The applicant's submissions on unsatisfactory professional conduct
We note at this point that the respondent does not dispute unsatisfactory professional conduct. What he disputes is the extent of it, and whether, taken collectively, it amounts to professional misconduct. With this in mind we shall summarise the parties' submissions under this heading with a little more brevity than might otherwise have been the case.
The applicant notes that complaints 1, 2 and 3 allege unsatisfactory professional conduct within section 139B of the National Law. The applicant correctly notes that the conduct alleged in the various particulars in complaints 1, 2 and 3 can be accumulated and considered in their totality to reach a finding of professional misconduct in relation to complaint 4, referring in this regard to Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3 at [39]. As to what constitutes "professional misconduct" the applicant refers to what was said by Kirby P in Pillai v Messiter [No 2} (1989)16 NSWLR 197 where his Honour held that it requires "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner". The respondent notes that his Honour further held that "mere negligence or incompetence" do not amount to misconduct, and that the purpose of a finding of professional misconduct "is not punishment of the practitioner as such but protection of the public from serious the incompetent people who are ignorant of basic rules or indifferent as to rudimentary professional requirements".
The applicant correctly notes that the breach by the respondent of the regulations concerning record-keeping as set out in complaint 2 is deemed to be unsatisfactory professional conduct by section 139 (1) (b) of the National Law.
The applicant notes that complaints 1 and 3 alleged that the respondent engaged in conduct demonstrating knowledge, skill or judgement possessed, or care exercised, by him in the practice of medicine which was significantly below the standard reasonably expected of a practitioner of the equivalent level of training or experience and/or that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
The applicant correctly submits that determining whether a practitioner is guilty of unsatisfactory professional misconduct, as considered in section 139B (1) (a) of the National Law involves an objective assessment of the practitioner's conduct against the standards of conduct expected of an equivalent practitioner, citing authority.
The applicant submits that when assessing what constitutes unsatisfactory professional misconduct, reference may be made to the views of professional brethren of good repute and competency, citing authority, and referring to the standard set out both in the guidelines/policies at exhibit A tabs 34 and 35 of the Medical Council of New South Wales Policy on Self-treatment and Treating Family Members, and the reports of Dr Howle at exhibit A tabs 6 and 8. The applicant submits that the respondent's conduct appears to substantially deviate from any reasonable standards. Both the policy and the evidence of Dr Howle support this conclusion, and unsatisfactory professional conduct is in any event admitted on the admitted particulars of the complaint, as we have said.
The applicant notes that complaints 1 and 3 also allege that the respondent engaged in improper and unethical behaviour as a basis for unsatisfactory professional conduct as referred to in section 139B (1) (l) of the National Law. Correctly, the applicant observes that these words are undefined, but that they bear no special or technical meaning but are to be understood in their ordinary meaning, citing authority.
We do not understand the respondent to submit that he was not guilty of improper and unethical behaviour as a basis for unsatisfactory professional conduct. His submissions appear confined to the proposition that the non-admitted particulars are not proven, and that the admitted particulars, taken together, do not rise as high as to constitute professional misconduct. In these circumstances, and noting that we have found that the non-admitted particulars have been proven on the appropriate standard, we are comfortably satisfied that the respondent engaged in improper and unethical behaviour as a basis for unsatisfactory professional conduct.
The applicant submits that the particulars of complaints 1 and 3, which we interpolate have in our view been proven in their entirety (including the non-admitted particulars) on the requisite standard, cannot be satisfactorily explained as an error of judgement rather than a defect of character, noting that there are numerous acts over a number of years, and that such defect amounts to a total disregard by the respondent of his professional responsibilities under the Code and National Law.
We agree. Generally, we consider that the conduct of the respondent in inappropriate prescribing, as demonstrated by the opinion of Dr Howle, for a person with whom he was engaged in a sexual relationship over a number of years (regardless of course of gender, which is irrelevant) amounts to a defect of character demonstrating a total disregard of the respondent's professional responsibilities.
The applicant notes that the respondent has also admitted, firstly that in respect of the admitted particulars of complaint 1 his conduct amounts to unsatisfactory professional conduct, that in respect of complaint 2 his conduct amounts to unsatisfactory professional conduct.
[2]
Professional misconduct
The applicant submits that given the absence of any comprehensive exploration of the precise boundary between unsatisfactory professional conduct and professional misconduct, the concept of "professional misconduct" should be given a purposive interpretation. Correctly, the respondent notes that professional misconduct refers to that conduct which is sufficiently serious to justify suspension or cancellation of the practitioner's registration, noting that the determination of whether conduct amounts to professional misconduct has at its starting point an objective assessment of the relevant conduct against the standard of conduct reasonably expected of an equivalent practitioner, noting also that the gravity of professional misconduct is not to be measured by reference to the worst-case but to the extent to which the conduct departs from "proper" or "reasonably expected" standards (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [638]).
The applicant submits that both individually (in respect to complaints 1 and 3) and cumulatively the particulars of complaints 1, 2 and 3 demonstrate that the respondent has engaged in sufficiently serious conduct, either individually or when taken together, to justify the suspension or cancellation of his registration. We agree, for the reasons the applicant gives. It notes that the first complaint concerns the provision of drugs to patient A, noting that in the agreed statement of facts, exhibit B, the patient is described as a particularly vulnerable person, this being reinforced by his hospital records, exhibit 3 and the COPS records, exhibit 2. The applicant also notes here the cross-examination of Dr Howle where he agreed as to patient A that as to the prescription of alprazolam set out at page 9 of his initial report, the conduct of the patient could well fit the "classic doctor shopper profile".
