Health Care Complaints Commission v Labana

NCAT Occupational|2024-04-03|Before: Jennifer Boland AM

Background facts

The Practitioner completed a Bachelor of Medicine/Bachelor of Surgery at the University of London in 2001.
He was first registered to practise medicine in New South Wales on 7 June 2005. In 2011 he became a member of the Fellowship of the Australasian College for Emergency Medicine.
On 15 February 2020, the Practitioner assaulted a female security guard at Ryan's Hotel, Thirroul. He also had been excluded from entering licensed premises but had re-entered them.
On 8 March 2020, the Medical Council imposed practice conditions on the Practitioner's registration and referred the matter to the Impaired Registrants Panel.
The Practitioner was charged on 19 March 2020 with Assault Occasioning Actual Bodily Harm (AOABH) and with being an excluded person who had re-entered licensed premises arising from the incident on 15 February 2020.
On 26 June 2020, the Practitioner agreed to voluntary suspension of his registration following an inquiry under s 173 of the National Law before the Impaired Registrants Panel.
On 13 August 2020, the Practitioner pleaded guilty to the charges arising from the incident on 15 February 2020 and was convicted and sentenced.
On 8 November 2020, the Practitioner assaulted his new boyfriend at the boyfriend's home and was charged on that day with AOABH in domestic violence circumstances. The Practitioner defended the charge.
On 13 November 2020, the Practitioner agreed to practice conditions being imposed on his registration, including complying with the drug screening policy and attending for random urine drug and quarterly hair/drug screening.
The charges arising from the incident on 8 November 2020 was heard on 15 February 2021. The Plaintiff was found guilty. On 18 March 2021, the Plaintiff was sentenced.

Complaint 1

Complaint 1 relates to two distinct incidents of criminal conduct by the Practitioner prosecuted by the New South Wales Police in the Local Court of New South Wales.

First criminal conviction

The Practitioner's first criminal convictions arose from an incident that took place on 15 February 2020. The Applicant has provided in Exhibit 1, the agreed statement of facts (pp 170-172); the transcript of the court proceedings on 13 August 2020 before Magistrate Kiely (commencing at p 172 of Exhibit 1); the Conditional Release Order dated 13 August 2020 (pp 190-192 of Exhibit 1) and the New South Wales Criminal History - Bail Report (pp 327-329 of Exhibit 1).
The Practitioner was charged on 19 March 2020 with two offences: 1. Section 51 of the Crimes Act 1900 (NSW), namely, assault occasioning actual bodily harm ("AOABH"); and 2. Section 77 of the Liquor Act 2007 (NSW), namely, excluded person re-entering premises.
The agreed Statement of Facts includes the following information: At somewhere between 8pm and 8:30pm the Practitioner was observed at Ryan's Hotel to be behaving in an intoxicated manner. As a result he caught the attention of a security guard employed to work at the hotel. The victim approached the accused and directed him to stop smoking in a non-smoking area, giving him multiple warnings. The Practitioner involved himself in an argument with the hotel manager about why he was being refused service of alcohol. The Practitioner was then escorted out of the hotel and across the road by the other security guard at the hotel. At about 11pm the victim was conducting her rounds and her attention was drawn to the fact that the Practitioner had returned to the premises. The manager of the hotel asked the Practitioner to leave. The Practitioner continued to behave in an intoxicated manner. The victim walked over and told the Practitioner "you need to leave we are closed". The Practitioner started walking towards the door. The victim was standing behind the Practitioner ushering him out. The Practitioner then turned around. The victim placed her hands on his elbow to keep ushering him out. The Practitioner then with two hands pushed the victim backwards. The victim placed her hands behind herself to stop her fall and fell into bar stools and became tangled in them and fell to the floor. The victim sustained significant injuries breaking both her wrists, breaking a tooth and sustaining bruising.
In her judgment on 13 August 2020, her Honour indicated that the AOABH offence was just above the mid-range of objective seriousness.
In relation to the AOABH offence, the Practitioner was convicted and sentenced to a conditional release order for a period of two years which was subject to the following conditions: That the Practitioner: (a) must not commit any offences. (b) must appear before the court if called on to do so during the term of the order. (c) continue to attend appointments with his psychiatrist, Dr Gordon Davies, or delegate at regular intervals. Frequency should be as clinically indicated and deemed necessary by psychiatrist or delegate and not less than once every two months. (d) should continue to attend appointments with Claire Goodsall, psychologist. (e) should take medication as prescribed by his psychiatrist or general practitioner. The medication regime will be adjusted according to clinical indicators. (f) should engage in psycho-social interventions as directed by his case manager or psychiatrist. (g) should abstain from all illicit substances and alcohol. (h) should submit urine sample for analysis as directed by his case manager or psychiatrist for analysis for illicit substances.

