Health Care Complaints Commission v Reader - [2016] NSWCATOD 152 - NSWCATOD 2016 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Reader

[2016] NSWCATOD 152

NCAT Occupational|2016-10-31|Before: Dr P, Ms J

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2016-10-31

Before

Dr P, Ms J

Source

Original judgment source is linked above.

Judgment (26 paragraphs)

[1]

Background

The practitioner, who was born in 1958, was first registered in Australia in December 1987. He was awarded the degrees of MB.BS at the University of New South Wales in 1988. In March 2015 the practitioner consented to a condition that he not practise medicine until the determination of these proceedings.
In 1999 the practitioner was appointed by NSW WorkCover as an Injury Management Consultant.
In 2002 the practitioner was appointed to the NSW Motor Accident Authority as a Permanent Impairment assessor.
In 2007 the practitioner received a Diploma of Skin Care Medicine, Australasian Faculty of Skin Cancer Medicine (now known as Skin Cancer College of Australasia).
The practitioner commenced his medical career first as an intern, then as a resident medical officer and subsequently as an anaesthetics registrar with the Illawarra Area Health Service. He subsequently worked in the latter capacity at St Luke's Private Hospital in Sydney.
The practitioner commenced general practice at various locations on the south coast of New South Wales in 1993.
From 1999 the practitioner commenced work with NSW WorkCover as a consultant, and from 2002-2006, additionally acted as a Permanent Impairment Assessor for the NSW Motor Accident Authority.
In 2003 the practitioner became the Medical Director, Injury and Occupational Health, Wollongong. That year he also commenced practice in Skin Cancer Medicine for Primary Care Skin Cancer Clinics which he continued until October 2014 when, according to Dr Lal, he voluntarily ceased practising.
From November 2006 to 2013 the practitioner was Secretary and NSW Representative, Australasian Faculty of Skin Cancer Medicine (now Skin Cancer College of Australasia).

[2]

[8]

Patient A

For convenience, we will briefly examine the practitioner's concessions and the opinion of the HCCC expert, Dr Lye, in respect of Patient A. We will then deal with the evidence concerning a disputed particular (particular 2).
Patient A, who described herself as having fair skin and red hair, was treated by the practitioner on a number of occasions. Her complaint is centred on treatment she received in June and August 2012 for treatment of Bowen's disease on the right wing of her nose.
Patient A and her husband provided statements and gave oral evidence before us. The practitioner concedes that he failed to discuss options for treatment of this patient's Bowen's disease on the right wing of her nose at consultations in June and August 2012, and that he inappropriately recommended and planned to continue with a full thickness skin graft for repair of the wound on the patient's right ala, rather than referring her to a specialist. This occurred in circumstances where repair surgery risked adversely affecting cartilage in the nose, risked a significantly poorer outcome compared to a composite graft, and was planned at a time when the patient's nasal architecture may have been compromised.
The practitioner also concedes he failed to provide the patient with adequate wound care instructions.
The practitioner disputed that when the patient complained she required more anaesthetic that he failed to stop the surgery and manage her anaesthesia. Mr Lynch noted although the practitioner had not filed a statement we should have regard to his correspondence with the HCCC during the course of its investigation, copies of which appear in the volumes filed by the HCCC and which became Exhibits A, B and C before us.
Patient A described feeling pain immediately the practitioner commenced the procedure on her nose on the third occasion she consulted him. She described crying and clenching her firsts. Patient A's husband, who was present at the consultation, described a conversation between his wife and the practitioner about half way into the consultation. He explained he saw his wife clenching the edge of the treatment couch with her hands. Both Patient A and her husband report the practitioner saying words to the effect "I can't give you more, you have had the maximum".
The practitioner responded to this complaint in a letter to the HCCC dated 6 February 2016. At [2] the practitioner refers to his "standard procedure" in anaesthetising a patient, and said that he followed this practice when he performed the excision on Patient A on 24 August 2012. He also describes ceasing a procedure if a patient tells him they are in pain or appears to be in pain. He denies that he said "I can't give you any more".
Although there were slight differences between Patient A and her husband as to the time in the consultation with the practitioner when she reported feeling pain, the general tenor of their evidence was identical. Their evidence of the words of the complaint made, the patient's demeanour and the practitioner's response were broadly analogous. We found Patient A and her husband to be credible witnesses and we accept their evidence.
The HCCC relied on a series of expert report by Dr Lye. Dr Lye is the Medical Director, Chatswood Skin Care Physicians, a post he has held since 1992. He holds the degrees of MB.BS from the University of Sydney and has a Certificate in Dermatology from Monash University, and a Diploma of Practical Dermatology from Cardiff University. Dr Lye gave evidence by telephone and was cross-examined by Mr Lynch.
Dr Lye noted in his discrete report on Patient A dated 21 December 2015 that Bowen's disease is a low risk tumour. He opined, if the practitioner had the appropriate training and expertise, it was appropriate for him to advise the patient that he could perform the excision of the lesion given its location and pathology results. However, he explained that if the patient was not given the option of removal other than by himself, the patient's consent was not a properly informed consent and the practitioner's conduct fell below the standard reasonably expected of a practitioner. He is critical, if established, of the practitioner's failure to manage appropriately Patient A's anaesthesia, finding that conduct to be significantly below the standard and that it invited his strong criticism.
Dr Lye was also asked to comment on a report by Professor Havas, a specialist who conducted a repair of the patient's nose, that the practitioner knew he was removing cartilage and that a composite graft was the appropriate treatment in those circumstances.
The expert found the practitioner's choice of full flap skin graft would have resulted in a significantly poorer outcome for the patient, and that the practitioner's conduct attracted his strong criticism. He made similar comments about the practitioner's failure to refer to an ENT specialist when he identified the patient's nasal architecture may be compromised. Finally, he found the wound care instructions given to the patient fell below what is reasonably expected of a practitioner of the practitioner's training and expertise. We infer from Dr Lye's comments, he did not find this last failure to be significantly below the standard expected.
Dr Lye was not challenged in cross-examination on this report. We accept his opinion. We are satisfied that particular 3, which is conceded by the practitioner, is established to the requisite standard. We further find that particular 2 is established and constitutes unsatisfactory professional conduct.

