Health Care Complaints Commission v Haasbroek

Background

1. The following matters, unless noted by us to be an assertion, are accepted by us as facts proved to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34).
2. The practitioner, who is currently aged 51 years, obtained the degrees of MB BS from the Orange Free State University in 1991.
3. The practitioner was first registered in NSW on 8 November 2001. He was previously registered in Queensland in 2007. Undertakings were given by the practitioner to the Board on 19 February 2016 and on 27 March 2018 that he would only practise in places approved by the Board when providing intrapartum care.
4. The practitioner is engaged in private practice as a general practitioner in Leeton NSW. He has practised in Leeton since 2002.
5. The practitioner married his first wife in March 1992. They separated in 2005 and divorced in 2006. There is one child of the marriage, a son. He was aged almost 18 years at the date of the resumed hearing.
6. The practitioner married his second wife (Person A) in 2009. There are three children of that marriage, a son born in 2009, a daughter born in 2010 and another daughter born in 2013.
7. On 15 July 2011, the practitioner was charged with assault occasioning actual bodily harm. The Magistrate found that, during a family dispute, the practitioner had punched a relative by marriage, Person B, with a closed fist. The practitioner was convicted of the charge in the Local Court at Wagga on 29 June 2012.
8. The practitioner lodged an appeal against the Magistrate's decision. His appeal was heard in the District Court of NSW and, on 17 October 2012, Puckeridge ADCJ found the practitioner guilty of the charge, but without proceeding to conviction dismissed the matter pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The practitioner did not notify the Board of his conviction as required under the National Law. The practitioner asserts that he was not aware, at the time, that he was required to do so.
9. In 2012, the practitioner moved to Broome WA. He was subsequently joined by Person A and the children. On 9 December 2012, the police were called to their residence. The police removed Person A and the children to a hotel. Police records disclose that the practitioner rang the police and requested assistance because he said Person A had struck him across the face. Person A is noted in the police records as "the aggressor".
10. In February 2015, following an altercation between Person A and the practitioner, the police were called to the family home in Leeton. On 20 February 2015, a final AVO for the protection of Person A and the eldest two children of the marriage was made against the practitioner in the Local Court at Narrandera for a period of twelve months. The practitioner was not present in court when the order was made.
11. In May 2015, the practitioner moved out of the family home and commenced residing in a rented unit behind his surgery.
12. On 16 June 2015, the practitioner came to the former matrimonial home to spend time with the children. A dispute occurred between the practitioner and Person A. Person A was pushed by the practitioner onto the bed and he swore at her.
13. On 16 June 2015, the practitioner was charged with common assault and contravention of the AVO. On 13 November 2015, the practitioner was convicted in the Local Court, Griffith of common assault, breach of the AVO and intimidation. The presiding Magistrate, in sentencing for the assault charge, placed the practitioner on a good behaviour bond for 12 months, and imposed similar bonds for the other two offences.
14. The practitioner did not notify the Board of the convictions of 13 November 2015 as required under the National Law.
15. The practitioner filed an all grounds appeal in the District Court against the convictions. On 17 March 2016, the practitioner's appeal to the District Court was dismissed by Frearson SC DCJ.
16. On 10 May 2016, following his common assault conviction, the Murrumbidgee Local Health District suspended the practitioner from his position as a visiting medical office (VMO) at the Leeton Hospital.
17. On 10 May 2016, Person A made a report to Police that she had concerns for her safety on the basis that the practitioner would blame her for the loss of his VMO position. On 18 May 2016, a provisional AVO was made for the protection of Person A. Also on 18 May 2016, an interim AVO was made in the Local Court, Griffith for the protection of Person A and the children of the marriage. On that day, Person A signed an agreement that the practitioner could contact her by text message for the purpose of arranging supervised contact to the children and to facilitate telephone contact three times per week.
18. On 30 May 2016, the practitioner sent a text message to Person A. The text message read "forgive me". On 31 May 2016, the practitioner sent a further text message to Person A saying "Sorry that message was intended for your mother". On 2 June 2016, the practitioner was charged with a contravention of the AVO because he sent the text messages.
19. On 2 September 2016, in the Griffith Local Court the practitioner pleaded guilty to the breach of the AVO and was directed to enter into a good behaviour bond for three months. The Magistrate declined, on the evidence before her, to make a final AVO in favour of Person A.
20. The practitioner asserts that he and Person A were divorced on 7 October 2016. He says that they have managed to "develop and maintain a respectful and courteous relationship", that he continues to support their children including by providing financial support for school fees, child support and internet access. He also says he pays $1100 per month for a leased vehicle for Person A.
21. The practitioner asserts that, for approximately 2 years, he and Person A arranged for weekly contact by him with the children without conflict or issues. In April 2018, Person A moved to another NSW rural town and then to north Queensland. The practitioner asserts that he maintains electronic contact with the children on a daily basis.

