In this matter the Health Care Complaints Commission (HCCC) pursues a complaint against an unregistered medical practitioner, Gregory Peck (the respondent).
This case is, in many respects, a very sad case. It involves a vulnerable patient, with whom the subject medical practitioner engaged in an emotional and sexual relationship, which breached proper doctor/patient boundaries. The respondent was, we accept, probably mentally unwell himself at the time he breached doctor/patient boundaries. We consider that had he not been impacted by his illness, the practitioner would most probably not have conducted himself in the manner he did. The conduct gave rise to a complaint by his patient and mandatory notification by his treating psychiatrist.
The complaint by the subject patient (Patient A) led to the Medical Council of New South Wales (the Medical Council) convening a s 150 hearing and suspending the respondent's registration. Since that event the respondent has decided to forego his registration and he is currently unregistered with a stated intention not to apply for registration in the future.
Unusually, in our experience, for matters listed for hearing before the Tribunal, the respondent did not attend, although he was represented by counsel. He did not therefore provide any oral evidence. As a consequence, we were not able to assess him other than through the written evidence provided by the parties. Further, he did not cross-examine any of the witnesses relied upon by the HCCC.
The HCCC did not cross-examine the respondent, because he chose not to present himself, nor did the HCCC cross-examine the respondent's treating psychiatrist Dr Christopher Bench (no criticism intended).
The fact that the respondent did not present himself for cross-examination or cross-examine Patient A, led to submissions by each of the parties' legal representatives about the legal consequence of such a circumstance. In a civil suit, which is subject to the application of the Evidence Act 1995 (NSW), such a circumstance would lead to a conclusion that Patient A's evidence was unchallenged. In the absence of any other compellingly contradictory evidence, or internal inconsistencies, or some other aspect of the evidence which made it incredulous, or raised reason for concern about the veracity of the evidence, Patient A's evidence would be given substantial weight. What would make Patient A's evidence even more compelling is the failure of the respondent to present himself for cross-examination. However, as set out hereafter, the Rules of Evidence do not apply to a hearing before the Tribunal.
To add to the complexity in this matter, the respondent did not appear personally but also did not present any evidence from a qualified source stating that he was unable to attend upon the hearing or to participate in the hearing because of his medical condition, or for any other acceptable reason. He was represented by counsel in the hearing. Having seen the evidence provided to the Tribunal by the respondent's psychiatrist, we accept that the respondent may not have felt psychologically able to cope with attending at the hearing.
A similar reason is put forward for the respondent failing to cross-examine Patient A in the hearing. Patient A suffers from PTSD and the respondent, through his counsel, advised the Tribunal that the respondent did not wish to expose Patient A to any further trauma or a circumstance which might be harmful to her.
The circumstances which were presented to us, as outlined above, are unlikely to be unique in this jurisdiction. The Tribunal has no role in compelling parties to attend and/or give oral evidence before it or to be present at a hearing before the Tribunal, if they are disinclined, or unable to do so for a proper reason. It must be a function of the Tribunal to ensure the safety of persons who appear before it and further to not require that appearance, in person, should it expose that person to harm in any real sense. This is not a reference to a person being nervous or uncomfortable in the forum, rather, it is reference to a person with a genuine medical condition, which condition would be exacerbated if that person was to appear before the Tribunal. That person may be a party to a proceeding before the Tribunal, or a witness in a hearing listed before the Tribunal.
This circumstance also differs from a situation where a person is unable to give instructions and/or understand the litigation in which she/he is a party and where it is necessary to appoint a case guardian to appear in that party's stead. Here, there is no suggestion that the respondent is so unwell as to not be able to give instructions or to understand the nature and extent of the case brought against him in this hearing. That circumstance adequately explains for us the absence of any application to appoint a Next Friend/litigation Guardian for him in this proceeding.
Again, as a somewhat unusual feature of the hearing, Patient A attended the entirety of the hearing through the AVL system. This led to a rather emotional statement being made, by the respondent's counsel, at the conclusion of the hearing. He stated, on the record and to the hearing of Patient A, a sincere apology by the respondent for the harm that the respondent had perpetrated upon her.
One of the documents tendered in the hearing and marked as R2, was an email chain between the parties' legal representatives. It set out notice given to the HCCC that the respondent would not be attending at the hearing. It also set out a request by the HCCC that the respondent obtain, if possible, an updated report from his psychiatrist Dr Bench.
Counsel for the respondent informed us that the respondent had attempted to make contact with Dr Bench over the Easter period; however, Dr Bench was on leave. There was then a discussion between the Tribunal members and counsel for each party about that circumstance.
In order to ensure the respondent had every opportunity to place before the Tribunal the evidence which he would like us to see, we made the following orders/directions at the end of the hearing.
…
(3) The Tribunal notes that in exhibit R2, (the email chain tendered by the respondent) the email dated 1 April 2021, from the HCCC solicitor to the Respondents' solicitor, a request was made by the HCCC as follows:
"Finally, can you please approach Dr Christopher Bench an enquire whether he can express an opinion about the prognosis for Dr Peck in terms of recovering from his condition in the future? If he can provide a brief supplementary report on the issue, and subject to what that opinion is, we don't propose to call him to give evidence; otherwise, can you please make him available for cross-examination (we have no objection to that evidence being given by phone)?"
(4) The Tribunal notes, the advice provided by counsel for the Respondent at the hearing today, that it has not been possible to contact Dr Bench because he has been on leave.
(5) Direction: Should the Respondent wish to take advantage of the invitation to have Dr Bench provide the updated report, dealing with the subject requested, he may obtain and provide such a report, at his own expense, within a period of 14 days from the date hereof (or such longer period as the parties may agree or the Tribunal determine). The report, if it is obtained by the Respondent, is to be provided to both the solicitor for the HCCC and to the Tribunal.
(6) In the event of the HCCC receiving such report, as directed herein, AND in the event that the HCCC seeks to ask questions of Dr Bench about his report, then the HCCC is to notify the Tribunal and the Respondents' solicitor of such request. The Tribunal will thereupon make further directions for the matter after hearing from the parties.
(7) In the event of a report being provided by Dr Bench, each party is to provide to the Tribunal, within seven (7) days of receipt of same, any further written submission which flows from the report.
…
[2]
The Complaint
The complaint is contained in the Amended Complaint document, tendered in the hearing and marked as exhibit A1.
The Complaint document contained the following background information, which is not the subject of dispute.
BACKGROUND TO ALL COMPLAINTS
In 2007, the practitioner graduated with a Bachelor of Medicine from the University of Newcastle. On 18 June 2009, he was registered as a Medical Practitioner in New South Wales.
In late 2012, the practitioner secured a fellowship of The Royal Australian College of General Practice (RACGP) within the rural training scheme. In July 2017, the practitioner was vocationally de-registered, as he was unable to pass the Applied Knowledge Test (AKT) component of the fellowship on three and within the four year time limit.
In around about mid-2017, the practitioner commenced work as the Director of Heartwood Recovery at The Heights Medical Practice (the Medical Practice). Heartwood Recovery delivers medical WorkCover services to psychologically injured workers. The practitioner specialised in WorkCover management as a Nominated Treating Doctor.
On or about May 2017, Patient A, a 38 year old female, commenced a claim for workers compensation for psychological injury suffered in the course of her employment as a police officer with the NSW Police Force (NSWPF).
On 6 June 2017, Patient A first consulted Heartwood Recovery psychologist, Psychologist A, at the Medical Practice. Psychologist A, who was also the practitioners' business partner, assessed Patient A and provided her with a referral to see the practitioner for WorkCover management.
On 7 June 2017, Patient A consulted with the practitioner. The practitioner provided her with a WorkCover Certificate of Capacity (WCCC), listing himself as her treating practitioner for WorkCover purposes. The practitioner continued in this role until about 25 January 2019, being the date of the last consult.
In August 2018, Patient A was medically discharged from the NSWPF on the basis of post-traumatic stress disorder (PTSD) with chronic depression.
The Senior Members of the Tribunal pointed out that to the extent the "Background To All Complaints" suggested that the respondent had obtained a fellowship of The Royal Australian College of General Practitioners (RACGP), that was not correct. However, counsel for the HCCC informed us that it was only a reference to a program that the respondent had joined as a graduate and was not intended to convey that he had qualified for that fellowship.
The Complaint document contains six separate complaints. Most of the complaints and the particulars for each are admitted by the respondent. However, in the Reply document filed by the respondent and contained in exhibit R1, the respondent set out each of the complaints, as appearing in the Complaint document, and underneath each particular set out his response.
In his Reply document the respondent admits he is guilty of unsatisfactory professional conduct under s 139B(1) of the Health Practitioner Regulation National Law (NSW) (the National Law), is guilty of professional misconduct under s 139E of the National Law, and that he is not competent to practice within the meaning of s 139 of the National Law.
The following complaints and particulars to each are admitted by the respondent.
COMPLAINT ONE
is guilty of unsatisfactory professional conduct under section 139B(1)(l) 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
1. Between about 27 March 2018 and about 11 February 2019, the practitioner breached proper professional boundaries in that he inappropriately contacted Patient A by telephone and text message for a non-therapeutic purpose.
a) Between 27 March 2018 and 11 February 2019, the practitioner made 266 outgoing calls to Patient A's mobile phone number (92 of those calls were answered, 81 of those call were not answered and 93 of those calls were forwarded to voicemail).
b) Between 27 September 2018 and 21 May 2019, Patient A made 63 outgoing calls to the practitioner (43 of those calls were made to his mobile phone number, of those 27 were answered; and 20 of those calls were made to the landline phone number of his practice, of those 17 were answered).
2. On 31 May 2018, during a consultation, the practitioner engaged in inappropriate intimate contact with Patient A by kissing her.
3. Between about June 2018 and about January 2019, the practitioner engaged in an inappropriate personal and sexual relationship with Patient A, in circumstances where the practitioner was in a therapeutic relationship with Patient A.