Second criminal conviction

On 8 November 2020, the Practitioner was involved in a further violent incident in the home of his then boyfriend. The Practitioner and the victim had been in an intimate relationship for about six weeks. On Sunday 8 November 2020, the Practitioner and the victim went to the Imperial Hotel in Erskineville for lunch with a friend of the victim. The victim and the accused consumed approximately four bottles of wine and numerous alcoholic beverages between 1pm and 5:30pm.
While at the location, the Practitioner initiated an argument with staff at the bar and was asked to leave. The victim encouraged the Practitioner to leave and organised for an Uber to pick them up from the location.
About 6:15pm, the Practitioner and the victim returned to the victim's unit. They were greeted by another occupant of the unit who was a witness to the aftermath of the violent incident. The victim held his hand up at the witness and proceeded to his room. The Practitioner remained in the kitchen. The witness returned to his room, shut his door and turned his telephone on.
The Practitioner then entered the victim's room and an argument was reignited. The argument then moved to the balcony. While arguing, the Practitioner began to swing punches at the victim, with one connecting with the victim's face. The victim then attempted to hold the Practitioner down to prevent the Practitioner from continuing to assault him. The victim stated, "please stop, let's be reasonable". After this, the Practitioner then swung numerous closed fist punches towards the victim's face, with approximately four punches making contact with the victim's face and mouth, causing lacerations and bleeding. The victim lost a significant amount of blood and both the Practitioner and the victim were covered in blood. The Practitioner was arrested by police and charged with assault occasioning actual bodily harm, domestic violence (pursuant to s 59(1) of the Crimes Act).
The Applicant has provided the following documents: 1. Court attendance notice fact sheet dated 8 November 2020 2. Statements of three police officers 3. Transcript of contested hearing and finding of guilt dated 15 February 2021 4. Sentencing transcript dated 18 March 2021 5. Certificate of conviction dated 18 March 2021 6. Community Corrections Order dated 18 March 2021.
On 15 February 2021 the DV AOABH hearing proceeded by way of contested hearing before Magistrate Kennedy. Several police officers, the victim and the witness gave evidence. The Practitioner gave evidence asserting that his actions were in self-defence.
Following the hearing, Magistrate Kennedy gave an ex tempore judgment in which she made the following findings: 1. The victim gave honest and reliable evidence giving a compelling account in the contemporaneous statement that he gave on 8 November 2020 which was recorded by the police on that date. 2. The objective evidence (being the photographs of the victim's injuries) was consistent with the victim's account. 3. The eyewitness to the end of the incident was an honest and reliable witness. 4. The Practitioner's account did not provide an explanation as to how the victim obtained his injuries. The Practitioner was not injured in the incident. 5. The Practitioner gave inconsistent evidence between his interview with the police and the evidence in court and it was concluded that ultimately his evidence was not of great assistance. 6. The account of the victim was accepted and her Honour accordingly found that the offence was proven.
The matter was adjourned to 18 March 2021 for sentencing.
At the sentencing hearing on 18 March 2021, because the DV AOABH offence occurred only three months after the imposition of the CRO on 13 August 2020, there was a "call up" because of the breach of the condition of that order by the commission of the further offence. The Practitioner was resentenced in relation to the first offence and both assault offences were dealt with together. The Conditional Release Order was vacated and the Practitioner was convicted and sentenced to Community Corrections Order for a period of two years and was fined $3,500.
There is evidence before us that the offence of AOABH carried a maximum penalty of five years imprisonment (see pp 165 of Exhibit 1 at ln 23 and the provisions of s 59(1) of the Crimes Act).
We are satisfied on the balance of probabilities, that the Practitioner has in this jurisdiction, been charged and convicted of two separate offences, that are punishable by 12 months imprisonment or more. Accordingly, the Tribunal is satisfied that complaint 1 is made out.

