Health Care Complaints Commission v Thurlow

NCAT Occupational|2023-03-09

Introduction

On 26 August 2022, pursuant to s.90B(1) of the Health Care Complaints Act 1993 (NSW), the Health Care Complaints Commission (the Commission) commenced disciplinary proceedings in the Tribunal seeking orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Dr Jesse Robert Thurlow (the Practitioner).
On 24 February 2023, the Commission filed an Amended Application for Disciplinary Findings and Orders to which it attached an Amended Complaint. The Amended Application for Disciplinary Findings and Orders sought different orders from those sought in the earlier Application filed on 26 August 2022. The Amended Complaint attached, amended the Original Complaint in a manner which ultimately before the Tribunal was non-controversial. A Reply in Response to the Amended Application and attached Amended Complaint was filed with the Commission on 6 March 2023.
On 7 March 2023, the Commission filed and served a Further Amended Complaint on which it sought to rely when the matter came before the Tribunal two days later on 9 March 2023. The amendments sought by the Commission were to change in Particular 1 to Complaint 4, the date of "May" 2019 to "March" 2019 and the use of the word "insurance" to "registration" in the same particular. The Commission also sought to add a further particular to the particulars of Complaint 4 in the following terms: [2] As at March 2019, the Practitioner did not have appropriate run-off cover.
In addition to those amendments, the Commission sought to add a sixth complaint and particulars of that complaint to the existing five complaints that had themselves already been amended by the documents filed on 24 February 2023. The amendment seeking to add the additional complaint was not pressed before the Tribunal and it is therefore not necessary for us to set out its terms in these Reasons. The amendment and the additional particular sought to be made and added to Complaint 4 were, however, pressed before the Tribunal and opposed by counsel for the Practitioner. However, having considered submissions made orally by the parties' counsel and a written submission by counsel for the Practitioner which included relevant case law authority including: AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 and Health Care Complaints Commission v Hanna [2017] NSWCATOD 165, the Tribunal allowed the amendments. They did not on balance cause any disadvantage to the Practitioner being in the nature of corrections and one minor addition.

Background

The Practitioner became registered as a chiropractor on 27 January 2015. His registration initially lapsed on 30 November 2018, but he was re-registered on 7 February 2019 following a Fast-Track Renewal Application made on 31 January 2019. On 22 March 2019, his registration was suspended by the Chiropractic Council of NSW and on 25 June 2019 the registration was revoked. He has not been registered since that time. [1]
On 1 March 2023, a Statement of Agreed Facts was filed with the Tribunal jointly on behalf of the parties. That document became Exhibit 1 in the proceedings and is reproduced below omitting references to the evidence supporting the matters agreed: Statement of Agreed Facts The Practitioner 1. Around the end of 2014, Dr Jesse Thurlow ("the Respondent") obtained a Bachelor of Chiropractic Science and Master of Chiropractic Science from Macquarie University. 2. On 27 January 2015, the Respondent was first registered as a chiropractor. Complaint 1 - criminal convictions 3. On 21 December 2015, the Respondent was charged in the Local Court of NSW at Waverley with the offences of: (a) Drive - middle range prescribed concentration of alcohol (first offence) contrary to s.110(4)(a) of the Road Transport Act 2013 ("Offence 1"); and (a) Proceed through red traffic light (not toll booth) contrary to Rule 56 of the Road Traffic Rules 2014 ("Offence 2"). 4. Offence 1 carries a maximum penalty of 250 units or imprisonment for 9 months or both (in the case of a first offence) under s.110(4) of the Road Transport Act 2013. 5. Offence 2 carries a maximum penalty of 20 penalty units under Rule 56 of the Road Traffic Rules 2014. 6. On 8 March 2016 at the Local Court of NSW at Waverley, the Respondent pleaded guilty to, and was convicted of, Offences 1 and 2 and was sentenced as follows: (a) Offence 1: $440 fine and 7 months disqualification of his driver's licence; (b) Offence 2: $220 fine. 7. On 4 May 2017, the Respondent was arrested and charged with aggravated sexual assault inflicting actual bodily harm on victim contrary to s.61J(1) of the Crimes Act 1900 ("Count 1"). 8. Count 1 carries a maximum penalty of 12 months or more imprisonment. 9. On 14 December 2017, the Respondent was committed for trial in the District Court of NSW ("District Court") in respect of Count 1. 10. On 18 August 2020, the Respondent was arraigned on an indictment in the District Court ("the arraignment") which charged that: (a) Counts 1 and 2: That on 15 April 2015, he had sexual intercourse with the complainant in circumstances of aggravation in that he was in company with Stefan Arabadzhiyski; (b) Count 3: Between 20 and 26 April 2017, he engaged in the course of conduct procuring Brendan Pierce to provide false information with respect to the sexual assault allegations with the intent to pervert the course of justice; (c) Count 4: Between 20 and 28 April 2017, he engaged in a course of conduct, procuring Kate Thurlow to provide false information with respect to the sexual assault allegations with the intent to pervert the course of justice. 11. At the arraignment, the Respondent pleaded, "guilty" to Count 3 and "not guilty" to Counts 1, 2 and 4. 12. On 18 September 2020, the Respondent was found "not guilty" by Her Honour Justice Syme on Counts 1 and 2 and "guilty" on Count 4. 13. On 17 December 2020, with respect to Counts 3 and 4, the Respondent was sentenced by Her Honour Justice Syme in the District Court to an aggregate term of 2 years and 10 months imprisonment with a non-parole period of 20 months. Complaint 2 - failure to notify 14. The Respondent did not notify the National Board within 7 days of being charged with Count 1 on 4 May 2017. 15. Count 1 carries a maximum penalty of 12 months or more imprisonment. Complaint 3 - fast track application 16. On 4 January 2019, the Respondent's registration as a chiropractor lapsed because he failed to renew his registration. 17. On 31 January 2019, the Respondent submitted a Fast Track Application for general registration to Ahpra ("the Fast Track Application"). 18. In the Fast Track Application, the Respondent declared he had no change to his criminal history in Australia. 19. In the Fast Track Application, the Respondent did not declare that he had been: (a) charged with driving offences on 21 December 2015; (b) convicted of driving offences on 8 March 2016; and (c) charged with a criminal offence on 4 May 2017. 20. On 7 February 2019, Ahpra approved the Fast Track Application (Ahpra Approval) and re-registered the Respondent. 21. On 22 March 2019, the Chiropractic Council of NSW suspended the Respondent's registration pursuant to s.150 of the National Law. 22. On 24 June 2019, the Chiropractic Council of NSW repealed the Ahpra Approval and refused the Fast Track Application. Complaint 4 - professional indemnity insurance 23. As at May 2019, the Respondent: (a) by reason of his suspension on 22 March 2019 was taken during the period of suspension not to be registered under the National Law other than for the purposes of Part 8 (National Law, s.176D); (b) did not hold a non-practicing registration (National Law, ss.73-76). 24. The Respondent ceased holding professional indemnity insurance from 19 January 2019 onwards.