4. From about June 2018 to about January 2019, the practitioner failed to cease the professional relationship and arrange for Patient A to be referred to another treating medical practitioner for management of her WorkCover claim.
(The respondent denied Particular 5. We will refer to this later in these reasons.)
6. By his conduct in particulars (1) to (4), the practitioner breached the Medical Board of Australia's Guidelines - Sexual Boundaries in the doctor- patient relationship, dated December 2018.
COMPLAINT TWO
is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has:
i. engaged in conduct that demonstrates the knowledge or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
PARTICULARS OF COMPLAINT TWO
1. On or about 8 September 2017, during a consultation, the practitioner performed an inappropriate and inadequate skin check of Patient A's back in circumstances where:
a) Patient A had not requested a skin check;
b) the practitioner did not take steps to ensure Patient A's privacy by enabling her to disrobe in his absence and offering her a gown or sheet;
c) the practitioner stood behind Patient A, with her dress unzipped, he pulled her dress away from her body and looked down her back whilst she was still wearing her bra and dress.
(The respondent's reply to Particular 1 is: "The Respondent does not admit the date alleged in this particular and denies sub particular a. The Respondent otherwise admits this particular.")
2. Between about 7 July 2017 and about 25 January 2019, during a consultation, the practitioner failed to perform and monitor mood screeners such as a Depression Anxiety Stress Scales (DASS) score and PTSD screener for a baseline assessment.
(The respondent's reply to Particular 2 is: "The Respondent admits this particular, but denies that his failure to do so was inappropriate. The Respondent says Patient A's mood was being monitored by her treating psychologist during the period alleged." The respondent denied Particular 3.)
4. On 25 October 2018, during a consultation, the practitioner, against medical advice provided to Patient A, discouraged Patient A from undertaking an MRI for further examination of a Bartholin Cyst, and said words to the effect of, "just keep taking meds".
(The respondent denied Particulars 5 and 6 to this complaint.)
COMPLAINT THREE
is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has:
i. contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 (the 2016 Regulation).
PARTICULARS OF COMPLAINT THREE
1. The practitioner failed to maintain clinical records for his care and treatment of Patient A, contrary to Sch 4, cl 1(2)(a) of the 2016 Regulation for professional consultations at the Medical Centre on the following dates:
a) 7 June 2017;
b) 14 June 2017;
c) 18 September 2017;
d) 31 January 2018;
e) 25 January 2019.
(The respondent's reply to Particular 1 is as follows: "The Respondent does not know and cannot admit whether he had a professional consultation with Patient A on the dates alleged in this particular. The Respondent admits there are no medical records for consultations with Patient A on these dates in the records produced in response to the Notice to Produce. The Respondent says he was aware of issues with the computer software used by the practice for medical records and he would regularly have difficulty saving patient notes and retrieving data in the form of letters and requests.")
2. The practitioner failed to document information known to him, relevant to Patient A's diagnosis or treatment, contrary to Sch 4, cl 1(2)(a) of the 2016 Regulation, including:
a) between about 7 July 2017 and about 11 January 2019, sufficient information concerning Patient A's medical history;
b) on or about 8 September 2017, that he had conducted an examination of Patient A's skin for possible melanoma;
(The respondent in his Reply admits there was no record for that date however he said: "The Respondent does not know and cannot admit the date the examination was performed.")
c) on 6 October 2017, that he had referred Patient A to a gynaecologist for a pap-smear examination and ordered blood tests;
(The respondent in his Reply document admits there is no record. He asserts he did make the referral however he is unable to say when that was.)
d) on 6 December 2018, information concerning Patient A's request to have a STI test ordered as part of the blood works ordered.
(The respondent in his Reply document admits there is no record. He asserts Patient A did make the request however he is unable to say when that occurred.)
COMPLAINT FOUR
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, 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.
PARTICULARS OF COMPLAINT FOUR
1. Complaints One, Two, and Three and the particulars thereof are repeated and relied upon individually and cumulatively.
(The respondent in his Reply document said: "The Respondent makes the same admissions to the particulars as are made above.")
COMPLAINT FIVE
has an impairment within the meaning of section 5 of the National Law, being a mental impairment, disability, condition or disorder, which detrimentally affects or is likely to detrimentally affect his capacity to practise medicine.
PARTICULARS OF COMPLAINT FIVE
1. The practitioner suffers from an impairment, namely, Major Depressive Disorder, Recurrent with Melancholia, and Complex Post Traumatic Stress Disorder.
2. In February 2019, the practitioner was treated at hospital for an episode of self-harm.
COMPLAINT SIX
is not competent to practice, within the meaning of 139 of the National Law, the practitioner's profession, contrary to section 144(c) of the National Law.
PARTICULARS OF COMPLAINT SIX
Particulars of Complaint five are repeated and relied upon.
(The respondent in his Reply document said: "The Respondent makes the same admissions and denials to the particulars as are made above.")
The practitioner's impairments are of a sufficient nature and degree to impair the practitioner's mental capacity to practise the profession.
The respondent in his Reply document denied Particular 5 to Complaint One. Those particulars are as follows:
5. On or about the following dates, the practitioner made the following inappropriate comments to Patient A:
a) on 7 June 2017, he shouted words to the effect of, "you're not cut out to be a copper, your empathy isn't suited for the police force", and yelled, "you need to find another career, you need to admit the police force isn't suited to you";
b) on 8 September 2017, in the presence of an occupational therapist, words to the effect that Patient A was, "too dumb for university" and that "she wasn't bright enough," and needed to consider just "doing hairdressing in [her] shed";
c) on 9 March 2018, words to the effect of, "let's live together, you meet my boys and be my wife";
d) on or about May 2018, words to the effect of, "I'm attracted to you and I'm guessing it's not the same for you";
e) on 31 May 2018, words to the effect of, "nice breasts", and "I really want to kiss you";
f) on or about June 2018, upon making a pact with the patient, words to the effect of, "if you die, I die too";
g) on 12 January 2018, read the content of his medical record aloud, stating words to the effect of, "no rapport established, no therapeutic relationship";
h) on 13 December 2018, when she told the practitioner that she wanted to consider having a child through in vitro fertilization, words to the effect of, "you've got that much rage issues that you're likely to shake it [a child] to death";
i) on 25 January 2019, when she requested her blood test results in order to obtain a second opinion, words to the effect of, "you need to get it through your head that you'll never be a mum and you need to give that up, it's just never going to happen";
j) between about June 2018 and about January 2019, words to the effect that she would lose her workers' compensation and become homeless if she ever disclosed their personal and sexual relationship.
In relation to Particular 5(a). the respondent said:
"The Respondent denies he shouted at Patient A and denies that he said the exact words as alleged in this particular. The Respondent admits that during the course of his discussions with Patient A over many consultations, he did express the opinion to Patient A that she was not cut out to be a police officer and that the police force was not suited to her as a profession."
In relation to Particular 5(d) above, the respondent said:
"The Respondent admits this particular. The Respondent says the comment was made in the context of a general discussion with Patient A about his positive transference toward her and the need for her to start seeing a new general practitioner."
In relation to Particular 5(e) above, the respondent said:
"The Respondent denies that he said 'nice breasts'. The respondent admits saying to Patient A 'nice dress'."
In relation to Particular 5(g) above, the respondent said:
"The Respondent denies the date alleged in this particular but otherwise admits the particular. On the basis of information recorded in Patient A's medical records, the Respondent says the comment was made on 12 January 2018."
In relation to Particular 5(h) above, the respondent said in his Reply document:
"The Respondent denies this particular. The Respondent admits having a discussion with Patient A during a consultation regarding the stressors of child rearing as a single parent with poor mental health. The Respondent made a comment that it is stressful to the point that some new parents shake their own child."
The respondent otherwise denied the content of Particular 5.
[3]
The evidence relied upon by the HCCC
The HCCC relied upon a significant number of documents (32 in number). We will refer in these reasons to those documents which we have given the greatest weight to in terms of assessing and weighing the evidence in this case.
[4]
Evidentiary certificate
In the Evidentiary Certificate provided by Ahpra & National Boards, the history of the registration of the respondent as a "Medical Practitioner - General" is stated. He was first registered on 18 June 2007. He was suspended between 14 June 2019 and 13 October 2020. His registration ceased on 20 October 2020. The respondent is currently an unregistered medical practitioner.
[5]
Patient A's statements
On 12 September 2019 Patient A made a statement for the HCCC. The statement is lengthy (261 numbered paragraphs). We set out the evidence we have noted from that statement as follows.
Patient A is now 42 years of age.
In August 2018 she was discharged from her employment. She said she was suffering from PTSD with chronic depression. Some of the events Patient A says lead to her PTSD included bullying and sexual harassment in her workplace.
Patient A commenced treatment with the respondent in June 2017.
Patient A said "I do have issues with recalling things and often forget things which means I have to write things down."
In her first consultation with the respondent, he became angry. Patient A said she wanted to return to her work. The respondent said: "you're not cut out to be a copper, your empathy isn't suited for the police force." The respondent raised his voice and yelled: "you need to find another career, you need to admit the police force isn't suited to you." Patient A became distressed and was crying however the respondent didn't stop yelling at her. There was no physical examination conducted by the respondent.
On 14 June 2018 in a consultation with the respondent, he had commented on her physical appearance, recommending particular clothing (more feminine), and her hair colour, recommending she colour her hair blonde.
On 29 August 2017 the respondent had yelled at her in a consultation. The respondent also commented upon the way she had dressed.
On 5 September 2017 the respondent had examined Patient A for skin lesions. There was no curtained area for examination. The respondent removed part of Patient A's clothing so he could see her back. Patient A did not feel "very comfortable" with that examination.
On 8 September 2017, whilst in consultation with the respondent Patient A had expressed a desire to return to university. The respondent said she was "too dumb for university" and "wasn't bright enough" and should consider "doing hairdressing in your shed or some other trade." That distressed Patient A, who was crying and left the consultation. That was said in the presence of another person who had participated in the consultation.
