Health Care Complaints Commission v Jodlovich

NCAT Occupational|2021-08-02

Overview

In the second half of 2017, Dr Jodlovich decided to sell one of his cosmetic medicine businesses. He falsified bank statements to inflate the value of the business by $521,917.95. Dr William Lyon agreed to purchase the business for an excessive amount. On 22 June 2018, Dr Jodlovich was charged with the offence of fraud. We will call that charge "the first charge". The charge was that he had dishonestly obtained a financial advantage or caused a financial disadvantage: Crimes Act 1900 (NSW), s 192E(1)(b). The maximum penalty for that offence is imprisonment for 10 years. Dr Jodlovich pleaded not guilty to that offence.
More than a year later, the first charge was withdrawn and Dr Jodlovich was charged with a lesser offence. The second charge, made under s 192G(b) of the Crimes Act, was that he dishonestly made or published a statement that is false or misleading in a material particular with the intention of obtaining a financial advantage or causing a financial disadvantage. The maximum penalty for that offence is imprisonment for 5 years. On 15 October 2019, the same day that the second charge was laid, Dr Jodlovich pleaded guilty to that offence.
On 3 December 2019, Dr Jodlovich was convicted and sentenced to 18 months imprisonment. The Magistrate made an intensive correction order (ICO) directing that the sentence be served by way of intensive correction in the community: Crimes (Sentencing Procedure) Act 1999 (NSW), s 7. An ICO is a "custodial sentence": Crimes (Sentencing Procedure) Act 1999, Pt 2, Div 2.
Three weeks before he was convicted, the Medical Council suspended Dr Jodlovich's registration following a hearing held under s 150(1)(a) of the Health Practitioner Regulation National Law (NSW) (National Law). The Medical Council referred the matter to the Health Care Complaints Commission (HCCC) to be dealt with as a complaint for investigation: National Law, s 150D. His registration remains suspended.
In these proceedings, the HCCC is prosecuting Dr Jodlovich in relation to three complaints: Health Care Complaints Act 1993 (NSW), s 90B(1). Dr Jodlovich admits all three complaints. The first complaint is that he was convicted of the offence.

Dr Jodlovich's background

In 2010, Dr Jodlovich graduated with a Bachelor of Medicine/Bachelor of Surgery from the University of Sydney. He took seven years, rather than four, to complete the course. He took one year off, repeated one year because he failed a barrier exam, and was suspended for another year after a finding of plagiarism.
Dr Jodlovich was first registered as a medical practitioner on 29 March 2010. He commenced working in the area of cosmetic medicine in mid 2013. That work involved performing cosmetic injectable treatments such as anti-wrinkle, dermal filler treatments and non-surgical thread lift procedures.
Before he was suspended, Dr Jodlovich practised in the area of cosmetic medicine and as a deputising after hours general practitioner. At the time of the hearing before the Medical Council in November 2019, Dr Jodlovich owned three cosmetic medicine businesses, one in Newtown, one in Double Bay and one in the Sydney CBD.

Complaint One - convicted of a criminal offence

Complaint One is a complaint under s 144(a) of the National Law. A ground for complaint about a registered health practitioner is: 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.
Dr Jodlovich was convicted under s 192G(b) of the Crimes Act for dishonestly making or publishing a statement that is false or misleading in a material particular with the intention of obtaining a financial advantage or causing a financial disadvantage. There is no dispute that Dr Jodlovich was convicted of that offence. The subject matter of the complaint is proven.

Complaint Two - failure to comply with statutory reporting requirements

Unsatisfactory professional conduct

Under s 144(b) of the National Law a ground for complaint about a registered health practitioner is a complaint that the practitioner has been guilty of unsatisfactory conduct or professional misconduct. Unsatisfactory professional conduct is defined to include "Contravention of this Law or regulations": National Law, s 139B(1)(b).

Failure to notify of criminal charges - Complaint Two, particulars 1 and 2

The first part of Complaint Two is that Dr Jodlovich has contravened s 130(1) of the National Law: 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 established for the practitioner's or student's health profession written notice of the event.
Under s 130(3)(a)(i) a relevant event includes that: (i) the practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more . . .
Dr Jodlovich accepts that he failed to notify AHPRA of the first criminal charge laid on 22 June 2018 within the required 7 days. Dr Jodlovich also accepts that he failed to notify AHPRA of the second criminal charge laid on 15 October 2019 within the required 7 days. The subject matter of these particulars of Complaint Two are proven. The effect of that finding is that Dr Jodlovich is guilty of unsatisfactory professional conduct.