Correctly in our view, the applicant submits firstly that the respondent failed to recognise the vulnerability of the patient and continued to feed his addictions, and secondly that such medications were prescribed without consultation with the patient's treating doctors, such that provision of the medication to the patient was undertaken without knowledge of his prescriptions otherwise.
It is also true, as the respondent submits, that the first complaint also concerns repeated breaches of professional boundaries with patient A, which the applicant submits is a breach which in all of the circumstances should be of considerable concern to us, and one which, even in isolation, warrants a finding of professional misconduct. It is tempting to uphold this submission, but we prefer to base our finding of professional misconduct on the whole of the proven particulars of complaint in complaints 1, 2 and 3, taken cumulatively, which we think are together sufficient to justify cancellation of the respondent's registration and to constitute professional misconduct. We make this finding on the Briginshaw standard.
It is nevertheless true, as the respondent submits, that regardless of whether the respondent engaged in a close personal or a sexual relationship, the ethical considerations concerning intimate relationships, both platonic and sexual, between practitioners and patients produce a rupture of a fundamental tenet of the medical profession, flowing largely from concerns about the vulnerability of the patient in relation to the practitioner. Authority is cited, but this seems to us to be self-evidently true, because as the applicant submits, the power imbalance produced between patient and doctor raises the possibility of exploitation or harm.
Correctly, the respondent submits that based on these principles, it is not necessary to demonstrate that harm flowed to the patient by virtue of a relationship with their health professional, noting however that the evidence in this case clearly demonstrates that it did.
The applicant submits that given the overriding concern for protection of patients, the mere fact of the damaging relationship between the respondent and patient A, in conjunction with the clear contravention of the code of conduct for doctors, clearly necessitates a finding of professional misconduct. Again, we prefer to base our finding of professional misconduct on all of the proven particulars of complaint in complaints 1, 2 and 3, taken cumulatively.
It is nevertheless true that the first complaint concerns in part the inappropriate administration of drugs to a patient, and that prescription and handling of drugs of addiction recklessly and contrary to law constitutes professional misconduct, as the applicant submits, citing Spicer v NSW Medical Council (Court of Appeal (NSW), 19 February 1981, unrep).
It is also the case, as the applicant submits, that the respondent's repeated prescribing to patient A who had a propensity to drug dependency indicates a concerning lack of insight or interest in the welfare of the patient, coupled with the respondent's decision to prescribe notwithstanding that he was not the patient's responsible treating doctor, and without liaising with the treating doctor, or knowing what other medications had been prescribed to the patient, and without providing any medical records or basis for his decisions to prescribe, and that these matters added to the risks to patient A and to the departure from expected standards of care.
It is the applicant's submission that even if we did not find the non-admitted particulars established, the respondent has admitted some prescribing of Diazepam to patient A (the applicant refers in this respect to Dr Howle's expert evidence, ex A tab 10 page 2 and tab 13 page 3), and also Tramadol, and that even some of the admitted prescribing should also be of concern where the respondent was not the patient's treating doctor and/or did not inform this doctor or doctors of his prescriptions, especially concerning the prescriptions of Risperidone and Duramine (which should not be prescribed to persons with psychiatric illness who also misuse drugs) lithium carbonate and escitalopram oxalate. For these reasons, the applicant submits that even if we were only to find the admitted particulars of complaint 1 established, we should also find that the respondent's conduct amounts to professional misconduct. The applicant also refers in this regard to the oral evidence of Dr Howle the effect that his view that the conduct in question fell well below that expected of a competent practitioner in the position of the respondent still prevailed assuming only the admitted particulars of complaint 1, a conclusion reinforced where the doctor and patient, as well is being friends, were lovers. To even stronger effect were Dr Howle's answers to questions asked by Dr Diamond concerning the circumstances in which Sibutramine and Risperidone were prescribed to the patient.
The applicant correctly notes that the Risperidone prescription of 27 June 2009 had two repeats, in circumstances where the medical records of the respondent for the patient were non-existent, posing a further threat to the continuity of care provided by the respondent.
The applicant also correctly submits that complaint 3 also demonstrated this regard of the respondent's professional obligations, because the self-prescribing demonstrates the inappropriate administration of drugs and shows that the respondent failed to properly handle and prescribed drugs and has failed to live up to this very great responsibility in a way that is reckless.
The applicant submits that the conduct of the respondent in complaint 1, 2 and 3, both separately (in respect of complaints 1 and 3) and together are serious enough to justify a finding of professional misconduct, and a finding that the respondent's conduct is a serious breach of the standards the public of right to expect of a practitioner. For the reasons already analysed from the applicant submissions, we agree.
