Until September 2016, when he voluntarily surrendered his registration, Rupasenan Karalasingham practised at various locations principally in the Sydney metropolitan area as a vocationally trained general practitioner. For approximately five years from August 2011, in addition to his weekday general practice commitments, Mr Karalasingham practised every weekend as a General Practitioner Visiting Medical Officer (VMO) at one of three NSW country hospitals including Gunnedah Hospital.
In 2014-2015, while practising at Gunnedah Hospital, the Health Care Complaints Commission assert Mr Karalasingham failed to exercise appropriate knowledge, skill, judgment and care when caring for two patients (Patients A and B) who presented to the emergency department. Patient A, who was suffering Type 2 diabetes, was discharged from the hospital the day following his admission without receiving appropriate treatment. Patient A subsequently died. The practitioner failed to properly diagnose and treat Patient B when he presented to the emergency department in 2015. This patient was subsequently admitted to John Hunter Hospital where he underwent tests which disclosed a perforated sigmoid diverticulitis with extensive pneumoperitoneum. The practitioner is alleged to have failed to keep appropriate records for Patient A and B as well as another patient, Patient C.
For convenience only, in these reasons we will refer to parties to these proceedings as "the practitioner" and the "HCCC". We will also refer to Gunnedah Hospital as "the hospital" and the Medical Council of NSW as "the Council".
As a result of the events at the hospital, the Council appointed delegates to conduct a hearing under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). Following the hearing, at which the practitioner was assisted by his lawyer, conditions were imposed on his registration. The delegates expressed concern that the practitioner's long working hours may impact on patient safety. Accordingly, the conditions imposed were designed to ensure the practitioner's working hours were reduced. The practitioner was precluded from practising in an emergency department and required to practise only in a group practice where another registered general practitioner was on site to act as a nominated supervisor. The number of patients the practitioner could see was limited to 150 patients in any seven day period and no more than 30 patients in any 24 hour period.
The practitioner has admitted that, on numerous occasions, he breached both the condition that a nominated supervisor be on site when he was practising, and the condition that limited the number of patients he could see in any seven day period.
The practitioner has also admitted that, in 2016, he made claims on Medicare for consultations when he had not consulted the patient in person in respect of whom the claim was made. He also made false claims on Medicare for professional attendance to review mental health treatment plans (plans) for three patients when he knew he had not seen the patients. He also completed the Kessler Psychological Distress Scale forms (K10) for three patients. He did not see these patients. He made other false claims on Medicare when he had not seen the patient in person and in three instances forged patients' signatures on Medicare bulk billing claim forms.
These disciplinary proceedings are not the first such proceedings involving the practitioner. As we will later more fully discuss, in 2007 the now repealed Medical Tribunal of NSW found the practitioner was guilty of professional misconduct. The conduct that led to that finding included the practitioner preparing medical certificates for patients he had not seen and in one case, charging the patient for five consultations including four back dated consultations, when he had not seen the patient. He also made false entries into patient records and provided untruthful answers to investigators. The practitioner was reprimanded and ordered to pay a fine of $20,000.
Following the filing of a Further Amended Complaint on the last day of the hearing of this matter, the practitioner admitted the complaints agitated against him, including a complaint that he is guilty of professional misconduct under s 139E of the National Law. He had earlier made substantial admissions to the original complaint.
At the conclusion of hearing the evidence in these proceedings, counsel for the HCCC, Mr S Maybury, submitted that we should find that, if the practitioner had been registered, we would have cancelled his registration and that we impose a period of five years before the practitioner may apply for a re-instatement order. The practitioner's counsel, Mr S Barnes, urged us to permit the practitioner to be registered with stringent conditions (similar to those imposed after the s150 hearing) and suggested it would also be open to us to require an audit of the practitioner's records, and to require him to continue to consult a psychiatrist.
We have determined that, if the practitioner was registered at the date of the hearing, we would have cancelled his registration. We have also found it appropriate to impose a disqualification period of 18 months from the date of our decision. Our reasons for these decisions follow below.
