Dr Lindsay v The Medical Board of NSW

[2008] NSWMT 1

New South Wales

Medical Tribunal

CITATION:	Dr Lindsay v The Medical Board of NSW [2008] NSWMT 1
TRIBUNAL:	Medical Tribunal
PARTIES:	Dr David Charles Lindsay The Medical Board of New South Wales
FILE NUMBER(S):	40023 of 2007
CORAM:	Ainslie-Wallace, DCJ - Wright, Dr J M - Spark, Dr R - Smith, Mr RJ -
CATCHWORDS:	Impairment - Tribunal must determine whether action is necessary to protect the life, physical or mental health of any person
LEGISLATION CITED:	Medical Practice Act 1992, s66 & s95
CASES CITED:
DATES OF HEARING:	2.4.2008 to 4.4.2008
DATE OF JUDGMENT:	15 April 2008
LEGAL REPRESENTATIVES:	P Bruckner of Counsel I Bourke of Counsel
ORDERS:	The Tribunal dismisses the appeal and confirms the suspension of 12.2.1008.; appellant to pay the respindent's costs.

JUDGMENT:

THE MEDICAL TRIBUNAL Tuesday 15th April 2008

OF NEW SOUTH WALES

AT SYDNEY

No. 40023 of 2007

BETWEEN

David Charles Lindsay

Appellant

The Medical Board of NSW

Respondent

Deputy Chair: Judge A M Ainslie-Wallace

Members: Dr J M Wright

Dr R Spark

Mr R Smith

Orders and Reasons for Determination

Order:

Pursuant to Clause 6 of Schedule 2 to the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the names of the patients referred to in the proceedings.

Introduction:

1 On 14th December 2007 an Inquiry was conducted pursuant to section 66 of the Medical Practice Act 1992 (the Act). The delegates to the Inquiry determined that it was necessary to take action under section 66 and the appellant's right to practise medicine was suspended for 8 weeks from the 19th December 2007. On 8th February 2008, the Chairman of the Medical Tribunal approved an extension of the period of suspension for a further period of 8 weeks until 8th April 2008.

2 The appellant, Dr Lindsay, appeals to the Medical Tribunal (the Tribunal) against the suspension of his right to practise. The appeal is expressed to be both in relation to the suspension imposed by the Medical Board and the extension of that period approved by the Chairman of the Tribunal.

3 Section 66 of the Act is in the following terms:

(1) The board must if at any time it is satisfied that such action is necessary for the purpose of protecting the life or the physical or mental health of any person:
(a) by order suspend the registered medical practitioner from practising medicine for such period (not exceeding eight weeks) as is specified in the order; or
(c) impose on a registered medical practitioner's registration such conditions, relating to the appellant's practising medicine as it considers appropriate."

4 There is a right of appeal to the Tribunal against suspension or conditions imposed consequent on a Section 66 Inquiry.[1] On an appeal, the Tribunal may terminate, vary or confirm the period of suspension or revoke, vary or confirm the conditions imposed by the Board.[2] The lodging of an appeal does not act as a stay of the suspension or conditions imposed.

5 The information considered by the Tribunal on the appeal consisted of the material which was before the Section 66 Inquiry and evidence filed by the appellant and the respondent. The appellant gave evidence and was cross-examined before the Tribunal.

6 At the conclusion of the hearing the Tribunal dismissed the appeal, confirmed the suspension of the appellant's right to practise and ordered the appellant to pay the costs of the appeal. These are the reasons for that determination.

Background

7 The appellant is aged 42. He was born on 20th September 1965. He was first registered to practise medicine in NSW on 28th December 1988. From 1996 the appellant has worked in his own practice the "Sydney Skin Cancer Centre" where his practice is solely related to the examination for and treatment of skin cancers. The appellant is the only medical practitioner working at that centre.

8 On 3rd February 1993 the appellant was registered in the General Category with no conditions. After working with another doctor in a skin cancer clinic, the appellant started his own practice in December 1996. In July 1998 he had conditions imposed on his registration after a hearing by the Impaired Registrants Panel. Those conditions included that he attend for treatment by a psychiatrist and attend a Board nominated psychiatrist. In December 1998 the appellant was registered to practise without conditions.

9 From July 2001 the appellant's registration has been subject to various conditions. On 23rd July 2001 the Professional Standards Committee of the Medical Board found the appellant guilty of unsatisfactory professional conduct and consequently conditions were imposed on his registration which required him to be subject to audit in relation to his surgical procedure records, medical records and inspection of his professional premises. The appellant appealed that decision and the conditions were confirmed by the Medical Tribunal.

