Health Care Complaints Commission v Morsingh

NCAT Occupational|2021-03-16

REASONS FOR DECISION

This matter involves an Application for disciplinary findings and orders ("the Application") brought against Dr Morsingh by the Health Care Complaints Commission ('the HCCC') under the Health Practitioners Regulation National Law (NSW) ('the National Law').
Stage 1 of the hearing of the Application, which involved the hearing of evidence and submissions and the making of findings and determinations regarding the culpability of the practitioner with respect to the allegations in the Application, was the subject of a published decision by the Tribunal on 16 February 2021 (see Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 ('the Stage 1 decision'). Stage 2 of the hearing of the Application, which will involve the hearing of evidence and submissions in relation to what disciplinary orders should be made in relation to the practitioner, and the making of any disciplinary orders under s 149A of the National Law which the Tribunal determines to be appropriate, will be heard on 28 May 2021.
This decision concerns an interlocutory application made by the HCCC seeking the interim suspension of the practitioner's registration under s 165L(3) of the National Law until the outcome of Stage 2 of the hearing of the Application is known.

Composition of the panel

Section 165L(3) of the National Law

Section 165L of the National Law provides: 165L Interlocutory orders [NSW] (1) The Tribunal may, during any proceedings under this Law, exercise any power or combination of powers conferred on the Tribunal by section 149A, except the power to caution or reprimand. (2) The Tribunal may, in respect of an appeal under section 159B, make an order staying the decision of the Council appealed against until the appeal has been disposed of. (3) The Tribunal may, during any proceedings under this Law, suspend a registered health practitioner's or student's registration if - (a) it has found the subject-matter of the complaint against the practitioner or student to have been proved; and (b) the complaint has not yet been finally disposed of; and (c) it is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest.

The argument for the HCCC

The HCCC submitted that it was clear from the Stage 1 decision that the Tribunal has found the subject-matter of the complaint against the practitioner to have been proven and that s 165L(3)(a) of the National Law has therefore been fulfilled. Further, it is clear that the complaint the subject of the Application has not yet been finally disposed of, consistent with s 165L(3)(b) of the National Law. I agree. No submission was made to the contrary in Dr Morsingh's argument.
The HCCC submitted that the questions to be answered, with reference to s 165L(3)(c) of the National Law, are whether it is appropriate for the protection of the health or safety of any person or persons that Dr Morsingh's registration now be suspended pending the final outcome of these proceedings, and whether that interim suspension is otherwise in the public interest.
In its written submissions, the HCCC said: 4. There is no authority about the application of the third requirement in s 165L(3)(c). However, the language used in that subparagraph is the same as the language in s 150 of the National Law, which empowers a Council to suspend a health practitioner's registration (among other orders) pending the final disposal of the complaint. In that context it has been said that: (a) the power must be understood as an interim one, which does not require satisfaction as to what orders would be appropriate on a final basis; (b) the requirement has two limbs - protection of health and safety, and otherwise in the public interest - which are separate, such that the public interest is not limited to the protection of health and safety; (c) the public interest includes wider community interests in upholding standards of ethics and competence in the health profession and maintaining public confidence in the scheme for the registration of health practitioners; and (d) given the protective and public interest purposes of the power, the threshold for its exercise is 'relatively low'; it is sufficient for the Tribunal to be satisfied that there is a risk to health or safety or to the public interest that justifies the order. 5. One difference between an order under s 150 and an order under s 165L(3) is that the latter follows the Tribunal's findings in relation to the merits of the complaint. Accordingly, the context in which the Tribunal is called upon to act under s 165L(3) is one of greater factual certainty about what the practitioner has done compared with a Council acting under s 150. The Tribunal is also obliged to observe the objectives and principles referred to in ss 3 and 3A of the National Law, which include (as the paramount consideration) the protection of the health and safety of the public,8 and to ensure that only practitioners who are qualified to practise in a competent and ethical manner are registered. 6. In this case, both the protection of health and safety and the broader public interest support making an interim suspension order. 7. The Respondent has been found to have engaged in very serious misconduct. This included: (a) conducting a breast examination on a patient without a clinical basis and for his own sexual gratification; (b) conducting another inappropriate physical examination on the patient; and (c) breaching personal and professional boundaries with that patient in several ways including by commenting on the patient's physical appearance, partially disrobing to show her a tattoo, disclosing personal information about himself to the patient, and displaying products for sale in his consultation room when his wife stood to benefit financially from their sale. 8. The Tribunal found that the Respondent's conduct in relation to the breast examination alone, and all of his conduct cumulatively, was sufficiently serious as to justify the suspension or cancellation of his registration and therefore amount to professional misconduct. 9. The Respondent has persistently denied engaging in almost all of that misconduct. He has shown no remorse, even for the misconduct that was admitted. He has sought to explain away his actions without taking any responsibility for them. No credible explanation has been given for that misconduct which could satisfy the Tribunal (at this interim stage) that there is no or little risk of it recurring. 10. In those circumstances, the Tribunal should be satisfied that the Respondent poses a risk to the health and safety of his patients that justifies an order preventing him from continuing to see patients, pending full consideration and testing of any evidence the Respondent may wish to put forward in relation to his ongoing risk. 11. The Tribunal should also, or alternatively, be satisfied that there is a significant risk that allowing the Respondent to continue practising would damage public confidence in the standards of the medical profession and the registration scheme under the National Law. Based on the Tribunal's findings in the Stage 1 decision and the Respondent's persistent denial of what was found to have occurred, members of the public cannot be satisfied that the Respondent has the willingness or ability to observe the high standards of integrity and moral and ethical values required of a medical practitioner, or is otherwise a practitioner worthy of their trust and confidence. 12. Although the Respondent is currently practising under conditions that prevent him from seeing any female patients aged 12 years or above, and require his practice to be monitored and supervised, those conditions are not sufficient to ensure the protection of health and safety or the meet the public interest. The misconduct found against the Respondent was not limited to conduct that could only be committed in relation to a female. The defects in character that that misconduct indicates, and the lack of candour and integrity demonstrated by his false denials of the misconduct, are capable of manifesting in risks to the health and safety of other patients. In any event, the resulting risks to public confidence in the Respondent and the profession are not adequately addressed by maintaining the conditions currently imposed on him. (footnotes omitted)
In oral submissions, Mr Fuller emphasised the importance of maintaining public confidence in the medical profession and submitted that action was required when public trust might be damaged. In the context of there being, as yet, no certainty as to the final disciplinary orders which might be made, Mr Fuller submitted that the Tribunal's task amounted to the undertaking of a risk assessment of the health and safety risk possibly posed by Dr Morsingh continuing to practise. Issues concerning the practitioner's lack of integrity, lack of candour and failure, to date, to indicate remorse, were raised as possible risk factors. Mr Fuller said that the conduct of Dr Morsingh's case had included the undermining of the patient who complained, and that the persistence of Dr Morsingh's adherence to false accounts of his interaction with that patient should give rise to concern.

