Hyland v Medical Council of New South Wales - [2021] NSWCATOD 199 - NSWCATOD 2021 case summary — Zoe

NSWNSWCATOD

Hyland v Medical Council of New South Wales

[2021] NSWCATOD 199

NCAT Occupational|2021-11-17|Before: Dr J

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Source facts

Court

NCAT Occupational

Decision date

2021-11-17

Before

Dr J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Overview

Mr Hyland is a final year medical student who was studying at the University of Newcastle. He was due to complete his degree on 22 November 2021. On 12 March 2021 he was charged with offences relating to domestic violence against his then partner, Person A. He has pleaded not guilty to those charges but they will not be heard until at least mid-2022. Mr Hyland was found not guilty of charges involving domestic violence against Person A in 2019.
Following a hearing on 3 August 2021, the Medical Council of New South Wales suspended Mr Hyland's registration as a medical student: Health Practitioner Regulation National Law (NSW) (National Law), s 150(1)(a). Among other things, the Council took into account the 2021 criminal charges, the outcome of the 2019 charges and Mr Hyland's failure to notify the National Board of both sets of charges within 7 days: National Law, s 130. The Council was satisfied that it was appropriate to suspend Mr Hyland's registration "in the public interest": National Law, s 150(1).
Mr Hyland appealed to the NSW Civil and Administrative Tribunal against the suspension decision "with respect to a point of law" and applied for a stay of that decision. The Tribunal refused to grant the stay: Hyland v Medical Council of New South Wales [2021] NSWCATOD 167. These reasons address Mr Hyland's appeal with respect to a point of law under s 159B of the National Law and a separate appeal as of right under s159(1)(a). We will address the s159(1)(a) appeal first.
The issue in the s159(1)(a) appeal is whether it is appropriate to suspend Mr Hyland's registration as a student or to impose conditions on his registration, either because it is in the public interest to do so or to protect the health and safety of any person: National Law, s 150. That issue requires us to identify any potential harm to the health and safety of a person or any potential harm to the public interest, to assess the chances of that harm being realised and the consequences if it is realised. If there is an unacceptable risk to health and safety or to the public interest, we must suspend Mr Hyland's registration or impose conditions, as appropriate: Medical Council of New South Wales v Smithson [2021] NSWCA 53 (Smithson) at .

[10]

Identification of public interest

Identifying risk to the health or safety of any person based on a person's past conduct is a relatively straightforward task. Identifying risk to the public interest is more difficult. The meaning of the expression "the public interest" depends on "the subject, scope and purpose of the enactment in which it appears": Hogan v Hinch (2011) 243 CLR 506 at [31], per French CJ; at [69] per Gummow, Hayne, Heydon, Crennan Kiefel and Bell JJ; O'Sullivan v Farrer (1989) 168 CLR 210 at 216.
As to the subject and scope of proceedings under s 150, they are not disciplinary proceedings. They are purely protective in character. As the Court explained in Smithson at [20]: 3. The proceedings are not disciplinary and are not necessarily referable to a complaint. The National Law otherwise makes provision for dealing with complaints against registered health practitioners: see Div 3 Subdivs 2-6. The function of a s 150 hearing is purely protective in character: Kirby at [15]; Ghosh at [5]. By s 150D, a Council must, after taking action under s 150(1) (except in the case of impairment), refer the matter to the Health Care Complaints Commission ("HCCC") to be investigated as a complaint.
The object of the National Law relating to students is "to establish a national registration and accreditation scheme for the registration of students undertaking programs of study that provide a qualification for registration in a health profession; or clinical training in a health profession": National Law, 3(1)(b). None of the objectives of the national registration and accreditation scheme in s 3(2) relate specifically to students, however one of the guiding principles of the scheme is that it "is to operate in a transparent, accountable, efficient, effective and fair way". In accordance with s 3A of the National Law, the protection of the health and safety of the public is the paramount consideration: National Law, s 3A.
Harrison AsJ listed considerations relevant to "the public interest" in the context of s 150 in Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 at [32]: . . . in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18].
Harrison AsJ explained at [35] that the public interest is a broader concept than the protection of health and safety. It covers "wider community interests such as the standards to which human conduct is to be held".
In the Victorian Supreme Court decision of Medical Board of Australia v Leow [2019] VSC 532 (Leow), the practitioner had been charged with rape and sexual assault. The Medical Board of Australia suspended the practitioner's registration under s 156(1)(e) of the National Law. That provision is similar to s 150 of the National Law. It allows the board to take immediate action if the board "reasonably believes the action is otherwise in the public interest". Niall JA held at [93] that: The Tribunal identified that public confidence was liable to being affected in two material ways. It held that not taking immediate action might, first, affect the reputation of the medical profession and, secondly, impact on the willingness of people to seek medical assistance from registered medical practitioners. They are two obvious consequences that may flow from a diminution in public confidence in the provision of services by health practitioners.
Read in context, "the public interest" referred to in s 150 of the National Law concerns the public interest related to professional practice, including professional training. Where a registered practitioner or student has been charged with a criminal offence, there is also a more general public interest that includes upholding the right to a fair trial including the presumption of innocence and the privilege against self-incrimination.
Where a medical student has been charged with a criminal offence, the public interest includes upholding the right to a fair trial including the presumption of innocence and the privilege against self-incrimination.