The relevant law - the general principles applied in disciplinary proceedings under the National Law

1. These disciplinary proceedings are the subject of well-established principles. First and foremost, the Tribunal, in determining the matter before it, must have the health and safety of the public its paramount consideration. The Tribunal must ensure that only those practitioners fit to do so engage in practice (see s 3 and s 3A of the National Law). The HCCC carries the onus of proving the complaint. The complaints made must be established to the Briginshaw standard.
2. The purpose of the proceedings is not to punish the practitioner, but to protect the public. The principles of public protection, of maintaining the standards of the profession, and of deterrence are succinctly explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 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. [footnotes omitted]

The admitted complaints and particulars

1. The first complaint is brought under s 144(a) of the National Law. That provision relates to a complaint that a practitioner has been guilty of a criminal offence or a criminal finding. We set out that provision below. Two particulars are relied upon in respect of this complaint. Both are admitted by the practitioner: 1. The practitioner admits the criminal conviction entered against him in the Wagga Wagga District Court on 17 October 2012. This is the conviction for assaulting Person B. 2. The practitioner admits the criminal conviction entered against him in Griffith Local Court on 2 September 2016 of breaching the AVO by sending the two text messages.
2. Complaint Two is also brought under s 144(a) of the National Law. The practitioner admits each of the particulars of this complaint. In summary, he admits he assaulted Person A, that he breached the AVO, and that he was found to have intimidated Person A.
3. Complaint Three, which asserts that the practitioner is guilty of unsatisfactory professional conduct, is brought under s 139B(1)(b) and (l) of the National Law, on the basis that the practitioner is in breach of s 130(1) of the National Law. The practitioner admits he is guilty of unsatisfactory professional conduct under s 139(1)(b) but not s 139(1)(l) (improper or unethical conduct relating to the practice or purported practice of medicine). We will reproduce those provisions of the National Law later in these reasons.
4. In summary, the practitioner conceded that he had failed to comply with s 130 of the National Law in that he failed, within 7 days of "a relevant event", to notify the Board. The relevant events were his criminal convictions of 16 July 2011, 16 June 2015, 2 June 2016, 13 November 2015 and 2 September 2016. The practitioner admits that this constitutes unsatisfactory professional conduct under s 139B(1)(b).