[2]
Issues to be determined in these proceedings
We consider the following issues require resolution in these proceedings:
1. Are we independently satisfied that the admitted particulars justify a finding of professional misconduct?
2. Does the practitioner's evidence support findings that he has insight into his conduct and is remorseful for it? This issue requires consideration of:
1. the practitioner's evidence and his actions post 2007;
2. an assessment of the evidence of the practitioner's psychiatrist, his ethics consultant and other character referees;
1. Is there a risk to the health and safety of the public if the practitioner is allowed to continue practising with conditions?
2. What weight should be given to the deterrence element of our determination?
3. What orders are necessary to uphold the reputation of the profession?
[3]
Background
The parties prepared an agreed statement of facts. We have extracted brief relevant facts from that statement. A copy of the agreed Statement of Facts is annexed to these reasons.
1. In 1992, the practitioner graduated from the University of Sydney after completing the fourth year of a Bachelor of Medicine and Bachelor of Surgery. The practitioner completed the first three years of his medical degree in Sri Lanka.
2. In 1997, the practitioner became a fellow of the Royal Australasian College of General Practitioners (RACGP).
3. From 2011 - 2015, the practitioner worked as a General Practitioner Visiting Medical Officer ("GPVMO") at the Hospital.
4. From September 2014 - January 2015, the practitioner treated Patients A, B and C at the Hospital.
5. In February 2015, the practitioner's employment with the Hospital was terminated following an internal investigation into the practitioner's management of Patients A, B and C.
20. On 13 July 2015, the practitioner had conditions imposed on his registration by the Council.
21. From 2015 - September 2016, the practitioner worked as a General Practitioner at several medical centres in Sydney and the Central Coast.
22. Around 2015 - September 2016, the practitioner worked as a General Practitioner at Marrickville Medical Centre ("the Medical Centre").
23. The conditions imposed by the Council required the practitioner to have a nominated supervisor at work at the Medical Centre whilst the practitioner was also at work.
25. The conditions imposed by the Council also required the practitioner not to treat more than 150 patients in any 7 day period and no more than 30 patients in any 24 hour period.
26. Between 10 July 2015 - 1 August 2016 whilst working at the Medical Centre, the practitioner breached the conditions outlined at [25] when he:
a. consulted more than 30 patients in a 24 hour period on 48 separate occasions;
b. consulted more than 150 patients in any given 7 day period on 60 occasions.
[4]
The National Law and relevant legal principles applicable to disciplinary proceedings
The HCCC bring these proceedings under several NSW provisions of the National Law (Part 8) (the National Law). The clinical complaints, arising from the treatment of Patients A and B at the hospital and which assert unsatisfactory professional conduct, are brought under s 139B(1)(a) of the National Law.
Section 139B(1)(a) provides as follow:
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) Conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Complaint Two is brought under s 139B(1)(b) of the National Law. It is asserted that the practitioner, by failing to keep proper records, contravened the regulation then in force, namely the Health Practitioner Regulation (New South Wales) Regulation (repealed) (the regulation).
Complaint Three asserts the practitioner engaged in unsatisfactory professional conduct under s 139B(1)(c) because he contravened the conditions on his registration imposed by the delegates following the s 150 proceedings. Section 139B(1)(c) provides as follows:
(c) Contravention of conditions of registration or undertaking
A contravention by the practitioner (whether by act or omission) of -
(i) a condition to which the practitioner's registration is subject; or
(ii) an undertaking given to a National Board.
Complaint Four is brought in reliance on s 139B(1)(l). It is in the following terms:
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Complaint Five asserts that the practitioner is guilty of professional misconduct as defined in s 139E of the National Law:
These disciplinary proceedings are to be determined by reference to well established principles. It is not in dispute that the HCCC bears the onus of proof in these proceedings, and the complaints must be established to the standard discussed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. (see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445).
The purpose of disciplinary proceedings is to protect the public rather than to punish the practitioner (see Clyne v New South Wales Bar Association (1960) 104 CLR 186).
A tribunal must have regard to the objects and principles underpinning the National Law, particularly s 3 and s 3A (the latter being a NSW provision). Also relevant are the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (Section 3). In particular, the Tribunal is bound to focus on the real issues in dispute between the parties, and determine proceedings justly, quickly and cheaply. Although the rules of evidence do not apply to the admissibility of documents in the proceedings, the Tribunal must ensure proceedings are conducted in a procedurally fair manner, and there is compliance with the rules of natural justice.
