Health Care Complaints Commission v Gupta

Background

1. Dr Gupta is 36 years of age, and graduated with a Bachelor of Dental Surgery from the University of Sydney in 2004. After qualification he worked at a dental surgery in Chatswood from 2005 to March 2007, and after six months at a private dental practice in Toronto NSW he joined Charlestown Dental Centre. He became principal dentist there after four years, and left in October 2015 to start his own practice, "The Smile Factory", in Broadmeadow NSW. In his Statement dated 30 April 2018 Dr Gupta describes the practice as a family practice, seeing mainly young couples and young families. Around 20% of the patients are under 18.
2. On 23 November 2015 the Australian Health Practitioner Regulation Authority (AHPRA) received a mandatory notification by a paediatric dentist, Dr Cornwell, alleging that in November 2015 Dr Gupta inappropriately prescribed lorazepam (Ativan) to a two year old patient who later presented at John Hunter Hospital Emergency Department exhibiting a reaction consistent with an overdose (Patient A).
3. On 21 December 2015 the Dental Council of Australia (the Council) held a hearing in proceedings under s 150 of the National Law in response to the notification of 23 November 2015. Dr Gupta was legally represented at those proceedings. Dr Gupta gave oral evidence as to the circumstances in which he prescribed lorazepam to Patient A, his reasons for not referring Patient A to a paediatric dentist or a hospital, his prescribing practice, and his record keeping.
4. The Council found that Dr Gupta's conduct in putting a small child at significant risk by acting on inadequate information after scant research and against patient safety when safe alternatives such as referral to a general practitioner or hospital was available was not in keeping with the standards of knowledge, understanding and practice expected of a dental practitioner of more than 10 years standing; and that his deficient knowledge, understanding and practice and continued sole practice posed a risk to the health and safety of the public. The Council found that there was scope for Dr Gupta to remedy his shortcomings and that imposition of conditions targeted at protecting children from his practice and subjecting him to supervision would adequately protect the public. On 9 February 2016 the Council imposed conditions on Dr Gupta's registration, and referred the matter to the HCCC for investigation.
5. Condition 1 imposed on Dr Gupta's registration required that he not possess, prescribe, supply, dispense or administer any drug of addiction (Schedule 8 drugs) or prescribed restricted substances or derivatives (Schedule 4D or schedule 4D derivatives) for patients under the age of 15 receiving dental treatment, and that he surrender his authority under the Poisons and Therapeutic Goods Act 2008. Conditions 2 and 3 are set out at paragraph [7] above, and formed the basis of the additional complaints 3 and 4. Conditions 4, 5 and 6 relate to any change in the nature or place of Dr Gupta's practice or other employment.
6. Dr Cornwell's notification to the AHPRA included the statement that a review of clinical notes for other patients known to have seen Dr Gupta at another location suggested that this was not an isolated event and that a hospital admission was required for another patient. The reasons given on 9 February 2016 for the orders made under s 150 of the National Law record that in a written submission to the Council prior to the hearing on 21 December 2015 Dr Gupta recalled that he had prescribed a benzodiazepine for a five to ten year old child in 2014 when he was at his previous place of practice as an employed dentist but there had been no adverse effect that he had been aware of. On 3 November 2016 Dr Gupta's lawyer was advised that Patient B, a seven year old child seen by Dr Gupta in November 2014, had been added as a subject to the investigation.