Failure to give notice of complaints between 2017 and 2019 - Complaint Two, particulars 3, 4 and 5

The second part of Complaint Two is that Dr Jodlovich has contravened s 109(1)(e) of the National Law which provides that an application for renewal of registration must include or be accompanied by a statement that includes the "details of any complaint made about the applicant to a registration authority or another entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners".
These complaints are that over three consecutive years, when applying for renewal of his registration, Dr Jodlovich failed to disclose that he was the subject of one or more complaints made to the HCCC. We will not refer to the content of these complaints because they are not directly relevant to any issue in these proceedings.
On 27 September 2017, Dr Jodlovich contravened s 109(1)(e) of the National Law. In his application to renew his registration for the 2017-2018 year, he failed to disclose that he was the subject of a complaint to the HCCC on 31 January 2017.
On 25 September 2018, Dr Jodlovich contravened s 109(1)(e) of the National Law. In his application to renew his registration for the 2018-2019 year, he failed to disclose that he was the subject of a complaint to the HCCC on 4 June 2018 and 6 July 2018.
On 14 October 2019 Dr Jodlovich contravened s 109(1)(e) of the National Law. In his application to renew his registration for the 2019-2020 year, he failed to disclose that he was the subject of a complaint to the HCCC dated 5 March 2019.
The subject matter of these particulars of Complaint Two is proven. The effect of that finding is that Dr Jodlovich is guilty of unsatisfactory professional conduct.

Complaint Three

Complaint Three is that Dr Jodlovich is guilty of professional misconduct relying collectively on the particulars of Complaint Two. Professional misconduct is defined in s 139E of the National Law. 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Dr Jodlovich admits Complaint Three. Under s 149(b) of the National Law, that admission triggers the Tribunal's power to exercise any power conferred by ss 149A - 149E. Those powers include the power in s 149C to suspend or cancel registration.

Tribunal's powers

The objective and guiding principle in s 3A of the National Law is that when exercising functions under that law, "the protection of the health and safety of the public must be the paramount consideration". Under s 149C of the National Law, the Tribunal may suspend or cancel a doctor's registration in certain circumstances. One of those circumstances is where the doctor has been convicted of an offence "and the circumstances of the offence render the practitioner unfit in the public interest to practise . . .": National Law, s 149C(1)(c).
Another circumstance which triggers the Tribunal's discretion to suspend or cancel a practitioner's registration is if he or she is guilty of professional misconduct: National Law, s 149C(b). We have found Dr Jodlovich to be guilty of professional misconduct. We must determine whether that finding justifies suspending or cancelling his registration independently of whether he is "unfit in the public interest to practise". We will first consider whether Complaint One justifies suspension or cancellation and then ask the same question in relation to Complaint Three.

Does the conviction mean that Dr Jodlovich is unfit in the public interest to practise?

Meaning of "unfit in the public interest to practise"

When determining whether Dr Jodlovich is unfit in the public interest to practise, we must only take into account "the circumstances of the offence": National Law, s 149C(1)(c). The term "public interest" is not defined in the National Law. In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56], the Tribunal made the following observations: A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession. Integrity, trustworthiness and high moral and ethical values are an integral part of the practice of medicine, as is compliance with regulatory requirements and codes of practice established by those responsible for the administration of the medical profession. The public must have confidence that medical practitioners who treat them exhibit these traits.
In Chen v Health Care Complaints Commission [2017] NSWCA 186 the Court of Appeal set out the following relevant principles when determining the appropriate orders under s 149C(1)(c) of the National Law: 1. "Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct." (per Basten JA at [20]) 2. While s 149C(1)(c) refers to fitness, it does not describe either permanent or temporary unfitness as relevant in enlivening the cancellation power: (Payne JA at [68]) 3. "The statutory language in the National Law does not involve any element of moral turpitude. Unlike the cases relied upon by the appellant here, which all involve some degree of moral culpability, there is no occasion to imply a test of "probably permanently unfit" to reflect an assessment of the character of the practitioner." (Payne JA at [67]) 4. "Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it." (Basten JA at [21]).
The relevant circumstances of the offence include the nature and seriousness of the offence and Dr Jodlovich's motivation for committing the offence including his state of mind at the time. We must determine whether in all those circumstances, Dr Jodlovich is currently unfit in the public interest to practise.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91], Basten JA stated that: The purpose of any order made 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 medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so.