10 On 12th August 2004 the appellant was found guilty of unsatisfactory professional conduct by the Medical Tribunal. The Tribunal imposed conditions on the appellant's registration which required an audit of his medical records and that he accept "level 3" supervision to "provide support and to monitor Dr Lindsay's capacity to practise medicine safely". The appellant appealed to the Court of Appeal which determined the matter on 8th November 2005. The appeal was partially successful. The finding of unsatisfactory professional conduct was confirmed and the appellant was subject to a severe reprimand in relation to his disregard of his obligations to maintain proper records. The conditions were varied to require him to accept supervision to support and monitor his medical record keeping and to submit himself to a random audit of his medical records.

11 The appellant is presently subject to a complaint brought by the Health Care Complaints Commission (the HCCC) which relates to the appellant's alleged treatment of 25 patients. The complaint contains further allegations relating to the appellant's conduct in relation to 5 professional colleagues and to 2 people who worked with other doctors. It is estimated that the hearing of the complaint will take 12 weeks and it is fixed to commence on 28th April 2008.

12 On the appeal this Tribunal had before it a further 3 complaints from patients Ms L, Ms T and Ms Th which will not form part of the matters considered by the Medical Tribunal in April.

13 The complaint to be determined at the hearing on 28th April 2008 alleges that Dr Lindsay's skill, judgment and care fall below that reasonably expected of a practitioner of an equivalent level of training or experience, that he has engaged in improper or unethical conduct relating to the practice of medicine, that he has breached the Medical Practice Act, is not of good character, suffers from an impairment and that he failed to maintain proper records in accordance with his obligations.

14 The Tribunal understands that each and every particular of the complaint is disputed and will be subject to contest at the hearing of the complaints on 28th April 2008. Equally, the allegations of patients Ms L, Ms T and Ms Th were denied and are disputed.

Appeal to the Medical Tribunal

15 It was common ground that the nature of the appeal to the Tribunal is a hearing de novo. The Tribunal is not bound by the rules of law governing the admissibility of evidence and may conduct the appeal as it thinks fit.

16 The terms of section 66 make it clear that the inquiry with which the Tribunal is concerned is to determine whether it is necessary to protect the life, mental or physical health of any person to take a form of interim action. The very nature of the inquiry means that circumstances in which it is held may not allow the Tribunal to make final findings of facts nor could all of the evidence be subject to rigorous challenge. Clearly that will be the province of the Medical Tribunal after the hearing on the complaint. The information on which the appeal was conducted was therefore circumscribed.

17 In determining the appeal, the Tribunal must determine whether action is necessary to protect the life, physical or mental health of any person. Given the nature of the Tribunal's inquiry on the appeal, the focus of the evidence was the complaints relating to the appellant's conduct with patients and the question of whether the appellant may be impaired.

Nature of the complaints

18 On their face, there are discernible similarities in the particulars of the complaint. In relation to a significant number of particulars, the patient has alleged that the appellant made insulting, rude and derogatory remarks to them, told them to get out of the rooms, threatened to call the police and in several cases followed the threat with a solicitor's letter threatening further action. In one case the threat was to take out an Apprehended Violence Order, in two other cases the appellant took private criminal proceedings against patients for trespass.

19 The particulars in relation to several patients (P, Q, R, S, X and Y) allege that because of the appellant's insulting remarks each declined to continue the examination. In relation to one patient, S, a child this refusal was in the face of the appellant informing S's mother that S had a mole on his face which needed to be removed.

20 The complaint alleges that in relation to some patients the appellant continued to treat a patient over the patient's objections (U, W,) without first explaining the treatment to be administered or warning that it might cause pain (T, U, W, G, I and K, Ms T, Ms Th).

21 A number of patients allege that after being kept waiting for examination, when they remonstrated with the appellant or questioned the delay were told to go, told that the police would be called, told to find another doctor and that the appellant refused to treat the patient. (Z, A, B, C) Patient Ms L, after waiting about 1/2 hour for an appointment indicated that she had to leave. She alleges that the appellant said "I don't want to see you anyway get out" and treated her aggressively and intimidatingly when she asked for the return of her Medicare card.

22 Patient F questioned the appellant's manner and as a result alleges that he treated her aggressively and abusively and told her that she had a suspicious mole on her but would not inform her of where it was. She alleges that the appellant claimed that she had been sent to him by another medical appellant to cause him trouble and refused to remove sutures that he had inserted following the earlier removal of a melanoma.

