Health Care Complaints Commission v Pincock - [2024] NSWCATOD 89 - NSWCATOD 2024 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Pincock

[2024] NSWCATOD 89

NCAT Occupational|2024-03-07|Before: Dr J

View original source

At a glance

Source facts

Court

NCAT Occupational

Decision date

2024-03-07

Before

Dr J

Catchwords

(2011) 297 ALR 56 Briginshaw v Briginshaw (1938) 60 CLR 336

Source

Original judgment source is linked above.

Catchwords

(2011) 297 ALR 56 Briginshaw v Briginshaw (1938) 60 CLR 336

Judgment (45 paragraphs)

[1]

Overview

Dr Pincock has been in private practice as an ear, nose and throat (ENT) and facial plastic/reconstructive surgeon since 2006. The Health Care Complaints Commission (the Commission) has brought a complaint against him seeking disciplinary findings and orders under the Health Practitioner Regulation National Law NSW (the National Law).
In broad terms, the Commission relies on two categories of alleged conduct justifying suspension or cancellation of his registration. The first is that Dr Pincock offered Patient A employment and later encouraged her to invest in his business (the AAC Trust). He accepted $335,000 from Patient A and $200,000 from another patient, Patient B, to invest in his business. Dr Pincock was in a therapeutic relationship with each of those patients at the time. This conduct, and other conduct detailed in Complaints One, Two, Four and Five is said to amount to unsatisfactory professional misconduct. Individually, or in various combinations, it is also said to amount to professional misconduct.
The second category of alleged conduct said to justify suspension or cancellation of Dr Pincock's registration is that he was not honest or forthright with Patient A or Patient B and did not act in their best interests. He encouraged Patient A to invest in the AAC Trust and directed the payment of substantial parts of the funds invested by Patient A and Patient B towards expenses that were unrelated to the AAC Trust and were for his own personal benefit. This conduct, and other conduct set out in Complaint Three, is said to mean that Dr Pincock is not a suitable person to hold registration.
We have split the proceedings into two stages. The first stage is to make findings as to whether Dr Pincock has engaged in the alleged conduct and whether aspects of that conduct meet the statutory tests of "unsatisfactory professional conduct", "professional misconduct" and not being a "suitable person to hold registration". The second stage, which will be determined after a further hearing, is to decide what orders we should make. Depending on our findings, we may suspend or cancel Dr Pincock's registration. Alternatively we may make other protective orders including imposing conditions on Dr Pincock's registration.

[4]

Credibility and memory

The process of fact finding should be informed as far as possible on the basis of contemporary materials, objectively established, and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, at [30], [31]. As McLelland CJ in Eq held in Watson v Foxman (1995) 49 NSWLR 315 at 319: "[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
Most of the significant events that are the subject of the Complaint against Dr Pincock took place from the middle of 2015 for a period of around 12 months. That is now nearly nine years ago. Dr Pincock was reminded of these events three years later when a complaint from Patient B triggered an investigation by the Commission. Dr Pincock responded to correspondence from the Commission about the alleged events around that time.
In 2020, five years after the significant events occurred, Dr Pincock was charged with criminal offences in relation to some of the conduct the subject of these complaints. All charges were later withdrawn and dismissed. Patient A and Patient B gave their version of some of the events in statements to police in February 2019. On 16 October 2020 Dr Pincock participated in an electronically recorded interview with police. The statements and transcripts of the interview are in evidence in these proceedings.
Also in evidence is a statement from Dr Pincock prepared for these proceedings dated 11 January 2024. There is some contemporaneous documentary evidence such as text messages, emails and solicitor's records in the material filed by the Commission. Dr Pincock and Patient A gave evidence and were cross-examined. Patient B provided a statement but did not give oral evidence.
Dr Pincock relied on the state of his mental health during this period at least as a partial explanation for his behaviour. It was, in his words, "the worst time of my life". There was no evidence as to how any mental health issues may have affected Dr Pincock's ability to recollect events, and we have not taken his assertions about his mental health into account in assessing his credibility.
Dr Pincock says he has recalled conversations to the best of his ability but because they occurred nearly nine years ago, and he does not have access to emails or diary entries, he cannot remember the exact words that were said. He claims to remember the substance of some of those conversations and is adamant that he did not make certain representations to Patient A about how much money she would make if she invested in the AAC Trust. He made some concessions including that he could not remember whether he cancelled a scheduled surgery for Patient A in December 2015 and in other cases he admitted that he believed something had happened but could not be sure.
Some of Dr Pincock's responses were directly inconsistent with what he told police when interviewed. Other parts of his evidence were evasive. In several instances, Dr Pincock's memory has been overlaid by perceptions of self-interest as well as conscious considerations of what should have been said. We elaborate on these findings in our reasoning below.
We did not find Patient A to be evasive. We accept that she did not give a direct answer to some lines of questioning, but these did not relate to significant factual issues. Dr Pincock also submits that some of Patient A's evidence was either clearly false or prone to exaggeration. Apart from two examples, which we address below, we will address these submissions when making the factual findings to which they relate.
Patient A insisted that she was at Dr Pincock's Double Bay clinic on 26 October 2015 when she spoke to him and then telephoned Antunes Lawyers. Dr Pincock's diary for that day records that he was at the Bella Vista clinic seeing patients from 8 am until 3.30 pm.
The Commission submits that the diary does not exclude the possibility that Dr Pincock was at Double Bay at some time during that day. While that is a theoretically possible, it is more likely that Patient A is mistaken about the date or about some other aspect of the conversation she says she recalls. Any mistake about where the conversation took place or who was present does not satisfy us that Patient A's evidence on material issues is unreliable.
A second example of Patient A's lack of credibility is said to be that she gave evidence that she was offered a salary of $150,000 to work at the Edgecliff clinic. That evidence was said to be "inherently unbelievable" because Mr Bitran, the Chief Operating Officer, earnt $120,000. Patient A had no reason to exaggerate this figure and it is not material to any disputed issue. It does not reflect adversely on her credibility.
Patient A's evidence was measured. She was doing her best to recall what had actually happened. Despite the passage of time, she has a very clear impression of many of the events because they were significant. Her ENT specialist, who was a trusted friend, offered her a job and she invested a large amount of money in his business. She had conversations with her husband about what had been said and she remembers his reaction.
Patient A lost most of the money she invested in the AAC Trust but she said she was not motivated by anger in giving evidence in these proceedings. She has never complained about Dr Pincock's behaviour to authorities. The police, and then the Commission, asked her to make a statement. In her words, "he has done the wrong thing and should be held accountable". Other than wanting Dr Pincock to be accountable for what he had done, Patient A had no interest in the outcome of the criminal charges or these proceedings. Unlike Dr Pincock, her evidence was not motivated by self-interest.
Some parts of the Complaint which relied on Patient B's evidence were withdrawn during or at the end of the hearing. Although the Commission did not file a further Amended Complaint, we have not addressed certain allegations relating to Patient B because they were, at least in a practical sense, withdrawn.
In general, we have made findings on the basis of contemporary materials and the apparent logic of events. In many instances we have also preferred Patient A's evidence where there is a direct conflict with her evidence and that given by Dr Pincock.

