Health Care Complaints Commission v McGregor - [2020] NSWCATOD 13 - NSWCATOD 2019 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v McGregor

[2020] NSWCATOD 13

NCAT Occupational|2019-12-11

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2019-12-11

Catchwords

(1992) 67 ALJR 170
(1992) 110 ALR 449 NSW Bar Association v Meakes [2006] NSWCA 340 Oshlack v Richmond River Council [1998] HCA 11

Source

Original judgment source is linked above.

Catchwords

(1992) 67 ALJR 170(1992) 110 ALR 449 NSW Bar Association v Meakes [2006] NSWCA 340 Oshlack v Richmond River Council [1998] HCA 11

Judgment (44 paragraphs)

[1]

Introduction

Dr McGregor is a psychiatrist. He graduated from the University of New South Wales in 1996 and was first registered as a medical practitioner in 1997. In 2013 he was awarded a Fellowship of the Royal Australian and New Zealand College of Psychiatrists. In 2015, he opened the Northern Beaches Psychiatrist and Psychologist Family Medical Practice.
During 2017 Dr McGregor became suspicious that his wife, who was a receptionist at the practice, was having an affair with another psychiatrist in the practice. Around July 2017 he engaged a private investigator to download data from his wife's mobile phone. On 22 December 2017 he provided that data, together with his own commentary, to the Australian Health Practitioner Regulation Agency (AHPRA). Dr McGregor characterised the notification as a "mandatory notification" alleging that the other psychiatrist had breached ethical guidelines.
On 18 January 2018 a colleague who practised in the same building as Dr McGregor, complained to AHPRA about Dr McGregor's behaviour in forwarding her a copy of the complaint he had sent to AHPRA. Dr McGregor said that he sent the complaint to his colleague to protect his reputation.
As part of the investigation of the colleague's complaint, investigators accessed Dr McGregor's practice website and found a blog on that website. On 30 January 2018, an employee of the Pharmaceutical Regulatory Unit (PRU) NSW Health spoke with the Medical Director of the NSW Medical Council about the content of the blog. Dr McGregor referred to the blog as his "Australian patriot blog". Extracts from two articles posted by Dr McGregor on 29 and 30 January 2018 are set out below: 29 January 2018 The following is the sole opinion and request by Dr Russell McGregor, Psychiatrist, and Director/Owner of "The Northern Beaches Psychiatrist and Psychologist Family Medical Practice." This post does not represent the opinion of anyone else at my practice. This message is to all patriotic Australians. Our world is at an historic inflection point where our freedom is at stake. The next few weeks and months will be critical. Please spread the word to our blue pilled friends. We MUST stand up and support President Trump in his fight against the global deepstate. Educate yourself with the above, follow Q, and tweet/talk/message! Once the Devine Nunes memo is released in the next few days there will be a CIA/deepstate backlash on the MSM. They will ramp up the propaganda. It will be ceaseless. You will encounter much resistance. Fight with your keyboard, knowledge and pen. Just fight! Watch Dr Jerome Corsi on Youtube/Infowars. Follow Q's breadcrumbs. Understand the FISA wiretapping, M 16 connection, Assassination plots and brace yourself for the unmentionable satanic ritual evidence to follow. The evil truth will be hard for most to bear. Be brave. Seek loved ones and offer compassion to friends and family. When 9/11 is exposed the world will change. We will finally have the freedom to alter our future for the good. It is at this time that the treason trials will begin in Australia. Rightly, it will be the people who will decide judgement. Let us be fair and humane - but just. Support white hats/Trump, Assange, Jones, Farage, Corsi, Brian Wilshire. I have been aware of, and have researched the deepstate for decades. All that which is stated by Q is generally in keeping with my prior knowledge. Indeed there is a great deal more to the story than Q may wish to tell. It may remain untold. However trust Q as Q speaks the truth. I place my reputation at Q's disposal. Dr Russell McGregor 30 January 2018 The post below represents the sole opinion of Dr Russell McGregor, Psychiatrist. It does not represent the opinion of anyone else employed or associated with The Northern Beaches Psychiatrist and Psychologist Family Medical Practice. Thank you to the GOP patriots of the House Intelligence Committee for approving the release of the Memo! This will be the start of the worldwide global awakening to our enslavement by the deep state. Over the course of 2018 there will be regular dumps of information by President Trump which will lay out just how close we have all been to the complete loss of our freedoms. I hope that the Australian people will use this knowledge to wisely transform our political and judicial landscape to prevent this from ever occurring again. It is up to all of us to be involved in this process and to reflect/understand the failings of each of us to have let this happen. Everyone no matter which party or philosophy that we have stubbornly adhered to must learn the lessons of our individual and collective mistakes. . . .(passages deleted) Julian Assange is not in the Ecuadorian Embassy. He is either in Switzerland or Washington. Q and the MoD, SVR (Kremlin) confirm this. He is an Australian hero and would make a fine future PM. When the infant torture, rape and satanic rites cannibalism by elites is provided by Trump on tape - seek the comfort of others. Pay attention to the news cycle. Follow Q breadcrumbs on 8chan. Message, tweet, post and discuss with friends and family. Be open to new knowledge and cross check information thoroughly. Await the Australian Treason Trials (TT's). Good luck John. Dr Russell McGregor

