Health Care Complaints Commission v Mathad

NCAT Occupational|2018-04-13|Before: Mr P

Introduction

On 16 February 2018 we published our decision in respect of a complaint brought by the Health Care Complaints Commission (the HCCC) against Dr Anil Kotilingaiah Mathad (the practitioner) (see HCCC v Mathad [2018] NSWCATOD 20). We found the practitioner had committed a criminal offence, was guilty of unsatisfactory professional conduct, professional misconduct and that he was not a suitable person to hold registration. We listed the matter for a Stage 2 hearing on 11 April 2018.
After our decision was published the HCCC filed an application in which an interlocutory order was sought suspending the practitioner's registration pending our final determination of the matter. That application was heard on 11 April 2018 and an order was made as sought by the HCCC. The parties agreed that the Stage 2 proceedings could be dealt with "on the papers" and we received written submissions from the HCCC dated 13 April 2018, and on behalf of the practitioner on 10 May 2018. Although we provided for submissions in reply, if any, to be lodged by 25 May 2018, after enquiry, we were advised that the HCCC had determined it did not wish to make further submissions.
These reasons should be read in conjunction with our earlier decisions in this matter (HCCC v Mathad [2017] NSWCATOD 183 - s 128 proceedings; HCCC v Mathad [2018] NSWCATOD 20, and HCCC v Mathad (No 2) [2018] NSWCATOD 97).
We have determined, for the reasons which follow, that the practitioner's registration should be cancelled, that he should be precluded from applying for a re-instatement order for a period of two years, and that he should pay the costs of the HCCC of and incidental to these proceedings.

Relevant Principles

Having found that the practitioner's conduct constituted professional misconduct, as defined in s 139E of the National Law it now falls to us to determine appropriate protective orders.
In our Stage One reasons we noted at [41] to [43] the relevant principles applicable to the making of protective orders. It is unnecessary that we repeat those core principles.

The HCCC's submissions

After reciting a number of our key findings in the Stage One proceedings, the HCCC's submissions address, by reference to authority, the nexus between the acceptance of wrongdoing and protective orders. Reliance is placed on the decision of the Court of Appeal in Childs v Walton [1990] NSWCA 41 as well as other decided cases where a practitioner had been found to have engaged in inappropriate sexual conduct to female patients. (see Dr Antwan Barich and the Medical Practice Act 1992 as amended (Medical Tribunal 8 June 1999); Re Mr Antwan Barich [2001] NSW MT (3 April 2011); HCCC v Litchfield (1997) 41 NSWLR 630; and HCCC v King [2013] NSWMT 9).
At [18] of the submissions it is submitted that "the only appropriate order in this case is cancellation of the practitioner's registration …". The submissions go on to agitate for a minimum period of three years before the practitioner should be permitted to re-apply for registration. The submissions then refer to the fact that the conduct, the subject of the complaint, occurred over a period of 16 months, that it involved six patients/persons, the complete lack of contrition and insight of the practitioner and absence of any real evidence of reformation of character. Because of these factors it is submitted there is a requirement that an order should be made prohibiting the practitioner for applying for a re-instatement order for a period of five years.
The submissions fairly note that when the practitioner will be able to demonstrate insight and reform is "entirely unknown" and accordingly the imposition of a restraint on seeking a re-instatement order may appear arbitrary. The submissions go on to note at [23] as follows: In this case however, general deterrence is the significant factor which argues for a lengthy time in which the Respondent cannot seek re-registration.

