Health Care Complaints Commission v Swain

Events at the hospital

1. In 2019 Dr Swain was working at the hospital. A series of events brought her conduct to the attention of the hospital administrators.
2. On 29 January 2019 a scrub nurse observed Dr Swain dozing during a list where she was a surgical assistant. The Nursing Unit Manager spoke to Dr Swain who apologised and said she had been feeling unwell.
3. On 9 June 2019 Dr Swain was assisting a surgeon who had ongoing issues with Dr Swain's inexperience. She appeared to be unable to assist at complex laparoscopic operations. During the last procedure she stumbled into him. The surgeon assumed Dr Swain had lost her footing but was later told by the anaesthetist that Dr Swain had fallen asleep and then stumbled into him with closed eyes. He thought that elements of Dr Swain's behaviour were unusual, particularly in the way she interacted with people.
4. The surgeon was later advised that Dr Swain had made a complaint about him regarding perceived sexual harassment after he had asked her to "stop banging me" after their laparoscopic instruments had collided on multiple occasions.
5. On 5 September 2019 Dr Swain was observed by another scrub nurse to be dozing during a list. The nurse wrote "it appeared to me her eyes were closed at times, as if falling asleep". She thought Dr Swain appeared unwell.
6. On 10 December 2019, a staff member saw Dr Swain come out of the operating theatre change area. Dr Swain was confused and disorientated. She was dressed in scrub pants but wearing her own blouse which was open down the back. Dr Swain was wandering in circles and she asked whether she was in Day Surgery. The staff member replied that Day Surgery was across from the hospital and Dr Swain went back into the change area.
7. The CEO of the hospital contacted Dr Swain in October 2019 to arrange an informal meeting to discuss one of the reported incidents to decide whether any further action needed to be taken. Dr Swain said she was happy to attend the meeting. The later emails show that Dr Swain told the CEO she could not attend a meeting arranged on 11 November 2019. She did not attend a meeting on 28 November 2019. She was then asked to attend a meeting during the weeks commencing 9 or 16 December 2019. The responses from Dr Swain refer to her having issues with her emails and refusing an offer to have the information sent to her by post.
8. The incident on 10 December 2019 was then brought to the attention of the CEO. He suspended Dr Swain's accreditation at the hospital.
9. On 19 March 2020 the CEO asked Dr Swain to attend a meeting on 27 March 2020 to discuss his concerns. Dr Swain failed to contact him and did not attend the meeting. Dr Swain's appointment to the hospital was terminated.

Police records

1. Dr Swain telephoned the police on 22 December 2019. She believed she was the victim of identity fraud involving numerous government agencies and doctors from Lismore Private Hospital. The police officer had difficulty understanding what Dr Swain was alleging and offered to come to her home. She declined the offer and said she was having a rest. She did not bring in any evidence to the police station.

S 150 Inquiries

1. The hospital referred the complaints to the Medical Council. On 24 March 2020, a member of the Council staff left three or four voice messages on Dr Swain's mobile phone and sent an email requesting she provide further information. Dr Swain did not return the call and did not comply with the request.
2. On 2 April 2020, an email was sent to Dr Swain and on 2 and 3 April 2020, a member of the Council staff left voice messages on Dr Swain's mobile phone. Dr Swain did not respond.
3. On 14 April 2020, Dr Swain was personally served by a process server with a Notice informing her that an Inquiry under s 150 of the National Law would be held on 22 April 2020. She was informed of the matters to be considered, advised to contact her insurer and requested to provide a written submission, other documents, a statement about her current health and again asked to provide further information. The requested documents were not received from Dr Swain.
4. On 22 April 2020, the Council convened the s 150 Inquiry. Dr Swain did not attend.
5. The delegates at the s 150 Inquiry concluded that there had been significant concerns about Dr Swain's conduct at her workplace which, together with her lack of engagement with both her employer and the Council, strengthened their concern that she may be unwell. They were concerned there may be a risk to the safety or health of the public and to Dr Swain if she resumed practice. They imposed a condition on Dr Swain's registration that she does not practise medicine and strongly recommended she attend a Council-appointed health practitioner, (CAP) preferably a psychiatrist, to undergo a health assessment.
6. The Council wrote to Dr Swain on 23 April 2020, informing her of the delegates' preliminary view and provided her with another opportunity to make submissions. Dr Swain did not provide any submissions, nor did she make any other contact with the Council.
7. On 1 May 2020 the condition that she does not practise medicine was imposed on Dr Swain's registration.
8. On 22 June 2020 Dr Swain was advised by email she had been referred to a CAP with Dr Messner on 30 July 2020 via videoconference. The appointment was confirmed by email 20 July 2020. On 28 July 2020 Dr Swain was served with a letter confirming the appointment and an Impaired Medical Practitioners' brochure.
9. Dr Swain did not attend the appointment and Dr Messner was unable to contact her by telephone.
10. On 31 July 2020, Dr Swain was advised by email that on 9 June 2020 the Case Management Committee had resolved that if Dr Swain did not attend a CAP appointment, consideration would be given to convening another s 150 Inquiry. On 7 August 2020 Dr Swain was advised by email that the s 150 proceedings would take place on 18 August 2020 by videoconference. On 10 August 2020 a process server hand-delivered Dr Swain a letter containing details of the videoconference and the s 150 brief.
11. At the commencement of the second s 150 Inquiry a delegate unsuccessfully tried to contact Dr Swain by telephone. The hearing went ahead on the papers. The delegates concluded there was insufficient evidence to determine whether Dr Swain was impaired. However, they remained concerned about Dr Swain's health and/or judgment posing a potential risk to the public. The delegates suspended Dr Swain's registration.
12. Between 24 March 2020 and 18 August 2020, the Council attempted to contact Dr Swain ten times by mobile phone and nine times by email. No response or contact was made by or with Dr Swain. On three occasions a process server hand delivered relevant documents to a person who identified herself as Dr Swain. Dr Swain had not initiated any contact with the Council as of 1 September 2020.