Relevant legislation

1. Subdivision 6 of Div 3 Part 8 of the National Law provides the powers of the Tribunal in dealing with a complaint. Section 149 provides: 149 Powers may be exercised if complaint proved or admitted [NSW] The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if - (a) it finds the subject-matter of a complaint against the practitioner or student to have been proved; or (b) the practitioner or student admits to it in writing to the Tribunal.
2. The general powers of the Tribunal are conferred by s 149A: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
3. Pursuant to s 149B, the Tribunal may impose a fine up to 250 penalty units, if the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct, and is satisfied there is no other order, or combination of orders, that is appropriate in the public interest.
4. Section 149C provides the circumstances in which the Tribunal may suspend or cancel a practitioner's registration: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession.
5. The conditions on Dr Gupta's registration imposed on 9 February 2016 were imposed under s 150 of the National Law. That provision imposes obligations on a Council, as follows: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest - (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate.
6. Those conditions continue until the complaint presently before the Tribunal is determined, or the conditions are removed by the Dental Council: s 150H(2).
7. In hearing and determining these proceedings, the Tribunal is required to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3: s 4 National Law. The protection of the health and safety of the public must be the paramount consideration: s3A National Law.
8. Schedule 5D of the National Law applies to proceedings before the Tribunal. The Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit: cl 2.
9. Clause 6 of Sch 5D provides for additional complaints: 6 Additional complaints [NSW] (1) A Committee or the Tribunal may in proceedings before it deal with one or more complaints about a registered health practitioner or student. (2) If, during the proceedings, it appears to the Committee or the Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the practitioner or student concerned - (a) whether instead of or in addition to the complaint which was made; and (b) whether or not by the same complainant; the Committee or the Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings. (3) In proceedings in which a Committee or the Tribunal is dealing with more than one complaint about a registered health practitioner or student, the Committee or the Tribunal may have regard to all the evidence before it (whether the evidence arose in relation to a complaint in respect of which the Committee or the Tribunal is making a finding or any other complaint or complaints in the proceedings) when making any of the following findings - (a)a finding on a question of fact in relation to the conduct of a registered health practitioner or student; (b) a finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct. (4) If another complaint is taken to have been referred to a Committee or the Tribunal under subclause (2), the complaint may be dealt with after such an adjournment (if any) as is, in the Committee's or Tribunal's opinion, just and equitable in the circumstances.
10. We note here that, as stated in Health Care Complaints Commission v Perceval [2014] NSWCATOD 38, the onus or burden of proof is that of the HCCC, and that as a consequence of the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336.

The Evidence

1. The HCCC evidence (ex A1) included documents recording the investigation of the complaints and the s 150 determination; expert reports provided by Dr Gautam Sridhar dated 11 March 2017 and 14 May 2017; prescribing records; clinical notes for Patients A and B; Council codes of conduct and guidelines; and Australian and New Zealand College of Anaesthetists Guidelines on Sedation and/or Analgesia for Diagnostic and interventional Medical, Dental or Surgical Procedures.
2. Dr Gupta relied upon his statement dated 30 April 2018 (ex R1, tab 1), with annexures including a list of courses and seminars undertaken between May 2008 to April 2018, certificates of attendance, and reports by his supervisor to the Dental Council between 26 April 2016 to 15 February 2018. Dr Edward Kosy provided a statement dated 1 May 2018 (ex R1, tab 3) and was cross examined.