Submissions made on behalf of the practitioner

The submissions filed on behalf of the practitioner note at [4] that given our findings "it would be open to the Tribunal to find that cancellation of registration is an available course". The submissions also appropriately note that "as a matter of law, it is open to find that, in relation to conduct which is denied but proven to the Tribunal's satisfaction, the denial could be regarded as some indication of a lack of insight". This submission is qualified by the following paragraphs which refer to the context of answers given by the practitioner in the course of his cross-examination.
At [9] it is noted "this is not a case where it could be concluded the practitioner would be never capable of demonstrating the required insight or is permanently impaired or is otherwise incapable of reform".
Reference is then made to the character references relied on by the practitioner. The submission puts in issue the HCCC's contention that the references do not demonstrate a reformation of character. We pause to note that the practitioner's referees were not required for cross-examination. It is submitted that the evidence of the referees is objective evidence of change or reformation of character.
The principal focus of the submissions is on the time before which a re-instatement application may be made (the non review period). It is submitted that the HCCC's submissions place inappropriate weight on general deterrence as the principal consideration, and attribute an inappropriate component of the non review period to the conduct in respect of Person F. It is further submitted that the approach adopted by the HCCC about the non review period reflects a manner "more akin to the sentencing process" and is not reflective of a range of protective orders made in matters of sexual misconduct. It is submitted that a period of five years is not justified notwithstanding our finding that the practitioner's misconduct in respect of Person F was found by us to be "deplorable" and that he exhibited a gross abuse of power in his dealings with her. At [22] the practitioner's counsel submits: Breaking the applicant's submission down, the application appears to be suggesting firstly that sexual misconduct involving a patient (in this instance the baseline is assumed to be the touching of a breast rather than sending a text message to a patient), coupled with misconduct in the workplace, all of which was characterised by the Tribunal as sexual harassment should result in a non-review period of 3 years. Secondly, that that period of 3 years is determined by the perceived need for general deterrence. Thirdly, the conduct is then aggravated to a non-review period of 5 years by the accumulation of the further factors identified.
This approach, it is submitted, is erroneous and is more akin to sentencing in a criminal proceeding.
The submissions go on to refer to general principles applied in these types of proceedings noting the jurisdiction is primarily protective in nature rather than punitive. After citing a number of authorities, the submissions refer to the statements of principle enunciated by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. The submissions stress that the more general statements of principle "simply conflate the principle of deterrence (both of the practitioner and others in the profession) with the period of non-review".
The submissions then refer to the statements of principle by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 particularly at [20] and [22] but fairly note that in the same matter Payne JA at [88] refers to the part deterrence plays in an order under s 147 (5).
It is submitted on the practitioner's behalf that the period sought by the HCCC is "excessive and disproportionate to the conduct alleged and the protection required". It is also pointed out the time likely to be involved in an application for re-instatement and the consequent delay on re-admittance to practice. It is further submitted that regard should be had to the fact if a five year period is imposed that 9 years will have elapsed since the conduct the subject of the complaint concerning all patients and persons other than Person G, and that a period of 13 years will have elapsed since the practitioner's criminal conviction.
The submissions helpfully refer to the periods imposed under s 147 (5) in comparable cases as providing, in some instances, a useful guide if they demonstrate a range or pattern, but note that the range will only be useful if "there is a unifying principle".

The practitioner's referees

The practitioner relied on a brief character reference from a medical practitioner who knew him during his basic physician training in 2009 to 2011. The referee is only able to comment on her observations of the practitioner in that period. Accordingly we can give little weight to the reference.
A reference is provided by Ms Adred Hammond who describes herself as a personal friend and a co-worker of the practitioner having worked with him for the last three years. She does not disclose the nature of her work in the medical practice, but does state it has been a pleasure "working with and alongside" the practitioner, and that she "has had very few complaints from his patients over the last three years". We accept that Ms Hammond has enjoyed a good working relationship with the practitioner, and that she was shocked to read the Tribunal's reasons. We give some weight to her view that the practitioner presents to her as a "completely different person" (to the practitioner referred to in our reasons).
The practitioner also relies on a character reference from Ms Kathryn Brown, a registered nurse who states she has worked with the practitioner since 2015 and in particular as a chaperone for the last two years. Ms Brown states that while working in the general practice that the practitioner "has always had a pleasant, professional manner". She notes "We never had any issues with [the practitioner] that relate to the matters against him". Similar views are expressed by Ms Karen Partridge, registered nurse. Ms Partridge has also known the practitioner in a professional capacity for the past three years and has volunteered to act in a chaperone capacity in 2016.
Ms Bronwyn Carstairs is an endorsed enrolled nurse who has acted in a chaperone capacity for the practitioner for a period of approximately 16 months. She opines that the practitioner's consultations where she has been his chaperone have been conducted in a manner that was respectful and professional after obtaining consent from the patient. She also states the practitioner has been friendly "while maintaining strict professional boundaries both in person and via digital correspondence".
The HCCC submit that "whilst the references are relevant, they ought be given little weight to support a favourable finding of risk to the public or insight".
We find that some weight should be afforded to the references provided by the nurses who have worked with the practitioner. However, we are conscious that, given the conditions placed on the practitioner's registration and the impending Tribunal proceedings, that the practitioner would be exquisitely conscious that his conduct in the last three years would be relevant in these proceedings. It is however, commendable that he has engaged in a respectful manner with the nurses employed in the general practice, and has engaged in a proper fashion with patients he has consulted in the presence of Ms Castairs and Ms Brown.