[9]

Patient B

The practitioner performed scar revision surgery on this female patient on 16 August 2011. The asserted unsatisfactory professional conduct, which is admitted, is that the practitioner failed to wait for a sufficient period of time for the patient's original scar to heal before conducting revision surgery. It is also asserted that Patient B's surgery should have been performed by a plastic surgeon or someone with equivalent training and expertise. Finally, it is asserted the practitioner failed to offer Patient B a referral to a plastic surgeon after she complained about the cosmetic outcome of her original surgery.
In his response to the patient's allegations the practitioner said that he had, at the initial consultation, offered Patient B a referral to a plastic surgeon. That evidence does not accord with Patient B's statement. We note that Patient B was not required for cross-examination. We accept her unchallenged evidence on this topic.
In an initial report dated 5 September 2015, Dr Lye expressed his criticisms of the practitioner's performance of the revision surgery and his failure to refer to a plastic surgeon. He noted that two plastic surgeons were reluctant to perform scar revision surgery due to the unpredictability of cosmetic results on the nose. Dr Lye found the practitioner's conduct to be significantly below the expected standard. We agree with his conclusion in respect of the revision surgery. We note, however, that Dr Lye in his supplementary report dated 5 October expressed the view that each of the particulars pleaded whilst significantly below the standard expected did not invite strong criticism. The particulars relevant to this patient (particulars 5 and 6 of Complaint One) are ones which the HCCC assert, in the alternative, can be accumulated with other particulars to reach a finding of unsatisfactory professional conduct.
Two matters require consideration. First, the practitioner has conceded the particulars are established. Secondly, it is important to refer to the words of the statute themselves. The statute refers in s 138B (1) (a) to conduct "that demonstrates the knowledge, skill or judgment possessed is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience [our emphasis]. Section 138 (1) (a) does not require an expert to be "strongly critical" to prove the particular pleaded. What must be established to the Briginshaw standard is that the facts particularised in the complaint are established and that conduct, is found to be significantly below the relevant standard. Including the words "invites strong criticism" in order to find unsatisfactory professional conduct proved is a gloss on the statute. This may be contrasted to the situation where an expert finds the conduct to be below the standard but not significantly below the standard. In the latter case if the expert evidence is accepted, the particular conduct pleaded, of itself, does not satisfy the definition.
The words "invites strong criticism" no doubt reinforce the gravity of the conduct found to be below the standard. The likely genesis for the HCCC asking an expert to provide such comment is grounded in the definition of "professional misconduct" in s 139E. This provision refers to individual incidents of unsatisfactory professional conduct and cumulative incidents of unsatisfactory conduct that amount to conduct of a sufficiently serious nature to constitute professional misconduct. The use of the words "strongly critical" may also have had its foundation in the common law test of professional misconduct referred to in Allinson v General Medical Council [1894] 1 QB 750; [1891-4] All ER Rep 76. In that case Lopes, LJ considered the meaning of the words "infamous conduct in a professional respect" and explained: "If it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open … to say that he has been guilty of 'infamous conduct in a professional respect'."
Although addressing the issue of unsatisfactory professional conduct in a co-regulatory jurisdiction where s 165M has no application, we think the discussion of Mitchell J in Solomon v Australian Health Practitioner Regulation Authority [2015] WASC 203 at [131]-[136] provides a useful guide to determining whether or not conduct constitutes unsatisfactory professional conduct.
Dr Lye opines that, in respect of each of particulars 5 (a), (b) and 6, the practitioner's conduct is significantly below the standard expected. This Tribunal, as an expert tribunal, agrees with that opinion. Based on that factual finding we are satisfied unsatisfactory professional conduct is established in respect of these particulars.

