Download Welcome to Issue 7 for 2014 - Health Professional Councils Authority

VOLUME 2
ISSUE 7
H E AL T H P R O F E S S I O NA L CO U N CI L S A U T H O R I T Y
Legal News
September 2014
Inside This Issue
1
Welcome to Issue 7 for 2014
2
Tribunal and Court Cases
22
Seminars
22
National Board and AHPRA
Welcome to Issue 7 for 2014
We are pleased to provide you with the 7th edition of Legal News for
2014 covering the months of July and August. This edition reports on
ten decisions published in the Health Practitioner Division List of the
Civil and Administrative Tribunal as well as one Medical Professional
Standards Committee decision. There are also:

Publications
23
From the Vaults
23
HPCA Publications
24
Ministry of Health Policies and
Information
24
Hyperlinks
Highlights:
Page 4
Failure to comply with conditions
leads to registration cancellation
HCCC v Edwards
Page 8
Unsuccessful appeal on supervised
practice Crowe v Medical Board of
Australia
Page 12
Outcome of second stage hearing
in HCCC v Fraser
Page 22
HPCA seminar on the performance
program



three decisions from the South Australian Health Practitioner
Tribunal and a statement from the Physiotherapy Board of
Australia concerning a Tribunal case;
three decisions from the Queensland Civil and Administrative
Tribunal;
two decisions from the Western Australia State Administrative
Tribunal; and
one decision from the Victorian Civil and Administrative
Tribunal, the Tasmanian Health Practitioners Tribunal, the
Northern Territory Health Professional Review Tribunal and the
Australian Capital Territory Civil and Administrative Tribunal.
The List Manager of the NSW Civil and Administrative Tribunal has
provided clarification about NCAT practice and procedure
concerning withdrawal of complaints before the substantive Inquiry
occurs - Health Care Complaints Commission v Khan. The decision
sets out the criteria that are applied by the Tribunal in determining
whether to allow complaints against registered health practitioners to
be withdrawn. Importantly, the Tribunal appears to be acutely
conscious of the public interest and in that context the balance
between expeditious and efficient disposal of matters and the
benefits that flow from serious complaints being adjudicated and
ruled on in an open transparent process. The decision also reinforces
the need to consider both the National Law (NSW) and the NSW Civil
and Administrative Tribunal Act in considering appropriate practice
and procedure.
In another decision of the List Manager, Crook v Health Care
Complaints Commission (No 2) the issue of removal of spent or
expired conditions from the National Register was raised in the
context of an application to the List Manager for the Nursing and
Midwifery Council to be named as the appropriate review body.
Tribunal and Court Cases
PAGE 2
LEGAL NEWS
Welcome to Issue 7 for 2014 continued
There are also a number of cases dealing with beach of conditions.
The Tribunal in each case treated the breaches of conditions by
health practitioners as serious matters, whether in the context of a
complaint or a review of immediate action taken based on
contraventions of conditions. In two of the cases the Tribunal provided
guidance on the considerations for adjudicating bodies in imposing
conditions on a practitioner’s registration Crook v Health Care
Complaints Commission (No 2) and Medical Board of Australia v
Andersen.
Tribunal and Court Cases
NSW CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Care Complaints Commission v Dr Hofer [2014] NSWCATOD 74
The Health Care Complaints Commission made complaints of
unsatisfactory professional conduct and professional misconduct
based on the practitioner’s prescribing of Schedule 4D drugs and his
medical records.
The practitioner admitted many of the particulars of complaint and
that he was guilty of unsatisfactory professional conduct. The
practitioner denied that he was guilty of professional misconduct. The
Tribunal found that those matters the practitioner admitted were
proved to the requisite standard and that given the practitioner’s
concession that he was guilty of unsatisfactory professional conduct
the key issue in respect of those matters was whether the practitioner’s
conduct amounted to professional misconduct.
In terms of the particulars of complaint that were not admitted the
Tribunal determined that procedural fairness required that the Tribunal
make a decision as to whether or not those particulars were proved.
The Tribunal went on to consider each particular and found most (but
not all) to be proved and that the practitioner’s conduct fell below
the standard expected of a practitioner of an equivalent level of
training and experience.
In finding the practitioner guilty of professional misconduct the Tribunal
said at paragraph 270:
Not only did the practitioner's clinical treatment of these
patients constitute a significant departure from appropriate
clinical practice, but his record keeping for all 26 patients was
woefully inadequate, ..
The Tribunal declined to cancel the practitioner’s registration because
the practitioner had made significant changes to his practice and
demonstrated insight into his prior failings.
The Tribunal declined
to cancel the
practitioner’s
registration because
the practitioner had
made significant
changes to his
practice and
demonstrated insight
into his prior failings.
LEGAL NEWS
PAGE 3
NSW Civil and Administrative Tribunal cont.
The Tribunal also declined to impose critical compliance
conditions on the basis that it was not satisfied they were
necessary to protect the health and safety of the public.
The Tribunal reprimanded the practitioner; imposed a range of
practice conditions relating to the possession, use, supply and
prescribing of Schedule 8 and 4D drugs; ordered the practitioner
undertake a range of educational courses; and that he maintain
a therapeutic relationship with his treating psychiatrist.
Health Care Complaints Commission v Kwan [2014] NSWCATOD 72
The Health Care Complaints Commission made complaints of
unsatisfactory professional conduct and professional misconduct
based on the practitioner’s prescribing of drugs of addiction over
a long period of time and without authority, to a drug dependant
person; his medical records; and failing to observe appropriate
professional boundaries with the same patient.
Public safety is reliant
on the proper exercise
of discretion by a
medical professional
and on the willingness
of the practitioner to
practise within the limits
set by the profession
and by the community.
Dr Kwan has breached
the trust placed in him
by his patient, the
community and the
medical profession. He
has flagrantly and over
a long period, broken
the law….
