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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are applied by the Tribunal in determining whether to allow complaints against registered health practitioners to be withdrawn.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: 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