Circumstances of the offence

Dr Jodlovich was convicted of the following offence under s 192G of the Crimes Act: A person who dishonestly makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) that is false or misleading in a material particular with the intention of - (a) obtaining property belonging to another, or (b) obtaining a financial advantage or causing a financial disadvantage, is guilty of an offence. Maximum penalty - Imprisonment for 5 years.
The Full Facts, signed by Dr Jodlovich, were in evidence. Based on the agreed facts tendered at the sentencing proceedings, the main facts of the offence were: 1. Between 8 July 2017 and 31 October 2017, Dr Jodlovich dishonestly falsified bank statements to inflate the value of his business that he was selling to Dr William Lyon (the victim). 2. Dr Jodlovich was the principal of Smooth as Silk Laser and Cosmetic Clinic Pty Limited. During June and July 2017, the victim sought to purchase one of the practices owned by Dr Jodlovich. 3. Dr Jodlovich and the victim agreed to a purchase price of $650,000. 4. During the due diligence process, Dr Jodlovich provided financial documentation including profit and loss statements. That material purported to support the purchase price of $650,000. Additionally, ANZ bank statements were requested and provided to show income and expenses. 5. Dr Jodlovich altered the bank statements. The altered bank statements support a business value purportedly of $800,000. 6. Consequently, the victim purchased the business and on 5 September 2017 entered into the sale and purchase agreement and deposited $65,000. The contract settled on 10 October 2017. 7. The victim took possession of the business and on 23 November 2017 the victim was notified by his business consultant that another set of ANZ statements had been located on the premises which on closer inspection showed different credit and debit figures. 8. This caused the victim to appreciate that the ANZ bank statements the respondent provided were altered to indicate a higher profit margin; and 9. Comparison of statements dated between 29 August 2016 and 29 June 2017 revealed 226 falsifications (10 falsifications to debits and 216 falsifications to credits). The false statements inflated the incomes of the business by $521,917.95. The victim would not have entered into the contract for the sale or purchase the business if the business value was not as purported as being of or higher than $650,000.
Dr Jodlovich admitted that, on the basis of altered bank statements that he provided, the prospective purchaser valued the business at approximately $800,000. Dr Jodlovich sold the business to that purchaser for $650,000. On 23 November 2017, a business consultant of the purchaser notified the purchaser that he had located the original bank statements at the business premises. After realising that the bank statements Dr Jodlovich had provided to him had been altered, the purchaser reported the matter to police. Dr Jodlovich was charged.
In her remarks on sentence, Magistrate Thompson noted that the amount of money involved - $650,000 - was significant and that during the two months when the sale was being negotiated, Dr Jodlovich had the opportunity to withdraw the falsified bank statements. Her Honour found that Dr Jodlovich's motive appeared to be financial gain. There was "a degree of planning and sophistication" given that the bank records were falsified in 226 places in a way that was not perceptible.
Magistrate Thompson referred to a report of Dr Borenstein dated 14 November 2019 prepared for the purpose of sentencing. Dr Borenstein reported that Dr Jodlovich had told him that when the purchaser's accountant asked him for further documentation, his practice manager had resigned and his accountant was unavailable. Dr Borenstein continued: Dr Jodlovich states he was pressured to provide bank statements. As mentioned in the body of this report, it was suggested Dr Jodlovich redact certain entries as the bank account received cash deposits from three separate clinics. Dr Jodlovich states that he learned the ultimate goal was for the purchaser to calculate projected earnings, as he intended to work six days per week, in contrast to Dr Jodlovich working in the clinic only one to 1 ½ days per week. Dr Jodlovich states he entered into the offending behaviour so as to indicate to the purchaser the earnings of working six days in the clinic. Dr Jodlovich believed he would be given an opportunity to see the final "report" and verify it before it was disclosed to the purchaser, which did not occur.
Dr Jodlovich was questioned about these assertions in cross-examination. We will outline his responses below after recording how Magistrate Thompson viewed Dr Borenstein's opinion.
Dr Borenstein expressed the view that Dr Jodlovich suffered acute and severe symptoms of anxiety, depression and stress which led him to act impulsively. However, Magistrate Thompson did not accept that Dr Jodlovich's mental health impacted on his offending to a significant degree. Her Honour characterised the statement that Dr Jodlovich gave to Dr Borenstein as self-serving and designed to minimise his conduct. Significantly, Magistrate Thompson found that, contrary to the way Dr Jodlovich explained the offence, there was a direct manipulation of the figures to inflate the price. Magistrate Thompson concluded that the "conduct in all presents as a serious instance of offending of this kind". We agree.