The practitioner admitted the factual basis for the complaints and
most of the particulars. The practitioner also admitted that he was
guilty of both unsatisfactory professional conduct and professional
misconduct. The major issue for determination by the Tribunal was
the protective orders to be made.
In resolving to cancel the practitioner’s registration for a minimum
of 2 years the Tribunal noted:
It is plain that over-prescribing medications contrary to law
by a medical practitioner can amount to conduct
warranting the removal of the practitioner's name from the
Register of Practitioners. Dr Kwan's conduct was reckless
and showed a blatant disregard of the law. (Para 29)
The Tribunal also noted that the practitioner had previously been
before the Medical Tribunal for complaints relating to his
prescribing of drugs and that as a result of those earlier
proceedings had received the: “benefit of individual input by
Pharmaceutical Services Branch officers and a professional
colleague appointed to assess and guide him. He also had
specific training, directing him to his responsibilities in prescribing
as a medical practitioner.” (para 32)
Importantly, the Tribunal went on to say:
Public safety is reliant on the proper exercise of discretion
by a medical professional and on the willingness of the
practitioner to practise within the limits set by the profession
and by the community. Dr Kwan has breached the trust
placed in him by his patient, the community and the
medical profession. He has flagrantly and over a long
period broken the law…. (para 35)
PAGE 4
LEGAL NEWS
Health Care Complaints Commission v Kwan [2014] NSWCATOD 72 cont.
We believe Dr Kwan has demonstrated insufficient insight into the
gravity of his misconduct and therefore he is likely to pose a risk to
the public were he to remain on the register at this time. We have
come to the conclusion that maintaining prescribing restrictions and
reinstituting counselling and educational requirements will not
afford adequate protection to the public. (para 37)
Health Care Complaints Commission v Khan [2014] NSWCATOD 83
The Health Care Complaints Commission had made a complaint to the
Tribunal alleging that the practitioner was guilty of professional misconduct
based on his prescribing of drugs to 28 patients and his record keeping.
The practitioner surrendered his registration as a medical practitioner and
the Commission sought to withdraw the complaint before the Tribunal.
Judge Boland, the List Manager of the Health Practitioner Division List,
considered whether she had the power, sitting alone, to allow the
withdrawal of the complaint.
In a short but carefully reasoned judgment, which analysed the relevant
provisions of the Civil and Administrative Tribunal Act 2013 and the Health
Practitioner Regulation National Law (NSW), Her Honour concluded that
she had:
…the power as a senior judicial officer (as defined in the National Law) to
determine as a single member the question of whether or not it is not in the
public interest for an inquiry into the complaint referred by the HCCC to the
Tribunal to be withdrawn. I am further satisfied it is not in the interests of the
public for an inquiry to be held. (para 59)
As this judgment contains an important discussion of the powers of the List
Manager and a valuable discussion of the relevant considerations for
dismissing a complaint it will be the subject of a separate HPCA Case Note.
HCCC v Edwards [2014] NSWCATOD 90 (13 August 2014)
Complaints of unsatisfactory professional conduct and professional
misconduct were made by the HCCC based on the practitioner’s failure to
comply with conditions imposed at an earlier Tribunal hearing. The
conditions related to completing educative courses including distance
learning about issues for General Practice Prescribing following findings of
unsatisfactory professional conduct and professional misconduct. The
practitioner was monitored by the Council and given numerous
opportunities to explain his failure to comply and any mitigating health or
family circumstances.
LEGAL NEWS
PAGE 5
HCCC v Edwards [2014] NSWCATOD 90 (13 August 2014) cont.
The Tribunal viewed the
failure to comply,
particularly with the
condition requiring
completion of a prescribing
issues course as conduct of
such a serious nature to
justify suspension or
cancellation of registration.
…conditions on registration
are not lightly imposed and
must be scrupulously
observed.
The practitioner acknowledged at the hearing that he had no
adequate excuse for his failure to comply with the conditions.
The Tribunal viewed the failure to comply, particularly with the
condition requiring completion of a prescribing issues course as
conduct of such a serious nature to justify suspension or
cancellation of registration:
While non-compliance with condition (iii), a one day short course,
might, arguably, be seen as a less serious transgression, condition
(ii) related to a course of a significant kind that bore directly on
the important issues of professional conduct that had given rise to
the adverse findings made against the respondent in the 2011
decision. The respondent's failure to enrol in and undertake that
course was clearly a significant failure on his part, compounded
by his non-attendance at the Tribunal hearing where he may
have been able to offer an explanation or demonstrate contrition
and a preparedness to rectify the failure (para 20).
The Tribunal endorsed the view in Re Dr Than Le (Medical Tribunal
2001) that conditions on registration are “not lightly imposed” and
must be “scrupulously observed”.
The practitioner’s registration was cancelled and he was
precluded from seeking a review of that order for a period of one
year. He was also ordered to pay the Commission’s costs of the
proceedings as agreed or assessed.
INTERSTATE CASES
Medical
Sharma v Medical Board of Australia [2014] QCAT 305 (25 June
2014)
The Tribunal indicated that
subjective matters such as
the impact on her family’s
social life and professional
embarrassment were not
relevant factors in favour
of a stay.
The practitioner sought a review of educative and mentoring
conditions imposed by the Board’s Performance and Professional
Standards Panel. Subsequently, she also sought a stay of the
conditions by the Tribunal pending the determination of her review
application. The Board did not oppose the stay.
The practitioner claimed that the conditions had an adverse
impact on her private and professional life and affected her
prospects of employment and credentialing.
The Tribunal indicated that subjective matters such as the impact
on her family’s social life and professional embarrassment were
not relevant factors in favour of a stay.
PAGE 6
Sharma v Medical Board of Australia [2014] QCAT 305 (25 June 2014) cont.