[10]

Patient C

Little needs to be said about this patient. The practitioner admits all of the particulars pleaded. The practitioner performed a sub-optimal excision of a tumour on the patient's lip resulting in a poor outcome and aesthetics for the patient as amply demonstrated in the photographs annexed to the patient's statement.
Dr Lye described Patient C's treatment as resulting in "ugly deformity" with "tethered contracture" resulting in her "lip functioning poorly". He opines the practitioner should have practised within the limits of his ability, and to be cognisant of what his limitations are. We agree that unsatisfactory conduct is established in respect of this particular of the practitioner's treatment of this patient.
In her statements Patient C refers to the practitioner explaining he would remove her BCC using a Moh's procedure. She does not refer to the practitioner, at this point, or at any point in her treatment, offering referral to a plastic surgeon. This is to be contrasted with the practitioner's response to the HCCC dated 25 November 2014 in which he says he offered to perform the surgery himself or to refer to a plastic surgeon. This response is inconsistent with his admission of particular 8.
In his September report Dr Lye concluded that if the practitioner failed to offer Patient C the option of referral to a plastic surgeon on 21 July 2011 and on 12 September 2011 that failure was conduct significantly below the standard expected. In his supplementary report dated 5 October 2016 Dr Lye opined the conduct in question was significantly below the standard expected but did not invite his strong criticism.
We are independently satisfied that each of the particulars of complaint in respect of Patient C are established and demonstrate that the conduct pleaded constitutes unsatisfactory professional conduct. Even if we are wrong about particular 8, we agree with Dr Lye that the practitioner's treatment of Patient C as particularised in particulars 7 (a), (b) and (c) are established to the requisite standard. As we will later explain, we find the matters established in particular 7 are of such a serious nature that they constitute professional misconduct.

[12]

Patient E

The complaint asserts four particulars with various sub-particulars in respect of this patient. The practitioner excised a Basal Cell Carcinoma (BCC) off the left tip of the patient's nose. It is asserted that the practitioner failed to advise Patient E that if the pathology after surgery "did not return clear" re-excision surgery may be required either before or after a consultation on 3 December 2012 or prior to surgery on 5 December 2012. It is also asserted that he inappropriately continued to treat the tumour by performing further surgery in circumstances where the patient's nasal architecture had started to collapse, pathology revealed an aggressive high risk tumour and where the surgery should have been performed by a plastic surgeon.
The practitioner admits all the particulars in respect of this patient. We note however in her statement Patient E says at her initial consultation with the practitioner she said he explained to her that treatment options included travelling up to Sydney for the procedure, and the "second option" was to refer her to Dr Krishna. The patient says she declined the referral as she could not afford the alternate proposals. She explains she thought the practitioner was a "skin specialist and that there would be no need to question him".
We perceive, as drafted, the particular is directed, not to practitioner failing to offer the option of a referral to a specialist, but rather an asserted failure to refer in the circumstances of the patient's diagnosis and risks associated with the surgical procedure. In other words, the practitioner was not competent to conduct the surgical procedure and should have made the appropriate referral.
In his initial report Dr Lye opined: The nose is a high risk area, morphoeic BCC (on initial biopsy) is a high risk tumour, and previous cryotherapy to the lesion makes recurrent BCC a high risk situation. The risks are high for recurrence, inadequate removal, or procedural complications. I would be uncomfortable with anyone other than a plastic surgeon or ENT surgeon performing this procedure unless [the practitioner's] training was of an equivalent level to those specialists mentioned which I do not believe is so from the documents provided.
Dr Lye went on to explain that if the original biopsy had not triggered a referral to a specialist, then "after the deficit left by excision that is 'closely excised'" a referral to a specialist should have occurred.
Although admitted by the practitioner, Dr Lye did not consider that the practitioner had failed to adequately explain to Patient E that if the pathology after the initial surgery did not return clear, re-excision surgery may be required. Dr Lye found the conduct of the practitioner to be significantly below the standard expected in respect of particulars 13 and 14. In his supplementary report Dr Lye confirmed that opinion, but commented that the matters pleaded in particular 13 did not attract his strong criticism.
Particular 13 deals with the practitioner's continued treatment of the tumour on 5 December 2012, where amongst other matters he was aware the integrity of the patient's nasal architecture had commenced to collapse, the surgery was of high risk location and the pathology results showed the patient's BCC was of a nodular and micronodular type requiring the continued treatment be undertaken by a plastic or ENT surgeon.
We agree with Dr Lye the practitioner's conduct as pleaded in particular 13 was conducted significantly below the standard expected of a practitioner of his experience and expertise. We are satisfied the particular is established.
Dr Lye is extremely critical of the practitioner performing flap repair surgery on this patient on 7 December 2012. We agree with his opinion. We note the practitioner's conduct attracted his strong criticism.

