Health Care Complaints Commission v Richards

NCAT Occupational|2023-05-04

The Application

Complaint One seeks a finding of unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law. That section and subsection is as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The Particulars of Complaint One are stated as follows: "1. Between 30 June 2004 and September 2021, the practitioner practised as a medical practitioner without holding professional indemnity insurance contrary to: a) Clause 10.6 of the Medical Board of Australia's Code of Conduct ('the Code of Conduct'); and b) Section 129(1) of the National Law. 2. Between 2010 and 2020, the practitioner made false declarations to AHPRA when completing his registration application and/or renewal disclosure stating that he had professional indemnity insurance during this period when he did not, contrary to: a) Clause 1.4 and Clause 8.1 of the Code of Conduct; and b) Sections 109(v) and (iv) of the National Law. 3. On 7 October 2010, the practitioner became aware that he did not hold professional indemnity insurance prior to this date and failed to notify AHPRA within 7 days contrary to section 130(1) of the National Law. 4. On 8 September 2021 the practitioner misled the Council when he advised that he first became aware that he did not hold professional indemnity insurance on 7 September 2021, in circumstances when he was aware he did not hold indemnity insurance from at least 7 October 2010. 5. On 6 April 2022, the practitioner misled the Commission when he advised that he first became aware that he did not hold professional indemnity insurance on 7 September 2021, in circumstances when he was aware he did not hold indemnity insurance from at least 7 October 2010."

The HCCC submission

The HCCC submitted that the factual dispute is about whether the Respondent knew he did not have professional indemnity insurance as and from October 2010. It submitted there were a number of facts which indicate he must have known that.
The HCCC referred to the evidence given by the Respondent in relation to his attempts to renew his professional indemnity insurance with MDA National in the 2003/04 year. Although that failure is not the subject of this Complaint, it does set the ground for knowledge the Respondent did have, or should have had, that he did not effect his professional indemnity insurance at that time.
Between 2004 and 2010, the Respondent completed registration renewal applications where he informed the registration authority that he held professional indemnity insurance. Each year when he made that representation, the HCCC submits he knew that he did not have that insurance.
In 2010, the Respondent became aware that he did not hold professional indemnity insurance. He told the Tribunal that he has no recollection of that fact nor did he have a recollection of having made an application for insurance with MDA National, despite his agreeing that the application document, which forms part of Exhibit A1 and dated 7 October 2010, was completed with his handwriting and was signed by him.
The HCCC submitted that the discovery that he did not hold professional indemnity insurance in October 2010 must have been a significant life event. His evidence was that he would have been horrified by that discovery, as he was in 2021 when he found he did not hold that insurance. It would have been a very serious financial matter for him as he had, whilst practising in Western Australia, been the subject of a claim, which was ultimately settled.
The Respondent acknowledged that had there been a claim made against him in October 2010, or at any time thereafter, given his financial circumstances, it could have led to his bankruptcy.
The HCCC submits that it is implausible that the Respondent did not know he was uninsured from 2010 until 2021. It urged the Tribunal to find he did know.
The HCCC referred to the excuse given by the Respondent for his failure to hold the insurance, namely that his wife had handled all the paperwork for the practice he conducted. However, all the applications for renewal of his registration from 2010 onwards were completed by him. He physically ticked the box on the form which made the representation that he held professional indemnity insurance. Further, in 2011, he signed the cheque to accompany his application for insurance.
The evidence of the Respondent that he only discovered he did not hold the insurance in 2021 when he was required to provide evidence of a current professional indemnity insurance policy, the HCCC says should not be accepted as truthful. The Respondent's evidence had been that he had telephoned MDA to obtain his policy number and was told by them he had no insurance.
The HCCC submitted, that in his oral evidence, the Respondent was at times evasive when cross-examined.

The Respondent's Submission

The Respondent's solicitor said that the issue for determination is whether the Respondent had misled the HCCC and the Medical Council in relation to the evidence he gave about his failure to hold a current professional indemnity insurance policy. The Respondent's case is that he has no memory of the events of 2010 relating to his attempt to obtain professional indemnity insurance.
The Respondent said he had conceded that he must have known he did not hold insurance in 2010, as his exchanges with MDA National show.
The Respondent referred us to page 87 of Exhibit A1, where the evidence the Respondent gave to the Medical Council during the section 150 hearing in September 2021 is set out. There, when challenged about the circumstance of his not holding professional indemnity insurance, the Respondent said: "Yes. Look, I don't know what to say. It was 2004 apparently. My wife thought she'd paid it. She hasn't paid it. We found out late last night, I'm absolutely horrified and the rest …." The Respondent went further to acknowledge that "apparently" he had not held professional indemnity insurance since 2004.
