Health Care Complaints Commission v McAlpine

NCAT Occupational|2022-05-23|Before: Jennifer Boland AM

Introduction

David McAlpine is a registered paramedic. Following a complaint by a female patient that Mr McAlpine had behaved in an inappropriate manner on 7 April 2020 when treating her in an ambulance prior to her hospitalisation, his registration was suspended.
On 17 December 2021 the Health Care Complaints Commission (HCCC) lodged an Application for disciplinary findings and orders in the Tribunal with a complaint annexed. In the Application the HCCC ask the Tribunal to make orders under s 149C of the Health Practitioner Regulation National Law (NSW) (the National Law) that Mr McAlpine's registration is cancelled, and that he be precluded from seeking to review the cancellation for a period of twelve months. The HCCC also seek an order that Mr McAlpine be prohibited from providing "ambulance services" as defined in s 4 of the Health Care Complaints Act 1993 (NSW) during the same period of any non-review period imposed. Finally, the HCCC seek under cl 13 of Schedule 5D of the National Law an order that Mr McAlpine pay its costs.
Mr McAlpine who, for convenience only in these reasons, we will refer to as the "the practitioner", in a Reply filed on his behalf by his solicitors on 18 May 2022 does not oppose the cancellation of his registration or the proposed non-review period. Nor does he oppose the making of a prohibition order. He asks for an opportunity to be heard on the question of costs. However, in his Reply the practitioner does not "respond to or plead to the particulars in support of the complaints and does not wish to be heard with respect of each of the complaints said to support the making of the proposed orders".
The practitioner did not participate in the hearing and no witnesses, including Patient A, were required for cross-examination.
For the reasons which follow, we have found the complaints brought by the HCCC are established and that the orders sought, other than the costs order are appropriate in the circumstances and should be made. As we explain at the conclusion of these reasons, we propose to permit each party to make written submissions on costs after publication of these reasons.

Background

The following matters, unless noted to be an assertion, are found by us proved to the requisite civil standard.
The practitioner was first registered as a paramedic on 20 January 2020. He asserts he has 23 years of service as an ambulance officer.
Following a hearing under s 150 of the National Law on 24 September 2020, the practitioner's registration was suspended. His registration remains suspended.
On 7 April 2020 the practitioner and another officer (the second officer), a Level 1, Training Ambulance Officer, attended a call to a home on the central coast of NSW by a person identified in the Schedule to the Complaint as Person B. Person B is the mother of the patient at the centre of this complaint. We will refer to the patient, as identified in the complaint, as Patient A.
On her arrival at Gosford Hospital, Patient A made a complaint about the practitioner to the doctor on duty in the Emergency Department.
On 7 April 2020, following an interview with Patient A at Gosford Hospital by Mr J Mattson, Inspector NSW Ambulance, an interview was conducted with the practitioner. Following the interview, the practitioner was advised that he was suspended from duty.
On 17 April 2020 Mr T Cheung, Senior Investigations Officer, NSW Ambulance interviewed Patient A. In her interview Patient A repeated her allegations of misconduct by the practitioner. We set out the patient's allegations later in these reasons under the heading "The patient complaint".
On 6 May 2020 the practitioner was interviewed by Mr Cheung and Ms Natalie Dobie. The interview was recorded, and a transcript of the interview is relied on by the HCCC.
On 2 September 2020 Dr Dominic Morgan, ASM, Chief Executive of NSW Ambulance notified the Australian Health Practitioner Regulation Agency (Ahpra) that it had received a complaint about the practitioner's conduct.
On 1 February 2021 Patient A's mother, Person B, provided a statement to the HCCC.
On 18 February 2021 Patient A provided a statement to the HCCC. In the statement she repeated her allegations made to representatives of NSW Ambulance on 17 April 2020 about the practitioner's conduct.
On 27 January 2021 the second officer, who attended Patient A's home and who drove the ambulance to Gosford Hospital, provided a statement to the HCCC. Annexed to his statement is a copy of his interview by Manager, Serious Investigations, Mr Murray Bell, dated 8 April 2020.

The relevant law.