[15]

Patient H

Two particulars are asserted in respect of Patient H. The practitioner has admitted that he failed to adequately explain to the patient that he could be referred to a plastic surgeon for treatment of the tumour on his forehead (particular 17). The practitioner disputes that he failed to stop the surgery to ensure the patient had adequate anaesthetic when the patient said he could feel a painful burning sensation and stated to the practitioner words to the effect "my head is hurting".(particular 18)
Patient H wrote a detailed statement shortly after his consultations with the practitioner in 2013. He explained in a later statement that the practitioner had indicated to him that he could "see someone else" which he interpreted as to obtain "a second opinion". The patient, who had already seen another practitioner who performed the original biopsy on his forehead, explained that he rejected the doctor's suggestion on the basis he already had one opinion.
Dr Lye opines in his supplementary report that if the patient's version of events is correct, and that he was not offered a referral to a plastic surgeon then the conduct falls below the standard expected.
As noted above, in his statement dated 29 May 2015 Patient H refers to the practitioner saying "you could see someone else". We accept the words attributed to the practitioner were open to misinterpretation (as in fact appears happened) and were insufficient to provide a complete explanation to the patient. But we accept the practitioner did suggest to the patient, albeit obliquely, referral to another practitioner. We find the explanation was inadequate, but does not permit a finding that the practitioner's conduct was significantly below the standard expected.
The practitioner did not admit particular 18. Patient H gave oral evidence before us. He presented as a credible and reliable witness. We are satisfied that his version of the events is an accurate one and the practitioner did not make enquiries or stop the procedure when the patient used an expletive and said that his head was burning.
Dr Lye opines that the practitioner's conduct was significantly below the standard expected, and in his supplementary report says the conduct attracted his strong criticism. We concur with his opinion and find Particular 18 is established.

[16]

Patient I

Particular 20, which is admitted by the practitioner, except for paragraph (b) asserts in broad terms that the practitioner performed a wide excision on the patient's left check which was closed with a trilobe flap repair where there was no diagnosis of invasive malignancy on pathology that required wide excision, where the tumour was of low risk and did not require wide excision and a flap repair, which left significant scarring, did not provide a better closure than an elliptical excision.
Particular 21, which is admitted in its entirety by the practitioner, asserts the practitioner failed to adequately explain to Patient I the need for, or benefit of, referral to a plastic surgeon in circumstances where the practitioner's provisional diagnosis was malignant melanoma.
The final particular in respect of this patient (particular 23) is directed to language employed by the practitioner who is reported to have said to the patient, referring to the scarring on his cheek, words to the effect "In some cultures scarring is a sign of beauty".
Sub-paragraph (b) of particular 20 asserts that the practitioner inappropriately excised the lesion of the patient's left cheek on 28 January 2014, performed a wide excision on 30 January 2014 and closed the wound with a trilobe flap repair on 30 January 2014 in circumstances where there was no diagnosis of invasive malignancy on pathology requiring wide excision.
Patient I's medical records disclose that the practitioner requested an urgent pathology report after excision of suspicious pigmented lesion of left cheek on 28 January 2014. The report dated 30 January 2014 disclosed: The majority of the lesion comprises a seborrhoeic keratosis with an adenoid pattern. A fibro-epithelial variant of basal cell carcinoma is considered less likely. A small intradermal naevus is noted at one end/margin and a plaque of squamous cell carcinoma in situ is present at the opposite end margin. There is no invasive malignancy identified.
Dr Lye opines about the practitioner's treatment of Patient I in his first report as follows: This approach was inappropriate. The lesion was an insitu SCC (a very low risk tumour with no invasive malignancy) found incidentally on excision margin. There was no diagnosis of melanoma and cure could have been achieved more simply than by excessive wider excision. Dr Caminer (plastic surgeon) states that there was "no need to do a flap repair", "trilobed flap repair has no basis for better closure", "this should have been done as an elliptical excision".
Dr Lye in his supplementary report recorded that the conduct of the unnecessarily invasive procedure "is conduct that falls significantly below the standard reasonably expected and invites strong criticism".
Patient I provided a statement relied on by the HCCC. He was not required for cross-examination. He recorded that the practitioner had not offered him a referral, and that when he spoke the words set out in particular 23 about his scarring he replied "Not in bloody Dapto they don't".
In his original report Dr Lye is critical of the practitioner's treatment if he had made a provisional diagnosis of malignant melanoma opining that the practitioner's conduct fell significantly below the standard expected.
We note that Patient I's report of his conversation with the practitioner is unchallenged. Dr Lye opines that the remark demonstrated inappropriate insensitivity to the patient's suffering and is conduct that is below the standard reasonably expected. He did not conclude the conduct was significantly below the standard. We find the language used was inappropriate, but agree with Dr Lye's conclusion that the conduct was not significantly below the standard. We are not satisfied that particular 23 is established.

