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VOLUME 3
ISSUE 1
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
January 2015
Inside This Issue
1
Welcome to Issue1 for 2015
1
Tribunal and Court Cases
1 medical
4 nursing and midwifery
5 pharmacy
8 physiotherapy
11 podiatry
12 psychology
14
Legislation
14
Podcasts
15
Hyperlinks
Highlights:
Page 3
Tribunal refuses application for
reregistration – Bahramy v Medical
Council of New South Wales
Page 10
Queensland Tribunal rejects complaint
of unprofessional conduct against
physiotherapist – states that treating the
patient rather than the referral letter is
not only credible, but entirely
appropriate – Physiotherapy Board of
Australia v Lazarus.
Page 11
Tribunal appalled by practitioner’s
conduct in harassing and intimidating
witnesses – HCCC v Bours
Page 14
The Law Report- Vexatious Litigants
Welcome to Issue 1 for 2015
For a number of reasons HPCA legal has been running a little behind
in producing Legal News over the last few months. We hope that the
matters that have resulted in that delay are now largely behind us
and that we can both quickly bring Legal News up-to-date and,
more importantly, resume producing it on a regular monthly basis.
This first edition for 2015 deals with reported cases from October 2014.
We expect to produce issue 2, dealing with cases from November
and December 2014, by the end of January and then Issue 3 dealing
with January cases by mid-February.
Of particular interest in this edition are a number of Tribunal cases
from both NSW and interstate dealing with the independent
professional obligations of registered pharmacists in the dispensing
and supply of medications and the exercise of independent
professional judgement concerning the appropriateness of supply.
Also of particular interest is the Radio National Law Report episode
on vexatious litigants.
Finally, although this did not occur in October, we would like to
extend our congratulations to The Hon A/Judge Jennifer Boland AM
who has been appointed as a Deputy President of Civil and
Administrative Tribunal of New South Wales (Occupational Division).
Tribunal and Court Cases
Medical
New South Wales
Ibrahim v Medical Board of Australia [2014] NSWCATOD 108
Mr Ibrahim appealed to the Tribunal against a decision of the Medical
Board of Australia to refuse him limited registration as a medical
practitioner so that he could practice in an area of need position. The
Board had made its decision on the basis that Mr Ibrahim did not meet
the relevant registration standards, and was unable to practise the
profession competently and safely.
Tribunal and Court Cases
The Tribunal dismissed the applicant’s appeal on the basis of failure to
meet the registration standards rather than competence. In doing so
the Tribunal said at paragraphs 53 and 54
In our view, cases of the present kind should ordinarily be
decided by reference to the ground which is least negative to
the applicant's next application for registration. ..
PAGE 2
LEGAL NEWS
A finding that a person is not 'suitable' is more appropriate to a
case where, in addition, there are character or personal fitness
issues of significance. This is not a case of that kind. Similarly a
finding that a person is unable to practise the profession
'competently or safely' carries a level of implied condemnation
that is perhaps not fair to a person in Mr Ibrahim's position ...
Ismail v Medical Council of NSW [2014] NSWCATOD 111
The practitioner appealed from a decision of the Medical Council of
NSW to impose conditions on her registration under s.150 of the Health
Practitioner Regulation National Law (NSW).
The appeal arose in essence from difficulties that the practitioner was
experiencing with the wording of one condition on her registration
relating to supervision. The practitioner and the Medical Council
agreed on appropriate wording. The Tribunal, having satisfied itself
that such a change in wording was in the public interest, modified the
conditions accordingly.
Health Care Complaints Commission v Osborne [2014] NSWCATOD 11
The Health Care Complaints Commission made complaints of
professional misconduct and unsatisfactory professional conduct
based on the practitioner's treatment of two nursing home patients
and her record keeping. Complaints were also made that the
practitioner suffered from an impairment and that she was not
competent to practice medicine although the complaint regarding
competence was not pressed before the Tribunal
The practitioner admitted the particulars of complaint one that she
prescribed excessive doses of morphine to each of the patients. The
Tribunal found her guilty of professional misconduct on that basis due
to a lack of knowledge skill or judgement although the Tribunal
expressly set out that the finding of professional misconduct was not
based on any finding of improper or unethical conduct. The Tribunal
also found the complaint of impairment proved.