[9]

Evidence

In 2015 Patient A was a Practice Manager at an ophthalmology clinic unrelated to Dr Pincock. During a consultation with Dr Pincock on 18 July 2015 Patient A says Dr Pincock told her about a new practice that he was opening at Edgecliff. She understood that there would be various specialties, including ophthalmology, within the new practice. Dr Pincock would not be involved in the day to day running of that practice.
At the end of the consultation Patient A says Dr Pincock said, "Come and work for me in our new clinic opening in November. Leave your current job and you will run the eye clinic at Edgecliff, and the practice." Patient A considered this to be a formal offer of employment.
Dr Pincock denies saying to Patient A that she should leave her current job and come and work for him. He says that during the consultation he recalls speaking with Patient A, in a general sense, about opening a medical centre in Edgecliff with various sub-specialties including ophthalmology. His version of that conversation is that Patient A indicated that she was looking for employment and asked if there were any employment opportunities at the new clinic. Dr Pincock told Patient A that the ophthalmology clinic was looking for a practice manager. In his words the conversation was to the following effect: "I mentioned we had this new thing, she mentioned that she was looking for a new job."
Dr Pincock says he suggested to Patient A that she contact Mr Bitran, who was responsible for recruitment, if she wanted more information. Dr Pincock believes he then facilitated contact between Mr Bitran and Patient A but cannot recall how that happened.
Patient A denies that she asked Dr Pincock whether there were any employment opportunities or that Dr Pincock said she should contact Mr Bitran. Patient A says Dr Pincock introduced her to Mr Bitran at the Edgecliff practice on 31 July 2015, about two weeks after the job offer.
Dr Pincock submits that even if he did ask Patient A to work for him, it was not a job offer. At best it was a preliminary discussion about a possible job opportunity. Despite that submission, Dr Pincock conceded that he was focused on the possibility of gaining Patient A's expertise. He was aware she had a particular skill set and he wanted that skill set in his business.
On 2 November 2015 Patient A commenced employment as the practice manager of the E4 clinic based at Edgecliff. At the hearing Dr Pincock amended his statement to say that Patient A acted as office manager for the entire practice, not just the ophthalmology clinic. Even before Patient A formally commenced employment, Dr Pincock asked her to facilitate the expansion of the E4 business by negotiating the purchase of the Norbrik Drive property at Bella Vista.
Dr Pincock was involved in the negotiation of Patient A's contract of employment which is dated 6 October 2015. In September 2015, he texted Patient A saying: "[name deleted] I'm happy to take anything from the non-disclosure you are a trusted patient and friend . . ." "The non-disclosure" is a reference to a clause in the contract of employment which provided for a penalty of $1,000,000 for breaching a non-disclosure clause. Dr Pincock agreed that the text message was about a term of Patient A's employment contract and that he was involved in negotiating that term. Dr Pincock also agreed that he had power to override Mr Bitram's decisions as to the terms of that contract.

[10]

Factual finding

We find the factual basis of this Complaint 1.1 and 1.5 (in relation to the commencement of employment) to have been proven. Dr Pincock did offer Patient A employment when she was his patient and continued the therapeutic relationship after she commenced employment.
Despite Dr Pincock's denials, we find that he said words to the effect of "Come and work for me in our new clinic opening in November. Leave your current job and you will run the eye clinic at Edgecliff, and the practice." This was a significant conversation from Patient A's point of view. Her ENT surgeon, who regarded her as a "trusted friend" asked her to come and work in a clinic he was setting up. Before commencing employment, Patient A was performing tasks for Dr Pincock including negotiating the purchase of a property.
Dr Pincock was involved in the negotiations of Patient A's contract of employment. Under the terms of the contract, Patient A would report to both Mr Bitram and to Dr Pincock, but Dr Pincock saw himself as ultimately responsible for employing people in the E4 business. He had 85 units in the AAC Trust, whereas Mr Bitran had 15 units.
Patient A was introduced to Mr Bitram about two weeks after the job offer, but there is no evidence of any formal offer of employment by him or anyone else. The apparent logic of what happened is that Dr Pincock made the offer of employment during the consultation and it was actioned by Mr Bitram. Mr Bitran organised for an employment contract to be drawn up but Dr Pincock had the final word on the terms of the contract. It is not, as Dr Pincock submits, inherently unbelievable that he would make an offer of employment on the spot without consulting Mr Bitram. He admits that he was focused on the possibility of gaining Patient A's expertise.
Dr Pincock admits that on 18 July 2015 he had a therapeutic relationship with Patient A. He first saw her on 3 April 2009. By July 2015 he had had 23 consultations and had performed multiple surgeries. In his words, he and Patient A "had formed somewhat of a friendship" and had discussed things that were not usual for a doctor to discuss such as her children and things that were "a little more personal". In the text message to Patient A on 21 September 2021, he described her as a "trusted patient and friend". For the reasons we give below, that relationship continued until at least 4 December 2015 when Patient A postponed the surgery that had been booked for later that month.