[19]

The authorities relied on in support of aggregated particulars satisfying the definition of unsatisfactory professional conduct

Mr Griffin in support of the assertion that the accumulated particulars could amount to unsatisfactory professional conduct as defined in s 138B (1) (a) relied on his written submissions.
It is useful at this point in our reasons that we repeat paragraphs 3.3 to 3.5 of the submissions in full: 3.3 It is assumed that this means when the facts in two or more of the particulars are proven, and none of those particulars when assessed individually amount to unsatisfactory professional conduct, then the Tribunal can combine the conduct it has found to have occurred and, when appropriate characterize it as unsatisfactory professional conduct. 3.4 It is noted that usually in disciplinary proceedings the Applicant relies upon a similar sub-paragraph but instead of specifying which individual particulars are relied upon it is stated that "all' particulars amount to unsatisfactory professional conduct. 3.5 The respondent has advised in writing that "such a finding is not open as a matter of law" [letter from Avant Law Pty Ltd to the Applicant dated 17 October 2016].
We were directed to the obiter comments of Basten JA, with whom McColl JA and Sackville AJA agreed, in Lucire v Health Care Complaints Commission [2011] NSWCA 99. In the course of commenting on the form of pleading adopted by the HCCC in formulating a complaint his Honour said: This form of pleading has been commented on by the Court on previous occasions: see Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]-[31]. It inevitably gives rise to a degree of uncertainty as to the precise matters relied upon by the complainant and it is impossible to know the parameters of the case to be presented. Furthermore, it is not possible for the Tribunal to deal with such a complaint by finding it proven or otherwise: it can only deal with the case particular by particular. Whether any particular which is upheld constitutes unsatisfactory professional conduct, individually or in combination with other particulars, and whether any such particular constitutes professional misconduct, either individually or in combination with others, must be carefully identified in the findings of the Tribunal. As a result, the findings are likely to be complex, with a further risk that interested parties will not be able to identify readily and with precision what conclusions have been reached by the Tribunal and, where protective orders are made, to which breaches of conduct they relate. [as emphasised in the HCCC submissions]
Immediately prior to the paragraph relied on by the HCCC Basten JA addressed the form of pleading some particulars in the alternative. His Honour explained at [40]: The complaint, as set out in the Notice, was in narrative form. It purported to be a single complaint that the practitioner had been guilty of unsatisfactory professional conduct "and/or" professional misconduct in that she had: "i. demonstrated that the knowledge, skill or judgment possessed, or care exercised, by her [in] the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine; and/or iii. contravened the Medical Practice Regulation 2003."
Basten JA then recorded at [42] : There then followed 16 numbered paragraphs, four of which were entirely general in their terms and the remainder of which related to conduct or omissions on particular occasions, each involving the treatment of the patient. Further, some of the numbered particulars contained sub-paragraphs and, within particular sub-paragraphs, alternative limbs.
Reliance is also placed on the recent decision of Health Care Complaints Commission v Stone [2016] NSWCADOD 117. There the Tribunal was considered three separate complaints of unsatisfactory professional conduct each of which was admitted by the practitioner. It concluded at [32]: The Tribunal is independently satisfied that the admitted particulars are established and that they cumulatively amount to conduct significantly below the professional standard.
It was further submitted that drawing authority from a New Zealand professional disciplinary matter (Duncan v Medical Disciplinary Committee [1986] 1 NZLR 513) accumulation is permissible.
Mr Lynch submitted that reliance on Duncan was unsafe, and that using the decision of HCCC v Rahimpanah (MPSC 14), as authority for accumulating particulars to prove unsatisfactory professional conduct was in error. Mr Lynch pointed out the inherent risk in relying on a decision made under different legislation and drew our attention to the wording of s 138B (1).
We accept that the comments in Duncan were made in the course of an application for judicial review of a decision of the relevant New Zealand committee under the Medical Practice Act 1968 (as amended) (NZ) to refer for prosecution before the Medical Council in a single charge a number of disparate particulars of complaint against a medical practitioner. The primary judge conducting the judicial review held the Medical Practitioner's Disciplinary committee erred by dealing with the various complaints against the practitioner in a single charge of "disgraceful conduct in a professional sense". The Committee appealed only that aspect of the primary judge's reasons.
