Health Care Complaints Commission v Lucire

Legal principles

1. In these kinds of proceedings, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3A. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a). The legislation also provides that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality": National Law, s 3(3)(c). The purpose of the Tribunal's disciplinary powers is not to punish the practitioner but to protect the public and maintain proper professional standards: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31]; Health Care Complaints Commission v Do [2014] NSWCA 307 at [34].
2. It is not only the objective seriousness of the proven conduct that is relevant when determining the appropriate orders. As Kirk AJA held in Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [35]: "The seriousness of the conduct may take colour not only from the acts or omissions in question but also from the circumstances in which they occurred…"
3. Kirk AJA added (at [34]) that those circumstances include whether the "conduct was undertaken for an improper purpose". At [36], his Honour also observed that the following five circumstances put forward by the Health Care Complaints Commission may be relevant: "(1) the practitioner's state of mind at the time of the impugned conduct (e.g., whether conduct was deliberate or inadvertent); (2) any knowledge the practitioner had of vulnerabilities in a patient; (3) the risks of harm that the conduct was apt to create; (4) the practitioner's knowledge, skill and training; (5) the disciplinary history of the practitioner, as repeated inappropriate conduct may be treated as being of a more serious nature than isolated inappropriate conduct (see, analogously, EFA at [172])."
4. The case referred to in point (5) above is Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339. That case is referred to as being analogous because it involved the legislative scheme for disciplining legal practitioners, not health practitioners.
5. Protecting the health and safety of the public is not confined to considering proven misconduct and the surrounding circumstances. The Tribunal can also take into account matters such as the maintenance of standards and the general standing of the profession. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA (Basten JA and Emmett JA agreeing) held that: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."

