Health Care Complaints Commission v Martin

NCAT Occupational|2021-09-10|Before: Hon Boland AM, Dr P

Introduction

On 20 August 2021 Dr Jason Martin's solicitors filed a General application form in the Tribunal seeking to vacate the hearing of disciplinary proceedings brought against him by the Health Care Complaints Commission (HCCC). The proceedings are listed for hearing for three days commencing on 27 September 2021.
The application to vacate the hearing dates was listed in the Health Directions List on 10 September 2021. On that day, at the request of Dr Martin's counsel, an order was made that he be permitted to file a psychologist's report in support of his application by 17 September 2021. The parties agreed the application could be determined by either the Presiding Judge or the List Manager "on the papers" pursuant to s 50 (4) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
Dr Martin (who for convenience only in these reasons I will refer to as 'the practitioner") originally relied on an affidavit of his solicitor, Ms Lauren Antonini affirmed on 19 August 2021. Ms Antonini annexed to her affidavit a report by Dr Ralf Ilchef, Psychiatrist dated 28 July 2021.
Late on 17 September 2021 the registry received further material in support of the application on behalf of the practitioner (a further affidavit of Ms Antonini of 17 September 2021). Annexed to Ms Antonini's affidavit is a further report of Dr Ilchef dated 15 September 2021 and a report of Ms Raquel Noguez Morales, Psychologist also dated 15 September 2021. I note that the practitioner's legal representatives refer to the psychologist as Ms Noguez although she discloses her name as "Raquel Noguez Morales" on her letterhead and below her signature.
The registry also received submission from Dr P Dwyer, counsel for the practitioner, dated 17 September 2021.
The application is opposed by the HCCC as set out in submissions received on 15 September 2021. That position was confirmed by an email from the HCCC dated 20 September 2021.

Procedural history

On 15 March 2021 the HCCC lodged an Application for Disciplinary Findings and Orders in the Tribunal. The complaint annexed to the application asserts the practitioner failed to provide appropriate and adequate clinical care for a patient (Patient A). The complaint also asserts that the practitioner engaged in "boundary violations" whilst treating Patient A, and that he failed to keep appropriate clinical records. The complaint asserts that the practitioner is guilty of professional misconduct. The fifth complaint asserts the practitioner has an impairment (mood disorder, a diagnosis of opiate misuse (in remission) and personality vulnerabilities. Complaint Six asserts the practitioner is not competent "within the meaning of s139a of the National Law in that he lacks the mental capacity to practise as a medical practitioner".
The matter was first listed for directions on 23 April 2021 and was adjourned to a directions list on 14 May 2021.
On 14 May 2021 directions were made for each party to file relevant material and the matter was listed for a Case Conference on 20 August 2021. The disciplinary proceedings were listed for hearing commencing on 27 September 2021 for three days. An order was made on that day prohibiting publication of the name of Patient A. I note that the practitioner was required to file a Reply and all material on which he sought to rely by 13 August 2021. There has not been compliance with that order.
At the Case Conference an application was made to vacate the hearing and Balla ADCJ listed the matter in the Health Directions List on 10 September 2021.
As earlier noted, on 10 September 2021, orders were made to enable the practitioner to rely on a report from his treating psychologist in support of this application.