On an occasion after 19 September 2017, the respondent had sent Patient A a text message containing a picture of himself.
On 6 October 2017 during a consultation the respondent asked Patient A to take his blood pressure.
In a consultation on 17 October 2017, the respondent said to Patient A: "you make me blush a lot".
On 1 December 2017 in a consultation the respondent had said to Patient A that she was "hiding something from him, a secret". This distressed Patient A.
In a consultation with Patient A on 15 December 2017, the respondent had written in a report about Patient A the words "no rapport established, no therapeutic relationship."
On 9 March 2018 the respondent said to Patient A in a consultation, "lets live together, you meet my boys and be my wife."
In about April 2018 the respondent began texting Patient A to her private phone.
In early May 2018 in a consultation, the respondent said to Patient A "I'm attracted to you and I'm guessing it's not the same for you". Patient A responded "well, I am attracted to you." The respondent gave Patient A a hug on that occasion.
On 31 May 2018, in a consultation the respondent said to Patient A "nice breasts" and "I really want to kiss you". Patient A sat on the respondent's knee and they kissed. After kissing the respondent then felt Patient A's breasts on the outside of her clothing. He attempted to unzip her pants. Patient A objected. The respondent said: "get on the bed". Patient A declined. Patient A said she could see the respondent had an erection.
Between 31 May 2018 and 8 June 2018, the respondent and Patient A exchanged text messages.
On 8 June 2018, the respondent attended at the home of Patient A and they engaged in consensual sexual intercourse.
On 25 June 2018, the respondent attended at Patient A's residence, distressed and threatening to kill himself in different ways. Patient A became distressed because of the circumstance and attempted to stop the respondent leaving her premises for fear he would carry out his threat. The respondent and Patient A engaged in sexual intercourse and the respondent appeared calm when he left.
During some of the consultations following 8 June 2018, the respondent sometimes hugged Patient A, held her hand, rubbed her leg, or placed her hand on his leg/thigh.
Patient A records that on five occasions in July and two occasions in August 2018, the respondent attended at her residence and they had sexual intercourse.
The respondent and Patient A continued to text each other in August and September 2018. On 10 and 19 September 2018 they had sexual intercourse at Patient A's residence.
On 20 September 2018, whilst Patient A attended upon the respondent for a consultation, he touched her by hugging and hand holding.
On 8, 13 and 29 October 2018, the respondent attended at the residence of Patient A and they had sexual intercourse. On 13 October 2018 during sexual intercourse, Patient A told the respondent she was in pain. On 29 October 2018, Patient A said the intercourse was very painful for her. At that time the respondent knew of her pain and had diagnosed her as having a Bartholian Cyst.
On 18 October 2018, the respondent examined Patient A in relation to pain in her abdomen. He also attempted an internal examination and was stopped by Patient A.
On 14, 22 and 27 November 2018, the respondent attended Patient A's residence and they had sexual intercourse. On 27 November it was very painful for Patient A.
On 13 December 2018, Patient A consulted with the respondent. She asked him about a referral for IVF treatment in order to have a child. He responded "you've got that much rage issues that you're likely to shake it to death."
On 17 December 2018, the respondent attended at the residence of Patient A and they had sexual intercourse.
On two occasions Patient A attended at the respondent's residence and she and the respondent had sexual intercourse.
On 5, 9, 13 and 22 January 2019, the respondent attended at the residence of Patient A and they had sexual intercourse.
On 25 January 2019, during a consultation the respondent said to Patient A "you need to get it through your head that you'll never be a mum and you need to give that up, it's just never going to happen."
On 11 February 2019, the respondent told Patient A in a telephone conversation that "I also tried to kill myself with Panadol".
On one occasion the respondent said to Patient A "let's make a pact, if you die, I die too" after they had sexual intercourse.
On 26 April 2019, the respondent met Patient A at a hotel. He told her he had "turned himself in to the Medical Board". He said he had divulged that he only had sexual intercourse with Patient A on two occasions.
On that occasion, the respondent told Patient A: "We need to get our story straight about the months when this all happened, the two times I mean". Patient A also agreed to meet the respondent once a week at his request at a named venue.
On a couple of occasions, during the period Patient A was a patient of the respondent, he asked her to "get on the bed" in his consultation room and they then kissed. Patient A cannot recall the exact dates.
The HCCC relied upon a further statement by Patient A dated 26 November 2020. In that statement we note the following was said.
During the course of her sexual relationship with the respondent, he sent her text messages which sometimes included photographs/videos. The photographs/videos were of the respondent masturbating, images of his penis, images of the inside of his home, images of his children and other photos of the respondent.
Patient A attached copies of text messages and screen shots of documents sent to her by the respondent.
[6]
Report of Dr Young
The HCCC relied upon the expert evidence of Dr Simon Young. He is a GP who also holds a FASPsychMed qualification. There is no challenge to his qualifications or to his reports of either 8 March 2020 or 13 March 2020.
We have read the report of Dr Young. Given that the complaints are conceded to have been established, with only some of the particulars the subject of dispute, we have noted the following matters to help inform us in this matter.
Dr Young was provided with background information and documents which he set out at the beginning of his report.
Having read the documents, Dr Young said that in respect of the personal relationship conducted between the respondent and Patient A, each give different versions which included differences as to the number of times there was sexual contact between them and also the extent of the care and treatment provided by the respondent to Patient A beyond her diagnosis of PTSD.
In relation to the respondent's qualifications and the question of whether he was suitably qualified to treat Patient A for PTSD, Dr Young opined the respondent was suitably qualified to treat Patient A in the context of her WorkCover claim. He opined that the respondent had not conducted adequate investigations or made appropriate referrals for specialist assessment/treatment for Patient A. He opined that although this was below the standard it was not significantly below the standard.
In response to the allegation of Patient A that the respondent had, on 7 June 2017 and 8 September 2018, angrily commented "you're not cut out to be a copper, your empathy isn't suited for the police force" and that Patient A was "too dumb for university", that she "wasn't bright enough" and needed to consider just "doing hairdressing in her shed", Dr Young opined the respondent's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct. The departure from the standard, he said, invites his strong criticism.
In relation to statements Patient A says were made by the respondent to her, such as, on 9 March 2018: "let's live together, you meet my boys and be my wife."; in around May 2018: "I'm attracted to you and I'm guessing it's not the same for you."; and on 31 May 2018: "nice breasts" and "I really want to kiss you", Dr Young said the statements were in clear contravention of the Medical Board of Australia's (the Medical Board) "Sexual Boundaries: Guidelines for Doctors". It was a departure from the standard and invites his strong criticism. Also, the Guidelines outline that "in managing sexual boundaries a doctor should be aware that: sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire."
Dr Young made the same strong criticism of the respondent kissing Patient A.
Dr Young was strongly critical of the volume of phone calls and text messages between the respondent and Patient A. Dr Young said the Medical Board's "Good Medical Practice: A Code of Conduct for Doctors in Australia" outlines "never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care."
The respondent's failure to end the doctor patient relationship with Patient A around August 2018 drew Dr Young's strong criticism, as did the respondent's continuing sexual relationship with Patient A over an eight month period.
The opinions of Dr Young, as above set out, were based upon accepting the evidence of Patient A where there was any difference between Patient A and the respondent on a particular fact, about which, Dr Young's opinion was sought.
There were other aspects of the respondent's treatment of Patient A which were medical matters and Dr Young was asked to give his opinion. He was strongly critical of the respondent when he told Patient A she did not need an MRI to investigate her abdominal pain and other gynaecological symptoms. He had said to her "Just keep taking the meds". Likewise, he was strongly critical of the respondent, based upon Patient A's version of events, when she reported symptoms via text message, including unusual clots, intense breast pain and a longer menstrual cycle. She said the respondent had normalised the symptoms as being due to her age. Dr Young said a thorough history should have been taken, possibly a physical examination, and imaging and blood tests ordered.
Dr Young was strongly critical of the respondent in relation to statements made by him to Patient A about the possibility of her becoming a parent. Statements reported by Patient A included "You've got that much rage issues that you're likely to shake it [a child] to death."
Dr Young was asked to view the medical records the respondent had made for Patient A. Having viewed the records he opined: "it is my opinion that Dr Peck's documentation of his treatment of Patient A failed to comply with the legislative requirements for medical records."
[7]
Transcript of s 150 hearing
The HCCC relied upon the transcript of evidence given by the respondent on 14 June 2019 during the s 150 hearing conducted by the Medical Council. We have read that transcript and we note the following evidence of the respondent.
The respondent set out his academic and employment history from completing school until 2002 when he commenced a degree in medicine at the age of 34. He graduated in June 2007.
In 2009 the respondent commenced working at a private clinic in psychiatry. His position was akin to that of a psychiatry registrar, yet not accredited. He worked there for three years.
In the latter half of 2012, the respondent commenced training for accreditation as a GP.
He last sat exams for accreditation as a GP in October 2017.
The respondent explained that in about February 2018 he commenced seeing patients who were on WorkCover. He was paid by WorkCover for the services he provided. Further, because he was unable to charge for non-WorkCover medical work, he provided such services for free.
From the time the respondent commenced seeing Patient A, he said it took a year for him to gain her confidence. He saw her monthly from late 2017. He found her very attractive.
Because he felt he was not achieving any improvement in her condition he suggested she see another practitioner. He said she was very reluctant to do that. He thought that was in September 2018. He also concluded at that time that he was suffering from the same condition as Patient A, namely PTSD.
In about late August 2018, during a consultation, Patient A said to the respondent "Why won't you just let me in?" She then moved and sat on the respondent's knee and kissed him. He reciprocated and they kissed and hugged.
The respondent said he had met Patient A at the university and that is where they "had sex".
After the event where Patient A sat on his knee and they kissed, the respondent said he had told her she had to change doctors; however, he said she refused to do that. There was no physical contact between the respondent and Patient A in his consultation room after that one event.