The Tribunal did not find the complaint regarding the practitioner’s
record-keeping proved.
The Tribunal concluded that protection of the public required a six
month period of suspension, reasoning that it was necessary for the
Tribunal to mark out the seriousness of the practitioner’s conduct. The
Tribunal also imposed a range of conditions on the practitioner’s
registration that would take effect at the end of the period of
suspension when the practitioner’s registration revived.
Health Care Complaints Commission v Street [2014] NSWCATOD 124
Complaints of unsatisfactory professional conduct and professional
misconduct were made about the practitioner’s self-prescribing and
self-administration of schedule 8 drugs; falsifying prescriptions and
records; misleading investigators; and inadequate record-keeping. A
complaint was also made that the practitioner suffers from an
impairment.
A finding that a person
is not 'suitable' is more
appropriate to a case
where, in addition,
there are character or
personal fitness issues of
significance. This is not
a case of that kind.
Similarly a finding that a
person is unable to
practise the profession
'competently or safely'
carries a level of
implied condemnation
that is perhaps not fair
to a person in Mr
Ibrahim's position.
LEGAL NEWS
PAGE 3
The practitioner admitted all particulars of the complaints relating
to prescribing and self administration of drugs and his records. The
practitioner also admitted that his conduct amounted to
professional misconduct.
The Tribunal also found the complaint that the practitioner suffers
from an impairment was proven. The Tribunal identified that
impairment as a significant vulnerability to drug and alcohol
abuse originating in a continuing ADHD condition.
The objective of
protecting the health
and safety of the
public is not confined
to protecting the
patients or potential
patients of a particular
practitioner from the
continuing risk of his or
her malpractice or
incompetence. It
includes protecting the
public from the similar
misconduct or
incompetence of other
practitioners and
upholding public
confidence in the
standards of the
profession.
In considering appropriate orders the Tribunal made reference to
the decision of the Court of Appeal in HCCC v Do [2014] NSWCA
307 in which the Court said at paragraph 35
The objective of protecting the health and safety of the
public is not confined to protecting the patients or
potential patients of a particular practitioner from the
continuing risk of his or her malpractice or incompetence.
It includes protecting the public from the similar
misconduct or incompetence of other practitioners and
upholding public confidence in the standards of the
profession.
The Tribunal noted that the practitioner was not registered and
made an order noting that had he been registered it would have
cancelled his registration. The Tribunal set a period of 18 months
during which he may not apply for a review of that order.
Bahramy v Medical Council of New South Wales [2014]
NSWCATOD 116
Mr Bahramy applied to the Tribunal for an order that he be able to
be reregistered as a medical practitioner.
In 2003 the practitioner was found guilty of professional
misconduct based on complaints of inappropriate sexual conduct
with two patients. At that time conditions were imposed on his
registration. In 2008 Mr Bahramy was found guilty of further
complaints of professional misconduct based on incorrect
statements submitted with a request to be admitted to a specialist
training program. Mr Bahramy‘s registration was cancelled.
The Tribunal, in refusing Mr Bahramy’s application, said at
paragraph 137:
...we also found his evidence to be self-serving or at least
designed to minimise or excuse his inappropriate conduct
which has continued up to 2013. We were satisfied that
while he has an academic understanding of ethical
obligations, that understanding has not translated into
appropriate actions in the post 2008 period. Further, we
are satisfied, for the reasons discussed above, that he does
not currently display any real insight into the events which
brought him before the two previous Medical Tribunals, or
his conduct in respect of people, particularly professionals,
post those hearings. Nor did we find the applicant
demonstrated true remorse for the effect of his actions on
his victims.
PAGE 4
LEGAL NEWS
And at paragraph 139:
Our task, however, must be focused on the protection of
the public, and maintenance of high standards of
membership of the medical profession which carries with it
many privileges and benefits and also significant
responsibilities. At the present time we do not find that the
applicant has satisfied the onus to establish that he is of
good character and as such a fit and proper person to be
a registered medical practitioner.
The Tribunal went on to set a 2 year period during which a further
application cannot be made.
Nursing and Midwifery
New South Wales
Health Care Complaints Commission v Harley [2014] NSWCATOD
110
The Tribunal granted leave to the HCCC to withdraw a complaint
made about the practitioner on the basis that she had surrendered
her registration. In granting the order the Tribunal noted and followed
the earlier decision of the Tribunal in HCCC v Khan.