Seriousness of the conduct and the circumstances in which it occurred

1. The detailed background to the Complaints and the Tribunal's findings are set out in the Tribunal's stage 1 decision: Health Care Complaints Commission v Lucire [2022] NSWCATOD 74. Below is a summary of our main findings.
2. Complaint 1 alleges unsatisfactory professional conduct towards Patient A. Complaint 2 relates to Dr Lucire's record keeping for Patient A. Complaint 3 alleges unsatisfactory professional conduct towards Patient B. Complaint 4 relates to Dr Lucire's record keeping for Patient B. Relying on Complaints 1 to 4, Complaint 5 is that Dr Lucire has engaged in professional misconduct.
3. We found that Dr Lucire engaged in two kinds of unsatisfactory professional conduct as defined in the National Law. The first is defined in s 139B(1)(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.
4. We found that Dr Lucire engaged in another kind of unsatisfactory professional conduct, namely "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession": National Law, s 139B(1)(l).
5. The definition of professional misconduct appears in s 139E of the National Law. We found Dr Lucire had engaged in professional misconduct in that she had: a. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or b. engaged in 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 the suspension or cancellation of the practitioner's registration.
6. We found some particulars of Complaint 1 proven, or partially proven, and others not proven. At [69] and [70] of the stage 1 decision we provided the following summary: "After a single consultation, Dr Lucire expressed an opinion to a new patient with a long history of mental illness, that antipsychotic medication was not appropriate. She also advised her to cease taking antipsychotic medication. Before taking these steps, it is good medical practice to give due consideration to the risk of relapse and to obtain as much relevant information as practicable. Dr Lucire says she gave due consideration to the risk that Patient A would suffer a relapse by prescribing chlorpromazine. However, that did not occur until three months later. Information from previous treating psychiatrists, including Dr Adey, is particularly relevant because he had the advantage of observing and monitoring Patient A over a lengthy period. Patient A had a prior history of a relapsing psychotic illness against the background of noncompliance with medications. This would predict future relapses if medication were discontinued, as would the length of her admission to Hornsby hospital. A psychiatrist would be expected to know that multiple relapses contribute to further impairments. We consider Dr Lucire's failures to adequately collaborate and consult with previous psychiatrists or to give due consideration to the risk of relapse, to be significantly below the relevant standard."
7. At [123] and [124] we made further findings about Dr Lucire's failure to inform herself sufficiently about Patient A's previous history including failing to consult with previous treating psychiatrists: "After between 6 and 10 appointments, Dr Lucire changed Patient A's diagnosis. Before taking such a significant step in relation to a new patient with a long history of mental illness, it is good medical practice to sufficiently inform oneself of the patient's psychiatric history. Dr Lucire did not do so. That conduct is significantly below the relevant standard. It is also improper in the sense that it is abnormal and irregular. While those conclusions alone support a finding of unsatisfactory professional conduct, we also find this conduct to be unethical. …"
8. At [165] and [166] we made the following findings about Dr Lucire's flawed reasoning when advising Patient A to cease taking Abilify which is an anti-psychotic medication: "… We accept that Abilify may have side effects, and that some of the symptoms about which Patient A complained may have been caused by the medication (such as insomnia or restlessness). However, it is illogical to then conclude, as Dr Lucire did, that Patient A does not have the underlying condition for which the medication is being prescribed. That fundamental defect in Dr Lucire's reasoning arose because of her own strongly held personal views about anti-psychotic medications. This conduct is significantly below the relevant standard and improper. While those conclusions alone support a finding of unsatisfactory professional conduct, we also find this conduct to be unethical. …"
9. Dr Lucire diagnosed Patient A with thyrotoxicosis on admission to hospital without having any thyroid function blood test results. Our findings about that conduct are at [185]: "To form an opinion, or a retrospective diagnosis, as to the reasons for a patient's symptoms, without sufficient clinical evidence, is not good medical practice. Contrary to the Good Medical Practice: A Code of conduct for Doctors in Australia, March 2014 code of practice, Dr Lucire has not provided treatment options based on the best available information. …"
10. As summarised by the Commission, the conduct in Complaint 1 which we found to amount to unsatisfactory professional conduct (but not professional misconduct) was: 1. failing to consult with Patient A's previous psychiatrist (in circumstances where the antipsychotic medication was not continued) and concluding that the medications were inappropriate without such consultation (at [71] and [72]); 2. forming an opinion that Patient A was not suffering from and had never suffered from a non-iatrogenic psychotic illness and changing the diagnosis, without first sufficiently informing herself as to the patient's psychiatric history and reviewing her medical records: (at [102] and [123]); 3. closing her mind to other possibilities than that the symptoms Patient A was experiencing were side effects of Abilify, due to her strongly held beliefs (at [146] and [165]); and 4. forming an opinion or a retrospective diagnosis (about thyrotoxicosis) without sufficient clinical evidence (at [185]).