The Commission's Complaint and Orders Sought

The Commission seeks orders in the following terms: 1. Orders pursuant to s.149C(4) of the National Law that: (a) If the Respondent was still registered the Tribunal would have cancelled his registration; (b) The Respondent is disqualified from being registered for a period of 2 years; (c) The National Board record the fact that, if the Respondent was still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 2. An order that the Respondent pay the Commission's costs under Clause 13 of Schedule 5D of the National Law.
The Second Further Amended Complaint filed by the Commission relied upon 5 complaints. These are set out below omitting those parts of the background to each complaint and those parts of the particulars deleted over the course amendment. Background to all Complaints The Practitioner obtained a Bachelor of Chiropractic Science / Master of Chiropractic Science from Macquarie University in 2015. The Practitioner was first registered as a chiropractor in New South Wales on 27 January 2015. Complaint 1 Pursuant to s.144(a) of the National Law (as applicable by reason of s.139G) the Practitioner has been convicted of a criminal offence in New South Wales. Background to Complaint 1 On 21 December 2015, the Practitioner was charged at Waverley with the offences of: (a) Drive - middle range prescribed concentration of alcohol (first offence) contrary to s.110(4)(a) of the Road Transport Act 2013; and (b) Proceed through red traffic light (not toll booth) contrary to Rule 56 of the Road Traffic Rules 2014. On 8 March 2016 at the Local Court of New South Wales at Waverley, the Practitioner plead guilty and was convicted of both offences and was sentenced for (a) to a fine of $440 and 7 months' disqualification of his driver's licence; and sentenced for offence (b) to a fine of $220. On or around 18 August 2020, the Practitioner was charged with two counts of the offence of act with intent to pervert the course of justice contrary to s.319 of the Crimes Act. On 17 December 2020, at the District Court of New South Wales at Sydney, the Practitioner entered a plea of guilty to Count 1 of the act with intent to pervert the course of justice. On the same date, the Practitioner was found guilty of both counts of the charges and was sentenced to an aggregate term of imprisonment of 2 years and 10 months with a non-parole period of 20 months for both offences. Particulars of Complaint 1 1. On 8 March 2016, the Practitioner was convicted of the following offences: (a) Drive - middle range prescribed concentration of alcohol (first offence) contrary to s.110(4)(a) of the Road Transport Act 2013; and (b) Proceed through red traffic light (not toll booth) contrary to Rule 56 of the Road Traffic Rules 2014. 2. On 7 December 2020, the Practitioner was convicted of both counts of act with intent to pervert the course of justice contrary to s.319 of the Crimes Act 1900. Complaint 2 The Practitioner is guilty of unsatisfactory professional conduct pursuant to ss.139B(1)(b) and 144(b) of the National Law (as applicable by reason of s.139G) in that he contravened s.130(1) of the National Law by failing to notify the National Board within 7 days of relevant events. Background to Complaint 2 On 4 May 2017, the Practitioner was charged with the offence of aggravated sexual assault inflict actual bodily harm on victim contrary to s.61J(1) of the Crimes Act 1900. That offence carries a maximum penalty of 12 months or more imprisonment and requires disclosure to the National Board within seven (7) days of a practitioner becoming aware of that event. Particulars to Complaint 2 The Practitioner failed to notify the National Board within seven (7) days when charged on 4 May 2017 with the offence aggravated sexual assault inflict actual bodily harm on victim contrary to s.61J(1) of the Crimes Act 1900. Complaint 3 The Practitioner is guilty of unsatisfactory professional conduct under s.139B(1)(l) of the National Law in that the Practitioner has: (i) engaged in improper or unethical conduct relating to the practice or purported practice of chiropractic. Background to Complaint 3 On 21 December 2015, the Practitioner was charged with two (2) driving offences. On 8 March 2016, the Practitioner was convicted of two (2) driving offences. On 4 May 2017, the Practitioner was charged with a criminal offence. On 4 January 2019, the Practitioner's registration as a chiropractor lapsed. On 31 January 2019, the Practitioner submitted a Fast Track Application for registration to Ahpra which was approved on 7 February 2019. The Practitioner's criminal history check then returned criminal charges and convictions and the Practitioner's registration was made "void" on 24 June 2019. Particulars of Complaint 3 1. On 31 January 2019, the Practitioner made a declaration on his Ahpra Fast Track Registration Application that he had no change to his criminal history in Australia in circumstances where the Practitioner knew this to be false and had been: (a) charged with driving offences on 21 December 2015; (b) convicted of driving offences on 8 March 2016; and (c) charged with a criminal offence on 4 May 2017. Complaint 4 The Practitioner is guilty of unsatisfactory professional conduct under s.139B(1)(b) of the National Law in that the Practitioner has: (i) contravened a provision of the National Law / Regulation. Particulars of Complaint 4 As at May 2019, the Practitioner failed to maintain professional indemnity insurance while holding general registration as a chiropractor in breach of s.129 of the National Law. As at March 2019, the Practitioner did not have appropriate run-off cover. The Practitioner held a practicing and not a non-practicing registration (National Law, ss.73-76) at this time. Complaint 5 The Practitioner is guilty of professional misconduct under s.139E of the National Law in that the Practitioner has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or calculation of the Practitioner's registration; and/or (ii) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Practitioner's registration. Particulars of Complaint 5 Complaints 2 to 4 of the particulars thereof are repeated and relied upon both individually and cumulatively.
Before considering the relevant legal obligations of the Practitioner under the National Law and the relevance of the parties' evidence, it is necessary to isolate the ambit of the parties' dispute.
In his helpful submission dated 9 March 2023, counsel for the Practitioner set out the ambit of the dispute between the parties in the following terms: 6. Each of the complaints are addressed in turn further below but in short: (a) Complaint 1 is admitted: Dr Thurlow was convicted of two driving offences in 2016 (for drink driving that occurred in 2015) and convicted on 18 September 2020 of intending to pervert the course of justice … (b) Complaint 2 is admitted and not in dispute: it concerns Dr Thurlow failing to notify the National Board within 7 days that, on 4 May 2017 he was charged with the offence of aggravated sexual assault contrary to s.61J of the Crimes Act 1900 (NSW) - for which he was ultimately found not guilty; (c) Complaint 3 is denied but only on the basis that the admitted underlying facts do not give rise to improper or unethical conduct relating to the practice or purported practice of Dr Thurlow's profession as a chiropractor and in circumstances where Dr Thurlow did [not] have the intention to be false or misleading when on 31 January 2019, he incorrectly declared that there had been no change to his criminal history in Australia; (d) Complaint 4 is denied but the only issue in dispute is whether s.129 of the Health Practitioner Regulation National Law 2019 (NSW) (National Law) requires all registered practitioners to maintain professional indemnity insurance even when they are not practicing in circumstances where Dr Thurlow has not practiced since December 2018 and is alleged to have breached s.129 in May 2019; (e) Complaint 5 is denied because when each of the complaints are considered individually or together they do not amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of Dr Thurlow's registration at this time.

The Commission's Evidence

The Commission relied upon a bundle of documents numbered 1 to 25 to which was added an Evidentiary Certificate from Ahpra dated 27 February 2023 and an Evidentiary Certificate from the Chiropractic Council of NSW dated 21 December 2022 but received in the Tribunal on 28 February 2023.