Health Care Complaints Commission v Marquinez [2014]
NSWCATOD 125
Complaints of unsatisfactory professional conduct and professional
misconduct were found proven based on 30 instances of false claims
for payment of nursing shifts of about $12,000 and breach of 4
conditions on the practitioner’s registration. The practitioner’s
ongoing drug use had left him with a substantial debt, which he
sought to satisfy by making the false claims.
The practitioner had been in the former Board and Council’s health
program twice and more recently in December 2012 he had returned
to the health program following ongoing problems with drug
addiction. The HCCC had also complained that the practitioner was
“otherwise” not a suitable person to be registered as a nurse based
on the same conduct. Although this ground was not found proven in
that there was no new conduct to ground the complaint the Tribunal
did find that the information provided about that complaint was
relevant to the determination of protective orders.
The Tribunal found that the proven conduct required cancellation of
the practitioner’s registration. The practitioner had over a period of
time and in various Board/Council processes tailored accounts of his
drug use based on self- interest. He had failed to take responsibility
for his health issues and had failed to attend the hearing and give
evidence. Given the need for a substantial period of rehabilitation
and time to develop insight the Tribunal set a period of two years
during which he may not apply for a review of the cancellation order.
Our task, however,
must be focused on the
protection of the
public, and
maintenance of high
standards of
membership of the
medical profession
which carries with it
many privileges and
benefits and also
significant
responsibilities.
LEGAL NEWS
PAGE 5
Interstate
Jurisic v Nursing and Midwifery Board of Australia (Review and
Regulation) [2014] VCAT 1232 (3 October 2014)
The applicant appealed the decision of the Victorian State Board
of the Nursing and Midwifery Board of Australia to refuse her
application for registration as an enrolled nurse on the basis that
she had failed to meet the English language registration standard.
Although an Australian citizen the applicant’s schooling had
occurred in Serbia. She had returned to Australia in 1995 and
worked as a translator, had undertaken vocational training
courses and had completed certificate IV in nursing (enrolled
Division 2) at Ballarat University. She did not meet the OET and IELTS
standards prescribed by the Board’s English language registration
standard.
The Tribunal considered the following factors:
…given that the
decision appealed
against was a State
Board decision and
that the State Board
has no power to
consider exemptions to
the registration
standard, the Tribunal
was not in a position to
consider whether the
applicant’s
circumstances
attracted an
exemption.
a. the applicant’s proficiency in the English language in her
work as a Serbian/English translator for the Australian
Federal Police and other English language
testing/assessment she had undertaken;
b. the National Board’s power to grant an exemption of the
registration standard in certain circumstances, where there
is compelling evidence demonstrating English language
proficiency to a standard equivalent to that required by
the registration standard;
c.
that the delegations from National Board to State Board
do not include the power for the State Board to consider
exemptions to the English language registration standard.
The State Board‘s delegation was to decide whether to
grant or refuse registration because the application does
not meet a requirement in an approved registration
standard s. 82(1)(c)(i)(E).
Whilst understanding the frustration of the applicant, given that
the decision appealed against was a State Board decision and
that the State Board has no power to consider exemptions to the
registration standard, the Tribunal was not in a position to consider
whether the applicant’s circumstances attracted an exemption.
The Tribunal upheld the State Board’s decision and suggested that
the State Board consider referring the matter to the National
Board to consider an exemption.
Pharmacy
New South Wales
Health Care Complaints Commission v Sedrak [2014] NSWCATOD
114
In stage 1 of these proceedings the HCCC prosecuted complaints
of unsatisfactory professional conduct and professional
misconduct which concerned contraventions of the relevant NSW
Poisons legislation; the practitioner’s dispensing and management
of anabolic steroids and other drugs capable of abuse by
bodybuilders; and the supply of hypnotic sedatives. The
PAGE 6
LEGAL NEWS
particulars were largely admitted by the practitioner. The Tribunal
found the complaints proven.
At the time the conduct occurred the experienced practitioner
was a compounding pharmacist and the owner of a
compounding pharmacy business. The practitioner had a prior
disciplinary history with the former Pharmacy Board of NSW.
