Health Care Complaints Commission v Hulst

NATURE OF THE JURISDICTION

1. The nature of the jurisdiction of the Tribunal is not to punish the Respondent but to protect the public and maintain proper standards in the profession of chiropractic.
2. In Clyne v New South Wales Bar Association [1960] HCA 40 at 201‑202, the High Court said: "Although it is sometimes referred to as the 'penalty of disbarment' it must be emphasised that a disbarring order is in no sense punitive in character. When such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to a loss of privilege."
3. As observed by Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]: "The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards ... of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards, be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted."
4. In determining the appropriate orders to be made, the paramount consideration for the Tribunal is the protection of the health and safety of the public pursuant to s 3A of the National Law.

APPLICANT'S OPENING

1. The Applicant tendered a bundle of documents containing 50 tabs. The Applicant advised the Tribunal that in light of the admissions made by the Respondent and the conviction against the Respondent which took place in the Cooma Local Court on 8 August 2018, that the Applicant would not be calling any witnesses and would rely on the documents provided to the Tribunal. The Applicant then closed its case and indicated written submissions would be provided to the Tribunal.

RESPONDENT'S OPENING

1. The Respondent opened its case and tendered a bundle of documents with 11 tabs plus an additional 3 documents. The Respondent was called to give evidence before the Tribunal. On questioning by his counsel, the Respondent indicated that he stood by the documentation provided to the Tribunal and confirmed that it was true and correct.
2. The Respondent was cross examined by the Applicant. Questioning of the Respondent went at some length to the process which was followed by the Respondent in respect of the supply of the Dexamphetamine to two young women who he met in a bar in or around 12 July 2017. The Respondent confirmed that the supply arose from his being asked whether he was in a position to provide the two women with MDMA drugs. At that point, the Respondent indicated that he did not have any MDMA but that he might be able to source some for them from a friend. He indicated that he had no connection with any person who could supply the MDMA but indicated that he would try to get it from a friend. He said he made this offer in order to impress the women and gave them his telephone number in order for them to call him.
3. Following meeting with them on 12 July 2017, he received a call the following day and then informed them that he could not source MDMA but that he was able to provide Dexamphetamine from his own prescription. They asked him to provide the Dexamphetamine and he provided the Dexamphetamine on the following dates, on each occasion following a call from them requesting: 1. 1.19 grams of Dexamphetamine on 13 July 2017 (6 tablets); 2. 2 grams of Dexamphetamine on 28 July 2017 (10 tablets); 3. 0.99 grams of Dexamphetamine on 29 July 2017 (5 tablets); 4. 0.99 grams of Dexamphetamine on 3 August 2017 (5 tablets).
4. He indicated that he had never intended to sell the tablets but was trying to ingratiate himself with these women by providing the tablets. However, on the first occasion he was offered money for the tablets and said that he would accept $10.00 per tablet.
5. In his evidence, he was asked whether the motivating factor was money to which he replied that it was not initially his motivating factor but after receiving some money, it became something of a motivating factor but not a serious one.
6. Those were the only transactions that he was involved in which ended on 3 August 2017 and no transaction subsequently took place prior to his arrest on 16 September 2017.
7. At the time of these transactions, he confirmed that he had no idea that the women that he was dealing with were known to the police.
8. Prior to these transactions he had been taking Dexamphetamine prescribed to him by his psychiatrist, Dr Green, for ADHD while he was studying and in addition at times when he was needing to do CPD due to a diagnosed lack of ability to concentrate. He then made a decision to stop taking the Dexamphetamine and to control his lack of concentration through diet, exercise, meditation and other natural means. He was asked whether the fact that he had stopped taking the Dexamphetamine would have an effect on his risk management to which he replied that he had done research and had discovered that Dexamphetamine is not a drug used for risk management. He has become more aware of the requirement to manage risk more smartly and that the Dexamphetamine would not have helped that in any way.
9. On re‑examination, he was asked, having described the situation in which he became involved as devastating, to explain to whom that was devastating. He stated that it was devastating to his family, to his boss and her practice and the profession of chiropractic itself. He advised the Tribunal that it was for that reason that as soon as he was arrested he stood down from his employment, having advised his family and his boss of his arrest and the circumstances of it.
10. He was asked whether he understood how the supply of drugs (Dexamphetamine) might affect the community more broadly, and indicated that he knew that it was seriously damaging and it can depend on the health of the person, their condition and circumstances as to how devastating that might be.
11. He gave evidence of all steps which he had taken since he stood down from his employment and was subsequently suspended by the Chiropractic Council.
12. He described his attendance at the Smart Program. The Smart Australia Program is a program for recovery from drug and alcohol abuse which he attended on five occasions. In explanation, the program is attended by two psychologists and others that come in to talk and people who need help to talk about their addiction and what they have been doing during the previous week. He went there because it was recommended by his lawyer who represented him at the criminal trial.
13. He was asked about his conduct now in relation to psychological help and he confirmed that he has engaged with Dr Kerry Juknais and has seen her once already about three months ago. He intends to continue seeing a psychologist or psychiatrist to assist him and ensure that he is doing everything he can to avoid a repeat of this type of activity.
14. Since ceasing to work as a chiropractor, he has worked in a restaurant and, more recently, with a friend who runs a signwriting business to which he has adapted very well and has been promoted internally in that business.
15. In addition, the Respondent gave evidence of the various CPD requirements with which he had complied and evidence of urinalysis tests undertaken in July 2018 and again in November 2019 which showed negative results.
16. The Tribunal had various questions which they put to the Respondent and the upshot of those questions and responses will be dealt with in the Reasons for the Decision below.
17. With that the Respondent closed its case.