[2]

The hearing

Dr McGregor was on notice that the Tribunal would hear the complaint on 11 December 2019, but he did not attend. The HCCC submitted that the Tribunal was entitled to draw inferences from the fact that Dr McGregor failed to attend the hearing: Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) 70 NSWLR 323 at [42]-[50]; Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [124]-[141]; NSW Bar Association v Meakes [2006] NSWCA 340 at [70]-[78].
In Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [132] the Court of Appeal (Basten JA, McColl JA and Sackville AJA agreeing) held that: ". . . there is no support for the proposition that a specialist Tribunal (whether a jury or a disciplinary Tribunal) is obliged to draw adverse inferences in the absence of an explanation from the respondent. Such an obligation (at least as expressed in such absolute terms) would be inconsistent with the entitlement of the Tribunal to take into account the circumstances in which the failure to offer an explanation arose, including the importance of the matter in the proceedings and the potential adverse consequences for the practitioner of failing to proffer an available explanation."
The HCCC bears the onus of proving the particulars in the amended complaint and Dr McGregor cannot be compelled to give evidence. This is not a case where Dr McGregor has failed to explain his conduct. He has explained his motivations for the conduct alleged in the complaints. We draw no adverse inference about his conduct from his decision not to attend the hearing.
The HCCC gave Dr McGregor a copy of all the material it had lodged with the Tribunal including the orders it was seeking. The HCCC provided Dr McGregor with a copy of the amended complaint by email on 29 November 2019. The amendment was to particular one of complaint one. Rather than alleging that Dr McGregor had expressed extreme political views on his blog, the HCCC alleged that "the information published by the practitioner had the potential to expose his patients to harm when accessing the practice website for information or to make an appointment." Dr McGregor did not respond. We are satisfied that Dr McGregor has been given a reasonable opportunity to respond to the amended complaint and to the other materials lodged by the HCCC.
Dr Murray Wright, a consultant psychiatrist, prepared a report and gave oral evidence at the hearing.
The amended complaint, in full, is set out at the end of these reasons.

[3]

Events following the complaint against Dr McGregor

On 2 February 2018, the Council contacted Dr McGregor to tell him that they had made an appointment for him to see a psychiatrist on 8 February 2018. Dr McGregor refused to attend the appointment, saying that he was being judged for his political views and that he felt that he was being persecuted.
We note that if a medical practitioner fails, without reasonable excuse, to comply with a requirement to attend a medical appointment, that failure is evidence the person does not have sufficient physical or mental capacity to practise medicine: National Law, s 152B(4).
On 6 February 2018, Dr McGregor posted the following comment about the complaint on this blog: Had a wonderful phone call and e-mail from the Medical Council of NSW yesterday. They stated that they received a complaint about me from the "Pharmaceutical Regulatory Unit" about posting a blog regarding "Patriotism in Australia". Hence they have ordered me to undertake a compulsory "Psychiatric assessment". This will be fun.
When Dr McGregor failed to attend the appointment with the psychiatrist, the Council decided to convene urgent proceedings under s 150 of the National Law. That provision allows Council to suspend a medical practitioner's registration or impose conditions on the registration.
Before the scheduled hearing on 5 March 2018, representatives from the Council made numerous phone calls and attempted to contact Dr McGregor by email. Dr McGregor did not cooperate. On more than one occasion he hung up on the caller. On 23 February 2018 a representative from the Council succeeded in having a conversation with Dr McGregor. Dr McGregor told her that regardless of what Council does, it won't change his political views and he won't remove the blog from his website. Dr McGregor added that he would not attend the s 150 hearing.
During this period, Dr McGregor commented on his communications with Council in his blog. On one occasion he wrote that the Medical Council "has recently engaged in abuse of my female staff and me over the phone".

