Health Care Complaints Commission v Leighton

Health Care Complaints Commission v Leighton - [2016] NSWCATOD 33 - NSWCATOD 2016 case summary — Zoe

[14]

Particulars for Complaint Five

The particulars for Complaint Four are repeated and relied upon.
The practitioner failed without reasonable excuse to comply with the notice issued by the Council pursuant to section 152B to attend an examination by a Council Appointed Practitioner.
By a series of emails between December 2015 and February 2016 the Respondent indicated to the Applicant that she would not be attending the hearing of the complaint against her and on the day of the hearing following the calling of her name in the court precinct the matter proceeded to hearing in her absence.
The Applicant provided the Tribunal with an amended complaint, the contents of which were brought to the attention of the Respondent prior to the hearing and in respect of which the Respondent only raised one objection, namely particular (e) of Complaint Four, relating to the allegation that the practitioner suffers from crystal methamphetamine dependence. In the circumstances, the Tribunal considered the application to lodge the amended complaint and ordered that the amended complaint be substituted for the original complaint.
The Applicant tendered as exhibits the evidentiary certificate of the Psychology Council of New South Wales (Exhibit 2), the confirmation of registration status by AHPRA (Exhibit 3), a report dated 5 February 2016 (Exhibit 4 - a copy of which had been provided to the Respondent), an exchange of emails with one commencing on page 1 dated 15 February 2016 (Exhibit 6), a string of emails commencing on page 1 with the 20th of February 2016 (Exhibit 6) and volumes 1 - 4 of documents served by the Health Care Complaints Commission (Exhibit 7).
In light of the fact that the Respondent failed to appear and accordingly did not call any witnesses for cross-examination and in light of the fact that the documents tendered by the Applicant speak for themselves, the Tribunal did not have a need to call any of the witnesses to give viva voce evidence.
The Applicant closed its case and provided the Tribunal with written submissions.

[15]

The Jurisdiction of the Tribunal

The jurisdiction of the Tribunal is protective in nature, not punitive (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; HCCC v Gillett [2007] NSWNMT 7 at [13] and HCCC v Rutner [2009] NSWDT 2 at [14]).
In the exercise of its protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the psychology profession, the preservation of public confidence in the psychology profession and the protection of the community (Gayed v Walton [1997] NSWSC 279; Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] and Health Care Complaints Commission v Howe [2010] NSWMT 12 at [113]).
In the exercise of its protective jurisdiction the Tribunal's primary purpose is the protection of the health and safety of the public (see Re Dr Parajuli [2010] NSWMT 3 at [31]).
This role now has specific legislative backing. Section 3 of the National Law sets out the relevant principles of the National Law: which include, (2)(a): "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered". Pursuant to s3A, "the protection of the health and safety of the public must be the paramount consideration" in the exercise of functions under the National Law or a regulation.
As s3A of the National Law makes clear, the paramount consideration in proceedings such as this is to protect the public: it is not the focus of such proceedings to punish the practitioner. Accordingly, the Tribunal's jurisdiction must be exercised bearing in mind the need to concentrate on issues of public safety. It has also been held that, in addition to the protection of the public being the paramount consideration, other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in similar conduct: (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201, 202 and New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184).
In NSW Bar Association v Meakes [2006] NSWCA 340 at [114], Basten JA set out the following as the important, but indirect, effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: 1. The order reminds other members of the profession of the public interest in the maintenance of high professional standards; 2. The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence; and 3. By speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession.
The Tribunal should consider five matters bearing on protection: 1. any need to protect the public against further misconduct by the practitioner; 2. the need to protect the public through general deterrence (of other practitioners); 3. the need to protect the public by reinforcing high professional standards and denouncing transgressions; 4. the maintenance of public confidence in the profession; and 5. the desirability of making available to the public any special skills possessed by the practitioner (see Skinner v Beaumont (1974) 2 NSWLR 106 at 109; Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 471B; Saville v HCCC [2006] NSWCA 298 at [45]; Lee v HCCC [2012] NSWCA 80, at [20]-[21]; Re Dr Parajuli [2010] NSWMT 3 at [32]; HCCC v Dr Graeme Harris [2008] NSWMT 6 at [175] and HCCC v King [2013] NSWMT 9 at [27]).
An unavoidable concomitant of making orders aimed at protecting the public is that sometimes the protective orders demanded by the circumstances may be incidentally punitive in effect, although that is not the purpose of the orders so made (see Lee v HCCC [2012] NSWCA 80, at [20] and [31] following Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) NSWLR 523 at [83] and HCCC v Platt [2013] NSWMT 14 at [55] and [71]).