Further on p 87 of Exhibit A1, the following is set out: "DR NEWBERRY: When it says 'I have medical defence' would you have ticked that box? DR RICHARDS: Yes. And I - yes - I absolutely. Because I thought until last night I didn't know I didn't. What Janelle does is when the bills come in she pays them - probably doesn't realise who they're for and she's unfortunately assumed we were right. And I've just gone - OK - am I insured. Yes. Right. I don't know what else to say. I feel absolutely ridiculous."
Further in the transcript of the Medical Council hearing, the Respondent when challenged further about his failure to hold professional indemnity insurance, stated: "Look, it's my fault. No-one else to blame. I mean I don't pay the bills but I'm still ultimately responsible so it's my fault."
The Respondent submitted that he was a sole practitioner who ran a busy medical practice on his own. He also worked in local public hospitals. He has taken full responsibility for the default evidenced in this hearing.
We pause here to note that the HCCC is asking the Tribunal to proceed with making protective orders in this case. It seeks that the Respondent be reprimanded and the HCCC does not oppose the imposition of conditions, which currently attach to his registration, being continued. The Respondent has told us that he will accept that outcome. He will also pay the HCCC costs.
The circumstance of the Tribunal making a protective order in the nature of that sought by the HCCC, and the Respondent, has troubled us. As will be seen hereafter, we are satisfied the Respondent did know in 2010 that he was not insured for professional indemnity insurance and that he did not thereafter hold that insurance. He has therefore been dishonest with both the Medical Council and the HCCC when he has asserted he did not know. If we are wrong in that determination, then it must flow that the Respondent has been reckless and/or grossly negligent in his failure to insure. Dishonesty and recklessness and gross negligence are not behavioural traits which should be found in a medical practitioner.
With the above possible finding in our minds, at the time of the Respondent's submission, we challenged him about the seriousness of his conduct and the possibility we would find that he was guilty of professional misconduct. We asked the Respondent's solicitor why we should not consider imposing a period of suspension of the Respondent's registration as a protective order.
In response to that challenge, the Respondent's solicitor listed the following facts which he urged we take into account. 1. The Respondent was suspended for a period of nine months following the determination of the s 150 hearing before the delegates of the Medical Council. He was without income during that time. 2. When the suspension was lifted by further order of the Medical Council, the Respondent needed to obtain professional indemnity insurance before commencing any medical practice. He was also required to practise subject to the conditions which had been imposed upon his registration. He was unable to effect his professional indemnity insurance until 10 months after his suspension was removed. 3. As a consequence of the failure to effect insurance and other matters arising from the s 150 hearing, the insurance premium which the Respondent is required to pay carries a 100% surcharge. He is also required to pay the first $30,000 of any claim which the insurers have to meet. He has paid his premium of $3,204.45 to cover the period from 12 April 2023 to 30 June 2023. He has entered into an arrangement with his insurer to meet the ongoing cost of his insurance by monthly instalments through periodic deduction from his bank account. 4. The Respondent continues to reside in the community of Iluka, the town where he had been practising until his suspension. He bears the consequence of many in that community knowing why he, as the only medical practitioner in Iluka, no longer practises there. 5. The Respondent continues to have a liability to pay rent on the premises he had practised from in Iluka, even though he cannot use that property to continue his practice. 6. The Respondent has incurred considerable legal costs in the proceeding before the Medical Council and this proceeding. (We note there is no evidence as to the quantity of that cost burden, however, we do accept he will have a liability of considerable proportion to meet.) 7. The Respondent has agreed to pay the costs of the HCCC of this proceeding and that can be anticipated to be a significant sum of money. 8. He has a wife and family to support. His wife no longer has employment.