[3]
Respondent's submissions as to proof of unsatisfactory professional conduct and professional misconduct
As noted the respondent admits that the conduct admitted in complaint 1 amounts to unsatisfactory professional conduct, and that the admitted conduct in complaint 2 amounts to unsatisfactory professional misconduct. Importantly and realistically, the respondent concedes that if the disputed conduct in complaint 1 is proven, the conduct amounts to professional misconduct. However the respondent does not concede that proof of the matters disputed in complaint 3 necessarily amounts to professional misconduct, the disputed particulars of the complaint being, the respondent says, largely a repetition of the already admitted particulars, save for an additional allegation of combination. We prefer not to base our finding of professional misconduct on the proven particulars on any particular complaint, although we note the respondent's concession, correctly made in our view, that if we found all of the particulars on complaint 1, including the disputed particulars, proven, a finding of professional misconduct should follow. As we have indeed found all of the particulars of complaint 1, including the disputed particulars, proven, it follows that proof of this complaint alone would, on the respondent's concession, have provided a sufficient basis for a finding of professional misconduct.
The respondent contends that if only the admitted conduct in complaint 1 is proved, it leads to a finding that on ten separate occasions over a period of five years, the respondent prescribed medication to patient A. The respondent contends that it is the context in which the prescribing occurs which must be closely assessed to ascertain whether in fact this amounts to professional misconduct. The respondent contends that professional misconduct does permit an assessment as to the respondent's moral culpability in determining gravity. The respondent contends that his "evidence" (referring presumably to his unsworn responses to the applicant's enquiries) as to the terms of his relationship with patient A might be accepted over the patient's own evidence, given that the respondent has been candid and consistent from the outset.
We have already indicated our difficulties with this submission that the unsworn responses of the respondent to the applicant's enquiries ought be preferred over the sworn evidence of the patient, albeit untested in cross-examination, in circumstances where the respondent has failed to explain his failure to give evidence in the witness box, and where it may therefore be inferred that his sworn evidence would not have materially assisted his case in the respects to which it might related. In accordance with legal principle, as we have said, the evidence tendered in the applicant's case, including the oral evidence of patient A, albeit untested in cross-examination, may more readily be accepted in the unexplained absence of sworn evidence from the respondent, and we take that step.
We agree with the respondent that on the evidence, patient A was on any view difficult to deal with from the respondent's point of view. The respondent accepts that his vulnerability by virtue of his mental illness and addiction are factors arguably operating against the respondent. The respondent submits that they also arguably support a finding that the situation in which the respondent found himself had "many shades of grey", which can and did result in substandard conduct, given the difficulties arising in navigating complex individuals and relationships.
We disagree. Not without some sympathy for the respondent, we are of the view that the vulnerabilities of patient A should have been a "red light" to a medically trained person such as the respondent, indicating that any personal, or particularly sexual, relationship with a patient ought be strictly quarantined from any doctor/patient relationship, which should be undertaken by another practitioner altogether. This did not occur.
We disagree with the respondent's submission that taking into account the overall context of the respondent's behaviour and moral culpability, we should not be satisfied that professional misconduct has been proven to the requisite standard, for reasons already expressed. We disagree also with the respondent's submission that the cumulative effect of all three complaints, assuming all of the particulars are proven or alternatively that only the admitted particulars are proven, the aggregate effect is not professional misconduct.
[4]
Conclusion
It is appropriate, as the applicant submits, that on the evidence, together with the admissions made by the respondent, that we should find, as the applicant submits, and we do find:
1. that each particular of each complaint is made out on the evidence;
2. that the respondent is guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law, and
3. that the respondent is guilty of professional misconduct within the meaning of section 139E of the National Law and that he has engaged in more than one instance of unsatisfactory professional conduct such that, when the instances are considered together, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
[5]
Protective Orders
The applicant correctly notes that given the above findings, we will need to consider as part of our discretion what, if any, protective orders are made under sections 149, 149A, 149B and 149C of the National Law. It notes that our disciplinary powers as set out in section 149, which include a range of powers including cautioning, reprimanding or imposing conditions on the registration of a practitioner as well as other matters. However, it notes that where we make a positive finding of professional misconduct, we may under section 149C(1) suspend the practitioner's registration for a specified period or cancel it entirely. It notes that if such an order is made, it may provide that an application for review may not be made until after a specified time. Further, it notes that where the practitioner is no longer registered, as is the case here, we may decide that if the person were still registered, we would have suspended or cancelled the person's registration, and if we would have cancelled the practitioner's registration, we may decide that the person is disqualified from being registered in the health profession for a specified period until specified conditions have been complied with. Much further material is set out as to the orders which we may make, and as to authority concerning their exercise, but shortly, it is our view that it is amply established that the orders the applicant seeks should be made. The departures from the standard of conduct to be expected from a competent practitioner in the position of, and with the experience of the respondent are very grave in our view, and justify the orders the applicant seeks.
We accept the applicant's submissions that our jurisdiction is not punitive but protective of both public health and safety and the profession itself, that there may be a need to protect the public against further misconduct by the practitioner, that there is a need for general deterrence, that the high professional standards of the profession must be reinforced and transgressions must be denounced, and that public confidence in the profession must be maintained. We accept the applicant's submission that the essential question of the practitioner's fitness to practice must have regard to steps he has taken since that conduct occurred, and we note its concession that steps have been taken by the practitioner to mitigate future harm, but that he has only begun this process and much more needs to be done.