[5]
The clinical complaints
On 17 October 2014 Patient A presented to the hospital with urine retention, a urinary tract infection and severe pain. Nine particulars of Complaint One are relied on in respect of an asserted lack of appropriate clinical care.
The particulars include allegations that the practitioner failed to conduct an adequate assessment of the patient by reviewing the patient's fluid balance chart, and a failure to order further tests. This was against a background of the patient being a newly diagnosed diabetic with urinary sepsis. It is also asserted that the practitioner prescribed Diamicron 60mgs in circumstances where insulin therapy should have been commenced. It further asserted that the practitioner, when discharging the patient from hospital on 19 October 2014, failed to provide sufficient information to the patient about the management of his diabetes, how to manage his indwelling catheter or to provide an appropriate referral to a diabetes educator or a dietician.
The HCCC rely on an expert report by a very experienced general practitioner, Dr Richard Abbott. In his report dated 24 June 2016, Dr Abbott is critical of the practitioner's prescribing for Patient A and the failure to commence insulin therapy. He opines that the practitioner's conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. His is also very critical of the practitioner's actions in discharging the patient on 19 October 2014.
We find the practitioner's concessions in respect of Patient A are properly made. We agree with and adopt the opinions expressed by Dr Abbott in respect of this patient.
The second clinical complaint concerns Patient B. The Further Amended Complaint notes that Patient B presented to the hospital on 17 January 2015 with a six hour history of right sided abdominal pain. Five particulars are relied on by the HCCC to support Complaint One insofar as it relates to Patient B. The particulars include a failure to consider a differential diagnosis, a failure to consider and carry out further investigations when the patient re-presented later on 17 January 2015, or to consider a longer observation period. It is also asserted that although the practitioner consulted the Emergency Consultant at Tamworth Hospital he failed to provide full and adequate information to the consultant. It is further asserted the practitioner failed to provide adequate discharge advice to the patient that he should urgently attend John Hunter Hospital for further assessment and investigations.
Dr Abbott opines that the practitioner's clinical assessment of this patient was significantly below the expected standard. He states that it was reasonable to permit the patient to be discharged at 15.40 hours, although follow up assessment and advice should have been given. He is not critical of the initial discharge decision of the practitioner. However, he finds the practitioner's treatment of the patient when he re-presented at 17.30 hours was below standard. He is critical of the practitioner for failing to provide adequate advice to the patient to attend John Hunter Hospital as soon as possible. We agree with and accept Dr Abbott's conclusions.
[6]
The hospital record keeping complaints
As noted in the Agreed Statement of Facts the practitioner concedes that his record keeping for Patients A, B and C were inadequate. Dr Abbott opines that the practitioner's record keeping did not comply with the regulation. We agree and are accordingly satisfied that Complaint Two is established.
[7]
The breach of practising conditions
Although the practitioner has conceded he breached the conditions placed on his registration by the delegates, we think it is important that we commence our consideration of his concessions by referring to well established authority on this topic. Recently, in Health Care Complaints Commission v Reid [2018] NSWCATOD 162 at [131]-[133] the Tribunal said as follows:
As has been frequently noted in decisions of this Tribunal, and the former Medical Tribunal of NSW, the compliance with conditions imposed by a Council is critical to the health and safety of the public. Practitioners in many instances are able to retain their registration only because a council is satisfied that conditions imposed ameliorate risk to the public and/or maintain a practitioner's health and well-being.
The importance of compliance with conditions is discussed in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at 74 where it is noted:
74 When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed, as observed in Re Dr Than Le (supra).
Earlier in the judgment, the Court of Appeal quoted from the findings of the then Medical Tribunal of NSW with apparent approval as follows:
45 The Tribunal adopted the statement made by a Medical Tribunal in Re Dr Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95):
"Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, 'containing as it does a grave criticism of the standard of the practitioner's conduct'."
The Agreed Statement of Facts sets out in a tabular form the days and number of hours worked by the practitioner without an approved supervisor on site. The Agreed Statement of Facts also notes that the practitioner breached the condition that he consult no more than 30 patients in a 24 hour period on 48 separate occasions, and he consulted more than 150 patients in any given 7 day period on 60 occasions.