The argument for Dr Morsingh

The application for an interim suspension was opposed by the practitioner. Mr Nematalla submitted (and Mr Fuller agreed) that the Tribunal's power under s 165L(3)(c) of the National Law is discretionary.
With reference to paragraphs 4 and 5 of the HCCC's written submissions (see [15] above), Mr Nematalla submitted that the discretionary nature of the power conferred upon the Tribunal by s 165L(3)(c) of the National Law differentiated it from the power conferred upon a Council by s 150 of the National Law, which 'must' be exercised when the Council is satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or if satisfied that the action is in the public interest. Mr Nematalla submitted that the factors set out in paragraph 4 of the HCCC's written submissions were not, therefore, applicable to the interlocutory application. He said, however, that s 3A of the National Law provided a 'benchmark' for the Tribunal's consideration, but submitted that, as the Tribunal's power under s 165L(3)(c) is discretionary, it called for a 'value judgment' approach. He said that the use of the word 'appropriate' in s 165L(3)(c) meant that the Tribunal should balance the circumstances of the breach against the knowledge that the case in mitigation would be put at the Stage 2 hearing in May 2021.
It was submitted on behalf of Dr Morsingh that the acceptance of the account of the patient who complained ('Patient A') did not necessarily mean that all of Dr Morsingh's evidence consisted of lies and fabrications. It was submitted that the Stage 1 decision was 'open to interpretation'.
Mr Nematalla pointed out that Dr Morsingh had conceded some of the allegations in the Application, namely those concerning the display and sale of the doTerra oils and his conduct in partly removing his shirt and showing Patient A the tattoo on his body when she had said that she did not wish to see it.
Mr Nematalla argued that the conditions under which Dr Morsingh has been practising for the last two years and two months, including the condition that he not consult, examine or treat a female person over the age of 12 years old, are adequate to protect the health and safety of the public. There is no evidence of any breach of those conditions.
Mr Nematalla said that, for the last two years, Dr Morsingh's income has been reduced to half of his income prior to that time. This is, presumably, the net result of the reduction in Dr Morsingh's hours, which was the subject of evidence at the Stage 1 hearing, and the effect of condition 1 on Dr Morsingh's registration, which is that he is: 1. Not to consult, examine, treat or perform any procedure on any female aged 12 years and above. a. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. b. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council.
Dr Morsingh pays support to his former partner and their children. He is responsible for the mortgage payments for their former family home. This leaves him with a very modest sum for his own living expenses.
Mr Nematalla submitted that the current 10 conditions to Dr Morsingh's registration, which, in addition to condition 1 set out in [22] above, include detailed conditions with respect to his supervision and the random audit of his practice, are sufficient, on an interim basis, to address any risk to any person or persons, and to satisfy the public interest, having regard to the interim stage the proceedings have reached.