At the sentencing hearing, Magistrate Thompson took into account that Dr Jodlovich had pleaded guilty at the first opportunity, had provided statements of remorse and had accepted responsibility for his actions. The offence was not committed in a clinical setting, and was not a breach of trust in that respect. We agree with the Magistrate's remarks when her Honour said: There was an element of breach of trust with [Dr Jodlovich] being a person who holds a position of trust within the community and is able to call upon that reputation as a doctor.
At the time of the criminal proceedings Dr Jodlovich said he took full responsibility for his actions. At the Tribunal hearing he stated that he is very ashamed and sorry for the suffering he caused to the purchaser of the business.
We find that despite pleading guilty and saying that he accepted responsibility for his behaviour, Dr Jodlovich continued to attempt to deflect blame and minimise his wrongdoing.
At the s 150 hearing, the Medical Council questioned Dr Jodlovich about the information he gave to Dr Borenstein. He said that he provided minimal documentation to the prospective purchaser because his tax agent, Trent Bailey, was on leave on multiple occasions. That evidence was not persuasive. Dr Jodlovich agreed that he was able to get access to his financial statements and that he emailed Mr Bailey in July 2017.
After repeatedly giving non-responsive answers to the Tribunal, Dr Jodlovich said that he changed the figures on the bank statements by firstly making two copies of the statements. He then used a pair of scissors to cut out numerals from one copy and paste them over numerals on the other copy. He then scanned the amended copy. Dr Jodlovich said that he multiplied the figures by a factor of approximately 4.5. He said he did that because the accountant had advised him that those figures would reflect an expected income from working a 6 day week, rather than a 1.5 day week. On further questioning Dr Jodlovich agreed that the accountancy team working for the purchaser did not tell him to inflate the figures.
Dr Jodlovich also told Dr Borenstein that he believed he would be given an opportunity to see the final "report" and verify it before it was disclosed to the purchaser. When it was put to him during the Tribunal hearing that this was a further attempt to minimise his conduct, Dr Jodlovich said that he was merely relating the chain of events.
Dr Jodlovich wrote in his statement of 14 November 2019, that: Once my dishonesty was discovered (which was bound to happen, as I left the original bank statements in my practice once I sold it). Dr Lyons commenced civil proceedings.
When it was put to him that he was suggesting that he deliberately left the bank statements in his practice, Dr Jodlovich clarified that it was an oversight on his part to leave them behind.
Despite pleading guilty and saying he took responsibility for this conduct, Dr Jodlovich attempted to persuade Dr Borenstein, and indirectly the Court, that other people or circumstances had contributed in various ways to his wrongdoing. To a lesser extent, he continued to do so during the Tribunal proceedings. We agree with Magistrate Thompson that no-one else contributed to Dr Jodlovich's decision to change the figures on the bank statements to inflate the price. Dr Jodlovich sat with his scissors and glue, cutting and pasting 226 numerals from one bank statement to another. He knew that what he was doing was wrong and that no-one except him was responsible.
A sentence of 18 months imprisonment, when the maximum penalty is 5 years, reflects what Magistrate Thompson referred to as "a serious instance of offending of this kind". The sentence was a custodial sentence. Because the custodial sentence was for less than two years, Magistrate Thompson had the option of making an intensive correction order. When determining whether to make such an order, community safety is the paramount consideration: Crimes (Sentencing Procedure) Act 1999, s 66(1). Magistrate Thompson must have accepted that, subject to the conditions imposed by the intensive correction order, Dr Jodlovich did not pose a threat to community safety. We agree.
This offence had a devastating impact on the victim, Dr Lyons, and involved dishonest criminal conduct that may bring the practice of medicine into disrepute. Even though Dr Jodlovich's offence did not relate directly to patient safety, public confidence in the high standards of the medical profession should be maintained. The circumstances of the offence, particularly that it involved premeditated dishonesty in relation to the sale of one of Dr Jodlovich's cosmetic medicine businesses, mean that Dr Jodlovich is unfit in the public interest to practise. We consider it appropriate, taking into account all the circumstances outlined above, to cancel his registration and impose a non-review period of one year.