In his submissions counsel for the practitioner, Mr S Barnes, referred to the reasons of the delegates in the s 150 proceedings, and asserted that the manner in which the HCCC calculated a seven day period on a rolling basis was misleading and not what the delegates had intended. He also submitted that we should have regard to the fact that the practitioner on a number of occasions only exceeded the number of patients he could see by one patient. We accept that these submissions have some weight. However, we also observe that on one occasion the practitioner saw 48 patients, and on another 38 patients. He saw 32 or 33 patients in a 24 hour period on a number of occasions.
We found the practitioner's evidence on this topic telling. He sought to shift the responsibility for compliance with the condition not to see more than 30 patients in any one day to the receptionist or practice manager rather than taking personal responsibility for his action. His evidence appeared to ignore the concerns of the delegates about patient safety potentially being compromised by his long work hours. He agreed in answering questions posed to him in cross-examination that he had disagreed with the delegates' position that he should be permitted to see only 30 patients per day because he felt he could see 35 patients without being stretched.
We were unable to accept the practitioner's evidence that he relied on advice from a compliance officer at the Council that he had a six week period of grace from when the conditions were imposed to find a supervisor so that he could continue to practise without an approved supervisor being present at the practice at the same time as he was practising. He explained in his oral evidence that his actions in failing to comply with the conditions imposed were due to mistakes and that he now took full responsibility for his non-compliance. We found the practitioner's evidence on this topic inherently unreliable. The practitioner was represented by very experienced lawyers, and had the benefit of legal assistance throughout the s 150 hearing. We find he well knew the terms of the conditions. We are satisfied that he put his own financial imperatives ahead of proper compliance. We do not accept the breaches occurred because of "mistakes".
[8]
The Medicare claims and clinical records
The Agreed Statement of Facts notes that on three dates in June 2016 the practitioner treated Patients D to P while practising at the Marrickville Medical Centre.
It is agreed that the practitioner made a false claim on Medicare that he had reviewed a General Practitioner Mental Health Care Plan for patients D, G, J and L, when he had not seen those patients. The practitioner also falsified these four patient's records by himself completing a Kessler Psychological Distress Scale (K 10 Form) without discussing the form with the patients.
The practitioner accepts that he made a false claim on Medicare for consulting Patients D, E, F, G, H, I, J, K, L, M, N, O and P when he knew he had not seen these patients in person.
The practitioner falsified records on three occasions by forging patients' signatures on the Medicare bulk bill claim. He also, as noted above, falsified patient records by completing K 10 forms without discussing the questions, designed to be answered by the patient, with the patient on four occasions.
These actions by the practitioner occurred in 2016. He sought, in his first statement of 12 September 2018, to explain his conduct, at least in part, because of pressure he asserted was placed on him by a clinical psychologist who worked at the Centre. He also explained that he had repaid Medicare $14, 679.67 for his false claims in respect of Patients D, E, F, I, K, L, M, N and O. as well as voluntary repayments in relation to services billed for patients seen in breach of the registration condition, that is consulting in excess of 30 patients in a 24 hour period. He further explained at para 54 he had "recently submitted to Medicare voluntary acknowledgement of incorrect payments for claims I made to Medicare with respect to Patients G, H, J and P". He stated he intended to repay the monies on receipt of an invoice from Medicare.
The practitioner was extensively cross-examined about his false claims. He acknowledged he knew it was wrong in 2007 when he created medical certificates and falsified records. He then explained that he had then done an ethics course pursuant to orders made in the earlier disciplinary proceedings and he had learnt a lot from the Monash University course.
However, the practitioner conceded that he had undertaken this course in 2015. We find the character traits of dishonesty in knowingly creating false documents, including for financial gain, persisted notwithstanding so called "understandings" gained from the ethics course undertaken by the practitioner.
[9]
The professional misconduct complaint
It is useful at this point in our reasons that we set out the definition of professional misconduct as found in the National Law:
Section 139E is in the following terms:
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.
Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [22] sets out how a finding of professional misconduct may be established. His Honour also discusses the basis on which a tribunal may impose a period of time before a practitioner can seek re-instatement. Given the HCCC's position in this matter it is appropriate that at this point we include his Honour's discussion of that topic. His Honour explains:
The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make.
[10]
Discussion and conclusion admitted particulars.
From our consideration of each of the particulars of complaints, we are satisfied that the practitioner's admissions are appropriately made. We discuss our conclusion that the complaint of professional misconduct is established below.
[11]
Are we independently satisfied that the admitted particulars justify a finding of professional misconduct?
In each instance, we are independently satisfied that the complaints against the practitioner set out in the Further Amended Complaint are established to the Briginshaw standard. Without attributing significant criticism to the practitioner's treatment of Patient B, we find the breaches of conditions on his registration, and the falsified medical records are matters of such a serious nature as to justify suspension or cancellation of the practitioner's registration. When we consider the clinical complaints, together with the record keeping complaints and the falsified claims and documents, we have no doubt the practitioner's concession of professional misconduct is an appropriate one.
[12]
Does the practitioner's evidence support findings that he has insight into his conduct and is remorseful for it? This issue requires consideration of:
[13]
(i) the practitioner's evidence and his actions post 2007
We commence our discussion of this issue by reference to the statements of Walsh JA. The question of a practitioner's reformation of character in the context of fitness to practice is frequently measured against the criteria referred by his Honour Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488. There his Honour said:
"Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he is known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant.
Those principles are reinforced in the discussion of Bathurst CJ in Hilton v Legal Profession Admission Board [2017] NSWCA 232.
We accept that the practitioner has suffered severe financial consequences as a result of his actions. We discuss below the evidence now relied on by the practitioner to support his assertions of reformation of character.
[14]
(ii) an assessment of the evidence of the practitioner's psychiatrist, his ethics consultant and other character referees
The practitioner relied on a reference prepared by Mr Stephen Cohen of Stephen Cohen Consulting. The practitioner consulted Mr Cohen in late December 2016. He records having twelve meetings with the practitioner. He says that "the kinds of things that Dr Karalasingham has done since surrendering his registration have been remarkable. He has done these things both to display that he is of good character and/or to show if necessary, that he has developed such a character". Mr Cohen then refers to the practitioner's volunteer work and says "These and the other things he has taken on are not easy, and they are time consuming. But, he has thought them worthwhile, both for their own sake and his personal development, and for the sake of helping him to regain his registration".
The practitioner relied on references from his colleague at the Centre, Dr Nabilah Islam as well as a reference from Dr Grahame Deane AM who was a Visiting Medical Officer at the hospital from January 1982 until May 2016. Dr Deane explains that during the practitioner's time at the hospital he did not hear any complaints about the practitioner. He also states that, subsequent to the HCCC complaints, the practitioner has sought counsel from him by telephone on many occasions. He notes the practitioner has made significant effort to overcome deficiencies in his clinical knowledge. Dr Deane opines that the practitioner is remorseful as demonstrated by removing his name from the register. He notes, however, that as the Medicare complaints arose after the practitioner's departure from Gunnedah he is unable to comment on those complaints. He concludes his letter by noting that if he was asked would he employ the practitioner in the future his answer would be an unequivocal "yes".
The practitioner also relied on a reference from Dr Christopher Gittoes. He explained that whilst he was working on the Emergency Department roster at the hospital he had some contact with the practitioner and he found him to be very caring, empathetic, and professional. Dr Gittoes makes a number of adverse comments on the conditions placed on the practitioner's registration. We do not find it necessary to repeat or refer to those comments as they are irrelevant to the issues for determination before us.
Mr Matthew Moroney is a registered nurse who became acquainted with the practitioner in 2016 when he commenced working as a pathology collector. While he most appropriately acknowledged he could not comment on the practitioner's medical expertise, he explains that he has found the practitioner to be a kind, friendly and helpful man.
A brief reference was supplied by the practice manager who knew the practitioner when he practised in the Centahealth Menai General Practice in 2013. Given the time that has lapsed since the practice manager worked with the practitioner we find we can place little weight on this reference.