3. Dr Gupta had initially proposed to rely on a statement by Dr Mathew Kurian dated 30 April 2018. When it became apparent that Dr Kurian was not available for cross examination, the tender of that statement was withdrawn.
4. Dr Kurian was appointed as Dr Gupta's supervisor pursuant to condition 2 of the conditions imposed in February 2016 under s 150 of the National Law.
5. Dr Kurian was served with a summons to attend the hearing to give evidence on 22 June 2018. On 5 July 2018 he notified the Dental Council that he was withdrawing as Dr Gupta's supervisor. On 6 July 2018 Dr Gupta's lawyers were informed that Dr Kurian was not prepared to give evidence in the proceedings. Further attempts were made during the hearing on 9 July 2018 to have Dr Kurian available, if necessary by telephone. Ultimately the position was that Dr Kurian was not prepared to make himself available on 9 or 10 July 2018, but indicated that he may be available after the school holidays.
6. The Tribunal records its concern that a person appointed as supervisor two years ago under conditions imposed pursuant to s 150 of the National Law has chosen not to make himself available to the Tribunal in hearing and determining the complaints against Dr Gupta, particularly when he has been summonsed to appear. We note that it would have been of assistance to hear direct evidence from Dr Kurian as to his assessment of Dr Gupta's compliance with conditions and his continuing steps to improve his practice. However, having heard Dr Gupta's evidence including under cross examination, and noting that the quarterly and monthly reports provided by Dr Kurian are in evidence, the Tribunal was of the view that little purpose would be served by taking steps to require the attendance of Dr Kurian, including considering the available enforcement provisions of Part 5 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). We were informed at the hearing that Dr Gupta is consulting the Dental Council about appointment of a replacement supervisor.
7. As noted above, these reasons deal with the amendment of the application to include complaints 3 and 4, and our findings on those complaints. Our discussion of the evidence both documentary and oral is limited to those issues.
8. In evidence (ex R1, tab 1, Annexure J) are quarterly reports provided by Dr Kurian to the Dental Council dated 8 June 2016, 9 September 2016, 7 December 2016, March 2017, June 2017, 8 September 2017, 8 December 2017, and 9 March 2018. There are separately typed submissions, some signed by Dr Gupta in addition to Dr Kurian, and notes of monthly meetings numbered 2-24. The monthly meeting notes state the date and time of each meeting, and topics of discussion. All except the final three state the location of the meeting as "The Mattara Hotel Charlestown". The location of meetings 22, 23 and 24 of 21 December 2017, 18 January 2018 and 15 February 2018 is stated to be The Smile Factory Broadmeadow.
9. In his statement dated 30 April 2018 Dr Gupta states (at [61]-[65]) that he has complied with the conditions imposed by the Council and has since had ample opportunity to reflect on the treatment of Patents A and B, his prescribing practices in general, and treatment of children in general. He has enrolled in the Australian Dental Association (ADA) NSW Centre for Professional Development courses including pharmacotherapeutics in dentistry, managing patients with drug allergies and adverse reactions, and paediatric dentition; he has engaged in self study; and he has joined dentistry study groups and has a network of peers on whom he can rely.
10. In oral evidence in chief on 9 July 2018 Dr Gupta stated that a lot of the monthly meetings with Dr Kurian were by telephone rather than face to face; the meeting on 15 February 2018 was in person. He was unable to recall how many of the 24 meetings were in person, stating that initially more were face to face. In cross examination Dr Gupta stated that he received the monthly meeting notes when he received the quarterly reports to the Council, and he has read them over the two years. Dr Gupta accepted that it was wrong to say the meetings were face to face. When asked whether it occurred to him to notify the Council of the inaccuracy, he responded that it did not occur to him. He felt uneasy, however he considered that his supervisor was being helpful, and that, as he has a young family, he thought that meeting by phone would be easier for Dr Kurian, so he let the paperwork be. He confirmed that the content of what was discussed was accurate.