Conclusion

There are a number of circumstances about the Respondent's evidence which are incredulous. Those are identified by us to include: 1. We do accept that the Respondent would have been horrified to learn in 2010 that he did not hold professional indemnity insurance had he not already known that. He acknowledged he must have known at that time he was uninsured. 2. It is accepted evidence that the Respondent has not held professional indemnity insurance since 2004. His excuse is that he left the paperwork for his practice to his wife. In his statement to the HCCC signed and dated by him on 6 July 2022, the Respondent gave as his excuse for not holding the insurance the following: "I would always ask her, 'Janelle, is my medical indemnity insurance up to date', and she would always reply, 'yes'. I would then tick the Yes box." The box ticking related to the requirement to state in the Respondent's registration renewal application, that he did hold professional indemnity insurance. We pause here to note that the Respondent purports to have a clear recollection of asking his wife the above set out question, once a year, yet he swears that he has no memory of the circumstances of seeking to obtain insurance with MDA National in 2010. 3. Clearly between 2010 and 2021, the Respondent could not have received any invoices for payment of premium on his professional indemnity insurance. It is incredulous that the Respondent's wife would assert he held that insurance when she had never paid a premium for same. Although she is portrayed by the Respondent as very busy and perhaps untidy in her "paperwork", there is no other evidence to show that she did not pay other relevant medical practice liabilities or personal liabilities. The Respondent's wife is not said by the Respondent to be a dishonest person. 4. Despite the Respondent's wife making a statement to the HCCC on 6 July 2022 (appearing at p 27 of Exhibit A1), she did not swear an affidavit for this hearing and she otherwise did not give evidence. 5. The Respondent's wife, in her statement to the HCCC, said that she had been the Respondent's practice manager since 2002. She asserted: "It was a part of my role as the practice manager to renew Dr Richards' Medical Indemnity Insurance cover each year and I don't recall the exact procedure for the renewal however I would expect back then that I would have received an account in the mail and made payment." 1. We know, as an agreed fact, that the last time the Respondent had professional indemnity insurance was for the 2003/04 year. The premium for that policy would have required payment in 2003. We know from the evidence that the Respondent, with the assistance of his wife, sought to renew and/or obtain professional indemnity insurance with MDA National for the 2004/05 year. That action did not achieve a policy for the Respondent. 2. As a consequence of the above, the Respondent would not have received any invoice or account or documentation relating to the renewal of a professional indemnity insurance with MDA thereafter. Thus, it must follow that there was no insurance to renew. It must follow that when the Respondent was required to complete his renewal of registration each year, he either did not enquire of his wife as to the status of his professional indemnity insurance, or alternatively, if he did so inquire, his wife dishonestly, recklessly or negligently, stated that he did hold the insurance. 3. The Respondent's wife, in her statement, having realised that she would not have received any documentation from MDA National after 2004, stated towards the end of her statement: "I would expect that if I had not renewed the policy in 2004, that we would not have received a new policy application in 2005 so in hindsight, whilst I thought I had renewed the insurance, I obviously did not put my mind each year to the fact that it was not an automatic renewal. I do recall that each year when David would renew his Practising Certificate, he would do that on the family computer at our home after hours and he would ask me the question, 'Janelle, have you renewed my medical indemnity insurance?' and I would just simply reply, 'Yes' as I honestly thought I had." 1. The evidence contained in the statement of the Respondent's wife, as set out above, defies credibility. 2. The evidence contained in Exhibit A1 demonstrates that the Respondent personally completed and signed the application for insurance with MDA National in October 2010. It further clearly shows that he was personally in communication with an employee of MDA National, at that time, in endeavouring to secure a policy. He spoke with an employee of that company on 6 December 2010. The Respondent's wife spoke with an employee of that company on 21 December 2010. The offer of insurance was made to the Respondent in October 2010, however, it was never taken up by him.
We conclude from the above that, on the balance of probabilities, we do not accept the evidence of the Respondent that he asked his wife each year if he held professional indemnity insurance, as he has claimed. We do not accept that the Respondent did not know in 2010 that he held no professional indemnity insurance cover for that year and in each year thereafter until 2021. We find therefore that Particulars 4 and 5 of Complaint One are established because we find the Respondent did not first become aware he did not hold professional indemnity insurance on 7 September 2021. It follows that any assertion made to the Medical Council that he first became aware of that circumstance on 7 September 2021 was an incorrect statement by him. If we are wrong in our conclusion that the Respondent acted dishonestly then we conclude he acted in a reckless and/or negligent manner in failing to renew or effect professional indemnity insurance for such an extensive period of time. However, when the Respondent stated that he only became aware that he did not hold professional indemnity insurance in 2021, that was not a truthful statement. He knew in 2010 that he did not hold professional indemnity insurance and had not done so since 2004.
We also find that Particular 3 to Complaint One is established. It is common ground that the Respondent did not advise AHPRA in 2010 that he did not hold professional indemnity insurance.
The consequence of our finding is that the Respondent's integrity, and/or competency, is challenged.
We find therefore that the conduct of the Respondent is professional misconduct as it satisfies the requirements of s 139E(a) of the National Law, in that his unsatisfactory professional conduct is of sufficiently serious nature as to justify suspension or cancellation of his registration. We are also satisfied that the Respondent is guilty of professional misconduct pursuant to s 139E(b) in that the instances of unsatisfactory professional conduct (Complaint One, Particulars 1 and 2), collectively amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration.
We are also satisfied that the Particulars 1 and 2, individually and collectively, satisfy the provisions of section 139B(1)(l) of the National Law and we find the Respondent is guilty of unsatisfactory professional conduct. We note sub-paragraph (l) to section 139B(1) addresses: "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession."
Having so determined the Respondent is guilty of both unsatisfactory professional conduct and professional misconduct, we now turn to consider the protective order which should be imposed.
Both parties seek a protective order which imposes a reprimand on the Respondent and the HCCC does not oppose conditions being attached to his registration which are identical to those which now exist.