Complaint 2

Complaint 2 by the Applicant alleges that the Practitioner failed on two occasions to notify the Australian Health Practitioner Regulation Agency (AHPRA) within seven days of being charged with an offence that is punishable by 12 months imprisonment or more and a further failed to notify within seven days of the second conviction on 18 March 2021 of an offence punishable by 12 months imprisonment or more.
On 15 April 2020, the lawyer who then acted for the Practitioner sent an email to AHPRA in the following terms: On 9 April 2020, I was engaged to act for [the Practitioner]. On behalf of [the Practitioner] I notify pursuant to s 130 of the Health Practitioners Regulation National Law that my client was charged with an offence under s 59(1) of the Crimes Act 1900 on 19 March 2020.
As is self-evident, this letter was some 27 days after the date upon which the Practitioner was charged and well exceeds the seven day period provided in s 130 of the National Law. We are satisfied from the evidence at pages 332-333 of Exhibit 1 that no earlier notification had been made to APHRA of the charge of 19 March 2020.
On 19 August 2020, the lawyer for the Practitioner emailed APHRA and gave notice of the two offences of which the Practitioner was convicted on 13 August 2020. That notification was within time.
In relation to the second charge of AOABH on 8 November 2020 and the Practitioner's conviction in respect of that charge on 18 March 2021, we are satisfied based upon the evidence at pages 332-333 of Exhibit 1, that the Practitioner failed altogether to give any notice to APHRA of this charge and this conviction.
The evidence indicates that he was charged at the scene of the assault on 19 March 2020 and although under the influence of alcohol at the time, he was subsequently later that day declared by paramedics not to be intoxicated. We find that the Practitioner was well aware he had been charged with a serious offence on 18 November 2020. He also would have been well aware that by so offending, he had breached at least two conditions of his conditional release order of 13 August 2020, namely conditions not to reoffend within a two-year period and not to consume alcohol in that period.
The Practitioner was in attendance by way of audio-visual link at the Downing Centre Local Court having given evidence in the proceedings on 15 February 2021 and having been convicted on that day and further, by AVL again on 18 March 2021 for sentencing (see the transcript of the proceedings of 15 February 2021 at p 238 and following of Exhibit 1; and the transcript of the proceedings of 18 March 2021 at p 297 and following of Exhibit 1).
We are comfortably satisfied that on three occasions the Practitioner contravened s 130 of the National Law by failing to notify the National Board within seven days of being charged or convicted of a criminal offence punishable by 12 months imprisonment or more. Accordingly, complaint 2 is made out.