Application for leave to amend to add Complaints 3, 4 and 5

1. On the morning of 10 July 2018 the HCCC sought leave to add Complaints 3, 4 and 5, submitting: 1. The complaints arise from the evidence given on 9 July 2018, and the HCCC was not aware until that evidence was given that Dr Gupta had not met his supervisor in person or that the supervisor's reports were inaccurate; 2. It is important, having regard to the role of the HCCC and the Tribunal under the National Law, in particular having regard to s3A, that there be strict compliance by a practitioner with conditions on his or her registration, and accordingly the amendment is both late and important; 3. The evidence going to the additional complaints is already in, and the only additional evidence from the HCCC may be in the form of compliance policy documents; 4. Procedural fairness would require that the respondent have the opportunity to respond, and the HCCC would not oppose an adjournment if sought or the tender of additional evidence by Dr Gupta; 5. Given the requirement for strict compliance with conditions, if the issue of compliance with conditions arises during the course of the proceedings it needs to be dealt with in those proceedings.
2. Dr Gupta opposed the amendment, submitting: 1. To do so would be a denial of procedural fairness, and in effect convert what in substance has been approached by both parties as a stage 2 hearing into a stage 1 hearing, and introduce stage 1 issues including requiring findings as to whether Dr Gupta is guilty of unsatisfactory professional conduct or professional misconduct into a stage 2 hearing; 2. The additional complaints raise an entirely new case, and if that case is sufficiently important it should be the subject of fresh complaints; 3. The matter has been ongoing for three years causing stress to Dr Gupta, and to bolster the case now would be a denial of procedural fairness; 4. To meet the additional complaints would require further evidence, and the new allegations are not admitted.
3. The Tribunal decided to grant leave to amend the application, for the following three reasons.
4. First, in addition to the general power to amend conferred by s 53 of the NCAT Act, cl 6(2) of Sch 5D to the National Law expressly confers power on the Tribunal to consider additional complaints in proceedings before it. The circumstances in which it is appropriate for the Tribunal to do so are not specified. Section 4 of the National Law requires the Tribunal, in exercising its functions under the National Law, to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. Those objectives relevantly include the protection of the public interest "by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": s 3(2)(a). The protection of the health and safety of the public must be the paramount consideration: s3A National Law. The determination of whether or not to amend the application to deal with the additional complaints must be guided by the s3 objectives and the s 3A obligation. That such an amendment during proceedings may raise issues of procedural fairness is recognised by subclause 6(4), which provides that if an additional complaint is being dealt with an adjournment of the proceedings may be required if it "is just and equitable in the circumstances".
5. In that regard, Dr Gupta has admitted the allegations in the original Complaint 3, and accepts that he is guilty of professional misconduct under section 139E of the National Law. Accordingly, it would be open to the Tribunal to consider suspending or cancelling his registration under s 149C(1) of the National Law. The disciplinary powers of the Tribunal conferred by s 149A of the National Law also include other general powers, including under s 149A(1)(b) the imposition of conditions on registration considered by the Tribunal to be appropriate. The orders sought by the HCCC in its application include orders under ss 149A, 149B and 149C of the National Law. It would be open to the Tribunal in considering the original complaints 1, 2 and 3 to consider imposing conditions under s 149A requiring a further period of supervision and/or restrictions on prescribing as an appropriate protective order, as an alternative to orders under s 149C. In those circumstances the Tribunal was of the view that any concerns as to Dr Gupta's compliance with the conditions imposed in February 2016 under s 150 of the National Law should be resolved.
6. Secondly, the Tribunal was of the view that there is a benefit in having all issues considered and determined in these proceedings, as opposed to the possibility that if the amendment were refused the HCCC could, once these proceedings were finalised, simply initiate fresh investigation and complaint proceedings relating to compliance with the s 150 conditions. To leave unresolved any issues as to Dr Gupta's compliance with conditions imposed under s 150 in order to protect the health and safety of persons, including young children, would not be consistent with the Tribunal's obligations relating to the protection of the public interest reflected in s 3 and 3A of the National Law. Those interests would be better served by dealing with all the issues in these proceedings.
7. Thirdly, the Tribunal was of the view that Dr Gupta's concern as to what was described as converting a stage 2 hearing into stage 1 proceedings, or introducing new stage 1 issues into stage 2 issues, can be met by having regard to the requirements of the National Law. The Tribunal may only exercise any of the disciplinary powers conferred by Subdivision 6 of Part 8 of the National Law in relation to a registered health practitioner if (a) it finds the subject-matter of the complaint proved, or (b) if the practitioner admits to the complaint in writing to the Tribunal: s 149 National Law. Section 149(b) is satisfied in relation to the original complaints 1, 2 and 3 by Dr Gupta's Reply filed 8 May 2018. While evidence has been led relevant to what if any protective orders should be made in relation to those complaints, neither party has made submissions as to what orders should be made, as a stage 2 hearing. The additional complaints are not admitted and require the Tribunal to make findings under s 149(a) of the National Law. Once those findings are made, the parties will have the opportunity to provide any further relevant evidence and make submissions as to the ultimate outcome for all the complaints. The central requirement is that the Tribunal and the parties are clear as to the nature of the task, and that the distinction between the initial finding as to the subject matter of the complaint or complaints, and the appropriate disciplinary orders to be made, is maintained, whether or not both can be properly addressed in the one hearing or require a separate hearing: King v Health Care Complaints Commission [2011] NSWCA 353; Sudath v Health Care Complaints Commission [2012] NSWCA 171.
8. The Tribunal acknowledges that the making of the additional complaints raises issues for procedural fairness, and Dr Gupta is entitled to have a reasonable opportunity to understand and respond to all the issues. As reflected in cl 6(4) of Sch 5, the Tribunal is conscious that the making of the additional complaints may require an adjournment of the proceedings to enable Dr Gupta to consider his position and if necessary lead further evidence. The Tribunal was prepared to allow whatever adjournment was necessary to ensure that that could occur. That was not opposed by the HCCC.
9. The Tribunal informed the parties of the decision to allow the amendment, advising that written reasons would be given for that decision, and reserving costs. The Tribunal discussed with the parties what adjournment might be required.
10. After a short adjournment Dr Gupta's representative advised the Tribunal that he was ready to proceed on a stage 1 hearing of the additional complaints, and would not be calling any further evidence as to those complaints. The Tribunal then proceeded to hear submissions from both parties, and made directions to enable further written submissions to be made.