Patient A had accused the respondent of having an affair with another patient and she said that was the reason he would not have a relationship with her.
The respondent had met Patient A at the university in an unarranged way. She had suggested they talk in a quiet place. He thought that would be an opportunity for him to tell her their relationship as doctor and patient was to end. They talked in the "parents' room" and "ended up having a physical relationship." He did not initiate "the sex" they had on that occasion. After that he continued to see her weekly.
That event occurred about 18 months after she had commenced consulting him.
The respondent said he did not physically examine Patient A in his rooms at any time, other than in his initial consultations with her.
The respondent told Patient A he could not be in a relationship with her after their sexual encounter in the university parent's room.
The respondent met Patient A five or six times after the first sexual encounter. They met outside of his consulting rooms.
The respondent said that he had sexual intercourse with Patient A on only two occasions.
The respondent intimated that he had never been to Patient A's residence.
The respondent said that in February 2019 he had telephoned Patient A and said "That is it. I'm done not just with you but I'm done with the whole gig."
On the first occasion he and Patient A had sexual intercourse he did not take any precautions (protection from pregnancy or STIs). On the second occasion he insisted that a condom be used.
The respondent saw Patient A for the last time on or around 10 January 2019.
The respondent had texted with Patient A however he blocked her number in February 2019.
The respondent said that in January 2019 he took an overdose of paracetamol.
As best he could recall the last time he saw Patient A outside of his consulting rooms was mid-January 2019.
In early February 2019 the respondent said he confided in his wife what had occurred with Patient A. He was admitted to hospital thereafter on about 7 or 8 February 2019.
The respondent's last contact with Patient A was on one occasion between 6 February and 14 February 2019. He said he spoke to her to express his "sincere regret and to ask her to look for someone. I apologised for breaching her trust and stated that I was unable to… I was apologetic for harming her as a patient." Patient A was in New Zealand at the time.
The respondent confirmed when it was put to him by the Medical Council delegate that his evidence to the s 150 panel was that the inappropriate relationship was for a period of five months only, during which they had sexual intercourse on two occasions. It started in August 2018 and concluded in February 2019.
We have particularly noted, in the above extracts from the transcript, what the respondent disclosed about his sexual and/or intimate relationship with Patient A. We do so because of the oral evidence of Dr Newnham, which we refer to hereafter.
[8]
Report of Dr Newnham
The HCCC relied upon the evidence of Dr Newnham. Her report is dated 31 May 2019 and was prepared for the s 150 hearing on 14 June 2019. Dr Newnham also gave oral evidence before us.
In her report dated 31 May 2019, we note the following:
Dr Newnham is a psychiatrist in private practice in New South Wales.
Dr Newnham met with the respondent. He told her of his relationship with Patient A and that he had terminated the relationship after two months.
In relation to the respondent's Mental State Examination, Dr Newnham opined that the respondent was "frank and forthcoming with the events surrounding his boundary transgressions." She said his thought content revealed a high degree of remorse. He did not attempt to excuse his behaviour.
Dr Newnham concluded a diagnosis of major depressive disorder, recurrent with melancholia, in partial remission. Also, complex PTSD.
Dr Newnham opined that the respondent "does meet the criteria for the Statutory definition of Impairment". She said that with active expert mental health care, "it does not appear that at the present time he has sufficiently severe symptoms of depression that would impair his ability to practice medicine in his current role."
Dr Newnham made recommendations about specific conditions which might be imposed upon the respondent should he continue to practice.
Dr Newnham gave oral evidence before us. We noted that evidence included the following:
The respondent was in partial remission when seen. Most of his issues were resolved.
Dr Newnham had been advised that Patient A asserted the relationship with the respondent had continued for eight months and not two as the respondent had told Dr Newnham. She said the respondent was absolutely adamant that the relationship had ended as he told her and at his insistence.
She said, in her experience, it is not unusual to see a lack of frankness by a patient with a psychiatrist when seeing the psychiatrist for an assessment.
If the content of the second paragraph on page seven of her report was untrue, it would negate her opinion. It would show he had no insight.
The second paragraph on page seven of Dr Newnham's report said the following:
"… He expressed a sense of total responsibility for the affair in question, and displayed a high degree of insight as to how his depressive illness had put him at risk of this transgression. He did not attempt to excuse this behaviour and nor did he place any direct blame on the administrative process involved in the truncation of his 2 chosen career paths."
The insight into his depressive illness was, it appears to us, not as clear as it could have been had the respondent been truthful with Dr Newnham about the true nature and extent of his relationship with Patient A.
Dr Newnham said she would accept the opinion of Dr Bench, psychiatrist, who had assessed the respondent in 2020. She considered that his opinion as to the ability of the respondent to be fit to practice should be considered, due to its recency, when compared to her report.
[9]
Report of Dr Bench
The respondent relied upon evidence from Dr Christopher Bench, psychiatrist. The report dated 26 February 2020 formed part of exhibit R1. The respondent's counsel informed us that there may be an up-to-date report available. We invited the respondent to provide us with that if he wished to have it considered. Following the completion of the hearing we did receive a copy of the updated report which we refer to later. The respondent was given leave to provide the report pursuant to the direction made on the final day of the hearing.
We note the following from the report provided by Dr Bench dated 26 February 2020.
His diagnosis of the respondent's mental health was PTSD and major depressive disorder, in remission.
He set out the symptoms suffered by the respondent, as reported to Dr Bench by the respondent. The most concerning of those symptoms for us was the attempt at suicide by the respondent and suicidal ideation as recently as February 2019.
Dr Bench described the continuing symptoms experienced by the respondent. The symptoms reported by the respondent include: "he continues to have trouble maintaining his weight… His depressive symptomatology is now in remission. His nightmares have improved, such that he continues to have occasional nightmares. He remains somewhat stressed. He continues to engage in a lot of avoidance. He continues to episodically use alcohol at a level known to be hazardous to one's physical and mental health. … He noted ongoing difficulties with regard to lethargy."
Dr Bench opined that the respondent's mental health conditions have had a significant negative impact upon his personal and professional judgment.
[10]
Guidelines
The HCCC tendered and had marked as exhibit A3 the Medical Board Guidelines: "Sexual Boundaries in the Doctor-Patient Relationship". The guideline sets out the full spectrum of obvious and not so obvious circumstances which would breach the guidelines in respect to relationships between medical practitioners and their patients. A clear breach of the guideline is the conduct of a sexual relationship between a patient and his/her treating medical practitioner.
[11]
The HCCC's submissions
The HCCC provided an extensive outline of its submissions, which document was marked for identification as MFI-2.
In its submissions the HCCC sets out the orders it is seeking. Those orders are as follows:
Proposed orders
1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW) (National Law), decide that, if the Respondent were still registered as a medical practitioner, the Tribunal would have cancelled his registration.
2. Pursuant to s 149C(4)(b) of the National Law, the Respondent is disqualified from being registered in the medical profession for a period of six years.
3. Pursuant to s 149C(4)(c) of the National Law, the Medical Board of Australia is required to record the fact that the Tribunal would have cancelled the Respondent's registration in the National Register kept by the Board.
4. Pursuant to s 149C(5) of the National Law, the Respondent is prohibited from providing health services permanently.
5. Pursuant to s 149C(7) of the National Law, an application for review of orders 2 and 4 may not be made until after six years from the date of these orders.
6. Pursuant to cl 13(1) of Sch 5D of the National Law, the Respondent pay the Commission's costs of the proceeding, to be assessed if not agreed.
In addition to the above set out orders the HCCC sought an order that the names of Patient A and the psychologist who was treating Patient A (identified in the evidence) not be published.
The use of the word "permanently" in proposed order 4 caused us some concern which we raised with the HCCC. As a result of exchanges between us and the parties, we made the following directions at the conclusion of the hearing, relating to the use of that word in that manner.
(2) The legal representatives for each of the parties are to confer for the purposes of endeavouring to reach agreement about the wording of an order, sought by the HCCC as order 4 in its written submission, and if agreed, provide to the Tribunal, within 14 days, a minute of same. If no agreement can be reached, then, within that 14 day period, each is to provide their own proposals for the wording of that order, if it is to be made, which, if possible, does not contain the word "permanent".
The submission of the HCCC supports its case that the Tribunal will decide that it would have cancelled the respondent's registration if he were still registered and impose a disqualification period of six years. It is noted the HCCC also seeks an order for the respondent to pay its costs.
The outline of submissions was prepared at a time when the respondent had not advised the extent to which he would dispute the Complaint brought by the HCCC before the Tribunal. It therefore included a large amount of detail which became redundant when the respondent set out his position.
The submission set out matters relating to the history of the respondent's interaction with the Medical Council and the s 150 hearing under the National Law. The outcome of the hearing was an order suspending the registration of the respondent. The respondent then did not renew his registration, which lapsed on 20 October 2020.
The HCCC annexed to its submission and marked same with the letter "B", a summary of the respondent's Reply document and the relevant evidence of the HCCC in relation to each of the complaints in the Amended Complaint document and the particulars attached to each complaint.
The HCCC points out that Complaint Four is a complaint of professional misconduct arising from Complaints One to Three. That complaint is admitted. Complaints Five and Six are also admitted and most of the particulars of Complaints One to Three.
The HCCC addressed the disputed or not admitted particulars in the Complaint document arising as a result of the Reply filed by the respondent.
The disputes arise because the respondent has responded to the particulars by saying he did not admit or that he denied the particular addressed. The denial or non-admission arises because the respondent has not agreed with an allegation made by Patient A.
The HCCC submits there are six reasons why the Tribunal would accept and/or prefer the evidence of Patient A to the evidence of the respondent where there is a contest between them. We here include that part of the submission of the HCCC, omitting footnotes.
