WHAT CONSEQUENTIAL ORDERS SHOULD BE MADE
38It is then necessary to consider what consequential orders should be made following this finding.
The powers which are available to this Tribunal are contained within sections 149A, 149B and 149C of the National Law which are in the following terms;
149A General powers to caution, reprimand, counsel etc [NSW]
(1) The Tribunal may do any one or more of the following in relation to the registered health practitioner-
(a) caution or reprimand the practitioner;
(b) impose the conditions it considers appropriate on the practitioner's registration;
(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);
(d) order the practitioner to complete an educational course specified by the Tribunal;
(e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal;
(f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
(2) The Tribunal may do any one or more of the following in relation to the student-
(a) caution or reprimand the student;
(b) impose the conditions it considers appropriate on the student's registration;
(c) order the student to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling);
(d) order the student to complete an educational course specified by the Tribunal.
(3) If the health practitioner is no longer registered, an order or direction may still be given under this section but has effect only-
(a) to prevent the practitioner being registered unless the order is complied with; or
(b) to require the conditions concerned to be imposed when the practitioner is registered.
(4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled.
(5) The order or condition concerned is then a critical compliance order or condition.
149B Power to fine registered health practitioner in certain cases [NSW]
(1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units.
(2) A fine is not to be imposed unless-
(a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and
(b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest.
(3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct.
(4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession.
149C Tribunal may suspend or cancel registration in certain cases [NSW]
(1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied-
(a) the practitioner is not competent to practise the practitioner's profession; or
(b) the practitioner is guilty 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; or
(d) the practitioner is not a suitable person for registration in the practitioner's profession.
(2) The Tribunal may suspend a student's registration for a specified period or cancel the student's registration if the Tribunal is satisfied-
(a) the student 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 student unfit in the public interest to undertake clinical training in the health profession; or
(b) the student is otherwise not a suitable person to undertake clinical training in the health profession.
(3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition.
(4) If the person is no longer registered, the Tribunal may-
(a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and
(b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and
(c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board.
(5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following-
(a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently;
(b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
(6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order-
(a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and
(b) give the Council, National Board and Commission an opportunity to make a submission.
(7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
39There are a number of authorities at appellate and other level which have established the proper approach to the determination of appropriate orders in the exercise of the powers of the Tribunal. The relevant principles have recently been summarised, comprehensively and succinctly in Health Care Complaints Commission V Dr Della Bruna [2014] NSWCATOD 31. At [88] and following the Tribunal said;
In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations:
(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law.
(2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637,
(3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
(4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
(5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].
Although the Tribunal has concluded that Dr Della Bruna's conduct was of a sufficiently serious nature to justify suspension or cancellation of her registration, it does not necessarily follow that suspension or cancellation is the appropriate protective order to make in the circumstances of the present case. Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 was a decision under the Medical Practice Act 1992 (NSW) but the relevant provisions of that Act are substantially the same as the applicable provisions of the National Law and the Court of Appeal's reasoning is equally applicable to the present case. At [67] it was held:
40However, it is clear that the definition [of professional misconduct] is focused on the nature of the conduct, which must have the capacity to justify such an order [suspension or cancellation], whether or not such an order should be made in particular circumstances. That such an order need not be made is clear from the terms of ss 60-64 [which are substantially the same as ss 149 to 149C of the National Law], which provide that the full range of disciplinary powers is available on a finding of professional misconduct. The statutory constraints operate differently. Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1) [s 149C(1) of the National Law is to a similar effect]. Further, the power to impose a fine depends upon a finding that the person is guilty of unsatisfactory professional conduct or professional misconduct: s 62(2) [see s 149B(2) of the National Law]. Otherwise, the discretion of the Tribunal is at large and will depend upon the circumstances of the individual case : see, in relation to legal practitioners, Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 at [76] (McHugh, Kirby and Callinan JJ).
In Health Care Complaints Commission v Gorondy-Novak [2011] NSWMT 3, the Medical Tribunal said at [200]:
The authorities also clearly establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice: see Ex Parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 - 425 (Latham CJ, Dixon and Williams JJ (Rich and Starke JA dissenting)); The Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal, 31 July 1987 unreported), (Kirby P, Mahoney and McHugh JJA).
This quotation should not, however, be taken to support the proposition that the Tribunal may order deregistration only if it finds that the practitioner is permanently unfit to practise - see Health Care Complaints Commission v King [2013] NSWMT 9 at [25]). The expression used by the High Court in Ex parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlies an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practise at the time of making the order and is likely to remain so for a significant period.
41In determining what orders are appropriate, it is necessary for the Tribunal to consider all relevant circumstances in light of the legislation and the principles established by the authorities set out above.