23 In relation to a significant number of patients who complained to the appellant or indicated that they wished to complain, the appellant made a notation on their medical records to the effect that they had a psychiatric condition.

24 Patients T and I complained that despite repeated requests for copies of pathology reports, the appellant refused to provide them. In relation to patient J, it is alleged that the appellant did not inform him that pathology tests revealed that he had skin cancer.

25 Patient K alleged that she attended the appellant to have sun spots removed and in one consultation, he proceeded to treat some 250 spots by cryotherapy and when she told him to stop because of the discomfort and distress she was experiencing, he continued treatment.

The Appellant's Response.

26 As part of the material before the tribunal, the appellant's solicitor filed an affidavit which annexed his letters containing the appellant's response to the complaint. (For ease of reference, the Tribunal will refer to these letters as "the appellant's response") The appellant filed an affidavit and also gave evidence on the appeal. The appellant's affidavit annexed many of the same documents as were included in his solicitor's affidavit, principally the solicitor's letters based on the appellant's response to the complaint. The appellant also filed two folders of documents and submissions which were not relied on in the appeal, save for one document [3] which will be considered later in these reasons.

27 In his responses and in his evidence, the appellant spoke of being "abused" by clients and that it was in the face of continued abuse he had asked them to leave the practice. For example, in relation to patients N and P, the appellant noted that both "abused" him and when he asked for their Medicare cards the abuse continued to the extent that he asked them to leave. In his response the appellant noted that there appeared to be some complicity between the two patients in making the complaints. He dismissed the patient's assertions that one felt "violated" (patient N) and had "lost confidence" and was "relieved" that the appointment did not go ahead (patient P) because it was they who were angry and their feelings were unrelated to his treatment of them.

28 Patient Q did not like the advice the appellant had given him and "stormed out". The appellant noted that after receiving advice as to how often he should have a skin examination, the patient became abusive and argumentative. The appellant said that Patient Q's conduct was such that he had his solicitor write to the patient and warn him that if he made further contact, the appellant may take out an Apprehended Violence Order. As to Patient Q's allegations that the appellant had no interest in the patient's family history of melanoma, the appellant said that there were no "documents that qualify this complainant to give any expert medical opinions".

29 Patient U had been observed by the appellant to be "uncooperative and irritable" before and during the consultation. Patient V had HIV and according to the appellant "did not like being told his Bells Palsy had resolved" and on being so informed "went ballistic". Patient X was rude and was asked to leave, Patient W was offended when the appellant refused his request for an insurance report and became "abusive" and was asked to leave the premises.

30 The appellant denied that he had failed to advise or warn patients of the treatment about to be delivered or that he had continued to treat a patient when consent had been withdrawn.

31 In his evidence to the Tribunal, the appellant was asked whether it is possible that his behaviour with patients may have contributed to some of the complaints. He said: "No, not at all. The incidents happened and were provoked and started every time by the patient." [4] The appellant said of himself that: "I'm actually a well-mannered, polite individual and a very calm individual".[5] The appellant said that when patients abused him and have screamed at him he has been "firm" and has lifted the volume of his voice. The appellant did not accept that he had been rude, aggressive or intimidating. He denied ever shouting at a patient or swearing. On many occasions during his evidence, the appellant referred to himself as being a nice person.

32 He was asked to reflect on why patients complained that he was rude, aggressive and intimidating. The appellant gave a number of possible explanations. He said that a lot of patients use the same words in the complaint and suggested that perhaps this had been "encouraged and facilitated by the HCCC". [6] Another possibility related to the patient's perceptions not being normal,[7] "a state of mind, baseline personality, background personality disorder",[8] the patient could be having a terrible day or the patient might have a severe personality disorder.[9] In no explanation did the appellant consider that he had contributed by his behaviour to the complaints by the patients.

33 At a number of points in his evidence the appellant referred to dealing with difficult or violent patients and it is clear to the Tribunal that the appellant applied that term to the complainant patients. He said that over the years he had discussed his handling of difficult patients with others, in particular he said that he had discussed it with a psychiatrist who told him that the appellant was doing exactly what he, the psychiatrist would do. It was clear to the Tribunal that the appellant did not regard his interactions with his patients to have been deficient.

34 The appellant's confidence that he had not acted in a way to give rise to the complaints was supported by what he referred to as a "debrief" process in which he asks his staff after an incident, "what was that all about, what did we do, did we do anything wrong?" He said this process was an attempt to find out whether he could do anything better and was part of being a "normal decent human being".[10] The appellant did not say that at any time either his reception staff or his mother who works with him has indicated to him during such a "debrief" that he had done anything wrong.