As to costs, the applicant notes the power of the Tribunal under Schedule 5D clause 13 of the National Law to require the applicant, a registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another, where so decided by the Tribunal. It notes that it is commonly held that costs will follow the cause, citing authority. Authority is also cited for the proposition that it is for the losing party to establish any departure from the usual rule, which will ordinarily occur only when there has been some sort of disentitling conduct on the part of the successful party. We do not think that there is in this case any reason to depart from the usual rule. Dr Kingston could have admitted the disputed particulars of the complaints but did not. It is particularly significant in our view that he chose not to give evidence but yet contested the veracity of the evidence of patient A. We think he should pay the applicant's costs of the application and we shall so order.
[6]
Respondent's submissions as to protective orders
The respondent submissions in this regard are short. The respondent notes the principles in Litchfield (supra) and other authorities, agreeing with the applicant's submissions that the protection of the public is the paramount consideration, together with the maintenance of the high standards of the medical profession, deterrence not only of the particular practitioner but of others, as a reminder to the profession, and emphasis on the unacceptability of the conduct involved.
The respondent submits that the anticipated order foreshadowed by the applicant at the outset of the proceedings that two years elapse before the practitioner could apply for reregistration is excessive, bordering on punitive, and not required to meet the protective nature of the jurisdiction. He submits correctly that a finding of professional misconduct does not automatically result in a finding of a period of suspension or cancellation. In this regard, he submits the that the light of his having removed his name from the register, the protective aspects of general deterrence and the profession's reputation are of primary importance, so that a period of less than 12 months before renewal could well and truly meet the principles behind protective orders.
We disagree. The departures from the standard of conduct to be expected of a competent practitioner in the position of the respondent, having regard to the fact that all of the complaints are proven and that we have made in consequence of a finding of professional misconduct, are so grave that it is our view that an order should be made to the effect that the respondent may not apply for re-registration for a period of three years from today's date, as sought by the applicant. Only by the making of such an order and consequential orders as sought by the applicant will our protective functions be properly exercised and their premises met.
As to costs, the respondent submits that if only the admitted conduct in complaints 1 and 3 is proved, each party should bear its own costs, and that if the disputed matters in complaint 3 but not complaint 1 are proved, the respondent should only be required to bear 50% of the applicant's costs, as the heart of the complaint lies, in the respondent's submission, in complaint 1.
As it is, we have found that all of the particulars of each of the complaints is proved. As we have said, there appears no proper basis for departure from the usual rule that cost should follow the event, that is, that the respondent should be in the applicant's costs is agreed assessed, and we shall so order.
[7]
Orders
Our orders are as follows:
1. Pursuant to sections 149C (4)(a) of the National Law, the Tribunal decides that if Dr Kingston were still registered as a medical practitioner it would have cancelled his registration on the register of health practitioners, in relation to medical practitioners, kept by the Medical Board of Australia and maintained by the Australian Health Practitioner Regulation Agency.
2. Pursuant to section 149C(4)(b) of the National Law Dr Kingston is disqualified from being registered as a medical practitioner in the medical profession for a period of three years from the date of these orders.
3. Pursuant to section 149C(4)(b) of the National Law the Tribunal requires the Medical Board of Australia to record, in the National Register kept by that Board, the fact that the Tribunal would have cancelled Dr Kingston's registration as a medical practitioner.
4. The Tribunal orders that three years must elapse from the date of these orders before Dr Kingston may make an application for a review under section 163A of the National Law to this Tribunal.
5. The Tribunal orders that Dr Kingston pay the applicants costs of these proceedings as agreed or assessed.
[8]
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
[9]
Amendments
12 March 2018 - 12 March 2018 - Date of Decision amended to actual publication date.
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: 12 March 2018
Mr Britt for the applicant provided written submissions as to these preliminary matters, and in them he summarised correctly the legal principles applicable to proceedings of this kind, and we gratefully adopt these submissions. Although authority is given for all of them, we do not think it is required in large part in the current context, as they appear uncontroversial. We say this because the respondent also made submissions on the same subjects which appear to be essentially in accord with those of the applicant. It is convenient in those circumstances to summarise those of the applicant in these respects, with which we agree. It is to be noted that we have not dealt here with the question of inferences to be drawn from the fact that the respondent did not give evidence, and from the fact that, as we shall explain later, patient A did not return to the hearing for the completion of his cross-examination on the second projected day of his evidence. We shall come to those matters later.
In brief summary, and dealing only with those of particular relevance to the present case, the applicant's submissions on legal principles (with the exception of inferences from the absence of witnesses) and the legislative framework, with which, as we have said, we agree, are as follows.
The Tribunal's jurisdiction is primarily protective in nature, rather than punitive. Authority for this uncontroversial proposition is legion, but in the current circumstances not required.
In exercising its protective jurisdiction, the Tribunal must consider the maintenance of the standards of the medical profession, preservation of public confidence in it and the protection of the community. The protection of public safety and health is paramount: see s 3A of the Health Practitioner Regulation National Law (NSW)(the 'National Law').
Additional considerations such as deterrence against others engaging in similar conduct are a necessary part of maintaining the standards of the medical profession and thereby insuring faith in it and public safety.
The Tribunal should therefore consider any need to protect the public interest against further misconduct by the practitioner, the need to protect the public through general deterrence of other practitioners, the need to do so by reinforcing high professional standards and denouncing transgressions, the maintenance of public confidence in the profession and the desirability of making available to the public any special skills possessed by the practitioner. The second, fourth and fifth of these considerations are relevant in considering the protective orders sought by the applicant. The last does not apply in this case.