The disputed complaints

1. The substantial issue in these proceedings is focused on Complaint Four, which is not admitted by the practitioner. Particulars of Complaints One, Two and Three are repeated and relied upon individually and cumulatively (the first limb). In addition, the complaint relies on the "underlying conduct surrounding" the commission of each of the offences" (the second limb).
2. During the hearing, Mr Fernandez withdrew particular 4 of this complaint, appropriately conceding that there was no proper evidence capable of supporting this particular, which asserted a further assault by the practitioner on Person A in February 2015.
3. Mr Fernandez also noted that the asserted events in particular 7 were not established on the evidence, save and except for the fact that on 10 May 2016 Person A requested the police apply for an AVO. It is not a matter of dispute that, although an interim AVO was made, the Magistrate declined to make a final order.
4. As it aids understanding of the issue in dispute, we now set out Complaint Four as ultimately relied on by the HCCC: COMPLAINT FOUR Pursuant to section 144(e) of the National Law the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession. PARTICULARS OF COMPLAINT FOUR 1. The particulars of Complaints One, Two and Three are repeated and relied upon individually and cumulatively. 2. Additionally, the following underlying conduct surrounding the commission of each of the offences is relied upon. Assault Occasioning Actual Bodily Harm occurring on 16 15 July 2011 3. On 15 July 2011, the practitioner punched …Person B with a closed fist in the face during a family dispute and swore at him. Common Assault, Contravention Prohibition or Restriction in an Apprehended Violence Order (Domestic), and Stalk or Intimidate with Intention to Cause Fear of Physical Harm occurring on 16 June 2015 4. (Withdrawn). 5. On 4 February 2015, an Apprehended Violence Order (Domestic) was made against the practitioner naming Person A and their three children as the protected persons. 6. On 16 June 2015, the practitioner was involved in a verbal and physical altercation with Person A at the family home. The practitioner pushed Person A and swore at her repeatedly. The practitioner also damaged Person A's clothes and mobile phone. This altercation occurred in front of the children. Contravene Prohibition or Restriction in an Apprehended Violence Order (Domestic) occurring on 30 and 31 May 2016 7. On 10 May 2016, Person A requested that the police apply for an Apprehended Violence Order (Domestic). 8. On 18 May 2016, an Interim Apprehended Violence Order (Domestic) was made at Griffith Local Court against the practitioner naming Person A and their three children as the protected persons. 9. A condition of the Apprehended Violence Order (Domestic) was that the practitioner was not to contact Person A unless it was for the purposes of arranging supervised contact visits with their children or telephone calls with their children. 10. On 30 May 2016 and 31 May 2016, the practitioner contacted Person A texting her "Forgive me" and "Sorry that message was intended for your mother" in breach of the Apprehended Violence Order (Domestic).
5. The practitioner admits particular 5 (the granting of the AVO on 4 February 2015). He also admits particular 6 (the altercation that occurred at the family home on 16 June 2015, when he pushed Person A, swore at her, and damaged her clothes and mobile phone.
6. The practitioner did not admit particular 7. However, as we have noted, this particular was limited during the hearing to an assertion that, on 10 May 2016, Person A requested the Police to obtain an AVO. The practitioner does admit that, earlier, an interim AVO was made on 18 May 2016, and also admits the terms of the agreement about contact to the children. Further, he admits contacting person A with the two text messages we have set out under "Background".

How should s 144 (e) be interpreted?

1. As earlier noted, Complaint Four is drafted relying on two distinct limbs. For the first limb, reliance is placed on s 130, and s 139B(1)(b) and (l) (being the statutory provisions relied on for Complaints One, Two and Three, which are relied on individually and cumulatively). The second limb relied on by the HCCC is the "underlying conduct surrounding the commission of each of the offences".
2. Section 144 provides as follows: The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
3. Section 130 (1) of the National Law is in the following terms: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board that registered the practitioner or student written notice of the event.
4. A relevant event is defined in s 130(3) and includes a criminal charge for an offence punishable by 12 months imprisonment or more.
5. The HCCC also relies on s 139B(1)(b) and (l). Section 139B(1)(b) provides as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. …

Is a complaint under s 139B(1)(l) available on the evidence?

1. This issue is relevant both to Complaint Three and also to the first limb of Complaint Four.
2. At the commencement of the resumed hearing, three issues arose for determination in these proceedings. The first issue, which is identified in Mr Britt's written submissions, is that, while we could be satisfied that the concession of unsatisfactory professional conduct is established on the admitted complaints under s 139B(1)(b), that it is not established on the alternate basis, namely improper or unethical conduct relating to the practice or purported practice of the practitioner's profession under s 139B(1)(l).
3. At the conclusion of the hearing, Mr Fernandez conceded that the evidence relied on by the HCCC was not capable of establishing unsatisfactory professional conduct under s 139B(1)(l). We accept that that concession was properly made.
4. We find that the practitioner's admissions are properly made, and have no hesitation in finding the practitioner's conduct in failing to report his charges and convictions under s 139B(1)(b) constitutes unsatisfactory professional conduct.