[13]

Did Dr Pincock encourage Patient A to invest and make the representations?

Patient A attended a business meeting at Dr Pincock's home on 8 September 2015. This was during the period before Patient A commenced employment but when she was negotiating the purchase of the Norbrik Drive property. According to Patient A, this was not the meeting Dr Pincock refers to as the "garage meeting" on 21 September 2015. At the earlier meeting Patient A says there were discussions about expansion plans for E4 and raising funds for investment in that business. Patient A says she was told the business needed money from investors.
At the end of the 8 September 2015 meeting, Patient A says Dr Pincock asked her to invest as they needed money. He said, "I know you have children with disabilities. If you invest in my business, you won't have to worry about taking care of the kids. They will be taken care of financially for life. In five years, you will have five million dollars through this business." Patient A's oral evidence was that Dr Pincock made those representations, and that he "asked" her to invest and sold it to her by telling her that the profit would be high.
Patient A says she went home after the meeting and spoke to her husband who said he was concerned about investing so much money. He asked if she was sure Dr Pincock had said "five million in five years". Patient A says she told her husband that because Dr Pincock was her doctor, she had no reason not to trust him.
Dr Pincock's evidence is that he clearly recollects a discussion in his garage on 21 September 2015, following the manager's meeting. In his words, "I believe that Patient A raised the issue of investing in E4 with me after a general discussion at the manager's meeting regarding raising funds for investment in the business." Dr Pincock did not say he was sure or he clearly remembers Patient A raising the issue. His oral evidence was more definitive. Dr Pincock said it was Patient A who raised the issue with him "out of the blue" and offered to invest $500,000. He did not ask Patient A to invest any particular amount of money. Dr Pincock denies that he had already encouraged Patient A to invest in the business or that it was unrealistic for Patient A to have come to him out of the blue to invest so much money. Dr Pincock said he could not remember what "excited" Patient A but he was flattered that she wanted to invest in the business. He acknowledged that it is possible that Patient A was impressed with him as a person.
Dr Pincock denies that he said Patient A's children would be financially taken care of for life. He said that would have been an "evil thing to say".
Dr Pincock says he told Patient A that this was not the type of investment that she should borrow money for because it was speculative. His strategy was to on-sell the business and eventually make a profit through capital gain. He says he did not make any promises as to financial returns.
Patient A's response to this evidence is that there was no "garage meeting" but there was a conversation about investment at a meeting earlier in the month. She did not tell Dr Pincock that she wanted to invest or was interested in investing. Dr Pincock asked her to invest. She denied that Dr Pincock told her that any investment was speculative. Rather, he said that he would sell the business in five years' time and the capital gain would be $5 million dollars. She agreed that he told her they were not offering dividends and that any profit would be through capital gain.
There is no dispute that there was a discussion at a business meeting in September 2015 about needing to raise funds for investment in the E4 business. Patient A was present when those discussions occurred. There is also no dispute that when Dr Pincock and Patient A discussed the possibility of her investing in the AAC Trust, Dr Pincock told her that they were not offering dividends. Any profit would come through capital gain when the business was sold.
That version of events is supported by a text message which Dr Pincock sent to Patient A on 14 October 2015. At that time Patient A was in the process of negotiating a third mortgage on the home she owned with her husband. Westpac Banking Corporation had ask Patient A for a company prospectus before they would agree to lend her the money. Patient A says she phoned Dr Pincock and asked him for a prospectus. On 14 October 2015, Dr Pincock sent Patient A a text message: "Hi [name deleted] I'm happy for you to use our allergy figures and extrapolate them. I'm not making any promises regarding cash flows and this is being set up for rapid growth and sale. I suggest you and Evi come up with what you need as I'm bouncing from meeting to meeting getting the fundamentals correct." Patient A responded, "I understand and I apologise if I have been annoying. I am about to email Evi. I will cc you on the email and keep you in the loop." Dr Pincock's reply was, "It's not you being annoying its banks because either a) they want a bullshit prospectus or b) they will reject it and say they want more. If it's your money secured and the bank is asking for this then they are being difficult."
By saying he was not making any promises about "cash flows", Dr Pincock says he meant no promises about dividends, profitability or timelines. He emphasised that he told Patient A that it was a speculative investment and there were no guarantees. When Dr Pincock wrote this text message he was intending to convey that there could be no guarantees as to dividends and that, as he told Patient A in September 2015, the business was being set up for "rapid growth and sale".
Patient A said that on 21 September 2015 she told Dr Pincock that she needed to take out a loan, but based on a series of text messages it appears that Dr Pincock did not understand exactly how Patient A was intending to raise the money to invest. Contrary to Dr Pincock's submission, nothing in that series of text messages reflects adversely on Patient A's credibility. Rather, it demonstrates that Dr Pincock did not understand how Patient A intended to fund the investment.
Patient A says she has a clear recollection of Dr Pincock asking her to invest and making the representations we have outlined. The Complaint merely states that Dr Pincock encouraged Patient A to invest, not that he asked her to do so. Whether Patient A first raised the issue of investing with Dr Pincock, or Dr Pincock first raised the issue with her, we are satisfied that Dr Pincock encouraged Patient A to invest and that he made the representations set out above.
We are satisfied that the representations were made because Patient A remembers her husband asking her if she was sure Dr Pincock had said "five million in five years". Those are figures Patient A is likely to remember. They are consistent with Dr Pincock's evidence that the business would not make a profit in the short or medium term, but was being set up for rapid grown and sale in the future. We are satisfied that Dr Pincock put a figure on the extent of the growth ($5 million) and the timing of the proposed sale (5 years).
Dr Pincock knew that Patient A's children had disabilities because he had discussed personal issues with her including issues about her children. We are satisfied that given their close friendship, Dr Pincock did say that Patient A's children would be financially taken care of for life. That is also something of significance that Patient A is likely to remember. She had no motivation to lie about the representations.