35 During his evidence the appellant said that he was prepared to accept advice and counselling with a psychiatrist to discuss how to deal with violent or difficult patients.

36 In their reasons for determination, the delegates on the Section 66 Inquiry observed that the appellant lacked skill and ability in communication. The appellant said that he had given that comment some thought but noted that the delegates had not specified what particular communication skill he lacked. He said that as he had been told that he was an intelligent person, he believed he was an excellent communicator.[11] The appellant conceded that he could improve his communication style by being more "voluminous" (sic) especially with "certain patients who are used to that from doctors who love the more nurturing hand holding".[12] However the appellant said that any problems he might have in communication were not connected with the complaints.[13]

Impairment

37 Reports of two psychiatrists were before the Section 66 Inquiry and the Tribunal. In January 2003, Dr Bruce Westmore assessed the appellant. Dr Westmore had interviewed and assessed the appellant in August and November 1999 at the request of the NSW Medical Board. The report of 22nd January 2003 [14] was written after a requested re-assessment. The appellant had provided this report to the delegates during the Section 66 Inquiry. Dr Westmore reported that the appellant told him that he had seen Dr Wu (a psychiatrist) from May 1995 until November 1997 following a relationship breakdown. The appellant also attended Dr Fisher who raised with him the possibility that the appellant may have had a paranoid disorder. The appellant told Dr Westmore that he disputed that diagnosis. According to a later report,[15] following Dr Fisher's assessment, the appellant was placed in the Impaired Registrants Scheme.

38 Dr Westmore said that the appellant's thought content "had a persecuted component to it" which Dr Westmore said was quite apparent and prominent when the appellant was discussing his legal problems. Dr Westmore was not able to establish that the appellant's thoughts were delusional. He referred to the range and nature of the complaints against the appellant at that time. Dr Westmore said:

"These problems of anger and rudeness may arise due to the fact that he is 'under siege' from a number of different areas or they may reflect some other condition such as a personality disorder of some type. Dr Lindsay was able to acknowledge that he may have some histrionic personality traits, I suspect that is probably true and I also think he has some strong paranoid personality traits. These are reflected in his hypersensitivity about certain matters and the way he responds to conflict and criticism."[16]

39 Dr Westmore had specifically been asked to comment on whether the appellant was impaired. He said that the appellant's paranoid thought processes did not, in themselves, affect his ability to diagnose or treat medical conditions although they may well affect his bedside manner and relationships with patients. Dr Westmore found that the appellant had some insight into his behaviour and referred to the fact of his attending on Dr Westmore as suggesting that Dr Lindsay would not refuse to engage in a review of his conduct. Dr Westmore referred to the appellant's defensiveness about his behaviour and that he tended to make counter allegations about the criticisms of him.

40 Dr Westmore concluded;

"I think Dr Lindsay is under a great deal of stress at this time, he is responding to others in what appears to be a rude and angry fashion and when agitated his communication skills appear to be significantly affected to the point where he appears to say peculiar, sometimes almost bizarre things. Mental state examination however does not reveal strong evidence to support the view that he has delusional thought processes and his conversations and inappropriate behaviours appear to arise in a man with possibly significant personality pathology who is showing signs of decompensation under significant stress."

41 Dr Westmore recommended that the appellant be required to attend a psychiatrist of his choice and to have regular reviews by a Board appointed psychiatrist.

42 Dr Stephen Allnutt interviewed and assessed the appellant in 2007. He produced two reports.[17] He had been specifically asked to consider the question of whether the appellant is impaired. Dr Allnutt sets out his discussions with the appellant in some detail (the accuracy of parts of that reported history was subject of dispute by the appellant). Dr Allnutt said that the appellant claimed that all of the complaints against him were orchestrated by a number of people who were instructing the patients to complain. He said that the Medical Board was involved in having patients make complaints and also possibly the judiciary. Dr Allnutt said the appellant "concluded overall that there were a number of psychopaths trying to do something to him".[18]

43 Dr Allnutt reported that the appellant was "cognitively roughly intact. His insight...was limited and his capacity for judgment, at least partially impaired." In his second report he clarified that by this comment he meant that the appellant did not show symptoms of cognitive impairment significant enough to suggest that he suffered from a neurological illness or brain damage. As to his insight, Dr Allnutt said:

"...he had difficulty in appreciating that the beliefs he endorsed might not be based on external reality. Based on his interaction with patients as a consequence of his belief system, he is...manifesting a degree of impaired judgment."