Are both limbs of Complaint Four relevant to establish "not suitable to practice" under s 144(e)?

1. The second issue hinges on the correct interpretation to be given to s 144(e). Mr Britt asserts that s 144(e) means that, while we can find the practitioner is guilty of criminal offences under s 144(a) and that he is guilty of unsatisfactory professional conduct under s 144(b), the establishment of the complaints under those sub-sections does not provide, either individually or cumulatively, proof that the practitioner is not a suitable person to practice. This, he submits, is because of the language of s 144(1)(e). It will be remembered that s 144(1)(e) is framed as follows: A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession [our emphasis]
2. The third issue is inextricably linked with the first. If the criminal convictions, and the failure to report those convictions, cannot be relied on to establish a complaint under s 144(e), can the "underlying conduct surrounding the commission of each of the offences" ground findings that the practitioner is unsuitable to hold registration?
3. If the admitted conduct does not establish unsuitability for registration, what protective orders are appropriate? We observe that the HCCC does not assert that the practitioner is guilty of professional misconduct.

Is the first limb of Complaint Four available to establish a complaint under s 144(e)?

1. Mr Britt submitted at par 58 as follows: The use of the expression "or otherwise" in s 144 means that the suitable person complaint is intended to apply to circumstances not covered by the other four sub-paragraphs of s 144. Such an interpretation is consistent with the jurisprudence developed by the Tribunal.
2. Mr Britt then refers to the decisions of the Tribunal in Health Care Complaints Commission v Parsons [2014] NSWCATOD 97 at [73]-[74], Health Care Complaints Commission v Marquinez [2014] NSWCATOD 125 at [66], Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 at [164] and Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [60]. In the latter case, the Tribunal explained at [60]-[63] as follows: It will be observed that Complaint Four in its terms purports to be made under paragraph (e). This paragraph follows on a series of paragraphs (a) to (d) all of which describe certain particular matters. Indeed, the matters referred to in paragraph (b) has been specifically referred to in the Complaint. Unlike the other paragraphs, paragraph (e) contains the word "otherwise." This word must convey its ordinary dictionary meaning, namely "in other respects", and where used indicates a category to which the preceding adverb does not apply. That is, for the purpose of section 144, the suitability of the person to hold registration must be ascertained by reference to matters which are not covered by the preceding paragraphs. Although we apprehend that the provisions of paragraph (a) have not been relied upon in connection with any of the Complaints One to Three, we need to consider whether the matter referred to in paragraph (a) is excluded in considering the application of paragraph (e) because although the Respondent was not convicted of the offence of possession of .58g of cocaine, there was a finding that the offence was proven. In written submissions the Complainant stated that in establishing the above particular, it did not rely on the fact that the Respondent had been made the subject of a criminal finding for an offence, but it relied "on the actual conduct of the Respondent on 16 December 2014." There is evidence about this matter which exists independently of any finding made in the course of the criminal proceedings. The Respondent admitted in evidence before us that he had been given .58g of cocaine by a patient, which was in his possession when apprehended by the police. He gave evidence concerning the circumstances in which he had been given the cocaine which was in conflict with versions given on other occasions. There is no doubt that the cocaine was in his possession, nor is there any doubt that this constituted conduct which was not consistent with the community's expectations of the standard of conduct of a dentist. It matters not whether the cocaine was being held for someone else or for his own possible consumption. Possession of the cocaine was unlawful, and a serious matter. We conclude by reference to this matter alone that the respondent is not a suitable person for registration as a dentist. ... The Respondent complained in written submissions that he was in fact being punished twice for the same conduct. We reject this submission It is well-established that conduct can concurrently give rise to both criminal proceedings and involve considerations of misconduct in the practice of a health profession. …
3. We agree with and adopt the reasoning in Heath Care Complaints Commission v Simpson. Although the drafting of the second limb of Complaint Four is somewhat obtuse, referring to "conduct surrounding the commission of each offence", we discern that the HCCC seeks to rely on the actions of the practitioner that led to the criminal charges against him, and his ignorance of the necessity to notify the Board when charged.