Does the finding of professional misconduct about the non-disclosures justify suspension or cancellation?

Issue

For Complaint Three relating to non-disclosures, the Tribunal may suspend or cancel a doctor's registration if the practitioner is guilty of professional misconduct: National Law, s 149C. Dr Jodlovich submits that his failure to make those notifications was due to ignorance of his professional reporting requirements. He says he did not intend to deceive the HCCC or AHPRA. Failures to notify, for which there is a reasonable explanation or excuse, are unlikely to justify suspension or cancellation. Below we examine these failures in more detail. To determine the likelihood that Dr Jodlovich's failures were deliberate, we make findings about his honesty and credibility.

Failure to notify criminal charges

Dr Jodlovich says he was aware that charges are required to be disclosed, but believed that the disclosure only had to be made at the time of renewal of registration, rather than within 7 days of becoming aware of the "event". He disclosed the first charge in his renewal application in September 2018. He accepts that he should have "paid more attention" to his obligations. He did not check the AHPRA website after the first charge and did not consider whether he needed to disclose that information to AHPRA.
In relation to the second criminal charge under s 192G(b) of the Crimes Act, Dr Jodlovich admits that he did not formally notify AHPRA that he had been charged. His explanation for that failure was that on 16 October 2019, he received a draft email from his lawyers informing AHPRA that he was pleading guilty to that charge. He instructed his lawyers to send that email to AHPRA and was told by his lawyer that it would be sent. However, it was not until 23 October 2019, a week later, that his lawyers sent the email. They did not use the "Notice of Certain Events" form to do so. Dr Jodlovich accepts that he did not provide AHPRA with the correct notification within time for the first charge or on the correct form for the second charge but says that there was no intention to mislead AHPRA.

Failure to notify complaints

On 27 September 2017, Dr Jodlovich contravened s 109(1)(e) of the National Law. In his application to renew his registration for the 2017-2018 year, he failed to disclose that he was the subject of a complaint to the HCCC on 31 January 2017.
Dr Jodlovich received a letter from the HCCC dated 16 February 2017, telling him that he was the subject of a complaint and requesting a response. He confirmed that he realised that the letter was from the HCCC, not AHPRA. On 8 March 2017, Dr Jodlovich wrote to the HCCC replying to that letter. Dr Jodlovich recalls this complaint, but in his application to AHPRA for renewal of his registration, he answered "Yes" to the following question: Have you previously disclosed to AHPRA all known complaints made about you to: a registration authority or another entity having functions relating to professional services provided by health practitioners or the regulation of health practitioners in Australia or elsewhere?
Dr Jodlovich agrees that he read each question and that the answer he gave to question 10 was not correct. When it was put to him that his answer was deliberately misleading, Dr Jodlovich said, "No, that was not the intention." He said he thought that because the HCCC had determined the complaint and taken no further action, the complaint had been dismissed.
On 25 September 2018, Dr Jodlovich contravened s 109(1)(e) of the National Law. In his application to renew his registration for the 2018-2019 year, he failed to disclose that he was the subject of a complaint to the HCCC on 4 June 2018 and 6 July 2018. Dr Jodlovich received a letter from the HCCC dated 27 June 2018, telling him that he was the subject of a complaint and requesting a response. He confirmed that he realised that the letter was from the HCCC, not AHPRA. On 12 July 2018, Dr Jodlovich wrote to the HCCC replying to that letter. Dr Jodlovich recalls this complaint, but in his application to AHPRA for renewal of his registration, he answered "Yes" to question 10, the same question that we have quoted above. Dr Jodlovich's explanation for giving that response was that he incorrectly thought that because the complaint had been discontinued, he did not have to disclose it.
On 14 October 2019, Dr Jodlovich contravened s 109(1)(e) of the National Law. In his application to renew his registration for the 2019-2020 year, he failed to disclose that he was the subject of a complaint to the HCCC dated 5 March 2019. Dr Jodlovich received a letter from the HCCC dated 13 March 2019, telling him that he was the subject of a complaint and requesting a response. He confirmed that he realised that the letter was from the HCCC, not AHPRA. On 3 April 2019, Dr Jodlovich wrote to the HCCC replying to that letter. Dr Jodlovich recalls this complaint and confirmed that he had not forgotten about it when he came to complete the registration renewal application form. Although he disclosed in this application form that he was the subject of the second charge, he incorrectly answered "Yes" to the question about whether he had previously disclosed to AHPRA all known complaints about him.
In the renewal application form, when asked the same question as we have reproduced above, Dr Jodlovich ticked "N/A" indicating that he was not aware of any complaints made about him during the relevant period. That was not true. He was fully aware that a complaint had been made. This is the most serious of the three failures.
Dr Jodlovich says he is very sorry for failing to report to AHPRA in a timely manner. Since the suspension of his registration over 20 months ago, Dr Jodlovich says he has reflected on the importance of diligently attending to administrative requirements of registration that include reporting events correctly and promptly should they occur. If he is permitted to resume practising, he says he will carefully ensure that he abides by all regulations including all the requirements of registration and reporting all relevant events should they occur.