44 Dr Allnutt's opinion was that for many years the appellant had maintained the belief that there is a conspiracy perpetrated against him involving predominantly professionals and professional bodies that were all connected and that share the common goal of having him deregistered. Dr Allnutt said that the appellant tended to be suspicious of and view as part of the plot professionals with whom he has had dealings. He said:

"He has a tendency to place excessive weight on relatively insignificant events and comments made by others and as a result makes incorrect inference(s) about events in his environment and the other's intention towards him. He maintains the conclusions he draws with conviction and holds events and experiences that to others would appear inconsequential as proof of his belief.....As a consequence he is vulnerable to becoming easily suspicious of others. This perception of others, in turn, likely increases his irritability towards people whom he perceives as having involvement in this conspiracy. In professional situation(s) this would increase his vulnerability to behaving in a manner that might appear to others as inconsistent with the clinical situation and thus increase his risk of attracting complaints".

45 Dr Allnutt said that the appellant's belief system was consistent with either overvalued ideas derived from a paranoid personality disorder or persecutory delusions derived from a delusional disorder.

46 He concluded:

"At times his social and occupational functioning is affected by his paranoia. He is vulnerable to inappropriate interpersonal interactions with patients that he believes to be part of the conspiracy. While he likely thus far remains capable of making safe and accurate diagnosis and treatment decisions (there do not appear to be complaints of this nature) there is however cause for concern that when upset with a conspiratorial patient he could be prone to errors of clinical judgment."

47 Before the Tribunal hearing started, the appellant had two folders of documents delivered to the members. Included in them was a document with supporting annexures entitled "Submission of Dr David Charles Lindsay to appeal Medical Tribunal Dr Stephen Allnutt's report used during the Section 66 Inquiry".[19] The submission of 40 pages was signed by the appellant and his signature was witnessed by Tallulah Glynne, his mother. In the document the appellant takes issue with much of Dr Allnutt's report. Under a heading "No evidence to support Dr Allnutt's conclusions" the appellant wrote: [20]

Dr Allnutt did not raise any evidence being present that Dr Lindsay would harm patients in his observations of Dr Lindsay during the three interviews. Dr Allnutt just said that he will hurt someone and he must be stopped....He did not state if Dr Lindsay was going to kill anyone but implies this is a possibility..."

48 It was suggested to the appellant that nowhere in his report does Dr Allnutt make such a comment. The appellant's explanation as to why he interpreted Dr Allnutt's comments in this way was difficult to follow. However he said that despite interviewing him a number of times, Dr Allnutt was unable to give a definite diagnosis and his conclusion of paranoia leaves open a range of conduct. He said: "well, paranoia is not a pleasant diagnosis, its paranoid schizophrenia to paranoid psychopath. I raise that to the full potential of what that would mean, which would be level 22 homicidal torturing sadistic homicidal psychopath".[21] The appellant said that although Dr Allnutt had not in fact referred to him as a psychopath, he interpreted Dr Allnutt's words as implying he was a psychopath because "if you give full scope of paranoia as the possibilities here and you haven't committed to paranoid schizophrenia as a diagnosis and if you're saying paranoid personality disorder is one of the possibilities which has to be one of the possibilities he's suggesting here, that person will always have a narcissistic personality disorder and if we're being more intelligent about it that individual has to be psychopathic every time". [22]

49 The appellant wrote that the report of Dr Allnutt is a product of a "sick mind" and "the frightening thing about this whole story is that Dr Allnutt and the delegates were never acting fairly and were acting within intent. When the professional witnesses and the delegates don't act fairly and act corruptly the system ultimately fails and the law becomes defective and again the doctor's falsely punished and destroyed as I have seen."

The appellant said that Dr Allnutt lied and deceived the readers of his report.

50 The appellant considered Dr Allnutt's account of the appellant's relationship breakdown was a lie in which Dr Allnutt "cunningly withheld" information from the report to give a false view of the appellant.

51 The Tribunal considers that there is a great deal in the views expressed by the appellant in the document which is consistent with the account of the appellant as reported by Dr Allnutt.

