Health Care Complaints Commission v Sundararajah

NCAT Occupational|2018-06-04|Before: Dr J

REASONS FOR DECISION

These reasons address whether protective orders should be made in respect of dentist Dr Raahulan Sundarajah and, if so, the appropriate order(s). In addition, they address whether Dr Sundarajah should be ordered to pay some or all of the costs incurred by the Health Care Complaints Commission (the Commission) in these proceedings.
These reasons should be read in conjunction with our decision in HCCC v Sundarajah [2017] NSWCATOD 182 in which we found Dr Sundarajah guilty of professional misconduct, to have an impairment and not to be competent to practise dentistry: ss 5, 139E and 139(a) of the Health Practitioner Regulation National Law (NSW) (the National Law).
The parties agree that as a consequence of these findings, the discretion to make protective orders in respect of Dr Sundarajah should be exercised. In addition, the parties agree that Dr Sundarajah's registration as a health practitioner should be cancelled and that he should be prohibited from providing any health service. The only issues in dispute between the parties are the period Dr Sundarajah should be disqualified from seeking re-registration and whether Dr Sundarajah should be ordered to pay the costs of the Commission.
Dr Sundarajah was not represented in the "first stage" of these proceedings where we considered whether the complaints made by the Commission were established. However, he was legally represented in the "second stage" of the proceedings where the issue of protective orders in respect of Dr Sundarajah was addressed.
With the agreement of the parties we decided that the outstanding issues of appropriate protective orders and costs could be adequately determined without an oral hearing on the basis of the submissions and material provided by the parties, as permitted by s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).

Should a cancellation order be made?

Given our finding that Dr Sundarajah is guilty of professional misconduct and is not competent to practise the profession of dentistry, the power to cancel his registration can be exercised: s 149C(1) of the National Law. In the alternative, we may exercise any of the powers listed in Subdiv 6 of Pt 8 of the National Law which include the powers to caution, reprimand, impose conditions on a practitioner's registration, order a practitioner to undergo medical or psychiatric treatment or counselling, or complete an educational course.
The parties agree that it is appropriate to order the cancellation of Dr Sundarajah's registration. However, the jurisdiction exercised by NCAT under the National Law is not a "consent jurisdiction" but rather it is protective in nature. Therefore, before exercising the power to make protective orders we must be independently satisfied that any proposed order is appropriate and consistent with the objectives and guiding principles of the National Law, the paramount consideration being the protection of the health and safety of the public: ss 3, 3A of the National Law.
In the first stage of the proceedings, we found it more likely than not that Dr Sundarajah suffers from some form of mental disorder or condition, probably a form of late onset paranoid schizophrenic illness: HCCC v Sundarajah at [84]. We went on to find that while in the 18 months before the hearing, Dr Sundarajah has regularly attended his psychiatrist, Dr Jonathon Phillips and treating psychologist, his failure to disclose to his psychiatrist information material to his condition, indicated that any treatment received was probably sub-optimal: HCCC v Sundarajah at [90]. We went on to find, as was contended by the Commission, that Dr Sundarajah had an "impairment", that is, a mental condition or disorder that detrimentally affects or is likely to detrimentally affect his capacity to practise the profession of dentistry: s 5 of the National Law. On the basis of that finding, we concluded he currently lacks the necessary competence required of a health practitioner to deal with female patients, staff and others, in an appropriately professional way: HCCC v Sundarajah at [98].
There is no evidence, and nor is it suggested, that there has been any material change in Dr Sundarajah's condition since we found that he was not competent to practise. At this stage, it is not possible to make any reliable prediction about the likely prognosis of his condition. Nor, given this uncertainty, is it possible to determine whether the concerns we expressed about Dr Sundarajah's competence to practise are able to be remedied by the imposition of appropriate conditions. In these circumstances we agree that the appropriate order is the cancellation of Dr Sundarajah's registration.