Additional Complaint Three

1. Additional Complaint 3 is that Dr Gupta "contravened a condition on his registration in that he failed to meet with his supervisor on various occasions between 26 April 2016 and 15 February 2018". Consideration of that complaint requires consideration of what condition 2 imposed on 9 February 2016 actually requires.
2. Condition 2 provides: 2. To practice under the supervision of an experienced registered dentist, who need not be his employer or work at his place of practice, who has been approved by the Dental Council of NSW to act as Dr Gupta's supervisor. The approved supervisor does not need to be physically present at Dr Gupta's place of practice but Dr Gupta must ensure that the supervisor is available for him to consult by telephone as required and to meet with him at least monthly to review his practice in relation to prescribing practices. Dr Gupta is to nominate said supervisor to the Council by COB Friday, 8 January 2016.
3. The HCCC submits that condition 2 imposes two obligations relating to contact with the supervisor. First, Dr Gupta must ensure that his supervisor "is available for him to consult by telephone as required". Secondly, Dr Gupta must "meet with him at least monthly to review his practice…". The latter is a clear expectation that the monthly meeting is in person. While the condition does not specify that the meeting is to be face to face, in the context of the sentence as a whole and the usual meaning of "meet" it requires a face to face meeting. The HCCC submits that the condition is not ambiguous, and that the objective meaning is plain, namely that it required Dr Gupta to engage in face to face meetings with his supervisor. The HCCC relies on the ordinary meaning of the verb "meet", which is defined in the Shorter Oxford English Dictionary (6th ed) to be: "Come accidentally or intentionally into the company of or into personal relations with (a person); come across (a person) in the course of social or business dealings."
4. The HCCC submits that it would be common to speak of having "met" someone online, but only in the sense of becoming acquainted with someone new. Even if there were some subjective ambiguity about the condition, it was incumbent on Dr Gupta to clarify the position with the Council. Dr Gupta's evidence was that not all meetings were in person, and that is a clear breach of the condition.
5. Dr Gupta submits that condition 2 does not in terms require a face to face meeting, and what is required to "meet with" could be achieved by skype, video or telephone. The purpose of the condition is to achieve a substantive outcome, namely the review of Dr Gupta's practice in relation to prescribing practices. It would have been open to the Council to specify that the monthly meeting be in person, and the ambiguity in the condition should be read in favour of the practitioner.
6. As to the evidence, it was not put to Dr Gupta that he understood the meetings had to be face to face and the Tribunal should not form a view that he knew he was in breach of the conditions. The documents recording the monthly meetings were not Dr Gupta's documents and there is no evidence as to how they were prepared.

Findings

1. There was no dispute between the parties, and it is consistent with the authorities, that 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]; Health Care Complaints Commission v Chowdhury (No 2) [2015] NSWCATOD 127 at [20].
2. As discussed in Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 at [110], as a consequence it is essential when conditions are imposed that the requirements which a practitioner must observe should be clear and unambiguous. A condition must be drafted with precision, so that the practitioner understands the obligations placed on her or him, and its compliance capable of objective, not subjective, assessment: Perceval at [133].
3. We agree with Dr Gupta that the second sentence of condition 2 is not drafted in such a way as to make objectively clear and unambiguous the requirements he had to observe. The first part was clear, namely that he had to be able to contact his supervisor by telephone as and when needed for advice. There is no issue with his compliance with that requirement. As to the monthly meetings, Dr Gupta's evidence that he and Dr Kurian discussed the matters as recorded in the notes was not disputed; the issue is with the location of the meetings as recorded in those notes.
4. The term used in the condition is "meet with", and not "meet". The Macquarie Dictionary (on line edition) includes as a meaning of "meet with" "a. to have a meeting with". The noun "meeting" is defined as "a coming together". The condition could have stated that the monthly meetings be face to face. At the time the condition was imposed, no supervisor had been nominated, and had the condition required that the monthly meetings be face to face that may have had an impact on the decision as to who that supervisor was to be, given the location of Dr Gupta's practice. We are not persuaded that the wording used is sufficiently clear that we should find this complaint established to the requisite civil standard.
5. Complaint 3 is not made out.

