Health Care Complaints Commission v McNab

Background

1. The background to the proceedings is set out in our Reasons for Decision of 5 April 2023, which should be read concurrently herewith. Additionally, for the purposes of the Stage 2 hearing, the parties submitted an agreed chronology which included information in relation to the criminal convictions and registration history of the Respondent in New Zealand.
2. The agreed chronology read as follows: "1, In 1980, Dr Andrew Graham McNab ("the Practitioner") completed a Bachelor of Medicine/Bachelor of Surgery in New Zealand. 2. In 1995, the Practitioner was convicted in New Zealand of 20 criminal offences of using documents for pecuniary advantage and sentenced to 20 months in prison for his conduct involving making false claims for government subsidies between July 1991 and May 1993 for patients he had not seen. The Practitioner's conduct involved fraudulent claiming of benefits over a protracted period, and included a large number of multiple claims for the same patient; claims for patients who were overseas at the time of the claim and claims for patients who were deceased. 3. In 1996, the Medical Council of New Zealand struck the Practitioner's name off the New Zealand Medical Register as a result of the convictions. 4. Later in 1996, the Practitioner applied for reinstatement in New Zealand and was unsuccessful. 5. In 1996, the Practitioner's appeal against conviction and sentence was dismissed by the Court of Appeal of New Zealand. 6. On 11 September 2000, the Practitioner pleaded guilty and was convicted in New Zealand of 6 criminal offences of acting as a medical practitioner and administering prescription medicines while not registered as a doctor and was sentenced to 200 hours community service for his conduct involving working at a medical centre in 1998 despite written instructions from the New Zealand Medical Council not to do so. 7. In 2003, the Practitioner applied for reinstatement in New Zealand and was successful, with conditions including supervision for three years. 8. In 2004, the Practitioner applied for registration in New South Wales and was unsuccessful. 9. On 23 August 2011, the Practitioner was first registered as a medical practitioner in Australia. 10. On 5 April 2023 the Tribunal published its Stage 1 decision. 11. On 2 June 2023, the Practitioner's solicitor informed the Commission that the Practitioner does not seek to serve any material."
3. As set out in our Stage 1 Reasons for Decision, in March 2020 the Practitioner was convicted of one count of "carry out sexual act with another person without consent" and sentenced to a 12 month community-corrections order. The District Court dismissed his appeal in March 2021. In December 2021 the Supreme Court dismissed his application for Judicial Review. The complainant in these criminal proceedings was a female person who was employed to assist the Practitioner in surgical procedures and whom he saw as a patient on several occasions. She is "Person A" in these proceedings.