Period of disqualification from applying for re registration

The parties agree that Dr Sundarajah should be disqualified from practising dentistry for a period but disagree about the length of the period of disqualification. The Commission submits that the appropriate period is 36 months; Dr Sundarajah urges us to impose a shorter disqualification period, namely, 12 months.
Dr Sundarajah submits that, with the benefit of a more specific diagnosis, his treating psychiatrist is now better placed to recommend appropriate treatment. He claims he is willing to fully engage with his treating health practitioners and to comply with any treatment recommendations. He argues that he should be given the opportunity to be reassessed to determine whether, after 12 months of consistent compliance with any treatment recommendation, his condition continues to detrimentally affect his capacity to practise dentistry.
Psychiatrists, Drs Jonathon Phillips and Michael Giuffrida gave evidence in the first stage of these proceedings. Dr Phillips is Dr Sundarajah's treating psychiatrist. Dr Giuffrida assessed Dr Sundarajah at the request of the Commission. At the hearing, after being provided additional material, each revised the opinion they expressed in their respective written reports. At the hearing, Dr Giuffrida concluded that Dr Sundarajah probably suffered from a late onset paranoid schizophrenic illness. Dr Phillips stated that while he had some misgiving about the correctness of that diagnosis, nonetheless, in his view, there was "no option" but to put it forward for discussion. (Transcript of proceedings, Health Care Complaints Commission v Sundarajah, NCAT, PM Britton, T Boland, J Ironside, C Berglund (Transcript) pp 12,13). Dr Phillips stated that in light of the new material he would strongly urge Dr Sundarajah to commence a trial of anti-psychotic medication and continue with non-pharmaceutical treatment. Dr Giuffrida endorsed that recommendation.
Drs Giuffrida and Phillips agreed that until such time as Dr Sundarajah had completed a trial of anti-psychotic medication, it was not possible to predict whether the proposed trial would be successful. In answer to a question from Dr Sundarajah, Dr Phillips replied (Transcript, p 28): I can't say to you [anti-psychotic medication] is going to work. I can't say to you it's going to fail. All we can do is a trial.
Dr Phillips went on to say (Transcript p 34): [I]n psychiatry there are no cures. People improve enormously but I think that medication be it antipsychotic or antidepressant or whatever, reduce symptoms dramatically and allow a person to function in a much better fashion. My experience as a clinician is that once a person has settled down on the correct balance of, how should I put it, psychotherapeutic techniques and psychopharmacological treatment, they feel so much better that they will generally continue to comply with treatment and there are far fewer problems in the future, if any problems in the future and that is dramatically demonstrated for instance in bipolar disease and to a high degree in paranoid disorders too but it's only when the person actually sees how much better life can be.
While Dr Giuffrida was less optimistic about whether Dr Sundarajah's condition could be successfully treated, he did not suggest that the condition was untreatable or that the prospects of the condition being able to be treated was remote.
The expert opinion reveals that until such time as a trial has been conducted it is not possible to say how Dr Sundarajah will respond to anti-psychotic medication. Nor is it possible to determine whether Dr Sundarajah will consistently comply with any treatment recommendations. Nor is it possible to predict whether Dr Sundarajah will acknowledge and reflect upon the inappropriate nature of his conduct that was the subject of Complaint 1 and the complaint made by the female solicitor (see HCCC v Sundarajah at [44]-[47]).
The Commission may be correct that no reliable assessment will be able to be made about how Dr Sundarajah will respond to treatment, and whether he remains impaired and not competent to practise, before 36 months from the date of this decision. However, given the considerable uncertainty surrounding the likely course of the condition and how Dr Sundarajah might respond to anti-psychotic medication, we think it would be unfair to extend the disqualification period beyond 12 months. If, at that time, he can provide reliable and cogent medical evidence that his condition has been successfully treated, he is no longer impaired and he is competent to practise, he should not be deprived of the opportunity to seek review of the cancellation order.

Should a prohibition order be made?

The parties agree that an order under s 149C(5) of the National Law prohibiting Dr Sundarajah from providing any health service unless and until he is registered as a health practitioner is appropriate.
Because of our decision to cancel Dr Sundarajah's registration, the power to make the agreed order can be exercised: s 149C(5A) of the National Law. However, that power can only be exercised if we are satisfied that Dr Sundarajah poses a "substantial risk to the health of members of the public" (emphasis added). In evaluating whether Dr Sundarajah poses a relevant risk, we adopt the approach taken by the Tribunal in Health Care Complaints Commission v Menz (No. 2) [2017] NSWCATOD 172 at [18] and [19] and ask whether Dr Sundarajah is likely to pose a real and material risk to the health and safety of the public if he were to be involved in the provision of health services.
The weight of evidence indicates that unless and until Dr Sundarajah receives appropriate treatment he is likely to pose a real and material risk to the health and safety of the public if he were to provide health services. In reaching that conclusion we note the views expressed by the experts that at this point in time he is not competent to practise as a dentist, not because of any lack of clinical skills (an issue neither they, nor the Tribunal, was asked to determine) but because of an inability to deal appropriately with staff and patients socially. This inability is unlikely to be confined to health services provided in the field of dentistry.
For these reasons we have decided to make a prohibition order in the terms as agreed by the parties.

Costs

The Commission seeks an order that Dr Sundarajah pay its costs of the proceedings and submits that there is no basis to depart from the general "rule" that costs follow the event.
Dr Sundarajah disagrees and proposes that each party be ordered to bear their own costs. In support he points to: (i) the "significant departure" made to the case originally advanced by the Commission, and (ii) the fact that he admitted in general terms that he had been in breach of the Chaperone condition and at the time of the hearing of the Complaint his registration had been suspended by the Dental Council.
In exercising the power to award costs conferred by cl 13, Sch 5D to the National Law, the general "rule" is that costs follow the event: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 (Philipiah) at [42]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] and Health Care Complaints Commission v Do [2014] NSWCA 307 at [51]. The presumption that the successful party is entitled to receive their costs will generally only be displaced where there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [40]; Arian v Nguyen [2001] NSWCA 5 at [36]. It is for the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24].
In Philipiah the Court of Appeal considered the factors that "might militate against the recovery by the Commission of all of its costs" and listed at [42] the following examples: "[O]ne factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing."