11. Complaint 1.11 and 1.14 include allegations that Dr Lucire breached professional boundaries by allowing Patient A to stay at her home overnight when she knew that she had absconded from hospital where she was being involuntarily detained under the Mental Health Act 2007 (NSW). Dr Lucire also refused to give Police her address. In combination, we found Complaints 1.11 and 1.14 to amount to professional misconduct. A summary of our reasoning appears at [436] of the stage 1 decision: "For Complaint 1.11, we have found that allowing a patient to stay overnight at a practitioner's home may or may not be a breach of professional boundaries depending on the context. Here the context is critical. Dr Lucire knew that Patient A was absconding from hospital. Even as Patient A's treating doctor, it is not Dr Lucire's role to make her own assessment of the need for Patient A to be involuntarily detained. That decision had been made by others in accordance with strict regulatory guidelines. Dr Lucire's decision to harbour Patient A in her home overnight is a breach of professional boundaries and amounts to unsatisfactory professional conduct. It is unethical."
12. We made further findings about Dr Lucire's state of mind and the seriousness of this conduct at [274] and [276] of the stage 1 decision: "… She was aware that Patient A was absconding from hospital and knew that she had also absconded from Broadmeadows hospital previously. Dr Lucire's opinion was that Patient A had been misdiagnosed and there "was a risk of staying misdiagnosed and again getting medication . . ." She told the s 150 delegates on 8 January 2018 that before Patient A arrived, she did not know she had been in hospital but after her arrival she knew she was an inpatient "somewhere". Dr Lucire had not seen Patient A since before her admission to Manly Hospital. On 5 November 2017 she was not aware of her current health status. … … Unless there was some imminent danger to Patient A's health or safety which precluded Dr Lucire from contacting police or the hospital straight away, that is what she should have done."
13. In the morning, Dr Lucire did not immediately disclose her address to Police. The reason for the delay was to "give her more time to write a letter setting out her opinion about Patient A's diagnosis and treatment". At [437], we added that: "We consider this breach, as well as Dr Lucire's failure to provide NSW Police with her location, to be very serious indeed. We do not accept Dr Lucire's excuse that she did not want to give out her address because Patient A may have overheard her or absconded. Dr Lucire could have gone into another room or called the police back a few minutes later if she was concerned about that. The reason she did not disclose her address to police was to give her more time to write a letter setting out her opinion about Patient A's diagnosis and treatment. Dr Lucire was under a professional obligation to notify the police or the hospital of Patient A's location as soon as possible, not when she decides is the most appropriate time. While the delay of one hour in advising police of Patient A's location is not as serious as harbouring Patient A in her home overnight, Dr Lucire knew Patient A had absconded. She was not authorised to override the opinions of other medical practitioners about whether Patient A should be detained in hospital. …"
14. Dr Lucire knew, or should have known from her training as a medical practitioner, that the reason Patient A was subject to an involuntary detention order was because other medical practitioners had formed the opinion that it was "for the person's own protection from serious harm" or "for the protection of others from serious harm": Mental Health Act 2007 (NSW), ss 12-16. The risk had been assessed by others. Dr Lucire disregarded that assessment, but did not appropriately assess Patient A's risk of further absconding or the risk of further harm. Those failures put Patient A's health and safety and the health and safety of others at risk.
15. In summary, Complaint 3 is about Dr Lucire prescribing ketamine "off label" to Patient B. We found Complaint 3 to constitute unsatisfactory professional conduct. Ketamine is an S8 anaesthetic drug used by medical practitioners as an anaesthetic, but it is also used illegally. Ongoing clinical trials and studies are assessing ketamine as a treatment for depression. In November 2015, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) produced a Clinical Memorandum on "Use of Ketamine for treating depression" (Clinical Memorandum). Treatment with ketamine was to be considered as a "novel or innovative treatment which should include discussion with peers (preferably including a second opinion); institutional review by the medicines advisory committee or its equivalent; and institutional research or clinical ethics committee consideration."
16. The Clinical Memorandum directed members not to practise outside these recommendations. We found, at [351] and [352], that Dr Lucire was aware of the criteria in the Clinical Memorandum but did not comply with them. Specifically, she did not discuss the script with peers, obtain a second opinion or request review by a medicines advisory committee. Nor did she do any of the things specified in Complaint 3, particular 1. That non-compliance was deliberate. As to the optimal dose, mode of administration and adverse effects of ketamine, a 2013 research paper (N Katalinic, R Lai, A Somogyi, P B Mitchell, P Glue, C K Loo, "Ketamine as a new treatment for depression: A review of its efficacy and adverse effects" (2013) Australian and New Zealand Journal of Psychiatry 47(8) 710) states, at 719, 724: "… there is little information on the ketamine dose-response relationship, or the optimal mode of administration … [M]ost studies have tested ketamine's antidepressant effects using 0.5 mg/kg infused intravenously over 40-60 minutes and reported high response and remission rates, though for most participants the improvement only lasted a few days. … "Use of [low dose ketamine (up to 0.5) mg/kg] can produce a variety of psychotomimetic, cognitive, or physical adverse effects…"