While the Tribunal's orders are not punitive in purpose, an unavoidable effect of protective orders may in some cases have an incidentally punitive effect. This must not however be their purpose.
Part 8 in s 144 of the National Law outlines the possible grounds of complaint against a health practitioner, including that they have been guilty of unsatisfactory professional conduct or professional misconduct. Importantly, "unsatisfactory professional conduct" is defined in s 139B of the National Law as including:
…
(a) 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.
(b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
…
(l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
…
Under s 139B(1)(b) contravention of either the National Law or of the Regulations made under the National Law is grounds for finding unsatisfactory professional conduct.
Part 4 clause 7 (1) of the Health Practitioner Regulation (New South Wales) Regulation 2010 requires a medical practitioner, in accordance with that part and Schedule 2, to keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation. Subclause (2) provides that it is not an offence, but may constitute behaviour for which health, conduct or performance action may be taken.
Also importantly, s 139E of the National Law defines "professional misconduct" as either unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 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.
The Tribunal is not bound by the rules of evidence: Civil and Administrative Tribunal Act 2013 (NSW), s 38(2).
But the Tribunal is subject to rules of procedural fairness: Sudath v HCCC [2012] NSWCA 171 at [75]. Although it may inform itself in any way it thinks fit, decisions must still be based on material which tends logically to show the existence or non-existence of the facts relevant to the issues to be determined: Sudath at [79].
In dealing with more than one complaint about a registered health practitioner, the Tribunal may have regard to all of the evidence before it, whether it arose in relation to a complaint in respect of which the Tribunal is making a finding or any other complaint or complaints, when making a finding that a registered health practitioner is guilty of unsatisfactory professional conduct or professional misconduct.
Proceedings of the present nature are referred to as an inquiry by the National Law. These matters stamp the Tribunal's work with an inquisitorial model, and it is not a court and should not be treated as a court of strict pleadings, and complaints are not pleadings. The Tribunal makes an evaluative judgement as to the seriousness of the misconduct and the inferences which should be drawn. Nevertheless judicial power is being exercised: see Johnson v Dibbin; Gatsby v Gatsby [2018] NSWCATAP 45.
The burden of proof before the Tribunal is the Briginshaw test, requiring reasonable satisfaction on the balance of probabilities, while having regard firstly to the gravity and importance of the issues to be determined, and the possible consequences of a finding of guilt: see Briginshaw v Briginshaw (1938) 60 CLR 336 at [360]-[363] and other authorities. But a number of authorities caution that this test does not require that the Tribunal be "comfortably satisfied", for this implies a higher standard than the balance of probabilities.
Importantly in this context, properly read, it is the applicant's submission that a reliance on the pharmaceutical records in evidence in this case concerning prescriptions, which on their face value are written by the respondent for himself and patient A, may create "reasonable satisfaction" in the mind of the Tribunal that they were written by the respondent, since it is not based on inexact proofs, indefinite testimony or indirect inferences (see Briginshaw). Although the applicant's submissions appear to state the reverse proposition, we think this is a slip. We shall return to this submission later.
As to the role of the Tribunal, it must consider whether, as a matter of evidence, some if not all of the particulars of the complaint are made out. Correctly, the applicant submits that the admissions of the respondent will make such consideration easier in respect to some complaints. Correctly, the applicant submits that the Tribunal must then consider whether the established particulars amount either to unsatisfactory professional conduct or professional misconduct within the statute, this task again having been made easier by the admissions of the respondent in respect of complaints 1, 2 and 3 regarding unsatisfactory professional conduct. Again correctly, the applicant submits that only if the Tribunal is satisfied of either unsatisfactory professional conduct or professional misconduct will it need to consider what, if any, protective orders are to be made pursuant to sections 149, 149A, 149B and 149C of the National Law.
Inferences from the absence of witnesses
It is convenient at this point to deal with inferences, if any, to be drawn from the absence of witnesses before dealing with the evidence of the particular complaints, because the parties in their submissions dealt with this subject before coming to the evidence of the complaints. Rather than separately setting out our consideration of the parties' submissions on this subject, it is convenient as we summarise them to indicate our consideration of them. The applicant's submissions as to appropriate inferences, omitting some case citations for brevity, are as follows:
Failure of the Respondent to give evidence
1. The Respondent did not give evidence despite being available in the sense he was present in the Tribunal on the second day.
2. The Tribunal is entitled to draw inferences from the failure of the respondent to attend the hearing and from his "silence".
3. In Bowen-James v Walton (NSWCA, 5 August 1991, unrep), After referring to passages to similar effect in Ibrahim v Walton (NSWCA, 23 April 1991, unrep) (Hope AJA, Samuels and Priestley JJA agreeing), the Court continued:
"In our opinion there is no right to silence or any privilege against self-incrimination upon which a medical practitioner, answering a complaint before the Tribunal, is entitled to rely. Indeed, we would endorse the observations made by Hope AJA in Ibrahim. There is a public interest in the proper discharge by medical practitioners of the privileges which the community accords to them, and in the due accounting for the exercise of the influence which the nature of the occupation permits them, and indeed requires them, to exert over their patients. They are not, of course, officers of the Supreme Court and, accordingly, the precise force of the decision in In Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN(NSW) (Pt 1) 136, particularly what was said at 141-2, cannot apply. Nevertheless, we are of the opinion that if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts." [underlining added]
4. But the above comments in Bowen-James may need to be followed with caution in the light of Rich v Australian Securities and Investments Commission [2004] HCA 42]. The Tribunal as a matter of law may draw adverse inferences as a result of the Respondent's failure to give evidence as to explanations to his conduct.