Discussion and conclusions

1. We agree with the interpretation of s 144(e), adopted in the cases cited in Mr Britt's submissions. On a plain reading, the words "or otherwise" must denote something other than the types of conduct or circumstances set out in s 144(a) to (d). We agree that the admissions of the criminal offences themselves are only relevant to s 144(a), and that the admission of unsatisfactory professional conduct is only relevant to s 144(b). However, it appears to us that s 144(e) may be established on evidence of the underlying conduct that led to the criminal charges and convictions. The factual circumstances of events which ground a criminal conviction or finding may, depending on their gravity, if established to the requisite standard, constitute a separate and distinct complaint to the admitted complaints brought under s 144(a) and (b). In other words, those circumstances, of themselves, may otherwise render a practitioner unsuitable for registration.

Do the underlying circumstances support a conclusion that the practitioner is not suitable to be registered?

1. We commence our discussion of this topic by examining the particulars relied on in support of the second limb.
2. The matters of "underlying conduct" relied on are: 1. Assault Occasioning Actual Bodily Harm occurring on 15 July 2011 2. Particular 3 3. That on 15 July 2011 the practitioner punched Person B with a closed fist in the face during a family dispute and swore at him. (This particular is admitted) 4. Common Assault, Contravention, Prohibition or Restriction in an Apprehended Violence Order (Domestic) and stalk or intimidate to Cause Fear of Physical Harm occurring on 16 June 2015 5. Particular 5 6. That on 4 February an Apprehended Violence Order (Domestic) was made against the practitioner naming Person A and their three children as the protected person. (This particular is admitted) 7. Particular 6 8. That on 16 June 2015 the practitioner was involved in a verbal and physical altercation with Person A at the family home. The practitioner pushed Person A and swore at her repeatedly. The practitioner also damaged Person A's clothes and mobile phone. (This particular is admitted) 9. Contravene Prohibition or Restriction in an Apprehended Violence Order (Domestic) occurring on 30 and 31 May 2016 10. Particular 7 (as amended) 11. On 10 May 2016 Person A requested that the police apply for an Apprehended Violence Order (Domestic). (The practitioner did not admit this particular in the form originally pleaded) 12. Particular 8 13. On 18 May 2016 an Interim Apprehended Violence Order (Domestic) was made at the Local Court, Griffith against the practitioner naming Person A and their three children as the protected persons. (This particular is admitted) 14. Particular 9 15. A condition of the Apprehended Violence Order (Domestic) was that the practitioner was not to contact Person A unless it was for the purposes of arranging supervised contact visits with their children or telephone calls with their children. (The practitioner admits this particular) 16. Particular 10 17. On 30 May 2016 and 31 May 2016 the practitioner contacted Person A texting her "Forgive me" and "Sorry that message was intended for your mother" in breach of the Apprehended Violence Order (Domestic). (This particular is admitted)

Are all the particulars relied on in support of the second limb available?

Mr Britt's submissions

1. At par 64 of Mr Britt's submissions, it is conceded that some of the matters set out in particulars 3 to 10 (and noting particular 4 has been abandoned) could be relied on by the Tribunal to support the second limb of Complaint Four.
2. We agree with Mr Britt that particular 5, which states that an AVO was made, says nothing about the underlying conduct, particularly in circumstances where the order was not contested, and contains no allegations against the respondent.
3. We further agree with Mr Britt that, given the HCCC did not rely on the first sentence of particular 7, save for the date, it does not form an evidentiary basis for a finding that the practitioner is unsuitable to be registered. We also agree with Mr Britt's submissions about the Interim AVO, referred to in Particular 8. This is where, at the final hearing, the court found insufficient evidence to make a final AVO. We find that particular 8 has little or no relevance to the second limb. We also agree that the breach of the AVO, found by the Magistrate in respect of the text messages and particularised in particular 10, is explicable and at the lower end of possible breaches.
4. Thus, the evidence available to support a finding under s 144(e) is in a somewhat different category to the underlying evidence before the Tribunal in Health Care Complaints Commission v Simpson, where a conviction had not been recorded.