The comments of the plurality in the New Zealand Court of Appeal decision must be carefully construed in the context of the New Zealand legislation. That legislation provided for findings of unsatisfactory professional conduct, professional misconduct or disgraceful conduct in the professional sense. The last category of conduct could only be heard by the Medical Council while the lesser charges could be considered by the disciplinary committee. These alternative statutory conduct provisions are not identical to s 138B (1) or s 139E, although the concepts and consequences of findings of professional misconduct under the National law broadly equate to the charge and consequences of "disgraceful conduct in a professional sense".
The plurality explained: It is evident that the legislature has contemplated that complaints will not be in any particular form of words, that it is their subject-matter which is significant rather than how they are expressed, and that if found by the Committee to warrant inquiry by the Council they are to be translated by the Committee into appropriate charges. It is also clear that a number of complaints from the same or different sources may overlap or relate to the same subject-matter. In that situation an appropriate charge might well reflect more than one complaint. … Further, we do not think that there can be any doubt that a charge may combine a series of similar complaints by alleging a course of conduct in the carrying on of a practice and specifying the separate complaints as particulars or instances.
Significantly in our view the plurality went on to note: In the present case the document …is meant to charge a number of separate instances of disgraceful conduct in a professional respect; and also that considered cumulatively any number or all of the alleged instances of conduct amount to disgraceful conduct in a professional respect. …In any event we do not think the New Zealand legislation excludes it, provided of course that the practitioner is properly informed of precisely what he is charged with. That is crucial.
The plurality explained the need for the Council to "make clear" both their findings on separate charges and on "any comprehensive charge".
Mr Lynch pointed out that while the legislation has seen fit to provide for consideration of cumulative incidents of unsatisfactory professional conduct as constituting professional misconduct, that s 138B contains no such specific provision. Mr Griffin readily conceded this to be the case.
The thrust of Mr Lynch's submission is that if the factual finding is that the conduct pleaded in a specific particular is below the standard expected of a practitioner of similar expertise and experience, but not significantly below, that factual finding cannot be considered cumulatively with other like findings, or conduct significantly below the expected standard, to reach or bolster a finding of unsatisfactory professional conduct.
In this case the HCCC did not seek to aggregate particulars that its own expert considered to be below the standard, but not significantly below the standard (Particulars 1 and 23). Those particulars did not disclose a "common thread" or pattern of unsafe practice that may have supported a submission that considered cumulatively a significant departure from expected standards had occurred. Nor was there any expert evidence adduced to support an argument that considered cumulatively the identified particulars constituted unsatisfactory professional conduct.
We note that in HCCC v Stone the Tribunal's conclusion that the particulars established cumulatively constituted unsatisfactory professional conduct occurred in circumstances where all particulars were admitted by the practitioner. The Tribunal did not accumulate particulars where there was a finding of conduct below the standard, but not significantly below the standard.
Without deciding the issue as it is not relevant to our determination, we simply note that it appears to us that if it is asserted that conduct in respect of a patient, when considered individually or as a "one off incident", may not be regarded significantly below the standard, but when similar conduct is found for a number of patients, the pattern of conduct may be found to be significantly below the standard, then that is a matter to be pleaded. If such an assertion is to be made by the HCCC we consider, as a matter of procedural fairness to any respondent, the pattern of conduct must be pleaded in the complaint. We think this is consistent with issues of procedural fairness highlighted by the plurality in Duncan.
In this case, as we have found unsatisfactory professional conduct established in our consideration of the majority of individual particulars, it is strictly unnecessary for us to go further. As a matter of logic, however, those established particulars must cumulatively, also constitute unsatisfactory professional conduct. As presently advised, we think this is what Basten JA meant in his obiter comments in Lucire.