[16]

Legislative Framework

Part 8 of the National Law deals with complaints concerning health practitioners.
Section 144 specifies the grounds for complaints against a health practitioner. They include: 1. … 2. A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. 3. A complaint the practitioner is not competent to practise the practitioner's profession. 4. A complaint the practitioner has an impairment. 5. A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
Section 139B of the National Law defines "unsatisfactory professional conduct" of a registered health practitioner as including a number of matters. This section relevantly provides: 1. 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. …. 1. A contravention by the practitioner (whether by act or omission) of- 1. a condition to which the practitioner's registration is subject; or 2. an undertaking given to a National Board. …. 1. Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
"Conduct" is defined in s138 of the National Law to mean "any act or omission".
Section 5 of the National Law relevantly defines "impairment" to mean in relation to a person, that 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 registered health practitioner or an applicant for registration in a health profession, the person's capacity to practice the profession.
Section 139(a) of the National Law relevantly provides:
A person is "competent" to practise a health profession only if the person-
(a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession;
Section 139E of the National Law defines "professional misconduct" to mean:
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.

[19]

Evidence

In her email of 19 February 2016 the Respondent has admitted the factual components of all complaints other than Complaint Four particular 1(e).
In addition the Complainant relied on and the Tribunal considered the evidence set out below. Complaint One Particular One Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 8,9,12,13 Respondents clinical notes for Client A - Tab 7 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Particular Two Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 11,12,23 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Particular Three Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 24,27 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Particular Four Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 25,27 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Particular Five Corrective Services Report - Tab 5 Transcript of Interview - Tab 6 pages 24-29 Ms Goldberg's Report - Tab 9 Email of Respondent of 6 May 2011 - Tab 117 Complaint Two General Confirmation of Registration Status - Tab 1A Condition 10 - Tab 1A pages 3,6,7 Condition 12 - Tab 1A pages 4,6,8 Condition 13 - Tab 1A pages 4,6,8 Particular One Correspondence of Respondent of 11 June 2014 - Tab 122 Correspondence from Respondent's solicitors of 8 July 2014 -Tab 123 Particular Two Correspondence from Respondent's solicitors of 4 March 2015 - Tab 85 Ryde Community Health Centre Notes - Tab 132 Correspondence from Dr Eli Zeltzer - Tab 80 Particular Three List of Dates - Tab 74 UDT - Tab 75 Psychology Council of NSW Compliance Report - Tab 90 Complaint 4 Psychology Council of NSW Report/Inquiry - Tab 25 Psychology Council of NSW Report/Inquiry - Tab 26 Psychology Council of NSW Report/Inquiry - Tab 27 Psychology Council of NSW Report/Inquiry - Tab 29 Associate Professor Samuel's Report - Tab 30 Associate Professor Samuel's Report - Tab 31 Associate Professor Samuel's Report - Tab 32 Associate Professor Samuel's Report - Tab 33 Associate Professor Samuel's Report - Tab 34 Associate Professor Samuel's Report of 5 February 2016 Correspondence from Dr Eli Zeltzer - Tab 80 Correspondence from Respondent's solicitors - Tab 119 Complaint 5 Associate Professor Samuel's Report of 5 February 2016
Having considered all of the evidence available to the Tribunal, all but one conclusion of which was admitted by the Respondent, the Tribunal determined that the Respondent: 1. Is guilty of unsatisfactory professional conduct as alleged in complaint one; 2. Is guilty of unsatisfactory professional conduct as alleged in complaint two; 3. For the reasons and based on the considerations set out below, is guilty of professional misconduct as alleged in complaint three; 4. Has an impairment within the meaning of section 5 of the National Law as alleged in complaint four, save that the Tribunal is not comfortably satisfied that the Applicant has discharged its onus of proving particular E of complaint four in that this allegation is denied by the Respondent and the evidence provided by the Applicant proves only that the Respondent has used crystal methamphetamine but there is no evidence to indicate that the Respondent is dependent on crystal methamphetamine; 5. Is not competent within the meaning of section 139A of the National Law. 6. The position in respect of a determination of unsatisfactory professional conduct is clear and has been dealt with in many decisions of the Tribunal and the courts. Complaint three calls upon the Tribunal to find that the Respondent is guilty of professional misconduct. The Tribunal had regard to various decisions of the Tribunals and the courts.
The concept as contained in s139E should be given a purposive interpretation. The Tribunal is required to not only consider the object of the protection of the public but to recognize that that object also includes deterring the practitioner, and other practitioners from repeating the same misconduct (see HCCC v Saedlounia [2013] NSWMT 13 at [43]-[50]).