The practitioner's evidence

1. The practitioner's sworn evidence is that each of the criminal convictions and the circumstances surrounding these convictions arose entirely out of his toxic relationship with Person A. He explains at par 34 of his affidavit affirmed on 14 August 2018 that: Sadly, our relationship was difficult. We sought to maintain the relationship when perhaps we should have ended it sooner. Neither of us had the ability or skills to resolve issues between us as they arose.
2. The practitioner refers to the circumstances of the July 2011 incident involving Person B. He relates that two of Person A's relatives (including Person B) attended his home at about 10pm and attempted to force their way inside. In a letter to the HCCC, dated 18 November 2016, the practitioner explains that this incident occurred in circumstances where earlier in the evening he had asked his sister in law to leave his house. He asserts that Person B was inebriated and abusive. He further asserts that a scuffle occurred and "punches were thrown both ways. Unfortunately, and to my dismay I have cut his lip". He goes on to note: Apart from this event, until 2012 I have never been involved in any violence whatsoever and I generally find such behaviour abhorrent. Likewise, I abhor perpetrators of domestic abuse and in my practice on almost a weekly basis I counsel mostly women, but also a lot of men, who are caught up in emotionally, financially or physically abusive relationships.
3. In the same letter, the practitioner refers to the circumstances where he first verbally abused Person A and later assaulted her. He says that, before he was dressed and went to get his clothes off the bed, Person A "grabbed his pants and ran out the front door and threw them on the wet lawn". After the practitioner retrieved his pants and continued dressing he asserts that Person A screamed at him to leave or that she would call the Police. He says she then grabbed his shirt by the buttons, and fearing that she would rip the buttons off, he pushed her away and she fell backwards on the bed. We pause to note that the practitioner conceded in cross-examination that Person A was much smaller than him and only weighed approximately 43kg.
4. In both his letter to the HCCC and his affidavit, the practitioner expresses remorse for his actions, and explains that he had sought help from a clinical psychologist. In his affidavit at par 21 he says: I should not have engaged in a heated argument and most certainly should never have touched or pushed [Person A].
5. The practitioner also explains that he sent the text message to Person A in error and that the text was intended for her mother.

Other evidence relied on by the practitioner

1. The practitioner relied on an affidavit by his eldest son and from his first wife. Neither deponent was required for cross-examination. The practitioner's first wife reports that, during their fourteen and a half year relationship, the practitioner was "never violent or physical to me". She records that after their divorce they have maintained a respectful relationship. The practitioner's first wife relates some incidents relating to Person A exhibiting aggressive behaviour to her.
2. The practitioner's son affirmed an affidavit on an unspecified date in August 2018. He deposes that, when Person A came to Western Australia, he witnessed her strike the practitioner several times. He deposes that the practitioner did not retaliate, but rather left the room. He records that Person A was angry and was removed from the home by the police. The practitioner's son has not lived with the parties since about age 12 when he was enrolled in a boarding school in North Queensland.
3. The practitioner was extensively cross-examined about events surrounding the criminal convictions. He readily conceded the altercation with Person B, acknowledged that punches were thrown, and that Person B's lip was cut. He did not admit to punching person B with a closed fist, although this was a finding made by the presiding Magistrate at the criminal trial. The practitioner readily and fulsomely acknowledged the derogatory and foul language he directed to Person A in 2015, and explained that he had personally apologised to her for his behaviour. He said that to describe the relationship between himself and Person A as "toxic" was an apt description.
4. The practitioner also denied that he had relied on the affidavits of his former wife and their son to denigrate Person A; rather, he explained that he relied on the material by way of background. He explained that, while he found it difficult to live with Person A, he had gone back to live with her on his return from Western Australia because he loved her, wanted the marriage to work, and to maintain his relationship with their then two children.