The Tribunal's guideline and relevant provision of the National Law

This Tribunal in dealing with an application to vacate hearing dates acts in accordance with the provisions of cl 11 of Sch 5D of the Health Practitioner Regulation National Law (NSW) (the National Law).
Clause 11 provides as follows: 11 Expedition of inquiries and appeals [NSW] (1) It is the duty of a Committee or the Tribunal to hear inquiries and appeals under this Law and to determine those inquiries and appeals expeditiously. (2) Without limiting subclause (1) - (a) an inquiry or appeal related to action taken by the Council under section 150 must be listed for hearing by a Committee or the Tribunal as soon as practicable; and (b) a Committee or the Tribunal may postpone or adjourn proceedings before it as it thinks fit.
Also relevant to the Tribunal's consideration are the objectives and principles of the National Law in particular s 3A. Section 3A is as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
The Tribunal is also informed and guided by the principles in s 3 of the NCAT Act and in particular s 3 (d) which requires the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible (see also s 36 of the NCAT Act dealing with the guiding principle when determining a matter of practice and procedure such as an application to vacate a hearing).
The Tribunal's deliberations when considering an adjournment are informed by the Tribunal's guidelines. These guidelines apply to the Occupational Division of the Tribunal. The relevant paragraphs are at pars 3 and 4: 3. The overriding principle is that when a date and time has been set for a hearing it will go ahead on that date and at that time, unless the Tribunal allows an adjournment. 4. In considering whether to allow an adjournment, the Tribunal will: a) take into account the need to manage cases and hearings fairly and efficiently. This includes making sure cases are heard as soon as possible, and b) allow an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn.
The ultimate question to be determined on an application to vacate a hearing date is "Where do the interests of justice lie".
The discretion to be exercised must be exercised judicially and will be guided by relevant individual facts. Some general principles of case management inform the discretion. In Kelly v Westpac Banking Corporation [2014] NSWCA 348 the New South Wales Court of Appeal heard an appeal against a decision of a primary Judge to refuse an adjournment to a self-represented litigant. The Court of Appeal referred to the principles in the Civil Procedure Act 2005 (NSW). Although that Act does not apply to the Tribunal, the principles in it are broadly analogous to the principles in the NCAT Act in ss 3 and 36. The Court explained at [35] (referring to Aon v Australian National University (2009) 239 CLR 175; [2009] HCA 27) as follows: The principles recognised in Aon have substantially been embodied in s 56ff of the Civil Procedure Act 2005 (NSW) (the "CP Act"). The overriding purpose dictated by s 56(1) of the CP Act and the rules of court, "to facilitate the just, quick and cheap resolution of the real issues in civil proceedings", is well-known. Section 56(3) imposes a duty on "[a] party to civil proceedings ... to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court."
The Court of Appeal considered a relevant sub-section of s 58 of the Civil Procedure Act 2005 (NSW), namely " (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction." and noted at [37]: Allsop P (McColl and Basten JJA agreeing, the latter adding some observations) set out relevant background to the insertion of these provisions in the CP Act in Richards v Cornford (No 3) [2010] NSWCA 134 as follows: "[42] The litigious process is inherently stressful for any party, in particular an individual. ... Litigation can be described as 'a costly and stressful, though necessary, evil': White v Overland [2001] FCA 1333 at [4]. The wider passage and the paragraph in which this appeared as part of the reasoning were approved by this Court in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; 53 NSWLR 116 at [1], [28] and [39]. That stress includes the uncertainty and concern as to the effects of legal costs that can lead to bankruptcy and financial ruin. The reality of the personal strain of litigation is now clearly recognised by the Courts: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [37]; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 715 - 716; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [100]. [43] This being the nature of the process of litigation, the courts in this country in modern times, have sought to exercise control and supervision over litigation in order to see cases resolved in a relatively timely fashion. It cannot always be done. Parties, practitioners, courts and judges sometimes fall behind by reference to appropriate standards of efficiency and timeliness. Nevertheless, the need for the due despatch of the cases of litigants is ever-present and is a fundamental aim of the administration of justice. [44] To put the matter simply and bluntly, parties are entitled to expect that the costly and stressful, though necessary evil that is litigation be resolved with reasonable despatch so as to minimise, where reasonably possible, the time during which people are subjected to its rigours and strains.