The practitioner also relied on character references from Dr M Rahman, Dr Gary Smith (touching on his work as a pathology collector at Laverty), his long term colleague and friend Dr D Nguyen, and Dr A LoMascolo, a general practitioner who worked with the practitioner in 2014. None of the character referees, except Mr Cohen, were required for cross-examination. We accept that the practitioner's referees have found him to be a considerate, caring doctor and a well-regarded work colleague.
The practitioner also relied on a reference from the Reverend Graham Long AM, CEO/Pastor of the Wayside Chapel, King's Cross. The Reverend Long explains in his letter dated 2 October 2018 that he first meet the practitioner who made an appointment with him in May 2017. He states he has met with the practitioner on average monthly thereafter. The Reverend Long says:
The journey that I have witnessed in Dr Karalasingham has been difficult. His exclusion from medical practice has caused significant hardship and although he has accepted this as a just measure, he aches to practice again and is highly motivated to never again make any such or related errors in the future.
The practitioner relies on a report by Dr Jose Menendez, Consultant Psychiatrist. Dr Menendez gave evidence before us by telephone, was cross-examined by counsel for the HCCC and answered questions posed by the panel.
In his report, Dr Menendez responds to specific questions posed to him by the practitioner's solicitors. He opines that the practitioner has accepted the complaints and admits his wrong doing. He opines that the practitioner "has not attempted to provide any explanations or excuses for his conduct. He has accepted those mistakes and he has shown contrition for his conduct".
In response to the question "Whether or not you would support Dr Karalasingham returning to medical practice with conditions and the basis of your opinion in that regard", Dr Menendez refers to a return to medical practice under "very clear stipulated supervision". He states that his impression is that the practitioner "truly and honestly accepts his mistakes and that he is truly and honestly remorseful of his actions". He goes on to opine that the practitioner has learned from his experiences and is now a changed man.
We were unable to give significant weight to the opinion of Dr Menendez or that of Mr Cohen for the following reasons. It was clear from answers given by the practitioner in cross-examination that he sought to minimise his lack of clinical acumen in treating Patient A by referring to findings of other decision makers concerning practitioners involved in treatment of diabetic patients. He made reference to a New England Medical Journal article. We found he sought to portray his actions in his treatment Patient A as being similar to those practitioners, and not ones below the expected standard. He also referred to the patient's fluid chart being hidden, inferring inappropriate action by the nursing staff, rather than acknowledging his failure to locate and consult the chart.
We found the practitioner sought to shift the blame for non-compliance with the supervision condition to the practice manager, and the Council officer. We were unable to accept the practitioner's explanation that he wrote referrals to the psychologist for patients without seeing them because those patients were vulnerable, lacking in insight and would not come to him for a referral.
The practitioner has engaged in many commendable activities since he surrendered his registration. However, the evidence before us of the time demands of his present activities causes us concern that he would, if re-instated, be diligent about complying with conditions which limited his working hours.
The practitioner is currently working two shifts per day for Laverty Pathology, between those shifts he has undertaken voluntary work at Royal Prince Alfred Hospital, engaged in work on weekends at a Salvation Army Nursing Home and also engages in volunteer work on weekends. We raised this work pattern with Dr Menendez when he gave oral evidence. Dr Menendez most appropriately noted that he could only report on the history he received from the practitioner and that this evidence could moderate the views he expressed. Although not engaging in practice 7 days per week, as the delegates found potentially compromising patient safety, those same obsessive work characteristics continue in the practitioner's present activities.
Further, notwithstanding the practitioner had the benefit of undertaking the Monash course in 2015, after completing that course, he again engaged in improper and unethical conduct in making false Medicare claims, forging patient signatures and improperly completing K 10 forms. These were deliberate actions knowingly undertaken by the practitioner. They disclose dishonest traits in his character. We accept, as did Dr Menendez, that the practitioner does show some remorse for his actions. He is clearly remorseful that his actions have resulted in financial hardship, and loss of his professional status and wishes to be able to engage in practice. However, at this point, we are not satisfied that the practitioner has true insight into the wrongfulness of his actions, or the ability to adopt a more balanced work/lifetime regime to ensure safe care and treatment of patients.
[15]
(iii) Is there a risk to the health and safety of the public if the practitioner is allowed to continue practising with conditions?