[5]

Dr McGregor's response to the s 150 hearing and oral decision

Immediately after the Presiding Member told Dr McGregor, by phone, that they had decided to suspend his registration, the following exchange occurred: Dr McGregor: You dirty bitch. You dirty bitch. You're from New Zealand aren't you? You have no right to do this to me. This is a political decision because you have a different political opinion to me. Presiding Member: Dr McGregor it's not about politics . . . Dr McGregor: You you, you are repulsive. You are repulsive. You are, look this is going to bankrupt me. I'm dead. Presiding Member: Dr McGregor, can I just say for a moment, we don't want this to bankrupt you, could you please consider a locum could you please consider… Dr McGregor: You filthy dirty fucking bitch. Presiding Member: Yeah, could you please consider speaking to your medical defence organisation about… Dr McGregor: You filthy left wing fucking . . You filthy dirty fucking left wing slut. You think you can do this just because I'm right wing. You fucking dirty bitch. You fucking take away my . . . Presiding Member: I'm hanging up Dr McGregor that's inappropriate. . mmm Dr McGregor: You fucking take away my career . . .
On the same day, 5 March 2018, a representative from AHPRA made a file note of a telephone call with Dr McGregor in which she wrote, in part, that: He said that he had received news that he was suspended for political reasons. . . .
Dr McGregor also posted the following comments on his blog on 5 March 2018: Sadly I was deregistered from practicing as a doctor today. The Medical Council of NSW found me guilty of publishing a website and expressing a political opinion which they disagreed with. . . . I sincerely apologise to all of my patients who have been terribly affected by this. I am very sorry to have caused you so many difficulties. . . . The truth is that it is very likely that I shall go bankrupt, and shut down, as my practice has enormous running costs. Thus it is best not to wait to see if The Medical Council of NSW will change its mind, but rather to find another Psychiatrist.
On 7 March 2018, Dr McGregor requested an "immediate reinstatement of my right to practice medicine." He said he believed that the Presiding Member at the s 150 hearing: . . . assaulted me repeatedly by refusing to let me end the conversation and therefore not have me discuss any aspect of my political views. I made it very clear on several occasions that I did not want to discuss my political views and that she was engaging in Political Abuse of Psychiatry. . . .
Dr McGregor went on to make the following assertion about the Presiding Member: I feel Dr Dore knowingly used the power of Political Correctness to inflict woman to male intimidation and assault against me. She knew that my political beliefs were different to hers and as such I felt she was using legal, financial and reputational intimidation as a woman against me. I feel her behaviour was that of a feminist thug used to deny me consent and respect.
In the same letter Dr McGregor advised that he had engaged Avant Mutual, a medical defence organisation, and that he would be legally represented in future. He agreed to attend an appointment with Dr Wright, a consultant psychiatrist, on 27 March 2018. Dr McGregor attended the appointment and Dr Wright wrote a report dated 27 March 2018.

[7]

Section 150A review

On 11 April 2018, lawyers representing Dr McGregor applied for a review of the Council's decision to suspend their client's registration: National Law, s 150A. That application was made on the basis that Dr Wright's report was now available and that Dr McGregor had agreed to attend a further hearing.
On 22 April 2018, Dr McGregor wrote a lengthy email to the Council about the proposed s 150A hearing scheduled for the following day, 23 April 2018. He advised that he would attend the hearing but that he would simply present the letter and not answer any questions. In that letter, Dr McGregor described the Council as "clearly a Government Institution with bigoted/intolerant socially left wing zealots who conform to groupthink and take political views to further their careers". The letter went on: Following the Political Abuse of Psychiatry undertaken by Council, I repeatedly wrote to the Council clearly demonstrating that they were undertaking dangerous and untenable Political positions. The Council responded by making further demands and abusing my staff. . . . The Council then held the Section 150 hearing. I had very clearly on multiple occasions beforehand informed the Council that I would not be attending. Nevertheless, the Council rang me repeatedly during the hearing against my will. I stated some ten times that I did not consent to discussing anything during the hearing and that is was a case of politically motivated abuse. This continued abuse was completely unprofessional thuggery.
On 23 April 2018 the Council set aside the decision to suspend Dr McGregor's registration and instead, imposed a condition that he is not to practise medicine. The matter was referred under s 150F to the HCCC.
On 24 June 2018 Dr McGregor wrote to the Medical Director of the Medical Council making comments including the following: Further to the malevolent Political Abuse of Psychiatry used against me (Dr Russell McGregor) by the Medical Council of NSW. . . . This is an extraordinary situation where I have one working day at most to place a submission to the Council, which ought be accorded by procedural fairness, yet I know nothing of the reason why the meeting has been set. Your attack dog sent the email to a lawyer appointed by AVANT whom I have cancelled membership with because I can not pay them. you see, that is what happens when a fascist left-wing Politically intolerant operative like yourself and your organisation abuses Government powers to utterly destroy people you Politically disagree with. . . . The Medical Council of New South Wales is a Paedophile Protection Agency. The operatives who have been involved in Politically destroying me are deranged President Trump haters and those who are Political sycophants of what the Deep State represents. That is, they Sensor and Punish any Patriot who criticises Paedophilia, and other Deep State crimes. . . . Furthermore, the Council has allowed a Politically malevolent pre-determined report be used against me by a Council affiliated Psychiatrist/Political activist/operative for the intention to entrap by The Political Abuse of Psychiatry.
Following the investigation, the HCCC decided to refer the complaint to the Tribunal. We note that the HCCC and the Council are "under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner's . . . registration": National Law, s 145D.

