nder s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
[2]
Introduction
The Tribunal has before it for inquiry three complaints made by the Health Care Complaints Commission (the HCCC) against the respondent, Daryl Chamberlain, who was until 9 June 2017 a medical practitioner registered under the Health Practitioner Regulation National Law (NSW) (the National Law). These complaints are set out in the HCCC's Complaint dated 23 December 2016 (the Complaint), which was attached to the Application for Disciplinary Findings and Orders filed in the Tribunal on 23 December 2016.
The allegations the subject of the Complaint can be summarised as follows:
1. Complaint One A: Dr Chamberlain is guilty of unsatisfactory professional conduct in that he has:
1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, under s 139B(1)(a) of the National Law; and/or
2. engaged in improper or unethical conduct relating to the practice or purported practice of the practitioner's profession, under s 139B(1)(l) of the National Law
in the treatment of a patient, designated Patient A.
1. Complaint One B: Dr Chamberlain is guilty of unsatisfactory professional conduct in that he has:
1. contravened a provision of the regulations under the National Law, and its predecessor provisions under equivalent legislation, under s 139B(1)(b); and/or
2. engaged in improper or unethical conduct relating to the practice or purported practice of the practitioner's profession, under s 139B(1)(l) of the National Law.
in the treatment of Patient A.
1. Complaint Two: Dr Chamberlain is guilty of professional misconduct in that he has:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, under s 139E(a) of the National Law; and/or
2. 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 suspension or cancellation of the practitioner's registration, under s 139E(b) of the National Law.
in the treatment of Patient A.
Although Dr Chamberlain was removed from the register of practitioners in June 2017 at his own request, we shall continue to refer to him as Dr Chamberlain in these reasons for decision.
In his reply dated 2 June 2017, which formed part of the "Respondent's Documents" filed on 19 June 2017, Dr Chamberlain stated, among other things:
"3. I am the subject of an investigation by the Health Care Complaints Commission (HCCC) in relation to a Complaint made by the NSW Coroner in relation to Patient A. The conduct concerns my treatment of Patient A's mental health, physical condition, my prescribing of S4D's and S8's and his alcohol use. The HCCC states that my conduct amounts to unsatisfactory professional conduct and professional misconduct. I hereby admit the subject matter of the Complaint." (emphasis added).
Paragraph 3 in Dr Chamberlain's reply could be thought to be ambiguous. On its face, it was unclear if Dr Chamberlain was admitting the subject matter of the recommendation made by Deputy State Coroner on 30 July 2015 that "Dr Chamberlain's professional standards be reviewed" or the subject matter of the Complaint attached to the HCCC's Application for Disciplinary Findings and Orders. The situation was clarified to some extent in the letter dated 21 June 2017 from the solicitors representing Dr Chamberlain to the Registrar of the Tribunal, in which the following was said:
"On 19 June 2017, documents admitting to the Particulars of the Complaint were filed with the registry on behalf of Dr Chamberlain."
To avoid any possibility of confusion, at the beginning of the hearing on 24 July 2017, the Tribunal sought confirmation from Mr Lynch, Dr Chamberlain's counsel, that he intended by his reply to admit the subject matter of the HCCC's Complaint as particularised and to admit that his conduct amounted to both unsatisfactory professional conduct and professional misconduct as alleged. Mr Lynch expressly confirmed that this was so.
Under s 149(b) of the National Law, if the practitioner admits the subject-matter of a complaint against the practitioner to the Tribunal in writing, the Tribunal may exercise in relation to the practitioner any disciplinary powers conferred on it by ss 149A to 149D of the National Law.
In addition, just prior to the hearing, the parties informed the Tribunal they had reached agreement on orders which they proposed the Tribunal should make. The proposed orders are set out below.