A substantial portion of the work undertaken at the pharmacy
came from one medical practitioner with whom the pharmacist
had a close personal and professional relationship. That medical
practitioner had been the subject of disciplinary proceedings and
did not have the requisite authority to prescribe
anabolic/androgenic steroids. The pharmacist became aware of
this but continued to dispense the unauthorised drugs using a
“card” system to circumvent the lack of authority.
In response to an argument than the pharmacist had a lesser role
than the medical practitioner in the supply of such drugs, the
Tribunal reinforced the independent professional obligations of the
dispensing pharmacist, making the following comments:
There was some suggestion that as a pharmacist's conduct
is but consequential to that of the prescribing doctor, the
pharmacist's responsibility is less. This was to misrepresent
and diminish the critical role of the pharmacist. Their role is
to make independent judgments in the interests of the
patient. The pharmacist's role includes checking the
legality, appropriateness, and safety of any prescription.
Routine work of a pharmacist includes the application of
their knowledge and expertise. Concerns about a
prescription should be raised with the prescribing doctor
and this intervention noted. [para 16]
The Tribunal was also critical of the practitioner’s evidence, which
it found to be unsatisfactory and lacking credibility, consistency
and corroboration by way of records or third party statements. The
Tribunal found the complaints of unsatisfactory professional
conduct and professional misconduct proven and made orders
regarding a stage 2 hearing to consider protective orders.
Health Care Complaints Commission v Nguyen [2014] NSWCATOD
123
Complaints of unsatisfactory professional conduct and
professional misconduct based on contraventions of the NSW
Poisons legislation over a period of two years were made against
the practitioner and were admitted. At the relevant time the
practitioner was a pharmacy owner. The relevant contraventions
came to light after an investigation by the NSW Police Drug Squad
and the Pharmaceutical Services Unit of NSW Health.
The contraventions involved the supply of 47,888 packets of
pseudoephedrine (PSE) products and a failure to record such
supply; the supply of steroids to a patient over a 6 month period
without a valid prescription and the supply of
In response to an
argument than the
pharmacist had a
lesser role than the
medical practitioner in
the supply of such
drugs, the Tribunal
reinforced the
independent
professional obligations
of the dispensing
pharmacist,
LEGAL NEWS
PAGE 7
anabolic/androgenic steroids to unknown persons without valid
prescriptions. These supplies were made in circumstances where
the practitioner knew or ought to have known that such
medications were subject to abuse and misuse and in the case of
PSE that such products were precursor substances in the illegal
manufacture of methamphetamine.
A registered
pharmacist cannot
remain silent and
inactive, when access
to such notorious and
potentially harmful,
medications is sought
or granted (under
threat of harm) to
those intent on misusing
and abusing them. To
do so, ignores a
registered pharmacist's
paramount obligation
to protect the
community the
profession serves, as
custodians of
potentially harmful
medicines.
The pharmacist admitted that he was aware of the misuse and
abuse of these medications, but claimed that he was fearful of
the consequences if he refused supply or if he notified the Police.
He did not inform his wife who was a pharmacist and coproprietor and he did not inform the Pharmaceutical Services Unit
of NSW Health of his concerns. In relation to the PSE supply he
indicated that the requests were generally made by telephone.
He would then place a corresponding order with the wholesaler.
The products were collected from the pharmacy when the
pharmacist was alone and paid for in cash.
The pharmacist was unrepresented before the Tribunal. He had
already sold the pharmacy by the time of the hearing. The
Tribunal found the complaints proven and cancelled the
pharmacist’s registration. The Tribunal was critical of the
pharmacist’s failure to take any steps over a substantial period of
time to report the illegal supply of these medications, which are
known to be capable of misuse and abuse saying:
A registered pharmacist cannot remain silent and inactive,
when access to such notorious and potentially harmful,
medications is sought or granted (under threat of harm) to
those intent on misusing and abusing them. To do so,
ignores a registered pharmacist's paramount obligation to
protect the community the profession serves, as custodians
of potentially harmful medicines. [para 112].