[17]

Did Dr Pincock continue the therapeutic relationship after the funds were invested?

There is no dispute that a consultation took place on 6 November 2015, the day after Patient A transferred $335,000 into Dr Pincock's lawyers' trust account.
Dr Pincock says that from about 21 September 2015 (or shortly after that) until the appointment on 6 November 2016 the therapeutic relationship had ceased. Dr Pincock submits that it is consistent with that account that no consultations occurred with Patient A during that period.
Dr Pincock says he told Patient A on multiple occasions that he could no longer see her as a patient because of the commercial relationship between them. He does not recall whether he said he would refer Patient A to a different doctor, but agrees that he did not write a referral.
Patient A denies that they ever discussed ending the therapeutic relationship. Dr Pincock did not tell her that he was not comfortable operating on her because of their employment or investment relationship. Dr Pincock was aware that she would need continuing treatment and long term management.
It was put to Patient A that she insisted on seeing Dr Pincock. Dr Pincock's lawyer questioned Patient A about whether she told Dr Pincock before the appointment on 6 November 2015 that she was suffering symptoms from a previous surgery he had conducted and had bleeding in her nose. Her answer was that she did not recall a conversation telling him that she was going to see him. Dr Pincock's lawyer characterised Patient A's answers as evasive and bearing adversely on her credit.
Some of Patient A's answers were not responsive to the specific questions she was being asked. We are satisfied that Patient A did contact Dr Pincock to make an appointment with a view to further surgery. Patient A made an appointment to see Dr Pincock on 6 November 2015 because she was having "sinus issues". Even if Patient A was intent on consulting Dr Pincock, that does not change the fact that the therapeutic relationship was continuing and that it was Dr Pincock's responsibility, not Patient A's responsibility, to end the relationship. We are not satisfied that the therapeutic relationship ceased during the short period before 6 November 2015. The absence of any consultations during this short period is unremarkable.
Shortly after the 6 November 2015 consultation, Dr Pincock says he told Patient A that he could not perform the procedure booked for 17 December 2015. He states that he thought he had cancelled the procedure but cannot now say that with any certainty. There is no contemporaneous evidence of him having done so. Patient A's version is that she cancelled the procedure on Thursday 3 December 2015. We accept that evidence which is supported by an email of 5 December 2015.
On Saturday 5 December 2015, Dr Pincock's theatre co-ordinator emailed Patient A saying that it was nice to have met her on Friday and that she had mentioned moving the surgery back to a later date. She asked Patient A to let her know what month in 2016 would work for her. Patient A says she did not tell the theatre co-ordinator why she wanted to cancel. Patient A denied that she tried to move the date back because Dr Pincock said he did not want to operate on her. She re-iterated that she cancelled because she was alarmed by the changes in Dr Pincock's presentation and behaviour. The surgery did not take place on 17 December 2015 and it was not re-booked for a later date.
The email to the theatre co-ordinator is contemporaneous documentary evidence of Patient A postponing the surgery. There is logic in the Patient A's recollection that she told the theatre co-ordinator that she wanted to re-schedule rather than cancel, so as to avoid explaining the real reason for her change of mind. Dr Pincock is not certain how the appointment came to be cancelled. We accept the documentary evidence and Patient A's evidence that she cancelled the procedure because of concerns about Dr Pincock's presentation and behaviour.
Dr Pincock says he had "strong reservations" about operating and that he felt uncomfortable operating on Patient A because of their employment and investor relationships. However, he felt "duty bound" to resolve the issues arising from the surgery he had previously conducted.
Dr Pincock continued the therapeutic relationship with Patient A, which had been ongoing for over six years, despite employing her and receiving investment funds from her. He did not tell Patient A that he could no longer see her as they had a commercial relationship and did not tell Patient A shortly after the 6 November 2015 consultation that he could not perform the surgery. We find that Dr Pincock knew at the time that he should not have continued the therapeutic relationship with Patient A, but he did not do or say anything to end that relationship.
According to Dr Pincock, Patient A could be "quite pushy" but it was his job to "push back" and he did not do enough. Dr Pincock said in oral evidence that he wanted to please Patient A, but he was not strong enough or mature enough to draw a line. There was always one more thing Patient A wanted him to do. Dr Pincock said that he "acquiesced to that".
Dr Pincock agreed that he should not have consulted with Patient A on 6 November 2015 and should not have booked surgery for her. He said he was either "weak" or was "manipulated" into seeing her. Dr Pincock also acknowledged that he was "not concerned enough" about the fact that Patient A was investing money based on her trust in him as a doctor.
The factual basis for Complaints 1.4 and 1.5 is proven.

[18]

Unsatisfactory professional conduct for Complaint 1.1 to 1.5?