In these circumstances and with the parties' concurrence, the written evidence of both parties was admitted, without objection, at the hearing on 24 July 2017. The Tribunal also received submissions, both oral and written, on the question of whether the Tribunal should be satisfied that Mr Chamberlain was guilty of unsatisfactory professional conduct and professional misconduct, as alleged and admitted, and also on the question of the appropriate protective orders. There was no dispute that this was a case where it was appropriate to have one hearing and it was not necessary to adopt the two stage process referred to in King v Health Care Complaints Commission [2011] NSWCA 353 at [202] - [205]
Although the rules of evidence do not apply in this matter because of the operation of s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), the Tribunal has had regard to the seriousness of the allegations and the gravity of the consequences of the protective orders that might be made. As a consequence, the Tribunal has, in its approach to fact finding, applied by analogy the principles referred to in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171 and Briginshaw v Briginshaw (1936) 60 CLR 336 at 362, see Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127].
The evidentiary material before the Tribunal included the name of, and other personal information concerning, Patient A, as referred to in the Complaint dated 23 December 2016. The parties' agreed proposed orders include an order under s 64(1)(a) of the NCAT Act that disclosure of the name of Patient A is prohibited. In these circumstances and as it is not necessary to disclose the identity of Patient A in order adequately to explain why it has made its decision, the Tribunal will make the non-disclosure order sought by the parties.
[3]
Background
The background facts were not in dispute.
Dr Chamberlain, a graduate of the University of Sydney with Bachelor of Medicine and Bachelor of Surgery degrees, was first registered as a medical practitioner in New South Wales on 28 December 1961. At all material times, he practised as a general practitioner at St Mary's in Western Sydney.
Dr Chamberlain was Patient A's GP from 2 May 2000 to 11 September 2012 and the patient was seen more or less regularly during that period.
On 16 September 2012, Patient A died. The NSW Deputy State Coroner conducted an inquest into the death and, on 30 July 2015, found that the cause of Patient A's death was combined drug toxicity. In addition, the Coroner recommended that Dr Chamberlain's professional standards be reviewed.
By letter dated 7 August 2015, the HCCC gave notice to Dr Chamberlain that it had received the Coroner's findings and recommendation. Having consulted with the Medical Council, on about 21 September 2015, the HCCC referred the matter to the Director of Investigations for investigation. As part of that investigation, Dr Chamberlain provided detailed responses and documentation to the HCCC in response to the questions and requests of the Commission. In addition, the HCCC retained Dr Harry Nespolon to provide an expert's report concerning Dr Chamberlain treatment and management of Patient A and Dr Chamberlain's medical record keeping. Dr Nespolon provided a report dated April 2016 which was before the Tribunal, as was his curriculum vitae and the supporting documentation referred to in his report.
By about 27 May 2016, the HCCC had completed its investigation and informed Dr Chamberlain of its grounds of proposed action and gave him the opportunity to make submissions under s 40 of the Health Care Complaints Act 1993 (NSW). Dr Chamberlain indicated that he was not in a position to provide a response. On 23 December 2016, the HCCC lodged in the Tribunal its application for disciplinary findings and orders against Dr Chamberlain based on the allegations set out in the Complaint dated 23 December 2016 (the Complaint) attached to the application.
[4]
The Complaint, the Admissions and the Evidence
The Complaint includes three separate complaints or grounds of complaint. There are two complaints that Dr Chamberlain has been guilty of unsatisfactory professional conduct and one complaint that the practitioner has been guilty of professional misconduct. The grounds for complaint thus fall within s 144(b) of the National Law.
"Unsatisfactory professional conduct" is relevantly defined in the National Law s 139B(1) as follows:
"(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following-
(a) Conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
(b) Contravention of this Law or regulations
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.
...
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession."
"Professional misconduct" is defined in the National Law s 139E as follows:
"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."
As has been noted, Dr Chamberlain has admitted the subject matter of each of the three complaints and that the conduct the subject of the complaints amounts to unsatisfactory professional conduct and professional misconduct. In addition, he has not contested the expertise of Dr Nespolon or his opinions contained in his report of April 2016 or any of the other evidence before the Tribunal. We have reviewed the particulars in detail as well as Dr Nespolon's opinions and reasoning given in his report and his curriculum vitae. We have also considered relevant portions of the supporting material referred to by Dr Nespolon as well as the other evidence before us. We accept Dr Nespolon's evidence and what is relevantly disclosed in the other documentary evidence. On this basis, we are satisfied to the requisite standard that we should make the following findings of fact and reach the conclusions set out below in respect of each of the three complaints.