Interstate
Pharmacy Board of Australia v Ciriello [2014] QCAT 459
The complaints of unprofessional conduct and professional
misconduct concerned contraventions of the Queensland Poisons
legislation regarding the failure to keep proper records for the
management of pseudoephedrine (PSE) products and to assess
the therapeutic need of persons whom the practitioner supplied
with PSE products. The practitioner was a pharmacy owner and
the genesis of the complaint was an audit of the pharmacy
dispensing records by the Queensland Health Department. As a
result of the audit the practitioner’s endorsement regarding all
Schedule 4, Schedule 2 and Schedule 3 drugs containing PSE was
cancelled for a period of 12 months.
The evidence indicated that the practitioner had dispensed
multiple packets of PSE on prescriptions to customers in
circumstances where other pharmacies had denied the supply.
The supplies had been in excess of therapeutic need and the
practitioner had failed to keep accurate records regarding such
products. The Tribunal was critical of the practitioner’s
PAGE 8
LEGAL NEWS
“misguided” understanding about his professional obligation i.e.
not to cease the supply of prescribed medications without the
prescribing medical practitioner’s consent because of serious
implications for the patient, saying:
..this belief seems to fundamentally misunderstand the
responsibility of the pharmacist in the dispensing of
medication. [para 27]
and
Of course, it remains the obligation of a pharmacist to not
simply dispense in accordance with the prescription, but to
assess the therapeutic need of the patient for whatever
medication it is which is being dispensed at the time. [para
42]
The protective orders made were those agreed by the parties,
which the Tribunal adopted because they fell within the
reasonable range of outcomes for a case of this nature. Those
protective orders included a suspension for 2 months and the
subsequent imposition of conditions on registration for one year
including mentoring, reporting, notifying current and future
employers of the conditions and being precluded from applying
for a reinstatement of his unrestricted endorsement for PSE
products for two years. The practitioner was also ordered to pay
the Board’s costs.
Physiotherapy
Interstate
Physiotherapists Board of Australia v Dopson [2014] QCAT 458
The complaint of unsatisfactory professional conduct concerned
the practitioner’s failure to meet clinical performance standards,
the practitioner’s competence and other a range of other
conduct issues. The judgment was delivered ex tempore in August
2014. The practitioner was self- represented at the hearing and
had opted for the matter to be dealt with by QCAT rather than by
the National Board’s disciplinary committee. This election was
taken into account by the Tribunal in determining the question of
costs.
When the practitioner left his position with Queensland Health in
2009 there were outstanding workplace disciplinary processes
regarding his performance. Subsequently he had undergone a
number of performance assessments in different practice settings
and locations. Those assessments had identified deficiencies in
meeting entry level requirements. Later assessments and review
had identified a need for focused supervised practice and further
assessment. The complaint before the Tribunal also included
conduct involving the taping a patient’s finger in an obscene
gesture and giving colleagues and a patient’s relative massages.
He admitted this conduct but showed no insight into his
professional shortcomings and need for improvement. The
practitioner believed that the assessors had set him up to fail and
that portions of their reports had been fabricated.
Of course, it remains
the obligation of a
pharmacist to not
simply dispense in
accordance with the
prescription, but to
assess the therapeutic
need of the patient for
whatever medication it
is which is being
dispensed at the time.
LEGAL NEWS
PAGE 9
The Tribunal found that the assessments were not inaccurate or
deliberately falsified. The Tribunal found the unsatisfactory
professional conduct complaint proven in that the conduct
amounted to a lack of adequate knowledge, skill and judgment
in the practice of physiotherapy but did not demonstrate
incompetence or warrant a reprimand.
The Tribunal determined to place a number of conditions on the
practitioner’s registration predicated upon him undergoing an
independent assessment in the musculoskeletal and cardiorespiratory areas before he resumed practice. The conditions
provided that if the practitioner did not meet entry level
requirements then he was restricted to supervised practice with
further assessments of his performance to occur. There was also a
requirement for the practitioner to notify a range of persons,
including employers of these conditions.
Because the Board was successful in circumstances where the
practitioner had put the Board to additional and unnecessary
expense by electing to have the matter referred to the Tribunal,
when it could have been dealt with by a Committee, the Tribunal
ordered the practitioner to pay the Board’s costs.
...the
physiotherapist/patient
relationship is attended
by physical intimacy
and is open for
exploitation by the
practitioner. The
imbalance and
position of advantage
of a physiotherapist in
relation to a patient in
this area is quite
obvious..