[12]

Fact sheet

On the afternoon of 10 May 2019, Mr Hyland and Person A were at his home when they became involved in an argument. The fact sheet states that: Offence 1 - intentionally choke person with recklessness (DV). The accused has choked the victim to the point where she wasn't able to breathe. The victim was not able to talk and has mouthed the words 'I can't breathe' at the accused. The accused said 'good' whilst continuing to choke her for a short time before letting the victim go. The victim has fallen onto the bedroom floor, coughing and heaving and the accused has yelled at the victim calling her a 'fucking idiot'. The victim has crawled into the en-suite bathroom and collected more personal items from the vanity. The victim has seen some steroids in a drawer belonging to the accused and has picked them up and thrown them into the toilet which has further angered the accused. Offence 2 - intentionally choke person with recklessness (DV). The accused has pulled the victim from the floor and grabbed her around the neck again from behind and dragged her out into the hallway adjacent to the bedroom. The victim was again unable to breath during this assault. Offence 3 - Assault occasioning actual bodily harm (DV). The accused whilst holding the victim by the neck has shoved the victim into the floor on two occasions before letting go of her, the victim returned to the bedroom and continued to cough and have trouble breathing. Offence 4 - common assault (DV). The victim informed the accused her intention to leave at which point the accused has told her she couldn't due to the state she was in that she couldn't drive. The victim has attempted to leave the bedroom again with the accused blocking the doorway and has grabbed the victim, pushing her onto the ground and preventing her from moving by locking his legs around the victim's body whilst she was on the floor. The accused contacted an ambulance and spoke to operators. The victim was yelling out at this point and the accused has let the victim go, collected her belongings and left through the front door. The victim has contacted her mother and informed her of the incident before driving to her mother's house.

[15]

Two versions of events

The incident that gave rise to the 2021 charges involved an altercation over messages and other content on Person A's phone on the morning of 2 March 2021. The full version of events as alleged by Person A is in the Police Fact Sheet. In brief, it is alleged that Mr Hyland asked to look at Person A's phone and she agreed. Person A then asked Mr Hyland to stop reading texts between her and a male friend. There were messages to the friend where Person A had alleged that Mr Hyland had treated her badly. Person A took back the phone and then Mr Hyland grabbed Person A's wrist tightly and attempted to grab the phone. Person A then showed Mr Hyland the messages to her male friend.
Person A called the friend on the phone and had a short conversation. The friend sent a message to Person A asking whether he needed to call the police. Person A replied that she was fine. Mr Hyland allegedly attempted to grab the phone again and there was a struggle. Person A threw the phone away and it hit Mr Hyland's head. Person A began changing out of her pyjamas and collecting her belongings to leave. When she was getting dressed Mr Hyland began filming her on his phone.
When Person A returned to the bedroom after cleaning her teeth, Mr Hyland allegedly bent down and grabbed Person A by the ankles which forced her to the floor. That caused her to fall to the floor and be winded. As she tried to stand up, he allegedly placed his hands under her arms and behind her head and picked her up off the ground. Mr Hyland walked Person A down the hallway and threw her down two or three stairs. She landed on her hands and knees. Mr Hyland, went back to the bedroom and got two bags belonging to Person A. Person A says he threw the bags onto the ground damaging her laptop which was in one of the bags. Mr Hyland attempted to console Person A and she left in her car. Person A reported that she had red marks on both her biceps and bruises and that her laptop was damaged.
Mr Hyland's version of events is quite different. He says Person A became violent and aggressive and that he was the victim. The reason he filmed her was to have evidence of her behaviour in case she complained to police. After going to the bathroom, Mr Hyland says Person A "set upon me" and he "grabbed her sort of around the bottom of the arms and pushed them into her side. I've flipped her around and then got her into a low bear hug. . . and then I've basically carried her out down the hallway and out the front steps . . ."