The evidence relied upon by the Practitioner

The Practitioner also relied upon a bundle of evidence comprising 11 tabs including, among other things, an Affidavit by the Practitioner sworn 15 February 2023 (Tab 2) and a psychologist's report from Mr Andrew McKinley (Tab 11). Each of the Practitioner and Mr McKinley gave oral evidence and were cross-examined.
In addition to submissions made orally, counsel for the Practitioner and the Commission also provided written submissions which were considered by the Tribunal. In the Commission's case, Submissions dated 30 March 2023 and 21 April 2023; and in the Practitioner's case, Submissions dated 9 March 2023 and 14 April 2023.

The standard of proof to be applied by the Tribunal

The Tribunal is not bound by the Rules of Evidence and therefore s.140 of the Evidence Act does not bind its deliberations. However, this does not mean that the Tribunal is unrestrained in weighing the evidence placed before us and making findings of fact on the basis of that evidence. As is now well-established by authority which binds us, the approach which the Tribunal must take is that we must be "comfortably satisfied" that each complaint alleged by the Commission has been established on the balance of probabilities. The Tribunal must have regard to matters including the seriousness of the complaint, the potential seriousness of the consequences and its proof for the Practitioner. [2]
The standard of proof necessary to establish "comfortable satisfaction" to the requisite level of proof necessary before this Tribunal has been the subject of considerable judicial consideration concerning how the gravity of matters alleged is to be taken into account.
In Briginshaw, [3] Dixon J (as he then was) said in relation to the standard of proof in civil matters as follows: But reasonable satisfaction is not just a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.
In Neat v Karajan, [4] in their joint judgment, Their Honours Mason CJ, Brennan, Deane and Gaudron JJ said: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. [authorities omitted] Statements to that effect should not however be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that on the balance of probability a party to civil litigation has been guilty of such conduct. Not entirely but significantly it is to the seriousness of the offences which the Practitioner has admitted that his counsel draws to the Tribunal's attention in his submissions.
These are proceedings where the application of the requirement upon the Tribunal to make findings of fact arising out of the particulars to each complaint has been limited by the degree to which the Practitioner has made admissions. In particular: 1. Complaint 1 is admitted. First, the Practitioner concedes he was convicted of two road traffic offences, the conduct giving rise to those offences having occurred in 2015. The particulars of the offences and the penalties imposed appear in the background to Complaint 1 set out earlier in these Reasons. Of far more significance are the two other offences referred to in the particulars to the complaint. First, it is admitted that on 17 December 2020, the Practitioner in the District Court of NSW entered a plea of guilty to one count of intent to pervert the course of justice. A second count with which he was charged was denied but after a defended hearing the practitioner was on 17 December 2020 convicted of both counts of intent to pervert the course of justice contrary to s.319 of the Crimes Act 1900. It is contended on behalf of the Commission, [5] that the Practitioner "… does not accept the most central aspect of the findings which led to his convictions for perverting the course of justice, namely, that he persuaded two witnesses to lie to Police for his own advantage". Counsel for the Practitioner rejects that submission and it is a matter to which we will return later in these Reasons. 1. Complaint 2 is admitted. It concerns the Practitioner failing to notify the National Board within 7 days after 4 May 2017 that he was charged with the offence of aggravated sexual assault contrary to s.61J of the Crimes Act 1900. It is common ground that the Practitioner was found not guilty of that offence. 2. Complaint 3 is admitted to the extent that the Practitioner concedes that he incorrectly declared on his 31 January 2019 Fast Track Application that there had been no change to his criminal history in Australia since he was last registered to practice. On behalf of the Practitioner, it is argued that although the facts said by the Commission to comprise the basis for Complaint 3 to be found proven on their proper interpretation, those matters do not fall within the terms of s.139B(1)(l) of the National Law in that they do not establish "any other improper or unethical conduct relating to the practice or purported practice" of the Practitioner's profession. Additionally, counsel for the Practitioner argues that the omitted underlying facts do not give rise to improper or unethical conduct (relating to the practice or purported practice of the Practitioner's profession as a chiropractor) in circumstances where the Practitioner did not have the intention to be false or misleading. The issues raised between the parties are addressed later in these Reasons. 3. Complaint 4 is denied by the Practitioner. It is not at issue that at the time alleged by the Commission, the Practitioner did not have run-off insurance; rather, the Practitioner contends that the absence of run-off insurance at the time alleged by the Commission does not breach s.129 of the National Law. 4. Complaint 5 relies upon the Commission establishing that Complaints 2 to 4 are established or that to the extent that the Tribunal finds them established, it can properly find that the Practitioner is guilty of professional misconduct.