However, the Tribunal determined that in the circumstances of this case a
stay was desirable. The Tribunal weighed up the adverse impact if a stay
was not granted and took into account that the time limitations imposed
by the conditions, which would probably expire before the substantive
review was determined. There was also an adverse outcome on the
mentor in undertaking mentoring and making reports if the substantive
review was successful. The Tribunal did not view the delay in commencing
the conditions, which would occur if the stay was granted, as having any
adverse impact on the safety of her patients or the public. The Tribunal
stayed the decision of the Performance and Professional Standards Panel.
Medical Board of Australia v Roberts [2014] WASAT 76 (1July 2014)
The Board had made complaints of unprofessional conduct and
unprofessional performance concerning the conduct of an experienced
consultant paediatrician. Allegations were made about the derogatory
comments in his written consultation notes concerning twin boys referred to
him for assessment of longstanding behaviour problems. He had also made
written comments which could be construed as advocating corporal
punishment to the parents as a means of disciplining their children. These
written comments were provided to the mother. The Tribunal found that the
allegations about these consultation notes to be proven but other
allegations were not made out.
The issue before the Tribunal was whether the proven conduct about the
consultation notes amounted to professional misconduct or unprofessional
conduct.
The Tribunal commented that unprofessional conduct was less serious than
professional misconduct and that unprofessional conduct must be judged
according to the standards of the profession. The expert evidence had
been equivocal and there was no clear standard by which to judge the
practitioner’s performance. The practitioner’s conduct could not be found
to be substantially below that reasonably expected of his peers of an
equivalent level of training and experience. The practitioner was, however,
guilty of the lesser complaint of unprofessional conduct. Protective orders
are yet to be considered.
LEGAL NEWS
LEGAL NEWS
PAGE 7
Gomes v Tasmanian Board of the Medical Board of Australia
[2014] TASHPT 3 (11 August 2014)
The Tribunal found at para
21 that the immediate
action was warranted, and:
…. in the best interests of
patient care and the
reputation of the medical
profession due to his
dismissive, even
contemptuous attitude to
the conditions imposed
upon his practice which
were directed at ensuring
the protection of his patients
from seeing or relying upon
a medical practitioner who
may be affected by or be
under the influence of
alcohol.
This case concerned an application by the practitioner for the
review of a suspension imposed by an Immediate Action
Committee. The suspension was based on the practitioner’s
contraventions of health conditions, which required breath
analysis before each patient consult and at the end of the
working day with the results to be forwarded to AHPRA. If there
was a reading above 0% then the practitioner was not
permitted to practice for 24 hours and the supervisor
conducting the testing was to inform AHPRA immediately.
The Tribunal found at para 21 that the immediate action was
warranted, and:
…. in the best interests of patient care and the reputation of the
medical profession due to his dismissive, even contemptuous,
attitude to the conditions imposed upon his practice which
were directed at ensuring the protection of his patients from
seeing or relying upon a medical practitioner who may be
affected by or be under the influence of alcohol.
The Tribunal referred to the Victorian Court of Appeal case of
Kozanoglu v Pharmacy Board of Australia [2012] VSCA 295 and
Fox v Percy [2003] HCA 22 regarding the nature of such reviews
as being “hybrid” where the material originally before the
decision makers is considered and the parties are also given
the opportunity to present additional material.
The Tribunal also expressed concern that the immediate action
had been taken 6 months ago and that substantive disciplinary
action had not yet occurred and how this might prejudice the
practitioner. The Tribunal called for submissions from the parties
about the prejudice to the practitioner in these circumstances.
PAGE 8
Crowe v Medical Board of Australia [2014] SAHPT 8 (17 July 2014)
The practitioner appealed to the Tribunal against the Board’s
decision to impose a condition on his registration regarding
supervised practice and treatment by a geriatric psychiatrist
following his relocation to South Australia. The practitioner had
previously been the subject of a number of health and
performance assessments by the NSW Medical Council. Each of
those assessments had concluded that there were concerns
about the practitioner’s health and performance.
The appeal was dismissed and a costs order made against the
practitioner. At the appeal hearing the practitioner had not
produced any objective evidence which contradicted the
health opinions the Board had obtained that the practitioner was
cognitively impaired and required supervision to practice
medicine.
Medical Board of Australia v Andersen [2014] QCAT 374 (30 July
2014)
The complaint of professional misconduct was admitted by the
practitioner and the parties had jointly proposed orders, which
included a one month suspension, suspended for a period of 12
months. There was an agreed statement of facts and the case
was determined by the Tribunal on the papers.
The complaint concerned the practitioner’s prescribing of
pseudoephedrine products to 6 patients in the period September
2006 to December 2009 in circumstances where, the practitioner
had not determined that there was a genuine therapeutic need
for ongoing prescribing of the products, and where the
practitioner had not undertaken further investigation of their
conditions or referred the patients to a specialist. The practitioner
was in his 70’s and had no prior disciplinary history.
The Tribunal determined that a period of suspension was
warranted and that the practitioner’s good character meant
that the period would be reduced to 1 month.
LEGAL NEWS
LEGAL NEWS
PAGE 9
Medical Board of Australia v Andersen [2014] QCAT 374 (30 July
2014) cont.
The Tribunal in considering the
jointly proposed orders
commented:
(a) With approval to an
observation in an earlier case
(Medical Board of Australia v
Martin) that the Tribunal
should not depart from the
agreed proposed orders
unless they were not within
the range of permissible
sanctions.
(b) A suspended suspension was
not authorised by the
National Law.
(c) An order requiring the
conditions to be included on
the National Register was not
appropriate because this was
an obligation under section
225(k) of the National Law;
and
(d) the National Board’s residual
discretion concerning
information on the register
and how long it remains in
force and indicated that the
Tribunal should not impose
orders that fetter the Board’s
discretion
The effect date of the suspension was in September so that the
practitioner could make the relevant administrative arrangements
for his practice. There were also a number of conditions imposed on
the practitioner’s registration.