The conditions which are currently attached to the Respondent's registration were imposed on 20 September 2022. The conditions are as follows: "1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. Not to undertake solo medical practice. 3. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 practitioners (excluding the subject practitioner): a. Where the practitioner must not be an owner or stakeholder in the ownership of the practice. b. Where the patients and patient records are shared between the medical practitioners. c. Which is an accredited practice. 4. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a) At each supervision meeting the practitioner is to: i) review and discuss his practice with his approved supervisor with particular focus on: • Medical records • Prescribing • Sources of evidence for clinical decisions • Clinical decision making and planning • Standard of referral letters • Vaccination • Differential diagnosis • History taking • Physical examination • Investigations • Safety netting/review b) In addition to the supervision meetings the practitioner must undertake fortnightly observation sessions with the Council approved supervisor for at least one hour duration. The observation sessions are to occur on alternating weeks to supervision meetings, and will alternate between: i. The supervisor observing the practitioner conduct at least 3 patient consultations ii. And the practitioner observing the supervisor conduct at least 3 patient consultations iii. The details and feedback about the observation sessions are to be included in supervision reports. c) Not to practise until a supervisor has been approved by the Medical Council of NSW. 5. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 6. To undergo a performance assessment."
The protection of the health and safety of the public is the paramount consideration of the National Law: National Law, section 3B.
The civil standard of proof applies to matters before the Tribunal. The civil standard of proof is the balance of probabilities. The strength of the evidence necessary to establish a matter on the balance of probabilities may vary according to the nature or gravity of the fact to be proved.
The overarching purpose of s 139E was described by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. His Honour observed at [35]: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
As was observed by Basten JA in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …"
In respect of complaints against a registered health care practitioner, the Tribunal may exercise any power conferred on it by Subdivision 6 of Division 3 of the National Law if, pursuant to s 149: 149 Powers may be exercised if complaint proved or admitted [NSW] … (a) it finds the subject-matter of a complaint against the practitioner have been proved; or (b) the practitioner admits to it in writing to the Tribunal.
The powers conferred on the Tribunal in terms of sanction are set out at ss 149A-149E of the National Law.
The paramount consideration to be given when deciding whether to exercise the disciplinary powers or in deciding which powers to exercise is the health and safety of the public (National Law, s 3B). This paramount consideration cannot, however, operate in isolation or render other relevant objectives and guidelines otiose. Relevant objectives under s 3(2) include: 3 Objectives (2) … (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and (f) to enable the continuous development of a flexible, responsive and sustainable Australian health workforce and to enable innovation in the education of, and service delivery by, health practitioners.
Relevant guidelines under National Law, s 3A(2) are: 3A Guiding principles [NSW] (2) … (a) the [national registration and accreditation] scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
The Tribunal's jurisdiction must be exercised bearing in mind the need to place to the fore issues of public safety. It has also been held that, in addition to the protection of the public being the paramount consideration, other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; [1997] NSWSC 29; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; [1960] HCA 40; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184; [1968] HCA 20.
In NSW Bar Association v Meakes [2006] NSWCA 340 at [114], Basten JA set out the following as the important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: "… First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly, … it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. …"
Those statements of principle were further refined by Meagher JA in the context of the National Law in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], which is quoted above at [98].

Power to Suspend or Cancel

The Tribunal's power to make protective orders is enlivened where it finds the subject matter of a complaint to have been proved, or admitted by the Respondent.
In this case, the Tribunal has power to suspend or cancel the Respondent's registration under s 149C(1)(b) "if the [Respondent] is guilty of professional misconduct".
The powers in Div 3, Subdiv 6 of Pt 8 of the National Law, also include the powers to caution, reprimand and to impose conditions on a practitioner's registration.
In Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [37]-[39], the Tribunal identified the following relevant principles in considering whether the circumstances of an offence rendered a practitioner unfit in the public interest: "37 Section 149C(1)(c) requires the Tribunal to evaluate whether 'the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession'. We accept, as the Commission contends, that the term 'public interest', which is not defined by the National Law, is a broader concept than the protection of the health or safety of the public and encompasses wider community interests such as the standards to which human conduct is to be held: see, for example, Pharmacy Council v Ibrahim [2020] NSWSC 708 at [35]. 38 Further, as Payne JA explained in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [67]-[69], s 149C(1)(c) is not subject to a requirement of 'probable permanent unfitness', but rather requires an assessment of 'the practitioner's current fitness to practise'. 39 The question posed by s 149C(1)(c) is whether the circumstances surrounding the relevant offence currently render the practitioner unfit to practise his or her profession in the public interest. The Tribunal must look back to the circumstances of 2018-19 and make that assessment in the present. Nonetheless, that evaluation has a narrow focus and is to be undertaken solely by reference to 'the circumstances of the offence'." (original emphasis)
In determining whether misconduct by a health practitioner is such that suspension or cancellation of their registration is appropriate, relevant considerations include (see, e.g., Health Care Complaints Commission v Moulds [2010] NSWNMT 1 at [47]; HCCC v Pierce [2010] NSWNMT 23 at [62]; Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 at [17]; Health Care Complaints Commission v Jung [2018] NSWCATOD 53 at [14]): 1. Whether the misconduct could satisfactorily be explained as an error of judgment rather than a defect of character; 2. The intrinsic seriousness of the misconduct as it relates to fitness to practise; 3. Whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner; 4. The motivation for the misconduct; 5. The underlying qualities of character shown by previous and other conduct; and 6. Whether the practitioner's conduct after the proven episode of misconduct demonstrates that public and professional confidence may be reposed in them to uphold and observe the high standards of moral rectitude required of a health practitioner.