Dr Jodlovich's honesty and credibility

The only relevant issue in dispute which is affected by Dr Jodlovich's honesty and credibility is whether his failure to disclose the charges and the complaints was deliberate. There was considerable evidence and questioning during the Tribunal proceedings about Dr Jodlovich's honesty. We summarise some of that evidence and our findings below. 1. Dr Jodlovich exaggerated and falsified information in his curriculum vitae. Dr Jodlovich provided a version of his CV attached to his statement dated 14 November 2019. Under the heading "Education" he lists seven qualifications. One qualification on the list is "Bachelor of Medical Applied Science (Occupational Therapy) University of Sydney, 1993". Dr Jodlovich admitted that he completed only one year of a Bachelor of Applied Science. Another qualification on the list is "Advanced Training in Medical Administration, Wagga Wagga Base Hospital 2013". Dr Jodlovich conceded that he should have included these 6 months of training under "Employment" rather than "Education". 2. Under the heading "Employment Experience", Dr Jodlovich did not refer to the Smooth as Silk Laser Cosmetic Clinic at Bondi which is the business he sold at an inflated price. He agreed that that was a significant omission from his CV. 3. Dr Jodlovich said in his CV and to the Medical Council at the s 150 hearing, that he was a Resident Medical Officer (RMO), a position which requires full General Registration with AHPRA, in 2011. In fact, until June 2012, he was only registered provisionally because he had failed multiple terms of his internship. He says he did not express this accurately in his CV because he was embarrassed that he had to repeat his internship. 4. In a letter to the HCCC dated 5 February 2020, Dr Jodlovich stated that he had trained Registrars at the Australasian College of Cosmetic Surgeons in the area of cosmetic medicine. When questioned, he clarified that he is not a member of that College and that a commercial organisation helped organise the course. 5. Dr Jodlovich gave evidence that the suspension of his registration and the COVID-19 pandemic has placed his one remaining cosmetic medicine business in substantial financial hardship. As of 27 July 2021, he predicted that he would only be able to financially sustain another 6 weeks of lockdown before he will be faced with bankruptcy. Dr Jodlovich did not fully disclose his financial situation. When pressed, he admitted that he owns six properties including one car space. Three of the properties are in Surry Hills, one is in Randwick and the other is in Queensland. Although Dr Jodlovich said that the equity in these properties is less than the debt, we are not satisfied that Dr Jodlovich has fully and accurately disclosed his financial position. 6. Dr Jodlovich gave three different versions of the employment and insurance status of three doctors who were working with him: Dr Joanna Taylor, Dr Sebastian De Meza and Dr Emma Gordon. One version appears in his statement dated 14 November 2019 prepared for the s 150 hearing. He gave another version to the Medical Council at the hearing and a third to the Tribunal. 7. At [31] of the 14 November 2019 statement, Dr Jodlovich wrote that, "By December 2019 I intend on employing one more Senior Beauty Therapist and a General Manager to work in my practices." When questioned he said that he intended to employ only one more person, a Senior Beauty Therapist who could also act as a General Manager. He agreed that the way he had worded that paragraph was confusing. 8. Dr Jodlovich attempted to surreptitiously sell real estate when he had given an undertaking to the Supreme Court that his assets would not fall below $1.5 million. The undertaking related to separate civil proceedings for damages based on the same circumstances as the criminal offence. On 27 July 2018, the Supreme Court handed down a judgment in Dr Bill Lyon Pty Limited v Smooth as Silk Laser Cosmetic Clinic Pty Limited [2018] NSWSC 1174. Dr Jodlovich in his individual capacity, was the second defendant. Justice McDougall noted that judgment had been entered against the defendants for damages to be assessed. During the earlier civil proceedings when judgment was entered, Dr Jodlovich gave an undertaking to the Court not to dispose of property so that his assets would not be below $1.5 million. The plaintiff, Dr Bill Lyon Pty Ltd, became aware that Dr Jodlovich was selling real estate. The plaintiff sought information from Dr Jodlovich as to the net value of his assets if the sale went ahead. The plaintiff was not satisfied with Dr Jodlovich's reply and applied to the Court for a freezing order in the same term as his earlier undertaking. Dr Jodlovich opposed the freezing order stating that his earlier undertaking was sufficient. The court held at [4] and [5] that: In a context where [Dr Jodlovich] . . . admitted liability for egregiously dishonest conduct and where [Dr Jodlovich] has begun surreptitiously selling his assets, I think there is every reason to fear that, absent disclosure, the plaintiffs may be left whistling. . . . the surreptitious nature of the sales and the refusal to provide any meaningful information, suggests that the sooner the plaintiffs obtain the protection of disclosure, the better it will be.