The Tribunal in considering the jointly proposed orders commented:
a) with approval to an observation in an earlier case (Medical
Board of Australia v Martin) that the Tribunal should not
depart from the agreed proposed orders unless they were
not within the range of permissible sanctions (para 25).
b) A suspended suspension was not authorised by the National
Law (para 26).
c) An order requiring the conditions to be included on the
National Register was not appropriate because this was an
obligation under section 225(k) of the National Law (para 46)
;and
d) the National Board’s residual discretion concerning
information on the register and how long it remains in force
and indicated that the Tribunal should not impose orders that
fetter the Board’s discretion (para 47).
Nitschke v Medical Board of Australia [2014] NTHPRT 2 (20 August
2014)
The practitioner had appealed against the decision of an Immediate
Action Committee in South Australia to suspend his registration. This
case concerned the preliminary question of which Tribunal had
jurisdiction to hear the appeal.
The Tribunal referred to section 199(2) (a) of the National Law to
determine the appropriate responsible tribunal to deal with
appealable decisions. The Tribunal looked at where the conduct
occurred which gave rise to the decision to suspend and found that
it had occurred both in WA and SA. As the conduct had occurred in
more than one jurisdiction, the appropriate place for the appeal to
be heard was determined by the practitioner’s principal place of
practice under section 199(2) (a), which was the Northern Territory
Health Professional Review Tribunal.
PAGE 10
Nitschke v Medical Board of Australia [2014] NTHPRT 2 (20 August
2014) cont.
In analysing where the conduct had occurred the Tribunal took
into account the background material, including the activities of
the practitioner as an advocate for the right of persons to take
their own lives and advice on how best to do this via forums,
interviews, publications as well as the specific email
communications with a patient.
Ladhams v Medical Board of Australia (No 2) [2014] QCAT 286
The practitioner’s diagnosis and treatment of Lyme disease had
resulted in one patient being admitted to hospital with adverse
effects from such treatment. The Medical Board of Australia took
urgent interim action and placed conditions on the practitioner’s
registration on the basis that:
(1) The practitioner’s diagnosis of Lyme disease, absent NATA or
FDA laboratory confirmation, and use of Ceftriaxone administered
by PICC line to allegedly treat patients with Lyme disease, raises
significant concerns about his professional judgment and whether
he is able to practice in a competent and ethical manner as
expected by a qualified general practitioner.
(2) As a qualified general practitioner, the practitioner holds a
position of trust and authority in relation to his patients. The
imposition of conditions preventing him from treating patients who
he diagnoses with Lyme Disease, in circumstances where the
disease has not yet been proven to exist in Australia, will prevent
patients from receiving what may be unsound and unproven
treatment.
The practitioner sought a review of the Board’s decision to impose
conditions on his registration. After a thorough review of the
evidence the Tribunal said:
I also believe that, given these risks, it is necessary to impose
conditions of Dr Ladhams’ registration. I do not, however, believe
that the conditions presently imposed upon Dr Ladhams, or those
now proposed by the Board, are appropriate to manage the
identified risks. Any conditions imposed should address the
relevant risks specifically, and otherwise be the least onerous
possible…. (para 74).
The Tribunal confirmed the Board’s decision to take immediate
action but imposed further conditions in lieu of those imposed by
the Board. The further conditions related to requirements to be
observed by the practitioner in the diagnosis and treatment of
Lyme disease and involved accredited laboratory testing and
referral of patients to an Infectious Disease Specialist with the prior
approval of the Board.
LEGAL NEWS
LEGAL NEWS
PAGE 11
PROFESSIONAL STANDARDS COMMITTEE
Medical
24 July 2014 – Dr Kadandalea Shetty
Dr Shetty is a solo GP in Merbein Victoria (near Mildura) and works under
supervision of the only other doctor in the town. This case involved the
alleged inadequate care in Wentworth Hospital (NSW) of a 46-year-old
aboriginal woman (Patient A) with a complex medical history, serious
current illnesses and a history of alcoholism and disruptive behaviour. It
also involved a breach of conditions on Dr Shetty’s registration.
The Committee found that Dr Shetty’s conduct in his care of the patient
amounted to unsatisfactory professional conduct. He was reprimanded
and the PSC imposed further conditions upon Dr Shetty’s registration,
which will require him to work only in a group practice under supervision
and undertake education. The complaint concerning the alleged
breach of conditions was not proven.
The PSC found that Dr Shetty lacked insight, failed to take responsibility,
and was lacking in clinical knowledge and skill. It was noted that he
failed to take any action after the Council imposed s.150 conditions in
response to the initial notification about the patient’s care made by
another medical practitioner. “This in itself was of concern as it shows
not only a lack of insight but the same obtuseness as he showed in
relation to his understanding of the conditions upon his practice”.
Nursing and Midwifery
NSW CIVIL AND ADMINISTRATIVE TRIBUNAL
Deano v Health Care Complaints Commission [2014] NSWCATOD 85
In 2011 the former Nursing and Midwifery Tribunal found the practitioner
guilty of professional misconduct and cancelled her registration. This
decision relates to her application for a review of that decision.
The Tribunal noted that in this type of review the applicant bears the
heavy onus of establishing that he/she should be allowed to re-enter the
profession. The Tribunal then went through a careful exercise in setting
out and addressing the matters that it needed to determine in
considering the practitioner’s application.
In dismissing the practitioner’s application and setting a two-year period
in which she may not make another application for review the Tribunal
said:
PAGE 12
Deano v Health Care Complaints Commission [2014] NSWCATOD 85
cont.
The Applicant remains defensive and evasive with respect to the
proven conduct. There is little that the Tribunal can point to as a sign
that the Applicant is remedying the defects identified in her practice
by the NMT. The Applicant's continued lack of candour is of grave
concern. In particular her attempts to hide behind language
difficulties and to claim 'legal' naivety are considered by the Tribunal
as disingenuous. (para 175)
Health Care Complaints Commission v Fraser (No 2) [2014]
NSWCATOD 84
The practitioner was found guilty of professional misconduct
following complaints based on the practitioner’s conduct in
administering an experimental treatment to a cancer patient in her
cosmetic clinic under the supervision of a person who she knew was
not registered and the administration of vitamin C and intravenous
vitamin therapy to patients without appropriate supervision.