Medical evidence

1. There are reports from Dr Swain's two treating psychiatrists.
2. Dr Swain was referred to Dr McNamara in the 1990's when she experienced some traumatic events while working as a psychiatric registrar. She remained his patient until 2006, when he referred her to Dr Richardson.
3. Dr McNamara diagnosed Dr Swain as suffering from Bipolar Disorder (type I). At times she suffered psychotic episodes and he entertained the possibility of a diagnosis of Schizoaffective Disorder.
4. Dr McNamara said that Dr Swain had been an excellent patient, attending all appointments and compliant with prescribed medications. She remained largely very well when free from excess stress in her life and taking mood stabilising medications.
5. Dr McNamara last saw Dr Swain on 23 July 2020. In a relatively brief encounter Dr McNamara was struck by the significant deterioration in Dr Swain's mental state. He described a rather well organised paranoid delusional system regarding a range of authorities including hospitals and Ahpra - Dr Swain felt there was an orchestrated campaign against her and she had linked it in some way to her previous employment with Queensland Health.
6. Dr McNamara is hopeful that if Dr Swain complies with Ahpra and Health Care Complaints Commission requirements, she may be able to get well and perhaps resume medical practice in the future as she had had long periods in the past during which she functioned very well as a doctor.
7. As we have said, Dr Swain became a patient of Dr Richardson in 2006. He concurred with the diagnosis of Bipolar Disorder Type I. He described Dr Swain as a regular and conscientious attender at appointments. He prescribed medication.
8. Dr Swain did not attend Dr Richardson's rooms between 23 October 2017 and 21 August 2020.
9. Between August and October 2020 Dr Swain consulted Dr Richardson on about five occasions. She said she had been disorganised in her thinking, bullied at work and accused of falling asleep while working. On a later occasion she told Dr Richardson that she had discovered that an entity had been making fraudulent claims through her account on Medicare. His opportunity to see Dr Swain was hampered by the COVID 19 pandemic. On 3 November 2020 he thought she sounded tired on the phone, mildly paranoid and she was concerned that someone was interfering with her Wi-Fi.
10. Several later attempts by Dr Richardson to contact Dr Swain were not successful and he told her GP he would no longer be able to help her.
11. It was the opinion of Dr Richardson that Dr Swain's condition had deteriorated significantly with her becoming progressively paranoid and he was concerned about the reduction in her ability to perform her duties.
12. Dr Richardson is also hopeful that if Dr Swain complies with Ahpra and/or Health Care Complaints Commission requirements and has treatment, her condition will stabilise and she will be able to continue in a working role.
13. On 29 April 2021 and 29 June 2022, the Health Care Complaints Commission arranged for Dr Swain to see a psychiatrist, Dr Samuels, for a CAP assessment. Dr Swain did not attend either assessment. On each occasion Dr Samuels prepared a report based on the medical records sent to him by the Health Care Complaints Commission.
14. In the first report dated 29 April 2021 Dr Samuels concluded there had been a marked deterioration in Dr Swain's mental state since 2017. The descriptions of her appearance and conduct at the hospital suggested she was in a frankly paranoid state and the history given to Dr McNamara about a conspiracy involving Queensland Health raised the possibility of a frank schizoaffective-type disorder. He concluded Dr Swain was not currently fit to work as a medical practitioner and it was quite likely she would need a period of inpatient treatment, to review her diagnosis, stabilize her mood and address her persecutory ideation.
15. In Dr Samuel's opinion, Dr Swain had an impairment within the meaning of the National Law being a Mood Disorder with psychotic features - most likely Bipolar I Disorder, but with the possibility that she was developing a schizophrenic-type illness. The condition had clearly impacted upon her professional functioning, and she was in no state to work until the condition had been properly managed.
16. In his second report dated 29 June 2022, Dr Samuels' opinion was unchanged.

