HCCC v Allen - [2010] NSWMT 8

New South Wales

Medical Tribunal

CITATION: HCCC v Allen [2010] NSWMT 8 revised - 13/10/2010

TRIBUNAL: Medical Tribunal

PARTIES: Health Care Complaints Commission (Applicant)
Dr Richard Allen (Respondent)

FILE NUMBER(S): 40016 of 2009

CORAM: Staff J - Ng, Dr J - Grimes, Dr D - Smith, Mr RJ

CATCHWORDS: PROFESSIONAL MISCONDUCT - respondent doctor signed a statement knowing that it would be presented to an inquiry conducted by the Medical Board into a practice conducted by another medical practitioner where he was employed - respondent careless and reckless in permitting statement to be relied upon - care exercised significantly below the standard reasonably expected of an experienced medical practitioner - respondent engaged in conduct relating to the practice of medicine in signing statement - conduct improper or unethical - respondent acknowledged misconduct - contrition - Tribunal satisfied misconduct would not be repeated - practice of medicine over lengthy period exemplary - professional misconduct - reprimand.

LEGISLATION CITED: Civil Procedure Act 2005
Evidence Act 1995
Medical Practice Act 1992
Police Act 1990

CASES CITED: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267;
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630;
Re Dr Parajuli [2010] NSWMT 3;
Health Care Complaints Commission v Wingate (2007) NSWLR 323;
NSW Medical Board v Dinakar [2009] NSWMT 8;
Re A Medical Practitioner and the Medical Practice Act 40010/07 3 September 2007 (unreported);
Re Dr Richard Wingate [2007] NSWMT 2

DATES OF HEARING: 17 May 2010, 18 May 2010, 19 May 2010

DATE OF JUDGMENT: 2 July 2010

LEGAL REPRESENTATIVES:
Mr G Farmer of counsel (Applicant)
Health Care Complaints Commission
Ms C Ronalds SC (Respondent)
Mr M Fitzgerald solicitor

ORDERS: 1. Dr Allen is reprimanded; 2. Dr Allen is to pay the HCCC's costs of these proceedings, on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005; Pursuant to cl 6 of Sch 2 of the Medical Practice Act, the Tribunal has made a non publication order in respect of the name of a patient referred to in the proceedings

JUDGMENT:

- 1 -

MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIRMAN: Staff J

MEMBERS: Dr J Ng

Dr D Grimes

Mr R J Smith

Friday 2 July 2010

Matter No 40016/09

HEALTH CARE COMPLAINTS COMMISSION v RICHARD ALLEN

IMPORTANT NOTE

SUPPRESSION ORDER

PURSUANT TO CLAUSE 6 SCHEDULE 2 OF THE MEDICAL PRACTICE ACT 1992 THE TRIBUNAL HAS ORDERED THAT THERE BE NO PUBLICATION OF THE NAME OF THE PATIENT OR OF ANY MATERIAL CAPABLE OF IDENTIFYING THAT PATIENT.

DETERMINATION AND ORDERS

1 The Health Care Complaints Commission ("the HCCC") alleges that Dr Richard Allen ("Dr Allen"), a medical practitioner, is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s 36 and s 37 of the Medical Practice Act 1992 ("the Act") in that:

(i) he has demonstrated that judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HCCC v Allen

Details

AGLC: HCCC v Allen [2010] NSWMT 8
Case: [2010] NSWMT 8
Decision Date: 2 July 2010

CaseChat Overview and Summary

The Health Care Complaints Commission (HCCC) brought a case against Dr. Allen, a medical practitioner, before the NSW Civil and Administrative Tribunal (NCAT). The dispute centred on Dr. Allen's signing of a statement that was subsequently presented to an inquiry conducted by the Medical Board of Australia. This inquiry was investigating the conduct of another medical practitioner employed at the same practice where Dr. Allen worked. The HCCC alleged that Dr. Allen's conduct in signing the statement amounted to professional misconduct.

The primary legal issue for the tribunal to decide was whether Dr. Allen's actions constituted professional misconduct under the Medical Practice Act. The tribunal examined whether Dr. Allen's conduct was improper or unethical, and whether it fell below the standard of care reasonably expected of an experienced medical practitioner. It also had to consider whether the misconduct was likely to be repeated and the overall quality of Dr. Allen's professional practice.

In its decision, the tribunal found that Dr. Allen had been careless and reckless in permitting the statement to be relied upon in the inquiry. The tribunal concluded that Dr. Allen's care was significantly below the standard expected of a medical practitioner with his experience. It found that by signing the statement, Dr. Allen engaged in conduct relating to the practice of medicine that was improper and unethical. Dr. Allen admitted to the misconduct and expressed contrition. The tribunal was satisfied that the misconduct would not be repeated and acknowledged Dr. Allen's exemplary practice over a lengthy period. Therefore, the tribunal determined that Dr. Allen had engaged in professional misconduct and issued a reprimand. The tribunal also ordered Dr. Allen to pay the HCCC's costs of the proceedings and made a non-publication order in respect of a patient's name.

Orders

Orders of the court

1. Dr Allen is reprimanded; 2. Dr Allen is to pay the HCCC's costs of these proceedings, on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005; Pursuant to cl 6 of Sch 2 of the Medical Practice Act, the Tribunal has made a non publication order in respect of the name of a patient referred to in the proceedings

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	HCCC v Allen [2010] NSWMT 8 revised - 13/10/2010
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission (Applicant) Dr Richard Allen (Respondent)
FILE NUMBER(S):	40016 of 2009
CORAM:	Staff J - Ng, Dr J - Grimes, Dr D - Smith, Mr RJ
CATCHWORDS:	PROFESSIONAL MISCONDUCT - respondent doctor signed a statement knowing that it would be presented to an inquiry conducted by the Medical Board into a practice conducted by another medical practitioner where he was employed - respondent careless and reckless in permitting statement to be relied upon - care exercised significantly below the standard reasonably expected of an experienced medical practitioner - respondent engaged in conduct relating to the practice of medicine in signing statement - conduct improper or unethical - respondent acknowledged misconduct - contrition - Tribunal satisfied misconduct would not be repeated - practice of medicine over lengthy period exemplary - professional misconduct - reprimand.
LEGISLATION CITED:	Civil Procedure Act 2005 Evidence Act 1995 Medical Practice Act 1992 Police Act 1990
CASES CITED:	Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3; Health Care Complaints Commission v Wingate (2007) NSWLR 323; NSW Medical Board v Dinakar [2009] NSWMT 8; Re A Medical Practitioner and the Medical Practice Act 40010/07 3 September 2007 (unreported); Re Dr Richard Wingate [2007] NSWMT 2
DATES OF HEARING:	17 May 2010, 18 May 2010, 19 May 2010
DATE OF JUDGMENT:	2 July 2010
LEGAL REPRESENTATIVES:	Mr G Farmer of counsel (Applicant) Health Care Complaints Commission Ms C Ronalds SC (Respondent) Mr M Fitzgerald solicitor
ORDERS:	1. Dr Allen is reprimanded; 2. Dr Allen is to pay the HCCC's costs of these proceedings, on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005; Pursuant to cl 6 of Sch 2 of the Medical Practice Act, the Tribunal has made a non publication order in respect of the name of a patient referred to in the proceedings