[8]

Further blogs and posts

Between February 2018 and March 2019, Dr McGregor continued to post comments in a similar vein to those set out above. For example, on 1 February 2018, Dr McGregor posted comments including the following: Elite globalist satanic paedophiliac rituals, child trafficking, torture and cannibalism will be exposed in time. It will change the political landscape forever. The elite use secret societies and satanic infant/child abuse to maintain control and cohesion. The in-group allegiance is absolute with these binding behaviours. The initiation rites enforce compliance with the aims of the NWO - which is subjugation of the world's people for their own benefit.
On 5 December 2019, Dr McGregor posted the following further comments on his blog: PROBABILITY OF Q AND THE PRESIDENT OF THE UNITED STATES OF AMERICA NOT BEING ASSOCIATED P(no association between Q and POTUS) = 1 in 210 Quintillion This is based on just one day of tweets with no other proofs used. (Following these comments a graphic and some further information appears, headed "Simple Probability") US Military information dissemination at it's finest. The MSM are criminals. Yes I'm talking to you ABC. Follow Q. Make Australia Great Again, Dr Russell McGregor
On 8 December 2019, Dr McGregor posted the following further comments on his blog: Just a note to remind all that I said Deep State Mossad and M16/CIA were blackmailing elites by Paedophile/Satanic compromise. I also said there are satellites doing the same thing all round the world. Yep, I said this way before the Epstein hit and subsequent forced MSM coverage. First journalist in the world to come out with it. Rather important to know who the handlers are I would have thought. Historically massive. About to become prime time where even the MSM will need to admit the truth. Oh . . and I have been outing Epstein for almost two years now with photos and all Vindication much. BTW - the MSM will soon need to acknowledge the paedophilia in a big bad way. They will try to deep components. Eventually this will fail too. Truth wins. Make Australia Great Again, Dr Russell McGregor

[19]

Complaint to Council

Around 20 to December 2017, Dr McGregor wrote a complaint to the Australian Health Practitioner Regulation Agency (AHPRA) alleging that Dr Keighran was having an affair with "a colleague's wife". He was referring, in the third person, to his wife, Claire McGregor. Dr McGregor complained about "the use of reprehensible psychological techniques to enable the affair with a colleague's wife". He added that engaging in an affair with a secretary demonstrated a clear "unbalanced power relationship."
Attached to the complaint were copies of text messages between Dr Keighran and Ms McGregor. To protect their privacy, we have not reproduced any of the text messages in these reasons but we have taken them into account. Set out below are some examples of the comments Dr McGregor made on the text messages, again expressed in the third person: Claire seeks the wisdom of a manipulator. She cannot talk to her husband because she has sworn to Dr Keighran not to do so. Also she would find it difficult to admit to her husband what had happened. (page 23) . . . This is simply a conceited but very effective way of demeaning Dr McGregor. Dr Keighran is using his authoritative role as a Psychiatrist to make up nonsense with the intent to make Dr McGregor look hopeless, selfish and pathetic. . .
Dr McGregor characterised the notification as a "mandatory notification" alleging that the other psychiatrist had breached ethical guidelines.
We find that Dr McGregor made the complaint in the terms set out in the material lodged with the Tribunal. The complaint relates to the practice of medicine because it is about the conduct of another practitioner in his practice.
Dr Wright reported that Dr McGregor had told him that "part of his motivation for putting the documents together and making the notification to AHPRA was to restore his reputation with the local medical fraternity as he believed it had been tarnished through the breakdown of his marriage and the subsequent disruption of his practice." In Dr Wright's view, Dr McGregor's response to his marriage breakdown and concerns about harm to his reputation was "highly unusual . . . and likely to cause an escalation in conflict, and certainly took no account of his former wife's privacy."
In the complaint to the Tribunal, the HCCC characterised this conduct as "inappropriate". However, it must be more than inappropriate to meet the definition of unsatisfactory professional conduct in s 139B(1)(l). It must be "improper or unethical conduct." In our view, Dr McGregor lacked judgment in making a complaint to AHPRA about his colleague and his wife having an affair. Their relationship is a private matter. The fact that Dr McGregor perceived that it impacted on his reputation, is not a sufficient reason for making the complaint. Dr McGregor did not point to any guidelines or codes of practice applicable to the medical profession which Dr Keighran was said to have breached. In our view, Dr McGregor's complaint was misguided, but his conduct in making the complaint was not improper or unethical.