In this second stage of the proceedings the Tribunal considered
appropriate protective orders.
In considering appropriate orders the Tribunal noted:
The authorities stress the discretion reposed in the Tribunal when a
finding of professional misconduct has been made does not
mandate the making of an order suspending or cancelling the
practitioner's registration (see Health Care Complaints Commission v
Karalasingham [2007] NSWCA 267). Further, a Tribunal will not
generally order cancellation of a practitioner's registration unless he
or she is unfit to practise at the time of the making of the protective
order and likely to remain unfit for some time (see Health Care
Complaints Commission v King [2013] NSWMT 9).(para 19)
The Tribunal also noted that the practitioner had displayed a lack of
frankness and insight into the objective seriousness of her conduct
before the Tribunal. (para 97) The Tribunal went on to note that:
If the practitioner had demonstrated to us an understanding that she
had acted outside her scope of practice, and we could be
confident she would not do so again, conditions which limited her
practice to the types of roles she suggested may be sufficient to
protect the public. But we are not satisfied she has demonstrated
any genuine insight into her actions ... This is a serious and significant
deficit and militates against continuation of the practitioner's
registration even with conditions at this time. (para 101)
The Tribunal also made valuable comments as to the trust that the
public places in the members of the nursing and midwifery
profession, including:
LEGAL NEWS
LEGAL NEWS
PAGE 13
Health Care Complaints Commission v Fraser (No 2) [2014]
NSWCATOD 84 cont.
That trust and confidence is well
deserved when it is provided by
professionally educated,
responsible practitioners. The
patient's trust reposed in a
practitioner is not only because of
the practitioner's education and
technical skills, but encompasses an
assumption that the practitioner will
exercise appropriate judgment, and
observe high ethical standards.
These qualities are the hallmarks of
the profession and must be
guarded and upheld to ensure the
ongoing properly placed
confidence of the public in a
significant and important sector of
the health profession.
A registered nurse and/ or midwife in New South Wales fulfils a
significant role in the care and health of the public. All patients,
including mothers and babies, often at vulnerable times in their
lives, place enormous trust and confidence in nurses and
midwives who generally provide specialist, and the majority of the
primary care of patients. That trust and confidence is well
deserved when it is provided by professionally educated,
responsible practitioners. The patient's trust reposed in a
practitioner is not only because of the practitioner's education
and technical skills, but encompasses an assumption that the
practitioner will exercise appropriate judgment, and observe high
ethical standards. These qualities are the hallmarks of the
profession and must be guarded and upheld to ensure the
ongoing properly placed confidence of the public in a significant
and important sector of the health profession. (para 112)
In cancelling the practitioner’s registration and imposing a one
year preclusion period for seeking review of the cancellation
order, the Tribunal concluded:
The findings we have made against the practitioner demonstrate
a serious lack of judgment by a very experienced nurse and
midwife. The conduct engaged in by the practitioner disregarded
patient safety, and demonstrated a lack of judgment. ... The
Tribunal's condemnation of such conduct should send a strong
message to the profession and the public that such departures
from the high standards of the profession will not be tolerated. The
Tribunal's protective orders are designed to provide a warning
that such a departure will have serious consequences for an
offending practitioner. (para 113)
We do not find suspension to be a proper order in the
circumstances of this case. While suspension could satisfy the
deterrent aspect of protective orders, such an order does not
address the fundamental issue in these stage 2 proceedings
namely the question of the practitioner's insight, and the risk she
may again act outside the scope of her practice. On the
expiration of any suspension period, the practitioner's registration
would automatically revive. This may be at a period of time when
she may, or may not, have gained true insight into her behaviour.
(para 119)
PAGE 14
Crook v Health Care Complaints Commission (No 2) [2014] NSWCATOD 91 (14
August 2014)
This case originally involved the determination of the appropriate review body
to review conditions on a practitioner’s registration under section 163(1) (a1) of
the National Law (NSW). In an earlier decision [Crook v HCCC [2014]
NSWCATOD 50 (7 May 2014] the List Manager had published her preliminary
findings and made orders to permit the Nursing and Midwifery Council and
AHPRA as interested parties to make joint written submissions on the following
issues:
-
whether the Council was the appropriate review body
whether a review of a spent condition is necessary, and
whether a professional standards committee can include at the time
of imposing a condition a mechanism for its removal.
The decision contains the List Manager’s discussion of the issues. Of particular
note are the comments about removal of expired conditions when there is no
specific administrative mechanism in the National Law other than making a
review application to the appropriate review body. Until a legislative solution
is found, the List Manager outlines at paragraph 29 the following
considerations for adjudication bodies and regulators when dealing with
conditions:
(1) Adjudication bodies imposing conditions on a practitioner's
registration need to ensure conditions are properly drafted and
enforceable;
(2) Adjudication bodies need to give careful consideration when
imposing a condition or conditions to providing for review of the
condition/s by a nominated review body at the expiration of a fixed
time period; and
(3) AHPRA, the public and practitioners will be assisted if an
adjudication body clearly specifies at the conclusion of proceedings
what it requires to be recorded on the register.
The List Manager determined that the Council was the appropriate review
body and no order was made as to costs.
Shah V HCCC [2014] NSWCATOD 94 (21 August 2014)
The Tribunal heard an application by a former nurse seeking a review of a
cancellation order made on 12 March 2013. Although the applicant’s
evidence showed steps taken to eliminate the concerns that had led to his
deregistration, his CV contained errors and misstatements regarding his work
history. These were viewed by the Tribunal as reflecting a lack of care in
preparing his application. The Tribunal considered the heavy onus on the
applicant in such cases in proving that he is a fit and proper person to be
engaged in the nursing profession. The Tribunal was not satisfied that the
applicant had discharged the onus.