"First, Patient A has given a very detailed and comprehensive account of the events that have occurred between her and the Respondent. Key parts of that account and its general chronology are corroborated by other documents, including Patient A's initial complaint to the Medical Council, clinical notes, and text messages with the Respondent. It is apparent from her statement that Patient A was in the habit of keeping contemporaneous iPhone notes of her interactions with the Respondent, which she used in preparing her statement.
Second, the Respondent has indicated that he does not wish to cross-examine Patient A. The Respondent had previously stated to the Commission that he does not wish to refute anything Patient A had said to the Commission, and that he could not deny the truth of the complaint. This is not a case in which there are inherent inconsistencies or illogicality in Patient A's evidence.
Third, the Respondent has indicated that he will not attend the hearing and accordingly will not submit to cross-examination.
(We note he did not attend the hearing having advised through his solicitors before the hearing that he would not attend.)
Fourth, the Respondent has not been forthcoming with authorities about the full extent of his relationship with Patient A. For example:
(a) at the time of his hospitalisation in February 2019, he told hospital staff that his affair with Patient A had lasted five months, and that it ended towards the end of 2018;
(b) the Respondent told Dr Bench and the Medical Council that he had sex with Patient A on only two occasions;
(c) the Respondent told the Medical Council that his relationship with Patient A did not start until 'late August [2018] or somewhere there', and told the Commission that it did not start until September;
(d) the Respondent did not disclose his ongoing contact with Patient A to the Medical Council or Dr Newnham, and was telling the Commission in May 2019 that he had terminated the relationship with Patient A because he was feeling shame and guilt; and;
(e) the Respondent told the Medical Council that Patient A initiated the kiss on 31 May 2018 and made a 'physical play' for him, when he now accepts Patient A's account of that consultation.
Fifth, Patient A gives an account, with which the Respondent agrees, of the Respondent trying to procure her to lie about how often they had had sex, and threatening that her workers' compensation would be cancelled. That is highly discreditable conduct.
Sixth, there is evidence aside from Patient A's account that supports many of the disputed or not admitted particulars. For example:
(a) in relation to complaint 1, particulars 5a) and h), the Respondent admits to making similar statements to those alleged by Patient A;
(b) in relation to complaint 1, particular 5c), there is evidence of the Respondent and Patient A texting on several occasions about his children and the Respondent sending Patient A photos of them (although at later dates);
(c) in relation to complaint 1, particular 5e), Patient A's evidence is that she was wearing apricot-coloured pants on 31 May 2018, and there is evidence of the Respondent texting a comment about her breasts (at a later date);
(d) in relation to complaint 1, particular 5f), there is evidence of the Respondent texting Patient A about the possibility of him dying or killing himself and having nothing to lose;
(e) in relation to complaint 1, particular 5g), similar words to those Patient A says the Respondent wrote and read to her appear in her clinical notes;
(f) in relation to complaint 1, particular 5j), the Respondent admits to making similar statements to Patient A in April 2019;
(g) in relation to complaint 2, particulars 3 and 4, the expert opinion of Dr Simon Young supports the complaint that the Respondent's treatment of Patient A in relation to these matters was significantly below the expected standard;
(h) in relation to complaint 2, particulars 5 and 6, the Respondent's evidence is not supported by Patient A's clinical records; and
(i) in relation to the particulars of complaint 3, the not admitted dates are supported by the dates of WorkCover certificates signed by the Respondent and Patient A, and by invoices issued by the Respondent, as set out in Annexure B.
In these circumstances, the Respondent's evidence about the disputed matters should be given little weight, and Patient A's evidence should be preferred. The Tribunal should be comfortably satisfied that the disputed and not admitted matters are proved."
The HCCC submits that even if the disputed particulars were not found to be established, those which have been admitted are clearly capable of supporting findings that the respondent's conduct establishes the complaints made pursuant to ss 149C(1)(a) and (b) of the National Law.
We have considered those submissions and had regard to the evidence which was referred to in the footnotes. We do accept those submissions and we do, in this case, prefer the evidence of Patient A to that of the respondent.
Although the Rules of Evidence do not apply to hearings in the Tribunal (s 38(2) of the Civil and Administrative Tribunal Act (2013) (NSW)), the underlying principles relating to procedural fairness and natural justice do apply. When the circumstances of this case are seen through that lens, we are left with the conclusion that the evidence of Patient A is to be preferred to that of the respondent. Patient A was available throughout the hearing. She was available to be questioned/cross-examined upon her statement, should those acting for the respondent have chosen to do so. Clearly counsel for the respondent was under instruction not to cross-examine Patient A. As stated earlier, as a somewhat unusual circumstance of this hearing, counsel for the respondent delivered, on behalf of the respondent, a heartfelt apology to Patient A, at the conclusion of the hearing, for the harm he had perpetrated upon her.
The HCCC submitted that:
"Two of the grounds on which the Tribunal may suspend or cancel a practitioner's registration (or decide that it would have done so) are that:
(a) the practitioner is not competent to practise their profession (National Law s.149C(1)(a)) or
(b) the practitioner is guilty of professional misconduct (National Law s.149C(1)(b)).
The Respondent has admitted both of these matters. The Commission relies on each of them as grounds for the Tribunal to decide it would have cancelled the Respondent's registration, as a medical practitioner, if he had still been registered.
If the Tribunal decides to suspend or cancel (or that it would have suspended or cancelled) a person's registration, it may also make a prohibition order, which prohibits the person from providing health services or specified health services for a specified period or permanently (s.149C(5) or (5A) National Law) The Tribunal may only do so if it is satisfied that the person poses a substantial risk to the health of members of the public.
The Tribunal may also impose a non-review period, during which time an application for review of the relevant order may not be made under Division 8 of the National Law."
The HCCC also provided oral submissions at the conclusion of the hearing. In that submission the HCCC said that even if the findings by the Tribunal were confined to clear admissions by the respondent, the protective orders sought by the HCCC would still be the appropriate orders to make. We note that submission was the subject of concession by the respondent's counsel.
One of the matters, which was a particular focus of the submission, was the action of the respondent in seeking to have Patient A fabricate the extent of their relationship. The evidence provided by Patient A in her statement clearly shows that the respondent was attempting to draw her into a conspiracy to report that there were only two acts of sexual intercourse between them and that the respondent did not visit Patient A at her home. That, the HCCC submits, compounds the misconduct of the respondent. The HCCC submitted it was important to make findings about matters of integrity as, should the respondent seek re-registration, at a future time, the Tribunal would need to test his suitability.
To the extent it is necessary, we do find that the respondent attempted to have Patient A corroborate his attempt to mislead the Medical Council and others, about the frequency they had engaged in sexual intercourse. Whether that action was driven by the respondent's mental health condition at the time was not the subject of expert evidence before us.
The HCCC was asked by the Tribunal members to justify the submission that the respondent should be prevented from applying for re-registration for a period of six years from the date of the Tribunal orders.
The HCCC submitted that the complaints against the respondent involved professional misconduct and practitioner incapacity. Those complaints, if accepted as established, raise serious matters of public health and safety. The misconduct must be seen as being at a high level. That a medical practitioner would impose himself onto a patient in an amorous and then sexual manner attacks the public confidence which can be held for members of the medical profession. Medical practitioners hold a unique place under law in Australia and in Australian cultural mores.
It is further submitted that the particulars of the offences by the respondent are compounded by the fact that the respondent knew Patient A was a vulnerable person suffering severely from mental illness in the form of PTSD.
The HCCC also submitted there should clearly have been a referral by the respondent for Patient A to have her gynaecological symptoms investigated by a specialist medical practitioner. Although Dr Young stated that the respondent was qualified to examine Patient A for gynaecological symptoms, the question of competence to do so was still a question to be answered.
The HCCC was asked by the Tribunal to justify the request that the respondent be permanently prevented from making another application to be registered as a health practitioner. The HCCC submitted that apart from registration as a medical practitioner, the respondent could obtain qualifications and registration in another health occupation which would not require the oversight of the Tribunal as to his fitness and suitability.
As stated earlier the Tribunal made orders/directions on 12 April 2021. Those directions are reproduced at [14] and [52]. The Tribunal also reserved judgment and directed the respondent to provide any submission sought to be made in relation to the costs order sought by the HCCC within 14 days of the date of the orders/directions.
In response to those directions the Tribunal received a letter from the respondent's psychiatrist, Dr Bench, dated 23 April 2021. That letter provided as follows:
"You have specifically asked me to comment upon his prognosis for recovery from his condition in the future. Unfortunately, Dr Peck has a background history of trauma dating back to childhood and adolescence. He then had significant further traumatic exposures, including during his employment as a doctor. Such a significant trauma load certainly augurs a worse prognosis. He has had chronic symptoms of Posttraumatic Stress Disorder now for some decades. In this context, the projected prognosis would be one of persistent symptomatology and impairments. The goal of treatment at this point would be one of ameliorating symptomatology and maximising functioning. The chances of a full recovery are unfortunately likely low.
I have not specifically addressed the issue of returning to work as a doctor in recent times. Dr Peck has made it very clear he does not believe he would ever be capable of dealing with the stress associated with the medical profession. I have supported his decision and, in this context, have not revisited it with him in more recent times."
[12]
The respondent's submissions
The respondent provided written submissions at the commencement of the hearing. We include here some of that submission:
"…
Complaints largely admitted
5. Dr Peck accepts and admits the thrust of the complaints against him, accepts and admits that he is engaged in professional misconduct (Respondent's documents, p 1), admits that he is impaired, and, in surrendering his registration, acknowledges he is currently unfit to practice.
It was Dr Peck's disclosures which triggered the disciplinary process
6. It was Dr Peck's disclosure of the inappropriate relationship with Patient A to Dr Kitty Lo, a psychiatrist treating him at Hornsby Hospital on 20 February 2019 (not long after the relationship had ended) following Dr Peck's attempt to take his own life, which brought the relationship to the attention of AHPRA, and ultimately, led to this complaint.