CLOSING SUBMISSIONS BY THE APPLICANT

1. The Applicant provided a set of written submissions as well as a Proposed Agreed Orders and Conditions to be imposed on the Respondent. In summary, the Applicant sought an order that the Respondent be reprimanded, that he engage with a mentor for a period of 12 months and that he consult his psychiatrist at a frequency to be determined by his psychiatrist for a period of 12 months. In addition, the Applicant sought an order for costs in the sum of $5,000.00. The Applicant accepted that s 149 of the National Law provides that: The Tribunal may exercise any power conferred upon 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. Accordingly, the Applicant submitted that, as the Respondent has admitted the entire complaint in his reply, the Tribunal is empowered to move straight to the matter of protective orders. Nevertheless, the Commission seeks a finding on the complaint and particular protective orders and bears the onus of proving its complaint so proof of the complaint will be discussed.
3. The Applicant referred to the fact that on 8 August 2018 the Respondent was convicted in Cooma Local Court of three offences of supplying a prohibited drug. The Court orders recording the conviction and sentences were provided in the papers.
4. On 8 August 2018, the Respondent was notified of his convictions and guilty finding and the Respondent emailed the Applicant of his convictions. On 10 August 2018, the Applicant forwarded this to AHPRA who noted that the Respondent had not complied with s 130 of the National Law in that he had not notified them. The Respondent acknowledged that he had only notified the convictions to AHPRA on 17 October 2018. (He had explained that he thought that it was sufficient to notify the Applicant.)
5. The Applicant submitted that the complaints should be found proved on the available evidence. The conduct underlying Complaint Two and the conduct of Complaint One is automatically a finding of unsatisfactory professional conduct under the National Law.
6. In respect of protective orders, the Applicant submitted: 1. Dr Hulst is a chiropractor (aged 28 years old) who in July/August 2017 illegally supplied dexamphetamine tablets to two persons engaged by NSW police, on four occasions. He pleaded guilty and was convicted of three of those offences on 8 August 2018. He was sentenced to a good behaviour bond on conditions for 9 months. 2. In 2012 he was diagnosed with ADHD and began taking dexamphetamine until the time of his arrest. He has no psychological conditions. He has always worked in Jindabyne since graduating and that is where the offences occurred. 3. In this case because of the nature of the complaints the Tribunal is limited to making orders under s 149A(1) and s 149B. The circumstances of the criminal conviction do not warrant the orders under s 149E and the Applicant has not alleged that the conduct in Complaint Two is capable of amounting to professional misconduct. 4. When considering the protective orders in this matter the Applicant submits that the Tribunal should have regard to the following in Dr Hulst's favour: 1. His early admissions and guilty pleas; 2. His remorse and contrition; 3. His rehabilitative steps; 4. Dr Hulst immediately informed his chiropractic employer and was honest with her about his convictions. He voluntarily resigned from this employment to avoid putting his employer in a difficult situation regarding any media impact; 5. That he notified the Applicant of his convictions erroneously instead of notifying AHPRA; 6. He has engaged in and completed the SMART recovery program; 7. He completed an ethical decision making course to "bolster [his] understanding in how to be a more resilient and ethical health practitioner"; and 8. He has the support of his previous chiropractic employer. 1. The Commission submits that the protective orders sought by the Commission are appropriate for the following reasons: 1. Dr Hulst's conduct was criminal in nature and a failure on his part to uphold the reputation and standards of the profession and public health; 2. Dr Hulst's actions were done with purely self-interested motives; 3. Dr Hulst's conduct at the time he acted was voluntary and he was not coerced or forced into selling his prescription medication; 4. Dr Hulst knew that his actions were improper and illegal; 5. Dr Hulst did not know the medical history of the people he was supplying to and whether the drugs would result in their harm or whether they would be sold elsewhere. He took no steps to verify this information; 6. Dr Hulst's conduct occurred on four separate occasions; 7. There is no good evidence that Dr Hulst would have stopped had he not been arrested; 8. Dr Hulst's psychologist and psychiatrist note that ADHD diagnosed individuals are often easily manipulated due to their suggestibility. Dr Hulst appears to have supplied most of his medication to the police officers over the four week period of the offences. His psychiatrist who commenced him on medication reported in June 2018 that "In my opinion Dr Hulst suffers [ADHD] of moderate severity. He appeared to have a positive response to regular medication"; 9. Dr Hulst's psychologist concludes that he may benefit from some "further psychoeducation around his neurodevelopment condition for both himself and his social and familial supports". She also notes that Dr Hulst described to her "symptoms of restlessness/impulsivity through his choices of sports and stimulation seeking activities, suggesting that his ability to properly consider decisions can be compromised at times. It is likely that Mr Hulst has not yet encountered such a situation and learned the impact of his condition on more than just his study habits"; 10. Dr Hulst requires monitoring from his psychiatrist at least twice in the following year to ascertain the impact of Dr Hulst's unilateral decision to cease his medication on his health and his condition. 1. The Commission submits that a reprimand is appropriate to censure Dr Hulst's behaviour to the profession and the public in accordance with the principles in Health Care Complaints Commission v Do [2014] NSWCA 307. 2. The Commission submits that a brief period of professional mentoring would be appropriate for Dr Hulst given Dr Hulst's recent entry into the profession with a focus on ethics and professionalism. 3. The Commission submits that a brief period of review by his psychiatrist would be appropriate given the comments of Dr HuIst's psychologist as to future risk, not necessarily of the same behaviour (which there is minimal risk of repetition). 4. Dr Hulst consents to the conditions sought by the Commission. Costs 1. The Applicant applies under Sch 5D, cl 13(3A) for an order that Dr Hulst pay its costs in the amount of $5,000. The respondent agrees to this order. 2. In this case the Applicant has conducted itself in a proper manner such that a costs order in its favour should be made. Even though a respondent may fully cooperate in proceedings and the investigation conducted by the Applicant, the authorities clearly indicate that, of itself, does not provide a proper basis to depart from the usual rule, that is, costs follow the event: Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [99].

