newnham in her first report.
7. We were not confident that even if a third set of hearing dates were allocated, Dr Guard's case would be in any improved state of preparation.
8. We were also mindful of the delays facing other cases waiting hearing. Adjourning this case to yet another sequence of hearing dates would mean that another case that could have occupied that time will have to wait to be heard and determined at an even later date.
9. For these reasons the application for an adjournment was refused.

Decision

1. We make the following orders: 1. The Tribunal having found that Dr Edwina Guard (the Practitioner) is guilty of professional misconduct and suffers an impairment, orders that: 1. The Health Care Complaints Commission is within 21 days of the date of these Orders, to file and serve upon the Practitioner any material and submissions upon which it seeks to rely at a Stage 2 hearing in respect of appropriate protective orders and costs. 2. The Practitioner is to file and serve on the Health Care Complaints Commission any material and submissions upon which she seeks to rely within 21 days of receipt of the material and submissions provided pursuant to Order 1(a). 3. The Health Care Complaints Commission is to file and serve on the Practitioner material and submissions in reply, if any, 7 days after receipt of any material and submissions provided pursuant to Order 1(b) of these Orders. 1. On or before 27 October 2022, the parties are to provide to the Registrar a list of mutually available dates for the Stage 2 hearing in the period 7 November 2022 to 9 December 2022. 2. Pursuant to Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law an order is made prohibiting the publication of the name of any patient set out in the Schedule to the Complaint, any patient otherwise referred to in the evidence, the names of children referred to in the evidence, and the name of the practice and the names of the two general practitioners nominated by Dr Guard as being her intended treating general practitioners.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 September 2022