7. Dr Peck self-notified that he was suffering from PTSD and depression at the same time (Respondent's documents, p 16, [105]).
8. Although he did not refer to the relationship with Patient A in his self-notification, he would have been aware (particularly given his period of training in psychiatry), that Dr Lo was obliged to notify AHPRA that he had had a sexual relationship with Patient A, and that he would thus be accountable for his conduct.
9. There is no reason to infer he with-held the information that he had an affair in his self-notification for the purpose of concealing it (and see Dr Peck's explanation at [106] of his statement; R's docs, p 16).
Dr Peck's expressed remorse is genuine
10. Dr Peck has apologised to Patient A and the Tribunal in his statement (R's docs, p 1, [3]). He has said that he feels;
'…unworthy of being a medical practitioner because of my conduct in relation to Patient A. Furthermore, I do not believe I am well enough from a mental health perspective to return to work. I do not feel strong enough psychologically to cope with the demands of working as a medical practitioner.' (R's docs, at p 18, [119])
11. There is no reason to doubt the sincerity of his apology, of the genuineness of his current belief that he is not capable of working as a medical practitioner, or the genuineness of his current position, which is that he does not intend to seek to return to practice in the future.
Dr Peck's impairment and the setting in which he was working were major contributors to his misconduct.
12. Dr Peck was extremely unwell at the time that he conducted an affair with Patient A, and remains unwell now. As his treating psychiatrist, Dr Bench, who diagnosed Post-Traumatic Stress Disorder and Major Depressive Disorder, puts it (R's docs, p 31):
'Engagement in an inappropriate sexual relationship with his patient was an extreme attempt to prompt some more positive feelings, sense of love and meaning. It is noted Posttraumatic Stress Disorder has as one of its diagnostic criteria, engaging in reckless and self-destructive behaviour. As noted above, he engaged in other self-destructive behaviour such as the suicide attempt. Similarly, at the time of this employment as a physician, he had co-morbid depressive symptoms as evidenced by his making a number of suicide attempts.
In this context there is clear evidence the patients underlying mental health conditions have had a significant negative impact upon his professional and personal judgement. Greg is the first to accept such. He has given up his medical licence due to his awareness of his failure to accord his behaviour to professional and ethical guidelines. As such, I certainly believe Greg's mental health conditions have had a significant negative impact upon his personal and professional judgement.'
13. What is clear from a consideration of the evidence Dr Peck gave at the section 150 hearing (HCCC documents, Tab 24) and the report prepared by Medical Council appointed psychiatrist Dr Kim [Newnham] in May 2020 (HCCC documents, Tab 31) is that Dr Peck's PTSD and depression made him particularly vulnerable to over-identification with his PTSD patients, while substantially impairing his judgement and self-control, in a setting where he had insufficient supervision and guidance.
14. The consequence was a highly inappropriate relationship with a vulnerable patient which was highly damaging to the patient, for which Dr Peck is deeply remorseful."
The submission of the respondent then addressed the issues of fact which were contained in the particulars identified by the respondent as not admitted in his Reply document.
At the conclusion of the submission, the respondent's counsel addressed the determination to be made by the Tribunal as to the period of time the respondent should be prohibited from applying for re-registration. We here include that part of the written submissions.
"…
IV - The period during which Dr Peck should be prohibited from seeking re-registration
45. The reports of the Dr Newnham, the psychiatrist who examined Dr Peck for the Medical Council and treating psychiatrist, Dr Bench, amply support the contention that Dr Peck suffers from an impairment.
46. This impairment went largely unacknowledged and untreated until the crescendo of events which culminated in Dr Peck's admission to Hornsby Hospital after his suicide attempt, followed by his self-notification, his notification to a treating psychiatrist, his suspension, and his request to be removed from the roll of practitioners in October 2020.
47. Dr Peck is now under the care of Dr Bench, and a treating psychologist.
48. While the Respondent does not suggest his mental health issues excuse his conduct, they go a long way to explaining it. For this reason, and because six years is a very long time, the possibility that Dr Peck could address his mental health issues sufficiently to warrant at least the possibility that he could seek re-registration suggests a shorter prohibition period would be appropriate.
49. Findings of professional misconduct, published reasons for those findings, and cancellation of registration are very significant orders in and of themselves, and send a powerful message.
50. While Dr Peck does not intend to return to medical practice, it is not appropriate to foreclose that possibility for such a long period of time. In the Respondent's submission, a more appropriate period would be half that, at three years.
51. While the Respondent acknowledges that outcomes in other matters must be approached with caution, the Respondent notes significantly shorter periods of prohibition in other cases of sexual boundary crossing (for instance, Health Care Complaints Commission v Sheehan [2016] NSWCATOD 89; 2 years, psychologist; Health Care Complaints Commission v Bergmeier [2014] NSWCATOD 75, 2 years; Health Care Complaints Commission v Huber [2017] NSWCATOD 68; 3 years, doctor).
52. Even without an order prohibiting an application for reregistration, persuading a relevant body that Dr Peck is a fit and proper person at some point in the future would be a significant hurdle, as would overturning the order that he be prohibited from providing health services. He would not be registered without such a finding.
The respondent's counsel provided oral submissions. We noted the following from those submissions.
Both Patient A and the respondent suffer from PTSD. The relationship between the respondent and Patient A was a very traumatising experience for her.
The respondent does not wish to challenge the evidence of Patient A.
The decisions not to cross-examine Patient A and not to give evidence himself were the respondent's.
The Tribunal still needs to deal with the issues in dispute. The Tribunal can confine its findings of fact to the complaints as particularised. Quite a large deal of evidence of Patient A's is not contained in the particulars to the complaints.
The respondent only has to meet the complaint made against him as defined by the particulars to each complaint.
The respondent has made a very full acceptance of his failings and conduct.
It is unnecessary for the Tribunal to prefer one version of facts over the version provided by the other (as between the respondent and Patient A).
The Tribunal ought not to make findings on fact which are outside of the particulars listed to support each complaint.
A lengthy period of time during which the respondent cannot apply for registration is very problematic where the cause of the cancellation is largely based on his mental health issues and where he will continue to receive therapy for that illness.
Cancellation itself is a very severe imposition upon the respondent. Six years is an extremely long period to be excluded from applying for registration.
The respondent minimising his conduct in relation to Patient A, and his dishonesty, may be consequences of his mental illness.
The report of Dr Bench connects the respondent's behaviour with his PTSD condition.
At the conclusion of his submissions, counsel for the respondent was asked what period of time, in his submission, ought to be applied by the Tribunal to the prohibition on the respondent making an application for re-registration. The respondent's counsel said: "three years".
In submission in reply the HCCC said:
In relation to the disputed facts in Complaints Two and Three the particulars should be treated separately. Dr Young's evidence is relied upon for Complaint Two. For Complaint Three the HCCC relies on the evidence of Patient A and other objective evidence.
In relation to Complaint One, Particular 5 the HCCC agrees with the submission of the respondent that the Tribunal will need to determine the disputed facts.
In relation to the non-review period for registration, the question of impairment and serious misconduct is to be considered. The public perception of the whole of the medical profession, and public safety, are to be considered.
[13]
Principles to be applied
The HCCC in its submission stated that the Tribunal in the determination of this case is to have regard to the guiding principles of the National Law: see, e.g. Civil and Administrative Tribunal Act, Sch 5, cl 9(1); Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do"), [40] (Meagher JA, Basten and Emmett JJA agreeing).
The HCCC submitted:
"The paramount consideration must be the protection of the health and safety of the public (National Law, s 3A). Another objective is to ensure that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (National Law, s 3(2)(a)). This objective includes specific and general deterrence as well as upholding public confidence in the standards of the profession, including by denouncing the misconduct as unacceptable (Do [2014] NSWCA 307, [35], [39] (Meagher JA, Basten and Emmett JJA agreeing)). There is no punitive objective (See, eg, Qasim v Health Care Complaints Commission [2015] NSWCA 282, [73] (Meagher JA, McColl and Ward JJA agreeing)."
We accept the above submissions.
The HCCC submitted further:
"The following matters are relevant in determining what disciplinary action accords with these objectives (Health Care Complaints Commission v Marsh [2016] NSWCATOD 155, [17]; citing Health Care Complaints Commission v Moulds [2010] NSWNMT 1, [47]. See also Health Care Complaints Commission v Gupta [2019] NSWCATOD 29, [75].):
(a) whether the misconduct could be satisfactorily explained as an error of judgment rather than a defect of character;
(b) the intrinsic seriousness of the misconduct in terms of fitness to practise;
(c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities or character;
(d) the motivation which may have given rise to the proven episode of misconduct;
(e) the underlying qualities of character shown by previous and other conduct; and
(f) whether the practitioner's conduct post the proven episode of misconduct demonstrates the public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner.
It must also be kept in mind that registration amounts to the profession holding a person out to the public as a 'person worthy of their confidence'. This entails that the person has demonstrated integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant regulatory requirements and codes of practice (Cf Crickett v Medical Council of NSW (No 2) [2015] NSWCATOD 115, [56]). A practitioner's reformation cannot be assumed. It is the exception rather than the norm (See, e.g. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 637 (Gleeson CJ, Meagher and Handley JJA)) and requires 'clear proof', demonstrated by more than the passage of time without misconduct (See, e.g. Lee v Health Care Complaints Commission [2012] NSWCA 80, [73] (Barrett JA, Macfarlan JA and Tobias AJA agreeing))."
We agree with the above set out submissions outlining the principles to be applied by us in our approach to the determination in this case.
The HCCC then addressed the reasons the Tribunal would consider making the protective orders sought by the HCCC. It said there are four reasons why those orders should be made. Summarising those reasons we note:
The misconduct was very serious. It was a manifest abuse of power against a very vulnerable patient. The respondent knew of the vulnerability.
The relationship was a clear breach of the Medical Board's "Good Medical Practice: A Code of Conduct for Doctors in Australia".
The respondent failed to appropriately treat the patient's medical conditions.