Complaint 3

The Applicant alleges that the Practitioner contravened s 139B(1)(c) of the National Law by failing to submit to random urine drug testing on five occasions between 30 November 2020 and 22 April 2021 and that such action was in contravention of condition 8 of the conditions applying to the Practitioner's registration at that time.
It is relevant to set out, in brief terms, the history of the Practitioner's registration from 8 March 2020. On 8 March 2020, the Medical Council imposed practice conditions on the Practitioner's registration. Additionally, he was referred to the Impaired Registrants Panel (IRP).
On 26 June 2020, the Practitioner agreed to voluntary suspension of his registration. That suspension followed an inquiry pursuant to s 173 of the National Law before the IRP, which opined the Practitioner was impaired by a substance abuse disorder and the Delegates were concerned by the Practitioner's denial of substance abuse; his lack of engagement with any addiction specialist and the absence of drug testing.
On 13 November 2020, the Practitioner agreed to practice conditions being imposed on his registration. From 22 November 2020 to 3 June 2021, the Practitioner's suspension was lifted, and he was subject to conditions. Condition 8 specifically required that the Practitioner comply with the Medical Council's Drug Screen Policy and Participant Procedure (as varied from time to time) and undertake drug screening, as well as attend for random urine drug screen and quarterly hair follicle drug screening.
The Practitioner was sent an email by the Medical Council of New South Wales dated 25 November 2020 which set out these conditions (see pp 9-16 of Exhibit 2). The Practitioner was required to undertake supervised urine sample collection for a minimum of 15 screens in each six-month period. The condition required the Practitioner to ring a provider number each weekday to ascertain whether he was required to attend screening on that day. The test results summary document is at pages 140-144 of Exhibit 1. It discloses that the Practitioner failed to submit a random urine drug test on five occasions: 1. 1 December 2020 2. 16 February 2021 3. 19 March 2021 4. 22 March 2020 5. 21 April 2021
After the conditions on the Practitioner's registration were sent to him by email on 25 November 2020, he responded to the Medical Council by email on Friday 27 November 2020. It is clear from that response that the Practitioner had received the communication of 25 November 2020. He made an inquiry as to who would be paying for the tests. In an email dated 27 November 2020 in response, the Medical Council indicated that that was the Practitioner's responsibility and reminded him, "please continue to ring the random collection number 1800 654 068 each weekday between midnight and 5pm to ascertain whether you are required to attend screening that day" (see p 7; Exhibit 2).
In relation to the breach on 1 December 2020, the Medical Council attempted to contact the Practitioner on 14 and 15 December 2020 to talk to him about his missed random drug screening on 1 December 2020. Voice messages were not answered. An email was sent on 15 December 2020 and the Practitioner contacted the Medical Council that day. The Practitioner was reminded in that conversation of the initial letter that was sent to him on 25 November 2020; the conversation that had taken place on 27 November 2020 and the email that was sent to him on the same day. All of those communications specifically explained to the Practitioner he needed to ring the random screening hotline number each weekday to find out whether he needed to screen on that day or not. The Practitioner asserted he misunderstood the instructions; that he was expecting to receive a roster telling him the dates of his screens and that he does not check his emails that often. The Practitioner undertook a screening test on 16 December 2020 (see pp 21-23 of Exhibit 2).
It is disturbing that, very shortly after the imposition of the condition on his registration in relation to drug testing, the Practitioner was already non-compliant with that condition. The Practitioner's response was unsatisfactory, suggesting that he had misunderstood clear instructions. His explanation of why he had not done the testing is totally inadequate given that he was provided with three different sources of information which clearly explained what his obligations were.
In relation to the second breach on 16 February 2021, the Practitioner provided a medical certificate as an explanation of why he failed to attend for testing. That certificate is at pages 25 and 26 of Exhibit 2. The certificate was obtained by the Practitioner pursuant to a tele-health consultation on 22 February 2021. It is unclear why a more comprehensive and descriptive certificate was not obtained, contemporaneously with the asserted illness. Six days after the test was due, the Practitioner retrospectively obtained a certificate which seems entirely based on an asserted history (without specifics) which the Practitioner provided to the author of the certificate. The certificate asserts that the Practitioner was ill between 15 February 2021 and 17 February 2021, but gives no detail at all of the nature of the illness. Given the circumstances in which the Practitioner obtained this certificate, we place no weight on it whatsoever.
There is no explanation as to the failure of attendance on 19 March 2021 and 22 March 2021.
In respect of the final failure to attend for testing on 21 April 2021, the Practitioner telephoned the Medical Council on that day at 11:43am advising that he was unable to attend for screening on that day as his friend had borrowed his car and had not returned it. He said he had been trying to call her and message her but had not received a response and that his nearest collection centre was 30 kilometres away and he could not get there. Subsequently, the Practitioner's friend called the Medical Council to apologise for the Practitioner not making the screening as she had his car. We are not satisfied by this explanation. The Practitioner was able from midnight on 21 April 2021 to check whether he was required to randomly screen on that day. Against the backdrop of earlier non-compliance, we do not accept the excuse he has provided as there was an obligation upon him to organise transport by way of taxi, ride share or public transport, to meet a fundamental obligation. We find that the excuse proffered was flimsy and portrays an ongoing negative attitude towards the meeting of his professional requirements.
We are satisfied that complaint 3 has been made out for each of the five occasions particularised.

Complaint 4

The Applicant made the submission that they rely upon each of complaints 1, 2 and 3 and the particulars contained therein individually and collectively to complain that the Practitioner has contravened s 139E of the National Law and thereby is guilty of professional misconduct.
In respect of relying upon complaint 1 as a basis for finding the Practitioner guilty of professional misconduct, that part of the submission is inconsistent with the particulars in the application which only relies upon complaints 2 and 3.
It follows therefore that when considering complaint 4, the question to be asked is whether the failure to give notice in time in respect of the first charges and the second charge of AOABH and the failure to present for drug testing, individually or cumulatively are unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration.
We are of the view that the seriousness of the behaviour leading to the charges of AOABH and the facts upon which the Practitioner was criminally convicted are relevant when assessing the seriousness of the lateness of giving notice of the first charges and the total failure to give any notice of the second charge and conviction.
The presiding magistrate assessed the first AOABH offence just above the mid-range of objective seriousness. In committing the second offence the practitioner breached two conditions of the conditional release order that had been imposed upon him. The penalty imposed upon the Practitioner for the second occasion demonstrates it was more serious than the first.
We find that the unsatisfactory professional conduct of the Practitioner in failing to notify APHRA of the charge of 8 November 2020 and the conviction sentence on 15 February 2021 and 18 March 2021, are of a sufficiently serious nature to justify suspension or cancellation of the Practitioner's registration.
Further when Complaints 2 and 3 are viewed collectively, the failure of the Practitioner to meticulously comply with the random drug testing condition on his registration reinforces our finding that the Practitioner is guilty of professional misconduct.
We find that Complaint 4 is made out.