52 In cross-examination about this document the appellant was at pains to resile from much of the content of the submission. He said at first that the document was filed by his mother and he was: "not sure what she was doing" and on whose instructions she filed it. He eventually conceded that this document was created and intended by him to be used during this hearing and the next Tribunal hearing if he was unrepresented at the time. Parts of the document contained a commentary on the individual patient complaints and included allegations of collusion and corruption. The appellant said that these parts were written by his mother and they represented her opinions and conclusions. He said he told her: "well that's your interpretation of those things...I'm not correcting what you've written there because I'm not so concerned about your interpretation of the story."[23] Why the appellant or indeed his mother thought that her views about the complaints and the complainants should be before the Tribunal was not clear nor was why, if they were her views and not the appellant's, he nevertheless signed to it as his own. The Tribunal found it difficult to accept this evidence. The appellant's mother was in court for the hearing but was not called to give evidence about the document. In the result, little turns on the balance of the document.

53 When giving evidence about the parts of the document that he had written, the appellant resiled from much of it. On many occasions he said that while the submission read as if it were his opinion, he had no fixed beliefs. For example, when he was taken to the part of the submission in which he said that Dr Allnutt had acted corruptly in preparing his report, he said: "there are probably other options there...I'm not here to give all possibilities...to defend Dr Allnutt....I'm just giving my impression of what could be reasonably possible here..." [24] The appellant went on to say that Dr Allnutt might have made a mistake when he wrote his report, was stupid, in a hurry, had a problem with his mortgage and needed more money or wrote the report in a hurry. The Tribunal found the appellant's evidence about these matters unconvincing and was of the view that the appellant's real opinions and beliefs were probably accurately reflected in the submission.

54 The Tribunal found that there were many aspects of the appellant's views and demeanour that mirror the findings and opinions of Dr Allnutt. During the course of his evidence when the appellant was discussing Dr Allnutt's report, the Tribunal observed that he began to speak loudly, aggressively and forcefully to the cross-examiner. His account of events was circumstantial and difficult to follow, he needed to be reminded of the question and to focus on answering that. In many instances the appellant's answers strayed into insinuations of corrupt conduct by people connected in some way with either the HCCC or the Medical Board.

55 When the appellant learned that Ms T intended to complain about him he wrote "psychopath" on her clinical records against the heading "pre existing condition". He said that this notation suggested a "provisional possibility" and further that the possibility (of psychopathy) has to be considered for every case. He agreed that he wrote that note after the consultation but denied that it was made in some way to impugn Ms T's credit and said that it reflected his impressions of her during the consultation. He maintained that he was justified in making that notation because once a complaint had been foreshadowed, the records became a "medico legal document". The Tribunal is concerned that this conduct and the explanation for it is an example of and is consistent with Dr Allnutt's comments about the appellant viewing people with suspicion as to their being possibly involved in a conspiracy.

56 The appellant absolutely denied that he had any psychiatric illness or condition. He made repeated references to psychiatrists who, he said had told him over the years that there was nothing wrong with him. The appellant said [25] that he saw Dr Wu who said to him: "there's nothing wrong with you...you've just got to stop going out with borderline girls...". The appellant then said: "then I went to another psychiatrist...I was forced to... inappropriately...because someone didn't like me and that psychiatrist I saw ten times. He said 'there's nothing wrong with you and I don't want to see you any more' ".

57 The appellant said that shortly before the hearing he saw Dr Roberts, whom he had seen some years before. The appellant said "I told him straight up, I said 'I don't have a condition ' ". The appellant said that he asked Dr Roberts for some advice about handling difficult patients and after a discussion Dr Roberts said: "well, what you've been doing is exactly what I do".[26]

58 There is no report from any of the doctors to whom the appellant referred to support his account of their opinions. The only report from Dr Roberts is one in which he referred to being approached by the appellant for a report and said that he would be prepared to assess the appellant if he was prepared to undertake comprehensive psychological testing.

59 When the Medical Board applied for approval to extend the period of suspension, the appellant offered to enter undertakings to have the suspension lifted. One of the undertakings was that he would attend a psychiatrist for treatment. The appellant said that he offered to give this undertaking to deal with the concerns of the delegates and to avoid complaints.[27] He said that he did not offer the undertaking because he believed he had a psychiatric condition but to have the suspension lifted. During re-examination he was asked by his counsel if he attended a psychiatrist who told him he had a psychiatric condition would he accept treatment. The appellant said:

"I've been told repeatedly by psychiatrists I have no psychiatric illness and I share that belief....The question relates to whether being debriefed about issues of violent patients relates to therapy or counselling; whether counselling is treatment.....I certainly wouldn't be accepting any treatment in relationship to medication because I don't need it. It would be improper.....But if he wanted to see me to discuss further issues regarding dealing with difficult patients, then just to stop this problem once and for all I'd certainly take that advice and have discussions. And I'm quite happy to see him as a courtesy to everyone and in exploring these issues..." [28]

Discussion

60 It was argued for the appellant that the Tribunal could not make a determination about this matter based on the complaint document because it was no more than a pleading and as such carried little weight. It was argued that the appellant's responses in writing and his evidence about the complaints was direct evidence and therefore more persuasive and would lead the Tribunal to conclude that the appellant's version of events should be accepted in preference to the allegations in the complaint. It was further argued that the Tribunal did not have the benefit of reading the complaints in the words of the patients, which further lessened the weight of the complaint document.