Grounds relied on in the application

The grounds relied on state "[the practitioner] has a well-documented history of chronic health issues, including Major Depressive Disorder and Crohn's Disease"
Ground 3 states that the practitioner has recently been diagnosed with Autism Spectrum Disorder and that he is having treatment for this condition.
Ground 4 states that the practitioner's father is suffering from cancer at a terminal stage.
Ground 5 asserts that "the stress and anxiety associated with all the above circumstances, along with the stress of his impending hearing has caused an acute flair up of his Major Depressive Disorder and Crohn's disease with Autism Spectrum Disorder.
Ground 6 refers to receipt of a report from Dr Ralf Ilchef, the practitioner's treating psychiatrist dated 28 July 2021 and refers to Dr Ilchef's opinion that the practitioner is currently unable to manage the stress of the hearing and needs six months treatment "to get to a stage where he will be able to manage the stress".

Ms Antonini's first affidavit

Ms Antonini refers to the directions made (which I have summarised above). She deposes to a conference of her client with Dr P Dwyer of counsel on 2 June 2021 at which conference the practitioner disclosed his recent diagnosis of Autism Spectrum Disorder on top of his other existing conditions. Ms Antonini also refers to the practitioner reporting his father's illness. She deposes that Dr Dwyer became concerned about the practitioner's health as a result of his disclosures.
At par 5 Ms Antonini deposes: "On 28 June 2021 I contacted Dr Ralf Ilchef, the [practitioner's] treating psychiatrist and expressed to him that I was concerned about the effect that the hearing would have on the [practitioner's] health on 27 September 2021".
Ms Antonini refers to Dr Ilchef assessing the practitioner and providing a report dated 28 July 2021. She further deposes to sending an email to the HCCC "informing them of the above" on 19 August 2021.

Ms Antonini's second affidavit

Ms Antonini deposes in par 4 of her affidavit dated 17 September 2021 that she is working from home self isolating under difficult circumstances because her eight year old son tested positive for COVID 19. I have no hesitation in accepting the difficulties of her working arrangements, or the steps she took to endeavour to have her affidavit affirmed.
I also accept her evidence that the Avant Mutual staff have been directed to work from home and not attend their offices.
Ms Antonini deposes to her concerns about the practitioner's health at the conference arranged to prepare his defence.
At par 6 Ms Antonini refers to the initial report obtained from Dr Ilchef. She deposes: I recognise that the report did not go far enough to answer the concerns the Tribunal would likely to have about whether or not to grant the request to vacate the hearing date.
Ms Antonini then explains she requested a second report from Dr Ilchef and also a report from the practitioner's treating psychologist.
At par 8 Ms Antonini expresses concern about the practitioner's ability to deal with stressors caused by his diagnosis, his father's health and having a hearing conducted remotely.

Dr Ilchef's first report

I commence by noting that I did not have the benefit of any correspondence from the solicitors to Dr Ichef.
At par 1 of his report Dr Ilchef responds to a question posed by the practitioner's instructing solicitors namely "If the patient has any specific diagnosis at this time" as follows: [the practitioner] suffers from a high functioning autism spectrum disorder (formerly known as Asperger disorder) and a major depressive disorder. Historically he has also had an opioid use disorder, now in prolonged remission, and suffers from a debilitating form of Crohns Disease. would recommend a delay of six months to optimize the doctor hands health prior to the NCAA T hearing. [Original grammar and emphasis]
Dr Ilchef explained that he had seen the practitioner intermittently since 2004 with a five year gap until recommencing treatment in July 2019.
In answer to the question "What treatment the patient is currently undergoing" Dr Ilchef responded: [the practitioner] is currently receiving cognitive behavioural psychological therapy for the management of autism related emotional and interpersonal difficulties with Ms Racquel Nogales. He is also on fluoxetine 20mg daily for depression. He also receives treatment for Crohn's disease.
Dr Ilchef also responded to the question "Whether or not the patient is likely to suffer harm if his NCAT prosecution is to go ahead on 27-29 September" as follows: [the practitioner's] autism spectrum disorder has only recently been diagnosed and explains many if [sic] the interpersonal difficulties and behaviours that led to both his finding of impairment and his difficulties in managing within restrictions. He is likely to need a [sic] least six months of therapy to be able to manage the stresses of the NCAT hearing satisfactorily. His depression treatment is also being optimized.
Finally Dr Ilchef responded to the question "whether you have a view on how long it will be before he will be able to attend a hearing of this nature" opining: I would recommend a delay of six months to optimise [the practitioner's] health prior to the NCAT hearing. [The practitioner] is not currently practising and does not intend to do so until his condition improves. There are good prospects that [the practitioner's] condition will have sufficiently improved in six months' time for him to be able to fully participate in his NCAT hearing.

