Health Care Complaints Commission v Paisley

NCAT Occupational|2023-07-03

REASONS FOR DECISION

By an Amended Application filed on 28 October 2022, the Health Care Complaints Commission (the Commission) brings three complaints against Keith Vincent Paisley (the practitioner) concerning his professional practice.

Complaint 1

On 8 May 2020, the practitioner was convicted of doing an act or making any omission intending to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW).
He was sentenced to serve an Intensive Correction Order for 18 months to expire on 7 November 2021 and was further ordered to serve 250 hours of Community Service supervised by the Community Corrections Service.

Complaint 3

In this complaint, the Commission asserts that the practitioner is guilty of professional misconduct under section 139E of the National Law in that he has: "i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/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."

Complaint 4

Pursuant to section 144(e) of the National Law, the Commission asserts that the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
The particulars of Complaint 4 are as follows: "1. Around 8 - 14 January 2020, the practitioner inappropriately attempted to engage in conduct to intimidate Patient A to withdraw her complaint of sexual assault about the practitioner, which she had made to the NSW Police. 2. Around 8 - 14 January 2020, the practitioner inappropriately instructed Patient B to attend the home of Patient A. a. To offer Patient A $3,000 cash; and b. With instructions for Patient A to prepare a false Statutory Declaration to the NSW Police withdrawing her complaint of sexual assault against the practitioner, and c. With instructions for Patient A to prepare a false Statutory Declaration to the "Department of Health" withdrawing her complaint of having a sexual relationship with the practitioner."
The practitioner admitted each complaint. He offered no evidence nor did he appear at the Tribunal hearing, although he was represented by counsel and a solicitor. Shortly before the Tribunal hearing, on 28 June 2023, the practitioner sent a letter to the Tribunal in the following terms: "I am writing to state that I acknowledge my wrongdoing, the harm that my actions caused to my patient, to my profession and to my family and that my actions cannot be justified. I also fully accept whatever decision/punishment that the Tribunal makes. I have cooperated with the processes of the HCCC and the Tribunal and express my remorse to all concerned."