The practitioner's expert evidence

1. The practitioner relied on reports of Mr Michael Gilmore, psychologist, dated 19 November 2016 addressed to the Medical Council, a report dated 20 June 2016 also provided to the Medical Council, and a report dated 29 June 2018 addressed to the Tribunal.
2. Mr Gilmore recorded in his report dated 20 June 2016 that he commenced seeing the practitioner in 2012 and had seen him on ten occasions that year. He saw him twice in 2013, five times in 2015, and on four occasions in 2016.
3. Mr Gilmore noted that the practitioner's primary presenting concern in 2012 was the "significant strain" in his relationship with Person A. He opined that the practitioner's self-reports indicated a "passive response style" to verbal, emotional and physical abuse directed to him by Person A, resulting in him "bottling up" his emotions. Mr Gilmore reported that he discussed with the practitioner assertive communication skills, anger management skills, and a safety response plan.
4. In his report, Mr Gilmore explained that he had, in 2013, discussed with the practitioner the high risk in which he was placing himself if he returned to the family home in Leeton. He said that it appeared that the practitioner had reverted to his former passive cognitive behavioural response in his interactions with Person A, and this had, it appeared, resulted in him losing control of his anger and then expressing his anger and frustration towards Person A in an inappropriate manner.
5. In the summary to his report, dated 19 November 2016, Mr Gilmore opined: In summary [the practitioner] presents as an emotionally and psychologically stable individual who continues to practice as a Medical Practitioner in Leeton and Narrandera New South Wales. In the writer's opinion [the practitioner] does not present as a risk to [Person A] and the probability of [the practitioner] repeating any inappropriate behaviour towards [Person A] in the future is in the writer's opinion, nil.
6. In his report, dated 29 June 2018, Mr Gilmore recorded that the practitioner had consulted him in Leeton on 22 December 2017 and his last consultation was by telephone on 26 June 2018. We note that Mr Gilmore practises in Wagga Wagga, making face to face appointments difficult, in light of the practitioner's practice commitments. Mr Gilmore noted that the practitioner reported that Person A had relocated, without the practitioner's prior knowledge, but that he had daily telephone contact with the children, whom he misses.
7. Mr Gilmore in this report opined: …[the practitioner] is currently a mentally stable, highly regarded health professional in the Leeton community and his is fit to continue practising as a Medical Practitioner. It is also the writer's opinion that [the practitioner] does not present as a risk to his patients or [Person A] and their three biological children.
8. Mr Gilmore gave evidence by telephone and was cross-examined by Mr Fernandez for the HCCC. He conceded that his statement, that the practitioner had a "nil" risk of re-offending, should be changed and he would prefer to describe the risk as "extremely low".
9. Mr Gilmore also conceded that he had not carried out psychological testing of the practitioner but had relied on self-reports. However, he explained he had 20 years of professional practice, that the practitioner's routine demonstrated a commitment to the Leeton community, and that many clients the practitioner had referred to him had spoken very highly of the practitioner. Mr Gilmore acknowledged that he has a professional relationship with the practitioner but denied a personal relationship.

Discussion and conclusions on the second limb of Complaint Four

Do the factual circumstances of the offences render the practitioner unsuitable to hold registration?