61 It is important to stress again that it is not the function of the Tribunal on this appeal to make definitive findings of fact and indeed that would not be possible in the circumstances of this matter. The appellant said on a number of occasions that he intended to have each patient complainant cross-examined at length in order to prove the falsity of the complaint.

62 The complaint document itself is not evidence of the proof of the facts asserted in it. However, the Tribunal does not accept the characterisation of the complaint as a "pleading" carrying no weight. Counsel for the respondent submitted that each of the particulars of the complaint has been assessed and examined before being accepted and included in the document. It was never suggested by the appellant that the complaint misstated the fact or the substance of the complaints.

63 The Tribunal had before it the written accounts of the three patients whose allegations are not included in the complaint and in relation to Patient K, the Tribunal had before it her written complaint, photographs of her appearance after the treatment by the appellant, the investigation notes and comments by an independent expert on the appellant's treatment of her.

64 The Tribunal is of the view that the complaint taken at face value when considered with the balance of the evidence relied on by the respondent enables it to consider the number, similarities and timing of the complaints as part of its determination.

65 While there are particulars in the complaint concerning alleged incidents from November 2001, there appears to have been an escalation in the frequency with which complaints were made about the appellant from about 2005. The complaint contains particulars of complaints alleged to have occurred at consultations with the appellant almost every month in 2005. In 2006, the complaint refers to incidents in January, July, August, September and October and in 2007 relates to alleged incidents at consultations in January and April. The additional three matters, which are not contained in the complaint before the Medical Tribunal, concern consultations in October, November and December 2007.

66 It was argued for the appellant that, even if it be accepted that he has a psychiatric condition, none of the complaints reflects on the appellant's clinical skills or judgment and each referred to incidents which occurred after the clinical component of the consultation was concluded. Counsel for the appellant argued that there was no complaint in which it could reasonably be said that any alleged psychiatric condition has affected the appellant's treatment of the patients who have complained. In support of this submission it was argued that the incidents in which patients were asked to leave the rooms arose after the appellant had been insulted by the patient and where, in some cases, he had continued to treat the patient notwithstanding the abuse.

67 This submission was based on the appellant's account of the circumstances of each complaint. The Tribunal is not in a position to find as a fact how each incident occurred. Clearly the appellant's version of each event is at variance to that of each complainant.

68 However, the Tribunal rejects the submission that the complaints on their face only relate to conduct which occurred after the consultation was ended and were unrelated to the appellant's clinical skill and judgment.

69 Patient K complains that the appellant removed up to 250 solar keratoses from her in one session and continued to remove them by cryotherapy after she had asked him to stop. As part of the investigation of that complaint, an independent expert was engaged to consider the complaint. Based on Patient K's account he formed the view that the appellant had conducted his treatment of the patient in a way which resulted in an unacceptable level of distress and discomfort to her. If Patient K's account is accepted, the appellant continued to treat her after she had withdrawn her consent and in the face of her demonstrated distress and discomfort.

70 The appellant's submissions focussed on a narrow interpretation of what constituted the clinical interaction between the appellant and the patients, being what the appellant actually did during the consultation. That interpretation ignores the alleged distress and upset caused to patients who were on their account shouted at and asked to leave the professional rooms. Ms L said that after being shouted at and told to leave the surgery, she was still shaking some time later and in her statement said that she still felt confronted and shaken by her experience. Ms T said that when she was in the appellant's treatment room, the appellant asked her to take off her glasses and then began to treat parts of her face using cryotherapy without first explaining to her what he was going to do. She said that she felt violated, traumatised and shocked.

71 The Tribunal is of the view that the complaints on their face demonstrate that they are more than complaints of the appellant being rude to the patients and concern matters which in the Tribunal's view go to how the appellant conducts himself in the clinical setting.