Complaint One of the complaint is brought under s 139 (1) (l) of the National Law.
Section 139B (1) (l) provides as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Complaint Two is brought under both s 139B (1) (a) and s 139B (1) (l). The former is in the following terms: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard 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
Complaint Three asserts the practitioner is guilty of professional misconduct.
Conduct which constitutes professional misconduct is set out in s 139E of the National Law provides as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
In dealing with any disciplinary matter under the National Law the objectives in s 3 and s 3A inform and guide the determination of the matter. Relevantly, s 3A provides 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 authorities dealing with the onus and standard of proof in health disciplinary matters are well established and not controversial. In summary, the HCCC bear the onus of proof of the complaints to the civil standard. The accepted standard of proof in disciplinary matters, given the serious consequences of the proceedings for the practitioner and the public has generally been recognised as the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85).
It is well established that the purpose of disciplinary proceedings is not to punish the practitioner but to protect the public. This is succinctly explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] as follows: 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.
Although the practitioner does not dispute the protective orders sought by the HCCC, except costs, he has not admitted the complaint in writing. Therefore, s 165H of the National Law has no application and we must conduct an inquiry into the complaints.

The patient complaint

The patient's very contemporaneous report about the practitioner's behaviour is found in her interview by Inspector Jason Mattson of 7 April 2020 and her subsequent interview on 17 April 2020.
In the first interview Patient A reports that the practitioner "was nice and kind to her in the house". She reports being alone with the practitioner in the ambulance with the door shut.
Patient A says she undid and lifted her bra (so an ECG could be performed) that the practitioner said, "For an anorexic you've got nice boobs". After the ECG was completed and a decision made that she should be taken to hospital she says the practitioner was with her in the back of the ambulance.
Patient A states that the practitioner "pushed and touched her stomach all over for quite a long time". She then asserts the practitioner pulled down her pants, put his finger down her pants touching her pubic hair. She alleges the practitioner asked about a scar on her stomach and to which replied it was from a car accident and that she had a hernia "which would pop out if she sneezed".
Patient A states that the practitioner said he had a hernia too and that he then took her right hand in his hand and put it on the right side of his groin saying, "can you feel that" and then moved her hand to the left side of his groin saying, "can you feel it here". Patient A asserts that the practitioner moved her hand four or five times while staring intently at her and asking, "do you feel that". Patient A then records the practitioner asked about her sex life, and if she was interested in girls.
On 17 April 2020 Patient A made a statement to Senior Investigations Officer, Trevor Cheung, NSW Ambulance.
In her interview with Mr Cheung, Patient A reports waking up on 7 April 2020 and feeling unwell, and that she thought she would "pass out". She then reports feeling breathless and speaking to her psychologist with whom she had an appointment later that day. Patient A says the psychologist spoke to Person B and suggested an ambulance should be called.
Patient A records two paramedics attended her mother's house where she was staying, and it was agreed an ECG should be performed in the ambulance. Patient A reports that in the house the practitioner was "really nice. [r]really friendly". In her statement Patient A says that the practitioner said, "lean forward and I will undo your bra", but she then confirms that she undid her bra and lifted up her bra and top. She says the practitioner then commented "you have nice boobs for an anorexic". She reports being uncomfortable being "naked and exposed and that "[t]there was nothing over me like a blanket" and it made her feel self-conscious about how she looked. She stated that she found the "comments "personal and inappropriate".
Patient A then says that the practitioner asked her what was her drink of choice to which she replied "Vodka". The practitioner is said to have told Patient A he had recently returned from Papua New Guinea and that he had used Kahlua and vodka to make a Black Russian.
After a decision was made to take Patient A to hospital, she records the second officer drove the ambulance and that she was alone with the practitioner in the back of the ambulance. She then repeats her earlier assertions of the practitioner discussing her scar, taking her hand, and that as he dragged her hand over his left-hand side that "I could feel his penis in the palm of my hand". She repeats her earlier claim that the practitioner moved her hand four or five times and that each time this caused her hand to touch his semi erect penis.
Patient A related pulling her hand away and being shocked thinking "Did that just happen as he was so blasé about it".
Patient A records that the practitioner asked "Are you a good girl? Do you cheat on your current partner"? Patient A says she thought the practitioner was trying to scare her or sexually intimidate her.
Patient A reports arriving at the hospital and making an immediate complaint to a doctor who she knew from previous admissions. The doctor returned to speak to Patient A shortly after she made her complaint to him and that he explained he was a mandatory reporter. Patient A was then interviewed by nurse and subsequently by Inspector Mattson in the presence of another female nurse. At that time, she identified the practitioner to Inspector Mattson.
In a statement to the HCCC dated 21 January 2021 Patient A confirms the facts in her earlier statement made on 17 April 2021. She explains that she is an alcoholic and suffers anorexia but says that she was not intoxicated when the ambulance was called.