[5]
Complaint One A
Dr Chamberlain, between 2 May 2000 and 11 September 2012, failed to provide appropriate care, treatment and management in relation to Patient A's mental health condition, in that he did not:
1. develop and maintain an appropriate treatment plan for Patient A in respect of the patient's mental health;
2. appropriately assess Patient A during consultations;
3. review the type and dosage of medications prescribed for Patient A in relation to the patient's symptoms including the prescription of Quetiapine.
We also accept Dr Nespolon's opinion that Dr Chamberlain's management of Patient A's mental health problems and his prescribing of Quetapine did fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience but did not invite strong criticism for the reasons set out in sections 5.1 and 5.3 of Dr Nespolon's report.
Dr Chamberlain, between 15 October 2010 and 22 July 2011, failed to provide appropriate care, treatment and management in relation to Patient A's physical health conditions, in that he did not take steps to have Patient A's hernia appropriately reviewed for nine months after the patient suffered the injury causing the hernia on 15 October 2010.
We accept Dr Nespolon's opinion that Dr Chamberlain's failure to have the hernia appropriately reviewed did fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience but did not invite strong criticism for the reasons set out in section 5.4 of Dr Nespolon's report.
Dr Chamberlain, between 2 May 2000 and 11 September 2012, failed to provide appropriate care, treatment and management in relation to Patient A's drug dependence and abuse, including in his prescription of opiates and benzodiazepines on the 111 occasions set out in Schedule A to the Complaint, in that he did not:
1. develop and maintain an appropriate treatment plan for Patient A in respect of his drug dependence and abuse;
2. attempt to decrease the amount of opiates prescribed to Patient A;
3. attempt to establish whether Patient A was obtaining medication from other practitioners, including asking Patient A whether he was doing so or making enquiries of other services.
We accept Dr Nespolon's opinion that Dr Chamberlain's treatment and management of Patient A's drug dependence and abuse during the relevant period did fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and did invite strong criticism for the reasons set out in section 5.5 of Dr Nespolon's report.
Dr Chamberlain, between 2 May 2000 and 11 September 2012, failed to provide appropriate care, treatment and management in relation to Patient A's alcohol use, in that he failed to recognise Patient A's alcohol dependence as a significant matter to be managed according to an appropriate treatment plan for Patient A.
We accept Dr Nespolon's opinion that Dr Chamberlain's treatment and management of Patient A's excessive alcohol use during the relevant period did fall significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and did invite strong criticism for the reasons set out in section 5.6 of Dr Nespolon's report.
Dr Chamberlain, between 1 August 2002 and 11 September 2012, on the 72 occasions set out in Schedule B to the Complaint, failed to comply with s 28(3) of the Poisons and Therapeutic Goods Act 1966 (NSW) (the Poisons Act), by prescribing Morphine and Oxycodone, both Type C drugs of addiction, within the meaning of the Poisons Act for Patient A:
1. when the practitioner knew or should have known that Patient A was a drug dependent person; and
2. without the proper authority of the Director-General of the Department of Health. (We note that, contrary to the allegation in the Complaint, the reference in s 29 of the Poisons Act to the Director-General remained in place until the amendments to that Act which commenced on 15 January 2016. Nothing, however, turns on this point.)
We accept Dr Nespolon's opinion that Dr Chamberlain's failure to obtain the necessary authority fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and did invite strong criticism for the reasons set out in section 5.7 of Dr Nespolon's report.
Dr Chamberlain, between 3 June 2010 and 11 September 2012, failed to provide appropriate care, treatment and management in relation to Patient A in that he prescribed Diazepam for Patient A on the 39 occasions set out in Schedule C to the Complaint:
1. without an appropriate therapeutic purpose for their long-term use;
2. when he ought to have been aware that Patient A was alcohol dependent and should have appropriately considered the impact of Patient A's alcohol abuse on the prescription of diazepam;
3. in circumstances where he was also prescribing opiates for Patient A, and ought to have appropriately considered the impact of Patient A's opiate use on the prescription of diazepam;
4. without attempting to establish whether Patient A was obtaining benzodiazepines and/or opiates from other practitioners, including asking Patient A whether he was doing so or making enquiries of other services;
5. without appropriately monitoring Patient A's use of diazepam;
6. in quantities:
1. in excess of recognised therapeutic standards;
2. after 22 June 2012, in excess of the dose prescribed on discharge from the Pialla Unit at Nepean Hospital on that date;
3. which particularly when used in combination opiates and other medications increased the risk of serious adverse consequences.