Correspondence from Dr Swain

1. On 3 September 2021, the Health Care Complaints Commission invited Dr Swain to make submissions as they were proposing to refer the matter to the Director of Proceedings to decide whether to initiate these proceedings.
2. In her reply email dated 5 October 2021 Dr Swain said that in December 2019 she had been the victim of identity fraud. A magistrate in Queensland had found that another person had, without her knowledge, sent emails from her email address to her accountants, recorded different personal details with Medicare and had used her Medicare provider and ABN to obtain payments from Medicare in her name. This had significantly affected her ability to work as a doctor because she could not access her email address, had difficulty obtaining another secure email address, had not been able to operate a bank account, had issues with her tax file number and ABN and had not been able to use her Medicare Provider Numbers.
3. In addition, she had been the victim of cybercrime which had rendered the three computers she used inoperable.
4. Further, the COVID19 pandemic had meant she had difficulty attending personally to investigate the extent to which her identity information had been misused and to access legal advice.
5. She said these issues explained her lack of engagement with the Health Care Complaints Commission and the Council and she only now realised the substance of what she was being asked to address.
6. Dr Swain also said she had been the victim of sexual harassment in 2019 by a surgeon but she had chosen not to make a formal complaint. The repeated demands to make a formal complaint were harassment. She would address the issue when the issues arising out of the identity fraud had been resolved.
7. In relation to the incident on 5 September 2019, Dr Swain said she had become abruptly unwell with severe gastroenteritis and had to cease work immediately. Dr Swain said that her work record showed that she only attended work when fit to do so.
8. Dr Swain said in that email that in November 2020 she had sustained fractures to multiple bones in both wrists and damaged numerous tendons. She still occasionally required help with numerous activities of daily living. Her ability to write and type was impaired, and this had delayed the preparation of her submission. She was concerned she would not sufficiently recover to be to perform CPR and thought she might have to retrain in another specialty.

Our role

1. The purpose of disciplinary orders is protective rather than punitive. (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, at 637).
2. The protection of the health and safety of the public is a paramount consideration. (s 3A of the National Law).
3. The onus is on the Health Care Complaints Commission to establish the various matters raised in the Complaint. To make any such finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities. (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34).

Single proceedings

1. In most disciplinary matters a Tribunal will adopt a bifurcated two stage procedure. After the first hearing a Tribunal makes factual findings in relation to the allegations made and the seriousness of the conduct. After those findings have been delivered the parties are given the opportunity at a second hearing to make submissions as to the consequential orders.
2. We however propose to deal with all issues in the one hearing because: 1. Deciding the issues in two stages is not a statutory requirement, nor does it have statutory recognition. (Health Care Complaints Commission v Robinson) [2022] NSWCA 164 at [56]). 2. Dr Swain had been informed that it was proposed that this Tribunal would decide all issues after a single hearing. 3. Consistent with her expressed intention, Dr Swain has not participated in these proceedings so there is no need to give her an opportunity to reflect on the Orders sought by the Health Care Complaints Commission.

Complaint One

1. The Health Care Complaints Commission asks us to find that Dr Swain has an impairment because she has a Mood Disorder with psychotic features, she most likely suffers Bipolar I Disorder and she may be developing a schizophrenic-type illness.
2. Section 5 of the National Law relevantly defines impairment as follows: "5 Definitions impairment in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect-- (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession;"
3. This means we must determine whether the Health Care Complaints Commission has established that: 1. Dr Swain suffers from an impairment; and, if she does; 2. Whether the impairment detrimentally affects, or is likely to detrimentally affect, Dr Swain's capacity to practise as a doctor.
4. We accept the opinion of the three psychiatrists and find that Dr Swain suffers from a Bipolar I Disorder. The recent deterioration in her condition also raises the possibility that since 2017 she has been developing a schizophrenic-type illness. We are satisfied that she has a mental impairment for the purposes of s 5.
5. The next issue is whether the impairment detrimentally affects, or is likely to detrimentally affect, Dr Swain's capacity to practise as a doctor. We are satisfied that is does for the following Reasons: 1. We accept the evidence of the doctors and are satisfied that Dr Swain's psychiatric state, which had been well controlled by medication and medical treatment, deteriorated probably from 2017 and that the incidents which occurred in 2019 were a consequence of her impairment. 2. We are satisfied that Dr Swain's failure to engage with the hospital and then the regulatory authorities since 2019 in relation to her conduct at the hospital in 2019 is also a consequence of her impairment. 3. We infer from Dr Swain's failure to participate in this Inquiry that there has not been any improvement in her impairment.
6. All the doctors have concluded, and we agree that Dr Swain's impairment detrimentally affects her capacity to work as a doctor. This is illustrated by the incidents which occurred in 2019.
7. We accordingly find that Dr Swain is impaired and that Complaint One has been established.

