Health Care Complaints Commission v Perry [2015] NSWCATOD 76 | Case summary

NCAT Occupational|2015-06-09

REASONS FOR DECISION

These are the Tribunal's reasons for accepting that it was not in the public interest for the Tribunal to proceed to hold an inquiry into an application for disciplinary findings and orders against a medical practitioner. The Tribunal heard the parties' submissions on 9 June 2015, and made its order at the close of the hearing.
On 10 October 2014 the Health Care Complaints Commission filed an application under the Health Practitioner Regulation National Law (NSW) (the National Law) for disciplinary orders and findings in relation to the professional conduct of a registered medical practitioner, Dr William Dermot Perry. The application was made after consultation with the Medical Council of New South Wales, as required. Directions for filing of evidence and submissions were made. The hearing was fixed for a three day hearing in June 2015.
As foreshadowed at a directions hearing on 13 May 2015, in light of exchanges between the parties, the Commission applied on 2 June 2015 to withdraw the application and complaint, and for an order that no inquiry be held. Clause 12(1) of Schedule 5D [NSW] of the National Law provides relevantly: (1) … the Tribunal may decide not to conduct an inquiry, or at any time to terminate an inquiry …, if - (a) any of the following circumstances apply - (ii) the person about whom the complaint is made ceases to be a registered health practitioner …; (iii) the complaint before …the Tribunal is withdrawn; and (iv) in the opinion of … the Tribunal it is not in the public interest for the inquiry … to continue.
The Tribunal convened on 9 June 2015. The Commission informed the Tribunal that the Director of Proceedings at the Commission had formed that the view that while there was sufficient evidence to prove the complaints against the respondent, the public interest did not warrant prosecuting the matter at present.
The Commission advised that the Director had considered the factors set out at s 90C of the Health Care Complaints Commission Act 1993 (NSW) and had consulted with the Medical Council. These factors are: (a) the protection of the health and safety of the public, (b) the seriousness of the alleged conduct the subject of the complaint, (c) the likelihood of proving the alleged conduct, (d) any submissions made under section 40 by the health practitioner concerned.