[20]

Distribution of the complaint to a colleague

On 18 January 2018 Dr Reiter complained to AHPRA that she had received the contents of Dr McGregor's complaint to AHPRA attached to a letter addressed to her. She considered it defamatory and totally inappropriate to send her the personal messages and emails between Claire McGregor and Dr Keighran. She said she was disturbed that Dr McGregor considered it appropriate to distribute this material to her. She said she was a rheumatologist and had very little to do with the practice.
We find that Dr McGregor distributed the complaint in the terms set out in the material lodged with the Tribunal. The distribution of the complaint relates to the practice of medicine because it is about the conduct of another practitioner in his practice.
In his report of 27 March 2018, Dr Wright states that he asked Dr McGregor about the distribution of the material to his colleague. He told Dr Wright that, "he (former colleague) is a psychopath . . . I can't prove it . . He caused reputational damages to me . . All the GPs thought I had done the wrong thing to him when he left . . . I saw a defamation lawyer before I distributed the material . . . I wanted to restore my reputation and to make sure he (former colleague) didn't do it to anyone else." When Dr Wright asked whether he thought he had breached his wife's privacy in distributing such personal information, "he said that his wife gave him the mobile phone", and that, "I still feel it was the right decision." When Dr Wright asked him whether he thought there might be an ethical problem in distributing such material, he replied that, "there's something in the back of my mind . . ."
As with the previous particular, the HCCC characterised this conduct as "inappropriate". In our view, Dr McGregor lacked judgment in distributing the complaint to a colleague especially when it contained sensitive personal information about his former wife. As we have said, her relationship with one of Dr McGregor's colleagues is a private matter. His fears about loss of reputation do not justify distributing this material. In our view, Dr McGregor was misguided, but his conduct in distributing the complaint was not improper or unethical.

[21]

Publication of blog

We have set out above some of Dr McGregor's posts on the blog attached to his practice website between February 2018 and March 2019. We find that Dr McGregor was the author of all the material lodged by the HCCC for that period and we rely on that material. In his 27 March 2018 report, Dr Wright accurately described the content of the blog: A review of the blog content shows it included opinions reflective of a global conspiracy perspective. Dr McGregor identifies the content as his opinions, and if they are indeed his opinions, some of the material is quite disturbing. They include references to "infant torture, rape and Satanic Rites cannibalism by elites is provided by Trump on tape . . elite globalist satanic paedophiliac (sic) rituals, child trafficking, torture and cannibalism will be exposed in time . . The elite use secret societies and satanic infant/child abuse to maintain control and cohesion. . expect the paedophilia and child torture/cannibalism to be fully exposed prior to the mid terms in November.
Dr Wright expressed the view that: These are extraordinary beliefs for a consultant psychiatrist to publicly associate himself with, particularly on a website associated with his clinical practice. Some of this material reflects a loss of perspective and potential loss of reality testing.
We agree with that opinion. Contrary to Dr McGregor's assertions, the content of the blogs are not merely expressions of his political beliefs. Existing and potential patients had access to the website to obtain information or make an appointment. The publication of this material relates to the practice of medicine because it is on the practice website. The fact that Dr McGregor identifies himself as a medical practitioner and psychiatrist on the website gives his comments added credibility.
Dr McGregor told Dr Wright that he had recently taken the blog down partly because he recognised that it may not be appropriate for his opinions to be potentially shared with his patients indiscriminately. When Dr Wright asked Dr McGregor about the content of his blog, he told him that, "I can understand why some people have concerns… If I had my time over I wouldn't do it… I took them down…". Dr Wright noted that Dr McGregor agreed that it was not wise to have placed the blog on the website connected with his private practice with his name and his profession clearly attached. Dr McGregor told Dr Wright that he had never discussed his political views with any patient and would not do so. He acknowledged that sharing his opinions in a way that patients might stumble upon them was possibly unwise.
As to the beliefs about global conspiracy, Dr Wright acknowledged that "a range of people hold these beliefs, and that they do not necessarily indicate mental illness." Nevertheless, Dr Wright regarded such beliefs as "bizarre and suggestive of impaired reality testing." Again, we agree with that opinion.
In Dr Wright's view, whatever the formal diagnosis, there is a real risk of harm to patients. If patients access the website, and read Dr McGregor's blogs, they will associate those ideas with a registered psychiatrist - a person with high status and authority in the community. Although Dr McGregor appeared to appreciate the risk to patients of maintaining the blog on the website, he has not removed it and continues to post similar material. We agree with Dr Wright's opinion as to the risk of harm to patients and find that the blog publication conduct had the potential to expose Dr McGregor's patients to harm when accessing the practice website for information or to make an appointment.
As with the previous particulars, the HCCC characterised this conduct as "inappropriate". In our view, Dr McGregor lacked judgment in publishing his bizarre beliefs about global conspiracies and other matters on his practice website. He acknowledged that it was probably inappropriate to do so. We also consider it to be "improper". A website for a psychiatric practice should contain relevant information about that practice and the medical practitioners associated with it. The fact that Dr McGregor subscribes to various global conspiracy theories is not the kind of information that should be included on a professional website.