[21]

Impairment and not competent to practice

The practitioner acknowledges, as at the date of the hearing, that he is impaired, suffering a major depressive condition. He acknowledges that as a consequence of his impairment he is not presently fit to practise.
We had the benefit of reports, both from the practitioner's treating specialist, Dr Lal, and the expert retained by the HCCC, Dr Anthony Samuels (Dr Samuels). Dr Lal gave oral evidence by phone and was cross-examined by Mr Griffin. There was no substantial difference between the experts about the practitioner's diagnosis and prognosis.
In his report dated 22 January 2016 at page 9 Dr Samuels opined: At this stage I would regard him as fulfilling DSM-V criteria for Major Depression of moderate severity. He still remains quite symptomatic with lowered mood, very flat affect, negative cognitions, sleep and appetite disturbance, poor energy and high anxiety levels. He acknowledges he has had suicidal thoughts although no active plan. He feels quite "exposed" and sensitive when out in public places and fears he will bump into patients but there is no evidence that he has become actively paranoid or psychotic. [The practitioner] also has quite marked cognitive difficulties.
At the time of his initial report, Dr Samuels recommended the practitioner should not return to work until cleared by his treating practitioners.
On 19 October 2016 Dr Samuels, having read a number of letters sent by Dr Lal to the practitioner's general practitioner, in a letter to the HCCC, confirmed his earlier opinion and noted that his views "seem to accord with Dr Lal".
In a report dated 5 October 2016 Dr Lal addressed a number of questions posed to him by the practitioner's solicitors. He opined that the practitioner is suffering from a Major Depressive Episode, moderate to severe without psychotic features.
In response to a question about the practitioner's prognosis Dr Lal explained: [The practitioner's] condition is in the context of a specific and very significant stressor, that is, the current HCCC proceedings against him and the possible consequences for him of an adverse finding.
Dr Lal also referred to the practitioner's "significant financial stress" and opined that the practitioner's condition was unlikely to resolve until these proceedings are finalised. He added "I see no reason why once the current proceedings have been finalised that [the practitioner] would not respond to treatment". He further opined that the practitioner is not currently fit to practise as a medical practitioner due to the severity of his depression and the consequent cognitive issues.
Under the heading "Any other matters you consider relevant" Dr Lal opined: As with Dr Samuels, [the practitioner] struck me throughout the period of my contact with him as someone who very much valued his work. He appears to have been very much involved in training in his field and also, it appears, teaching others. He has demonstrated empathy for patients who feel they may have received poor outcomes from his treatment. [The practitioner] appears genuinely to have belief that he was doing the right thing according to his patients. Notably, however, when he received a review performed by a senior colleague indicating that his care had not been up to required standards [the practitioner] accepted this.
Dr Lal opined that the practitioner's acceptance of the senior colleague's view that his work was sub-standard "indicates a high level of insight". Dr Lal also opined that he was "very confident" that the practitioner would not return to practice until he and his treating clinicians felt "it was safe to do so"
The Tribunal, unlike Dr Lal, had the benefit of the practitioner's general practitioner's notes. These clinical notes disclose prescriptions in 2005 of Luvox, an anti-depressant, and Stilnox a sleeping medication.
At a consultation on 28 November 2005 the practitioner's treating general practitioner noted: Lot of stress/difficulty coping/following business collapse. Worried about relationships Moderate depression/Insomnia.
When seen the following week the practitioner's general practitioner recorded: No change. Relationship problems unchanged. Referred counselling - patient to organise ASAP in Southern Sydney. …Discussed clinical competence in detail. Working in skin cancer clinics and referring any difficult cases to others - Not suicidal, indecipherable considered financial effect on children/wife if not working
On 20 December 2005 the general practitioner noted no change in the practitioner's condition, that he was not suicidal, but not coping well.
Dr Lal was asked when the practitioner may return to a euthymic state. He responded saying that it was not easy to estimate, but if it might be months rather than years, if the practitioner was not subject to stressors.
Dr Lal explained that the practitioner first experienced major depression in 2013 and there was no history prior to that. That history, as reported by the practitioner to Dr Lal, is inconsistent with his general practitioner's clinical records.
Dr Anderson asked Dr Lal if he was aware that the practitioner had been treated with anti-depressants in 2005. Dr Lal explained that he had not had this history disclosed to him, but noted the practitioner's state of mind at the time of his consultations. He opined that the practitioner's treating doctor's notes were suggestive of a tendency to show depression at times of stress, but said it "sounds like" the depression was of a lesser severity than the practitioner's current condition.
Dr Lal also responded to questions posed by Dr Anderson about the likely effect on the practitioner's prognosis by reason of current civil proceedings instituted by some patients. Dr Lal did not depart substantially from his view expressed in his report about the practitioner's prognosis.
Mr Griffin cross-examined Dr Lal on the issue of the practitioner's insight given his position of disputing the two particulars that assert he gave inadequate anaesthesia or failed to stop the procedure and check with the patient when a complaint of pain was made. He asked Dr Lal to comment on the proposition that, if it was established as a matter of fact that the allegation was true, whether the practitioner's denial demonstrated his current level of insight was a not full insight. Dr Lal opined it was difficult to say "yes" or "no" depending upon whether or not the practitioner genuinely believed he was correct.
We are independently satisfied that the practitioner is currently impaired and by reason of that impairment is not competent to practice medicine.