1. The first underlying factual matter relied on under s 144(e) relates to the most unfortunate incident that occurred in 2012, when Person B and another person came to the practitioner's home at 10pm, following an earlier family disagreement. The practitioner had no previous criminal offences, and while not in any way condoning the manner in which the practitioner conducted himself, the altercation was not one sided. On appeal, no conviction was recorded against the practitioner. The underlying circumstances relating to this matter do not, in our judgment, constitute conduct that would render the practitioner unsuitable to hold registration. In reaching this conclusion, we note the factors set out under s 55 of the National Law dealing with suitability for registration as follows: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - … (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or (c) the individual has previously been registered under a relevant law and h) in the Board's opinion, the individual is for any other reason - (i) not a fit and proper person for general registration in the profession; or (ii) unable to practise the profession competently and safely. (2) In this section - relevant law means - (a) this Law or a corresponding prior Act; or (b) the law of another jurisdiction, whether in Australia or elsewhere.
2. We turn then to the facts set out in particular 6 (the assault on Person A on 16 June 2015). The practitioner's conduct was wrong. He directed foul and derogatory language to Person A. He inappropriately pushed her, causing injury to her throat. Her clothing was damaged as was her mobile phone. The practitioner should have been aware of the physical imbalance between himself and Person A. The practitioner acknowledged that Person A is a small woman, who weighed only approximately 43 kg, and who was half his size.
3. The practitioner's conduct is of the kind which could be found to render him unsuitable to practice. Violence, particularly against women, in a domestic situation is well recognised in the Australian community as abhorrent, but tragically it continues to occur. We adopt as cogent the press statement on the release of the "Women's safety package Stop the Violence measure", announced by the then Prime Minister, the Hon Malcolm Turnbull MP, on 24 September 2015, which was the subject of a press release, made on that day by him and other relevant Ministers, which stated: Women and children in Australia have the right to feel safe and live without fear of violence. Yet, one in six Australian women has experienced violence from a current or former partner, and 63 women have been killed so far this year. For Indigenous women the situation is even worse - they are 34 times more likely to be hospitalised as a result of family violence. In recent weeks, we have seen yet again the devastating impact that domestic and family violence has on our community. The tragic and avoidable deaths of women and their children at the hands of current or former partners or family members highlight the need for urgent action. We must elevate this issue to our national consciousness, and make it clear that domestic, family or sexual violence is unacceptable in any circumstances.(our emphasis).
4. We turn to consider whether this regrettable and inappropriate response of the practitioner in 2015 to Person A presently renders him an unsuitable person to practice medicine.
5. We accept that the practitioner is genuinely remorseful for his conduct, and that he has reflected on the reasons of Judge Frearson SC in rejecting his all grounds appeal against his conviction and sentence. We find he has insight and understands his failings. We also accept his evidence that he has personally apologised to Person A, and that they are now separated, ending what has aptly been described as a toxic relationship. They have managed arrangements for the children to spend time with the practitioner. Since 2015, the practitioner has sought professional assistance to manage his behaviour. We accept Mr Gilmore's professional opinion that the risk that the practitioner will offend again is low.
6. We do not place any significant weight on the breach of the AVO in 2016, having regard to the nature of the text messages. We accept that they were sent by mistake. Nor do we find there was any deliberate or reckless conduct by the practitioner in failing to notify the Board of his criminal charges and convictions.
7. In these circumstances, we are not satisfied that the practitioner is currently unsuitable to hold registration. In reaching this finding, we have also taken into account the references provided by the practitioner, particularly that provided the Mayor of Leeton Shire Council, attesting to the practitioner's service to the Leeton community; albeit that this reference is dated 8 September 2016.

Appropriate protective orders

1. We are conscious that our orders must first and foremost be designed to protect the health and safety of the public. No element of risk to the general public requires consideration in this case. There is no complaint before us that the practitioner has been other than a diligent and dedicated practitioner who has served the Leeton community well since 2002.
2. Our orders, however, must also uphold the standards of members of the medical profession to ensure that they continue to be held in high regard by their patients, the public generally, and other professionals. This means practitioners must act, both personally and professionally, with integrity and with respect for the law, in all aspects of their behaviour. General practitioners are frequently the first point of contact for victims of domestic violence. The public can only have confidence in such practitioners if the response of those practitioners to domestic violence, both personally and publicly, is exemplary.
3. Our orders must also have an element of deterrence, so that other practitioners will be aware of the consequences of inappropriate behaviour in both their professional and personal lives.
4. We are satisfied, in this matter, that the appropriate order is that the practitioner be strongly reprimanded for his reprehensible personal conduct, which fell far short of the standard expected of a practitioner of his experience. That reprimand will be recorded on the practitioner's registration, which is accessible to the public on the Australian Health Practitioner Regulation Agency's web-site.

Costs

1. As requested by the practitioner's counsel, we agreed that the question of costs should be deferred until publication of our decision. We note that the parties agreed that the issue of costs could be dealt with "on the papers". In our orders, we have set out a timetable for the filing of writing submissions on costs.
2. We take this opportunity to note the provisions of cl 13 of Schedule 5D of the National Law and the well-known principles enunciated in decisions such as Health Care Complaints Commission v Philipiah [2013] NSWCA 342.

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: 31 October 2018