17. At [402] of the stage 1 decision we concluded that: "Ketamine is a Schedule 8 drug with significant risks associated with it. To protect the health and safety of patients, any script for this medication needs to be accurate. Dr Lucire's script was deficient in the ways identified in the particulars. Her evidence reveals that she had very little knowledge of this medication and how it should be prescribed. Those deficiencies are not trivial. They are significant because of the risks of harm involved. …"
18. We summarised our findings about the seriousness of Complaint 3 at [439]: "Complaint Three relates to Patient B. Among the most egregious matters in Complaint 3 is Dr Lucire's failure, when prescribing ketamine off-label, to abide by the College's clinical memorandum. Indeed, she was dismissive of the memorandum suggesting that she wants to be judged by the law, and not the standards of the College. Surprisingly for a psychiatrist with as much experience as Dr Lucire, she does not appreciate that one of the roles of the College is to set the standard. She is obliged to comply. When her non-compliance became obvious, Dr Lucire attempted to deflect any blame by asserting that the script was not a script at all and that one reason she wrote it was so that Patient B would know how much it would cost. That suggestion is simply not credible. Dr Lucire intended for the script to be filled. While she wishes she had done something else, that is only because a complaint was made, not because Dr Lucire acknowledges that she has done the wrong thing."
19. We rejected Dr Lucire's evidence that it was a "dummy prescription" designed to see how much it would cost. She intended for the prescription to be filled. It was not filled because the pharmacist told Patient B that he would have to check whether he could legally dispense ketamine.
20. We also found, at [385], that Dr Lucire "had insufficient understanding of the appropriate dose of ketamine": "… She intended to prescribe Patient B with a trial dose of 10mg of ketamine, which represented 1/20th of a single 200mg/2ml ampule, but wrote a prescription requesting multiple ('maximum') ampules of ketamine in her prescription. As to the dose of ketamine Dr Lucire prescribed, Dr Slaughter agreed that 10mg was a low dose but did not agree that it would be unlikely to have adverse side effects."
21. Dr Lucire admitted that she had no clinical experience prescribing ketamine. Her evidence was that Patient B was an "expert patient" and knew about ketamine. Even if he had some knowledge of this drug, Dr Lucire described him as having a "very severe anxiety disorder" and post-traumatic stress disorder. He was a vulnerable patient.
22. We found at [386] of the stage 1 decision that "Dr Lucire was unsure about the appropriate mode of administration. We agreed with Dr Slaughter that recommending administration subcutaneously or sublingually departs from recognised and approved methods of administration". Dr Lucire's ignorance of, or deliberate disregard for, the fundamental principles and best practice for prescribing this medication is of great concern, not just in relation to prescribing drugs of addiction.
23. As for the record keeping complaints (Complaints 2 and 4), Dr Lucire's record keeping for Patient A was grossly deficient. She did not always make a record contemporaneously or as soon as practicable and she failed to record the date of some consultations. On other occasions she recorded the wrong date. Dr Lucire did not keep a copy of all the text messages with Patient A and did not record all the dates of her text message communications.
24. For Patient B, we made findings about various instances of failed record keeping at [414] - [418] and came to the following conclusion at [419] - [420]: "Despite Dr Lucire's denials, the examples we have discussed satisfy us that Dr Lucire failed to maintain a contemporaneous record of her consultations with Patient B contrary to clause 8 of the 2016 regulation. She also failed to indicate on her clinical record that the entries created for the period May - July 2017 were created retrospectively and when they were authored. That conduct is contrary to Sch 4, clause 3(3) and/or clause 4(2) of the 2016 regulation. In Dr Ryan's opinion, changing the dates of notes retrospectively is dishonest. What Dr Lucire should have done is attach a note with the current date explaining that the recorded date is incorrect and explaining the circumstances."
25. Our overall conclusion about both record keeping complaints appears at [438]: "… The Commission submits that those complaints, cumulatively with the other complaints, justify a finding of professional misconduct. We agree. In particular, making notes and dating entries retrospectively is dishonest and compromises the accuracy of the clinical record. When a practitioner does this, it makes it extremely difficult for another clinician to take over that care, if required. Even when kept by a sole practitioner, clinical records are expected to be a potential means of accurate communication with another practitioner."
26. Our finding as to professional misconduct appears at [441] of the stage 1 decision. "In combination, Complaints 1.11 and 1.14 amount to professional misconduct. Cumulatively, Complaints 1.11, 1.14, Complaint 2, Complaint 3 and Complaint 4 amount to professional misconduct."