42In submissions, the complainant said that the appropriate order to be made in all the circumstances was one cancelling the registration of the respondent. Not only was the respondent in disregard of the practice condition in circumstances which could not justify this conduct, but it was also important that the Tribunal emphasise the necessity of recognising the significance which should attach to compliance with conditions of this kind by medical practitioners. In effect, the practice condition was imposed for the protection of the public, the respondent has resisted compliance with the practice condition over a long period of time and to fail to exercise the power of cancellation or suspension of registration would allow the respondent to escape the consequences, albeit that the power was to be exercised with principal concern for the protection of the public and the enhancement of proper standards of professional practice. The result would be that this respondent would continue to practice medicine unaffected by his persistent failure to comply with a practice condition imposed in a regular and authorised manner by an entity with undoubted power to do so.
43As against this, it was submitted on behalf of the respondent that his conduct which gave rise to the imposition of the practice direction ceased, on the evidence, by 2007, and no good purpose would be served by depriving the respondent from continuing to practice medicine in a manner now being undertaken by him in 2014. It was said that there were no indicia which would indicate any need for a practice direction of this kind to now be applied to the respondent. Furthermore, although the respondent consistently breached the practice condition over a period of time, he endeavoured on a number of occasions to have it reviewed, albeit unsuccessfully, and there were substantial reasons why he was unable to comply. In these circumstances, it was said that orders other than cancellation or suspension were appropriate. Through counsel, the respondent invited the Tribunal to create a regime providing for supervision or mentoring as a means of adequately creating a protective situation.
44For the respondent, emphasis was placed upon the various factors which created difficulties, and perhaps an impossibility, for the respondent in undertaking and completing the relevant course. We acknowledge that, on the evidence, that the respondent would have had difficulty in pursuing the course from time to time by reason of his several medical conditions. However, the impact that those conditions had on him varied from time to time and were not present consistently throughout the period with which we are concerned. In terms of his medical conditions we are of the opinion that from time to time the respondent could at the least have enrolled and commenced to undertake a course, whether or not he was able to complete it by reason of any particular medical condition. We make this comment acknowledging that the course was not offered in 2009.
45Furthermore, we do not regard the necessity to be in electronic communication with the University as being, in fact, a significant impediment. Of course, the respondent did not seek any assistance from anyone to enable him to do this so there is no evidence of his ability to do so. As a matter of common sense and everyday knowledge we observe that, whether on a paid or unpaid basis, there would have been during the relevant period available to just about everyone in the community, and a medical practitioner in particular, some means to enable electronic communication through the use of a computer. At least until the 2014 year, the 4 assignments could have been submitted in hard copy, presumably even handwritten.
46It was also urged upon us that there was no longer any necessity for the respondent to undertake such a course and for the practice condition to remain. As we have previously observed, the starting point for the determination of these proceedings is the fact that the practice condition was imposed in a regular and lawful manner, and has the force of law accordingly.
47The respondent said that having regard to all the relevant circumstances of these proceedings that this Tribunal should take into account matters of a contemporary nature as they apply to him. In this regard we note that he continues to prescribe a number of drugs, which we have mentioned, to patients who suffer from serious and terminal conditions. Whilst we concede that the respondent no longer prescribes drugs of the kind which were subject to the practice condition imposed upon him, there is nothing that has been put to us which would persuade us that it is entirely appropriate that the respondent be permitted to prescribe drugs and other medicines without having undertaken some course of study. In his evidence, the respondent said that he attended regional practice meetings and other ad hoc meetings at which there may have been discussion of the prescribing of various substances. Furthermore, he said that he read newsletters, articles in newspapers and received information from drug manufacturers about prescribing issues. But as against this he does not have access to the dissemination of any information which is the subject of broadcast by electronic means. We are unable to conclude that there is no utility in the respondent remaining subject to a practice condition of this kind to such an extent that, in some way, the very serious breach of it by him should be overlooked.
48We are also concerned that the respondent has always considered that the imposition of the practice condition in question was of no utility to him, and he has appeared to resent it as being an unnecessary burden both financially and otherwise. There has been no recognition on his part of the necessity to do his very best to comply with the condition, and we are of the view that he has not attempted to do so. This flagrant breach of authority is indicative to us of conduct that demonstrates that his judgement in the practice of his profession is significantly below the standard reasonably expected of a practitioner of his level of training and experience. There is simply no evidence of any expression of contrition or remorse in having breached the practice condition over a long period of time. On the contrary, the respondent appears to have resented its imposition and studiously refrained from undertaking the course, let alone seeking to enrol in it. We would expect that all medical practitioners would respect the force and effect of practice conditions lawfully imposed on them from time to time, and respect any decisions lawfully made to decline to remove them. This is a standard mandated by the National Law, and which the community expects to be observed by all medical practitioners. The respondent's conduct is significantly below this standard.
49Because the serious nature of the breach by the respondent of the practice condition imposed upon him constitutes, as we have found, professional misconduct, and because we are not satisfied that the surrounding circumstances upon which he relies should in some way be seen to mitigate the effect of the breach, we conclude that in all the circumstances it is appropriate that an order be made cancelling the registration of the respondent. In so concluding we are conscious of the need to protect the public generally, to ensure the maintenance of professional standards and public confidence in the practice of medicine, and to deter other health practitioners from breaching practice conditions. We are of the opinion that a minimum period of deregistration of one year is adequate.