Person B

The HCCC also rely on a statement by Person B.
Person B records that when her daughter was placed in the ambulance, she heard the practitioner say words to the effect "I had a big bender last week" and that he liked Black Russian vodka. Person B says she felt the practitioner's comments were inappropriate. She also confirmed that Patient A was alone in the back of the ambulance with practitioner with the door closed and that she remained outside with the younger paramedic (the second officer) while the ECG was performed.
Person B explains she received two text messages from her daughter and spoke with her about midday on 7 April 2020 when Patient A reported to what had occurred in the ambulance.

The second officer

The second officer also provided a statement. His initial statement was made on 8 April 2020 and a copy was annexed to his statement made to the HCCC and dated 27 January 2021. In his initial statement the second officer confirms that the practitioner was alone with the patient in the ambulance with the door closed, and that he drove the ambulance to the hospital. During the drive the second officer was listening to commercial radio at a low level and that he heard Patient A say the words "partner", "sex", "cheating", "ex NSW Police", "best friend", "abuse" and "relationship breakdown". He states he remembers the practitioner asking further questions, but he cannot remember the content as he was driving at the time, and that it was difficult to hear conversations from the rear cabin.
At the hospital he recalls hearing fragments of the practitioner's conversation with Patient A including the words "alcohol", "sex" and "party" and he thought it was "an odd topic to speak with a patient".

Expert report

The HCCC rely on an expert report of Paul James McRae. Mr McRae's professional qualifications and experience are set out at para 2.1 of his report. We accept that Mr McRae' experience and qualifications demonstrate that his is well qualified to provide an expert report in this matter.
We refer to Mr McRae's conclusions when considering the complaints in this matter.

Complaint One - unsatisfactory conduct under s 139B (1) (l) of the National Law

We commence by repeating that this complaint asserts that the practitioner is guilty of unsatisfactory professional conduct being conduct that was improper or unethical in the practice of his profession.
The words "improper" and "unethical" have been subject to discussion in many decisions of the Tribunal. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession".
In summary, the complaint relates to the practitioner's conduct while alone with Patient A in the ambulance and includes an allegation that the practitioner said "lean forward and I will undo your bra", that he did not provide a cover sheet to cover the patient's breasts, performed the ECG alone in the ambulance with the doors closed, made the comments to Patient A about her breasts, failed to provide the ECG to the hospital and failed to maintain the ECG data.