Discussion

The Commission alleges the Practitioner to be guilty of "unsatisfactory professional conduct". Unsatisfactory professional conduct is defined in s.139B of the National Law and may be satisfied by establishing any one of the elements referred to in that section. In particular, the Commission relies upon s.139B(1)(b) which reads as follows: Contravention of this law or regulations (b) A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
Section 139B(1)(l) is also relied upon by the Commission and reads as follows: Other improper or unethical conduct (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The test to determine these matters is objective and the Commission bears the onus of proof. [6] It was also not in issue when the matter came before the Tribunal that the provisions of the National Law relied upon by the Commission applied to the Practitioner who pursuant to s.139G although he was not then and had not for some time been registered to practice as a chiropractor.
The Commission also relies upon s.139E of the National Law alleging that the Practitioner in the event that Complaints 2 to 4 or any one of them are satisfied is guilty of "professional misconduct". The National Law does not specifically define "professional misconduct" and permits a single instance or a series of instances of "unsatisfactory professional conduct" when taken together to amount to conduct attracting the application of the section. Section 139E provides as follows: Meaning of "professional misconduct" For the purposes of this Law, "professional misconduct" of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
In Chen v Health Care Complaints Commission, [7] Basten JA (Leeming and Payne JJA agreeing) articulated the test for "professional misconduct" in the following terms 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.

Complaint 1

The Tribunal finds Complaint 1 established. The Practitioner admits it but in any event the evidence led by the Commission is otherwise sufficient to establish it.

Complaint 2

The Commission finds Complaint 2, which is also admitted by the Practitioner, established. Again, the evidence independently led by the Commission is sufficient to enable the Tribunal independently to find the complaint established.
In their respective written submissions, counsel for the Commission and for the Practitioner debate whether or not it is open to the Tribunal to infer that the Practitioner was "simply indifferent" and had not exerted any efforts to satisfy himself as to what his obligations were. [8] In response to that submission, counsel for the Practitioner contends that, "No evidence was led by the HCCC that would enable the Tribunal to make a positive finding that the Respondent was 'indifferent' to his obligations." It is noted further that the proposition was not put to the Practitioner who gave evidence and was cross-examined. [9] In answer, counsel for the Commission clarified his submission to make plain that it was not submitted that the Practitioner "knowingly or intentionally" disregarded his obligations. [10] Counsel for the Commission having clarified that matter then re-states the proposition that the Tribunal should find the Practitioner indifferent to his obligations as a chiropractor because he failed to undertake "… any efforts to satisfy himself as to what those obligations were". [11] Whether or not the Practitioner's conduct is characterised as indifference or not, the Tribunal finds that there was a positive obligation upon the Practitioner to understand his obligations under the National Law. His evidence is that he is now aware of that obligation.