Protective orders

As already indicated, the Applicant's application is confined to an application under s 140C(1)(b) whereby the Applicant seeks cancellation of the Practitioner's registration based on the finding that the Practitioner is guilty of professional misconduct.
The Applicant has not, pursuant to s 149C(1)(c) sought cancellation based upon the criminal convictions or pursuant to s 149C(1)(d) based upon an assertion that the Practitioner was not a suitable person for registration in the Practitioner's profession because of the conduct that he involved himself in which led to the criminal convictions.
Having said that however, again the Applicant does rely upon the convictions and the conduct that led to them, as matters that should, as a matter of discretion, be taken into account when considering whether cancellation is necessary in order to attempt to protect the public health and safety as our paramount consideration. As already indicated, the seriousness of the conduct may take colour not only from the acts or omissions in question but also by the circumstances in which they occurred.
Having abandoned the complaint of impairment because of the lack of the ability to put before the Tribunal the current state of the Practitioner's mental health following his refusal to cooperate in undertaking an updated assessment, the Applicant also seeks to rely upon the matters that have formerly been pleaded under the abandoned complaint 5 to buttress the submission that we should impose a significant no-review period on the cancellation of the Practitioner's registration.
We have already described the circumstances in which the two assaults took place and our assessment of the seriousness of those offences. It is concerning that the Practitioner who was criminally charged and had those offences proven against him, was not deterred from repeating such conduct. The Applicant in particular relied upon the similarity of the violent conduct and submitted that there was no deterrent effect on the Practitioner following his first conviction. A condition of the Conditional Release Order made on 13 August 2020 was that the Practitioner not consume alcohol. His behaviour on 8 November 2020 demonstrates to us clearly that he had no regard at all for the requirement under the Conditional Release Order. The Practitioner, a mere three months after conviction, in circumstances where alcohol was consumed, again demonstrated his violent tendencies. The failure to notify APHRA of the second charge and then of his conviction becomes all the more serious when viewed through the prism of the conduct that led to that conviction.

Prior incidents

On 24 April 2020, the Practitioner appeared before Delegates of the Medical Council in a hearing pursuant to s 150 of the National Law. On 22 May 2020, the Delegates provided written reasons for imposing conditions on the Practitioner's registration. In those reasons, the Delegates describe two earlier incidents involving the Practitioner. Both the earlier incidents occurred in licensed premises at the end of the week, involving the Practitioner consuming alcohol and behaving in an intimidating, aggressive, grandiose and over-familiar way.
The first of these incidents occurred at a bar on 21 September 2018 when the Practitioner behaved in a rude, insulting and belittling way to a younger female colleague in front of her peers. The Professional Practice Unit suspended the Practitioner and placed his name of the Services Check Register.
The second incident occurred at a hotel on 1 February 2019. Again, the Practitioner acted in a loud, aggressive and intimidating manner towards a younger female colleague. This included him pointing his finger in her face in front of her dinner party group. The Practitioner called her "an orthopaedic homophobe". At this time, the Practitioner held the position of Senior Staff Specialist, and his behaviour was likely to have been particularly intimidating to junior registrars. On 29 July 2019, after an inquiry in respect of the February incident, the Practitioner's employment was terminated.

The practitioner's mental health

The Applicant had originally presented evidence on the basis that they complained that the Practitioner suffered from a mental impairment that detrimentally affected or was likely to detrimentally affect his capacity to practise medicine.
That evidence included: 1. A report from Dr Rafe Pulley dated 24 July 2020 which was tendered by the Practitioner during the hearing in respect of his first criminal charges on 13 August 2020. 2. Four reports from Dr Fisher, psychiatrist (Council appointed practitioner) dated 21 March 2020, 3 November 2020, 3 February 2021 and 28 May 2021. 3. A report from Dr Amanda White, clinical neuropsychologist dated 6 April 2021.