CLOSING SUBMISSIONS BY THE RESPONDENT

1. The Respondent's closing submissions were short and were given orally. The Respondent submitted that the approach adopted by the Applicant was fair and appropriate and in respect of the Applicant's submissions at paragraph 30(5)(f), 30(5)(g) and 30(5)(i), the Respondent points out that although the behaviour occurred on four separate occasions, it was a very short period of time and that this was not only taken into account by the Magistrate in the criminal trial but should be taken into account by the Tribunal.
2. In respect of sub‑paragraph 30(5)(j), the Applicant stated that there is no good evidence that the Respondent would have stopped had he not been arrested. The Respondent submitted that there is in fact no evidence that he would have continued. On the evidence given by the Respondent he had decided not to continue.
3. In respect of sub‑paragraph 30(5)(i), the reality of the situation is that it was only one instance of behaviour. Even though there were four separate occasions, the timeframe was very short and there is no evidence of any other risk‑taking behaviour.
4. The Respondent finally submitted that the Respondent acted very responsibly by resigning immediately from chiropractic to protect the practice by which he was employed and the profession in general as he knew this would become public knowledge once a charge was brought.
5. The Respondent submitted that the employer holds him in high regard with full knowledge of the complaint and behaviour and that this fact should be taken into consideration.
6. The Respondent submitted that the medical evidence provided pre‑sentencing which was available to the Tribunal and was detailed in its analysis, indicated that the psychologist did not believe that the Respondent constitutes a danger to the public even though it stated that some attention should be given by a psychologist or psychiatrist to assist him in understanding his behaviour.
7. With that the case was closed and the decision of the Tribunal was reserved.