The HCCC's submissions in reply

In reply, Mr Fuller pointed to the Civil and Administrative Tribunal Act 2013, Schedule 5, Clause 9(1) which says: 9 Certain objectives and principles under National Law to be applied (1) The Tribunal, when exercising its Division functions for the purposes of the National Law, is under a duty to observe the objectives and principles referred to in sections 3 and 3A of the National Law. (2) The provisions of this clause are in addition to, and do not limit, the provisions of section 36(5) of this Act.
The National Law, in s 3A, says: 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. Note - This section is an additional New South Wales provision.
The National Law, in s 3(1), says that the object of the Law (among other things) is to establish a national registration and accreditation scheme for the regulation of health practitioners, and further says, relevantly, in s 3(2)(a): (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered;
Mr Fuller said that the purpose of the power given to the Tribunal by s 165L(3) of the National Law is to enable the Tribunal to suspend a practitioner's registration on an interim basis, without hearing the full ventilation of any matters to be put in mitigation.
Mr Fuller submitted that it was not helpful to characterise the Tribunal's approach as a 'risk management approach'. The question to be answered is simply whether it is appropriate for the protection of the health and safety of any person or persons, or otherwise in the public interest, to make the interim order sought.
Mr Fuller conceded that, now that Dr Morsingh is prevented by condition 1 to his registration from consulting, examining or treating any female person 12 years old and above (except in an emergency), the HCCC was not able to point to a particular group of patients whose health and safety could be said to be at risk from Dr Morsingh on the basis of the facts found in the Stage 1 decision. Mr Fuller said that the findings of fact in the Stage 1 decision gave rise to a genuine concern as to Dr Morsingh's honesty, integrity and ethics, which might influence his treatment of any of his patients.

The approach

As I have said, Mr Nematalla argued that the matters set out in paragraph 4 of the HCCC's written submissions (see [15], above) were not relevant to the Tribunal's decision under s 165L(3) of the National Law because that decision differs from the decision which a Council must make under s 150 of the National Law in that a Council 'must' make one of the orders specified in s 150 of the National Law if it is satisfied that it is appropriate to do so on the grounds set out in the section, whereas s 165L(3) of the National Law provides that the Tribunal 'may' during any proceedings under the National Law, suspend a practitioner's registration if the pre-requisites in s 165L(3)(a) and (b) have been fulfilled (and they have been) and if the Tribunal is satisfied that it is appropriate to do so on the grounds set out in s 165L(3), which are the same as those set out in s 150(1), namely 'the health or safety of any person or persons (whether or not a particular person or persons) or the action is otherwise in the public interest'.
I reject Mr Nematalla's submission. The use of 'must' in s 150(1) and the use of 'may' in s 165L(3) of the National Law does not mean that authorities which deal with the approach to the task of considering whether satisfaction has been reached about the grounds which are common to both sections are necessarily not useful in considering an application under s 165L(3) of the National Law. They must, however, be applied in a way which acknowledges that findings of fact have been made in relation to the complaint prior to the making of the decision in s 165L(3), whereas no findings of fact precede the decision by the Council in s 150(1) of the National Law.

