Health Care Complaints Commission v Spruce - [2015] NSWCATOD 89 - NSWCATOD 2015 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Spruce

[2015] NSWCATOD 89

NCAT Occupational|2015-05-28

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2015-05-28

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

REASONS FOR DECISION

For 30 years David Spruce owned and operated a local pharmacy in Mudgee, a country town in western NSW. He sold the business in March 2014. Later that year he allowed his registration as a pharmacist, which he had held since 1977, to expire.
The Health Care Complaints Commission (the Commission) has referred four complaints about Mr Spruce to the Civil and Administrative Tribunal of New South Wales (NCAT). The trigger for those complaints was an allegation made to the NSW Police by "Client A", which resulted in Mr Spruce being charged with four counts of "indecent assault" (s 61L of the Crimes Act 1900 (NSW)). In March 2014, the Mudgee Local Court dismissed those charges under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) and discharged Mr Spruce into the care of a "responsible person". Section 32 permits the presiding magistrate to dismiss charges if it appears that the person charged is (or was at the time of the alleged commission of the offence) suffering from a mental illness, or from a mental condition for which treatment is available in a mental health facility.
In July 2014, with Mr Spruce's consent, the Pharmacy Council imposed a condition on Mr Spruce's registration that he not practice as a pharmacist (s 41P of the Health Practitioner Regulation National Law (NSW) (the National Law). The following month, the Council affirmed that decision and referred the matter to the Commission for investigation (s 150D(1) of the National Law).
In addition, the Pharmacy Council directed Mr Spruce to undergo an examination by psychiatrist, Dr Anthony Samuels (s 150 of the National Law). Following an assessment conducted in August 2014, Dr Samuels concluded that Mr Spruce suffered from a Mood Disorder, and possibly Epilepsy and Alcohol Abuse. He recommended that Mr Spruce not return to work as a pharmacist until cleared by his general practitioner and psychiatrist.

[2]

[11]

Did the alleged conduct occur?

In a statement given to NSW Police on 21 October 2013, Client A stated that she had met Mr Spruce on two occasions before the subject incidents. She alleged that on the first occasion Mr Spruce kissed her on the cheek and gave her a discount on the items purchased. On the second occasion, she was not charged for the purchase and Mr Spruce gave her a cuddle as she left the pharmacy. She stated that she did not think further about his behaviour and assumed he was just "an over friendly old man".
Client A stated that during a visit to the pharmacy on 21 October 2013, she felt her hair being tugged and turned to discover it was Mr Spruce. She claimed that Mr Spruce then started to rub the back of her leg near her buttocks. "It was creeping me out". At the time she was carrying her infant daughter on her hip.
Client A claimed she then left the pharmacy and after placing her daughter into a child restraint in the back seat of her car she was approached by Mr Spruce who said "get into the car". She claimed that she took this comment to mean that Mr Spruce did not want anything to do with her. Instead, as she was about to drive off, without invitation Mr Spruce opened the car door, sat in the front passenger's seat and proceeded to: say things like "I dream about you every night. I don't think I can say I love you but I adore you and I want to see your boobs …" stick his fingers down the side of her breast and inside her bra repeatedly ask to see her breasts and question her about the size of her nipples try to kiss her at least five times grab her neck and pull her towards him ask to see her "undies" try to push up her dress put his hands on the outside of her underwear near "the vagina area".
She stated that throughout the incident she: said "don't, you're married", "… this is not right", "we can't, don't it's not going to happen", "get out" tried to pull away and kept pushing him away was in shock felt "violated and yuck".
Client A also claimed that during this incident an elderly man recognised and approached Mr Spruce and spoke to him through the window of her car. She stated that when Mr Spruce asked her to visit him at the pharmacy the following day, she readily agreed in order to bring the ordeal to an end and to get him out of the car. She then drove "straight off". On the advice of her partner she reported the incident to the Police.
Police interviewed Mr Spruce the following day. The record of that interview recorded Mr Spruce as saying: he doesn't have "much memory" he is being medicated for "Bipolar II and a left temporal lobe epilepsy" when he suffers a "seizure" he undergoes a complete personality change and suffers amnesia he forgot to take his tablets three days in a row, prior to the subject incidents his wife said she thought he might have had "an episode" on the day of the subject incidents on that day, he saw Client A at the pharmacy and said "hallo" he had no recollection of tugging Client's A hair or rubbing her leg he recalled Client's A car being parked "a few doors up from the pharmacy", but could not recall being in a car with her.
The police also took a statement from an elderly man who was a client of the pharmacy and a friend of Mr Spruce. The elderly man told police that on the day of the subject incidents he saw Mr Spruce sitting in the front passenger seat of a car with a young lady. He said he didn't pay much attention but he noticed the lady's hand was placed on Mr Spruce's hand and he appeared to be consoling her.

[23]

Does Mr Spruce suffer from a Mood Disorder?