Physiotherapy Board of Australia v Browning [2014] QCAT 509 (17
October 2014)
The complaint of professional misconduct concerned boundary
issues. The physiotherapist had entered into a sexual relationship
with a patient before ending his professional relationship. The
sexual relationship had lasted 14 months and included a period of
cohabitation at the practitioner’s home. The practitioner had no
prior disciplinary history or conditions on his registration. The
complaint was largely admitted by the practitioner and joint
submissions were made as to protective orders.
In determining appropriate protective orders the Tribunal had
regard to boundary violations by medical practitioners and the
Physiotherapy Board of Australia’s Code of Conduct:
..the physiotherapist/patient relationship is attended by
physical intimacy and is open for exploitation by the
practitioner. The imbalance and position of advantage of
a physiotherapist in relation to a patient in this area is quite
obvious..[para 20 & 21]
The aspect of general deterrence remains an important
one in cases of this kind in all branches of health
practitioners. [para 25]
The Tribunal found the complaint proven and imposed a
reprimand, a suspension from practice for two months, the
imposition of “burdensome” conditions requiring completion of a
suitable course of education addressing boundary management
issues, mentoring for 12 months after resumption of practice, and
payment of the Board's costs, fixed at $14,000.
PAGE 10
LEGAL NEWS
Physiotherapy Board of Australia v Lazarus [2014] QCAT 477 (24
September 2014)
Complaints of unsatisfactory professional conduct and
professional conduct were made against the practitioner based
on allegations of sexual misconduct during the course of
consultations with one patient in 2009 and that his records
including assessment and clinical reasoning were inadequate or
below the standard expected. The Tribunal did not find any of the
allegations proven and dismissed the complaint.
The practitioner was working at a hospital physiotherapy
department at that time. The patient had been referred for
physiotherapy treatment by her general practitioner following a
dislocation of her right knee patella and scoliosis of the cervical
spine.
The Tribunal viewed the allegations as being very serious but found
that the complainant’s evidence was factually inconsistent and
lacked credibility given the clinical treatment documented by the
practitioner. The Board had been critical as the practitioner
treated the patient other than in accordance with the referral
letter. The Tribunal did not agree:
The Board contends that the concentration, or focus, by
Mr Lazarus of his treatment upon the lower back of the
patient was inappropriate given the matters for which she
was referred for treatment. It contends that this
inappropriate focus was to facilitate his being able to have
his hands in that region of her body so as to misconduct
himself in the manner alleged. I do not accept those
contentions.
Mr Lazarus says that he was trained to treat the patient not
the referral letter. That seems not only credible, but entirely
appropriate. A patient may disclose information on
presentation which could render inappropriate the
treatment which might otherwise have been given on the
information contained in the referral. From the outset, the
patient gave a history of back problems. Back problems
were evident from the first consultation. Between the first
and second consultations the patient had suffered a
further fall on a hard surface and landed on her
back.[paras 100 & 101]
With respect to the clinical records aspects of the complaint each
party relied on expert evidence as to the appropriate standards.
The Tribunal found the practitioner’s expert more measured in his
views about the standard of the practitioner’s records, which took
into account the circumstances in which the practitioner worked.
Interestingly, the lack of recording informed consent was not an
issue for the practitioner’s expert because in practice this was
often not documented.
Mr Lazarus says that he
was trained to treat the
patient not the referral
letter. That seems not
only credible, but
entirely appropriate.
LEGAL NEWS
PAGE 11
Podiatry
New South Wales
Health Care Complaints Commission v Bours (No 1) [2014]
NSWCATOD 113
This was the first stage hearing of complaints of unsatisfactory
professional conduct and professional misconduct involving a
podiatric surgeon in private practice. There was no substantive
admission of the 42 particulars of the complaint by the
practitioner. The practitioner had interim conditions imposed on his
practice by the Podiatry Council regarding review of consent
processes, disclosing information to potential patients for minimally
invasive surgery and 6 monthly practice audits
The Tribunal was also
strongly critical of the
practitioner’s conduct
in receiving and
prescribing scheduled
poisons illegally, which
conduct was
aggravated by his lack
insight into the
seriousness of this
conduct and a lack of
contrition. Instead the
practitioner had sought
to rationalise his
conduct based on
“spurious”
interpretations of the
Poisons legislation.