The proven conduct will be unsatisfactory professional conduct if that conduct demonstrates that Dr Pincock's judgment is significantly below the relevant standard. Dr Pincock has had extensive training and experience. He was granted general registration in February 1998 and become a Fellow of the Royal Australasian College of Surgeons in 2006.
The relevant standard can be informed by codes of practice. The publication Good Medical Practice: A Code of Conduct for Doctors in Australia, March 2014, Medical Board of Australia was applicable at the time of these events. It contains general statements which are relevant to the facts of this case.
Under the heading "professional values and qualities of doctors" at 1.4, the Code of Conduct, states that: Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy. Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion.
Professional boundaries should be maintained. Under 8.1 of the Code of Conduct: In professional life, doctors must display a standard of behaviour that warrants trust and respect of the community. This includes observing and practising the principles of ethical conduct.
Part 8.2 states that maintenance of professional boundaries "promotes good care for patients and protects both parties".
Professional conflicts of interest are addressed a Part 8.11.1 of the Code: Good medical practice involves: Recognising potential conflicts of interest that may arise in relation to initiating or continuing a professional relationship with a patient.
In relation to financial and commercial dealings, the Code states at 8.12 that: Doctors must be honest and transparent in financial arrangements with patients. Good medical practice involves: Avoiding financial involvement, such as loans and investment schemes, with patients.
A good doctor -patient partnership requires high standards of professional conduct including: Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients . . .financially
While Dr Pincock says he would not employ a patient today, many of his peers employed patients in 2015. He was less concerned about employing Patient A as an office manager in a different location from him than he would have been employing a receptionist at the same workplace. Dr Pincock says he should be judged by the standards in 2015.
There is no evidence, or any other basis for concluding, that professional standards in relation to the employment of patients was any different in 2015 than it is today. The 2014 Code of Conduct was applicable at that time. There is no specific reference to employing patients in the Code, but medical practitioners are warned against initiating or continuing a professional relationship with a patient.
The circumstances of this case are that Patient A was a long term patient who Dr Pincock considered to be a "trusted friend". He continued with a therapeutic relationship after she commenced employment. Dr Pincock should have been mindful of the risks that boundaries were being crossed or that Patient A's care could be compromised when offering her employment. His judgement in offering Patient A employment and continuing that relationship was significantly below the relevant standard.
Complaint 1.1 and 1.5 (in relation to commencing employment) is proven.
Complaint 1.2, 1.3, 1.4 and 1.5 (in relation to receiving investment funds from Patient A) is that Dr Pincock encouraged Patient A to invest and made representations which had no reasonable basis. He accepted significant funds from Patient A for the purpose of investing in the AAC Trust.
The power imbalance between Dr Pincock and Patient A was significant. Dr Pincock was a successful ENT surgeon. Patient A had had 23 consultations with him and he had performed multiple surgeries. They "had formed somewhat of a friendship" and had discussed things that were not usual for a doctor to discuss. Patient A trusted Dr Pincock. He exploited the power imbalance in their relationship by encouraging her to invest and accepting funds while continuing the therapeutic relationship. He was not ethical or trustworthy. He did not avoid financial involvement and was not transparent. His judgment was significantly below the relevant standard.
Complaint 1.2 and 1.3, 1.4 and 1.5 (in relation to receiving investment funds) is proven.

[19]

Complaint 1.9 and 1.10 - accepting $200,000 from Patient B and continuing the therapeutic relationship

On 4 November 2015 Patient B transferred approximately $200,000 into Dr Pincock's lawyer's trust account. He was allocated shares in the AAC Trust. On 5 November 2015, Dr Pincock, through his lawyers, accepted that money for the purpose of investing in the AAC Trust. The issue is not whether accepting those funds was inappropriate, but whether continuing the therapeutic relationship with Patient B after he had invested those funds, was conduct which demonstrates that Dr Pincock's judgment was significantly below the relevant standard.
Dr Pincock admits the factual basis for Complaints 1.9 and 1.10. He accepted the funds and continued a therapeutic relationship with Patient B. We will set out the nature and extent of that relationship briefly below.
The first consultation Patient B had with Dr Pincock was on 18 July 2015. At a consultation on 7 November 2015, Dr Pincock examined Patient B, carried out a specialist attendance and scheduled a procedure for 25 November 2015. On that date, Dr Pincock performed a surgical procedure on Patient B and carried out a specialist attendance on him. His fees were limited to the amount of the Medicare rebate. On 8 January 2016, Dr Pincock carried out a follow up specialist attendance on Patient B and on 28 February 2016 Dr Pincock prescribed medication to Patient B.
Dr Pincock says that he had a business relationship with Patient B. He acknowledges that he should not have continued the therapeutic relationship with him after accepting investment funds. His only explanation was that he was "committed to doing it" and it is part of his "code" to stick to his promises. He also believes that he was one of only two people in NSW who could do that procedure and he knew that someone else would bill Patient B $20,000. When questioned further, Dr Pincock agreed that he should have made it clear to Patient B that they could have either an investment relationship or a therapeutic relationship, but not both.

[24]

Findings for Complaint 2.2

On 28 September 2018, in response to a letter from the Commission, Dr Pincock made the following statement: Her last consultation with me was on 6 November 2015 in my Bella Vista rooms. At this last appointment I made it clear to her that I could no longer see her as a patient because of the commercial relationship we had entered into.
Dr Pincock admits that he made this representation and that he did not include the fact that during or shortly after that consultation he had booked an appointment for surgery on 18 December 2015. He says that when he wrote the letter he had relied on his list of appointments which showed that the last time he consulted with Patient A was on 6 November 2015. He says he has now seen other documents which show that a further appointment for revisionist surgery was made. It is with the benefit of those documents that he says he now recalls that he had decided to operate on Patient A. On reflection, he thinks he formed an incorrect view of the dates because the surgical procedure did not go ahead. At the time he believed the statement was correct and did not knowingly mislead the Commission.
The Commission submits that Dr Pincock's recollection of events is inconsistent with the recollection he otherwise gave, both in his statement and in cross-examination. That recollection was that he had conveyed to Patient A on multiple occasions between September and November 2015 that the treating relationship was at an end, but Patient A insisted on seeing him. According to the Commission, it is difficult to accept that he re-calls that insistence now, but did not recall it when he wrote to the Commission in 2018 which was much closer to the events.
We have made findings about the continuation of the therapeutic relationship with Patient A and rejected Dr Pincock's evidence that he was "very clear" with Patient A "that the doctor/patient relationship had to end." Dr Pincock wishes he had been very clear with Patient A, but we prefer Patient A's evidence that the issue was never discussed. That finding is consistent with surgery being booked for the following month and then postponed by Patient A. We are satisfied that Dr Pincock knowingly misled the Commission in the 28 September 2018 email. Even if he referred to his list of appointments and did not remember that he had booked her in for surgery, he knew at the time that he did not make it clear to Patient A that he could no longer see her as a patient. He was motivated by self-interest in making that representation to the Commission. That conduct is improper or unethical.
Complaint 2.2 is proven.