We repeat and rely on our findings above. We have concluded that, at the present time, on the evidence before us, we are not satisfied that the practitioner could voluntarily adopt a work/lifetime balance that would ensure patient safety over his financial priorities.
[16]
What weight should be given to the deterrence element of our determination?
[17]
What orders are necessary to uphold the reputation of the profession?
It is useful at this point that we consider the two questions we have posed together.
We find the statement of Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 are instructive to these aspects of our decision. His Honour explains:
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
.
In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows:
"The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.
But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted."
In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258):
"It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest."
The practitioner was, notwithstanding the conduct found established, permitted to engage in practice by the now repealed tribunal on the basis that he would strictly comply with conditions imposed on his registration. He failed to do so. We find that the practitioner's conduct in 2014 to 2016 as admitted by him and found by us to be established to the Briginshaw standard requires that we find if he had been registered we would have cancelled the practitioner's registration. Such an action is required principally to ensure the safety of the public. However, it also necessary to send a strong message to the profession that the breach of conditions imposed by a council or tribunal without reasonable excuse and the making of false claims has serious consequences. Further, such an order upholds the reputation of the profession.
[18]
Imposition of a period under s 149C(4)(c) of disqualification, and restriction on applying for review under s 149C(7) of the National Law.
We have already noted that the HCCC seek a period of five years before the practitioner may seek re-instatement as a registered medical practitioner. Such an order requires the exercise of discretion which must be exercised judicially.
We accept that such an order reflects the seriousness of the conduct the subject of the complaint and has a deterrent element. This is well explained by Payne JA in Chen as at [88] follows:
The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order.
We are cognizant that, after receiving legal advice, the practitioner surrendered his registration on 23 September 2016 and that he has taken a number of steps to acknowledge his wrongful conduct and admitted the complaints agitated against him. We find a period of five years from the date of the hearing does not take into account the period during which the practitioner has voluntarily removed himself from the register, his admissions of wrongful conduct, or his endeavours to date to rehabilitate himself. We are satisfied a further period of eighteen months before he may re-apply for a re-statement order is an appropriate period to be imposed on the practitioner.
[19]
Summary of conclusions
We have independently found that the practitioner's conduct as set out in the Further Amended Complaint constitutes both unsatisfactory professional conduct and professional misconduct. Because we are not presently satisfied that the practitioner shows sufficient insight into the circumstances that contributed to his conduct, and having regard to the seriousness of that conduct, we have concluded that, if the practitioner had been registered at the date of the hearing, we would have cancelled his registration. For the reasons given above, we are satisfied that the practitioner should be disqualified for a period of 18 months from the date of these orders.
[20]
Costs
Mr Barnes acknowledged at the conclusion of the proceedings that it would be appropriate to make a costs order in favour of the HCCC. We agree that submission is properly made.
The Tribunal has power to award costs under cl 13 of Schedule 5D of the National Law. The relevant principles to be applied are not in dispute (see Health Care Complaints Commission v Philipiah [2013] NSWCA 342).
We are satisfied that the practitioner, who has been unsuccessful in these proceedings, should pay the costs of the Health Care Complaints Commission of and incidental to these proceedings.
[21]
ORDERS
1. If Rupasenan Karalasingham (the practitioner) was still registered, the Tribunal would have cancelled his registration under s 149C(4) of the Health Practitioner Regulation National Law (the National Law).
2. The practitioner is precluded under s 149C(7) of the National Law from making an application for review of order 1 of these orders for a period of 18 months from the date of this decision.
3. The Medical Council of NSW is requested to promptly notify the Australian Health Practitioner Regulation Agency (AHPRA) that if the practitioner had been registered the Tribunal would have cancelled his registration under s 149C(4)(a) of the National law and imposed a disqualification period under s 149C(4)(c) of 18 months from the date of this decision.
4. The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement as assessed under the provisions of the Legal Profession Uniform Law Application Act 2014 (NSW).
[22]
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
[23]
Amendments
12 February 2019 - Typographical error - Order 4 and Legislation - 2015 amended to 2014
25 February 2019 - Par 45 - updated MNC number
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: 25 February 2019