Other relevant factors when deciding what orders to make

1. Three other matters are relevant when considering whether Dr Lucire is likely to change her behaviour in future. The first is Dr Lucire's previous disciplinary and related history, the second is whether she has acknowledged any wrongdoing or has any insight into the risks associated with her misconduct, and the third is the significance of the character references she has provided.
2. The disciplinary history of a practitioner may be relevant when determining the orders we should make: Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [36]. Clause 5 of Schedule 5D to the National Law allows the Tribunal to admit evidence of other proceedings involving Dr Lucire if that evidence is relevant to the proceedings. For example, that evidence may be relevant when determining whether the misconduct was isolated and whether Dr Lucire is likely to change her behaviour and respond to supervision or conditions on her registration: Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [172].
3. We agree with the Commission that the following historical conduct demonstrates that on several occasions throughout her long career Dr Lucire's ethical and professional judgment has been deficient. 1. In a Professional Standards Committee inquiry conducted into a complaint against Dr Lucre in 2007 (arising from conduct occurring in 2002 and 2004), the Committee found that: 1. Dr Lucire held strong views about many psychiatric symptoms being the result of side effects of SSRI anti-depressant and other medication; 2. Dr Lucire did not give sufficient weight to the opinions of previous treating psychiatrists concerning two patients (patients A and B) when she discarded the existing diagnosis, but this was not conduct that was unsatisfactory professional conduct; 3. Dr Lucire inappropriately made a diagnosis of residual organic hallucinosis for patient B in the absence of any evidence of acute drug and/or alcohol intoxication and/or withdrawal, which was unsatisfactory professional conduct; 4. Dr Lucire inappropriately disregarded the opinions of patient B's treating practitioners when altering the diagnosis and treatment, which was unsatisfactory professional conduct; 5. Dr Lucire advised a patient that the treating psychiatrist had wrongly diagnosed and was incorrectly treating the patient, and urged the cessation of the therapeutic relationship thereby undermining confidence in the regime. This conduct was found to be unethical conduct. 1. In proceedings before the NSW Medical Tribunal in 2010, Dr Lucire was dealt with for asserted failures when treating a patient who subsequently committed homicide. The Tribunal found that: 1. In view of the presenting symptomology, advising a patient to cease taking antipsychotic medication was contrary to accepted psychiatric practice, including in failing to properly consider or assess the risks, and that this constituted unsatisfactory professional conduct; 2. Failing to institute or recommend any adequate treatment plan on the same occasion and, two days later, to consider and seek hospitalisation was unsatisfactory professional conduct.
4. In 2020, Dr Lucire wrote to the Mental Health Review Tribunal (MHRT) in relation to Patient A in the present proceedings maintaining that the College (presumably RANZCP) was not an "expert". The MHRT responded indicating its view that the correspondence was not appropriate given that Dr Lucire was suspended from practising at that time.
5. In April 2010, the Commission issued Dr Lucire with a notice under s 34A of the National Law requiring her to provide certain information and documents. She failed to do so. Following an inquiry in February 2012, a Professional Standards Committee found that she had not provided a reasonable excuse for failing to comply and that this failure constituted unsatisfactory professional conduct. Dr Lucire was reprimanded.
6. When determining any period of suspension or cancellation, we should estimate how long it is likely to take Dr Lucire to change her behaviour so that she is competent to practise without risk to the health and safety of the public: Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [74]. Clear proof is required to demonstrate a change in attitude: Lee v Health Care Complaints Commission [2012] NSWCA 80 at [72].
7. We are not optimistic that Dr Lucire is willing or able to change her behaviour. That view is based on her evidence at the Stage 1 hearing and the following matters: 1. Dr Champion, a psychiatrist appointed to counsel Dr Lucire in regard to her practice met with her on two occasions. In a letter of 16 May 2008 to the Medical Board, he noted that Dr Lucire had not accepted the possibility that she had made errors of judgment or had engaged in improper or unethical behaviour. That remains the case today. 2. Dr Lucire has been suspended from practice since January 2018 (over 5 years) because of aspects of her conduct which are the subject of the current complaint. There is no evidence that during the period of suspension Dr Lucie has acknowledged, much less addressed, any of the issues raised in the complaint or, since publication of the stage 1 decision, any of the adverse findings the Tribunal made. 3. At the stage 2 hearing, Dr Lucire instructed her lawyers to indicate that she is willing to be subjected to a reprimand and conditions including a supervision condition in relation to the proven misconduct. 4. The evidence given in the stage 1 proceedings satisfies us that Dr Lucire displays a persistent lack of insight, is unwilling to accept criticism and is not motivated to take steps towards appropriate reform. These are attributes of her professional conduct that appear to be longstanding and persistent.
8. If Dr Lucire's registration is suspended for a period, she would be entitled to be registered again without having to establish that she no longer poses a risk to the health and safety of patients. If we cancel her registration, she cannot be re-registered until she successfully applies for a review of that decision. In light of the seriousness of the misconduct and her lack of insight, unwillingness to accept criticism and absence of any motivation to change, a formal review process is necessary to ensure that Dr Lucire's registration is only restored if she proves that she can practise safely.
9. Dr Lucire tendered character and professional evidence from thirteen people. She submits that these references demonstrate that she is held in high regard and has made a valuable contribution to medicine. While all the referees hold Dr Lucire in high regard, for the following reasons, the weight that we can give their evidence is very limited.
10. Many of the referees are medical practitioners who share Dr Lucire's views on pharmacogenomics (how a person's genes affect how they respond to medication). Several praised her published research. Because Dr Lucire's integrity as a scientist is not challenged, those opinions have very little relevance.
11. We can give some weight to opinions about Dr Lucire's overall character and integrity, but those opinions must be weighed against the adverse findings we have made about Dr Lucire's honesty and credibility. For example, we found at [358] of the stage 1 decision, that Dr Lucire's evidence on the issue of whether she knew ketamine was an S8 drug was "inconsistent and not believable". At [364] we found that she did not have the intentions and motivations she attributed to herself about the risks associated with administering ketamine to Patient B. At [372] we found that Dr Lucire's evidence as to how she planned to administer ketamine was "contradictory and unreliable". At [414] we found her assertion that she did not make any notes retrospectively to be "not credible". At [439] we found that Dr Lucire was not credible and was attempting to deflect blame when she asserted that the script was written so that Patient B would know how much it cost.
12. The persuasive value of most of the references is also diminished because we do not know what information any of the authors were given. Only two of the referees state that they had read the Tribunal's stage 1 decision. Neither referred to the specific findings of unsatisfactory professional conduct or professional misconduct.
13. Various lawyers offered opinions as to Dr Lucire's competence and character. We give no weight to their views about the correctness of any medico-legal reports Dr Lucire has written. Neither can we rely on the hearsay statement of a solicitor, Mr Kingsley Liu, that Dr Lucire has told him that she "hopes to improve her relationship with the Professional Standards Committee (PSC) and evolve a better understanding over her conduct and her decision making…." We cannot be satisfied based on that statement that Dr Lucire will take more notice of the PSC in future. Indeed, Dr Lucire's disciplinary history suggests otherwise.