In combination, these examples reflect adversely on Dr Jodlovich's credibility when he denies that he deliberately failed to provide relevant information about the criminal charges and the complaints against him. These examples do not necessarily mean that he is being untruthful but they make us more sceptical that he is telling the truth.
In relation to the first criminal charge, Dr Jodlovich did not disclose that charge within 7 days, but he did disclose it in his renewal application in September 2018. For the second charge, his solicitors were involved and it is understandable that Dr Jodlovich did not think it necessary to notify AHPRA separately. We do not consider that these failures justify suspension or cancellation of Dr Jodlovich's registration.
For the failure to notify AHPRA of complaints, we appreciate that for the first year under consideration, that failure may have been due to ignorance or misunderstanding. However, for the next two years, we are satisfied that Dr Jodlovich knew that he was obliged to disclose those complaints and deliberately decided not to do so. The question on the form asks about "known complaints about you". Dr Jodlovich knew about the complaints, but when asked a direct question on his renewal application he said that he had notified AHPRA of the complaint when he had not done so. He knowingly gave the wrong answer on the 2018 and 2019 renewal applications.
Dr Jodlovich has been seeing a psychologist, Dr Lawrence Fong. He prepared a report dated 14 November 2019 and another dated 7 May 2021. Dr Fong stated that since November 2019 he has seen Dr Jodlovich on approximately a monthly basis (15 sessions). The focus of the counselling is cognitive behaviour therapy to help reduce Dr Jodlovich's anxiety and encourage further awareness of and insight into his decision making and behaviours. He has engaged voluntarily with therapy and has acknowledged his contribution to the current set of circumstances. One significant source of anxiety is the financial stress that he will be under if he is no longer able to practise as a doctor. Dr Jodlovich says that he intends to continue with his regular appointments with Dr Fong.
As the Tribunal noted in Health Care Complaints Commission v Menz [2017] NSWCATOD 141 at [67]: One of the objects of the National Law is to establish a national registration and accreditation scheme for the regulation of health practitioners: s 3(1)(a). The objectives of that scheme include to provide for the protection of the public 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 effective operation of that scheme rests heavily on a system of self-reporting by registered health practitioners. The integrity of the Scheme requires that persons seeking to maintain registration are candid in their dealings with and cooperate with relevant regulatory bodies.
Dr Jodlovich participated in a Clinical Ethics course run by the University of Sydney during the first semester of 2020. That course required Dr Jodlovich to participate in four 8 hour online classes. He has also completed the Australian Medical Association's 2 hour online module on the Code of Conduct.
It is critical to the effectiveness of the scheme that practitioners comply with the reporting requirements. However, given our findings, we do not consider that these failures are serious enough to independently justify suspension or cancellation of Dr Jodlovich's registration.

Orders 1. The registration of Dr Jodlovich as a medical practitioner is cancelled. 2. Dr Jodlovich may not apply for a review of this order for 12 months from the date of this decision. 3. Dr Jodlovich is to pay the Health Care Complaints Commission's costs as agreed, or if not agreed, as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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 August 2021

At a glance

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Judgment (19 paragraphs)

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Cited By (1)