The Applicable Law

1. Certain aspects of the relevant law are set out in our Reasons for Decision of 2 September 2022. Section 3 of the National Law sets out the Objectives of the National Law as follows, relevantly for present purposes: 3 Objectives (1) The object of this law is to establish a national regulation and accreditation scheme for - (a) the regulation of health practitioners; … (2) The objectives of the national registration and accreditation scheme are (a) to provide for protection of the public by assuring that only health practitioners who are suitably trained and qualified to practice in a confidence and ethical manner are registered; …
2. The guiding principles of the National Law are set out in section 3A which provides relevantly as follows: 3A Guiding principles [NSW] … (2) The guiding principles of the national registration and accreditation scheme are as follows- … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. Section 3B of the National Law provides as follows: 3B Objective and Guiding Principle [NSW] In the exercise of functions under a New South Wales provision, the protection of the health and safety of the public must be the paramount consideration.
3. Section 149C of the National Law empowers the Tribunal to suspend or cancel the registration of a health practitioner. Relevantly for present purposes, this section provides as follows: (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration of the Tribunal is satisfied - (a) … (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practice the practitioner's profession; …
4. It is settled law that the jurisdiction of the Tribunal is protective rather than punitive in nature, albeit that orders may have a punitive effect: Director-General, Department of Aging, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] per Basten JA. In the same case, Basten JA observed that … "the fact that there are such punitive effects may remind the court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection."
5. It is well recognised that protective orders serve a general deterrence function, which was described by Meagher JA in HCCC v Do [2014] NSW CA 307 as follows at [35]: "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 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 practice including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well 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 practice."
6. As noted above, the Applicant sought an order pursuant to section 149C(5)(a) that the Respondent be prohibited from providing health services for a period of 3 to 5 years. This section provides as follows: (5) if the Tribunal suspends or cancels a registered health practitioner'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; ….
7. The term "health service" is defined in section 4 of the Health Care Complaints Act 1993 (NSW) as follows: 4. Definitions "health service" includes the following services whether provided as public or private services (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a) - (g), (i) services provided with Aboriginal and Torres Strait Island health practices and medical radiation practices (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services (k) services provided in other alternative health care fields, (k1) forensic pathology services (l) a service provided by the regulations as a health service for the purposes of this Act.
8. Section 138 of the National Law is headed: (Definitions [NSW]) and provides inter alia that: "prohibition order" has the meaning given by section 149(C)(5). The terms of s149C(5) are set out above in these Reasons.
9. Accordingly, the National Law makes clear that there are two prerequisites for a prohibition order. Firstly, there must be an order for suspension or cancellation of registration of the practitioner. Secondly, the Tribunal must be satisfied that the practitioner poses a substantial risk to the health and safety of members of the public.
10. The nature of the risk necessary to warrant a prohibition order has been considered in previous decisions of the Tribunal. In HCCC v Kazeme [2020] NSWCATOD 25 ("Kazeme") the Tribunal referred to the decisions of HCCC v Brush [2015] NSW CATOD 120 ("Brush") and HCCC v Choi [2017] NSW CATOD 82 ("Choi"). In Kazeme the Tribunal concluded that "a substantial risk to the health of members of the public means a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative".
11. In Brush the Tribunal made a prohibition order in relation to an osteopath. This order prohibited the practitioner from providing health services specified as: "massage therapy involving physical contact of the body; treatment or therapy involving body movement, joints and the Musculo-skeletal system; any other alternative or healing, health care or therapies". The Tribunal had concluded that there was a material risk of repetition of misconduct by the Practitioner. That being so, the Tribunal determined that the practitioner would pose a substantial risk to the health of members of the public. The Tribunal declined to make a prohibition order in relation to "health education services", as it was not satisfied that the practitioner would pose a substantial (emphasis in original) risk to the health of members of the public in this area.
12. In Choi the Tribunal made an order which prohibited a chiropractor from "providing any health care services, as defined by section 4 of the Health Care Complaints Act 1993 (NSW), whether public, private or volunteer services". The Tribunal had concluded that the evidence established a risk "that is real or apparent … and not a risk that is without substance, or which is fancy or speculative": HCCC v Taylor [2010] NSW NT 10; HCCC v Shara [2015] NSW CATOD 99.

Suspension or Cancellation of Registration

1. In these proceedings, the HCCC sought an order for cancellation of the registration of the Respondent. This order was proposed on the grounds that he is guilty of professional misconduct and/or that he has been convicted of a criminal offence, the circumstances of which render him unfit to practice in the public interest.
2. As noted above the Respondent elected to file no evidentiary material, nor himself appear at the Stage 2 hearing. He made no submission to the effect that a period of suspension or cancellation is unwarranted or that any such order should be of limited duration. In fact, he offered consent to cancellation of his registration and a prohibition order.
3. In the exercise of our discretion, we take into account that there was little or no evidence which might militate against prohibition or cancellation or orders. In particular, the Practitioner offered no evidence from which we might conclude that:

• he has remorse for his offending behaviour
• he has gained insight into the effects of his offending behaviour
• he has taken any steps to ensure that he does not engage in similar conduct in the future