Dr Ilchef's second report

I commence my summation of Dr Ilchef's evidence noting that the questions posed to him assume that the practitioner's depression will impact his ability to give evidence and that he could suffer harm by giving evidence.
Dr Ilchef commences his report noting he has been asked to address five further questions.
Dr Ilchef responds to a question "How would [the practitioner's] untreated autism impact on his ability to give evidence" opining: [the practitioner] is likely to have difficulty reading social cues and body language while giving evidence and may be distracted by loud noise. His answers to questions may tend to be categorical, literal and non-nuanced.
In responding to a question "How would [the practitioner's] depression impact on his ability to give evidence"? Dr Ilchef opines: Typical symptoms of major depressive disorder include subjective memory impairment, indecisiveness and difficulty concentrating.
The third question posed to Dr Ilchef is "What would be optimised by the hearing being delayed for 6 months so that [the practitioner] can receive treatment". Dr Ilchef responds: I am hopeful that during this period [the practitioner] can continue to have psychological therapy for his autism spectrum disorder and his depression can be optimally treated pharmacologically.
Thereafter Dr Ilchef repeats his earlier diagnoses of the practitioner's conditions.. He finally responds to the question "What harm could be done by [the practitioner] giving evidence" as follows: [the practitioner] is unlikely to represent himself well, and is likely to give the impression of more significant longitudinal impairment than is in fact the case. A delay of six months will allow a fairer assessment of his capacity.

The psychologist's report.

Ms Noguez commences her report noting that the practitioner was referred for treatment of depression by Dr Jian Zhou under a Mental Health Treatment Plan on 18 June 2021. She notes she has seen the practitioner on 8 occasions.
After setting out the practitioner's diagnoses she explains that he has been receiving treatment weekly focusing on Cognitive Behavioural Therapy to treat his conditions and "incorporating emotional regulation strategies". She notes the practitioner was seen on 3 September 2021 and that "in the past week his symptoms of depression and stress remained in the moderate range and anxiety was placed in the mild to moderate range".. But Ms Noguez goes on to opine "his mental health is still in a vulnerable state and is easily triggered by adverse life events and stressful situations".
Ms Noguez addresses the impact of the practitioner's diagnoses on his ability to give evidence and explains the practitioner's autism diagnosis may mean he may misinterpret social cues which may lead to confusion and emotional distress "thus, increasing [the practitioner's] anxiety and adversely impacting his mood" .
In commenting of the practitioner's depression, Ms Noguez opines that he may have a flat affect "which may appear cold and uncaring". She also opines that his condition may impair his ability to concentrate and his cognitive function. She explains: Morever, [the practitioner's] awareness of his impaired cognitive function may lead to an increase anxious state and result in him giving up and not being able to persevere to tell his version of event.
Mr Noguez opines that the practitioner's anxiety disorder may result in him not being able to "self-advocate in a calm and rational manner".
Ms Noguez opines that, if the practitioner is required to give evidence at this time, "that he will not be able to appropriately advocate for himself and [sic] would prevent him from having a fair trial". She further opines: This would likely exacerbate his mental health problems and could lead to a significant deterioration in his mental health and overall functioning. … Taking into consideration that [the practitioner] [sic] mental health has been adversely affected by the latest Covid-19 lockdown restrictions, unemployment, his physical health problems and his father's terminal diagnosis, appearing in a hearing and providing evidence at this time is likely to negatively impact [the practitioner's] mental health further and place him in a more vulnerable situation.
In addressing the question of a delay of the proceedings Ms Noguez opines that an additional period of psychological treatment is likely to result in a significant improvement in the practitioner's mental health and to improve his social communication skills resulting in an enhanced ability to give evidence and to the participate "in a calm and rational manner" .