The respondent abused Patient A verbally about her capacity to be a mother.
The respondent's frankness and candour about his misconduct have been limited.
The Tribunal will not accept that the respondent has engaged in any reformation. The respondent has retired from practice and does not intend to return.
The respondent accepts he has a mental impairment and is not competent to practice medicine.
[14]
Determination
In relation to the complaints admitted by the respondent, we accept that the particulars which the respondent admits are sufficient, in our view, to have established the complaints made (indeed as is conceded by the respondent).
In relation to the particulars which are denied by the respondent we find as follows:
[15]
Complaint One - Particulars 5(a) to (j)
We accept the evidence of Patient A in relation to this particular. As set out earlier, the respondent did not challenge Patient A on her evidence nor did he present himself for cross-examination. In relation to the evidence of Patient A on this allegation, we find nothing inherently unbelievable in the content of the allegation. The allegation sits comfortably with the type of behaviour which the respondent admits and which behaviour is egregious in its nature and extent.
[16]
Complaint Two - Particulars 1 to 6
To the extent that the particulars rely upon the evidence of Patient A, we accept same for the same reasons advanced for Complaint One, Particular 5. To the extent that the particular relies upon the evidence of Dr Young we accept same. We accept that evidence as it was not challenged. Dr Young's credentials and expertise were unchallenged; there is nothing in the nature or content of the evidence of Dr Young which is inherently unbelievable or which would call for us to reduce the weight which we would otherwise give to his evidence. We have accepted the evidence of Dr Young as unchallenged and patently acceptable.
[17]
Complaint Three - Particulars
The respondent does not specifically deny the particulars in this complaint. The particulars are based upon the evidence of Patient A who said she kept notes (albeit on her phone) of events and times relevant to matters specified in the particulars. The respondent readily admits his failures in making/maintaining adequate notes for Patient A.
For the reasons set out earlier as to why we accept the evidence of Patient A, we accept same in relation to the dates and times she has specified in that evidence. Further, she has maintained a form of diary of her own which we accept, in the circumstance of this case, is likely to be more accurate than the records kept by the respondent.
[18]
Complaint Four - Particulars
We confirm our findings herein in relation to the particulars to Complaints One, Two and Three.
[19]
Conclusion re disputed facts
Having made the above findings, we are comfortably satisfied the HCCC has established its complaints to the requisite standard.
[20]
Protective orders to be made
The most impactive protective order sought by the HCCC is that, had the respondent continued to be a registered medical practitioner, the Tribunal would have cancelled that registration and prohibited the respondent from applying to the Tribunal to be re-registered for a period of six years. There are other orders sought by the HCCC as we have set out earlier.
The respondent in his submission conceded that he suffers from impairment. The last report from his own psychiatrist gives no real indication as to when the respondent might be well enough to re-apply for registration. Nonetheless the respondent is receiving treatment and all indications from him suggest that he will continue to do so into the future.
The respondent submits that six years for a prohibition period is a very long time. It ought not to be such a long period of time, so as to sap incentive in the respondent recovering from his condition, if that is at all possible.
We have considered all of the evidence which has been brought to our attention during this hearing. We have considered the protective orders which have been sought by each of the parties. We conclude the following in relation to the protective orders.
The respondent, in his Reply, admits that he is guilty of unsatisfactory professional conduct under s 139B(1) of the National Law. The HCCC in its Complaint specified the section of the National Law contravened was s 139B(1)(l). That sub-section specifies conduct which is improper or unethical. We are satisfied that the HCCC has made out its case that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l).
The respondent in his Reply admitted some of the particulars of Complaint Two but not all. We have found the particulars established. In any event we are satisfied that the particulars which were admitted would have been sufficient to establish the complaint in our view. The complaint is made pursuant to section 139B(1)(a).
The respondent admits most of the particulars supporting Complaint Three. We are satisfied Complaint Three has been established. That complaint was made pursuant to s 139B(1)(b). The complaint addresses the respondent's failure to maintain clinical records for Patient A.
The respondent relies upon his replies to Complaints One, Two and Three in answer to Complaint Four. Following that chain sees the respondent admitting some of the particulars of each of those complaints and denying or not admitting others. We have made our determination in relation to those particulars. Complaint Four is made pursuant to s 139E(a). The HCCC seeks a finding of professional misconduct. Under that section the HCCC alleges unsatisfactory professional conduct of a serious nature sufficient to justify suspension or cancellation of the respondent's registration. It also relies on the alternate/cumulative ground set out in s 139E(b). We are satisfied the HCCC has established its case pursuant to s 139E(a) and (b).
The respondent admits Complaint Five. That complaint is made pursuant to s 5 of the National Law. It alleges the respondent has an impairment, "being a mental impairment", which detrimentally affects or is likely to detrimentally affect his capacity to practise medicine.
The respondent, in his Reply document, admits that he is not competent to practise medicine, within the meaning of the National Law. This is in response to Complaint Six. That complaint alleges the respondent is not competent within the meaning of s 139 of the National Law to practise their profession, contrary to s 144(c) of the National Law. The respondent relied upon his denials in relation to Complaint Five, however he admitted Particular 2 to the complaint that: "The practitioner's impairments are of a sufficient nature and degree to impair the practitioner's mental capacity to practise the profession". We are satisfied the HCCC has established that complaint.
[21]
Should the registration of the respondent be cancelled, assuming he was still a registered medical practitioner?
Section 149C(4)(a) of the National Law provides that the Tribunal may decide that if a person was still registered as a medical practitioner the Tribunal would have suspended or cancelled the practitioner's registration.
The HCCC submits that the findings it seeks be made by the Tribunal against the respondent, are of such a serious nature as to warrant/require the Tribunal to cancel the registration of the respondent were he still a registered medical practitioner.
The respondent provided written submissions on the imposition of protective orders, as set out above at [77].
We have considered the submissions of the parties carefully. We are aware that the imposition of protective orders is not a punitive function against the medical practitioner, rather they serve, firstly, to protect the public from being exposed to inadequate, inappropriate or incompetent medical practice; next they serve to uphold the high standing which medical practitioners need to have in the community so that the trust that is necessary for the public to hold in a medical practitioner is maintained. The protective orders also need to serve as a deterrent for other medical practitioners: see Do at [35].
In Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13, the Tribunal collected into one place a number of extracts from decisions of the NSW Court of Appeal which have been often quoted and which help set the framework for the Tribunal's determinations. Those decisions are as follows:
[142] In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten J said:
"There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct."
[143] In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA said:
[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.
[36] In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows:
"The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.
But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted."
[37] In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258):
"It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest."
Further in Do the NSW Court of Appeal said:
[34] … That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include 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 to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3.
We determine that it would have been appropriate in this matter to have made an order for the cancellation of the registration of the respondent as a medical practitioner, had he not relinquished his registration. We further conclude that a proper period to impose during which the respondent should be prohibited from applying to the Tribunal for re-registration is a period of four years.
In determining that the prohibition period should be four years we have weighed the following findings in this case:
1. The conduct of the respondent in engaging in an amorous and sexual relationship with a patient is a very serious breach of the Medical Board's "Good Medical Practice: A Code of Conduct for Doctors in Australia" (March 2014) and "Sexual Boundaries: Guidelines for Doctors" (October 2011).
2. The conduct of the respondent in embarking upon a relationship, other than one of doctor/patient, with an emotionally vulnerable patient who was suffering from PTSD and was sent to the respondent for therapeutic treatment, was egregious conduct.
3. The respondent's conduct was professional misconduct under s 139E of the National Law. Professional misconduct, as illustrated by the wording of s 139E, must be seen as a very serious breach of the standards required of a registered medical practitioner.
4. The respondent, we have accepted, endeavoured to minimise and/or conceal the true extent of his misconduct with respect to Patient A by being untruthful in his interactions with the Medical Council and Dr Newnham.
5. The respondent sought to draw Patient A into a conspiracy to hide, for his benefit, the true nature and extent of their relationship outside of a proper doctor/patient relationship.
6. The respondent himself has suffered a serious mental health illness and probably was suffering, to some extent, during the time he conducted an amorous and sexual relationship with Patient A. While that cannot excuse the conduct, it is a matter to be considered when determining a prohibition period.
7. An order for deregistration of a medical practitioner is itself a very serious curtailment of a medical practitioner's vocation. The order for de-registration sends a strong message to the world at large that misconduct by a medical practitioner will not be tolerated by those who govern the registration of medical practitioners for the benefit of the public at large.
8. The respondent has declared he will not seek to practise medicine again.
9. The respondent is receiving treatment for his mental health condition.
10. The respondent is impaired in relation to the practice of medicine.
11. The respondent should not be locked out from applying for registration again for any longer a period than is necessary to satisfy the requirements of the National Law.
12. The length of time to be imposed as the prohibition period should be sufficient to protect the public from the respondent conducting himself inappropriately as a medical practitioner.
13. The length of time to be imposed needs to be sufficient to maintain the confidence of the public in the medical profession and also to act as a deterrent to other medical practitioners, warning them to always be on guard to ensure they maintain proper boundaries between themselves and their patients.
14. The prohibition period should not be so long as to effectively stigmatise practitioners who suffer ill mental health and become impaired to such an extent that they cannot practise for a time. Practitioners who suffer ill mental health should feel supported to report their ill health and have confidence that, if it be possible to manage their ill health to a level which enables them to practise medicine safely, they will be permitted to do so.
15. Members of the public need to be confident that if their chosen medical practitioner was to suffer ill mental health, the practitioner would feel confident to report that matter and be supported by the Medical Council and the Medical Board to practise safely within their capabilities.
16. We accept that the respondent is now very contrite about his conduct with respect to Patient A and is very regretful as to the impact upon Patient A's health of his interaction with her.
17. The respondent conducted the hearing in a very sympathetic and entirely appropriate manner so far as Patient A is concerned. Although Patient A was present during the hearing by audio-visual link she was not required to participate in the hearing beyond that.