[26]

Overview of Complaint

Complaints One and Two are both complaints that Dr Pincock is guilty of unsatisfactory professional conduct. Complaint Three relies on another ground for a complaint; "that the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession": National Law, s 144(e). The significance of a finding that a registered health practitioner is not a suitable person to hold registration is that the Tribunal may suspend or cancel their registration: National Law, s 149C.
Dr Pincock denies that he is not a suitable person to hold registration.
Complaint 3.1 is that Dr Pincock encouraged Patient A to invest in the AAC Trust in the following circumstances: 1. Dr Pincock considered that the AAC Trust owed him money and he was entitled to (and intended to) take all or a substantial part of the funds invested by Patient A in the AAC Trust for his own personal benefit; 2. Dr Pincock did not disclose to Patient A that the AAC Trust was indebted to him; and he intended to take all or a substantial part of the funds invested by her for his own personal benefit; and 3. Patient A relied on the practitioner for information in relation to the AAC Trust and trusted him as her doctor
Complaint 3.2 is that shortly after the funds were received from Patient A and Patient B (totalling $535,000) Dr Pincock directed the payment of approximately $475,290 towards expenses that were unrelated to the AAC Trust and were for his own personal benefit. He did not disclose to Patient A or Patient B the instruction to use the money for his personal benefit.
Complaint 3.3 is that by reason of this conduct (in Complaint 3.1 and 3.2) Dr Pincock was "not honest and/or forthright in his dealings with Patient A and Patient B and/or the conduct could not reasonably be regarded as being in the best interests of Patient A and/or Patient B."
We will make factual findings as to the allegations in Complaint Three and then decide whether Dr Pincock is not a suitable person to hold registration because he was not honest or did not act in the best interests of Patient A and Patient B.

[28]

How were the funds spent and was that expenditure unrelated to the AAC Trust?

Dr Pincock says he cannot say precisely how the money from Patient A was spent. The decisions were made by Mr Bitram and his lawyers. The Trust Account Statement records $335,000 credit from Patient A's corporate entity and $200,000 from Patient B. For the following reasons we find that Dr Pincock directed the payment of $475,290 towards expenses unrelated to the AAC Trust.
The funds invested by Patient A and Patient B were transferred into the trust account for the lawyers representing Dr Pincock, Antunes Lawyers. On 2 November 2015 the lawyers emailed Dr Pincock to ask which account those funds should be deposited into. Their advice was that the money should be transferred to the AAC Trust bank account. An email later that day from Antunes Lawyers to Patient A confirms Dr Pincock's "instructions that the funds are to be transferred into our firm's trust account" (not the AAC Trust bank account).
Dr Pincock may not be able to remember precisely how the money was spent but there is contemporaneous documentary evidence. The Trust Account Statement records three debits. The first is a payment to OPES Projects Pty Ltd ("payment of settlement pursuant to Deed") for $195,000 on 20 November 2015. The second is a payment to Norwest Commercial and Industrial Real Estate Pty Ltd (5% deposit on purchase of Bella Vista Q Central) for $135,000 on 27 November 2015. The third is a payment to Tobias James Pincock (client directions as per authority) for $100,000 on 11 December 2015. We will refer to these three payments as the "OPES Projects payment" the "Norwest Real Estate payment" and the "Dr Pincock payment"
The OPES Projects payment was to settle a claim against "Windermere". An email from Antunes Lawyers dated 17 November 2015 describes the nature of the payment. TP is Dr Pincock and the two investors are Patient A and Patient B. TP is issuing equity from AAC to 2 investors. Their money is already in our trust account. Tim is getting their authorities to release the money as TP directs. TP wants to use the money to pay out APS and our legal fees on Windermere. . . . TP & R have agreed to pay the money now in consideration of a reduction of the amount from $245k to $195k.
The email goes on to instruct employees of Antunes Lawyers as to the next steps including the following: "The security interest is to secure repayment of $245k (although TP (Dr Pincock) will pay APS $195k) & legal costs owed on litigation matter to Antunes plus costs incurred in the loan & security interest" and "Dr Pincock is paying out APS in return for security interest registered against Windermere". (The Commission did not press the legal fees as being of any personal benefit to Dr Pincock.) The email went on to state how the money would be repaid: "W (Windemere) will repay the money to TP by $1,000pw & balance on sale of the business (which has been listed for sale)."
According to Dr Pincock, the payment comprised a loan to Windemere so that they could enter a commercial settlement. The loan was to the benefit of AAC Trust because Windemere made repayments to AAC on a monthly basis and received interest in the realm of 8-10%. Without the loan, the money would not have earned interest. When asked whether the OPES Projects payment had anything to do with the AAC Trust, Dr Pincock said it was an investment and a further example of "cash flow management". The principal and interest would be returned to the AAC Trust in due course. A copy of the loan agreement was called for but not produced.
The AAC Trust was not a party to the loan agreement. There was no entitlement on the part of the AAC Trust to recoup the money. To the extent such a loan was made and interest earned on it, the AAC Trust had no entitlement to that money. $1,000 per week was to be paid directly to Dr Pincock.
The "Norwest Real Estate payment" was a payment of $135,000 for the 5% deposit to purchase the Norbrik Drive property in Bella Vista. Dr Pincock wanted to acquire the property as part of his strategic plan for expansion of the E4 business. He told his lawyers that he wanted to use some of the investment funds to buy the Norbrik property and they set it up so that was possible. The property was not purchased in the name of the AAC Trust. It was purchased by a different entity. According to Dr Pincock the $135,000 was paid back over the coming weeks and this was just managing cash flow. There is no documentary evidence of the money being paid back.
In January 2016 Patient A says she wondered whether her investment funds had been used for the purchase of the Norbrik Drive property. She says she asked Dr Pincock whether he had used the money for that purpose. His response was, "We needed the money. We used the money you invested. The property has now settled."
The "Dr Pincock payment" was for $100,000. In cross-examination, Dr Pincock said that this was probably reimbursing himself for a payment he had made to builders for the fit out for the benefit of E4. It was another example of short term cash flow management. Dr Pincock's evidence as to how this money was spent was equivocal. He was "probably" reimbursing himself. But the payment was made to him personally and there is no documentary evidence to corroborate his supposition that he used the money to pay builders for a fit out of E4 premises. We find that the money was not spent for any purpose related to the AAC Trust.
We find that the money was paid or loaned in the ways we have set out above and that none of the money was used for the purposes of the AAC Trust.