Complaint 3

The Tribunal has already noted that the facts concerning this complaint are not in dispute. The ambit of the issue is whether or not the admitted conduct constituted: [any other] improper or unethical conduct relating to the practice or purported practice of [the Practitioner's] profession as a chiropractor so as to automatically give rise to unsatisfactory professional conduct. [12]
At [28] and [29] of PS-1, counsel for the Practitioner sets out the requirements of disclosure of criminal history as required by the Fast Track Application in the following terms: [28] The relevant section of the Fast Track Application is Question 10 (p.17 of Exhibit JRT-1) which asks: [10] Since your last declaration to Ahpra, has there been any change in your criminal history in Australia that you have not declared to Ahpra. [29] "Criminal History" is defined on the last page of the Fast Track Application (p.24 of Exhibit JRT-1) as: Criminal History includes the following, whether in Australia or overseas at any time: • Every plea of guilty or finding of guilty by a court of a person for an offence whether or not a conviction is recorded for that offence; and • Every charge made against the person for an offence. • Under the National Law, spent convictions legislation does not apply to criminal history disclosure statements. Therefore, you must disclose your complete criminal history as detailed above, irrespective of the time that has lapsed since the charge was laid or the finding of guilt was made. The Board will decide whether a health practitioner's criminal history is relevant to the practice of the profession. • You are not required to obtain or provide your Australian criminal history report, Ahpra will obtain this check on your behalf. You may be required to obtain international criminal history reports. For more information, view the registration standard online at www.chiropracticeboard.gov.au/registation-standards
Counsel for the Practitioner contends that the Commission's complaint must fail because the completion of a Fast Track Application is not properly caught by the sub-section. It is not "any other" conduct relating to the practice or purported practice of the Practitioner's profession and therefore cannot be a breach of s.139B(1)(l) of the National Law which relates to breaches of that type. Counsel contends ordinarily, failure to declare a change of criminal history is raised as a contravention of the National Law for the purposes of s.139B(1)(b) in that s.109(1)(b) of the National Law is not being complied with. As an example, he refers to the particulars alleged in Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [57] and Health Care Complaints Commission v Carr [2020] NSWCATOD 131. ad the Commission proceeded on the path suggested as appropriate by counsel for the Practitioner, then there is no doubt that the complaint would be established because the failure to disclose is admitted.
Section 139B(1)(l) reads as follows: Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
In considering the meaning to be attached to the section, the Tribunal must have regard to the provisions of Clause 7(1) of Schedule 7 to the National Law which provides as follows: 7 Interpretation best achieving Law's purpose (1) In the interpretation of a provision of this Law, the interpretation that will best achieve the purpose or object of this Law is to be preferred to any other interpretation.
The object of registration of health practitioners of which completing the relevant form forms part of the process is as counsel for the Commission submits, a measure "… to provide for the protection of the public …". But these requirements only assist the Commission if properly interpreted, the section encompasses the conduct complained of, that is, it does not otherwise breach s.139B(1).
The use of the words, "relating to …", in the section must as counsel for the Commission submits be given a wide interpretation in determining the nature of the improper or unethical conduct covered. However, that is only a relevant consideration if the conduct complained of can be said to be included within the meaning of the section. Counsel for the Practitioner submits that it cannot where the combination of ss.109(1)(b) and 139B(1)(b) specifically cover the conduct particularised. Section 139B(1)(l) is, he contends, concerned with "any other improper or unethical conduct". That is conduct that is other than conduct which would be caught by a breach of s.109(1)(b) and therefore plainly a contravention by the Practitioner of a provision of the National Law and caught by s.139B(1)(b).