The complaints dealt with consent issues and the provision of
information to patients; clinical concerns and the standard of
post-operative care and advice; the illegal possession and supply
of restricted substances; and improper or unethical conduct in
making/sending threatening calls and text messages to the
HCCC’s expert witness. The Tribunal found these particulars proven
and that they amounted to unsatisfactory professional conduct
and professional misconduct.
The practitioner objected to the Commission’s reliance on expert
reports from orthopaedic surgeons, which had been obtained for
the purpose of proceedings under the Civil Liability Act. The
Tribunal took the view that the reports were admissible and of
assistance and that the reports should not be excluded on the
basis of their origin because the Tribunal could give appropriate
weight to them.
The practitioner also took objection to the composition of the
Tribunal hearing panel indicating that the professional members
should be his peers i.e. podiatric surgeons. The Tribunal rejected
that argument and reasoned:
In this situation there is a very small pool of potential
persons who could be podiatric surgeon representatives
on the Tribunal. On one view the issues of familiarity and
potential for actual or apprehended bias outweigh the
benefit of having podiatric surgeons on the Tribunal. [para
38]
The Tribunal found that although he was highly experienced, the
practitioner had failed to convey to his patients a “realistic view of
the complications of surgery, particularly when they can have
such a devastating effect of health and lifestyle…”
The Tribunal was also strongly critical of the practitioner’s conduct
in receiving and prescribing scheduled poisons illegally, which
conduct was aggravated by his lack insight into the seriousness of
this conduct and a lack of contrition. Instead the practitioner had
sought to rationalise his conduct based on “spurious”
interpretations of the Poisons legislation. Finally, the Tribunal was
also “appalled” by the practitioner’s conduct in harassing and
intimidating the Commission’s expert witness and attempting to
PAGE 12
LEGAL NEWS
justify this behaviour.
A further hearing as to protective orders has been held and the
decision is pending.
Interstate
Podiatry Board of Australia -v- Terence Williams (Ref No 3/2014)
[2014] TASHPT 5
The Board made a complaint of professional misconduct against
the practitioner based on a conviction for aggravated sexual
assault in November 2011. Subsequently, the practitioner‘s
registration had been suspended.
The application was made to the Tribunal in February 2014 and
dealt with by way of written submissions. At the time of the
application the practitioner’s registration had lapsed. The
circumstances of the assault involved performing a rectal
examination in the guise of practising podiatry. Unsurprisingly, the
Tribunal found that there was no legitimate clinical reason for such
examination in the practice of podiatry and that such behaviour
amounted to professional misconduct.
In terms of a sanction, interestingly although the practitioner was
not registered, the Tribunal cancelled the practitioner’s registration
and ordered that he be disqualified from seeking registration for a
period of 3 years. That 3 year period dated from the initial
suspension date in November 2011.
Psychology
Interstate
West v Psychology Board of Australia [2014] QCAT 472
The appellant was appealing the Board decision to refuse his
application for provisional registration as a psychologist. He was
self-represented at the hearing. He had been an Australian
resident for 30 years and was undertaking qualifications in
psychology. The Tribunal reviewed the registration standards and
guidelines for a provisional psychologist which involved identifying
particular work roles for supervised practice and the content of
the supervised practice program to be undertaken.
The Tribunal considered the information lodged in support of the
appellant’s application and found that it did not comply with the
guidelines for registration as a provisional psychologist and
therefore with the registration standard. The Tribunal was of the
view that such deficits could not be addressed by the imposition
of conditions. Accordingly, the Tribunal refused the application for
registration as a provisional psychologist.
Psychology Board of Australia v Wakelin [2014] QCAT 516 (16
October 2014)
The application was dealt with on the papers and involved a
complaint of professional misconduct based on the respondent’s
sexual relationship with a patient. The relevant ethical obligation
(The Australian Psychological Society Code of Ethics) required:
…the Tribunal was also
“appalled” by the
practitioner’s conduct
in harassing and
intimidating the
Commission’s expert
witness and attempting
to justify this behaviour
LEGAL NEWS
PAGE 13
a. a period of 2 years before a practitioner could engage
in sexual activity with a patient, and
b. that the practitioner engage with a senior psychologist
beforehand as to whether the former client may be
vulnerable and encourage them to seek independent
counseling.
The respondent had failed to satisfy these ethical obligations.
