Health Care Complaints Commission v Manners

NCAT Occupational|2014-10-10|Before: Boland AM

Introduction 1This is an oral application by Ms R Lewis, brought on behalf of the Director of Proceedings of the Health Care Complaints Commission (HCCC) to withdraw one complaint lodged in the former Medical Tribunal of New South Wales in about November 2013 and also to withdraw a second complaint referred to this Tribunal on 8 May 2014. 2The respondent to each of the complaints is Mr Vincent Manners, formerly Dr Vincent Manners. For convenience, I will now refer to Mr Manners as "the practitioner". 3The application also seeks the vacation of the hearing listed for three days commencing on 3 November 2014. The application for withdrawal is brought pursuant to cl 12 of Schedule 5D of the Health Practitioner Regulation National Law (the National Law). I also propose to consider the application filed in the Tribunal in May 2014 and the one transferred to this Tribunal on the introduction of the Civil and Administrative Tribunal Act 2013 (NSW) under s 55 of that Act. 4The application is supported on behalf of the practitioner by Mr Lynch of counsel who is instructed by the practitioner's solicitors, Avant Law

Background. 5The practitioner is a general practitioner who was born in 1954. He commenced general practice in a regional centre in New South Wales in 1984 after spending three years working in hospitals. Save for periods of illness, he has continuously conducted practice as a general practitioner albeit his earlier practice merged into another practice in 2009. 6The practitioner is married and has four children. 7In a statement signed by the practitioner dated 18 June 2013 (which has become Exhibit A in this application) he explains that, in the period 1992 to 1993, he suffered a significant decline in vision and was diagnosed with pigment disposition and acute glaucoma. 8In 1995 the practitioner underwent surgery to reduce pressure in his right eye. 9In 2002 the practitioner underwent a CT scan of his brain and he was discovered to have a substantial tumour at the base of the brain. He underwent surgery at the John Hunter Hospital that year and was commenced on hormone replacement therapy. 10In July 2005 the practitioner underwent further surgery in Adelaide for the further removal of the tumour. The practitioner asserts, from about 2007, he commenced experiencing low moods. He concedes in 2008 he entered into a sexual relationship with a patient. (Patient C named in the second complaint). 11The practitioner underwent further surgery in 2009 to reduce pressure in his eye. 12In May and June 2011 the practitioner engaged in sexual intercourse with a patient, Patient A, in his consulting rooms. At this time both patient A and her husband were the doctor's patients. Subsequently the practitioner made a misleading statement to the HCCC denying a sexual relationship with the patient. The patient's husband is identified in the complaint as Patient B. 13Between June 2011 and September 2013 the practitioner engaged in inappropriate text communications with another patient, patient D. In the complaint it is asserted that he failed to terminate the therapeutic relationship with that patient and refer her to another practitioner. 14The practitioner has conceded complaints of unsatisfactory professional conduct and professional misconduct which are set out in both complaints.

Procedural history 15Ms Lewis in her statement notes that the first complaint commenced in the Medical Tribunal of New South Wales. It was listed for directions in that Tribunal and subsequently listed for hearing commencing on 25 September 2013. On 6 September his Honour Judge Levy made orders to vacate the hearing dates following an application by the HCCC to do so. 16The second complaint was filed in this Tribunal on 8 May 2014. The matter was listed for a directions hearing before me and subsequently listed for three days to commence in November 2014. 17By letter dated 27 August 2014 Ms Linda Kamaras of Avant Law advised the Commission that the practitioner's name was no longer on the register of medical practitioners, that he had surrendered his registration to the Australian Health Practitioner Regulation Agency, and signed an affidavit (in fact a statutory declaration) in which he deposed that he had no intention to ever re-apply for registration. 18On 29 August 2014 the Director consulted with the Medical Council of New South Wales (the Council) and agreed with the proposal of the Council that the complaint should be withdrawn and that subsequently resulted in the present application coming before this Tribunal.