Additional Complaint Four

1. The particulars of additional Complaint 4 are stated above at [7].
2. The HCCC submits that Dr Gupta was aware that the reports forwarded to the Council on a quarterly basis contained false information as to the location of the monthly meetings, and that he readily admitted that it did not occur to him to notify the Council that the reports contained false information. The HCCC relies on the decision in Health Care Complaints Commission v Mitchell [2015] NSWCATOD 15, where the Tribunal said (at [59]) that the practitioner had a duty to be candid and honest with the supervising authority, the Council. The HCCC submits that even if Dr Gupta did not create the inaccurate record that was sent to the Dental Council, having noticed the inaccuracy it was incumbent on him to correct the record. In allowing an inaccurate record to stand it cannot be said that the respondent has demonstrated the requisite level of candour and honesty with the supervising authority that is required of a medical professional.
3. Dr Gupta submits that this complaint relies in part on a finding that Complaint 3 is made out, because in part it asserts that Dr Gupta failed to meet with his supervisor as stated in the reports. However, Dr Gupta did meet with his supervisor, and the only allegation of falsity is as to location. It was not put to Dr Gupta that he knew of the falsity of the information provided by Dr Kurian. In written submissions Dr Gupta accepts that he has an obligation to ensure that information provided to the Council was materially correct: Health Care Complaints Commission v Dr Il-Song Lee [2011] NSWMT 12. He submits that there is no evidence from either the HCCC or the Council that they, or Dr Gupta, regarded the location of the meeting as in any way material. Further, it is inappropriate to describe the location as "false", which implies that Dr Gupta intended to mislead the Council, and there is no such evidence and that was not put to Dr Gupta. Dr Gupta was not in breach of condition 2, and there is no evidence that he subjectively thought or believed that he was breaching condition 2.

Findings

1. The particulars to Complaint 4 assert that Dr Gupta was aware that reports submitted by the supervisor contained "false information", namely that he had failed to meet with the supervisor "as stated in those reports"; and that he failed to inform the Council "of such false information" and/or raise this with his supervisor.
2. The first issue to note is that the particulars refer to "false" information. As noted in Health Care Complaints Commission v Dr Il-Song Lee [2011] NSWMT 12, in the context of a complaint that the practitioner had made false declarations as to his insurance cover in annual renewal applications: 27The reservation just mentioned concerns the meaning of the word "false" in the complaint. The initial view of the Tribunal was that the word, in the context of the complaint, required a conscious element of deceit. The HCCC submitted that 'false' referred only to the meaning given in the Oxford English Dictionary, namely wrong or erroneous. The Tribunal was referred to the discussion of the High Court in Murphy v Farmer (1988) 165 CLR 19. 28Because of the sanctions that might flow from proof of the complaint there is some basis to argue that the more stringent interpretation should be applied.
3. The Tribunal in that decision proceeded on the basis agreed between the parties that the position taken by the HCCC was correct. That appears to be the position adopted by the HCCC in these proceedings in its written submissions, which refer to an "inaccuracy", being the location and nature of the encounter between Dr Gupta and his supervisor. Whichever meaning is intended, it was not in dispute that it was Dr Kurian, and not Dr Gupta, who prepared the monthly meeting notes and the quarterly report, and in the absence of any evidence from Dr Kurian no finding can be made as to any intention to mislead the Council.
4. It is clear from Dr Gupta's evidence that he was aware that some of the monthly meeting notes did not accurately record the location of the meeting. It was not put to Dr Gupta that his failure to notify the Council that the monthly notes did not accurately record that some of the meetings were by telephone was a deliberate intention to mislead the Council, and there is no evidence that would otherwise support such a finding.
5. The issue is whether he was obliged to inform the Council that some of the monthly meeting notes did not accurately record the location of the meeting.
6. Condition 3 of the conditions imposed under s 150 requires Dr Gupta to authorise the supervisor appointed under condition 2 to provide a record of contact; to ensure that the supervisor provides a report at least every three months; and to authorise the supervisor to inform the Council if the supervisor had any concern about Dr Gupta's professional conduct or personal wellbeing. It does not in terms require him to contribute to the reports by the supervisor, or to notify the Council if he becomes aware of any issue with the supervision, other than the requirement that within 14 days he nominate another supervisor if the approved supervisor is no longer willing or able to continue as supervisor.
7. In Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149 the Tribunal said: 98.It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at paragraph 81.
8. That was a situation where the practitioner had (by deleting text messages) concealed information from, and misrepresented information to, a regulatory authority. Mitchell and Dr Il-Song Lee, and Chowdhury, to which the Tribunal referred in Kesserwani, also concerned a practitioner who had made false declarations to a regulatory authority.
9. The HCCC submits that a lack of honesty and candour can be demonstrated by a failure to act as well as by a positive act. We agree. Dr Gupta was aware of the seriousness of complying with the Council's conditions. He countersigned the notes provided with the June 2016, December 2016, March 2017, September 2017, and December 2017, none of which referred to location. While the records of monthly meetings which record the meeting location (starting with the second meeting in April 2016), are signed only by Dr Kurian, Dr Gupta was aware of the inaccuracy in the records which were presented to the Council. We are satisfied that Dr Gupta was obliged to notify the Council of the inaccuracy as to the location of the meetings. He failed to inform the Council that he did not meet with his supervisor as stated in the reports, that is at the location specified in the reports.
10. The Tribunal is satisfied that the particulars relied upon by the HCCC in Complaint 4 are established. The HCCC contends that Dr Gupta is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law, which provide: (a)Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
11. The relationship between s139B(1)(a) and (l) was considered by the Tribunal in Health Care Complaints Commission v Little [2016] NSWCATOD 146 at [59], where the Tribunal held that s139B(1)(l) is directed to a broader range of conduct than s139B(1)(a), and that conduct can be both "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" and improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. At [68] the Tribunal noted that the words "unethical" and "improper" are not defined in the National Law, and relied on the Macquarie Dictionary which defines "improper" relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and "unethical" as "contrary to moral precept; immoral; 2. in contravention of some code of professional conduct." The Tribunal went on to say: 69.Assistance in determining what is meant by "improper" can also be gained from what the High Court of Australia said of the word "impropriety" in R. v Byrne [1995] 193 CLR 501 at 514-515: see HCCC v Phung (No. 1) [2012] 1 NSWDT at [68]. If conduct, is not in conformity with standards of professional conduct and practice it can be seen as improper.
12. In Health Care Complaints Commission v Liu [2016] NSWCATOD 133, the Tribunal observed that the word "improper" was the subject of discussion by French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7, where the Chief Justice said: … [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".
13. Adopting these principles, the Tribunal is satisfied that in failing to inform the Council of the inaccurate information in the reports, Dr Gupta has not demonstrated the requisite level of candour and honesty with the regulatory authority that is required of a health practitioner. That was a failure of judgment that was not trivial, but substantial, and his conduct fell significantly below the standard expected of a practitioner of equivalent level of training or experience. His conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical. The Tribunal is satisfied that Dr Gupta's conduct amounts to unsatisfactory professional conduct pursuant to s139B(1)(a) and (l) of the National Law, and Complaint 4 is proved.