Complaint Two

1. A finding of impairment does not necessarily lead to a finding that a practitioner lacks competence to practise.
2. Competence to practise is relevantly defined in s 139(a) of the National Law as: A person is "competent" to practise a health profession only if the person - (a) has sufficient … mental capacity … to practise the profession.
3. In Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168]-[170] Sackville AJA drew a distinction between impairment and competence: 168 …There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act … 170 The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances.
4. In deciding whether Dr Swain is competent to practise as a consequence of her impairment we make the following findings: 1. Dr Swain's paranoia is an element of her impairment. It is evident from what she said to the police and the contents of her email (which we have referred to dated 5 October 2021), noting that there is no evidence before us (other than the statements of Dr Swain) suggesting the truth of the matters she asserted. Dr Richardson described Dr Swain as becoming progressively paranoid. Dr McNamara described her in July 2020 as having a rather well organised paranoid delusional system. 2. This paranoia impairs Dr Swain's ability to effectively communicate with patients and ensure they receive appropriate care. 3. Dr Swain's impairment interferes with her judgment, as shown by her failure to engage with the Council and the Health Care Complaints Commission. 4. Dr Swain's impairment also interferes with her clinical ability, as shown by the incidents at the hospital. 5. In relation to the likely duration of the impairment, all three psychiatrists considered that she would only be fit to resume work as a doctor after she re-engaged with health professionals, complied with treatment recommendations, and constructively worked with the regulatory authorities such as the Council. There is no evidence before us that Dr Swain intends to do so. 6. We note the opinion of the three psychiatrists who consider she is not fit to practice.
5. We are satisfied that Dr Swain does not currently have sufficient mental capacity to practise her profession and she is accordingly not competent to practise.

Suspension or cancellation

1. Consistently with the opinions of the three psychiatrists, we consider that Dr Swain should not return to practice until she can show that she has gained insight into her impairment and has taken sufficient steps to manage her condition. For this reason, we do not consider suspension of Dr Swain's registration for a set period is appropriate.
2. Cancellation of Dr Swain's registration means that, at the expiration of a set period, Dr Swain must re-apply for registration and show that she is competent to practise.
3. We agree with the submission made by the Health Care Complaints Commission that one year is a reasonable period for Dr Swain to gain insight into her impairment and take sufficient steps to manage her condition so that she can show that she is competent to practise.

Is Dr Swain registered?

1. The certificate in evidence from Ahpra shows that Dr Swain's registration was suspended on 20 August 2020 as a result of the decision made at the second s 150 Inquiry on 18 August 2020. Her practice eligibility is shown as Unregistered (suspended).
2. Counsel for the Health Care Complaints Commission was unable to reconcile this certificate, which is dated 21 October 2022 with: 1. an email from Dr Swain to the Health Care Complaints Commission advising that her registration had lapsed in September 2020 and she had not attempted to renew it; 2. A screenshot of an online Ahpra form which Dr Swain had completed in which she asked for her name to be permanently removed from the Register noting (she said) it had lapsed in December 2020 and she had not sought to re-register. It is unclear whether the form was sent. 3. An email from Ahpra to Dr Swain dated 1 September 2020 confirming she no longer held registration with Ahpra as she had not renewed it.

Costs

1. We accept that costs should follow the event.

Orders

1. We make the following Orders: 1. Pursuant to s 149C (l)(a) of the National Law, Dr Swain's registration is cancelled; and 2. Pursuant to s 149C (7) of the National Law, an application for review may not be made for a period of 1 year from the date of this decision. 3. Dr Swain to pay the costs of the Health Care Complaints Commission. 4. If Dr Swain is no longer registered then, in lieu of Order (1), pursuant to ss 149C (1)(a) and (4)(a) of the National Law, if Dr Swain were still registered the Tribunal would have cancelled her registration; and 5. If Dr Swain is no longer registered then, in lieu of Order (2), pursuant to s 149C (4)(b) of the National Law, Dr Swain is disqualified from being registered for 1 year from the date of this decision. 6. If Dr Swain is no longer registered then, pursuant to s 149C(4)(c) of the National Law, the National Board is required to record the fact that if Dr Swain were still registered, the Tribunal would have cancelled her registration in the National Register kept by the Board.

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 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: 01 December 2022