5. A specialist Tribunal is not obliged to draw an adverse inference in the absence of an explanation from the respondent. Such an obligation would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation.
6. The Respondent provided no reason for the failure to give evidence.
7. Those areas in which he could have given evidence and then have that evidence tested go to: how the pharmaceutical records in respect to the non-admitted particulars of Complaint One which demonstrate the scripts for Patient A from the Respondent were not actually from the Respondent; and how the non-admitted matters of Complaint 3 were either not contrary to the Guidelines for self-treatment and treating family members including whether such medications were initiated by the Respondent and/or what was the appropriate therapeutic purpose of the medications and the basis for quantity.
8. In respect to the first of these matters the Respondent conceded that if the non-admitted particulars of Complaint One were made out, then that by itself would demonstrate professional misconduct which demonstrates the importance of this matter in the proceedings. This latter matter also demonstrates the potential adverse consequences for the practitioner of failing to proffer an available explanation.
9. The Tribunal is entitled to draw adverse inferences from the Respondent's silence on matters peculiarly within his knowledge which certainly includes all the non-admitted matters in Complaints One and Three.
10. Such an adverse inference can be drawn notwithstanding the Respondent has provided a statutory declaration undertaking never to work as a medical practitioner again; not subsequently working in the provision of health services; providing a statement to the Commission; admitting some of the complaints; and participating in the preparation of an agreed statement of facts does not mean an adverse inference may not be drawn against the Respondent. The Tribunal may draw an inference against the Respondent in circumstances where he has provided responses to the Applicant and otherwise co-operates with the Applicant, but is not prepared to be cross-examined as to the statement's contents.
11. The entitlement to draw any inference adverse to the interests of the Respondent to those circumstances where his evidence about a particular matter would have been of assistance in prosecuting any particular situation which he had advocated in his interests for the purpose of the proceedings. The Tribunal is entitled to rely on such evidence as is available about a particular matter in the absence of any evidence from the Respondent which is prima facie available to him, assuming, of course, that it is safe and appropriate to rely on the evidence otherwise available.
12. It is significant that the Respondent's failure to give evidence deprived the Tribunal of the opportunity to see and hear the Respondent. For instance, it was not possible for the Tribunal to understand or assess his conduct or possible rationale for self-prescribing and any explanation for the scripts filled by Patient A prima facie from the Respondent.
13. In all the circumstances the Tribunal should draw a negative inference against the Respondent. The failure of the Respondent to give evidence and be cross examined on the replies he provided the Applicant (Ex A Tabs 10, 11 and 13) mean the Tribunal should draw the inference that his evidence in the proceedings would not have assisted his case in providing explanations in respect to those matters not admitted in Complaints One and Three and therefore ignore those unsworn and untested explanations for the Respondent's conduct.
14. Secondly, the failure of the Respondent to give evidence means the Tribunal is entitled to rely upon the pharmacy records to establish the non-admitted particulars of Complaint One.
15. Reliance on these records is also consistent with the presumption of regularity. The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the later carries with it a presumption of the due performance of the prior act".
16. The presumption of regularity is by no means restricted, in its application, to public acts or acts of public officials.
17. The presumption can be rebutted on the evidence but no such evidence exists here.
18. Further, in the absence of the Respondent giving evidence there is no cogent evidence for the reasons he was self prescribing in respect to the disputed particulars of Complaint three or any explanation to rebut the prescribing in respect to the contested particulars in Complaint one. The material found in Ex A Tab 10, 11 and 13 is not sworn nor was it tested in cross-examination.
Complaint 3
As to complaint 3, the applicant's submissions and our response to them in summary are as follows. The applicant notes that in respect to complaint 3, the respondent asserts in his explanation that most of the doctors would tell him to write the scripts and that they would see him again in a year or so (exhibit A tab 13 page 4). Correctly, the applicant notes that none of these doctors were called to verify this matter, and submits that we should draw a Jones v Dunkel inference concerning the unlikely evidence. No explanation is provided for the absence of these doctors by the respondent, nor is any reason provided while they could not provide documentary evidence attend and give evidence in oral form. In these circumstances we infer that their evidence, if given, would not have positively assisted the respondent's case.
Correctly, the applicant notes that the respondent's use of Tramadol following the cessation of Moclobemide is also not borne out by the records, and that the respondent commenced self-prescribing Tramadol in October 2013 (see exhibit A tab 32 page 4.) However we find ourselves unassisted by the applicant's submissions as to when Tramadol and Moclobemide were taken together, because this matter is not crucial to the question of whether the prescribing of these medications was in the circumstances clinically inappropriate and below the standards expected of a competent practitioner.
Correctly, the applicant notes that the respondent's record of medications at exhibit A tabs 31 and 32 shows very limited prescribing of medications by other practitioners (there being one occasion of prescription at tab 31 by Dr Shields at page 2, and prescriptions at tab 32 by Dr Northover on 12 occasions after 15 June 2015, and on one occasion by Dr Calder on 9 October 2013 and one by Dr Pincott on 15 January 2010.)