We accept Dr Nespolon's opinion that Dr Chamberlain's conduct in prescribing diazepam at the rate of 5 mg and the rate of one tablet at night on those 39 occasions fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and did invite strong criticism for the reasons set out in section 512 of his report. We also note the opinions in sections 5.8 and 5.13 of Dr Nespolon's report to the extent they are relevant.
Dr Chamberlain, between 28 June 2012 and 11 September 2012, failed to provide appropriate care, treatment and management in relation to Patient A in that he prescribed for Patient A the Schedule 8 drug Oxycodone, on the 14 occasions set out in Schedule D to the Complaint:
1. in quantities:
1. in excess of recognised therapeutic standards;
2. in excess of the dose prescribed to Patient A on discharge from the Pialla Unit at Nepean Hospital on 22 June 2012;
1. in a combination with benzodiazepines contrary to recognised therapeutic standards.
We accept Dr Nespolon's opinion that Dr Chamberlain's conduct in prescribing Oxcodone, a Schedule 8 drug, for Patient A fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and did invite strong criticism for the reasons set out in section 5.13 of his report. We also taken into account the opinions of Dr Nespolon in section 5.9 of his report. In particular, we accept Dr Nespolon's observation and opinion in section 5.9 that:
"[Patient A] was receiving both benzodiazepines and opiates from Dr Chamberlain. [Patient A] was also likely to be obtaining other opiates and benzodiazepines form other sources. He had a history of Court directed drug control orders. Dr Chamberlain should have known that [Patient A] was alcohol dependent …. [Patient A] was at high risk of inadvertent death from this combination and overdose of medications."
In the light of these findings and Dr Chamberlain's admissions, we are also satisfied to the requisite standard that he engaged in unsatisfactory professional conduct on each of the bases particularised in respect of Complaint One A, taken alone, and, alternatively, when two or more are taken in combination, because:
1. the conduct demonstrates the knowledge, skill or judgment possessed, or care exercised, by Dr Chamberlain in his practice as a medical practitioner was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, within s 139B(1)(a) of the National Law; and
2. his conduct amounts to improper conduct relating to his practice as a medical practitioner, within s 139B(1)(l) of the National Law.
[6]
Complaint One B
During the years from 2000 to 2012, registered medical practitioners were required to keep records relating to patients that complied with cl 13 and Sch 2 of the Medical Practice Regulation 1998, cl 5 and Sch 2 of the Medical Practice Regulation 2003, cl 4 and Sch 1 of the Medical Practice Regulation 2008 and the Health Practitioner Regulation (NSW South Wales) Regulation 2010 cl 7 and Sch 2, as applicable at the various times. Although there are some slight differences between these provisions, in substance the obligation to keep proper records remained the same during the period. Sch 2 to the Health Practitioner Regulation (NSW South Wales) Regulation 2010 (as in force in 2012) was relevantly in the following terms:
"Schedule 2 Records kept by medical practitioners and medical corporations in relation to patients
(Clauses 7 (1) and 8 (4))
1 Information to be included in record
(1) A record must contain sufficient information to identify the patient to whom it relates.
(2) A record must include the following:
(a) any information known to the medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient),
(b) particulars of any clinical opinion reached by the medical practitioner,
(c) any plan of treatment for the patient,
(d) particulars of any medication prescribed for the patient.
(3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the medical practitioner who is treating the patient.
(4) A record must include the following particulars of any medical treatment (including any medical or surgical procedure) that is given to or performed on the patient by the medical practitioner who is treating the patient:
(a) the date of the treatment,
(b) the nature of the treatment,
(c) the name of any person who gave or performed the treatment,
(d) the type of anaesthetic, if any, given to the patient,
(e) the tissues, if any, sent to pathology,
(f) the results or findings made in relation to the treatment.