Consideration

We commence our discussion of this complaint by referring first to the authorities, albeit in respect of disciplinary proceedings involving medical practitioners, where issues of care necessary when a professional is engaged in an intimate examination and/or treatment of a patient. In HCCC v Litchfield [1997] NSWCA 264 the Court of Appeal was hearing an appeal against a decision of the Medical Tribunal involving complaints of sexually inappropriate conduct by a doctor against three female patients. Their Honours said: Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest".
We have also taken into account Part 8 of the Paramedicine Board of Australia: Code of Conduct (Interim) for registered health practitioners (the Code).
Part 8.1 of the Code provides as follows: In professional life, practitioners must display a standard of behaviour that warrants trust and respect of the community. This includes observing and practising the principles of ethical conduct.
Section 8.2 of the Code sets out matters relating to professional boundaries sub-para (b)and (d) are relevant to this complaint. They provide as follows: (b) never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner's care…. (d) avoiding the expression of personal beliefs to patients or clients in ways that exploit their vulnerability or that are likely to cause them distress.
We have also taken into account the NSW Health Code of Conduct (16 December 2015) at 4.6. That part stresses the fact that staff must not take unfair advantage of or exploit any relationships with patients or clients.
The comments in HCCC v Litchfield and the Code are particularly apposite in the circumstances of this case. Paramedics, as first responders, are frequently called upon to provide emergency care for very vulnerable patients. Extreme care must be afforded to such patients to ensure they are not exploited or subject to inappropriate examinations without their informed consent. These patients and their families rely on the integrity and professionalism of paramedics often in circumstances of heightened emotional stress and distress.
While the Code is not legally binding, it provides relevant and cogent guidance to ensure professional standards are maintained. Adherence to the Code facilitates the safety of the public and maintains the standards of the profession of paramedicine.
We note that, if the practitioner said to Patient A "lean forward and I will undo your bra", the expert is critical of the conduct as being below the standard reasonably expected of a paramedic. However, we note this complaint is agitated solely under s 139B (1) (l) and expert's comments address conduct under s 139 (1) (a). This is not said in any way critical of the expert as he responded to the instructions received from the HCCC which make reference only to the criteria in s 139B (1) (a) and not s 139B (1) (l).
However, we accept Patient A's unchallenged evidence that the practitioner did say to her "lean forward and I will undo your bra". We also accept her evidence that he most inappropriately said "you have nice boobs for an anorexic" and that he did not provide a sheet to cover the patient. We are satisfied that the practitioner's comments, particularly his reference to the patient's breasts, breached the Code and the NSW Health Code of Conduct and were improper and unethical.
The fact that the ECG was conducted by the paramedic alone in the ambulance with the doors closed is corroborated by the second officer and Person B. We note that the expert does refer to this conduct as "improper". We agree with his conclusion.
We are satisfied that the particulars in respect of the ECG records are established on the evidence of the second officer. We are independently satisfied it was improper for those records not to have been maintained and provided to the hospital.

Complaint Two - unsatisfactory conduct under s 139B (1) (a) and or (l) National Law.

In summary, the particulars of this complaint assert that the practitioner conducted an inappropriate abdominal examination of Patient A, in circumstances where he pulled down the waistband of Patient A's pants and underwear, exposed her pubic hair, inappropriately touch Patient A's groin, palpated her subpubic region, and did not cover the patient with a sheet.
The second particular sets out Patient A's version of the examination when she asserts the practitioner placed her right hand in his hand and moved her hand over his semi-erect penis.
The third particular relates to the practitioner's conversation with the patient about her partner and asking questions including "are you a good girl?" and "do you cheat on your partner?".
In support of proof of Complaint Two the HCCC rely on the statements of Patient A, her mother and the second paramedic. The comprehensive written submissions relied on by the HCCC also draw attention to admissions made by the practitioner in a recorded interview conducted by Mr Cheung and Ms Doble on 6 May 2020.
In his interview the practitioner conceded he undertook the abdominal examination of Patient A. He also admits taking the patient's right hand, guiding it onto his hernia and asserted that "she palpated it". Tellingly, the practitioner told the interviewers that, as this occurred the patient's demeanour changed. He said "I saw it in her face and I thought I have made this woman feel uncomfortable" but he goes on to explain that he moved the patient's hand to the left hand side of his groin.
Later in his interview the practitioner conceded he had asked Patient A whether "she cheated". However, he denied asking "are you a good girl?".
We note that the expert refers to the fact the practitioner in his interview stated he had no clinical concerns about the patient's abdomen. The expert concludes that a physical examination was not indicated in this setting or circumstance. He notes that the practitioner failed to make any record of this examination.
The expert refers to the practitioner's concession that he may have touched Patient A's pubic hair while conducting his examination. The expert concludes that conducting an unwarranted abdominal examination was significantly below the standard reasonably expected of a practitioner of equivalent level of training and expertise. We find the unjustified abdominal examination was both below the standard and improper.
The expert is stridently critical of the practitioner's conduct based on Patient A's version of the practitioner grabbing her right hand and guiding her hand to the right side of his groin and rubbing in a circular motion and a similar movement to his left-hand side. The expert describes this action as "abhorrent". The expert expresses the view that this conduct (if proved) is of sufficient seriousness in itself to constitute professional misconduct as defined in s 139E of the National Law.
Further, even accepting the practitioner's version of his conduct, the expert opines that the conduct was "highly improper, unprofessional and constitutes unsatisfactory professional conduct".
We note that the practitioner failed to appear at the hearing so that we did not have the benefit of hearing his evidence.