Relationship between any interlocutory suspension and the final disciplinary orders

The HCCC referred, in its submissions, to the following words of Harrison AsJ in Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 ('Ibrahim') at [10]-[11]: 10 In determining whether it must act under s 150 of the National Law, the role of the relevant Council or Tribunal is not to make findings of fact or a determination of the merits of any complaint. 11 In Lindsay v NSW Medical Board [2008] NSWSC 40 ("Lindsay"), Hall J considered the interlocutory nature of an action made under s 66 of the Medical Practice Act 1992 (NSW), which was the predecessor provision to s 150 of the National Law. His Honour's comments are equally applicable to s 150 of the National Law. In Lindsay, Hall J stated at [79]: "[79] An inquiry, hearing or interview process conducted for the purposes of the Board or its delegates determining the matters under s.66(1) could be considered to be preliminary or interim in nature or, as it was termed in the present proceedings, 'interlocutory'. Such a process, in the present case, as earlier observed, did not involve the making of findings of act or the determination of the merits of any complaint. Any observations or conclusions expressed by the Board or its delegates under s.66 following an inquiry, hearing or interview, are, and can only be, strictly for the limited purposes of s. 66(1). Such observations or conclusions are not to be equated to findings on material questions of fact as may be made by the Medical Tribunal in proceedings conducted by the Tribunal under Part 11 of the Act."
The principle there expressed is not directly applicable to a decision under s 165L(3) of the National Law, in that, as I have said, the decision which must be made in relation to the present application is made in the light of the Tribunal's detailed findings of fact which are set out in the Stage 1 decision. However, Dr Morsingh has not yet had the opportunity to provide to the Tribunal detailed evidence, including expert evidence, as to the factors personal to him which might have had an impact upon his conduct at the relevant time, or about the surrounding circumstances. Further, Dr Morsingh has not yet had the opportunity to provide to the Tribunal evidence, including expert evidence, of any measures he may have taken, in the years since the conduct the subject of the complaints, to reduce the possibility of the recurrence of that conduct, or conduct like it. Counsel indicated at the hearing of the interlocutory application that no complaints of like conduct had emerged since the imposition upon Dr Morsingh of the conditions set out in [22] above, but, beyond that, Dr Morsingh has not had the opportunity to adduce evidence as to his approach to practice over the last few years or his state of mind with respect to the conduct the subject of the complaints. The final disciplinary orders will be made after Dr Morsingh has been afforded the opportunity to place all relevant evidentiary material before the Tribunal and make submissions. This decision in relation to the interlocutory application is being made at a point in time between the beginning and the end of the proceedings in the Tribunal, and is relevant to that time period. The final disciplinary orders will be made near the end of the proceedings and follow the consideration not only of the Stage one decision but also all of the evidence and submissions made in Stage two. For that reason, this decision under s 165L(3) should not be taken as heralding or limiting the disciplinary orders which will ultimately be made in this matter. In addition, obviously, the Tribunal is differently constituted for the two decisions.

The protection of health and safety and the action being otherwise in the public interest

The HCCC referred to Ibrahim, in which Harrison AsJ set out the argument of the plaintiff at [29], with which, at [35], His Honour agreed: 29 Counsel for the plaintiff has submitted that on a fair reading of s 150 of the National Law, the word "otherwise" must be given work to do. As such, the "public interest" referred to in the second limb must mean something separate from, and beyond, "the protection of the health or safety of any person or persons" from the first limb: see, for example, Hanna v Medical Board of NSW [2017] NSWCATOD 27 ("Hanna") at [18]; Clarke v Nursing and Midwifery Council [2017] NSWCATOD 163 at [21]-[22].
This principle is clearly applicable to the decision under s 165L(3)(c). Public interest, in that section, means something separate from, and beyond, 'the protection of the health or safety of any person or persons'.
I will deal with public interest separately from health and safety. In considering both public interest and health and safety, I bear in mind and have regard to the objective and guiding principle set out in s 3A of the National Law (see [26], above).

Health and Safety

The complaints the subject of the Application can broadly be considered as being within two categories. The first category of complaint related to the interaction between Dr Morsingh and Patient A at a consultation on 28 November 2018. The second category of complaint related to the sale and display of doTerra oils.
Given that Dr Morsingh has conceded that it was inappropriate to sell and display doTerra oils at his practice, I do not consider that there is any present risk to health and safety arising from that conduct.
The question is, then, whether Dr Morsingh's conduct during the consultation with Patient A, together with the manner in which he has dealt with this complaint, satisfies me that it is appropriate, for the protection of the health or safety of any person or persons, whether or not a particular person or persons, to suspend his registration as a medical practitioner until final disciplinary orders are made in these proceedings.
In the Stage One decision, the Tribunal found that, at the consultation on 28 November 2018, Dr Morsingh touched Patient A's breasts, not for any clinical purpose, but for his own sexual gratification. His examination, diagnoses and advice in relation to Patient A were all compromised on that day.
At the time of the consultation, Patient A was a 28 year old woman. The conditions imposed upon Dr Morsingh's registration prior to the commencement of these proceedings include condition 1, set out at [22] above, which prevents Dr Morsingh from consulting, treating, examining or performing any procedure on any female aged 12 and above, except in an emergency.
The other conditions, referred to in [24] above, provide further safeguards.
At present, on the basis of the material before me, I am not satisfied that an interim suspension of Dr Morsingh's registration, constrained as it is by the conditions set out in [22] above and referred to in [24] above, is appropriate for the health and safety of any person or persons.
The Tribunal is likely to have before it, when it considers what disciplinary orders are appropriate, more evidence and submissions relevant to the issue of suspension and, indeed, cancellation. This decision in no way foreshadows the final disciplinary orders in this matter.