[29]

Did Dr Pincock consider that the AAC Trust owed him money and that he was entitled to use the funds for his own personal benefit?

In the interview with police Dr Pincock said that AAC owed him "over a million dollars". Dr Pincock said he told the police that AAC owed him that amount because "legally the entity did owe me a huge amount of money". Later in the interview Dr Pincock expanded on his understanding of what Patient A and Patient B were investing in: They were purchasing a right to a future dividend in a company. I was selling shares to them. And, and because I owned the shares then that money's to me. . . [The lawyer's] said if you have already put significant funds in then you have a right to that money. And, but if you did not, if I hadn't put a cent into that business or I wasn't underwriting it, I wouldn't have had any right to that money, but I did.
In relation to the OPES Projects payment, Dr Pincock told police that: This was all set up so that I could, they knew that I need, that I wanted to use that money other things. And to be honest, if it wasn't OPES it would have been a new car. That's what, you know, I thought I'd been do, working hard. I thought I deserved it and, um, it, the simple fact is that that came up and Ben, who was my business partner, that was going to be a stretch to . . do it over time. And we paid it up as a lump sum, got it over and done with, I , and then they paid me back over a year. So all the money from OPES went back into running business anyway 'cause they paid back the loan.
When the police asked why the money Patient A and Patient B had invested did not go straight to the AAC, Dr Pincock said, "Because I was told it was my money free use" and "a technical issue of what account it came out of". In relation to the OPES Projects payment of $195,000, Dr Pincock said that the fact that he had received the funds from Patient A and Patient B when he needed to lend Windemere the money was "extremely handy." However, if he had not used it for the OPES Projects, he might have bought "shares" or "a fancy new car". He added that "whether it went to OPES, or whether it went to, to legal fees, or whether it went to my kid's school fees, I was acting as if that was my own money."
Dr Pincock was adamant that he did not consider that the AAC Trust owed him money. In his statement, Dr Pincock said he considered the money he had already invested in the business to be a "sunk cost", not a debt. He said he invested money in the AAC Trust for the initial set up and subsequent running of the business, but did not intend to recoup that money.
Dr Pincock denied that he thought he could use the trust monies in any way he liked. He says he understood that the trust deed allowed him to "manage cash flow". By that, Dr Pincock means that he could use the funds on matters other than trust business, as long as it was paid back later. For example, it could be used to pay wages that were due to E4 employees or he could pay builders for renovation work. When reminded of the statements he had made to police, Dr Pincock said that the examples of how he could spend the money, such as on his kid's education, were not intended to reflect what he would actually spend the money on.
Our factual findings is that Dr Pincock did not regard the AAC Trust as owing him money in any legally enforceable sense. While he told police that "legally the entity did owe me a huge amount of money", what he meant was that because of the large amount he had already invested, he could use the funds Patient A and Patient B had invested to pay his debts as they arose and to lend money in return for interest. In that sense, though not in a legally binding sense, he did consider that the AAC Trust was indebted to him or owed him money.
We find that Dr Pincock considered that the AAC Trust owed him money, although not in any legally enforceable sense, and that he thought he was entitled to use the funds for his own personal benefit.

[30]

Before he used the funds, did Dr Pincock fail to disclose to Patient A that the AAC Trust was indebted to him and he intended to use the funds for his own personal benefit?

Dr Pincock's evidence is that he did not tell Patient A that the business owed him money, but disclosure was not necessary because she would have known that he had put a large sum of money into the business. In the interview with police, Dr Pincock said that Patient A and Patient B "had a very clear understanding that it became my money once they were sold shares. That's my recollection." Dr Pincock also told police in relation to the "Norwest Real Estate payment", that he wanted to put the investor's funds into that because he felt it was "a little bit more solid". But his lawyers told him he could not do that "for some legal reason". He said Patient A and Patient B "knew that I need, that I wanted to use that money for other things".
Alternatively, Dr Pincock says that Patient A signed the Deed of Trust establishing AAC and would have known that the Trustee can exercise power over the trust assets. Clause 17.1 provides that: The Trustee has and retains all powers over all assets of the Trust and can exercise those powers as if it were the absolute and beneficial owner of the assets . .
When asked whether that clause allowed him to use trust funds for non AAC Trust purposes, Dr Pincock said that he could have, but he did not. The money was spent for AAC purposes or used for cash flow management. If the money was used for non-AAC purposes, Dr Pincock says that he was permitted to do so as long as he repaid the money. He said he always repaid the money. In fact, he was putting in much more than was temporarily being removed. Dr Pincock did not point to any documentary evidence that he repaid money invested by Patient A or Patient B to the AAC Trust. We are not satisfied that he did so.
Patient A's evidence is that Dr Pincock did not tell her how much money he had put into the business or that he felt he was entitled to use the funds for non AAC Trust purposes as long as he paid back the money. We do not accept Dr Pincock's evidence that either Patient A "would have known" anything about how he intended to use the funds or that she would have known that the Trustee can exercise power over the trust assets. Before he used the funds, Dr Pincock failed to disclose to Patient A that the AAC Trust was indebted to him in the sense we have described or that he intended to use the funds for his personal benefit.

