Health Care Complaints Commission v Guard

Relevant law

1. In the exercise of functions under the National Law, the objective and guiding principle is the provision of the health and safety of the public must be the paramount consideration. We are to ensure that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3, s 3A and s 4).
2. The Tribunal's disciplinary powers are in Part 8 subdivision 6 of the National Law. The relevant power in the circumstances of this case is found in s 149C of the National Law which provides that: (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; …
3. We have found the practitioner suffers from an impairment. We have also found the Practitioner guilty on three complaints of professional misconduct, on the basis that each complaint constituted unprofessional conduct which was sufficiently serious to lead to cancellation. That does not mean cancellation is an automatic result (see HCCC v King [2013] NSWMT 9). The Tribunal's role under the National Law is to ensure that any orders made have as their paramount focus the protection of the public (see Health Care Complaints Commission v Litchfield [1997] NSWSC 207; 41 NSWLR 630). They are not designed to be punitive. The purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards (Qasim v Health Care Complaints Commission [2015] NSWCA 282 (Qasim) at [73]).
4. Counsel for the HCCC relied upon the well-known passage by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] as follows: 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.
5. The HCCC submits that relevant principles in determining what disciplinary action accords with the objectives of the National Law include: 1. whether the misconduct could be satisfactorily explained as an error of judgment rather than a defect of character; 2. the intrinsic seriousness of the misconduct in terms of fitness to practise; 3. whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities or character; 4. the motivation which may have given rise to the proven episode of misconduct; 5. the underlying qualities of character shown by previous and other conduct; 6. whether the Practitioner's conduct post the proven episode of misconduct demonstrates the public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner.
6. An early published version of this list is found in HCCC v Pierce [2010] NSWNMT 23 at [62]. They were developed to assist the consideration of whether a practitioner was of good character in the context of fitness to practise and have been adopted as a convenient checklist when considering what protective orders should be made (see for example Health Care Complaints Commission v Le [2021] NSWCATOD 104 at [90]).

Should the practitioner's registration be cancelled ?

1. On 15 September 2022, we made the following findings in respect of the complaints against the Practitioner: 1. The practitioner was guilty of unsatisfactory professional conduct under ss 139B(1)(c) of the National Law, based on the breach by her of a condition imposed on her registration on 16 December 2016 requiring her to notify the Medical Council (Council) on a fortnightly basis on certain details concerning her work, and a subsequent condition imposed on 29 May 2019 that she not practise medicine. 2. The practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that she engaged in improper or unethical conduct relating to the practice of medicine by backdating two prescriptions written for Patient A for Targin 50/5 and Endone 5mg written on 11 June 2019 in contravention of cl 80(1)(a) of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR). 3. The practitioner was guilty of unsatisfactory professional conduct under ss 139B(1)(e) of the National Law by contravening ss 21A(3) and 34A(4) of the Health Care Complaints Act 1993 (NSW) (HCC Act) by failing, without reasonable excuse, to comply with notices to give information and produce documents issued by the Commission on 16 January and 12 April 2019. 4. The practitioner was guilty of professional misconduct under s 139E of the National Law because each of these three acts of unprofessional conduct, standing alone, were sufficiently serious to amount to professional misconduct. 5. That pursuant to s 144(d) of the National Law the practitioner had an impairment within the meaning of s 5 of the National Law that detrimentally affects her capacity to practise medicine.

Error of judgment rather than a defect of character

1. The starting point is to note that the Practitioner was found to be guilty of professional misconduct in 2016. The complaints we have found established against the Practitioner since that time demonstrate a systemic pattern of behaviour that is impossible to explain away by simply attributing them to errors of judgment. The Practitioner has demonstrated a fundamental defect of character which has impacted upon her practice of medicine.

