Health Care Complaints Commission v Von Marburg

Health Care Complaints Commission v Von Marburg - [2019] NSWCATOD 85 - NSWCATOD 2019 case summary — Zoe

[43]

COMPLAINT FOUR: PARTICULARS ONE TO SEVEN 1. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 17 December 2008, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 17 December 2008, when it was in fact never sent; (b) the document purports to have been created on or about 17 December 2008, when it was in fact created sometime after December 2014. 2. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 1 April 2009, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 1 April 2009, when it was in fact never sent; (b) the document purports to have been created on or about 1 April 2009, when it was in fact created sometime after December 2014. 3. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 20 May 2009, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 20 May 2009, when it was in fact never sent; (b) the document purports to have been created on or about 20 May 2009, when it was in fact created sometime after December 2014. 4. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 14 October 2009, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 14 October 2009, when it was in fact never sent; (b) the document purports to have been created on or about 14 October 2009, when it was in fact created sometime after 2014. 5. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 19 August 2011, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 19 August 2011, when it was in fact never sent; (b) the document purports to have been created on or about 19 August 2011, when it was in fact created sometime after 2014. 6. By letter dated 8 October 2015, received by the Health Care Complaints Commission (the Commission) on 12 October 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient W's general practitioner at Bright Medical Centre dated 12 October 2011, which was false and misleading in that: (a) the document purports to have been sent to Bright Medical Centre on or about 12 October 2011, when it was in fact never sent; (b) the document purports to have been created on or about 12 October 2011, when it was in fact created sometime after 2014. 7. In engaging in the conduct set out at each of particulars 1, 2, 3, 4, 5 and 6, the Practitioner acted in contravention of section 99 of the Health Care Complaints Act 1993.

[75]

COMPLAINT EIGHT: PARTICULARS ONE TO FOUR 1. By letter dated 25 August 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient Y's general practitioner at Gardens Medical Centre dated 9 January 2008, which was false and misleading in that: (c) the document purports to have been sent to Gardens Medical Centre on or about 9 January 2008, when it was in fact never sent; (d) the document purports to have been created on or about 9 January 2008, when it was in fact created sometime after June 2015. 2. By letter dated 25 August 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient Y's general practitioner at Gardens Medical Centre dated 19 August 2009, which was false and misleading in that: (e) the document purports to have been sent to Gardens Medical Centre on or about 19 August 2009, when it was in fact never sent; (f) the document purports to have been created on or about 19 August 2009, when it was in fact created sometime after June 2015. 3. By letter dated 25 August 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient Y's general practitioner at Gardens Medical Centre dated 25 September 2009, which was false and misleading in that: (g) the document purports to have been sent to Gardens Medical Centre on or about 25 September 2009, when it was in fact never sent; (h) the document purports to have been created on or about 25 September 2009, when it was in fact created sometime after June 2015. 4. By letter dated 25 August 2015, the Practitioner produced to the Commission a document purporting to be a letter from the Practitioner to Patient Y's general practitioner at Gardens Medical Centre dated 8 August 2012, which was false and misleading in that: (i) the document purports to have been sent to Gardens Medical Centre on or about 8 August 2012, when it was in fact never sent; (j) the document purports to have been created on or about 8 August 2012, when it was in fact created sometime after June 2015. 5. In engaging in the conduct set out at each of particulars 1, 2, 3, and 4 the Practitioner acted in contravention of section 99 of the Health Care Complaints Act 1993.

Parties

Applicant/Plaintiff:

Health Care Complaints Commission

Respondent/Defendant:

Von Marburg

Legislation Cited (1)

Health Records and Information Privacy Act 2002(NSW)

Cases Cited (9)

THE HEARING

The hearing has proceeded by way of tender of the documentary evidence relied upon by the applicant which was admitted without objection. The respondent's statement was also admitted into evidence. Thereafter both the applicant and the respondent have made extensive submissions.
In making its findings in respect of each complaint, the Tribunal will apply the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 - 363. In doing so, the Tribunal is mindful of the observations by Hayne J in FTZK and Minister for Immigration and Border Protection [2014] HCA 26 (27 June 2014). In that decision, his Honour spoke of the misnomer to refer to a "standard of proof" outside the adversarial processes of a court: see para 34. Similar observations are contained in Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41; see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 which confirms that a Tribunal must be mindful in reaching its conclusions of the gravity of the allegations and the seriousness of the consequences which may flow from the making of positive findings.
The Tribunal considers that the principles established in Briginshaw serve the most appropriate guide in determining whether each allegation of unsatisfactory professional conduct has been established. Such principle requires the Tribunal to be satisfied, to a high degree, where the allegations are especially grave. The Tribunal notes that such a course has been adopted by the Court of Appeal of the Supreme Court of Western Australia in the matter of Dekker v Medical Board of Australia [2014] WASCA 216 at [75] (judgment delivered 21 November 2014).
The Tribunal is also mindful that where evidence is unchallenged, it will not necessarily be accepted; however its unchallenged status will provide a cogent reason why it should be accepted: see Taupau v HVAC Constructions (Queensland) Pty Ltd and Ors [2012] NSWCA 293 at [130]. Accordingly the Tribunal will consider the evidence of the applicant and its expert evidence, together with the unsworn statement of the practitioner. However, there is no reason why the practitioner could not have sworn an affidavit or given sworn evidence.
The Tribunal has considered the applicant's evidence, the respondent's statement, and the expert evidence of Dr John Curotta and clinical notes of Dr Eliza Tweddle and Professor Robert Briggs provided to it in reaching its findings which are set out hereunder. Because of the voluminous nature of the complaints, the Tribunal will set out its findings in respect of each particular, seriatim.

[2014] WASCA 216

[1992] HCA 66

(1938) 60 CLR 336

(1992) 67 ALJR 170

(1992) 110 ALR 449

[2014] HCA 26

[2017] NSWCA 41

[2012] NSWCA 293