Background

It is useful to provide some background information about the practitioner and his practice in order to give context to the consideration of the complaints. There was a statement of agreed facts which was before the Tribunal, which forms part of the context below.
The practitioner was first registered as a medical practitioner in NSW in 1980. The practitioner became a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 1990. In 1990, the practitioner established his own private psychiatry practice in Pennant Hills, then later in Granville which he operated until March 2020.
Patient A came under the care of the practitioner in 2007 for the purpose of completing the methadone rehabilitation program and the practitioner prescribed methadone to her as part of that program. Patient A began seeing the practitioner again in February 2015 for chronic pain management. She ceased seeing him in October 2015. Patient A returned as the practitioner's patient from May 2019 until December 2019.
The following is taken from the facts agreed by the practitioner and before the Tribunal when considering the matter.
On 4 December 2019, at approximately 10:00am, Patient A had a consultation with the practitioner. As Patient A was leaving the consultation room, the practitioner hugged Patient A tighter than normal and for longer. Patient A otherwise noted that the practitioner would ordinarily hug her at the end of their consultations and that she did not have a problem with this and did not consider it inappropriate.
The practitioner kept one arm wrapped around Patient A, and used the other to close and lock the office door. Once the door was locked, the practitioner began kissing Patient A on the mouth. He inserted his tongue in her mouth. Initially Patient A froze, but then she began kissing the practitioner back. Patient A was not wearing any underwear. The kissing and touching went on for five to seven minutes. Afterwards, the practitioner told Patient A to "pull yourself together before you leave my office." The practitioner gave Patient A his telephone number and gave her a kiss on her cheek as she was leaving his office.
At approximately 12:00pm on 4 December 2019, Patient A contacted the practitioner and invited him to her residence. Patient A also sent a photograph to the practitioner of a female (presumably herself) in underwear. In the afternoon of that day, the practitioner went to Patient A's house where they had consensual sexual intercourse.
On about 5 December 2019, the practitioner contacted Patient A and offered her cash because he said he knew she was struggling financially. Patient A gave him her bank account details. On 7 December 2019, the practitioner deposited $200 into Patient A's bank account.
The practitioner and Patient A exchanged text messages between 6 December 2019 and 18 December 2019.
On 19 December 2019, Patient A had a consultation with the practitioner and they had consensual sexual contact in his professional rooms.
On 27 December 2019, Patient A attended Westmead Hospital Emergency Department needing admission because of her heroin use. While there, she spoke to an Addiction Specialist, Dr Catherine Silsbury, and told her about the relationship with the practitioner and said that it had become inappropriate, that she had been sexually assaulted by the practitioner, and that she had later invited him to her home for sex. She produced text messages and photos to support the claim. She also said that she had some forensic evidence of the sexual encounter at her home and that aspect of the matter was referred to the police.
Dr Silsbury reported this complaint to the Australian Health Practitioner Regulation Agency (AHPRA) on 28 December 2019. Perhaps somewhat presciently, Dr Silsbury said in her complaint: "I do fear that if he gets wind of this, he will put a great deal of pressure on her to back down."
On 6 January 2020, the Commission received notification of the complaint from AHPRA.
On 8 January 2020, Patient B attended the practitioner's office for a consultation. The practitioner disclosed to Patient B that he had an inappropriate relationship with Patient A and requested that Patient B ask Patient A to write in a statutory declaration that the allegations she had made were false. The practitioner told Patient B what Patient A had to write and gave Patient B two blank statutory declaration forms, Patient A's details, and $3,000 in cash.
On the same day, Patient B attended Patient A's residence but no one answered the door. Patient B left a note which read: "Hi [Patient A], WE HAD A SPECIAL DELIVERY FOR YOU. WE'LL COMEBACK [sic] AT NOON TOMORROW".
Patient A found the note at about 4:00pm on 8 January 2020.
On 9 January 2020, at approximately 12:00pm, Patient B attended Patient A's residence. When Patient A asked who Patient B was and where he was from, he identified himself as "the middleman" and someone who was "here on behalf of Dr Paisley". Patient A invited Patient B into her house, and he handed Patient A some forms and a cardboard box. The box contained cash in $100 notes. When Patient A asked what the money was for, Patient B said, "It is for your cooperation". Patient A asked what she was cooperating for and Patient B said, "Making things right so Dr Paisley does not get into trouble". Patient B also told Patient A to falsify two statutory declarations, and to write the following: "Dep. Health I made false allegations of having sexual relationship with Dr. P. I was angry that he rejected me." And: "Cop. I made false allegations that Dr. P sexually assaulted me. I was angry at him."
Patient B told Patient A that in return for her cooperation, the practitioner would give her $3,000 in cash every month for the next two years.
On 9 January 2020, Patient A made a complaint and made a statement about the matter to police.
On 14 January 2020, Patient B went to the practitioner's office, who told him that the statutory declaration forms needed to be more specific and handed him two more forms together with an envelope containing $5,000 in cash to give to Patient A. Later that day, as he was driving to Patient A's house, Patient B was stopped by the police and he made a statement to them about his involvement with the practitioner.
On 15 January 2020, Patient B told the practitioner in a telephone call that he had made a statement to the police, who had taken the statutory declarations and the money.
On 20 January 2020, the practitioner was arrested and charged with do an act or make any omission intending to pervert the course of justice. He pleaded guilty and on 8 May 2020 was convicted and sentenced to a term of imprisonment of 18 months to commence on 8 May 2020 and to expire on 7 November 2021. The term was to be served in the community by way of an Intensive Correction Order.
On 21 January 2020, the practitioner removed his name from the register of practitioners noting that he intended to retire, and in a statutory declaration made by him on 5 March 2020 he said that he had no intention to seek re-registration in the future.
It is to be observed that Patient A's claim to have been sexually assaulted by the practitioner was withdrawn by her.

The Complaints

On 12 December 2022, the practitioner, through his solicitor, responded to the Commission's complaint admitting each complaint and the particulars supporting them. Although his solicitor and counsel appeared before the Tribunal, the practitioner did not appear. A handwritten letter of the practitioner dated 28 June 2023 was sent to the Tribunal and is reproduced at [10] above.
The practitioner's counsel maintained the position that the practitioner does not propose to seek re-registration as a medical practitioner.
Notwithstanding the practitioner's admission of the complaints and the particulars, it remains necessary that the Tribunal consider them and, if made out, what conclusion flows from them.
In considering the complaints and whether they are established, the Tribunal must be "comfortably satisfied" that the complaint is established on the balance of probabilities but having regard to the potential seriousness of the consequences for the practitioner in coming to that decision: see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.