The intrinsic seriousness of the misconduct in terms of fitness to practise

1. The Practitioner's misconduct was intrinsically serious. The most serious breach involved the backdating of prescriptions for drugs of addiction. This was a serious departure from professional standards and was unethical, as it undermined the legislative framework in place to protect the public by imposing strict controls on prescribing, dispensing and use of such drugs. Also serious were the actions of the Practitioner which demonstrated a disregard for the regulatory regime governing health practitioners through non-compliance with conditions imposed on her registration (including by this Tribunal following the finding of professional misconduct in 2016) and regulatory notices issued by the Commission. The most serious of these was the respondent's disregard of a condition prohibiting her from practising medicine, which was accompanied by the issuance of backdated prescriptions and referrals.
2. As the Tribunal observed in Health Care Complaints Commission v Collins [2021] NSWCATOD 132 at [45]: Compliance with conditions imposed on a practitioner's registration is essential to the proper operation of the system of regulation. As noted by the Tribunal in Health Care Complaints Commission v Perera [2018] NSWCATOD 112 at [89], the authorities on the necessity to comply with conditions are clear and unambiguous. A registered health practitioner is required to comply scrupulously with conditions imposed on his or her registration: Re Dr Than Le (Medical Tribunal decision, 20 September 2001); Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [74].

Was the misconduct atypical or uncharacteristic?

1. The misconduct which has been identified was both typical and characterised the Practitioner's behaviour when practising medicine on multiple occasions.

Motivation for misconduct

1. For the purposes of the Stage 2 hearing, the Practitioner did not attempt to provide any further explanation as to the motivation for her misconduct. The explanations that she did give in respect of specific misconduct during the Stage 1 hearing were not accepted by us. It is likely that some of the Practitioner's misconduct arises out of the impairment with which she suffers. Another striking reason for the Practitioner's misconduct was her inability to recognise appropriate boundaries when treating those close to her which seemingly led her to disregard conditions placed upon her registration and otherwise imposed upon her by law when practising medicine.

Underlying qualities of character

1. The evidence given by the Practitioner at the Stage 1 hearing did her no credit. At [18] to [28] of the Reasons of the 15 September 2022 we found that on specific occasions the Practitioner had been untruthful and other evidence given by her was inherently unlikely. The Practitioner's most serious fabrication related to what was her most serious misconduct. The Practitioner asserted that she did not write any prescriptions for drugs of addiction after the date her registration had been suspended by the s 150 delegates. That was false evidence. As part of that but more generally, as we found (at [22]-[25]), she gave an untruthful account that in May 2019 she had plans to take time off and therefore had written "forward dated" prescriptions to cover patients while she was away, and had told the s 150 delegates this on 29 May 2019. All aspects of that account were untrue, as was the Practitioner's explanation that she had given an inaccurate account to the HCCC due to a lapse in memory.

Does the Practitioner's post misconduct behaviour demonstrate that public and professional confidence may be reposed in her?

1. On the 7 November 2022 the Practitioner provided a short, written statement to the Tribunal which said, in part: I accept the Tribunal's findings. I apologise for my errors of judgement. Over the last two years it has been a struggle for me to live, as even basic ADLs take me a lot of time and energy. At this point I do not even know if I will ever be well enough to practice [sic] medicine in the future. I seriously considered just removing myself from the register because of my health status. However I do not know what the future holds, so I thought it wise to consider that my health may improve with time.
2. Whilst those statements might tend to show that the Practitioner has developed some insight following the receipt of our reasons in September 2022, given her former lack of candour, the nature of her impairment and her history of complaints and non-compliance with regulatory requirements we would be slow to conclude she currently has full insight into her past history. We have regard to the fact that the Practitioner was the subject of a finding of professional misconduct in 2016 and had conditions placed upon her registration. The new breaches, about which we have made findings, need to be viewed in that context.
3. In relation to her impairment, as Dr Newnham observed (see Stage One Decision at [114]), the Practitioner demonstrated impaired insight into the seriousness of the cumulative complaints against her and her current suspension, and did not give an indication that she had reflected on the concerns of the Council in any meaningful way. Dr Newnham also opined (see Stage One Decision at [118]), the Practitioner demonstrated a lack of ability to appropriately reflect on her practice of medicine, doctor/patient boundaries and did not demonstrate that she was willing to take steps to ensure that patients would be safe in future. That opinion was supported by the matters identified by us in the Stage One Decision at [121]. As we noted (at [126]), as at the date of the Stage One hearing the evidence suggested a deterioration, rather than any improvement, in the Practitioner's impairment since Dr Newnham's report in July 2020. In particular, there was no evidence that the Practitioner was receiving appropriate treatment to assist her to develop insight. In fact, the Practitioner says that she currently struggles with the activities of daily living.