The HCCC's submissions

The HCCC provided written submissions opposing the vacation of the hearing on 15 September 2021.
In commenting on the report of Dr Ilchef the submissions note there is no explanation of what the word "optimized" means in the sentence "His depression treatment is being optimized. It is noted that the practitioner has been treated for his major depressive disorder since 2019.
At par 13 the submissions note "The report does not say how the autism spectrum disorder or how his depression would impact on his ability to give evidence or provide instructions to his legal representatives". At par 14 it is submitted that "there is a poverty of evidence provided of how these diagnosis will impact on the hearing going ahead on 27 September 2021 as listed. The evidence is deficient to support the adjournment as sought".
In addressing why it says the hearing should not be vacated, the HCCC point out that the complaints against the practitioner are serious. The submissions note that on 13 November 2019 the Medical Council imposed a condition "not to practice medicine" on the practitioner but there are no restrictions on his ability to practise in any health or client related role.
The submissions note the hearing dates were fixed in May 2021 and that the patient "is a young and vulnerable woman and seeks finalisation of the matter.
The submissions conclude with the following: There is no material or evidence to suggest that the practitioner's medical conditions effects [sic] his ability to give instructions or participate in the hearing as listed, nor how these medical conditions would improve with the benefit of a six month adjournment.
As noted above, after the receipt of Ms Antonini's second affidavit with the annexed reports and Dr Dwyer's submission, the HCCC advised that the vacation of the hearing dates remained opposed.

Submission on behalf of the practitioner

I commence by noting that although Dr Dwyer made some oral submissions on 10 September 2021 her written submissions were only received on 17 September 2021 after the HCCC's submissions were lodged. Consequently, the submissions are dealt with in this point in my reasons as they address matters in the HCCC's submissions and the evidence filed after the HCCC's submissions were drafted.
Dr Dwyer submits that the Tribunal will not be assisted in performing its role if the practitioner is not well placed to prepare and appear to give evidence. At par 12, she submits "With a further period of six months, the Tribunal will be better able to determine issues of insight, clinical skill and capacity that are integral to the complaint".
At par 16 the submissions address the evidence of Ms Noguez that participation in the proceedings is likely to exacerbate the practitioner's ill health.
Dr Dwyer also refers to difficulties involved in assisting the practitioner due to the pandemic.
At pars 20 to 21 Dr Dwyer refers to both the initial report of Dr Ilchef about the practitioner being better able to participate in a hearing in six months' time and also to Ms Noguez's report
At pars 23 to 24 Dr Dwyer submits the concerns raised by the HCCC in its submissions at pars 13 to 14 were well placed but says they are now addressed in Dr Ilchef's second report and the report of Ms Noguez (referred to by Dr Dwyer and Ms Antonini as Ms Noguez).