[26]

Consideration

The evidence that Dr McGregor had self-prescribed these medications was a document dated 27 July 2018 and headed, "PBS Patient Summary for Russell E McGregor." That document was on a letterhead entitled, "Australian Government, Department of Human Services". On the basis of that document we find that Dr McGregor self-prescribed the five medications set out above in the quantity identified in that document.
Particular 2 is that the self-prescribing was in contravention of the "Code of Conduct" ('Good Medical Practice: A Code of Conduct for Doctors in Australia', Medical Board of Australia, published March 2014, Section 9.2) and the "self-treatment guideline" ('Guideline for Self-Treatment and Treating Family Members', Medical Council of NSW, published 2 December 2014).
The Code of Conduct states at 9.2.2 that: Good medical practice involves: 1. Having a general practitioner. 2. Seeking independent, objective advice when you need medical care, and being aware of the risks of self-diagnosis and self-treatment. 3. . . . 4. Conforming to the legislation in your state or territory in relation to self-prescribing. . . .
The self-treatment guideline endorses and supplements the Code of Practice and, so far as is relevant to these proceedings, endorses the following principles: 2. Medical practitioners should not initiate treatment (including prescribing) for themselves or members of their family. 3. In emergency situations or isolated settings where there is no help available, medical practitioners may treat themselves or members of their family until another medical practitioner becomes available.
The PBS Patient Summary is evidence that, at least during the period July 2013 to July 2018, Dr McGregor self-prescribed these medications. We do not know if he initiated the medications or they had previously been prescribed. Assuming that he initiated the medications, doing so is contrary to the Code of Practice unless it was an emergency situation or there was no help available. There is no evidence of either of those situations.
However, we are not satisfied that self-prescribing those medications is "improper or unethical conduct." The self-prescribing does breach the guidelines if Dr McGregor initiated these medications. But these medications are commonly prescribed for relatively minor conditions and are not addictive. Prochlorperazine is commonly prescribed to treat nausea and travel sickness. The other medications (apart from fluoxetine) are commonly used anti-biotics. Fluoxetine is an anti-depressant. The quantities prescribed are consistent with being for personal use only and are not indicative of a pattern of excessive use.

[31]

Report of 27 March 2018

Dr McGregor reported to Dr Wright that he has never experienced any mental health or substance misuse problems and there is no family history of mental health problems. He said there had never been any concerns raised about his clinical practice. He saw a GP six months ago and was told "everything is OK".
In relation to his current practice, he told Dr Wright that it had cost him between $500,000 and $600,000 to set up the practice. The practice comprised two other psychiatrists, two psychologists, a geriatrician, an exercise physiologist and two administrative staff. He said the costs of running the practice were very high and that as a result of the disruption that occurred with his marriage breakdown, the loss of the other doctor and his suspension "he will go bankrupt within a week… I'm going to have to close the practice down… I can't meet my debts."
Dr Wright's opinion was as follows. The key finding is highlighted in bold. There is no evidence to support a diagnosis in the past of any psychiatric illness for Dr McGregor and no evidence to support a diagnosis of personality disorder. However, Dr McGregor's behaviour has been highly unusual, and to his detriment and the detriment of others both in terms of his sharing of his "political opinions", and in the manner of his response to his marriage breakdown. His interaction with the Medical Council and its representatives has also at times been inappropriate, lacking understanding and judgement, and vitriolic and belligerent.… On balance, one cannot exclude the possibility that issues which brought Dr McGregor to the attention of the Medical Council (the blog, the complaint from the doctor who received a copy of his complaint, and his complaint about his former colleague) and his ultimately self-defeating response to the Medical Council notification are evidence of a psychiatric impairment. This includes the role of (even temporarily) impaired judgement, affective instability, a belligerent and ineffective approach to conflict resolution (e.g. transporting patients' records to a new location, and to the Medical Council), and a strong and public adherence to beliefs that are bizarre and possibly overvalued. All of these considerations lead me to the view that Dr McGregor has been impaired within the meaning of the National Law and that impairment has been characterised by poor judgement, inappropriate distribution of private information and combative, belligerent and abusive response to conflict, including in his professional life. It is difficult to be certain as to whether there is a formal psychiatric diagnosis contributing to this impairment, but I cannot exclude an adjustment disorder and would also consider the role of personality traits which under pressure adversely affected Dr McGregor's ability to manage stress and resolve conflict, contributing to an exacerbation or accumulation of problems rather than their resolution.