Correctly, the applicant submits that there appears no reason for the introduction of the medications that form the subject of the complaint. The applicant correctly notes that the prescriptions written by the respondent were the subject of criticism by Dr Howle (see exhibit A tab 6 pages 11-13). Correctly, the applicant submits that the self-prescribing is prima facie inconsistent with the Codes of Conduct at 9.2.2 in that the respondent did not seek independent objective advice. The respondent also refers in this regard to the Medical Council of New South Wales policy on "Guidelines for Self-treatment and Treating Family Members" (exhibit C).
Correctly, the applicant submits that the expert evidence of Dr Howle clearly establishes complaint 3. It submits that the Tribunal is constituted deliberately as an expert body dealing in a practical matter with problems faced in the practice of medicine (see Basten JA in Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]; and see also Kalil v Bray (1977) 1 NSWLR 356 per Street CJ at [261]-[262] and Minister for Health v Thomson (1985) 8 FCR 213 at 224). Correctly, the applicant notes that the Tribunal, as an expert committee, may form its own view and it is not bound to accept the evidence of an expert (see Prakash at [91]). However, the applicant submits that given the presence of medical practitioners on the Tribunal, it should be satisfied that the respondent's conduct in self-prescribing was both inappropriate in that the medication was prescribed contrary to the Medical Council of New South Wales Policy "Guidelines for Self-treatment and Treating Family Members" and/or contrary to recognised clinical standards.
Put simply, we agree with the applicant's submissions just set out. In particular, we agree with the following propositions which we draw from the applicant's submissions:
1. In all the circumstances the Tribunal should draw a negative inference against the Respondent. The failure of the Respondent to give evidence and be cross-examined on the replies he provided the Applicant (Ex A Tabs 10, 11 and 13) mean the Tribunal should draw the inference that his evidence in the proceedings would not have assisted his case in providing explanations in respect to those matters not admitted in Complaints One and Three and therefore ignore those unsworn and untested explanations for the Respondent's conduct.
We accept this proposition because there is absolutely no explanation from the respondent for his failure to give evidence which one might infer he knew might have assisted his case, and, one might infer, in full possession of legal advice from his counsel at the conclusion of the applicant's case at the hearing as to the possible effect of his failure to give evidence.
As to the respondent's failure to give evidence, put simply, we agree with the applicant's submission that the Tribunal is entitled to draw adverse inferences from the respondent's silence on matters peculiarly within his knowledge, which certainly includes all the non-admitted matters in complaints 1 and 3.
We agree that such an adverse inference can be drawn notwithstanding that the respondent has provided a statutory declaration undertaking saying he intends never to work as a medical practitioner again; has not subsequently worked in the provision of health services; has provided a statement to the Commission; has admitted some of the complaints; and has participated in the preparation of an agreed statement of facts. These matters do not necessarily produce the result that an adverse inference may not be drawn against the Respondent. We agree that the Tribunal may and should draw an inference against the respondent in circumstances where he has provided responses to the applicant and otherwise co-operates with the applicant, but yet is not prepared to be cross-examined as to the statement's contents or as to his responses generally.
2. Secondly, the failure of the respondent to give evidence means the Tribunal is entitled to rely upon the pharmacy records to establish the non-admitted particulars of Complaint 1.
We agree with this proposition because, apart from a bare assertion of possible forgery of prescriptions in his Further Amended Reply and in his unsworn responses to the applicant's enquiries, the respondent has called no evidence to suggest that the pharmaceutical records may be in any way inaccurate.
3. Reliance on these records is also consistent with the presumption of regularity. The presumption of regularity has also been described as one which "arises from the ordinary course of business", being "a rule of very general application, that where an act is done which can be done legally only after the performance of some prior act, proof of the latter carries with it a presumption of the due performance of the prior act".
We agree with this proposition because it seems to us that the presumption of regularity does apply here. One may assume, in the absence of evidence to the contrary, and in the presence of a legal obligation to keep such records accurately, that the pharmaceutical records were kept regularly. This appears to us to follow from authority cited by the applicant, namely McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 850 per Griffith CJ (Barton and O'Connor JJ agreeing).
4. The presumption of regularity is by no means restricted, in its application, to public acts or acts of public officials.
We agree with this proposition. Again this follows from authority cited by the applicant, namely Popovic v Tanasijevic (No 5) (2000) 34 ASCR 134 at [85] per Olssen J.
5. The presumption can be rebutted on the evidence but no such evidence exists here.
We agree with this proposition, again because the respondent has not sought to rebut this proposition by calling sworn evidence in his own case or drawing attention to evidence in the applicant's case (of which there is none) rebutting the presumption of regularity relied upon by the applicant here.
6. Further, in the absence of the Respondent giving evidence there is no cogent evidence for the reasons he was self-prescribing in respect to the disputed particulars of Complaint 3 or any explanation to rebut the prescribing in respect to the contested particulars in Complaint 1. The material found in Ex A Tab 10, 11 and 13 is not sworn nor was it tested in cross-examination.