In support of that submission, counsel for the Practitioner refers to the decision of Walton J in Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [159]-[160], [13] where his Honour said: [159] Before leaving the discussion of Complaint 2, it might be noted that the conduct complained of, in that respect, received little attention in relation to whether the impugned conduct was conduct that fell within the meaning of the phrase. It is difficult to conceive why that conduct in Complaint 2(1)(a) would not constitute conduct in the plaintiff's practice of the profession of pharmacy at least insofar as that practice required ethical conduct. This conclusion is supported by the objects and guiding principles of the Act. Whilst many of them are expressed in very broad terms, as I previously noted, the object of the law as stated in s.3(1)(a) was to establish a national registration and accreditation scheme for the regulation of health practitioners. Section 3(2)(a) makes clear that the objects of the national registration and accreditation scheme are to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice "in a[n]... ethical manner are registered". In this sense, the objects of the Act give "practical content" to the terms of the phrase: Russo v Aiello (2003) 215 CLR 643 at 645 (per Gleeson CJ). [160] This conclusion is also supported by the terms of s.139B(1)(l), the opening words of which are, "any other improper or unethical conduct". This not only makes clear that the provision is dealing with conduct not otherwise dealt with in s.139B(1)(a)-(k) but that the conduct caught by sub-s.(1)(a)-(k) does concern, inter alia, "unethical conduct".
The above interpretation is supported by further authorities adopting the interpretation referred to above and are cited by counsel for the Practitioner who concludes with the following submissions: [33] When ss.109(1)(b), 139B(1)(b) and (l) are read together in context, particularly having regard to the specific role served by s.109(1)(b) and the use of the words, "any other", in s.139B(1)(l), it becomes apparent that s.139B(1)(l) was not intended by the legislature to capture conduct that is already captured by s.139B(1)(b), namely a breach of s.109(1)(b). Indeed, conduct falling under s.139B(1)(b) is captured by that provision to the exclusion of s.139B(1)(l) given the words, "any other unethical or improper conduct".
The Tribunal agrees with that submission and finds that Complaint 3 is not established.

Complaint 4

Complaint 4 alleges that the Practitioner is guilty of unsatisfactory professional conduct pursuant to s.139B(1)(b) in that he contravened s.129(1) of the National Law by failing to maintain professional indemnity insurance. The Tribunal agrees that if the Practitioner was required to have professional indemnity insurance following his cessation to practice as a chiropractor, then the fact that he did not, which is admitted, would amount to a breach of s.139B(1)(b). As counsel for the Practitioner has submitted on his behalf in relation to Complaint 3, the section is intended to deal with breaches of the requirements of the National Law relevant to practice as a chiropractor. In his affidavit evidence at JRT-1, Tab 2 at [89]-[92], the Practitioner complains that he does not understand why professional indemnity insurance was necessary having regard to the time at which it was raised being a time when he was not in fact in practice. The Practitioner's failure to understand the requirements of his practicing as a chiropractor is not answer to failing to comply with those requirements. Section 129(1) of the National Law provides: A registered health practitioner must not practise the health profession in which the practitioner is registered unless appropriate professional indemnity insurance arrangements are in force in relation to the practitioner's practice of the profession.
Section 5 defines "appropriate professional indemnity insurance arrangements" as professional indemnity insurance arrangements that comply with an approved registration standard to the health profession in which the practitioner is registered. The Registration Standard for the Professional Indemnity Insurance from the Chiropractic Board of Australia appears at p.28 of Exhibit JRT-1 to the Practitioner's Affidavit.
At p.30 of Exhibit JRT-1, the professional indemnity standard states: When you decide to cease practice, you must take out appropriate run-off cover for matters that would otherwise be uncovered arising from your previous practice as a chiropractor.
The Tribunal does not accept the proposition that arrangements for appropriate insurance are complex. The need for professional indemnity insurance whilst practicing as a chiropractor is crystal clear. Similarly, it is difficult to understand how the Chiropractic Board of Australia insurance standard referred to above could be misunderstood. The Tribunal finds Complaint 4 established.