Consideration - Complaint Two

In this matter we are conscious of the following. First, the patient's complaint was made immediately on her arrival at the hospital so the facts were fresh in her memory. Secondly, she made immediate complaint to the doctor who knew her from previous admissions. That doctor confirms she was coherent and not intoxicated. Formal interviews with her took place on the same day as her complaint and a more detailed interview was held within the following ten days. Thirdly, substantial parts of her evidence are corroborated by her mother's evidence and that of the second officer. Fourthly, Patient A's evidence came before us unchallenged. Fifthly, the practitioner has conceded a number of major elements of Patient A's complaint. It is not in dispute that he conducted an unwarranted physical examination, that he discussed alcohol with the patient, and engaged conversations and questioning about aspects of her sexual relationships. Tellingly, he admits the extraordinary conduct of taking the patient's hand and placing it on the right side of his groin and notwithstanding he observed the patient's discomfort and distress, that he then proceeded to place her hand on his left side.
Overall, given the consistency in Patient A's version of events, and her contemporaneous reporting corroborated, in part, by the second officer, we accept and prefer her evidence to that of the practitioner.
We are satisfied that the conduct particularised in Complaint Two was both significantly below the standard reasonably to be expected of this very experienced paramedic and was grossly improper and unethical. In respect of the latter finding, we adopt and rely on Part 8 of the Code to support our findings. In reaching these conclusions it is relevant that we acknowledge this patient was a particularly vulnerable one who acknowledged her problems with alcohol and anorexia, the latter diagnosis being one of which the practitioner was aware. These circumstances warranted a much higher level of care and exemplary professional behaviour than this practitioner demonstrated.

Complaint Three - professional misconduct under s 139E

This complaint asserts the practitioner's conduct constitutes professional misconduct. Reliance is placed on the matters particularised in Complaints One and Two either when considered together or individually to be of such seriousness that they warrant the cancellation of the practitioner's registration.
The discussion of Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 provides useful and relevant guidance as to the type of conduct which may constitute professional misconduct. His Honour explains at [20]: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).

Consideration professional misconduct

We have found both Complaint One and Complaint Two proved. The conduct in which the practitioner engaged with this vulnerable patient as particularised in Complaint One was improper and unethical. His conduct in conducting an unwarranted abdominal examination and in particular his conduct in taking the patient's hand and placing it on his right groin and moving to his left groin was completely unwarranted, significantly below the standard expected and was improper and unethical.
For the reasons set out above, we are satisfied that the conduct in which the practitioner engaged as particularised in Complaint Two is of such significance that this conduct, of itself, warrants a finding his registration should be cancelled. We are further fortified by our conclusion that his conduct as found in both Complaints One and Two considered together is of such seriousness to also justify the cancellation of the practitioner's registration. Thus, we are satisfied that professional misconduct is established.

Appropriate protective orders - cancellation and non-review period.

Given the serious nature of our findings about the practitioner's conduct we agree with the submissions of the HCCC that his registration should be cancelled.
We note the HCCC seek a period of one year before the practitioner may apply for a re-instatement order. Such an order has a general deterrent purpose (see Chen at [88] per Payne JA.
We are satisfied it is necessary and appropriate to make these orders to publicly condemn the practitioner's conduct, to act as a specific and general deterrent, and uphold the standards of the paramedic profession.