LEGAL NEWS
LEGAL NEWS
PAGE 15
Shah V HCCC [2014] NSWCATOD 94 (21 August 2014) cont.
The Tribunal dismissed the application and ordered a further preclusion period of
9 months before another review of the cancellation order could be made. The
applicant was also ordered to pay the HCCC’s costs. Subject to any application
made under s. 163(1)(a1) of the National Law (NSW) any further review
application is to be determined by NCAT.
INTERSTATE CASES
Nursing and Midwifery Board of Australia and Guilford-Taylor [2014] WASAT 24 (17
June)
Complaints of professional misconduct were made against an enrolled nurse
with health issues. The conduct complained of occurred in a one month period
and included impersonating an oncology registrar and providing a false medical
history to support a request for surgery for her that was not clinically indicated.
The practitioner did not attend the Tribunal hearing, which proceeded in her
absence. The Tribunal made findings of professional misconduct and
impairment. The Tribunal characterised her conduct as fraudulent, misleading
and deceptive and inconsistent with being a fit and proper person to practise
the profession. The Tribunal directed that the issues of costs and orders were to
be dealt with separately and on the papers.
Nursing and Midwifery Board of Australia and Guilford-Taylor WASAT 72 (17 June
2014)
Following the above decision, the practitioner sought a non-publication order
(also referred to as a suppression order) in relation to her identity because she
said that she was receiving 'death threats' and 'abusive phone calls', and was
'physically attacked whilst walking home'.
The Tribunal refused to make a non-publication order. In the absence of any
details, explanation or evidence, other than generalised assertions, the
practitioner's claims of death threats, abusive telephone calls and a physical
attack appeared to the Tribunal to be fanciful.
PAGE 16
LEGAL NEWS
Nursing and Midwifery Board of Australia and Guilford-Taylor
WASAT 72 (17 June 2014) cont.
The Tribunal did not consider it necessary to make a nonpublication order in relation to the practitioner's identity or
other material in the conduct reasons to avoid endangering
the physical or mental health or safety of the practitioner.
The Tribunal also found that the publication of the
practitioner's identity and aspects of her medical history
which pertain to her professional misconduct, while
unfortunate, was required to achieve the objects of
vocational disciplinary proceedings and transparency in
such proceedings.
The Tribunal made a limited non-publication order regarding
a particular health procedure.
Nursing and Midwifery Board of Australia v Hugo [2014]
SAHPT 9 (23 July 2014)
A complaint of professional misconduct was made against
the practitioner based on a finding of guilty for a criminal
charge of indecent assault on a 15 year old friend of his
daughter at his home. The practitioner reported the charge
to the Board and subsequently entered into an undertaking
restricting his practice. He admitted the complaint of
professional misconduct.
The Tribunal viewed the conduct, albeit in his personal life as
being inconsistent with being a fit and proper person to hold
registration as a nurse. The Tribunal commented on
community expectations of nurses and agreed with the
complainant that although the offending conduct did not
occur in connection with the respondent’s practice as a
nurse, it was inconsistent with him being a fit and proper
person to hold registration in the nursing profession.
An earlier incident of sexual impropriety in 1989, which was
not prosecuted, was raised in evidence. The Tribunal
considered that the earlier incident was only relevant as to
whether the conduct was an isolated incident and in terms
of determining protective orders.
The practitioner was reprimanded, suspended for an
effective period of one month and conditions imposed
restricting his nursing practice.
The Tribunal also found that the
publication of the practitioner's identity
and aspects of her medical history
which pertain to her professional
misconduct, while unfortunate, was
required to achieve the objects of
vocational disciplinary proceedings
and transparency in such proceedings.
LEGAL NEWS
PAGE 17
Scott v Nursing and Midwifery Board of Australia [2014] SAHPT 11 (1 August
2014)
This case involved an appeal by the applicant against the decision of the
National Board to refuse registration as a nurse. Registration had been refused
because the applicant had not practised as a registered nurse since 2004 and
had failed to comply with the National Board’s recency of practice registration
standard. The appeal was successful and the Tribunal ordered that the
appellant be granted full and unconditional registration as a nurse because
the applicant had satisfied the recency of practice standard.
The appellant had maintained her registration as a nurse in South Australia until
31 August 2009. For a period of 20 years she has worked as a registered nurse
in Australia and the United Kingdom. She had also obtained registration as an
Occupational Therapist. Since December 2010 she had held a position in an
aged care facility as a Community Care Coordinator, which was equivalent to
a clinical nurse manager and which used both her nursing skills and her skills as
an occupational therapist. The applicant obtained this position on the basis of
her allied health registration as an occupational therapist. Having regard to the
evidence the Tribunal:
considered that on a day to day basis the appellant uses skills obtained as a
registered nurse in conjunction with the skills from her allied health profession
namely occupational therapy (para 76).
In her role as Community Care Coordinator the appellant had satisfied the
recency of practice registration standard in that she had practised within the
last 5 years for a period which exceed the minimum of three months full time
practise stipulated in the standard.
Since 2009 the appellant had also participated in a comprehensive continuing
education program to ensure that her knowledge and skills were kept up to
date. The Tribunal was of the view that many of these educative courses had
direct relevance to the nursing profession.
In this case the Tribunal did not impose any conditions on practice as the
appellant had restricted her practice to aged care and recognised that if she
were to practise in another area, she would need retraining.
PAGE 18
LEGAL NEWS
Psychology
NSW CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Care Complaints Commission v Bergmeier [2014]
NSWCATOD 75
Complaints were made that the practitioner was guilty
of unsatisfactory professional conduct and professional
misconduct based on an inappropriate personal
relationship with a client who was an inmate of a
correctional facility and the entering of misleading
information in client’s case notes.