Complaint 5

Complaints 2 and 4 have been found by the Tribunal to be established. The terms of s.139E of the National Law is set out earlier in these Reasons. Also set out is the relevant passage from the NSW Supreme Court, Court of Appeal's decision in Chen v Health Care Complaints Commission. Any unsatisfactory conduct may engage the Tribunal's power to suspend or cancel registration or as is the case here find that had the Practitioner been registered, that registration would have been cancelled or suspended. The only requirement is that the conduct be "sufficiently serious".
Section 3A(1) applies to these proceedings and provides: The main guiding principle of the National Registration and Accreditation Scheme is that the protection of the health and safety of the public must be the paramount consideration.
While it is true as counsel for the Practitioner submits that his client was found not guilty of the charge of aggravated sexual assault inflicting actual bodily harm on the victim contrary to s.61J(1) of the Crimes Act 1900, the charge was a charge relating to serious sexual misconduct and actual bodily harm. The requirement that such charges be reported irrespective of whether or not they lead to a conviction is a measure to enable if necessary protective measures to safeguard the public to be undertaken. Likewise, the holding of professional indemnity insurance is again a critical measure to ensure public safety. The Tribunal is satisfied that the Practitioner's failures established by Complaints 2 and 4 amount to professional misconduct.

The orders sought by the Commission

The Commission seeks orders pursuant to s.149C(4) of the National Law which relates to circumstances where a practitioner is no longer registered. The section permits the Tribunal to find that in the event that the practitioner was still registered, that registration would have been cancelled or suspended. In this case, the Commission asks for a finding that the registration would have been cancelled. Assuming that order is made, the Commission further seeks that the Practitioner be disqualified from being registered for a period of 2 years. Assuming orders are made as asked, the Commission seeks that they be recorded by the National Board.
In seeking those orders, the Commission relies upon s.149C(1)(b) and (c) which enable suspension or cancellation in the event of a finding of professional misconduct or: (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession;
As the Tribunal has already noted, the Practitioner gave evidence by way of affidavit and in addition short oral evidence. He was cross-examined. The Practitioner also called in his case evidence from Mr Andrew McKinley, a psychologist who provided a report and was cross-examined.
Cross-examination of the Practitioner was directed to the findings in the District Court proceedings where he was convicted of 2 counts of attempting to pervert the course of justice. With respect to one of those counts, he entered a plea of guilty. He contested the second. The charge of attempt to pervert the course of justice is a serious offence. In criminal offences it sits at the heart of a jury's ability to assess the facts of a case. In relation to his present attitude to criminal matters, the Practitioner said at [43] of his Affidavit: [14] What I can say however is that I am supremely confident that I will never be embroiled in any criminal matter, ever again, and in the extremely unlikely event that I ever were to be, to ensure that I never again fall foul of my obligations under the Health Practitioners National Law (NSW) (National Law). If that occurred, I would: (a) immediately inform the National Board of the matter; (b) immediately instruct solicitors to act for me; (c) immediately refer to the National Law to check that my understanding of my obligations is up to date, and instruct a solicitor to assist me in that process; (d) if necessary, reach out to Ahpra, for guidance; and (e) continue to keep the National Board and Ahpra informed of any proposed updates to the charges in that matter.
At [46]-[47], the Practitioner gives the following evidence: I cannot understate the enormity of the stress that followed from being falsely accused and then charge with sexual assault, and the humiliation and destruction that it caused, not only to my life but to the lives of my family and friends. I take full responsibility for the role that I played in the trail of destruction to my family and friends from 2017 to 2020, following the sexual assault allegations which I discuss below.
In relation to the charges in respect of which the Practitioner was found guilty, he gives the following affidavit evidence at [60]-[63] of his Affidavit: [15] As above, I was charged with 2 counts of pervert the course of justice. Those charges were the charges that ultimately led to my incarceration. Both charges related to conversations that I had had with witnesses from the night of the alleged incident, essentially, they were about coordinating evidence that defence witnesses were giving to the Police. Despite the fact that I have always maintained that I do not believe that the information being provided by the witnesses to Police was lies, (her Honour expressly rejected mine and the other witnesses' evidence on that point, and I have had to accept that and understand that now), I appreciate that his Honour made fair observations that the motivation behind the offending was "purely personal and selfish". Her Honour was 100% correct. Whatever the facts of what my friends actually did or did not witness are (and the Court found against me on that point), I acknowledge that I embroiled my friends and family in the criminal proceedings purely for selfish reasons and behaved in a manner which showed mistrust in the justice system in turn derailing the integrity of a police investigation …
During cross-examination, it was put to the Practitioner that when judgment was delivered in September 2020, his position was that he did not accept that although it was found against him, he had pressured witnesses to lie; that he did not agree that the findings against him were correct or that his conduct amounted to perverting the course of justice. In answer to a question to the effect of - What had changed since the judgment? The Practitioner said words to the effect, that he had come a long way and made significant changes. He said he accepted findings but did not entirely agree with them. In answer to a question with respect to - What had changed since the conviction? The Practitioner replied with words to the effect that there was huge difference between then and now. Ultimately, he agreed that what he did was wrong.
The Practitioner's treating psychologist, Mr Andrew McKinley, was called in a witness in his case and cross-examined. The Tribunal accepts as submitted by counsel for the Practitioner that Mr McKinley's opinions were based on observations of the Practitioner over months of sessions, his review of earlier psychological reports and court records. The Tribunal accepts that common sense does dictate that the events that the Practitioner was facing between 2017 and 2020 would have caused great distress. Of more significance to the Tribunal is whether the Practitioner acknowledges / accepts that his own conduct was a causal factor but not the only causal factor leading to that great distress. On that issue, the Tribunal finds that to use the Practitioner's own words, "He has come a long way towards an appropriate understanding of and responsibility for his own behaviour but that understanding remains imperfect."
The Tribunal's paramount consideration is the protection of the health and safety of the public. Where protective orders are made their purpose extends beyond an immediate safety for patients and includes the public interest in maintaining confidence in the high standards of health practitioners. [16]
In coming to our decision, the Tribunal has considered the nature of the offences for which the Practitioner has been convicted and the complaints that have been established.
Also, while it is the case that the fact that a complaint or conviction is old does not diminish its seriousness. In Lee v Health Care Complaints Commission [2012] NSWCA 80 at 72, Barrett JA referred Walsh JA's observation in Ex parte Tziniolis; Re The Medical Practitioners Act (1966) 67 SR(NSW) 448 at 461 that: … one cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a disreputable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.
The Tribunal accepts that the Practitioner has made significant progress and continues to undertake appropriate treatment: see for example, Mr McKinley's answer to Question 9 put to him by solicitors for the Practitioner. [17] However, the Tribunal finds that a finding in terms of Order 1 as sought by the Commission should be made.
In considering the length of time before the Practitioner may apply for re-registration, the Tribunal takes into account the submission by his counsel that it is now many years since the Practitioner has been able to practice his profession. That inability for some of those years was of course as a consequence of the Practitioner's own conduct and that is also taken into account. In terms of Order 2 as sought by the Commission, the Tribunal considers that the period of disqualification before re-registration should be for a period of one (1) year.
The National Board will be asked to record the fact that if the Practitioner were still registered, the Tribunal would have cancelled his registration.