1. In our Stage 1 Reasons we indicated why we concluded that the unsatisfactory professional conduct of the Respondent is of a sufficiently serious nature to justify suspension or cancellation of his registration, thus he is guilty of professional misconduct. We summarised our reasons as follows: "143…the Practitioner removed the underwear of Person A without clinical justification. Person A was placed in a vulnerable and embarrassing position, in which she claimed that she felt distressed and fearful. It seems to us that the Practitioner has at no stage fully accepted responsibility for his actions and the consequences for Person A. He exhausted unsuccessfully all avenues available to him in the criminal process and disputed significant Complaints in these proceedings. For example, he denied that he removed the underwear of Person A without clinical justification, in the face of persuasive evidence to the contrary from Dr Golding and his own expert Associate Profession Roche. … 145 … The Practitioner removed the underwear of Person A without her informed consent, as he admitted in his Reply. We note that the evidence of the Respondent's own expert, Associate Professor Roche, of the "absolute duty to stop as soon as the patient does not want to be examined", which was clearly ignored by the Practitioner."
2. As noted, the Respondent offered no evidence which could support a conclusion that he has learned from his offending conduct in any way. In our Stage 1 Reasons for Decision we referred to the following observations of the presiding judge at the District Court Appeal: …from a reading of the transcript [the Practitioner] appears to have been argumentative, to have been arrogant and belligerent when giving evidence and particularly in cross-examination. Having observed the Respondent in his evidence at the Stage 1 hearing, we agreed with these observations. No evidence in the Stage 2 proceedings suggested that his mindset has now shifted to a position where he accepts responsibility for his conduct and its consequences.
3. The evidence adduced by the Applicant in the Stage 2 hearing familiarised us with the criminal convictions and history of the Respondent with medical regulatory authorities in New Zealand. Pursuant to section 149C(1)(c) of the National Law, we are entitled to have regard to criminal findings made against the Practitioner outside this jurisdiction. For reasons set out below, this information suggests to us that the Respondent has a pattern of failure to accept responsibility for his own actions and minimisation of the consequences of his behaviour. We are left with substantial concerns that there is a real and tangible risk that he will engage in further unacceptable conduct in the future.
4. It was common ground that the Practitioner has been convicted twice of criminal offences in New Zealand. In 1995 he was sentenced to 20 months imprisonment for multiple offences involving false claims for government medical subsidies. In 2000 he was convicted of six offences of practising medicine without registration. Significantly, in our view, each of these convictions resulted from conduct of the Respondent which he perpetrated in the context of medical practice.
5. The Practitioner now has been convicted of a further criminal offence arising from behaviour perpetrated in the course of medical practice. In our assessment, it is a matter of considerable concern that he has now engaged in criminal conduct in the course of the practice of medicine on three occasions over a period of some 15 years.
6. Following his first conviction, the Medical Council of New Zealand ordered that "the name of [the Respondent] be removed from the Medical Register…" Nonetheless, the Respondent subsequently practiced medicine without registration. In these circumstances, we cannot be confident that he would abide by any conditions which may be imposed on his registration in the future.
7. Ultimately, we see no alternative but to cancel the registration of the Respondent in light of his history in New Zealand and the circumstances of his conviction in 2020 for the offence of "carry out sexual act with another person without consent …". In our view, the evidence established a clear need for protection of the health and safety of the public from the conduct of the Respondent. We conclude that a period of cancellation would also serve the purposes of general deterrence and the upholding of public confidence in the standards of the profession.
8. The Applicant sought an order for a non-review period of three to five years. As noted, the Practitioner consented to this proposed order. We conclude that cancellation with a non-review period of five years is warranted in all the circumstances, primarily for the following reasons:

• the Practitioner subjected Person A to criminal conduct, for which he has shown no remorse at any time
• the Practitioner now has engaged in criminal conduct in the course of medical practice on three occasions over a period of 15 years
• the Practitioner has demonstrated a willingness to act in defiance of regulatory/protective orders in the past
• the Practitioner elected to offer no evidence of any intention or plan on his part to remediate his offending behaviour

Prohibition Order

1. Substantially for the reasons set out above, in relation to cancellation of registration, we are comfortably satisfied that the Respondent poses a substantial risk to the health and safety of members of the public for the purposes of Section 149C(5)a of the National Law. We are comfortably satisfied that this risk is "material, and real or apparent on the evidence, and not a risk that is without substance or speculative": HCCC v Kazeme [2020] NSWCATOD 25.
2. In this context, we are conscious that the Practitioner claims a particular expertise in the relief of back pain by manipulation. In his evidence-in-chief in the Stage 1 hearing he said inter alia:

• "I ended up doing a lot of backs, thousands of back manipulations.
• I can go down a back and just wobble, wriggle the back and found out - and I find the joints that are jammed.
• I can nearly always improve the pain with a manipulation if it is a jammed vertebra, the little bones on the side jam, the outriggers sort of stick, the ones that stops the backs, they jam. So that's my only skill, really, is looking at the back and examining it and checking it for pathology of course and then relieving the pain.