[33]

Dr McGregor's opinion of Dr Wright's motivation and demeanour

Dr McGregor criticised the way Dr Wright conducted the assessment. In the email of 22 April 2018, Dr McGregor said that Dr Wright had: 1. "made it very clear that he would under NO circumstances complete the report quickly to prevent me from going bankrupt"; 2. "zero empathy throughout the interview and was robotic or actually irritated"; 3. acknowledged that he "knew what the deepstate was but then adamantly refuse to listen to any proofs that Q is Military Intelligence and that mathematically he is certainly directly talking everyday to President Trump; 4. "not wanted to discuss any of my views that he later cited as being overvalued ideas and Conspiratorial"; and 5. "already had his mind made up about what he had to produce to counter my complaints against the Council"; 6. "been looking after his mates (helping them out of a fix) and his stream of business from the Council. It was entrapment . . ."
In oral evidence Dr Wright denied these assertions and explained what had happened during the assessment from his perspective. He said that he told Dr McGregor that the Council had asked him to conduct the assessment and that it would take approximately two weeks for a final copy of the report to be available. Dr Wright denied telling Dr McGregor that the report could not be completed quickly to prevent him from going bankrupt.
Dr Wright denied that he was not empathetic, was robotic or irritated. He admitted that he was anxious about the interview, but said that he was pleasantly surprised when Dr McGregor engaged fairly easily. He described the conversation as "collegial". Dr Wright noted that Dr McGregor was upset when he made it clear that he was not going to discuss the content of a 600 page document Dr McGregor had brought with him, expressing political views. Dr McGregor attempted to persuade Dr Wright of the validity of his opinions and his strongly held view that the material he was writing about came from sources associated with or from within the White House. Dr McGregor told Dr Wright that if he did not discuss that document he wouldn't understand his point of view. Dr Wright indicated to the Tribunal that he had done some reading in preparation for the interview and had told Dr McGregor that while he understood the issues, he was not going to discuss the content of the document or the accuracy of the opinions in it.
Finally Dr Wright denied that he had made up his mind as to what to put in the report, that he was "looking after his mates", that he was seeking to entrap Dr McGregor or that his report was politically motivated.
Dr Wright's evidence about his motivations and about what was said during the interview are credible. That evidence accords with the information in Dr Wright's report and the fact that he has conducted numerous assessments of a similar kind in the past. He is likely to remember the content of the standard information which he conveys. We know from the transcript of the s 150 hearing, that Dr McGregor is keen to discuss his political views and that it is likely that he was annoyed when Dr Wright refused to engage with him on this topic. For those reasons, we prefer Dr Wright's account of his demeanour and his motivation to that of Dr McGregor.
Dr McGregor also made some extraordinary allegations about Dr Dore, the practitioner who presided at the s 150 hearing. He described her as a "feminist thug" and alleged that she inflicted "woman to male intimidation and assault against me." Dr Dore did not give evidence, but we have listened to the recording of the proceedings. Dr Dore was patient and polite. She did not intimidate Dr McGregor in any way. She gave him every opportunity to put his point of view.
Dr McGregor repeatedly wrote in emails and blogs that Council members and others had abused his staff. There was no evidence of any such abuse.

[35]

Conclusion

The evidence supports a finding that Dr McGregor has a psychiatric impairment, disability, condition or disorder, being 'impaired judgment," "affective instability", "a belligerent and ineffective approach to conflict resolution" and "a strong and public adherence to beliefs that are bizarre and possibly overvalued." It is apparent that Dr McGregor has rigid views and perceives that he is being persecuted because of his political beliefs. Despite being told repeatedly that the concern was with his mental health, not his political views, Dr McGregor persisted in that belief. He wrote repeatedly in his blog and in emails that he was being persecuted because the Medical Council and others disagreed with his political beliefs.
Dr McGregor has not admitted that he has an impairment, but that conclusion is supported by Dr Wright's evidence with which we agree. It is not necessary to identify a diagnosis in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) or otherwise. It is sufficient to note that we agree with Dr Wright that he has impaired reality testing. His perception is not the reality. Alternatively, he may have a delusional disorder or paranoid personality disorder. He has a psychiatric impairment, disability, condition or disorder.
Dr Wright identified the impairment in his reports of 27 March 2018 and 24 April 2018. Based on more recent emails and blogs from Dr McGregor, Dr Wright's opinion as at the date of the hearing, was that Dr McGregor's state of mind had not changed. Again, we agree with that opinion. He currently has an impairment.
That impairment is likely to detrimentally affect Dr McGregor's capacity to practise medicine. Dr McGregor is a psychiatrist. His clients, some of whom may be prone to paranoid thoughts or beliefs, are likely to read the blog and be influenced by his bizarre and overvalued ideas. In the clinical setting with patients who have various mental illnesses, conflict is a distinct possibility. Rather than managing and resolving conflict, Dr McGregor's past behaviour suggests that he is likely to escalate the conflict if he feels under stress.

[41]

Should the Tribunal award costs against Dr McGregor?