The Tribunal in Health Care Complaints Commission v Limboro [2018] NSWCATOD 117 stated at [22]: "[Whether a practitioner is unfit in the public interest to practice] must be assessed in light of a holistic inquiry into suitability … [which] takes into account the wider context of the practitioner's … conduct, including their motivation, insight into the harm caused, and any attempts at remediation since the events and since any investigation or sanction. … Public protection goes beyond specific questions of individual deterrence and the risk of repetition to encompass the broader goal of safety through the setting and maintaining of professional standards, and through this, public confidence in the health professions."
In Health Care Complaints Commission v Russ [2021] NSWCATOD 5 at [53], the Tribunal stated: "In Lee v Health Care Complaints Commission [2012] NSWCA 80, Barrett JA emphasised at [20] that, 'Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance … is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it, citing with approval the explanation given by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]: '1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.'"
The function of the orders resulting from the decision, is not to underscore a punitive response, but to affect a mode of continuing public protection. As was stated in the Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [25], citing Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34]: " … imposition of restrictions on the practice of a health professional are only to be done in pursuit of this higher objective [protection]. Such a determination of necessity and appropriateness are made considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals".
Basten JA gave clarity to the intersection of these principles and the effects of disciplinary orders in NSW Bar Association v Meakes [2006] NSWCA 340 at [114]: "… it may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession."
As pointed out by Basten JA in Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31], elements of deterrence are subsidiary to other protective elements in the exercise of a protective jurisdiction.
In NSW, it has been said in a number of cases that a reprimand in itself acts as a deterrent both directly and indirectly (NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA) and, further, upholds and reinforces the standards of and confidence in the profession: Riley v Health Care Complaints Commission [2019] NSWCATOD 54 at [155]; Health Care Complaints Commission v Perera [2018] NSWCATOD 112; Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156. A reprimand may be all that is necessary to indicate there is no further need for deterrence: Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102; Health Care Complaints Commission v Lord [2019] NSWCATOD 182.
In Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738, the Tribunal considered the effect of a caution on the one hand and a reprimand on the other. It was held (at [14]) that "[t]he ordinary meaning of [t]he words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences." It does represent denunciation.
We note that a finding of professional misconduct does not mandate a statutory requirement to either suspend or cancel a practitioner's registration. The wording of s 149A includes the discretionary imprimatur by insertion of the word "may" when setting out the alternate possible orders.
As stated earlier, both the HCCC and the Respondent have asked the Tribunal to impose a reprimand on the Respondent in the circumstances of this case. We now turn to consider if such a protective order fulfils the requirements of the National Law, as explained by the above referred to decisions.
We need to consider the seriousness of the Respondent's misconduct.
The fact that we have found the Respondent guilty of professional misconduct does, itself, speak of the seriousness of his misconduct. However, we have not so far addressed why a failure to hold professional indemnity insurance is, of itself, professional misconduct, and how that might impact upon the patients the Respondent treated between 2004 and 2021 and the public who use the services of a medical practitioner.
At first glance, it is apparent that without professional indemnity insurance, the medical practitioner is at personal risk of having to meet any claims established against him, arising from his medical practice. That may be of such proportion to bankrupt the practitioner.
The harm which flows to a patient of a practitioner who does not hold professional indemnity insurance is that any claim which may be established against the practitioner may be incapable of being satisfied from the practitioner's financial resources. Further, there is an aspect of harm in not providing a patient with the opportunity to avoid the services of a medical practitioner who does not hold professional indemnity insurance, where that fact is not disclosed before any service is provided by the practitioner.
As a consequence of the above, we find the seriousness of the Respondent's misconduct to be at a very serious level.
We need to consider if the misconduct can be explained as an error of judgment rather than a defect in character.
The action by the Respondent in failing to take out and maintain his professional indemnity insurance annually, as required, does, we consider, reveal a defect in character. We have found that the Respondent knew in 2010 he did not have professional indemnity insurance and he knew that he had not obtained that cover to remedy that wrongdoing. We need to consider whether that "defect in character" has been altered to a state where he can now be regarded as a practitioner who acts honestly and can be expected to do so in the future. We have also raised a possible concern about the Respondent's ability to practice competently so as to protect his patients in the event that they need to make a claim for damages against him. We need to consider if the Respondent, can now be regarded as a practitioner with integrity and competence?
We need to be satisfied that the Respondent can now be a practitioner who can practise his profession in a manner which protects the public safety.