[22]

Mr Lynch's submissions on the proposed protective orders

We have earlier noted that the practitioner seeks an order that he be suspended for a period of 12 months, and that his ability to resume practice only occur if two psychiatrists are satisfied he is competent to practice. The HCCC seek a cancellation order with a period of 12 months until the practitioner can apply for a re-instatement order.
We pause here to note the difficulties faced by us in circumstances where the practitioner did not attend the hearing, and provided no expert or any evidence setting out his inability to do so. We were simply unable to gain any meaningful or reliable impression of his insight or contrition for his admitted conduct other than from Dr Lal's report and his oral evidence. Nor were we able, absent even a statement from the practitioner, to consider his proposed future working arrangements. At its highest, we only had submissions from Mr Lynch that the practitioner did not wish to resume practice in the area of skin cancers.
First we turn to the issue of the proposed suspension order. Section 149C of the National Law provides as follows: (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied-- (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or [our emphasis]
It is relevant to note that if a suspension order is made for a defined period of time, on the effluxion of the time period, the practitioner's registration will automatically revive. The question which concerns us is, if the practitioner's registration revives, does the condition on his registration that he may only engage in practice if his treating specialist and the HCCC or a Medical Council appointed psychiatrist certify his fitness, act as a potential de facto extension of the suspension and constitute an abrogation of the Tribunal's power under s 149C to the psychiatrists?
In Health Care Complaints Commission v Litchfield [1997] NSWCA 297 the Court of Appeal considered an appeal against orders of the former Medical Tribunal of NSW that provided for the suspension of the practitioner for 12 months, a condition that during the suspension period the practitioner be reviewed by a psychiatrist, and on the period of suspension expiring that the practitioner was only to practice in a position approved by the then Medical Board.
The Court of Appeal held that the order imposing the condition during the suspension was not within power, explaining: The period of suspension protected the public while it lasted, but not thereafter. The Tribunal must have had misgivings about the doctor's future behaviour because of the conditions it imposed. The condition requiring the doctor to submit to psychiatric assessment was inappropriate in a final order. The Tribunal may have had no power to make an interim order suspending the doctor from practice (see ss 164 (2), 64 (1), and 92 (1) (a)) but it may have been able to make an interim order imposing conditions on his registration (s 61 (1) (c)). What was to happen if the psychiatric assessment suggested that the doctor was likely to re-offend? The Tribunal has power to review a suspension on the application of "a person" (s 92 (1)) but on one view the only competent applicant is the person suspended. Even if this is not so the Tribunal's powers on a review (s 94) do not include the power to increase the period of suspension or make an order for deregistration.
HCCC v Litchfield was heard under the repealed Medical Practice Act 1992 (NSW). The relevant review powers are now found in Division 7 of Part 8 of the National law. Under s 163B the Tribunal has power, on the application of a person, to end or shorten a period of suspension. It does not have power to extend a period of suspension, nor can it make a cancellation order. A Tribunal can review conditions on a practitioner's registration and may alter or remove conditions.

Parties

Applicant/Plaintiff:

Health Care Complaints Commission

Respondent/Defendant:

Reader

Legislation Cited (4)

Health Practitioner Regulation National Law Legal Profession Uniform Law Application Act 2014(NSW)

Medical Practice Act 1992(NSW)

Legal Profession Uniform Law Application Act 2014(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Cases Cited (10)

Procedural history

Although the proceedings were originally listed for hearing for six days, at a case conference held 15 October 2016 the Tribunal was advised that the practitioner conceded the majority of the particulars in the complaint, and that the matter could be accommodated in two days. Subsequently, pursuant to the directions made at the conclusion of the case conference tor the practitioner to file a Reply, his solicitors wrote to the Tribunal, and on his behalf, conceded the majority of the particulars in the amended complaint. We treated the practitioner's solicitor's letter as if it were a Reply (see s 36 and s 53(3) of the Civil and Administrative Tribunal Act 2013 (NSW)).
In order to make appropriate protective orders, we will examine, in a summary way, the conceded particulars of the complaint before addressing in more detail the limited matters that remained in contention at the hearing.
Although the practitioner's letter did not concede he suffered an impairment or that he was not competent to practise, his counsel, Mr M Lynch, (Mr Lynch) advised us at the hearing that those complaints were conceded.
The practitioner did not file a sworn statement, or any statement, in the proceedings, but relied solely on a report of his treating psychiatrist, Dr Sharat Lal, (Dr Lal) and the Clinical Practice Guidelines for Management of Melanoma in Australia and New Zealand. He did not appear at the hearing. It was asserted on the practitioner's behalf by Mr Lynch that he was too ill to participate in the hearing.
At the commencement of the hearing the HCCC withdrew particular 22 of Complaint One. During the course of the hearing, after receiving evidence from Dr Peter Lye, (Dr Lye) the expert relied on by the HCCC, senior counsel for the HCCC, Mr P Griffin SC, (Mr Griffin) withdrew reliance on particular 19 of Complaint One. Later, Mr Griffin asked that we delete from the unnumbered paragraph appearing before the heading "Background to Complaint One" reference to particular 12.
It was agreed between the parties that a separate hearing to determine appropriate protective orders was not required (see King v Health Care Complaints Commission [2011] NSWCA 353; Lucire v Health Care Complaints Commission [2011] NSWCA 99).

[2015] WASC 203

(1938) 60 CLR 336

(1980) 104 CLR 186