The practitioner admitted most of the particulars of
complaint and that she was guilty of unsatisfactory
professional conduct. The practitioner denied that her
actions constituted professional misconduct. In terms of
the two particulars that were not admitted the Tribunal
found one proven and the other not proven.
In finding the practitioner guilty of professional
misconduct, issuing a reprimand, cancelling the
practitioner’s registration and issuing a prohibition order
preventing the practitioner from providing mental
health, community health and welfare services Tribunal
noted at paragraphs 159 and 160:
Ms Bergmeier failed to exercise the judgment expected
of her as a member of the psychology profession,
specifically she was unable to prevent or pre-empt the
development of the relationship with Client A and once
established she was unable to take the necessary steps
to deal with the situation in a professional manner.
Ms Bergmeier appeared to give no attention to her
duty to her profession, as required by her professional
code. She gave evidence that she had not considered
the effect the relationship with Client A would have on
her colleagues, nor the effect that the use of another
person's password might have on that person's own
reputation. Indeed her decision making appeared to
rest solely on what was required to advance the
relationship with Client A.
Ms Bergmeier failed to exercise the
judgment expected of her as a
member of the psychology
profession, specifically she was
unable to prevent or pre-empt the
development of the relationship
with Client A and once established
she was unable to take the
necessary steps to deal with the
situation in a professional manner.
LEGAL NEWS
PAGE 19
Health Care Complaints Commission v Bergmeier [2014]
NSWCATOD 75 cont.
The Tribunal imposed a two year preclusion period before
the practitioner could seek a review of the cancellation
order.
Holbrook v Health Care Complaints Commission [2014]
NSWCATOD 86
The issue to be determined is whether or not
the cancellation order remains appropriate
at the time of this review and whether a
reinstatement order should be made by the
Tribunal.
In 2010 the former Psychology Tribunal found the
practitioner guilty of professional misconduct and
cancelled his registration. This decision relates to the
practitioner’s application for a review of that decision.
In dismissing the practitioner’s application and setting a
period of three years during which he may not make
another application the Tribunal said:
The issue to be determined is whether or not the
cancellation order remains appropriate at the time of this
review and whether a reinstatement order should be
made by the Tribunal.
The onus is on Mr Holbrook to demonstrate that the issues
raised by the Psychology Tribunal in 2010 have been
addressed, so as to render the cancellation order no
longer appropriate, and to demonstrate that he is now a
suitable person to be registered as a psychologist. (See
Re Mansour Haider Zaidi [2006] NSWMT 6) (para 136)
Mr Holbrook has failed to discharge this onus. He has not
provided persuasive evidence that he has remedied the
defects in his character identified by the previous
Tribunal. (para 137)
INTERSTATE CASES
Psychology Board of Australia v Greco [2014] VCAT 940
(11 August 2014)
The practitioner had conditions imposed on his
registration regarding the online advertising of his
professional services and supervision. The practitioner’s
core business was writing reports to accompany
applications by victims of crimes to the Victims of Crimes
Assistance Tribunal. The practitioner had established and
controlled a website for his business called Victims of
Crime Counselling and Compensations Services.
Following the practitioner’s failure to comply with the
conditions on his registration an Immediate Action
Committee suspended his registration. The practitioner
sought a review of the suspension and was successful.
This case was the first stage hearing concerning
complaints of professional misconduct and
unprofessional conduct.
PAGE 20
Psychology Board of Australia v Greco [2014] VCAT 940 (11 August 2014)
cont.
The Tribunal considered the extent of the practitioner’s departure from
the regulatory requirements and guidelines for advertising of
professional services and found that the practitioner was guilty of
professional misconduct. The Tribunal’s extensive discussion of the
advertising contraventions appears at paragraphs 104 to 158.
The Tribunal also found that the practitioner had breached the
conditions on his registration regarding his website in that he continued
to advertise his services on his website and Twitter and had failed to
comply with supervision requirements. These contraventions amounted
to professional misconduct.
The Tribunal also made numerous findings regarding his treatment of
particular victims as amounting to professional misconduct or
unprofessional conduct. The conduct included inappropriate provision
of psychological services, over servicing and overcharging.
Pocock v Psychology Board of Australia [2014] ACAT 54 (13 August 2014)
The practitioner sought a review by the Tribunal of supervisory conditions
imposed by a Professional Standards Panel. The practitioner admitted
unprofessional conduct and the requirements for further education and
a health assessment. The underlying conduct concerned the
practitioner’s media statements expressing controversial personal views
as a registered psychologist during a political election campaign in
2012. There had been no specific complaints about his practise as a
psychologist.
The Tribunal confirmed the Panel’s findings and imposed
educative/mentoring conditions on the practitioner’s registration. The
decision contains an interesting discussion and different views
concerning the application of the National Board’s Code of Professional
Conduct to the circumstances of the case.
Physiotherapy
INTERSTATE CASE
On 16 July 2014 the Physiotherapy Board of Australia released the
following statement in relation to the decision of the South Australian
Health Practitioners Tribunal in the matter of Physiotherapy Board of
Australia v Bharath Devadas.
LEGAL NEWS
LEGAL NEWS
PAGE 21
The South Australian Health Practitioners Tribunal has ordered that
physiotherapist Mr Bharath Devadas be permanently disqualified from
applying for registration as a physiotherapist in Australia.
The Physiotherapy Board of Australia prosecuted its case against Mr
Devadas in the Tribunal, after he was convicted of rape in late 2012. When
he was charged in 2011 and pending the tribunal hearing, the SA Board of
the Physiotherapy Board of Australia had restricted Mr Devadas’
registration and prevented him from consulting with female patients.
Mr Devadas failed to appear at the tribunal hearing on 11 July 2014, and
the Tribunal ordered that the matter proceed ex parte.