(5) Any written consent given by a patient to medical treatment (including any medical or surgical procedure) proposed by the medical practitioner who treats the patient must be kept as part of the record relating to that patient.
2 General requirements as to content
(1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned.
(2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case.
(3) All entries in the record must be accurate statements of fact or statements of clinical judgment.
… "
Over the 12 year period from 2 May 2000 to 11 September 2012 while Dr Chamberlain was Patient A's GP, Dr Chamberlain failed to comply with his obligations under the Medical Practice Regulations and the Health Practitioner Regulation (New South Wales) Regulation, as in force at the relevant times, in respect of records relating to patients in that he consistently failed to record:
1. the history of Patient A;
2. the results of any physical examination;
3. an assessment of the patient's mental state;
4. the patient's use of, and response to, medications;
5. plans for management of the patient;
6. the clinical opinion formed by Dr Chamberlain;
7. the quantity of medications prescribed; or
8. sufficient information to allow for continued management of Patient A by Dr Chamberlain or another practitioner.
We have reviewed the relevant handwritten records and a transcript of those records. We accept Dr Nespolon's opinion that Dr Chamberlain's conduct in documenting in his medical records his assessment and treatment of Patient A from 2 May 2000 to 11 September 2012 fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and did invite strong criticism for the reasons set out in section 5.14 of his report.
In the light of these findings and Dr Chamberlain's admissions, we are satisfied to the requisite standard that he engaged in unsatisfactory professional conduct on each of the bases particularised in respect of Complaint One B, taken alone, and, alternatively, when two or more are taken in combination, because:
1. he contravened a provision of the NSW regulations made under s 247A(2)(d) of the National Law, within the meaning of s 139B(1)(b) (Although the Complaint alleges that the practitioner contravened "a provision of the regulations under the National Law" we do not think there is any unfairness in making the finding we have instead of finding that there had been a contravention of the regulations under the National Law.); and
2. his conduct amounts to improper conduct relating to his practice as a medical practitioner, within s 139B(1)(l) of the National Law.
[7]
Complaint Two
Having regard to Dr Chamberlain's admissions, the facts found and conclusions reached in relation to Complaints One A and One B, Dr Nespolon's opinion that in important instances Dr Chamberlain's conduct invited strong criticism, the period of time over which the conduct extended, the very grave consequences of Dr Chamberlain's conduct for Patient A and the parties' submissions, we are satisfied to the requisite standard that Dr Chamberlain engaged in professional misconduct, within s 139E of the National Law, in that he 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 suspension or cancellation of his registration.
[8]
Appropriate Protective Orders
As noted above, the parties have reached agreement as to the orders that they submit we ought to make in respect of the practitioner. Notwithstanding this agreement, we are required, under s 3A of the National Law, to treat the protection of the health and safety of the public as the paramount consideration when exercising our functions. Consequently, we must be independently satisfied that the orders we make appropriately protect the health and safety of the public.
The further relevant facts and circumstances are not in dispute. Accordingly, we accept that:
1. Dr Chamberlain is currently 79 years of age and was 62 years old in 2000;
2. Dr Chamberlain has admitted the subject-matter of the complaints against him;
3. Dr Chamberlain ceased practising medicine on 9 June 2017 and has now permanently retired from practice;
4. On about 14 June 2017 Dr Chamberlain's name was removed, at his request, from the Australian Health Practitioner Regulation Agency (AHPRA) Register of Medical Professionals;
5. Dr Chamberlain has made a statutory declaration stating that he will not seek to have his name reinstated to the register.
In determining the appropriate protective orders that it should make in this matter, the Tribunal has applied the principles stated in Health Care Complaints Commission v Do [2014] NSWCA 307 at [34] - [35] which can be stated as follow:
1. When exercising of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the Tribunal is:
1. To make the protection of the health and safety of the public the Tribunal's paramount consideration, under s 3A of the National Law;
2. To have regard to the objectives and guiding principles set out in s 3, under s 4 of the National Law, and those relevantly include providing "for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" (s 3(2)(a)) and the principle that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality" (s 3(3)(c)).