DECISIONS AND REASONS

1. Having read the evidence contained in the exhibits provided to the Tribunal and having heard the evidence of the Respondent, the Tribunal is comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct.
2. The Tribunal is satisfied that the central issue in this case is whether the Respondent should be entitled to continue practising as a chiropractor and what disciplinary action would be appropriate in the particular circumstances of this matter.
3. In considering appropriate disciplinary findings, the Tribunal had regard to a number of factors. These included the expert evidence provided to the Tribunal in respect of the Respondent's behaviour, the transcript of the trial before the Criminal Court and the decision of the Magistrate on 8 August 2018, the evidence given by the Respondent in respect of his behaviour, the complaints against him, his actions since the arrest and charge was brought against him and the Tribunal's view of the Respondent as he stood before them on the day of the Tribunal hearing.
4. It is trite that the Tribunal must have regard, in respect of disciplinary findings not to the Respondent's position on the date on which the offences took place, but the view of the Tribunal of the Respondent at the time of the hearing.
5. Having regard to all of the information available to the Tribunal and having regard to the fact that the Respondent in the giving of his evidence and in the actions which he has taken since the charge was brought against him, does not constitute a risk either to an individual patient or to the profession at large and the Tribunal is comfortably satisfied that the Respondent has understood the failing in his professional behaviour and that it will not occur again in the future.
6. The Respondent demonstrated contrition and regret for all the problems that he had created as a result of his "silly" behaviour.
7. As is well known and as was conceded by both the Applicant's counsel and the Respondent's counsel, the Tribunal is not bound by Agreed Orders and Conditions but the Tribunal accepts that it is entitled to look to those Agreed Orders and Conditions to determine what it believes are appropriate orders.
8. In light of the view taken by the Tribunal regarding the current state of the Respondent as a professional chiropractor, the Tribunal believes that the bulk of the orders and conditions proposed by the Applicant and the Respondent should be accepted. However, the Tribunal was concerned that a reprimand against the Respondent for a matter of this nature would be somewhat harsh and that reprimands have generally been given for matters of a more serious nature and in respect of people who haven't dealt with the complaint in the open and constructive way in which the Respondent has done. The texts referred to a caution as being a written or formal warning. It is intended to act as a deterrent so that the practitioner does not repeat the conduct or the behaviour. A reprimand is a formal way of rebuking or expressing disapproval to a practitioner for something they have done and appears on a practitioner's registration. The Respondent should understand that although the Tribunal disapproves of his behaviour and could have reprimanded him, for the reasons set out in the Tribunal's decision, it believed it more appropriate to caution the Respondent and allow him to practise as a chiropractor without the Reprimand appearing on his registration. He should ensure that he diligently heeds this warning in all his future conduct.
9. Accordingly, the Tribunal makes the following orders:

ORDERS 1. The Practitioner is given a caution against behaviour which could be regarded as unsatisfactory professional conduct in any circumstances in the future. 2. Within 21 days of returning to practice the practitioner is to nominate a registered experienced chiropractor to act as his professional mentor for approval by the Chiropractic Council of NSW in accordance with the Chiropractic Council of NSW's Compliance Policy - Mentoring (as varied from time to time). The practitioner is: 1. To participate in monthly meetings with the Council-approved mentor at a frequency to be determined by the mentor, however not less than monthly for the first 6 meetings. 2. To include discussion of the following at each meeting: 1. his personal and professional development; 2. the issues highlighted in this decision; 3. any personal or clinical practice issues that may arise throughout the course of the mentoring relationship. 1. To authorise the Chiropractic Council of NSW to provide proposed and approved mentors with: 1. A copy of this decision. 2. A copy of these practice conditions. 1. To authorise the mentor to inform the Council (in an approved reporting format) on a 3 monthly basis that these meetings have occurred, and ensure that the mentor does in fact provide those reports. 2. To authorise the mentor to inform the Council immediately if the mentoring relationship ends or of any concerns regarding the performance of the practitioner or his compliance with any conditions on his registration. 3. To be mentored for a period of 12 months. 4. To otherwise comply with the Chiropractic Council of NSW's Compliance Policy - Mentoring (as varied from time to time). 1. The practitioner is to be responsible for any costs associated with meeting condition (2) - the mentoring condition. 2. To attend for treatment by a psychologist or psychiatrist of his choice, at a frequency to be determined by the treating practitioner. 1. To provide the Council with the name and detail of the treating practitioner. 2. To authorise the Council to provide the treating practitioner a copy of the Reasons for Decision. 3. To authorise his treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status (including a significant temporary change). 4. To attend on his psychologist or psychiatrist for a period of 12 months at a frequency to be set by his psychologist or psychiatrist. 1. The Respondent is to be responsible for the costs of the Applicant in the sum of $5,000.00. 2. The Chiropractic Council of NSW is the appropriate review body of these conditions for the purposes of Part 8 of the National Law.

RECOMMENDATIONS TO THE CHIROPRACTIC COUNCIL OF NEW SOUTH WALES

1. The Tribunal is satisfied that the orders and protective orders made against the Respondent are adequate but commends to the Council that it considers the appropriateness of the mentor being the person who employs the Respondent or whether the Council considers that it would be more appropriate for the Respondent to be mentored by an independent person.

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: 28 November 2019