The Tribunal ordered:
1. The victim’s name be suppressed from publication
2. The respondent be reprimanded in the strongest terms
3. The respondent be disqualified from applying for registration as a
physiotherapist on a permanent basis
4. The respondent be prohibited from providing physiotherapy services
on a permanent basis
5. The respondent contribute to the complainant’s costs of and incidental
to the within proceedings
The Tribunal will hand down formal reasons for decision on 10 October 2014.
PAGE 22
Seminars
Performance Seminar 30 July 2014
On Wednesday 30 July the HPCA conducted a day long seminar on the
performance program. The seminar was very well attended and well received by
attendees. The seminar provided insights into what the performance pathway offers
under the National Law (NSW), what the Health Care Complaints Commission
expectations are in referring a matter to a performance pathway. There was also a
lively panel discussion with audience participation of case studies raising topical
issues in this area.
Stay tuned for the next seminar, which focuses on the health pathway.
National Board and AHPRA Publications
National Board and AHPRA response for applicants approved for skilled migration
before new model - Published 4 September 2014. Read media statement.
Download PDF (210 KB, PDF)
National Boards set fees for 2014/15
Published 27 August 2014. Read media release. Download PDF (120KB,PDF)
Nursing and Midwifery Board and AHPRA commit to finding solution
Published 15 August 2014. Read media release. Download PDF (195 KB,PDF)
National Boards consult on practitioners with blood borne infectious diseases
Published 24 July 2014. Read media release. Download PDF (189 KB,PDF)
Medical Board confirms suspension
Published 24 July 2014. Read media release. Download PDF (215 KB,PDF)
Statement by the Physiotherapy Board of Australia
Published 16 July 2014. Read media release. Download PDF (203 KB,PDF)
Regulatory principles endorsed for National Scheme
Published 1 July 2014. Read media release. Download PDF (203 KB,PDF)
LEGAL NEWS
LEGAL NEWS
PAGE 23
From the Vaults
Pillai v Messiter (No 2) 1989 16 NSWLR 192
“…had regard to the comments of Kirby P in Pillai [Pillai v Messiter (No 2)
1989 16 NSWLR 192] at [200]. His Honour described the type of conduct
which could constitute professional misconduct as "...conduct that is not
a deliberate departure from accepted standards but which portrays
indifference and an abuse of the privileges associated with registration
as a medical practitioner".
HPCA Publications
HPCA Strategic Plan 2014- 2015
Practice notes:
Legal Practice Note 2 - Use of Section 41P - June 2014
Legal Practice Note 3 - Section 175 Appeals - July 2014
Legal Practice Note 4 - Section 41O - July 2014
Conditions Handbooks
The following Councils have now published the first tranche of conditions in their
Handbooks:

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
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
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Chinese Medicine Council
Chiropractic Council
Dental Council
Medical Radiation Council
Occupational Therapy Council
Osteopathy
Physiotherapy Council
Podiatry Council
Psychology Council.
The following Councils have published tranches 1 and 2 of their Conditions
Handbooks:


Optometry Council
Pharmacy Council.
The HPCA is continuing the development of similar Conditions Banks for all
Councils and these will be published when available.
The conditions banks are live and evolving documents and will be significantly
added to over the course of the year. All conditions banks will be subject to
regular review and updating. Significant developments will be advised by
individual Councils and in future editions of Legal News.
PAGE 24
Ministry of Health Policies and Information
Bulletins
29 July 2014 - Implementation of Barcode Scanning in NSW Public
Hospital Pharmacy Departments.
Other announcements
Review of the National Registration and Accreditation Scheme
The Australian Health Ministers’ Advisory Council (AHMAC) has
commenced the review of the National Registration and Accreditation
Scheme. The terms of reference for the review are available from the
AHPRA website:
http://www.ahpra.gov.au/News/2014-04-29-terms-of-reference.aspx
The review discussion paper is expected to be released on 31 August
2014.
Hyperlinks
NCAT
HCCC v Dr Hofer (2014) NSWCATOD 74
HCCC v Kwan (2014) NSWCATOD 72
HCCC v Khan (2014) NSWCATOD 83
HCCC v Edwards (2014) NSWCATOD 90 (13 August 2014)
Medical
Sharma v Medical Board of Australia (2014) QCAT 305 (25 June 2014)
Medical Board of Australia v Roberts (2014) WASAT 76 (1 July 2014)
Gomes v Tasmanian Board of the Medical Board of Australia (2014)
TASHPT 3 (11 August 2014)
Crowe v Medical Board of Australia (2014) SAHPT 8 (17 July 2014)
Medical Board of Australia v Andersen (2014) QCAT 374 (30 July 2014)
Nitschke v Medical Board of Australia (2014) NTHPRT 2 (20 August 2014)
Ladhams v Medical Board of Australia (No 2) (2014) QCAT 286
Nursing and Midwifery
Deano v HCCC (2014) NSWCATOD 85
HCCC v Fraser (No 2) (2014) NSWCATOD 84
LEGAL NEWS
LEGAL NEWS
PAGE 25
Nursing and Midwifery cont.
Crook v HCCC (No 2) (2014) NSWCATOD 91 (14 August 2014)
Shah v HCCC (2014) NSWCATOD 94 (21 August 2014)
Nursing and Midwifery Board of Australia and Guilford-Taylor
(2014) WASAT 24 (17 June 2014)
Nursing and Midwifery Board of Australia and Guilford-Taylor
(2014) WASAT 72 (17 June 2014)
Nursing and Midwifery Board of Australia v Hugo (2014) SAHPT 9
(23 July 2014)
Scott v Nursing and Midwifery Board of Australia (2014) SAHPT 11
(1 August 2014)
Psychology
HCCC v Bergmeier (2014) NSWCATOD 75
Holbrook v HCCC (2014) NSWCATOD 86
Psychology Board of Australia v Greco (2014) VCAT 940 (11
August 2014)
Pocock v Psychology Board of Australia (2014) ACAT 54 (13
August 2014)
Physiotherapy
Physiotherapy Board of Australia v Bharath Devadas