Complaint 1

On 8 May 2020, the practitioner was convicted of doing an act or making an omission intending to pervert the course of justice contrary to s 319 of the Crimes Act.
Section 144(a) of the National Law provides that it is a ground for complaint against a practitioner that they have been convicted of a criminal offence. Clearly that ground has been established.
The practitioner's criminal conviction for doing an act with intent to pervert the course of justice is objectively serious. Further, the offence was committed to prevent Patient A in continuing with her complaint about their sexual relationship.
Section 149C(1)(c) of the National Law says: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - … (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 practise the practitioner's profession; …
The meaning of "unfit in the public interest to practise" has been considered on a number of occasions. In Pridgeon v Medical Council of New South Wales (2022) 108 NSWLR 263; [2022] NSWCA 60 at [39]-[40], the Court of Appeal considered that meaning in the context of proceedings brought pursuant to s 150 of the National Law. "39. 'Public interest' is not defined in the National Law. However, when considering the principles for decisions under s 150, the Tribunal referred at [111]-[114] to the Court of Appeal's decision in Ghosh where Brereton JA referred at [9] to the Tribunal's decision in Karimi which set out the scope of the public interest test at [123] cited earlier. 40. The sentiment was echoed in Steel v Medical Council of New South Wales [2020] NSWCATOD 77 at [30] as follows: '... 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'....'"
There can be no doubt that the fact of the practitioner's criminal conviction in the context of this matter is both serious and inimical to the public interest that practitioners will exhibit traits consistent with "the honourable practice of an honourable profession."
We find this complaint established.

Complaint 2

The complaint alleges that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(i) of the National Law in that he has engaged in improper or unethical conduct in relation to the practice or purported practice of medicine.
Each of the particulars asserted by the Commission to support the complaint has been admitted.
Resort has been had in many Tribunal decisions to the dictionary definitions of the words "improper" and "unethical" in construing the words as they appear in the National Law. The words must be construed in the context of the "practice or purported practice of the practitioner's profession". The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular". "Unethical" is defined as "contrary to moral precept; immoral; in contravention of some code of conduct".
Here, the conduct could not be described as other than improper and unethical.
The Commission contends that the practitioner's conduct was in breach of the Medical Board of Australia's 'Good Medical Practice: A Code of Conduct for Doctors in Australia' (Code of Conduct). The practitioner commenced a sexual relationship with a patient whilst continuing to treat her, he conducted that sexual relationship in his professional rooms and went to her house, he sent personal text messages to her, and he deposited money into her bank account.
Further, the Commission contends that the practitioner's conduct clearly demonstrates his understanding that the conduct was improper and unethical in that he locked the door of his consulting room before initiating sexual contact and told Patient A to "pull herself together" before unlocking the door so she could leave.
Given the practitioner's professional experience, it could not be argued, nor was it, that he was not aware at the time of the conduct that it was in breach of his ethical obligations and of the relevant professional code.
Equally too, once the relationship had commenced, the practitioner failed to act properly in continuing to treat the patient and not referring her to another practitioner for treatment.
We find each of the particulars of the complaint made out and that the practitioner's conduct was unethical and improper and amounts to unsatisfactory professional conduct. We are also comfortably satisfied that each particular, of itself, could constitute unsatisfactory professional conduct.

Complaint 3

The Commission complains that the practitioner's conduct is such that he is guilty of professional misconduct.
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, Basten JA (Leeming and Payne JJA agreeing) said at [19]-[20]: "19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …"
In Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200, Kirby P said that something more is required to satisfy the test for professional conduct and: "… It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of privileges which accompany registration as a medical practitioner …."
Here, the Tribunal is satisfied that the practitioner's conduct as demonstrated in the particulars supporting Complaint 2 amount to professional misconduct.
The practitioner's conduct was deliberate. As Patient A's treating psychiatrist, he would be well aware of her vulnerabilities in addition to her vulnerability within the relationship of unequal power. Both of these matters would have been well within the practitioner's knowledge as a psychiatrist. The conduct of the practitioner represented an extremely serious violation of the patient/practitioner relationship.
While the practitioner's criminal conduct in attempting to pervert the course of justice forms the basis of a separate complaint, it must be remembered that the practitioner, understanding that Patient A had complained about him, sought to importune her into making a false declaration withdrawing the complaint to protect himself, which in our view heightens the seriousness of his conduct
We find the practitioner guilty of professional misconduct.