Mr Spruce admits to suffering a Mood Disorder. It is nonetheless necessary to consider the available material as it is relevant to the question of whether that disorder affects Mr Spruce's capacity to practice.
Over the past 15 years Mr Spruce has reported a range of symptoms including anxiety, occasional amnesia and manic, often violent, behaviour. During this period he has been referred to numerous specialists who have struggled to identify the cause of that behaviour.
In July 2007, neurologist Dr Simon Hammond diagnosed Mr Spruce as suffering from "Temporal Lobe Epilepsy". In a report dated 19 August 2008, Mr Spruce's (then) treating psychiatrist, Dr Andrew Robertson, explained: [Complex Partial Seizures (previously known as Temporal Lobe Epilepsy)] can take a variety of forms, but will commonly consist of episodes of abnormal behaviour which is out of character, and which is followed by a deep sleep and subsequent amnesia for the episode. … In the course of a complex partial seizure, the patient has no control over his behaviour hence the term automatisms. He is in sense, on "automatic pilot".
When prescribed the anti-convulsant drug, Epilim®, in 2007, Mr Spruce reported feeling "amazingly better" almost immediately.
Neither Dr Westmore nor Dr Samuels, are convinced that Mr Spruce suffers from epilepsy although both believe he suffers from a Bipolar Mood disorder. In a report dated 30 November 2013, Dr Westmore noted the divergence of opinion on the question of diagnosis, observing that over the past decade some medical specialists concluded Mr Spruce suffered from a neurological condition, while others believed he suffered from a psychiatric condition. In Dr Westmore's opinion, Mr Spruce's positive response to the "mood stabilising/anti-epileptic" drug Epilim®, did not allow him to exclude or differentiate between a primary psychiatric or a primary neurological condition, as both epilepsy and Bipolar Affective disorders respond positively to Epilim®. In his opinion, Mr Spruce probably suffered from a psychiatric condition and made a provisional diagnosis of a Bipolar Type II disorder. That diagnosis in his opinion, however, would not explain Mr Spruce's reported episodes of amnesia, which he thought might be attributable to a neurological event: "Transient Global Amnesia".
Dr Samuels shares Dr Westmore's misgivings about the diagnosis of epilepsy. In his opinion, the complex behaviours displayed by Mr Spruce are not typical of temporal lobe epilepsy. In his view, if indeed Mr Spruce had suffered any "true seizure activity", it was most likely the result of Alcohol Abuse rather than a discrete epileptic condition.
When he first saw Mr Spruce in August 2014, Dr Samuels concluded that while Mr Spruce probably suffered from Bipolar Disorder I, the condition was probably in remission. On seeing Mr Spruce in May 2015, he revised that opinion, noting on that occasion that Mr Spruce appeared "quite depressed", in marked contrast with his appearance in August 2014 of "elevated in mood state and hypomanic".

[28]

What if any, disciplinary orders should be made?

The Commission seeks orders under s 149C(4) of the National Law, the effect of which would be to disqualify Mr Spruce from being registered as a pharmacist for a period of two or three years. Mr Spruce elected not to comment on the Commission's proposed orders.
Headed "Disciplinary Powers of Tribunals" Part 8, Division 3, Sub Division 6 of the National Law sets out the disciplinary powers available to the Tribunal where a complaint is found proven. They include the power to caution, reprimand and counsel a practitioner and impose conditions on the practitioner's registration. Where a finding is made that the practitioner is guilty of professional misconduct, or, is not competent to practise their profession, one of the orders available to the Tribunal is to cancel or suspend the practitioner's registration. Where, as in this case the person is no longer registered, the Tribunal may: 149C Tribunal may suspend or cancel registration in certain cases [NSW] … (4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
The Tribunal is directed that in the exercise of its functions under the National Law, the protection of the health and safety of the public must be the paramount consideration: s 3A of the National Law.
The principles underlying the purpose of orders made under Part 8, Division 3, Sub Division 6 were usefully summarised by Wright J in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88]: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637. (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].

[29]

What is the appropriate disciplinary order given our finding that Mr Spruce is not competent to practise pharmacy?

Formulating appropriate orders in this case is not an easy task given the little information available about Mr Spruce's current circumstances. What is known is that Mr Spruce is no longer registered to practice and, on the sale of his pharmacy, gave the purchaser an undertaking that he would not practise within a five kilometre radius of Mudgee until March 2019.
If we could be confident that Mr Spruce had no intention of returning to practise, arguably the orders sought by the Commission might be seen as excessive and disproportionate. In the absence of clear evidence that Mr Spruce does not intend to return to practise as a pharmacist, we agree with the Commission's submission that it is appropriate that we make orders under s 149C(4), that we would have cancelled Mr Spruce's registration had he been registered. We also consider it appropriate that he be disqualified from being registered for a minimum period.
The only evidence before us about if, or when, Mr Spruce is likely to regain sufficient mental capacity to practise, is that given by Dr Samuels. In his opinion, while ever Mr Spruce continues his current pattern of alcohol use, he will lack the mental capacity to practise pharmacy. He believes that Mr Spruce would need to abstain from alcohol for at least 12 months before his brain could recover from the effects of long-term alcohol abuse. In Dr Samuel's opinion it may be that there is already some permanent damage. According to Dr Samuels, it will not be possible to assess whether Mr Spruce suffers any permanent damage until he has been alcohol-free for a significant period, at least 18 months. In addition, Dr Samuels believes that until such time as Mr Spruce has abstained from alcohol use for a significant period any treatment he receives for his Mood Disorder will be sub-optimal.
As acknowledged by Dr Samuels, until neurological testing is conducted it is purely speculative whether Mr Spruce has permanent neurological damage. We accept, however, that such testing could not be conducted until Mr Spruce has been alcohol-free for at least 18 months.
Sadly, it may be that, Mr Spruce will never be able to break the grip alcohol currently holds on his life. If that is the case, it is unlikely he will ever regain sufficient mental capacity to practise. However, in our opinion, to extend the disqualification period beyond the period necessary to allow his brain to recover and for his Mood Disorder to be treated - assuming in that period he is able to address his problems with alcohol - is unnecessarily punitive and not required to protect the health and safety of the public.
For these reasons, we have decided to disqualify Mr Spruce from practice for 18 months. If he elects to apply for re-registration after that period he will need of course to satisfy the relevant admission body that he has the mental capacity to practise.

Health Care Complaints Commission v Spruce

At a glance

Court

Decision date

Source

Judgment (32 paragraphs)

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Legislation Cited (2)

Cases Cited (16)

Cited By (1)