Conclusion in relation to cancellation

1. The Practitioner demonstrates a serious lack of insight and an ongoing impairment, which is deteriorating rather than improving in the absence of appropriate treatment. Taking into account those matters discussed above, we find that the cancellation of the Practitioner's registration is the appropriate protective order. Accordingly, we concur with the position adopted by the HCCC, and not opposed by the Practitioner, that the Practitioner's registration should be cancelled.

The review period

1. We turn now to the question of the imposition of a time period, if any, before the Practitioner may seek to review, under s 163A of the National Law, our order for cancellation of her registration.
2. Subsection 149C (7) of the National Law provides an order for cancelation may provide that an application for review of that order may not be made until after a specified time.
3. As noted earlier in these reasons, the HCCC seek an order that the Practitioner be precluded from applying for a review of the cancellation of her registration for a period of three (3) years. In the short statement provided by the Practitioner on the 7 November 2022, she said "The HCCC complaint against me was first filed on 8/2/2021, and I would request that consideration be given to commencing restriction on my practice from that date". Qasim at [74] makes it clear that "time served" between the suspension of registration after the s 150 hearing and the hearing before us, might only be relevant if some action is taken in that time by the practitioner to remediate the difficulty that has led to the suspension.
4. It is trite to observe that when exercising our discretion to impose an order under s 149C (7), we must consider the unique facts and circumstances of this case.
5. As already mentioned, the Practitioner's statement of the 7 November 2022 makes clear over the last two years it has been a struggle for her to live, as even her basic activities of daily living take her a lot of time and energy. At this point, she does not even know if she will ever be well enough to practise medicine in the future. She is currently 54 years of age.
6. No matter what non-review period is imposed, the Practitioner faces significant challenges to again obtain registration. She shall require expert evidence as to the treatment of her impairment and cogent evidence about such matters as insight and contrition, the undertaking of remedial education, particularly in relation to inappropriate prescribing and poor record keeping, and currency of her clinical skills and meeting recency of practise standards, to be successful in a review application.

Discussion and Conclusion in respective review period

1. The Practitioner adduced no expert or other evidence at this stage 2 hearing that she has sought or obtained any treatment or assistance for her underlying impairment or education to improve insights that she lacked (as highlighted in our September reasons) in respect to her practice of medicine. Nor has the Practitioner adduced any expert evidence that would allow us to make any assessment of a minimum period of therapy necessary to address the Practitioner's impairment.
2. The predominant consideration is the protection of the public.
3. A significant non-review period is required to enable the Practitioner an opportunity to obtain appropriate treatment and develop genuine insight into her conduct. Those protective orders need to ensure the safety of the public by denouncing the Practitioner's serious repetitive misconduct and sending the message that the Tribunal is focused on maintaining the integrity of the profession.
4. We conclude that the non-review period should be three (3) years.

Costs

1. The HCCC sought an order that the Practitioner pay its costs of the proceedings, as agreed or assessed. The Practitioner made no submissions in relation to the application for costs against her.
2. In this matter the HCCC have established, to the requisite standard, the matters particularised in the complaint.
3. In exercising the power to award costs, conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event. The presumption that the successful party is entitled to their costs will generally be displaced only where there has been some "disentitling conduct" by the successful party (Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48]; Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]).
4. There is no disentitling conduct by the applicant.
5. The Commission should be awarded its costs as agreed and failing agreement as assessed.

Orders

1. Our decision is as follows: 1. Pursuant to s 149C of the Health Practitioner Regulation National Law (NSW) ("the National Law ") the registration of Dr Edwina Guard ("the practitioner") is cancelled from the date of this order. 2. Pursuant to s 149C(7) of the National Law the practitioner may not make any application to the Tribunal for review of Order 1 of these orders for a period of three (3) years from the date of this order. 3. The Registrar is requested as soon as practicable to notify the Medical Council of NSW and the Australian Health Practitioner Regulation Agency of Orders 1 and 2 of these orders. 4. The practitioner shall pay the Health Care Commission's costs of an incidental to these proceedings as agreed and failing agreement as assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2022