1. In an exchange with Dr Newberry at the Stage 1 hearing, the Respondent indicated his views as to the appropriateness or otherwise of his manipulations of the back of Person A. This exchange was as follows: Dr Newberry: … Q. … You agreed with Dr Roche that the cornerstone of good medicine is a good history and an examination? A. That's right. Q. Can you tell me why then you manipulated Person A's back on at least four to five occasions without making any notes or writing any history in the notes? A. Well, because she comes in, she knows what she wants, she has had them before from other people. She booked - and she just wants - she comes in without giving much time. And she just wants, can you just manipulate my back. And whereabouts. Just in the middle somewhere. It has been done before, so I - - Q. Is that good medicine to do the patients wants in those circumstances? A. Ah, well, I know it is not ideal, but practically speaking, when you are busy and she pops in the door, you just - and you are just trying to do it and out she goes and the pain is gone. So it is a bit different to, like, other aspects of medicine and - - Q. In what way - - A. Because you - - Q. In what way is it different? A. Well, there's not many areas of medicine where someone can come in with quite severe pain and you can manipulate their back and in about 20 seconds the pain is gone, that's pretty rare to start. There's nothing else in medicine like that, is there, pretty well. Q. That's true, but like you said, the cornerstone of good medicine is a good history and - - A. I know, I know. That's why I wanted to bring her in. She keeps in and giving me no time to do it.`` [NCAT transcript pp 259-260]
2. We consider that this evidence of the Respondent demonstrates an overconfidence in his ability to deal with back pain and a preparedness to depart from proper practice. It seems to us that there is a real risk, which well exceeds the bounds of speculation, that the Respondent may elect to use his knowledge of back manipulation techniques as an unregistered health practitioner. Accordingly, there is a tangible risk that vulnerable female clients may be exposed to conduct of a similar nature to that to which he subjected Person A.
3. Although the exchange of photos and videos of female genitalia and buttocks was not the subject of a Complaint, this behaviour seems to us to be a concerning indication of the Respondent's incapacity or unwillingness to respect interpersonal boundaries in a general sense. In our view this concern is heightened in that the Respondent occupied a position of power in relation to Person A and had acted as her treating health care practitioner on occasions. Nothing in the evidence indicates any insight on his part as to the inappropriateness of this behaviour. This breach of interpersonal boundaries, in combination with is history in New Zealand and this jurisdiction, leads us to real and substantial concerns for the health and safety of vulnerable female clients who may consult the Respondent as an unregistered practitioner.
4. We are satisfied, and we find, that a prohibition order is warranted in all of the circumstances. In our view such an order should be of the same duration as the period of cancellation, that is, for five years.

Costs

1. The Court of Appeal has made clear that, as a general rule, costs in proceedings before the Tribunal should follow the event: HCCC v Philipiah [2013] NSWCATOD 342. Here, the Applicant succeeded in establishing each of the Complaints, although not all Particulars, and the Respondent was found guilty of unsatisfactory professional conduct and professional misconduct.
2. The Respondent offered no evidence or submission as to any basis for a departure from this general rule: HCCC v Livermore [2021] NSWCATOD 115. In fact, the proposed consent orders included provision for payment of the costs of the Applicant by the Respondent.
3. In these circumstances, we see no reason why the Respondent should avoid liability for the costs of the Applicant. We will make the order for costs as sought by the Applicant.

ORDERS

1. The orders will be as follows:
2. The registration of the Respondent, Andrew Graham McNab, is cancelled pursuant to sections 149C(1(b) and 149C(1)(c) of the National Law.
3. A non-review period of 5 (five) years is set in respect of order (1).
4. Pursuant to section 149C (5) of the National Law, the Respondent Andrew Graham McNab is prohibited from providing a health service, as defined in section 4 of the Health Care Complaints Act 1993 for a period of 5 (five) years.
5. The Respondent Andrew Graham McNab shall pay the costs of the Applicant Health Care Commission as agreed or assessed. **********​​​​​​​ 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

Amendments 25 October 2023 - Coversheet - Order 3 - section of the National Law, amended.

25 October 2023 - Paragraph 42 - Orders - Order 3 - section of the National Law, amended. 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: 25 October 2023