Prohibition order

The HCCC's written submissions address why it is asserted a prohibition order should be made. In summary, the HCCC submit that the practitioner has chosen not to put on any evidence in these proceedings and therefore there is "no evidence as to his level of acceptance, insight or remediation into his conduct and the Tribunal cannot be satisfied that he does not pose a substantial risk to the public".
Section 149C (5) provides that the Tribunal may make a prohibition order if two criteria are satisfied. First, the Tribunal must make orders suspending or cancelling the practitioner's registration and secondly the Tribunal must be satisfied the practitioner poses a "substantial risk to the public". In order to better understand the order sought we now set out s 149C (5). It provides as follows: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
The HCCC seeks an order under s149C (5) for such period as the Tribunal imposes under s 149C (7). We note the HCCC propose a one year period before the practitioner may apply for a review of the cancellation of his registration and seeks any prohibition order made be for the same period. Thus, logically, the order sought assumes any substantial risk to the public will be confined to the next twelve months. It must be borne in mind there is no automatic re-instatement to the register, and that the practitioner may not immediately or ever apply for re-instatement. This suggests a prohibition order for a longer period could be considered appropriate.
We note that the definition of a prohibition order for the purposes of Part 8 of the National Law is defined in s138 (1) as "having the meaning given by s 149C (5)". It is to be contrasted with a prohibition order made under Health Care Complaints Act 1993 (NSW) which is: prohibition order means a prohibition order made under section 41A or 45C.
We observe that s41A deals with breach by a health professional of a Code of Conduct for an unregistered health professional and s 45C deals with a relevant health organisation.
The HCCC's proposed orders rely on the definition of "ambulance services" in s 4 of the Health Care Complaints Act rather than the definition of "health service" found in s 5 of the National Law (which includes "ambulance services).
The question of how "substantial risk" should be interpreted is subject of discussion in a number of decisions of the Tribunal including most recently in Health Care Complaints Commission v Jason Vuong [2022] NSWCATOD 83; Health Care Complaints Commission v David Vuong [2022] NSWCATOD 84 and Health Care Complaints Commission v Phuoc Loc Le [2022] NSWCATOD 85. In each of these cases the Tribunal considered the words "substantial risk" namely a risk that is real, not without substance or speculative.
We accept in this case the HCCC has been unable to adduce evidence to support a finding of substantial risk because of the non-participation of the practitioner in these proceedings and the consequent inability to determine what employment, if any, he is presently engaged in, or likely to engage in in the future, or test his evidence by way of cross-examination. We accept the evidence before us indicates that for at least 23 years he engaged in ambulance services.
We note with some concern that the practitioner in an undated unsigned typed letter addressed to "Mr Gately" refers to NSW Ambulance being "extremely supportive of me 10 years ago, I will be forever grateful for that. I did a lot of work on myself and addressed my drug addiction, this was significant to my rehabilitation" (Exhibit A Tab 18). However, given the lack of any relevant up to date evidence about the practitioner's health, we find it would be unsafe to draw an inference that any past conduct would now pose a substantial risk to the public.
We note that the prohibition sought is for ambulance services only and that this order is not opposed by the practitioner's solicitors on his behalf.
We accept that if the practitioner engaged in similar conduct to that the subject of this complaint while providing ambulance services at a public event such as a sporting event, he could pose a substantial risk to the public.
With some hesitation given the lack of any evidence before us on the topic, but relying on the practitioner's failure to participate in the proceedings and adduce any meaningful insight into his conduct and future employment proposals, we propose to make the order sought.

Costs

We have already recorded that the practitioner seeks an opportunity to make submissions as to costs.
We take this opportunity to note that we have power to make a costs order under cl 13 of Schedule 5D which provides as follows: 13 Tribunal may award costs [NSW] (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.
We also note the relevant principles to be applied in disciplinary proceedings in respect of costs and cogently explained by Meagher JA in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 [42] as follows: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied.
Having regard to the practitioner's solicitor's request, we will provide a timetable for submissions in respect of costs.

ORDERS 1. Pursuant to s 149C (1) of the Health Practitioner Regulation National Law (the National Law) the registration of David McAlpine (the practitioner) is cancelled. 2. Pursuant to s 149C (7) of the National Law the practitioner may not apply for a re-instatement order for a period of one year from the date of these orders. 3. The practitioner is prohibited under s 149C (5) of the National Law from providing an ambulance service (as defined in s 4 of the Health Care Complaints Act 1993 (NSW) for a period of one year from the date of these orders. 4. The Health Care Complaints Commission is to file and serve any submissions in respect of costs within 21 days of the date of these reasons. 5. The practitioner is to file and serve any submissions opposing an order for costs within 21 days of receipt of submissions from the Health Care Complaints Commission. 6. The application for costs will be determined "on the papers".

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: 17 August 2022

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