1. The objective of protecting the health and safety of the public is:
1. not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence;
2. includes protecting the public from the similar misconduct or incompetence of other practitioners; and
3. upholding public confidence in the standards of the profession..
1. The objective of protecting the health and safety of the public is achieved:
1. by setting and maintaining standards for the profession; and,
2. where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct.
1. Denouncing serious professional misconduct operates both:
1. as a deterrent to the individual concerned, as well as to the general body of practitioners;
2. to maintain public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
The Tribunal also notes that disciplinary proceedings against members of the 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 and the maintenance of public confidence in the high standards of medical practitioners, see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 and Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
The HCCC and Dr Chamberlain agreed in proposing that the Tribunal make the following protective orders:
"1 If the respondent were still registered, the Tribunal would have cancelled his registration (s 149C(4)(a) of the Heath Practitioner Regulation National Law (NSW)).
2. The respondent is disqualified from being registered in the health profession and is not eligible to make application for reinstatement to the register for a period of two years from the date of these orders (s 149(4)(b) [sic] National Law).
3. The National Board with which the respondent was registered is required to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board (s 149C(4)(c) National Law).
4 Disclosure of the name of Patient A in the Complaint dated 23 December 2016 is prohibited (s 64(1)(a) Civil and Administrative Tribunal Act 2013)."
In addition, an order was agreed between the parties as follows in relation to costs:
"The respondent is to pay the Health Care Complaints Commission in full settlement of its costs and disbursements in the sum of $15,000 within 28 days of the date of the order."
As to cancellation of registration and disqualification, we are of the view that Dr Chamberlain's care and treatment of Patient A fell so far short of what was required of a suitably trained and competent medical practitioner that it would have been appropriate to cancel his registration, had he still been registered at the time of the hearing.
Even though his registration has been cancelled at this request, we believe it is appropriate to make orders to the effect of orders 1 and 2 proposed by the parties, to protect the public from the similar misconduct or incompetence of other practitioners, to identify explicitly conduct which did not meet the appropriate standard for the profession and to uphold public confidence in the standards of the profession. In addition, order 2 gives an indication of period during which a practitioner who engages in conduct of the nature and extent of Dr Chamberlain's should be unable to seek registration. The two year period is appropriate as such a period would usually be sufficient for a practitioner to undertake the necessary remedial steps and to demonstrate the ability to meet the required standard of knowledge, skill, judgment and care.
Proposed order 3 can be seen as appropriate to support orders 1 and 2 and the purposes for which they are to be made. The Tribunal is concerned, however, that it would be making an order binding on the National Board with which Dr Chamberlain was registered without that Board being a party or having the opportunity to make submissions. In these circumstances, we are of the view that the substantive effect of proposed order 3 can be achieved, without the need to delay resolution of these proceedings, by making an order that the Board is "requested" rather than "required" to record what is set out in the proposed order.
We have already indicated the reasons why we propose to make an order to the effect of proposed order 4.
[9]
Costs
Cl 13 of Sch 5D to the National Law provides, in part:
"(1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal.
…
(3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
(4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013."
Having regard to these provisions, the outcome of these proceedings and the agreement of the parties, we will make an order to the effect of the costs order agreed to be the parties.
[10]
Orders
For the reasons set out above, the Tribunal orders as follows:
1. If the respondent were still registered as a medical practitioner, the Tribunal would have cancelled his registration.
2. The respondent is disqualified from being registered as a medical practitioner and is not eligible to make application for reinstatement to the register for a period of two years from the date of these orders.
3. The National Board with which the respondent was registered is requested to record the fact that the Tribunal would have cancelled the respondent's registration in the National Register kept by the Board.
4. Under s 64(1)(a) Civil and Administrative Tribunal Act 2013, the name of patient referred to as Patient A in the Health Care Complaints Commission's Complaint dated 23 December 2016 attached to the Application for Disciplinary Findings and Orders filed in these proceeding, and any other identifying information, is not to be disclosed.
5. The respondent is to pay the Health Care Complaints Commission's costs of and incidental to these proceedings agreed in the sum of $15,000.00, within 28 days of the date of this order.
[11]
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: 09 August 2017