[17]

Text messages after the altercation

In Mr Hyland's statement of 12 October 2021, he admits that about an hour after the altercation he sent a text message to two acquaintances. The first was to the male friend of Person A who she had called during the altercation: Hey mate. I know you just go a call from [Person A]. I know she's spun a whole bunch of crap about abuse and whatnot, it's total nonsense and she's incredibly disturbed.
The second text message was to a fellow medical student: Hey (name deleted), so I know you were sent messages by a girl a while ago. Not sure what the fuck she sent but she's mentally disturbed of the highest degree just fyi
Mr Hyland included the following screen shot of an excerpt from the psychologist's letter in support of Person A's decision not to give evidence in the 2019 case: [Person A] has been seeing me for psychotherapy for the past four years at the Centre for Psychotherapy, a specialist tertiary referral public psychotherapy unit for treating patients with borderline personality disorder. [Person A] is diagnosed with borderline personality disorder consisting currently of chronic suicidal ideation, deliberate self-harm (now extremely rare), dissociation (particularly depersonalisation and amnestic gaps), identity disturbance, pervasive feeling of emptiness, abandonment sensitivity and mood instability.
Mr Hyland says he sent these messages out of "sheer frustration from many years of this sort of event". He agrees that he was conveying that Person A should not be trusted. Mr Hyland included the psychologist's diagnosis of borderline personality disorder to explain why Person A was conveying what he regarded as false information about him. We understand him to be referring to his belief that Person A was telling people that he was abusing her. He deleted the messages about an hour after he sent them. He told the Medical Council delegates that sending these messages "is only going to cause detriment to both myself, the medical community and then the mental health of people who do suffer from that as well."
The Council submits that Mr Hyland has attempted to minimise his culpability for sending these messages by describing the excerpt from the psychologist's report as a "snippet", by maintaining that it was not a "sensitive document" and by deleting the message in an attempt to erase the evidence of what he had done.
In his statement, Mr Hyland described the two paragraphs from the psychologist's report as a "snippet". He estimated that the excerpt made up about 30% of the content of the report. That accords with our estimation. He did not tell the Medical Council that the extract contained not only Person A's diagnosis of borderline personality disorder but also her symptoms including suicidal ideation.
In referring to the extract as a "snippet" and in omitting any reference to Person A's symptoms, Mr Hyland was attempting to play down the significance of his conduct. Those attempts undermine his credibility, but not to any significant extent. He readily conceded to the Council, and the Tribunal, that he should not have sent the excerpts from the report.
In the s 150 hearing before the Medical Council, Mr Hyland said that he did not disclose any "sensitive documents" when sending the two messages. He added that he did not access Person A's medical file himself. Person A gave him the psychologist's report as it was relevant to the hearing about the 2019 charges. At the Tribunal hearing Mr Hyland conceded that the report, including the excerpt he sent, was sensitive information. In our view he attempted to downplay the seriousness of his actions by telling the Medical Council that the documents were not "sensitive". However, that error of judgment, which he conceded to the Tribunal, does not materially affect his overall credibility.
Finally, the Medical Council characterised the deletion of the messages as an attempt to erase the evidence of what he had done. While it had that effect, we find that the reason Mr Hyland deleted the messages with the excerpts from the report, was that he knew it was wrong to have sent them.