In this case, it is not part of the HCCC's case that there is now a concern about the standard of the Respondent's medical knowledge and practice. The Respondent has had a complaint established against him which was determined by the Medical Council in the s.150 hearing we have referred to herein. The Medical Council, in its' hearing of the s 150 proceedings against the Respondent, recited a number of complaints which had been made against the Respondent alleging he was an alcoholic and or consumed alcohol at his Practice rooms. There was also a complaint about the cleanliness of his rooms and the Respondent's practice in relation to Covid-19 vaccination. The Medical Council noted all those complaints were either considered by the Medical Council or withdrawn.
The Respondent did have a claim made against him, in the form of a civil action, whilst he practised in Western Australia. However, that did not give rise to any disciplinary proceeding in relation to his conduct by the then relevant authority.
The Medical Council did conclude in its' decision in the s 150 proceeding against the Respondent (Exhibit A1, pp 155-156), that his practice in relation to giving advice to patients about the Covid-19 vaccination was such that gave rise to a conclusion that it was: "… a dereliction of his duty as a medical practitioner, to fail to adequately assess the evidence and to advise his patients in a balance[d] manner. He is expected to practise within accepted standards, and according to the knowledge and understanding of medical practitioners with similar qualifications and experience. To fail to do so is to undermine the health and safety of his patients and the public generally. That failure also jeopardises the good standing and reputation of the medical profession and is against the public interest."
In reaching its' decision to suspend the Respondent, the Medical Council noted that the Respondent had given evidence that he had only just been advised that he does not have medical insurance and had not held that insurance, which is mandatory to have, since 2004, however, it did not appear as one of the reasons the Medical Council gave for the suspension order it made.
It needs to be remembered that the Medical Council has, since imposing the suspension order, withdrawn that order and permitted the Respondent to practise medicine, subject to conditions. That must have occurred in circumstances where the Medical Council concluded that it was safe for the Respondent to return to practice, with conditions attached to his registration.
As stated earlier, in this proceeding, there is no complaint about the Respondent's practice of medicine, in terms of the safety of the public, which is included in this action by the HCCC. The complaint has been confined to his practice as a medical practitioner without professional indemnity insurance, together with his conduct in failing to comply with a requirement to notify AHPRA that he did not hold professional indemnity insurance as required by s 130(1) of the National Law and misleading the Medical Council when he gave evidence stating that he first became aware that he did not hold professional indemnity insurance on 7 September 2021.
One of the conditions, restated by the Medical Council on 20 September 2022, is that the Respondent undergo a performance assessment. We are satisfied that with such an assessment to be conducted at a time determined by the Medical Council, together with the conditions which currently attach to the registration of the Respondent, he can practise safely, thereby protective of the public safety.
We need to consider if the misconduct can satisfactorily be explained as an error of judgment rather that a defect of character.
We have set out in this judgment our finding that the Respondent did display a defect in character in the misconduct which we have found against him. Failure to hold professional indemnity insurance was not, we conclude, an error of judgment.
We need to consider the intrinsic seriousness of the misconduct as it relates to fitness to practise.
In order to determine that the Respondent does have "fitness to practise", we need to decide if he can be trusted now, and in the future, to act honestly, ethically, competently and with integrity.
The circumstances in which the Respondent failed to renew and or take out professional indemnity insurance in both 2004 and 2010 we consider possibly arose because of his family financial circumstances at those times. The Respondent gave evidence about all of his available income being applied to fund family law proceedings in 2002 through to 2004. We have no doubt that cost would have been significant, especially so as the parties were required to travel to Western Australia where the proceedings were conducted.
In relation to the financial circumstance of the Respondent in 2010 is concerned, we have no evidence about that.
If an impecunious situation in 2004 was such that the Respondent could not renew his professional indemnity insurance, that is not the situation now. The evidence from the Respondent is that he has taken out professional indemnity insurance with MIPS and has paid for the first period of insurance, to June 2023, in a lump sum and since then been able to establish a monthly payment secured by a periodic payment from his bank account. Additionally, he has been required to produce to the Supervisor, approved by the Medical Council to comply with his current conditions of practice, evidence of holding current professional indemnity insurance.
We are satisfied that the public can be assured that the Respondent will only practise when he is holding a current policy of professional indemnity insurance, now and into the future. That will satisfy the requirement of public safety.
We need to consider whether the misconduct can be seen as an isolated episode.
We are unable to find the conduct was an isolated episode as it continued at all times between 2004 and 2021. Each year that the Respondent was required to complete his registration renewal, between 2004 and 2021, the Respondent asserted in the relevant document of renewal, that he held current professional indemnity insurance. We have found, on the balance of probabilities, that he knew at such times he did not hold that insurance. The alternate finding would have been that the Respondent acted recklessly and negligently in failing to personally ensure he did hold that insurance.
We have considered above matters of motive for the misconduct and the quality of character demonstrated by the Respondent in the past.