18. Patient A was not required for cross-examination nor did the respondent seek to have his evidence elevated in importance and/or weight above that which Patient A had given.
19. At the conclusion of the hearing the respondent sent a message of personal apology to Patient A through his counsel. That was a very moving and, in our view, commendable action on the respondent's behalf.
The determination to cancel the medical practitioner registration of the respondent, as if he was still registered, and to impose a prohibition period of four years during which the respondent cannot reapply to be registered as a medical practitioner, leads us to consider the further application of the HCCC to prohibit the respondent from "providing health services permanently". That application is made pursuant to s 149C(5) of the National Law.
The relevant subsections are as follows:
149C Tribunal may suspend or cancel registration in certain cases [NSW]
…
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following -
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Note -
Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
(5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.
…
The HCCC is concerned that the respondent may choose to take up registration in another health service other than that of a medical practitioner. In such a circumstance it may not be necessary to disclose the determination of this Tribunal in this matter. As such, were the respondent not fully fit to be able to interact with members of the public, in a health service, then the public could be at risk of harm.
Our concern has been the wording of the order sought by the HCCC for this order, namely, that the prohibition be "permanent". In such circumstances we sought the assistance of the parties in the framing of an order which would not be a permanent prohibition.
Pursuant to the directions we made on 12 April 2021 the parties provided further documents and submissions.
In Health Care Complaints Commission v Grygiel [2021] NSWCATOD 28 the Tribunal was asked to make a prohibition order against the respondent pursuant to s 149C(5). In addressing that application the Tribunal said:
"Prohibition Order
[436] The HCCC seek a prohibition order under s 149C(5) and (5A) of the National Law. The prohibition sought is to restrain the practitioner from providing "health education services" for the period during which he is remains subject to the Tribunal's orders. To understand the import of the order sought it is appropriate that we set out those provisions:
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following -
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Note -
Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
(5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered.
[437] We were not satisfied there was any evidence before us which suggested that the practitioner presently poses a substantial risk to the public (see Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 at [138]). To the contrary, we find it is highly unlikely that the practitioner who was in his language "stripped" of his academic position would be invited to provide health education services. He has not, on the evidence before us, attempted to, or provided, such services since he ceased practising. We decline to make a prohibition order as sought."
In the decision of Health Care Complaints Commission v Kazeme, referred to in the above paragraph, the Tribunal was asked to make an order against a health practitioner pursuant to s 149C(5) of the National Law. The Tribunal stated as follows:
[135] The Tribunal has decided that it would have cancelled Ms Kazeme's registration had she still been registered, and pursuant to s 149C(5A) the Tribunal has power to make a prohibition order under subsection (5).
[136] The HCCC submits that a prohibition order should be made in respect of specified health services, on a permanent basis.
[137] Ms Kazeme opposes such an order. She submits that she is no longer operating an IV clinic, and has moved her interests to the construction field. She is currently completing a degree in construction. Potentially one day she may want to get her registration back. She is not operating any business of a health nature but wants to keep her option open and opposes a permanent ban on providing health services, which would be harsh. Although she is focussing all her efforts in construction, she is 31 years old and does not know what business opportunities may present in future. She has learned from and takes responsibility for her mistakes as a previous business owner.
[138] The Tribunal must be satisfied that Ms Kazeme poses "a substantial risk to the health of members of the public" before it can consider whether a prohibition order should be made. That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75].
[139] The Tribunal accepts Ms Kazeme's evidence that she has no current intention of engaging in health services including services similar to the IV.ME clinic. However, it is clear that she has not ruled out some similar business venture in the future. In circumstances where Ms Kazeme has not taken responsibility as a qualified health professional whose professional obligations include ensuring safe and effective procurement, storage and dispensing of therapeutic products, the Tribunal is satisfied that there is a material risk that the conduct the subject of our findings could be repeated. In those circumstances, the Tribunal considers that Ms Kazeme would pose a substantial risk to the health of members of the public.
[140] The Tribunal considers that a prohibition order should be made; however, agrees with Ms Kazeme that a permanent prohibition would not be warranted to achieve the protective purpose enabled by such an order. Ms Kazeme has admitted that she made mistakes as business owner, and with further reflection she may be able to demonstrate insight into the misconduct that fell well short of the expectations and obligations of a qualified health professional. In the Tribunal's view, the process of review and possible reinstatement after the end of the cancellation period may enable Ms Kazeme to demonstrate that insight, such that it can be concluded that she does not pose a risk to public health and safety. The Tribunal considers that a prohibition order for specified health services in the terms proposed by the HCCC should be made, for a period specified to be the time at which she obtains a reinstatement order under Div 8 of Part 8 of the National Law or its equivalent, or is re-registered as a health practitioner."
We do not consider it is appropriate to permanently prohibit the respondent from ever providing a "health service". We consider that the prohibition period should not be longer than the period we propose to impose as the prohibition period during which the respondent is not to apply for re-registration as a medical practitioner.
We do conclude that given the respondent's current state of health he would pose a risk to public health and safety if he were to practise as a health service provider.
We have regard to the requirement for the respondent to be accepted for registration in a health service, governed by the National Law. We accept that the respondent will not be accepted for registration in any health service the subject of the National Law unless he is a fit and proper person to hold such registration and it will be for him to satisfy the relevant body that he is such a person.
We also have regard to the fact that the respondent has not indicated any intention to apply for registration in any health service at the time of the Tribunal providing these reasons. We are however cognisant of the possibility that the respondent's health may improve over the next four years to a point where he would be able to satisfy a relevant body under the National Law that he is a fit and proper person to hold registration as a health service provider outside of being a medical practitioner.
[22]
Costs
The HCCC seeks an order that "Pursuant to clause 13(1) of Schedule 5D of the National Law, the Respondent pay the Commission's costs of the proceeding, to be assessed if not agreed."
Clause 13 of Schedule 5D to the National Law is as follows:
13 Tribunal may award costs [NSW]
(1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal.
(2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect.
(3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate.
(3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
(4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]-[46] the Court of Appeal cites examples of where a costs order may be appropriate. The decision reinforces that the awarding of costs requires the exercise of discretion by the Tribunal, which discretion is a judicial one and "must be exercised according to proper fixed principles and rules of reason and justice" (Williams v Lewer (1974) 2 NSWLR 91 at 95). Further, "costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party." The Court said: "The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs". Meagher JA explained at [42]-[44]:
[42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]). It has not been suggested by the Doctor that any of those factors applied.
[43] As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95).
[44] It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
The respondent has not made any submission on the question of costs. We will assume he does not agree to pay the costs of the HCCC.
We find that it was necessary for the HCCC to bring the proceeding. Had it not done so, then the respondent could apply for re-registration as soon as he was able to show he was fit to practice as a medical practitioner. In such circumstances, the Tribunal would not be the authority to oversee that application and determine if it is appropriate to permit the re-registration.
Had there been no contest to the complaint brought by the HCCC there may have been other avenues open to the HCCC: however we were not informed about same as it was not relevant to this case.
The HCCC has been successful in the case it has brought; the only part of the case in which it has been partially unsuccessful is in relation to the period of time during which the respondent will be prohibited from again applying for registration as a medical practitioner. In circumstances where the respondent has resolved (at this time) to not ever apply for re-registration, that difference in outcome is inconsequential to the determination of the costs application.
We propose to exercise our discretion in favour of the HCCC and make an order, which we consider is proper in the circumstance, that the respondent pay the costs of the HCCC incurred in the proceeding, such costs to be agreed or, failing agreement, assessed.
[23]
Orders
It remains for us to frame the protective orders we will make.
On 12 April 2021 the Tribunal made orders and directions at the conclusion of the hearing in this matter. One of the orders made was as follows:
"The legal representatives for each of the parties are to confer for the purposes of endeavouring to reach agreement about the wording of an order, sought by the HCCC as order 4 in its written submission, and if agreed, provide to the Tribunal, within 14 days, a minute of same. If no agreement can be reached, then, within that 14 day period, each is to provide their own proposals for the wording of that order, if it is to be made, which, if possible, does not contain the word 'permanent'."
On 20 May 2021 the Tribunal received from the parties an email containing agreed wording for the order the subject of the requested agreement as to the wording of order 4 sought by the HCCC and referred to in the order of 12 April 2021. The wording provided is as follows:
"4. Pursuant to s 149C(5) of the National Law, the Respondent is prohibited from providing health services permanently unless and until the Tribunal makes a reinstatement or other order in relation to the Respondent under s 163B of the National Law.
5. Pursuant to s 149C(7) of the National Law, an application for review of order 2 and 4 may not be made until after six years from the date of these orders."
The wording proposed by the parties to accommodate our concerns about the use of the word "permanent" is satisfactory to us. We do not, however, adopt the "six year" provision which was proposed in the order as it was originally formulated and repeated above. We have reached a decision that the period of time during which the respondent will be prevented from re-applying for registration as a medical practitioner is to be four years, for the reasons already set out.
The orders we make are as follows:
1. Pursuant to section 149C(1) and (4)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), if the respondent was still registered as a medical practitioner, the Tribunal would have cancelled his registration.
2. Pursuant to section 149C(4)(b) of the National Law, the respondent is disqualified from being registered in the medical profession for a period of four years from the date of these orders.
3. Pursuant to section 149C(4)(c) of the National Law, the Medical Board of Australia is required to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board.
4. Pursuant to section 149C(5) of the National Law, the respondent is prohibited from providing health services permanently unless and until the Tribunal makes a reinstatement or other order in relation to the respondent under section 163B of the National Law.
5. Pursuant to section 149C(7) of the National Law, an application for review of orders 2 and 4 may not be made until four years from the date of these orders.
6. Pursuant to clause 13(1) of Schedule 5D to the National Law, the respondent is to pay the costs of the applicant of the proceeding, as agreed or assessed if not agreed.
[24]
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: 28 June 2021