Background

In Complaint One of the application the Commission particularised alleged misconduct in relation to the treatment of 25 patients in the years 2011 and 2012. In relation to 18 of them, the allegation was that the respondent had wrongly prescribed drugs of addiction when he ought reasonably to have formed the view that the patients named were drug dependent persons. In relation to 22 of them, the allegation was that he had wrongly prescribed drugs of addiction inappropriately in a quantity, and/or for a purpose, that does not accord with the recognised therapeutic standards of what is appropriate in the circumstances, and without exercising responsible medical judgment. In relation to 17 of them, the same type of misconduct was alleged in relation to the prescription of restricted substances. In relation to 13 of them, the allegation was that he had concurrently prescribed S8 and S4D medications without exercising responsible medical judgment. In relation to 2 of them, the allegation was that he provided scripts to persons for whom the drugs were not intended, with the result that the patients were able to obtain drugs for their use. It was alleged that he failed to seek specialist assistance in the care and management of 8 of the patients, and that he failed to follow up and/or act upon receipt of special assistance in relation to 4 of the patients. Finally, in relation to 16 of the patients, the allegation was that he failed to conduct adequate enquiries to ensure that patients were not acquiring similar medication from other practitioners, or failed to make enquiries with the Medicare Prescription Shopping Program.
The complaint attached tables showing details of the medications the subject of the prescribing events put in issue. The tables ran to 112 pages with most pages recording between 40 and 50 medications. It will be seen that the scale of the alleged wrongful prescribing was very high and very frequent across this group of patients.
In Complaint Two the Commission alleged five different types of inadequacies in his medical records' practices (affecting 24 of the 25 patients), and the result was that they were insufficient to enable another medical practitioner to carry on the management of those patients.
As is usual, the Commission sought a finding of, at the least, unsatisfactory professional conduct in relation to the conduct alleged (under s 139B (1)(a) and (l) of the National Law in the case of Complaint One; and under s 139B (1)(b) of the National Law in the case of Complaint Two), and, by Complaint Three, a finding of professional misconduct relying on the particulars given in support of Complaints One and Two (under s 139E of the National Law).
In his statement for the proceedings responding to the complaints dated 16 April the respondent admitted the facts underlying the complaints.
His solicitor advised the Commission by letter dated 23 April 2015 that the respondent had decided to retire permanently from medical practice, that he did not intend to work as a medical practitioner at any time in the future, and requested that he be allowed a period of six weeks to be able to arrange the orderly handover of patients. The letter enclosed a copy of the respondent's letter of the same date to the Australian Health Practitioner Regulation Agency (AHPRA), requesting that his name be removed from the register of practitioners with effect from close of business 5 June 2015. The respondent swore an affidavit dated 30 April 2015 reaffirming his intention and this request. We were advised at hearing that AHPRA had taken action, as requested, and his name had now been removed from the register.
In the affidavit the respondent recorded that he was born in 1953 and was now aged 62 years. He referred to his professional career. He was first registered on 29 August 1978, and had practised for most of his career as a sole practitioner at the one location, Keiraville, since 1982. In particular, he said: In preparing to respond to the Complaint I have had to reflect deeply on relevant events and also on my current practice and future plans. I have formed the view after discussion with my wife, my colleagues and my financial and legal advisors that I should retire from practice now after making appropriate arrangements for my current patients. … I have written to AHPRA on the basis that I am retiring permanently from medical practice. I have no intention of ever seeking to re-register as a medical practitioner. However I am aware and fully accept that if the Complaint is discontinued then in the event that I should ever seek to become re-registered as a medical practitioner at any time in the future, all of the matters set out in the Complaint would have to be addressed by me and I fully accept that the Health Care Complaints Commission would be entitled to reinstate the proceedings to prosecute the Complaint.
The respondent's statement dated 16 April 2015, was 27 pages long. It commenced by dealing in greater detail than the affidavit of 30 April with his career history and to other matters such as the structure of his practice at Keiraville (he as solo GP, a full-time secretary, his wife as part-time practice manager and part-time nursing sister), the hours of operation of the practice (five days a week), and the extent of home visits. It included a lengthy explanation for the conduct under notice, which he traced to a time when things started to 'go wrong' in his emotional life around 1999/2000. He gave an account of various personal circumstances and proclivities in relation to the way he practised which he felt contributed to his misconduct. He referred to a previous occasion, around 1985, involving conduct similar to that now alleged that had led to him relinquishing his S8 authority. In contrast to the position taken in the letter from his solicitor written a week later (intention to retire permanently), he spoke in this statement (at page 6) of the efforts he had made to eliminate the problems that had given rise to the misconduct, the reorganisation of his practice and that of his view that those efforts 'had resulted in a happy and positive workplace where I am now able to focus on practising good medicine'. There is a forward-looking flavour to these remarks which stands in contrast to the position now expressed. The remaining 20 pages of his statement dealt patient-by-patient with the matters alleged against him.

Consideration

The Commission submitted that, in the particular circumstances of the present case, the public interest is best served by not proceeding with the inquiry for the following reasons:

a combination of the respondent's age, the fact he is not currently registered and his stated intention not to practise in the future
that the matters the subject of the application can be taken into account by AHPRA in relation to any future application for registration; and
that the Commission can seek to have the proceedings reinstated, or file a new complaint, if the respondent does seek re-registration.

The submission acknowledged that the main factor in proceeding with the inquiry in this case is the deterrent factor, that being the important role that public adjudication and determination of complaints plays in informing the profession of the consequences that may attach to misconduct of a serious nature, and what type of misconduct may attract sanctions such as orders for deregistration.
The Tribunal adjourned to consider its decision. On resumption, we advised the parties that, on balance, we accepted the submissions, and granted the application. We have had regard in particular to: the respondent's full admissions, the removal of his registration (at his request) which serves the public interest in the responsible and safe practice of medicine, his age, and the unlikelihood therefore that he would seek to return to practice.
There is no application for costs.

Order 1. That no inquiry be conducted. 2. The application is dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013. 3. No order as to costs. 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: 21 July 2015

Health Care Complaints Commission Act 1993(NSW)

Health Care Complaints Commission v Perry

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Judgment (4 paragraphs)

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