We now need to consider whether the Respondent's conduct, after 8 September 2021, the date the Respondent misled the Medical Council by asserting he first became aware of his offending, now demonstrates that public and professional confidence may be reposed in the Respondent to uphold and observe the high standards of moral rectitude required of a health practitioner.
On 26 September 2021, the Medical Council suspended the Respondent's right to practise medicine. We accept that was a catastrophic life event for the Respondent and his family. It left the Respondent without a means to support himself and his family.
On 6 June 2022, the Medical Council lifted the suspension from the Respondent's registration. It also imposed conditions which clearly would have been seen as requiring some time to implement. Inter alia, the Respondent was required to find a practice where there were at least 2 other practitioners and where one of those practitioners was prepared to be his supervisor.
In addition to the above requirements, the Respondent needed to obtain professional indemnity insurance. That need took him 10 months to implement. When the Respondent was able to secure professional indemnity insurance with MIPS, it came with a 200% premium adjustment and a requirement that he meet the first $30,000 of any claim established against him.
The employment which the Respondent has now been able to obtain is, currently, only able to provide him with two days a week work.
There is no doubt that the circumstances which have befallen the Respondent, arising from findings made against him by the Medical Council, have been far reaching and clearly very onerous for him to withstand. We accept that the Respondent has suffered very significantly, both financially and emotionally, as a consequence of the above orders of the Medical Council. We accept that the Respondent has "learnt his lesson" as a result of his failure to insure. It was a lesson with far reaching and severe consequences to the Respondent and his family. We accept that the public can be sure that the Respondent will not in the future practise without professional indemnity insurance.
We need to consider whether a reprimand with conditions, as opposed to a suspension, is an appropriate protective order. In that determination, we need to consider the deterrent effect of the order on the medical profession and whether that order upholds and reinforces the standards of and public confidence in the profession.
In considering whether a suspension or a reprimand is an appropriate protective order, we have taken the following matters and findings into account. 1. The seriousness of the Respondent's misconduct and the need to show that the protective order imposed, will serve as an adequate deterrent. 2. Assuming the reasons for failing to hold professional indemnity insurance arose as a result of gross negligence, the Respondent clearly acknowledges that the cause of his failure to hold professional indemnity insurance was his fault and not that of his wife. He has seen and lived the consequence which flows to a practitioner who misrepresent facts to AHPRA when seeking to renew their registration. 3. The Respondent now holds professional indemnity insurance, and it is very unlikely that he will default in maintaining that in his future medical practice. We are satisfied his supervisor will check the currency of the Respondent's professional indemnity insurance with appropriate frequency. 4. There is no evidence that any patient of the Respondent, who received a medical service from him during the period from 2004 when his cover expired and 2021 when he was suspended, has suffered as a result of the Respondent's misconduct. In any event, the Respondent now has retroactive cover for that period of time. 5. The Respondent is 67 years of age. The balance of his life as a medical practitioner will thereby be limited. 6. The Respondent needs to support his wife and two children. 7. During the time the Respondent has been suspended and the date of this hearing, we accept the Respondent has considered his misconduct and resolved to ensure it is not repeated. That includes exhibiting dishonesty or incompetency. Apart from his failure to properly inform AHPRA and the Medical Council of the true facts about his failure to hold professional indemnity insurance and when he first became aware that he did not hold the insurance, there is no other evidence which attacks his integrity. 8. The Respondent is apologetic and remorseful for his misconduct. 9. There is no allegation made in the determination of this Complaint that the Respondent is impaired. We are cognisant of the Medical Council's decision to require the Respondent to practise with conditions. That imposition will protect the public safety and ensure competent practice is provided by the Respondent. If there is evidence of incompetency, that will be observed and acted upon by the Respondent's supervisor. 10. The Respondent will not be conducting his own practice. He will be working in a practice with other practitioners. The administration of the practice in which he works will not be his or his wife's responsibility. He will only be required to attend to his own personal administration. His ongoing requirement to hold professional indemnity insurance will require demonstrating to the owners of the practice in which he works that he does hold that insurance. 11. The imposition of conditions on the registration of the Respondent will act as a protection of the public's safety. 12. The Respondent's competency can be tested by a performance assessment conducted by a delegate of the Medical Council. That assessment can be required by the imposition of a condition requiring such an assessment. 13. The HCCC, in this hearing, has sought that the Tribunal impose a reprimand on the Respondent and does not oppose his practice to be the subject of conditions on his registration. 14. It is possible to order that the conditions currently imposed by the Medical Council on the Respondent's registration continue. Such conditions will, we are satisfied, be protective of the public.
Having considered all of the above matters, we have determined that a reprimand, together with conditions imposed upon the Respondent's registration, as sought by the HCCC, is an appropriate protective order. It will, we are satisfied, ensure the safety of the public and also act as a sufficient deterrent to the medical profession.