Discussion and conclusions appropriate protective orders

We agree the concession made on behalf of the practitioner that cancellation of his registration is a protective order open to us based on our Stage 1 findings.
It is unnecessary we repeat in detail our findings about the practitioner's conduct. It is sufficient that we repeat what we said at [194]-[197]: We find the practitioner's conduct in respect of Person F was significantly below the standard of a practitioner of an equivalent level of training and experience. It was also highly improper. The texting and behaviour exhibited by the practitioner to this minor was a gross abuse of his power. It was behaviour perpetuated on a vulnerable minor undergoing a traineeship. We find the practitioner relentlessly pressured Person F with frequent text messages endeavouring to persuade her to engage in photographic sessions when it was very clear she did not want to do so. This was deplorable conduct by a 38 year old professional who either completely lacked insight or integrity or pursued Person F knowingly with sexual intent. His invitations to Person F to go to the movies, or go out with him to the zoo or a nightclub were likewise inappropriate. The explicit photos clips of the semi clad man sent to Person F were not funny or a joke as the practitioner suggested, rather the photo clips were inappropriate having a sexual connotation. It is not surprisingly that this 16 year old girl turned to her more mature friend for advice but did not act until she received the Viagra message because she was scared. It is of concern that she was initially questioned about the veracity of her allegations and the practitioner was able to assert pressure in threatening legal proceedings to be re-instated to his position. It demonstrates cogently the practitioner knew how to assert power in the practice. We find the practitioner's conduct in respect of Person F to be so serious that it could justify his suspension or cancellation of his registration. However, our findings in respect of Person F cannot be regarded in isolation. We find the practitioner engaged in highly inappropriate conduct in his examinations of Patients B, C and D. We have also found that he inappropriately sent text messages to Patient A, and that his conduct towards Person E constituted harassment. Again, the practitioner's conduct in respect of each of these women demonstrates a blatant disrespect for doctor/patient boundaries or appropriate behaviour between or by professionals. The practitioner in his actions, including his text messages to Ms Avery where he used derogatory language about patients referring to them as "psyco druggie bludgers" and "retards", demonstrated complete and utter disrespect for Patient C and D and other patients suffering mental illness or drug addiction. He targeted his unwanted, uncalled for attentions on the younger single nurse in the practice and Person F, a trainee. We have no hesitation, based on our findings, that the practitioner's conduct was such that it could justify his suspension or cancellation of his registration. Thus, we are satisfied that Complaint 3 is established.
These findings, together with our findings in respect of the practitioner's criminal conviction, leads us to the conclusion that the professional misconduct we have found established requires the cancellation of the practitioner's registration. Our findings are bolstered by our conclusion that the practitioner demonstrated limited insight into the seriousness of his behaviour and lacked any true remorse.

Period before any application for a re-instatement order may be made

Section 149C of the National Law empowers the Tribunal to cancel or suspend a practitioner's registration. Section 149C (7) provides: An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
The National Law does not set out any criteria to be considered if an order is made under s 149C. How the discretion afforded by the provision should be exercised is discussed in the decision of HCCC v Priyamanna (No 2) [2016] NSWCATOD 3. The discussion sets out an extract from the judgment of Barrett JA in Lee v Health Care Complaints Commission [2012] NSWCA 80 dealing with guidance to be derived from other decisions, but also explaining the need to have regard to the specialist expertise of the tribunal and the unique nature of a particular matter before it.
More recently, the topic of s 149C (7) has been considered by Basten JA and Payne JA in their separate judgments in Chen v Health Care Complaints Commission [2017] NSWCA. At [22] Basten JA explained: The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make.
In the same matter Payne JA, with whom Leeming JA agreed, referred to the work to be done by s 149C (7) at [88] as follows: Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order.
Thus it may be concluded that in exercising our discretion about making an order under s 149C (7) we must consider at least two or more factors. We must consider the seriousness of the practitioner's conduct. We are required to determine the period in which this practitioner may gain insight into his inappropriate conduct and to take remedial steps to improve his communication style with patients and staff, if he has not already done so. We are also required, but not solely required, to ensure that any period chosen reflects periods imposed for similar conduct with patients by other practitioners and acts as a deterrent to such conduct. This may result in a substantial period before re-instatement to the register can be made.
The HCCC seek that we make orders precluding the practitioner from seeking a re-instatement order from the Tribunal for a period of not less than three years, but submit given the serious nature of the complaints proven against the practitioner that a period of five years would be appropriate.
We find that the practitioner's conduct and lack of insight demonstrated at the Stage 1 hearings means that an order should be made under s 149C(7). We are satisfied that the appropriate period before the practitioner can re-apply for re-instatement is a period of two years. During such a period the practitioner will have an opportunity to reflect on his conduct, and hopefully to gain insight, perhaps with the assistance of a psychologist and appropriate education courses. In reaching our conclusions about the appropriate period we have considered the practitioner's conduct both up to the Stage 1 proceedings and as experienced by his referees during the approximately 16 months to three years since then. We have given significant weight to the protection of the public, and the deterrent element of this order. We have also given some weight to the period of time that will have elapsed since the offences occurred and the practitioner's relatively young age and lack of experience in general practice at the relevant time.

Costs

The HCCC sought an order that the practitioner pay its costs of and incidental to the proceedings. In its written submissions the HCCC noted that it was successful in respect of all matters agitated in the complaint except for two minor particulars.
The power to award costs is found in cl 13 of Schedule 5D of the National Law as follows: (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
The principles to be applied under the National Law in respect of costs are subject of clear authority (see HCCC v Philipiah [2013] NSWCA 342).
We are satisfied that it is appropriate that the practitioner should pay the HCCC's costs of and incidental to the proceedings as agreed, and failing agreement as assessed.

ORDERS

The registration of Dr Anil Kotilingaiah Mathad (the practitioner) is cancelled.
The practitioner is precluded from applying for a re-instatement order under s 163A of the Health Practitioner Regulation National Law (NSW) for a period of two (2) years from the date of these orders.
The Registrar is requested to notify the Medical Council of NSW as soon as practicable of Order 1 and 2 of these orders.
The practitioner shall pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed and failing agreement 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: 28 June 2018

Health Practitioner Regulation National Law Legal Profession Uniform Law Application Act 2014(NSW)

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