Public Interest

In AB v Judicial Commission of NSW [2018] NSWCA 264, the Court said, at [54]: 54. The term "public interest" has no precise meaning. It is protean and will take its possible meanings from the context in which it is used.
In Ibrahim at [31]-[32] and [35] Harrison AsJ said: 31 The plaintiff referred to several cases which help define the meaning of "public interest" for the purposes of interpreting s 150 of the National Law. They are that the "public interest": "…directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances… The expression 'the public interest' is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination…The indeterminate nature of the concept of 'the public interest' means that the relevant aspects or facets of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination.": see McKinnon v Secretary, Department of Treasury [2005] FCAFC 142; (2005) 145 FCR 70 at [9]-[11] (Tamberlin J); "…is a term embracing matters, among others, of standards of human conduct…the interest is therefore the interest of the public as distinct from the interest of an individual or individuals": see Director of Public Prosecutions v Smith (1991) 1 VR 63 ("Smith"); and is referred to in order "to ensure that private interests are not the only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation": see Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681 (Wilcox CJ and Keely J). 32 As such, and in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18]. … 35 I agree with the plaintiff's submission. In my view, the Tribunal's reasoning at [29] and confirmed at [31] of its decision demonstrates that it erroneously confined its application of s 150 to the protection of the health or safety of the public. That application is out of keeping with the plain language of the statute, which clearly differentiates in its two limbs between the protection of the health and safety of the public, and the public interest. The public interest is a broader concept, encompassing wider community interests such as the standards to which human conduct is to be held: see Smith, extracted earlier.
This interpretation of 'the public interest' in the context of s 150 of the National Law is directly applicable to the meaning of that phrase in s 165L(3)(c) of the National Law.
The public interest to be considered in relation to the interlocutory application for an interim suspension under s 165(3) is the public interest in the imposition of an interim suspension until the proceedings are determined by the Tribunal by the making of disciplinary orders.
The question is whether I am satisfied that the interim suspension of Dr Morsingh's registration for the next couple of months is in the public interest.
I accept that it is in the public interest that public confidence be maintained in the scheme for regulating health practitioners, and that it is clear to the public that the competence and honour of health practitioners is being maintained.
On the basis of the findings of fact in Stage 1, Dr Morsingh's conduct showed that his competence, integrity and honour were compromised during the consultation with Patient A on 28 November 2018.
On the other hand, that section of the community which uses the clinic in which Dr Morsingh has practised as a general practitioner for many years has an interest in having access to a range of general practitioners. This is also an aspect of the public interest.
Dr Morsingh was first registered as a medical practitioner in 1994. Dr Morsingh's long standing male and child patients have an interest in his continued availability as a general practitioner.
Dr Morsingh has an interest in maintaining an income, and his family have an interest in being supported by him.
No evidence of any complaint against Dr Morsingh in relation to issues of the kind which gave rise to these proceedings, has emerged since Dr Morsingh began practising subject to the conditions imposed by the Medical Council on 24 January 2019.
Taking all of these matters into account, as components of the public interest, I am not persuaded that the imposition of an interim suspension of Dr Morsingh's registration for the next couple of months would be in the public interest. Again, this in no way should be taken to foreshadow the decision of the Tribunal in relation to the final disciplinary orders.

Conclusion

The applicant has established the pre-conditions for an interim suspension in s 165L(3)(a) and (b) of the National Law However, the applicant has not established either of the alternative matters in s 165L(3)(c) of the National Law. The application for an interim suspension of Dr Morsingh's registration under s 165L(3) of the National Law will be refused.

Order 1. The application for an order under s 165L(3) of the Health Practitioners Regulation National Law (NSW) is refused.

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: 24 March 2021

Medical Practice Act 1992(NSW)

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Judgment (14 paragraphs)

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Cases Cited (10)