Relevant Law 19The principles applicable to this application and the jurisdiction to make the orders sought are discussed in Health Care Complaints Commission v Khan [2014] NSWCATOD 83 at [21] -[25] and at [31]-[49]. I incorporate the latter paragraphs into these reasons. 20The relevant provision of the National Law is found in cl 12 of Schedule 5D. That provision is as follows (1) A Committee or the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry or appeal, if-- (a) any of the following circumstances apply-- (i) a complainant fails to comply with a requirement made of the complainant by the Committee or the Tribunal; (ii) the person about whom the complaint is made ceases to be a registered health practitioner or student; (iii) the complaint before the Committee or the Tribunal is withdrawn; and (b) in the opinion of the Committee or the Tribunal it is not in the public interest for the inquiry or appeal to continue. (2) A Committee or the Tribunal must not conduct or continue any inquiry or any appeal if the registered health practitioner or student concerned dies. (3) The power conferred on a Committee or the Tribunal by this clause may be exercised by the Chairperson of the Committee or the member of the Tribunal presiding and, if exercised by the Chairperson or member, is taken to have been exercised by the Committee or the Tribunal.

Discussion and conclusions 21In this particular case the matters that I have taken into account in determining that the application should be withdrawn are the following. First, the former practitioner no longer holds registration. It is clear from his affidavit which is annexure D to Ms Lewis' statement that he confirms that once his name was removed from the register that he has "no intention of ever reapplying for registration". He confirms that he made the decision to remove his name from the register of practitioners for personal reasons. 22Secondly, I have taken into account in the practitioner's statement where he said at [47]: I have taken a lot of time to reflect daily on my past conduct. I should never have commenced a sexual relationship with either of the patients and I now appreciate much better the inappropriateness of my actions. 23At the time when he was in practice, the practitioner referred to having enrolled in the ethics course at Monash University. At [52] he acknowledges his improper actions have had a negative impact on a number of people's lives and that the damage he caused included imposing a strain on patient A's marriage. He apologies to his patients for his misconduct and also apologises to the profession for the adverse impact which his misconduct has caused. 24It appears to me that if the matter proceeded to a hearing each of the matters referred to by the practitioner would have been relevant matters to take into account and are also relevant matters for me to consider now. 25The Council and the HCCC have made it clear that should the practitioner again re-apply for registration, notwithstanding his stated intention not to do so, that proceedings could be brought against him. 26I am entirely satisfied that the practitioner, in his present circumstances, does not pose a risk to the public, nor is he likely to pose a risk to the public in the future. 27This morning I canvassed with Mr Lynch of counsel who appears on behalf of the practitioner, whether or not the matter should proceed to a hearing because of the deterrent effect of any protective order (which in my view would be likely to be cancellation of the practitioner's registration given the seriousness of the complaints). An order sends a message to the profession and the public that such behaviour by health practitioners will not be condoned. (see Health Care Complaints Commission v Do [2014] NSWCA 307). I am satisfied, however, in the circumstances here that balancing the cost to the public, the fact the practitioner is not continuing to practice, and that there is no risk to the health and safety of the public, that those factors outweigh any deterrent factor that may be present in this case. 28I also, as noted earlier, take into account the expressed remorse of the practitioner, which I accept as genuine. In all those circumstances I find it is appropriate for the two complaints to be withdrawn and accordingly my orders will be as follows:

Orders (1)Leave granted to the Health Care Complaints Commission (HCCC) to make an oral application to withdraw two complaints and an application for disciplinary findings and orders filed 8 May 2014. (2)The Tribunal consents to the complaints in respect of Mr Vincent Manners (formerly Dr Vincent Manners) referred to the former Medical Tribunal of NSW and to the Tribunal by the HCCC on 8 May 2014 being withdrawn under cl 12 of Sch 5D of the Health Practitioner Regulation National Law. (3)The application for disciplinary orders filed by the HCCC on May 2014 is dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW). (4)The hearing fixed for three days commencing 3 November 2014 is vacated. (5)No order as to costs.

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: 23 December 2014

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