By its terms, s139E in respect to professional misconduct refers to conduct that is of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration and therefore concerns itself with the measure of the seriousness of that conduct. The determination of whether conduct amounts to professional misconduct has as its starting point, an objective assessment of the Respondent's conduct against the standard "reasonably expected of an equivalent practitioner". When coming to a decision about whether conduct is "sufficiently serious" to justify the sanction of de-registration, circumstances which bear on that objective assessment of that conduct may properly be taken into account (see HCCC v Dr Gow [2008] NSWMT 2 at [67]).
Further, the Complainant submitted that both individually but also cumulatively the particulars of Complaint One and Complaint Two that: 1. the Respondent has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration; or 2. 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 Respondent's registration. 3. It has been held that the "gravity of professional misconduct is not to be measured by reference to the worst cases but by the extent to which the conduct departs from the proper standards" (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638).
The Complainant submits that the particulars of Complaint One demonstrate that the Respondent has: 1. Engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and 2. Engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
In HCCC v Nemeth [2012] NSWMT 4 the NSW Medical Tribunal referred to the well-known decision of the NSW Court of Appeal in Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981) when stating: As has been endorsed often by the Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council, Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner.
This principle has been endorsed on many occasions by the Medical Tribunal of NSW (see HCCC v Gorodny-Novak [2011] NSWMT 3 [196]-[197] and the cases cited therein).
The conduct of the Respondent in respect to Complaint One is such that the unsatisfactory professional conduct displayed by her is of such a nature as to fall within the definition of professional misconduct in Section 139E.
In addition the conduct of the Respondent was such that it included a number of aggravating factors: 1. the particular vulnerability of Client A who was an inmate in custody; 2. the slow sexualisation of the relationship by the Respondent; 3. the breaches of boundaries were significant; 4. the conduct is likely to bring the profession into disrepute; 5. the Respondent knowingly entered into the relationship with Client A; and 6. the Respondent's lack of insight and propensity for boundary infractions has been chronic over an extended period of time.
The Respondent's conduct in Complaint One is a serious breach of the standards the public have a right to expect of a practitioner. The Tribunal should be satisfied, because of the Respondent's lack of insight, and her attempts to minimise her conduct she is not presently fit to practice, and that her registration should be cancelled.
Further, the particulars of Complaint Two are also significant. The Respondent has simply ignored the conditions on her registration in respect to attendance at treatment, notification of being prescribed drugs and the provision of random urine samples and provided no basis for this failure.
The need to comply with the restrictions was self-evident and the restrictions were aimed at protecting the public as well as the Respondent. The failure to comply with these conditions in these circumstances amounts to professional misconduct especially given the extent of such breaches over an extended time frame.
Such a failure to comply with the conditions on the Respondent's registration, when taken together, are of a very serious nature, and demonstrate that the Respondent had a lack of insight into the need for her to act scrupulously with regard to her conditions of practice order to ensure that the public was protected. Prima facie, these failures are of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration (see HCCC v Saedlounia [2015] NSWCATOD 53 at [102]). These matters, when aggregated, represent compelling reasons for concluding that the Respondent has engaged in a pattern of unsatisfactory professional conduct that is of a sufficiently serious nature to justify cancellation of her practicing rights.
In Prakash v HCCC [2006] NSWCA 153 (Prakash), the Court of Appeal observed at [74] that "When conditions are imposed, as they were here, for restoration to practise, those conditions must be scrupulously observed. It is even more serious where dishonesty supervenes ...".
The Court of Appeal referred to a decision in Re Dr Than Le (Medical Tribunal decision, 20 September 2001 at 46, para 95 and quoted the following at [45]: Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, containing as it does a grave criticism of the standard of the practitioner's conduct.
The Tribunal could not be satisfied in such circumstances that the Respondent is fit to practice.
The conduct of the Respondent is such that the unsatisfactory professional conduct displayed by her falls within the definition of professional misconduct in Section 139E. The Tribunal should find that the Respondent is guilty of unsatisfactory professional conduct within the meaning of s139B of the National Law and professional misconduct within the meaning of section139E.
Even if the Tribunal finds that the Respondent is impaired it does not prevent her conduct from amounting to professional misconduct (see HCCC v Reimers [2012] NSWCA at [10]-[14]).

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Cases Cited (14)