Costs

Counsel for the Practitioner has asked that in the event that the Tribunal finds any of the counts established and the issue of an order for costs in favour of the Commission arises, the parties be permitted to make short written submissions. Orders to that effect will be made.

Orders 1. That pursuant to s.149C(4)(a), if the Respondent was still registered the Tribunal would have cancelled his registration. 2. That pursuant to s.149C(4)(b), the Respondent is disqualified from being registered for a period of one (1) year from the date of this order. 3. That pursuant to s.149C(4)(c), the National Board record the fact that, if the Respondent was still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 4. That any submissions on behalf of the Practitioner with respect to the issue costs be filed and served within 14 days from the date of these Orders and any additional submissions or submissions in response to submissions filed by the Practitioner be filed by the Health Care Complaints Commission within a further 14 days thereafter.

Endnotes

Statement of Agreed Facts, Exhibit 1; and Evidentiary Certificate issued by Ahpra, Exhibit 2.
Briginshaw v Briginshaw (1938) 60 CLR 366 (Briginshaw) and Gautam v Health Care Complaints Commission [2021] NSWCA 85 per Payne JA at [85] (Leeming JA at [1] and Simpson AJA at [118] agreeing).
At p.362.
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 (Neat v Karajan) at 449-450.
Commission's Submissions dated 30 March 2023 at [3(a)] (HCCC 1).
Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82].
Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. See also R v Byrnes & Hopwood (1995) 183 CLR 501 at pp.514-515.
HCCC Submissions dated 30 March 2023 (HCCC-1) at [9].
Practitioner's Submissions dated 14 April 2023 (PS-2) at [15].
HCCC Submissions dated 21 April 2023 (HCCC-2) at [6].
HCCC-2 at [7].
Practitioner's Submissions dated 9 March 2023 (PS-1) at [26].
PS-2 at [31]-[33].
Exhibit JRT-1, Tab 2.
Exhibit JRT-1, Tab 2.
See Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]; see also Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
Exhibit JRT-1, Tab 11, p.9. 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: 08 August 2024

Road Traffic Rules 2014(NSW)

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Judgment (16 paragraphs)

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Legislation Cited (5)

Cases Cited (15)