Complaint 4

The Commission contends that the practitioner is not a suitable person to hold registration as a medical practitioner. Suitability is considered in s 55 of the National Law, which relevantly states: 55 Unsuitability to hold general registration (1) A National Board may decide an individual is not a suitable person to hold general registration in a health profession if - … (b) having regard to the individual's criminal history to the extent that is relevant to the individual's practice of the profession, the individual is not, in the Board's opinion, an appropriate person to practise the profession or it is not in the public interest for the individual to practise the profession; or … (g) the individual fails to meet any other requirement in an approved registration standard for the profession about the suitability of individuals to be registered in the profession or to competently and safely practise the profession; or (h) in the Board's opinion, the individual is for any other reason- (i) not a fit and proper person for general registration in the profession; …
This section, as indeed all sections of the National Law, must be seen in the context of the objects and guiding principles of the National Law found in sections 3 and 3A, which are: 1. 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, and 2. that the protection of the health and safety of the public must be the paramount consideration in the exercise of the functions under a provision of the National Law.
In support of this complaint, the Commission relies on the particulars of the practitioner's conduct when he, on becoming aware that a complaint had been made, attempted to intimidate Patient A into withdrawing her complaint of sexual assault made to the police, and instructed another patient, Patient B, to go to Patient A's house to offer her $3,000 cash with instructions to prepare two false statutory declarations to the police and to the "Department of Health" withdrawing her complaints.
In considering this complaint and its particulars, we are mindful of the construction given to s 144(e) of the National Law by Gleeson JA in Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [112], [114]: "112. The starting point is to recognise that the same particulars of underlying conduct can be characterised in more than one way for the purpose of s 144 of the National Law, when the Tribunal is exercising its powers under s 149C(1). That is, the underlying conduct relied upon for a complaint is not mutually exclusive to one of the complaints that can be made under s 144(a) to (e). … … 114. Similarly, underlying conduct with respect to the circumstances of a criminal offence which is of a sufficiently serious nature to render a practitioner unfit to practise (s 149C(1)(c)), may also be characterised as rendering the practitioner unsuitable for registration (s 149C(1)(d)). Importantly, the meaning of 'suitability' is not fixed or comprehensively defined in the National Law and includes aspects of competence (s 55(1)(d) and 55(h)(ii), as does s 139(b)), impairment (s 55(1)(a)) and criminal conduct (s 55(1)(b))."
In being satisfied that the complaint and each of the asserted particulars is made out, we are mindful that the practitioner committed a significant criminal offence in an attempt to conceal his conduct, and in doing so attempted to manipulate his patient to whom he was providing psychiatric care. His involvement of Patient B, while not the subject of a separate complaint, is a matter of significant concern.
We thus find this complaint and its supporting particulars made out.

Discussion

No better starting point for a discussion about what consequences should flow from our finding the complaints proven than that which Meagher JA said in Health Care Complaints Commission v Do [2014] NSWCA 307 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 risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91], Santow JA said that the orders not only protect and maintain high standards but: "… There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. …"
In this case, the Tribunal is of the view that no order but the cancellation of the practitioner's registration would operate to fulfill the protective and other functions of orders made under the National Law.
Here, the practitioner has voluntarily removed his name from the register of medical practitioners and has said that he has no intention of seeking re-registration.
Were the practitioner still registered, the Tribunal would have cancelled his registration. Given the gravity of the conduct which supports the complaints, the Tribunal considered that the practitioner's registration should be cancelled for a period of 5 years from the date of the making of these orders. The Tribunal further considers it appropriate to make a prohibition order pursuant to s 149C(5A) to prevent the practitioner from providing health services for five years from the date of these orders.
The Tribunal will require that the National Board with which the practitioner was registered, being the Medical Board of Australia, record the fact that had the practitioner still been registered, the Tribunal would have cancelled his registration.

Costs

The Commission sought, and the practitioner did not object to, an order that he pay the Commission's costs of the proceedings. The costs are to be assessed or agreed.

Orders

The orders of the Tribunal are as follows: 1. An order pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) that if the practitioner were still registered, the Tribunal would have cancelled his registration. 2. Pursuant to s 149C(5A) of the Health Practitioner Regulation National Law (NSW), the practitioner is prohibited from providing health services for a period for 5 years from the date of the making of this order. 3. Pursuant to s 149C(4)(c) of the Health Practitioner Regulation National Law (NSW), the Medical Board of Australia is to record the fact that the Tribunal would have cancelled the practitioner's registration in the National Register kept by the Board. 4. Pursuant to cl 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the practitioner is to pay the Health Care Complaints Commission's costs of the proceedings, 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 24 July 2023 - Paragraphs 62, 65 - Correct punctuation errors. 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 July 2023

(2022) 108 NSWLR 264

(2022) 108 NSWLR 263

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