Is the Commission bound by its statement as to the orders sought?

1. The stage 1 hearing was conducted over five days. On the fourth day, after the Commission's evidence had been completed, Dr Lucire submitted that fairness required that the Commission should disclose the orders it is seeking. Dr Lucire contended that she is at a forensic disadvantage if she does not know the orders being sought. The Commission's submission was that when the proceedings are split between findings of liability and the orders to be made, it is premature for it to indicate the orders that it is seeking during the stage 1 proceedings. At that time, the Tribunal has not decided whether the Complaint has been proven. The orders sought will depend on the nature and extent of any findings of unsatisfactory professional conduct and professional misconduct.
2. Despite making that submission, the following day, Day 5, the Commission did indicate that, "at this stage": "The Commission will be seeking a reprimand, a suspension followed by conditions on the complaint before the Tribunal."
3. Dr Lucire's lawyers' response was that despite stating that it "will be seeking" those orders, "… that's not to suggest that the [Commission] would be stopped from altering their position if the evidence permitted another order to be sought." However, during the stage 2 hearing, the submission was made that the Commission was bound by the statement that it "will be seeking" particular orders.
4. In making that submission, Dr Lucire's lawyers relied on Leeming JA's observations in Gautum v Health Care Complaints Commission [2021] NSWCA 85 ("Gautum") at [13]. In that case, the parties agreed that there should be a single hearing on all the issues including the appropriate orders: Gautum at [4] (Leeming JA). The hearing took place over three days. The evidence was given on the first two days and the hearing was then adjourned with the parties undertaking to supply written submissions. On the third day, the parties spoke to their written submissions. The Commission submitted that Dr Gautam's registration should be cancelled.
5. As Leeming JA stated in Gautum at [9], "… it was only on the last day of the three day hearing that the HCCC (a) nominated the particular order which it sought, and (b) relied on Dr Gautam's denial of the complainant's allegations as a reason for his being deregistered." At [10], Leeming JA observed that "the course adopted by the HCCC is apt to invite the Tribunal into error." That course was to wait until the last day of a three-day hearing before nominating the particular orders sought and to then rely on Dr Gautam's denial of the complainant's allegations as a reason for seeking a deregistration order. As Leeming JA explained at [11]-[13]: "It is of course axiomatic that an accused person is entitled to plead not guilty, and defend himself or herself at trial, without thereby attracting the risk of a more serious penalty: Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74 at [22]. That does not entail that the submission advanced by the HCCC in these disciplinary proceedings is necessarily wrong. While there are similarities between criminal sentencing and the formulation of appropriate orders in matters of professional discipline, there is no precise analogy. Disciplinary proceedings are sui generis, as Mason J explained in Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207; [1979] HCA 35, and, in particular, the power to impose orders is largely protective rather than punitive: Healthcare Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 at [55]. Nevertheless, there are cases where submissions akin to that advanced by the HCCC have led to error. Recent examples are Thompson v Racing Victoria Ltd [2020] VSC 574 at [47] ("VCAT plainly erred in law in punishing Ms Thompson more severely because she disputed the charges") and Secretary to the Department of Education and Training v Paul [2020] VSCA 280 at [132] ("the Secretary was wrong to treat the fact that Paul did not admit to his wrongdoing, and that he affirmatively denied it, as aggravating his misconduct"). Those examples suggest that a degree of caution is warranted, to say the least. There is an obvious tension between the entitlement of a practitioner to insist that the HCCC proves its case, and the HCCC's submission that contesting its case will disentitle the practitioner from establishing insight into the misconduct, and indeed will favour a more severe disciplinary order. I do not say that in no circumstances could that occur, although I would expect that to occur only in relatively exceptional circumstances (for example, a self-represented practitioner who conducted an extravagantly misguided defence). But I would also expect that if such a submission were made, then the HCCC would advise in advance of the hearing of the orders that it sought and the particulars on which it relied, or otherwise take steps to ensure that the hearing was fair. The essential point is that the procedure adopted must be fair, in a practical and not merely theoretical, way (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]). I have real doubt that it could be fair to acquiesce in a single hearing on all aspects of a disciplinary complaint (ie liability and orders), and only at the conclusion of the hearing state that the appropriate order was deregistration, and then contend that because the practitioner had defended the proceedings, that would be relied on as a basis for deregistration; cf Smith v New South Wales Bar Association (1992) 176 CLR 256 in the joint judgment at 269 and, more elaborately, by Deane J at 272-274. I agree with Payne JA's observation that the course initiated and maintained in the HCCC's cross-appeal is regrettable."
6. As can be seen from these passages, the issue Leeming JA was addressing was not whether, as a general rule, the Commission should disclose the orders it is seeking at a particular stage of the proceedings. Nor was the issue whether the Commission is then bound by any indication as to those orders. Rather, the focus was on the specific fact situation in that case, which was the Commission's failure to disclose, early in the hearing, that it would be relying on Dr Gautam's denial of the complainant's allegations as a reason for seeking a deregistration order. Because there was no unfairness of that kind in this case, Leeming JA's observations are not applicable.
7. Contrary to Dr Lucire's submission, articulating the orders sought during a stage 1 hearing does not necessarily help the respondent understand what is in issue in the proceedings. While a respondent needs to know the case against them, the Tribunal is not bound to make orders identical to, or more lenient than, those sought by the Commission. A practitioner would be unwise to make forensic decisions based on the Commission's view of the appropriate orders because the Tribunal may reach a different view.