Dr Fisher's report of 21 March 2020

Dr Fisher was a psychiatrist appointed by the Medical Council for the purposes of providing a report (CAP report). In Dr Fisher's first CAP report of 21 March 2020, he noted the Practitioner's tendency to depression and severe anxiety but opined these fell short of impairment. He went on to further opine that the Practitioner might have an Alcohol Use Disorder (but he had insufficient information to confirm that diagnosis). Dr Fisher said that if it transpired the Practitioner did have such a disorder, he would be a candidate for the Impaired Registrants Program.

Dr Pulley's report of 24 July 2020

Dr Pulley, a Consultant Forensic Psychiatrist, was engaged by the Practitioner to provide a report for the Practitioner to use in his first criminal hearing arising from the incident on 5 February 2020.
At paragraph 19 of his report, he describes the Practitioner giving the following history of traumatic events that he has faced during his life:

Physical and sexual abuse as a child (sexual abuse lasting for two years from elder brother's classmates)
Witnessing physical and mental abuse of a mother by his father who was an alcoholic
Years of racial bullying at school due to his Indian ethnicity and being told that his mum needed to be "locked up" due to her ongoing mental health issues
Living and being raised by a mother with severe mental health issues (schizophrenia/depression)
Looking after an older sister with cerebral palsy from early childhood
Father dying suddenly in January 1991
The Practitioner also reported stress at medical school where he had a severe eating disorder due to "exam stress", being ridiculed as a homosexual and a close medical school friend taking his own life
The Practitioner reported a sense of loneliness and isolation after immigrating to Australia, leaving behind family and closest friends
Witnessing traumatic scenarios in his ED training and having a few of his colleagues taking their own lives during that training
His brother's son being murdered at knifepoint in the UK
His mother dying suddenly in 2015
His niece suffering but surviving meningococcal meningitis in 2017
Personal death threats from a patient

In relation to the events of 15 February 2020, the Practitioner gave Dr Pulley the following history at paragraphs 6-8 of Dr Pulley's report (p 177 of Exhibit 1): 6. [The Practitioner] said that the last thing that he recalled from that evening was going to the toilet and noticing some suspicious activity in a cubicle - two people whispering in a way that led him to believe that there was a drug deal taking place. He became irritated, as he found it reminded him of the abusive behaviour of people under the influence of drugs (particularly 'ice') that he is required to treat in his job. 7. [The Practitioner] said that, out of character for him, he said something to them. He could not recall his exact words, but may have threatened to call the police. [The Practitioner] recalled that whatever he said perturbed them and the situation escalated. He said the two people came out of the cubicle and said in a confrontational manner, words to the effect that it was none of his business. He found them intimidating in their demeanour as they entered into his personal space. 8. [The Practitioner] reported having difficulty remembering what transpired thereafter. He had a vague recollection of leaving the toilet, 'seeing stars'. He thought that he may have been hit in the back of the head as he walked away from the presumed assailants. He inferred this because when he woke up the next morning, he had a bruise on the back of his head, and he could not remember how he got home. He certainly could not remember the events described in the agreed facts. As a result of his concerns that he had been assaulted, he phoned the police twice on Sunday 16 February to report the incident, however the police failed to return his calls.
Dr Pulley's diagnosis was that the Practitioner suffered from the following conditions: 1. Concussion (at the time of the alleged offences on 15 February 2020, now resolved) 2. Persistent response to psychological trauma with PTSD-like symptoms 3. Major depressive episode (occurring in response to and following the events of 15 February 2020)
Dr Pulley's opinion is based upon accepting the history from the Practitioner in relation to him being assaulted on 15 February 2020.
Dr Pulley went on to conclude that the Practitioner did not suffer from a mental illness and was not a mentally ill person as those terms are defined in the Mental Health Act 2007 (NSW) and that the mental conditions from which the Practitioner did suffer were ones for which treatment was available.
At his criminal trial, the Practitioner pleaded guilty. The Practitioner did not press his story that he had been hit on the back of the head and remembered nothing about the incident on 15 February 2020. He pleaded guilty based upon the agreed amended statement of facts (pp 170-171 of Exhibit 1).
As the presiding magistrate observed, Dr Pulley was in no position to diagnose that the Practitioner had concussion, having not contemporaneously examined the Practitioner (p 172 of Exhibit 1). Nor was Dr Pulley given the details of the incidents in 2018 and 2019 described above.
Given that Dr Pulley's diagnosis is based upon accepting the Practitioner's assertion that he had been assaulted on 15 February 2020, having regard to all the other matters we have discussed in these reasons, we reject his diagnosis.