72 This evidence causes the Tribunal concern that when patients decline to continue with treatment or who do not stay to be treated because of the appellant's conduct, may of itself pose a significant risk to the patient's health. Finally, an interaction between a medical practitioner and a patient which leaves a patient feeling violated, shaken and assaulted would pose a risk to the patient's mental health and may well impact adversely on the patient's attitude to and confidence in subsequent interactions with medical practitioners.

73 The Tribunal is of the view that notwithstanding the appellant's strong denial of each complaint and his assertion of abuse and irrational conduct on behalf of the patients, the complaints, their number and the similarities of allegations between the complainants give rise to very serious concerns about the appellant's conduct towards his patients as posing a risk to the physical and mental health of those who consult him.

74 The evidence before the Tribunal also gives rise to a grave concern that the appellant may well suffer from a psychiatric condition of the type concluded by Dr Allnutt and is possibly impaired.

75 Before the Tribunal can act pursuant to section 66 of the Act, it must be satisfied that action is necessary for the purpose of protecting the life or physical or mental health of any person.

76 Counsel for the appellant submitted that before it came to a decision about whether action was necessary under section 66, the Tribunal would balance the impact on the appellant of any proposed action.

77 The Tribunal does not accept that this is a correct interpretation of the section, which is of its nature protective. The section is mandatory in the sense that once the Tribunal (or the delegates) is of the view that action is necessary, it must then either suspend or impose conditions on the practitioner's right to practise. Clearly in coming to a determination of whether action is necessary, the Tribunal is very aware that to take action which may result in suspension of a practitioner's right to practise has serious implications for a practitioner, not only financially. In this case the appellant in his affidavit said that he was in a financial predicament and had already spent a vast amount of money instructing solicitors and counsel in relation to these complaints. If he is not to practise, his capacity to pay the rent on his rooms and to pay staff is imperilled. The Tribunal is mindful that the appellant had already been suspended for nearly 16 weeks when the appeal came to this Tribunal.

78 However, the Tribunal understands the effect of section 66 to be that if it came to the view that action was necessary for the reasons set out in the section, it could not refuse to act because of the impact on the practitioner.

79 In determining whether the matters which have been referred to in these reasons are such as to satisfy the Tribunal that it is necessary to take action, the Tribunal has taken into account the effect on the appellant of having his right to practice suspended and has also taken into account that the allegations are the subject of great contest.

80 The Tribunal is satisfied that action is necessary to protect the physical or mental health of the appellant's patients. Having formed that view it then becomes necessary to determine what action to take.

81 The Tribunal considered whether it would be appropriate to impose conditions on the appellant in order to meet the perceived risk. It determined that it would not.

82 The appellant frequently said during his evidence that he was prepared to accept advice and counselling from a psychiatrist about his communication skills and how to handle difficult and violent patients. He rejected any suggestion that he may have a psychiatric condition and countered that he had been repeatedly told over the years that he had not. He has conducted some research on the internet on articles about communication skills particularly when dealing with difficult patients. However, he made it abundantly clear during his evidence that if he has any problems with communication they are not the cause of the complaints being made against him. That fact and the fact of so many complaints being made against him have not caused the appellant to reflect on his conduct and perhaps concede that he has in some way contributed to the complaints, instead, he is adamant that he is the victim of these complaints about which he is powerless. The Tribunal also formed the view that direct supervision of the appellant in his clinical practise would be impractical in this instance.

83 In all of these circumstances, the Tribunal formed the view that no condition could be imposed on the appellant's right to practise which would protect his patients from the risk identified by the Tribunal.

84 The Tribunal therefore dismissed the appeal and confirmed the suspension imposed on 12th February.

Endnotes

1 Section 95 Medical Practice Act 1992

2 Section 97(1) Medical Practice Act 1992

3 Exhibit 4

4 transcript 2nd April 2008 page 19.20

5 transcript 20. 36

6 transcript 21. 30

7 transcript 28.45

8 transcript 29.36

9 transcript 32.29

10 transcript 33.35ff

11 transcript 121.30 -122.11

12 transcript 129.40

13 transcript 138.25

14 Exhibit 2 tab 14

15 Report Stephen Allnutt, 6th March 2007 page 7, page 120 Ex 2

16 Ex 2 page 278

17 6th March 2007 and 21st March 2007

18 Report 6th March 2007 page 7-8

19 Exhibit 4

20 page 6

21 transcript 53.30

22 transcript 54.10

23 transcript 51.34

24 transcript 69.30

25 transcript 59.4

26 transcript 62.26

27 affidavit Appellant

28 transcript 163.15ff