"Significant departure" to the case originally advanced by the Commission

In the course of the hearing, the Commission was given leave to amend the Complaint by deleting from Particular 1 of Complaint 3, the words "mixed pattern of personality disorder" and in substitution inserting the words "late onset paranoid schizophrenia illness" (the Impairment amendment): see HCCC v Sundarajah at [7].
The amendment was sought because in the course of giving oral evidence, Dr Giuffrida had revised the opinion he expressed in his report of 23 November 2016. In that report he wrote that he was unable to make a diagnosis and considered that Dr Sundarajah "may simply fall within a realm of difficult and complex people who demonstrate a pattern of dysfunctional interpersonal relationships rather than having a specific psychiatric diagnosis": HCCC v Sundarajah at [65]. Nonetheless he concluded, that Dr Sundarajah "suffered an impairment that had not been defined but which detrimentally affected his judgment and insight to a significant degree and that, on balance, his professional capacity was impaired": HCCC v Sundarajah at [65]. As noted above, at the hearing Dr Giuffrida revised his opinion on diagnosis and concluded that Dr Sundarajah probably had a "paranoid schizophrenic illness": HCCC v Sundarajah at [68].
On the morning of the hearing, the Commission gave Drs Giuffrida and Phillips additional material which included detailed information about the history of Dr Sundarajah's conduct towards a female solicitor who had represented him in previous disciplinary proceedings. In addition, Dr Giuffrida was given a copy of Dr Phillips' clinical notes. After reviewing that material and conferring with each other, both experts materially revised their respective opinions on diagnosis. We make no criticism of the experts for doing so. As a review of the material makes apparent, the diagnosis of Dr Sundarajah's condition proved challenging and when preparing their written opinions neither expert had the benefit of a complete history.
The Commission rejects the contention that it engaged in any disentitling conduct and asserts that the only additional costs arising from the Impairment amendment was the preparation of supplementary written submissions, necessitated because Dr Sundarajah was given the opportunity to respond in writing to the revised expert opinion.
The task faced by the Commission of prosecuting a complaint in circumstances where the respondent practitioner was not only self-represented but had a psychiatric condition was not an easy one. Faced with revised expert opinion, the decision of the Commission to seek leave to amend the Complaint was entirely appropriate. Nonetheless, had Dr Giuffrida been provided with the additional material prior to preparing his written opinion, he may have been in a position to reach a concluded view on diagnosis before the hearing. This may have obviated the need for the parties to prepare supplementary submissions and reduced the period the experts were required to attend the hearing to give oral evidence.
The Commission's failure to provide Dr Giuffrida with the additional material before the hearing probably increased its costs to some extent. While it is difficult to determine the proportion of costs attributable to this failure, we have decided some reduction in the proportion of the costs payable by Dr Sundarajah is warranted. We have decided the appropriate figure is 20%.

Contravention of the Chaperone condition

Particular 1 of Complaint 1 alleged that Dr Sundarajah contravened a condition to which his registration was subject, namely the Chaperone Condition, in that he "practised dentistry on female patients over the age of 15 years ... without a chaperone being present at all times on multiples of the following occasions."
We reject the argument advanced by Dr Sundarajah that because his registration had been suspended by the Dental Council at the time the Complaint was referred to NCAT on account of the breach of the Chaperone Condition, the decision of the Commission to include this particular allegation in the complaint referred to NCAT served no useful purpose and resulted in the Commission incurring additional costs.
This submission misapprehends the role of a Council when exercising its power to suspend a practitioner's registration under s 150 of the National Law. In exercising that power the Council is not required to determine the truth or otherwise of the allegations made in respect of the practitioner and may exercise the power to suspend a health practitioner's registration if it considers it "appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest".
Because Dr Sundarajah did not fully admit Particular 1 of Complaint 1 in writing in advance of the hearing, we were required to determine that Particular. It was relevant to the question of whether Dr Sundarajah's conducted constituted professional misconduct, and, if so, whether protective orders should be made and, if so, the form of orders.

Orders 1. Pursuant to s 149C(1) of the Health Practitioner Regulation National Law (NSW) Dr Sundarajah's registration is cancelled. 2. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law (NSW), Dr Sundarajah is disqualified from seeking a review of the cancellation order for a period of 12 months from the date of this decision. 3. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW), Dr Sundarajah is prohibited from providing any health services unless and until he is registered as a health practitioner. 4. Dr Sundarajah must pay 80% of the Commission's costs, as agreed or assessed.

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 07 December 2023 - Case title updated: from Sundarajah to Sundararajah 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: 07 December 2023

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