Conclusion

1. Dr Lucire has been a psychiatrist for close to 50 years. Her disciplinary history and our findings in the stage 1 decision demonstrate that, on occasions, when treating vulnerable patients with mental illness, Dr Lucire makes decisions which place the health and safety of the patient and the public at risk. On other occasions she deliberately fails to comply with requirements of regulatory authorities which are designed to protect the health and safety of patients and the public. Her lack of knowledge in some areas, her extremely poor professional and ethical judgment and her deficient record keeping practices, put patients' health and safety at risk.
2. As well, protecting the public from similar misconduct and upholding public confidence in the standards of the profession requires that Dr Lucire's registration be suspended or cancelled.
3. A period of suspension is not appropriate because after that time Dr Lucire could resume practice without further scrutiny. Nor are we satisfied, given Dr Lucire's previous conduct and disciplinary history, that supervision conditions will adequately protect the public. A condition that she not prescribe S8 or S4D drugs such as ketamine, does not allay our wider concerns about Dr Lucire's treatment of patients with a serious mental health diagnosis.
4. Taking all the relevant circumstances into account, we have decided to cancel Dr Lucire's registration and prohibit her from reviewing that order for one year.

Costs

1. The Commission applied for an order that Dr Lucire pay its costs. Dr Lucire did not oppose such an order being made. We exercise the discretion under clause 13 of Schedule 5D of the National Law to order Dr Lucire to pay the costs of the Health Care Complaints Commission as agreed or as assessed.

Orders 1. Dr Lucire's registration as a medical practitioner is cancelled. 2. Dr Lucire may not apply for review of Order 1 under Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW) for one year from the date of this decision. 3. Dr Lucire is to pay the costs of the Health Care Complaints Commission as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 March 2023