The HCCC seeks an order that Dr McGregor pay its costs as agreed or assessed. The Tribunal has power to order that one party should pay another party's costs: National Law, Sch 5D, cl 13. That provision states that: 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.
The general rule is that the unsuccessful party should be ordered to pay the successful party's costs. In legal terms, that principle is expressed as costs following the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 per Meagher JA, Emmett JA and Beech-Jones J at [42].
The presumption that a successful party is entitled to costs is generally only displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]. The Health Care Complaints Commission was largely successful in these proceedings and there was no disentitling conduct.
Dr McGregor is to pay the Health Care Complaints Commission's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

[43]

APPENDIX IN THE CIVIL AND ADMINISTRATIVE TRIBUNAL OF NEW SOUTH WALES OCCUPATIONAL DIVISION HEALTH PRACTITIONER DIVISION LIST NO. Of In the matter of Dr Russell Everard McGregor, a person registered under the Health Practitioner Regulation National Law (NSW) AMENDED COMPLAINT The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Russell McGregor ("the practitioner") of XXXX being a medical practitioner registered under the National Law, BACKGROUND TO ALL COMPLAINTS The practitioner graduated from the University of New South Wales in 1996, and was first registered as a medical practitioner in 1997. In 2013, the practitioner was awarded a Fellowship of the Royal Australian and New Zealand College of Psychiatrists (RANZCP). In 2015, the practitioner opened the Northern Beaches Psychiatrist and Psychologist Family Medical Practice. COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT ONE

Between February 2018 and March 2019, the practitioner inappropriately published a personal Internet 'blog' on a website attached to his medical practice which expressed extreme political views, and identified himself as the author of the blog where the information published by the practitioner had the potential to expose his patients to harm when accessing the practice website for information or to make an appointment.
Around December 2017, the practitioner made an inappropriate complaint to the Medical Council of NSW ("the Council") concerning the conduct of a colleague who had allegedly commenced a relationship with the practitioner's wife.
Around January 2018, the practitioner inappropriately distributed the documents comprising the complaint particularised above at 2 to another medical practitioner who was unrelated to the subject matter of the complaint.
Around 5 March 2018, the practitioner engaged in inappropriate and abusive language to the Medical Council of NSW ("MCNSW") section 150 delegates by stating to the delegates, "You filthy dirty fucking bitch" and "You filthy left wing fucking, you filthy dirty fucking left wing slut". COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has: i. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT TWO
Between 16 March 2014 and 8 September 2016, the practitioner inappropriately self-prescribed the following Schedule 4 medications: Prescription Date Supply Date Medication Quantity 16 March 2014 16 March 2014 Dexamethasone + Framycetin Sulfate + Gramicidin 1 9 January 2015 9 January 2015 Prochlorperazine 25 8 April 2016 8 April 2016 Metronidazle 21 15 April 2016 15 April 2016 Amoxycillin + Clavulanic Acid 10 8 September 2016 8 September 2016 Fluoxetine 28

[44]

Between 16 March 2014 and 8 September 2016, the practitioner inappropriately self-prescribed the Schedule 4 medications outlined at Particular 1 in contravention of: a. Section 9.2, 'Good Medical Practice: A Code of Conduct for Doctors in Australia', Medical Board of Australia, published March 2014; and b. 'Guideline for Self-Treatment and Treating Family Members', Medical Council of NSW, published 2 December 2014. COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT THREE
Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively. COMPLAINT FOUR has an impairment within the meaning of section 5 of the National Law, being a physical or mental impairment, disability, condition or disorder, which detrimentally affects or is likely to detrimentally affect his capacity to practise medicine. PARTICULARS OF COMPLAINT FOUR
The practitioner suffers from an impairment, and the possibility of a psychiatric condition which may be temporary and which is contributing to this impairment. The impairment has been characterised by: a. poor judgment; b. inappropriate distribution of private information; c. combative, belligerent and abusive response to conflict, including in his professional life.
The practitioner has demonstrated and demonstrates evidence of a psychiatric impairment being: a. impaired judgment; b. affective instability; c. a belligerent and ineffective approach to conflict resolution; and d. a strong and public adherence to beliefs that are bizarre and possibly overvalued.
The practitioner has demonstrated and demonstrates that he may have: a. an Adjustment Disorder; b. personality traits which under pressure adversely affect his ability to manage stress and resolve conflict, contributing to an exacerbation or accumulation of problems rather than their resolution. COMPLAINT FIVE is not competent to practise the profession of medicine under section 139 of the National Law as the practitioner does not have sufficient physical and/or mental capacity to practise the profession. PARTICULARS OF COMPLAINT FIVE
The particulars of Complaint Four are repeated and relied upon individually and cumulatively.
By reason of the particulars of Complaint Four, the practitioner has demonstrated and demonstrates: e. impaired judgment; f. affective instability; g. a belligerent and ineffective approach to conflict resolution; and h. a strong and public adherence to beliefs that are bizarre and possibly overvalued. 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: 05 February 2020

Health Care Complaints Commission v McGregor

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