We agree with this proposition because it is self-evidently the case that there is no sworn evidence from the respondent, nor any evidence to which he might point in the applicant's case, as to the reasons he was self-prescribing in respect of the disputed particulars of complaint three, nor any evidence in rebuttal of the disputed particulars in the same respect in complaint 1. It is also true that the material found in Ex A Tab 10, 11 and 13 is not sworn nor was it tested in cross-examination. We fail to see in these circumstances that it should be regarded by us as reliable.
The respondent's submissions as to the failure of the respondent to give evidence are as follows:
1. The respondent submits that the failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. The rule in Jones v Dunkel relates to the unexplained failure of a party to give evidence which may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case: Jones v Dunkel, supra at 320. However, an unfavourable inference cannot be drawn solely on the basis that the witness was not called. There must be a basis elsewhere in evidence to support that inference: Health Care Complaints Commission v Liu [2017] NSWCATOD 18, [87]; Health Care Complaints Commission v Vega [2015] NSWCATOD 62, [128]; Gaskell v Denkas Building Services Pty Ltd (2008) NSWCA 35, [48].
This proposition is correct as a matter of law, as the respondent sets out, and it is sufficient to say that we agree with it.
2. It can be in some circumstances sufficient that there is an explanation for the absence of the evidence, the bona fides of which explanation is unquestioned and accepted: Elleray v Rail Corporation New South Wales [2013] NSWTAB 7, [132].
Again this proposition is correct as a matter of law and we agree with it.
3. In this case the respondent did not give evidence. He asserted in correspondence with the Commission that it was his belief the scripts the subject of Complaint One- were forgeries. In the absence of those scripts being available for comment and scrutiny by the respondent, it is submitted that no adverse inference in accordance with Jones v Dunkel would be drawn in this case regarding findings relevant to Complaint 1. We submit that the respondent's election not to give evidence in those circumstances is entirely understandable. This is not a case where the respondent had matters "peculiarly within his knowledge". Precisely the opposite- namely he has no knowledge as to how the dispensing outlined in Schedule A came to be, save for 6 scripts- and believes that he has been the subject of fraud."
We do not agree with this proposition. Apart from the respondent's bare assertion, untested in evidence, that he has no knowledge as to how the dispensing outlined in Schedule A came to be, apart from six scripts, he provides no evidence that this is so, nor any basis upon which it might be inferred that he has been the subject of fraud. On the contrary, we consider that the respondent could and should have given evidence in relation to these matters and failed to do so in full knowledge that they were relevant and perhaps crucial to his case, and that in these circumstances it may be inferred against him that he is aware of how the dispensing outlined in Schedule A came to be, and has no basis, apart from sheer speculation, for his allegation of fraud, which we do not accept.
4. The Court of Appeal in the decision of Lucire v Health Care Complaints Commission [2001] NSWCA 99 held at [132]:
"…there is no support for the proposition that a specialist Tribunal (whether a jury or a disciplinary Tribunal) is obliged to draw adverse inferences in the absence of an explanation from the respondent. Such an obligation (at least as expressed in such absolute terms) would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation." [Emphasis added].
As a matter of law this proposition is self-evidently correct, so far as it goes. We do not consider ourselves to be under an obligation to draw an adverse inference against the respondent to the effect that his evidence would not have materially assisted this case. We simply consider, from reasons already expressed, that in circumstances where the respondent self-evidently chose not to give evidence at the conclusion of the applicant's case, with legal advice available to him as to the possible effect of this step, and without any evidentiary explanation for it, that an adverse inference ought be drawn to the effect set out above.
5. Lucire is consistent with previous authority on the question of whether adverse inferences could be drawn from a practitioner's election not to give evidence. In Health Care Complaints Commission v. Wingate (2007) 70 NSWLR 323, at [43]-[51] per Basten JA, with whom Harrison AJA agreed, referred to earlier decisions of the Court in which the effect of a medical practitioner's right to silence in the context of disciplinary proceedings was considered, including Edelsten v. Richmond (1987) 11 NSWLR 51, Ibrahim v. Walton (Court of Appeal, 23 April 1991, unreported) and Bowen-James v. Walton (Court of Appeal, 5 August 1991, unreported). Although in these earlier cases the Court considered the question in terms of the practitioner's right to silence on the one hand and the practitioner's duty of candour on the other, there was no suggestion that the practitioners were obliged to give evidence. Rather, the Court considered that adverse inferences could (not would) be drawn against them in disciplinary proceedings if they did not.
Again this proposition is self-evidently correct as a matter of law, as far as it goes. There is no suggestion in law that the practitioner's duty of candour extends to an obligation to give evidence. So to say, however, does not protect the practitioner from the risk that if they choose not to give evidence as to material matters that could have been raised in reply to the applicant's case, an adverse inference might be drawn that such evidence as they might have given might not have materially assisted their case.
On 25 November last Ms Mathur filed further submissions for the respondent to similar effect. What we have already said is, we think, sufficient reply to them.
We consider that the applicant's submissions in regard to this complaint are correct because it appears to us to be clearly established, both from the relevant policies and from the expert evidence of Dr Howle, that the relevant prescribing by the respondent was inappropriate and fell below the standard reasonably expected of a competent practitioner in the circumstances in which the respondent found himself. His failure to give oral evidence does not of course add to proof of the case advanced against him by the applicant, but it allows for the inference, which we draw, that his evidence would not have positively assisted the unsworn responses he makes to this complaint, which, as set out above, we reject.