The order of the Tribunal will be that the Respondent be reprimanded and practice with the following conditions, which are to be overseen by the Medical Council as the appropriate authority. 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. Not to undertake solo medical practice. 3. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 practitioners (excluding the subject practitioner): a. Where the practitioner must not be an owner or stakeholder in the ownership of the practice. b. Where the patients and patient records are shared between the medical practitioners. c. Which is an accredited practice. 4. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each supervision meeting the practitioner is to: i. review and discuss his practice with his approved supervisor with particular focus on: • Medical records • Prescribing • Sources of evidence for clinical decisions • Clinical decision making and planning • Standard of referral letters • Vaccination • Differential diagnosis • History taking • Physical examination • Investigations • Safety netting/review b. In addition to the supervision meetings the practitioner must undertake fortnightly observation sessions with the Council approved supervisor for at least one hour duration. The observation sessions are to occur on alternating weeks to supervision meetings, and will alternate between: i. The supervisor observing the practitioner conduct at least 3 patient consultations ii. And the practitioner observing the supervisor conduct at least 3 patient consultations iii. The details and feedback about the observation sessions are to be included in supervision reports. c. Not to practise until a supervisor has been approved by the Medical Council of NSW. 5. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 6. To undergo a performance assessment. 7. The appropriate review body for the purpose of a review under section 163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the practitioner has a principal place of practice in NSW. 8. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the practitioner's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia.

Orders 1. The Respondent is found to be guilty of both unsatisfactory professional conduct and professional misconduct. 2. The Respondent is reprimanded. 3. There is imposed on the Respondent's registration as a medical practitioner the following conditions: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. Not to undertake solo medical practice. 3. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 practitioners (excluding the subject practitioner): a. Where the practitioner must not be an owner or stakeholder in the ownership of the practice. b. Where the patients and patient records are shared between the medical practitioners. c. Which is an accredited practice. 4. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each supervision meeting the practitioner is to: i. review and discuss his practice with his approved supervisor with particular focus on: • Medical records • Prescribing • Sources of evidence for clinical decisions • Clinical decision making and planning • Standard of referral letters • Vaccination • Differential diagnosis • History taking • Physical examination • Investigations • Safety netting/review b. In addition to the supervision meetings the practitioner must undertake fortnightly observation sessions with the Council approved supervisor for at least one hour duration. The observation sessions are to occur on alternating weeks to supervision meetings, and will alternate between: i. The supervisor observing the practitioner conduct at least 3 patient consultations ii. And the practitioner observing the supervisor conduct at least 3 patient consultations iii. The details and feedback about the observation sessions are to be included in supervision reports. c. Not to practise until a supervisor has been approved by the Medical Council of NSW. 5. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 6. To undergo a performance assessment. 7. The appropriate review body for the purpose of a review under section 163C of the Health Practitioner Regulation National Law (NSW) is the Medical Council of NSW when the practitioner has a principal place of practice in NSW. 8. Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply while the practitioner's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. 1. The Respondent is to pay the costs of the HCCC for this proceeding, such costs to be as agreed or as assessed. 2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any patient referred to in the proceeding is prohibited.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 13 September 2023 - Par [12] - date "2011"corrected to "2010" and words "application and/or" inserted Par [83] - wording in second sentence Par [94] - wording in paragraph Par [154(13)] - wording in paragraph DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 September 2023

l place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. (4) The Respondent is to pay the costs of the HCCC for this proceeding, such costs to be as agreed or as assessed. (5) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of any patient referred to in the proceeding is prohibited. Catchwords: OCCUPATIONS - medical practitioners - misconduct and discipline - unsatisfactory professional conduct - professional misconduct - appropriate protective orders - practitioner reprimanded -practice conditions imposed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 64 Health Practitioner Regulation National Law (NSW), ss 3, 3A, 3B, 125, 127, 130, 139B, 149-149E, 150, 163C Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 HCCC v Pierce [2010] NSWNMT 23 Health Care Complaints Commission v Aref [2018] NSWCATOD 133 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156 Health Care Complaints Commission v Dunstan [2018] NSWCATOD 102 Health Care Complaints Commission v Jung [2018] NSWCATOD 53 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 29 Health Care Complaints Commission v Lord [2019] NSWCATOD 182 Health Care Complaints Commission v Marsh [2016] NSWCATOD 155 Health Care Complaints Commission v Moulds [2010] NSWNMT 1 Health Care Complaints Commission v Perera [2018] NSWCATOD 112 Health Care Complaints Commission v Russ [2021] NSWCATOD 5 Lee v Health Care Complaints Commission [2012] NSWCA 80 New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 NSW Bar Association v Meakes [2006] NSWCA 340 Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 Riley v Health Care Complaints Commission [2019] NSWCATOD 54 Texts Cited: None cited Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr David Richards (Respondent) Representation: Counsel: S McCarthy (Applicant on 4 May 2023) E Beljic (Applicant on 28 July 2023) A Martin (Respondent on 4 May 2023)

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