Dr Fisher's report of 3 November 2020

In Dr Fisher's report of 3 November 2020, he diagnoses the Practitioner as suffering from a major depressive disorder. He was also concerned about features of both psychopathic and narcissistic personality disorder. He was suspicious of the Practitioner's self-reporting as to his use of alcohol.

Dr Fisher's report of 3 February 2021

Dr Fisher's diagnostic conclusions were that there was a high level of suspicion that the Practitioner has previously indulged in excessive alcohol intake and the possibility existed that he has a susceptibility to becoming very intoxicated with a low-level intake of alcohol. Dr Fisher recommended that the Practitioner remain on the Impaired Registrants Program.

Dr White's report of 6 April 2021

Dr White, a Clinical Neuropsychologist, provided a CAP report dated 6 April 2021. After an assessment which included objective neuropsychological testing, she opined that the Practitioner presented some evidence of cognitive impairment, primarily in particular aspects of the Practitioner's executive and higher order functioning. Dr White concluded that the Practitioner's presentation was consistent with a mental condition or disorder which would satisfy the definition of "impairment" as defined in s 5 of the National Law.

Dr Fisher's report of 28 May 2021

Dr Fisher recommended the Practitioner have an MRI scan of his brain to explore the possibility of "some effect of cerebral functioning, or at least to rule out any pathology such as brain tumour or a degenerative pathological condition".

The Practitioner's email of 25 May 2023

As referred to above, on 25 May 2023 the Practitioner spoke with the solicitor for the Applicant who made to file note of that conversation, in the form of an email to herself (Exhibit 5; annexure J). The Practitioner made allegations against Dr Fisher in relation to him incorrectly recording test results. He said that he was frequently seeing his treating psychiatrist, Dr Davis, every couple of weeks; that he had PTSD and was scared of loud noises. He indicated that he would not at that stage be willing to speak to Dr White again because he was traumatised from her first assessment that he had early onset cognitive impairment. He said that he might be willing to talk to her at some stage in the future. The Practitioner also indicated in this conversation that he was facing current criminal charges and that he was running a contested hearing on 23 June 2023. We were subsequently told by the Applicant at the hearing before us that the Practitioner had been acquitted of those charges. The Practitioner also complained that Dr Fisher had incorrectly described him as wearing blue trousers in an assessment via Zoom when he was wearing shorts. The Practitioner told the solicitor for the Applicant that it was important to know that there is a mental health issue here, and that he had volunteered to AHPRA that he had had depression and it was like he was fed to the lions.
On the same day the registry received an email from the Practitioner which was addressed to the solicitor for the Applicant and seems to have been mistakenly sent by him to the Tribunal (see Exhibit 7). In it he said in part: Moreover, I have informed all bodies (including AHPRA at least twice now who told me that my registration was surrendered) that I have not been practising as a medical practitioner for over 3 years now due to ongoing medical and psychological health issues that remain under ongoing treatment.

Conclusion in relation to the Practitioner's mental health

On the material that we have, we are unable to reach any conclusion as to the current state of the Practitioner's mental health.
The information that we do have however would indicate that as at least about one year ago, the Practitioner himself concluded that his mental health did not allow him to practise medicine. His failure to engage in an assessment for an updated report means that we are unable to assess whether there has been any improvement in his condition in the last year.

Conclusion about protective orders

We have concluded that when all the history and surrounding circumstances are taken into account, the finding of professional misconduct in this case is sufficiently serious to warrant a cancellation of the Practitioner's registration. Given the Practitioner has not practised for four years and the nature of the currently unknown state of the Practitioner's mental health, we find that it is appropriate for an order to be made for a non-review period of two years.

Costs

Clause 13(1) of Schedule 5D of the National Law allows the Tribunal to make an order for costs. The Applicant seeks an order for costs as agreed or assessed.
It is generally accepted that the costs of proceedings before the Tribunal should follow the event (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46]).
The Applicant was successful in establishing that the Practitioner was guilty of professional misconduct. There was no other disentitling conduct by the Applicant to warrant a departure from the general rule that would reward the Applicant for establishing the fundamental basis for the complaint that was eventually found against the Practitioner. In those circumstances, we find that the Applicant is entitled to receive an order that the Practitioner pay its costs as agreed or assessed.