Conclusion

1. Dr Gupta has admitted the allegations in original Complaint 3, that based on his admissions in relation to Complaints 1 and 2 he is guilty of professional misconduct under s 139E of the National Law. The Tribunal has found that Complaint 4 is established, and that Dr Gupta is guilty of unsatisfactory professional conduct under s139B(1)(a) and (l) of the National Law. The Tribunal is satisfied that while that unsatisfactory professional conduct may not of itself be of a sufficiently serious nature to fall within the definition of "professional misconduct" under s 139E, when considered as a whole his conduct constitutes professional misconduct.
2. The matter is listed for hearing as to what protective orders should be made on 15 October 2018 at 10.00am, a date when the parties and their representatives and the Tribunal members are all available. The Tribunal acknowledges that the timetable for directions for exchange of evidence and submissions is tight, however compliance will ensure that the matter is concluded before the end of the year. The Tribunal notes that it would be assisted by evidence from Dr Gupta's new supervisor if that can be provided.

Orders:

1. The Tribunal orders: 1. Additional Complaint 3 is not established; 2. Additional Complaint 4 is established and the Respondent is guilty of unsatisfactory professional conduct; 3. The Respondent is guilty of professional misconduct; 4. The matter is listed for hearing on 15 October 2018 at 10.00am; 5. The Applicant is to provide to the Tribunal and the Respondent any further evidence and submissions, on or before 21 September 2018; 6. The Respondent is to provide to the Tribunal and the Applicant any further evidence and submissions, on or before 5 October 2018; 7. The Applicant is to provide to the Tribunal and the Respondent any further material in reply, on or before 12 October 2018.

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: 07 September 2018