[34]

Meaning of "not a suitable person"

One kind of complaint that can be made about a practitioner under s 144(e) of the National Law is that they are "otherwise not a suitable person to hold registration. . .". The following complaints may be made about a registered health practitioner - (a) Criminal conviction or criminal finding A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence. (b) Unsatisfactory professional conduct or professional misconduct A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. (c) Lack of competence A complaint the practitioner is not competent to practise the practitioner's profession. (d) Impairment A complaint the practitioner has an impairment. (e) Suitable person A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner's profession.
Allegations supporting a finding that a person is not a suitable person to hold registration need not have any connection with the practice of the practitioner's profession.
In Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [114] the Gleeson JA (Leeming and McCallum JJA) discussed the meaning of not being a "suitable person": 114 . . . Importantly, the meaning of "suitability" is not fixed or comprehensively defined in the National Law and includes aspects of competence (s 55(1)(d) and 55(h)(ii)), as does s 139(b)), impairment (s 55(1)(a)) and criminal conduct (s 55(1)(b)).
Section 55 of the National Law lists various circumstances justifying a finding that an individual is not a suitable person to hold registration. One of those circumstances is that the individual is "not a fit and proper person for general registration". The relationship between that provision and not being "a suitable person to hold registration" was considered in Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [72] and [73]: 72 We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3(1) and 3(2)(a) of the National Law). 73 While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills.
There is no allegations of incompetence or technical deficiencies in this case. Dr Pincock's unsuitability is said to be because his lack of honesty, integrity and probity.

[38]

Relevant statutory provisions

This complaint is that Dr Pincock is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he has contravened a provision of the National Law. That provision is s 130(1) which provides that: 130 Registered health practitioner or student to give National Board notice of certain events (1) A registered health practitioner or student must, within 7 days after becoming aware that a relevant event has occurred in relation to the practitioner or student, give the National Board established for the practitioner's or student's health profession written notice of the event.
A 'relevant event' includes relevant event, in relation to a registered health practitioner, means - (a) the practitioner is charged with - (i) a scheduled medicine offence; or (ii) an offence punishable by 12 months imprisonment or more, whether in a participating jurisdiction or elsewhere; or (b) the practitioner is convicted of or is the subject of a finding of guilt for - (i) a scheduled medicine offence; or (ii) an offence punishable by imprisonment, whether in a participating jurisdiction or elsewhere; or
Dr Pincock failed to notify the National Board within 7 days of being charged on 18 May 2018 with one offence of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900.
Dr Pincock admits that he failed to notify the National Board as required and that he is guilty of unsatisfactory professional conduct. Complaint Four is proven.
Complaint Five is that Dr Pincock is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he has contravened a provision of the National Law. That provision is s 109(1)(b) which provides that: 109 Annual statement (1) An application for renewal of registration must include or be accompanied by a statement that includes the following - . . . (b) details of any change in the applicant's criminal history that occurred during the applicant's preceding period of registration; Note - See the definition of criminal history which applies to offences in participating jurisdictions and elsewhere, including outside Australia.
When renewing his registration on 22 August 2018, Dr Pincock made a false declaration concerning a change in his criminal history in that he failed, when asked, to provide details of the charge outlined in Complaint 4.1.
Dr Pincock admits that he made a false declaration and that he is guilty of unsatisfactory professional conduct. Dr Pincock's evidence was that he believed he was required to make disclosures only when convicted, not when charged with an offence. These contraventions were not deliberate. He accepts that it is responsibility to be aware of these obligations.
Complaint Five is proven.

[42]

Findings

The relevant standard is informed by the Code of Practice. Doctors should be ethical, truthful and trustworthy. They should not take advantage of their patients financially or in any other way. Doctors must be honest and transparent in financial arrangements with patients and recognise that there is a power imbalance in the doctor-patient relationship. Their conduct should warrant the trust and respect of the community.
Complaint 1.1 (entering into an employment relationship with Patient A and continuing the therapeutic relationship) is not serious enough to amount to professional misconduct or to contribute to an overall finding of professional misconduct. The remaining particulars of Complaint One, which we will not repeat here, are sufficiently serious to justify a finding of professional misconduct. Taking advantage of the power imbalance in the doctor/patient relationship in the manner and to the extent that Dr Pincock did, was an abuse of the trust that is a so often a characteristic of those relationships. Complaint Two includes an instance of knowingly misleading the Commission.
In combination, the particulars of Complaint One (apart from Complaint 1.1) and Complaint Two amount to professional misconduct.
Complaints Four and Five are breaches of requirements to give notice of certain events. It is important for practitioners to comply with these requirement so that the health and safety of the public can be protected. Dr Pincock's evidence was that the contraventions occurred in circumstances where he believed he was required to make disclosures following conviction only. He did not know that he was required to give notice of charges alone, nor did he know that criminal charges, as opposed to conviction, could comprise a change in criminal history for the purposes of the National Law. That evidence was not challenged. In circumstances where the contraventions were not deliberate, we do not consider these complaints amount to professional misconduct or to contribute to an overall finding of professional misconduct.
Complaint 6 is proven, in relation to Complaint One (apart from Complaint 1.1) and Complaint Two in combination.

Health Care Complaints Commission v Pincock

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (45 paragraphs)

Parties

Cases Cited (19)