Orders 1. Pursuant to s 149C(1)(b) the Respondent's registration is cancelled, with a non-review period of two (2) years. 2. The Respondent pay the Applicant's costs as agreed or assessed under clause 13 of Schedule 5D of the National Law.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 April 2024

Relevant legislation and principles

The principles outlined in the Health Practitioner Regulation National Law (NSW) ("the National Law") at s 3A and s 3B have at their core a requirement for us to make a determination which attempts to protect public health and safety as our paramount consideration.
Section 130 of the National Law provides: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner …must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner…, give the National Board established for the practitioner's …health profession written notice of the event. (2) A contravention of subsection (1) by a registered health practitioner …does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. … (3) In this section - "relevant event", in relation to a registered health practitioner, means - (a) the practitioner is charged with - … (ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere;
Section 59(1) Crimes Act 1900 (NSW) provides: 59 Assault occasioning actual bodily harm (1) Whosoever assaults any person, and thereby occasions actual bodily harm, shall be liable to imprisonment for five years.
Section 139B(1)(b) and (c) of the National Law provide: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes - … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. (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 …
The Applicant seeks a finding that the Practitioner is guilty of conduct described in s 139B(1)(b) on the grounds that the Practitioner has contravened s 130 of the National Law.
Section 139E of the National Law sets out the meaning of "professional misconduct": 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional misconduct 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.
Whether the unsatisfactory professional misconduct is serious enough to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82].
There is no category of unsatisfactory professional misconduct which is not capable, depending upon the circumstances, of giving rise to professional misconduct: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20].
In assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 29.
In Health Care Complaints Commission v Robinson [2022] NSWCA 164 ("Robinson"), Kirk JA (Leeming JA agreeing) said at [34]: The focus is on the character of what occurred which is the subject of the complaint. The categorisation exercise involved an "evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct", citing Basten JA (Leeming JA agreeing) in Chen at [20].
The seriousness of the conduct may take colour not only from the acts or omissions in question by also in the circumstances in which they occurred: Robinson at [35].
When considering those circumstances, the Court of Appeal noted at [36] that they could include: (a) the practitioner's state of mind at the time of the impugned conduct; eg whether the conduct was deliberate or inadvertent (b) knowledge of the patient's vulnerabilities (c) risk of harm arising from the conduct (d) the practitioner's knowledge, skill and training (e) the practitioner's disciplinary history
Section 144(a) of the National Law provides: 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - (a) A complaint the practitioner has, either in this jurisdiction or elsewhere, been charged with an offence, or has been convicted of or made the subject of a criminal finding for an offence, that is punishable by 12 months imprisonment or more.
Section 149A(1)(a) of the National Law provides a general power to the Tribunal to caution or reprimand a practitioner.
Section 149C(1) of the National Law provides the Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession.
In this matter the Application filed by the Applicant confines itself to seeking cancellation based only on s 149C(1)(b) of the National Law. Given the serious nature of the criminal offences of which the Practitioner has been convicted it is unclear to us why the Applicant has not also relied upon s 149C(1)(c) to ground the application for cancellation. We did give some consideration to providing the Applicant an opportunity to provide further submissions on that point but given the findings we have otherwise reached, we chose not to do so. The matter is complicated of course by the fact that the Practitioner did not involve himself in the proceedings and as a matter of procedural fairness we are confined to dealing with the matter on the basis of the Application which has been served upon him.
Section 5 of the National Law provides: 5 Definitions … "impairment", in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect-- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; …
By way of summary in this case, the Applicant has sought, at stage 1, a finding of professional misconduct based upon findings of unsatisfactory professional conduct and, at stage 2, has sought cancellation under s 149C(1)(b) having regard to the overall circumstances, which circumstances include the fact that the Practitioner has been convicted of serious criminal offences on two occasions. The Applicant makes the point in the written submissions that the asserted unsatisfactory professional conduct of not reporting charges and convictions is closely related to complaint 1, namely that pursuant to s 144(a) of the National Law, the Practitioner has been convicted of a criminal offence in New South Wales.

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Judgment (22 paragraphs)

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Legislation Cited (3)

Cases Cited (5)