[21]

Unacceptable risk to health and safety?

Mr Hyland submits that the 2019 and 2021 charges have no connection with his practice of medicine as a student practitioner. Consequently there is no potential for harm and no risk to the health or safety of any person if he continues his studies.
The Medical Council submits that the Tribunal should be satisfied that suspension is appropriate for the protection of the health or safety of any person. We understand the Medical Council to be submitting that: 1. If Mr Hyland continues to see patients in a clinical setting as part of his training, there is an unacceptable risk that he will treat patients with a mental illness in a derogatory or disrespectful manner. 2. Sending the messages to two people together with a highly sensitive extract from the psychologist's report was a very serious breach of trust. 3. Mr Hyland used his phone to video Person A during the incident and that shows poor judgement. 4. There is a clear conflation between the Mr Hyland's personal and professional life and concerns held by the Council in relation to the conduct of Mr Hyland in his personal life, apply to his conduct as a medical student.
The Medical Council's first submission is based on the content of the two text messages which include an excerpt from the psychologist's report about Person A. In the first message Mr Hyland said Person A has "spun a whole bunch of crap about abuse and whatnot, it's total nonsense and she's incredibly disturbed". In the second message he said Person A is "mentally disturbed of the highest degree just fyi". According to the Medical Council, these messages convey a derogatory or disrespectful attitude to people with a mental illness and there is a risk that that attitude could manifest itself in the way he treats mentally ill patients.
The messages do not reflect a disrespectful or derogatory attitude towards people with a mental illness. The message was specifically about Person A in the context of a dysfunctional personal relationship. It cannot be inferred that Mr Hyland will communicate in a disrespectful or derogatory way to patients he sees in a clinical setting who have a mental illness. In any case, while he is a student, Mr Hyland will continue to see patients under supervision.
The second submission also relates to the extract from the report from Person A's psychologist. The report contained highly sensitive information. Person A did not authorise Mr Hyland to share it within anyone except his lawyers for the purpose of the hearing of the 2019 charges. While disclosing the information can be characterised as a breach of trust, it did not occur in the context of a doctor/patient relationship. It cannot be inferred that Mr Hyland would breach the trust of people his sees in a clinical setting.
In relation to the third submission, Mr Hyland admits that he used his phone to video Person A during the incident and that he should not have done so. We do not accept the Medical Council's submission that Mr Hyland's lack of judgment should be regarded as a fundamental character weakness which is relevant to his practice as a medical student. We are unable to identify the suggested harm that will be realised if Mr Hyland's registration is maintained.
The fourth submission is that during an exchange with a delegate of the Medical Council at the s 150 hearing, Mr Hyland disclosed aspects of his personal life which also apply to his conduct as a medical student. The exchanges at the s 150 hearing include Mr Hyland saying that when he was in fourth year, the relationship with Person A was new and there were a lot of issues including the 2019 charges. He failed his exams. The Council also extracted a part of the exchange relating to the giving of advice and guidance on medical issues to friends and family.
According to the Medical Council, Mr Hyland's personal and professional life were "conflated" because his friends and family trusted him and looked to him for professional advice and because he has encountered victims of domestic violence in his clinical training as a student. We are unable to identify the public interest at play in this submission.
Mr Hyland failed to notify the authorities that he had been charged with an offence punishable by 12 months imprisonment or more. He claims that he did not know that he was obliged to do so. That claim is plausible. Mr Hyland was not cross-examined on that evidence and we do not understand the Medical Council to be submitting that this breach makes it appropriate to suspend Mr Hyland's registration or place conditions on it.
Mr Hyland is a student. He is not a registered medical practitioner. The alleged criminal conduct is not related to his studies of medicine. Any contact with patients while he is a student will be supervised. We are unable to identify any potential harm to the health and safety of a person if Mr Hyland is permitted to resume his training.

[22]

Unacceptable risk to the public interest?