Consideration

It is unfortunate, given the date of the practitioner's conference with counsel (6 June 2021) and the date of Dr Ilchef's first report, that this application was not made at an earlier time.
I first turn to consider the objective and guiding principle of the National Law.
I am satisfied that there is not likely to be any risk to the health and safety of the public if the hearing dates are vacated. I have taken into account that the practitioner's registration is subject to a condition which precludes him from practising medicine. While the HCCC speculate that he could provide other health services there is no evidence to suggest that this is the case.
I also consider the principle that the matters should be heard expeditiously and in a cost effective matter. I accept that there will be costs thrown away by reason of the vacation of the hearing dates if granted. I also take into account that other matters which could have been listed in the dates allocated for this matter have had hearings delayed. Significantly, I take into account that the Tribunal has appointed Occasional Members to sit on this hearing. Those Occasional Members have usually made arrangements to be, in the case of professional members, away from their patients and practices and may not on short notice be able to change such arrangements. This may have the effect that professional members are less willing in the future to commit to accepting appointment as Occasional Members of the Tribunal.
On the other hand, I am conscious that there have not been, despite the constraints imposed by the COVID 19 pandemic, significant delays in listing this matter for hearing and that the matter should be able to be heard within or close to 12 months from filing if the matter is adjourned for six months. It is relevant to note that the matters the subject of the complaint arise from treatment of Patient A in 2018, and action was taken by the Medical Council in 2019. Thus, there has already been considerable delay before advancing the inquiry now referred to the Tribunal.
There appears no controversy about the practitioner's diagnosis of opioid misuse in remission, or a mood disorder (if what is asserted is a Major Depressive Disorder) and that he suffers an impairment. It will be remembered that it is the HCCC's case that the practitioner is not competent to practise by reason of mental illness. These latter complaints support the practitioner's case that he currently suffers a mental illness. I have also given weight to Dr Ilchef's opinion that the practitioner's diagnoses means that he requires six months of treatment to be able to manage the stresses of disciplinary proceedings. I infer that Dr Ilchef is referring to treatment to cope with a level of stress which is normally experienced by any practitioner facing disciplinary proceedings.
I accept there are deficiencies in the first report of Dr Ilchef as outlined by the HCCC in its submissions but note that he was responding to questions posed to him by the practitioner's solicitors. The report does not address the practitioner's ability to attend the hearing which of necessity will be conducted by audio visual link (AVL) due to the current health restrictions. It is not clear to me whether the practitioner could participate by AVL from his solicitors' offices or counsel's chambers. Nor is it clear whether the practitioner's present conditions prevent or impede him giving instructions to his counsel. I accept it is unlikely he will be able to participate by AVL from his solicitors' offices due to the current restrictions on staff attending those offices.
What is clear is that the practitioner will be subject to cross-examination about his treatment of Patient A, the asserted boundary violations, and his asserted inadequate record keeping (albeit that the latter may be established primarily on the documentary evidence).
I have taken into account and given substantial weight to the fact that Patient A, a patient whom the complaint reveals to have had mental health issues, is likely to be upset by any delay in the proceedings.
Notwithstanding the assumptions contained in some of the questions posed to Dr Ilchef for the purposes of his second report, I accept that he does explain why the practitioner may be prejudiced if required to participate in a hearing at this time, and that a delay of approximately six months is likely to benefit the practitioner's mental health.
Dr Ilchef's opinions are to a substantial degree replicated by Ms Noguez in her report. I have taken into account that Ms Noguez has had the opportunity to see the practitioner on a regular basis from June to September this year and is closely involved in his current treatment.
I also take into account that an order for costs thrown away by the adjournment can be sought by the HCCC. This will ameliorate to a degree any prejudice to the HCCC. .
The practitioner's application for an adjournment initially had a number of deficiencies, particularly those identified by the HCCC in respect of the medical evidence. Those deficiencies have been addressed to a significant degree in the material provided to the Tribunal on 17 September 2021. The practitioner's diagnoses are serious and they may impede his full and proper participation in the proceedings. I also take into account that issues of credit will arise in these proceedings and that the conduct of the proceedings by AVL while possible would not be optimal. Thus matters favouring the adjournment, against those maintaining the hearing dates, are finely balanced but I find the interests of justice fall in favour of the practitioner. He is more likely to suffer an injustice if the hearing proceeds than any injustice that may be suffered by the HCCC (and the public as consumers of health services).
Finally, I note that I propose this matter should be listed in the Health Directions List on 10 December 2021. On that occasion, if the practitioner maintains he will not be well enough for new hearing dates to be fixed in March 2022 he will need to provide further evidence in support of any further delay.

Costs

Neither party addressed the issue of costs thrown away because of the adjournment. I propose to reserve the costs of this application to the substantive hearing.

Orders 1. The hearing fixed to commence on 27 September 2021 is vacated. 2. The matter is listed for directions to fix new hearing dates on 10 December 2021 at 9.30am. 3. Costs are reserved.

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 September 2021

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