The professional relationship with the patient was ceased within
one month of the sexual relationship commencing. The patient’s
former partner complained to AHPRA. Initially, when responding to
the complaint the respondent had denied the sexual relationship
and had forwarded an affidavit by the patient in support of her
stance to AHPRA. The respondent subsequently recanted and
admitted the professional misconduct. The respondent had given
a voluntary undertaking not to practice, had engaged in
counseling and was no longer registered as a psychologist.
The Tribunal was highly critical of the respondent’s dishonesty
during the AHPRA investigation saying:
The respondent's
dishonest responses to
AHPRA in the course of
the investigation is in
some respects an even
more serious reflection
on her character and
the sexual
transgression.
The respondent's dishonest responses to AHPRA in the
course of the investigation is in some respects an even
more serious reflection on her character and the sexual
transgression. The character revealed by a practitioner's
actions is obviously a matter with which any disciplinary
body must be concerned. She was prepared to
misrepresent the truth to the professional body, and made
unsuccessful attempts to cover up her actions. [para 21]
The importance of deterrence of practitioners from any
form of deceit in their dealings with their Professional Board
deserves emphasis. The Board has limited resources and
needs to be able to trust the responses of its practitioners
who have a duty to deal with their professional association
in good faith. Practitioners must know that serious
consequences will follow if they flout that duty, and that
sanctions for such conduct may well exceed that which
will be imposed in this particular case. [para 27]
In considering appropriate protective orders, the Tribunal noted
that although the parties had proposed a range of draft orders
including suspension and practice conditions, there was no power
to order suspension or impose conditions because the respondent
was no longer registered as a psychologist. The Tribunal made a
finding of professional misconduct, reprimanded the practitioner
and disqualified her from applying for registration until 28 February
2015.
1.
PAGE 14
Legislation
Public Health Amendment (Viral Haemorrhagic Fevers) Order 2014 [NSW]
This Order amends the Public Health Act 2010 to add viral haemorraghic
fevers to the list of medical conditions in Schedule 1 to that Act:
(a) that must be notified by medical practitioners to the Secretary of the
Ministry of Health, and
(b) for which the Secretary of the Ministry of Health may direct a person to
undergo medical examination, and
(c) for which an authorised medical practitioner may make a public health
order.
Podcasts
Law Report – Vexatious Litigants
Vexatious Litigants - people who repeatedly commence unmeritorious or
frivolous court cases.
Why do they do it? What impact do they have? How should the legal system
respond?
Includes discussion from psychiatrist Grant Lester and legal academic
Professor Tania Sourdin.
Listen to the podcast here.
LEGAL NEWS
LEGAL NEWS
PAGE 15
Hyperlinks
Medical
Ibrahim v Medical Board of Australia [2014] NSWCATOD 108
Ismail v Medical Council of NSW [2014] NSWCATOD 111
Health Care Complaints Commission v Osborne [2014] NSWCATOD 11
Health Care Complaints Commission v Street [2014] NSWCATOD 124
Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116
Nursing and Midwifery
Health Care Complaints Commission v Harley [2014] NSWCATOD 110
Health Care Complaints Commission v Marquinez [2014] NSWCATOD 125
Jurisic v Nursing and Midwifery Board of Australia (Review and Regulation) [2014]
VCAT 1232 (3 October 2014)
Pharmacy
Health Care Complaints Commission v Sedrak [2014] NSWCATOD 114
Health Care Complaints Commission v Nguyen [2014] NSWCATOD 123
Pharmacy Board of Australia v Ciriello [2014] QCAT 459
Physiotherapy
Physiotherapists Board of Australia v Dopson [2014] QCAT 458
Physiotherapy Board of Australia v Browning [2014] QCAT 509 (17 October 2014)
Physiotherapy Board of Australia v Lazarus [2014] QCAT 477 (24 September 2014)
Podiatry
Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113
Podiatry Board of Australia -v- Terence Williams (Ref No 3/2014) [2014] TASHPT 5
Psychology
West v Psychology Board of Australia [2014] QCAT 472
Psychology Board of Australia v Wakelin [2014] QCAT 516 (16 October 2014)
Legislation
Public Health Amendment (Viral Haemorrhagic Fevers) Order 2014 [NSW]
Podcast
Law Report – Vexatious Litigants