There is a public interest in maintaining confidence in the provision of services by health practitioners. If confidence is not maintained, it may affect the willingness of people to seek medical assistance from registered medical practitioners or affect the reputation of the medical profession. Neither of these outcomes is likely in the circumstances of this case because Mr Hyland is a student. He is undertaking various programs of study and clinical training. He is not providing unsupervised medical services nor is he a registered medical practitioner. We accept, however, that there is also a public interest in upholding the reputation of registered students. Where such a student has been charged with or subsequently found not guilty of a criminal offence, the more general notion of public interest also includes upholding the student's right to a fair trial including the presumption of innocence.
In Leow at [91], Niall JA cited with approval Medical Practitioners Board of Victoria v Lal [2009] VSCA 109 (Lal) at [59] (footnotes deleted): Public confidence is won - or lost - gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole. It is not irrelevant that the standing of the medical profession in this community is very high.
At [96], Niall JA came to the following conclusion about this passage: For the reasons given by the Court of Appeal in Lal, decisions in an individual case may not have a deleterious impact on reputation. The passage in Lal cited above, and referred to by the Tribunal, involved an explication of the concept of public confidence. It did not state a proposition of law and I do not take the majority as having used it in that way. Rather, the majority were reflecting on the impact that not taking action would have on reputation.
The Medical Council submits that Niall JA's conclusion that decisions in an individual case may not have a deleterious impact on reputation is outdated given that it was published in 2009. That was said to be the case because of the increased role of the media in reporting cases and the associated media commentary available on the internet.
In assessing the chance of the suggested harm (damage to the reputation of medical students) being realised, the extent of media coverage may be relevant. However, Niall JA's opinion was not based on the extent of media coverage. His Honour's point was that a decision to register a particular person to practise medicine is unlikely to have any material or lasting effect on the established reputation of the medical profession as a whole. We did not allow the Medical Council to tender evidence of the media coverage of the stay decision because it is not relevant to any issue in dispute.
Mr Hyland has been charged with offences, including offences of domestic violence and damage to property, in 2019 and in 2021. The 2019 charges related to very serious offences carrying a term of imprisonment of up to 10 years. The 2021 charges of recklessly destroy property and common assault are less serious but are still punishable by a maximum term of imprisonment for 5 and 2 years respectively.
In our view, while there is some risk that the reputation of medical students will be eroded if no action is taken pending the resolution of the 2021 charges, in all the circumstances that risk is not "unacceptable". Mr Hyland was found not guilty of the 2019 charges. We appreciate that Person A did not give oral evidence, but video evidence was played and Mr Hyland was cross examined. The public would understand that Mr Hyland had a fair trial where he was afforded the presumption of innocence. The reputation of medical students in general is not diminished to any material extent in those circumstances.
In relation to the 2021 charges, Person A has provided a statement detailing her version of these events. Members of the public understand that from a legal perspective, a person who has been charged with a criminal offence is presumed to be innocent until found guilty. That understanding is even more significant where, as in this case, the alleged perpetrator denies the charges. Mr Hyland's situation can be distinguished from the facts in Pridgeon v Medical Council of NSW [2021] NSWCATOD 89.
Dr Pridgeon had harboured and supported a mother who had removed her twin daughters from their father's lawful custody. He was unrepentant about his involvement during the time the children and their mother remained undetected by authorities. His rationale was that he was protecting the children from abuse by their father. The Tribunal concluded at [207] that: The public interest, which we find requires us to take action, is to uphold the confidence of the public in members of the medical profession. That is, that the public requires that members of the medical profession act within the law at all times and act in a manner which upholds the rule of law in this land. Confidence in the medical profession, we consider, is generally likely to be eroded where the public learn a medical practitioner has been charged with committing a criminal act carrying the possibility of incarceration for a significant time.
Unlike Dr Pridgeon, Mr Hyland denies that he is guilty of any offence. He has provided a version of events consistent with a not guilty plea and has reported to his general practitioner before any charges were made, that he found Person A to be unpredictable and aggressive.
For these reasons, the decision of the Medical Council made on 2 September 2021 to suspend Mr Hyland's registration as a student is terminated.