HCCC v Allen
[2010] NSWMT 8
•2 July 2010
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 1990CASES 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 2DATES 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)
Ms C Ronalds SC (Respondent)
Health Care Complaints Commission
Mr M Fitzgerald solicitorORDERS: 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:
DEPUTY CHAIRMAN: Staff J
MEMBERS: Dr J Ng
Dr D Grimes
Mr R J Smith
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.
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 practitioner of an equivalent level of training or experience; and/or
(ii) he has engaged in conduct relating to the practice of medicine that is improper or unethical.
2 The particulars of the complaint were:
2. The practitioner failed to include in that statement the following information:1. On or about 11 June 2002 the practitioner signed a statement knowing that it would be presented to a s 66 inquiry conducted by the Medical Board into the practice conducted by Dr Sood.
(a) that the statement has been prepared on his behalf by Dr Sood;
(c) that he signed the statement believing that what Dr Sood had included in the statement was accurate.(b) that he had no independent recollection of the information contained with[in] the statement; and
4. In the statement dated 31 July 2006, the practitioner referred to the statement dated 11 June 2002 and stated as follows:
3. On or about 31 July 2006 the practitioner signed a statement knowing that it was to be used in criminal proceedings against Dr Sood being conducted in the Supreme Court of New South Wales.
(a) paragraph two of the statement of 11 June 2002 was a false statement; and
in circumstances where the practitioner had no independent recollection of the events in that statement.(b) paragraph three of the statement of 11 June 2002 is incorrect because he did not make the telephone call;
- 5. In the statement of 31 July 2006, the practitioner stated:
(a) "I have been set up by Dr Sood to give this false evidence."
(b) "I mean that I have been used by Dr Sood to help her out of some trouble."
(c) "I know the statement is false and I would have signed the statement to help Dr Sood."
(d) "I now admit that by signing the (11 June 2002) statement I have misled the Medical Board"; and
in circumstances where he did not know, or believe, those statements to be truthful.(e) "I have been conned into something that I shouldn't have done";
3 Ms C Ronalds SC, who appeared for Dr Allen, contended at the commencement of the proceedings that complaint (i) did not apply, as it was directed to the interaction between a doctor and a patient and involved the actual delivery of medical care. Senior counsel submitted it only applied to "hands-on" medical care. Senior counsel advised that Dr Allen admitted complaint (ii) and particulars 1, 2, and 3. In respect of particular 4, senior counsel submitted that this particular was unfair because of the way in which particulars (a) and (b) of the statement of 31 July 2006 were induced from Dr Allen by Detective Sergeant Clive George Ainley of Fairfield Local Area Command (LAC) Detectives Office. This is a matter the Tribunal will deal with later in this Determination. In relation to particular 5, Dr Allen admitted this particular as to his state of knowledge in July 2006. However, senior counsel submitted that there were circumstances that needed to be taken into account as to how this particular should be treated by the Tribunal.
The respondent
4 Dr Allen is 65 years of age. He graduated from the University of New South Wales in 1968 and was admitted as a Fellow to the Royal Australian College of General Practitioners in 1975. Dr Allen conducts a private practice at Fairfield Heights and works two and a half days per week at Marie Stopes International ("MSI") as a sedation doctor. At the time of the conduct relevant to the complaint, this practice was known as the Australian Women's Health Clinic ("AWHC"). Dr Allen has 900 patients on his database, which includes residents of nursing homes and Methadone patients. Of these, 288 are aged over 65, including 160 aged over 80. He sees 70 patients on the Methadone Program and between 20 to 25 patients a day. Dr Allen attends five to eight home/aged care calls per day. He visits four nursing homes and two hostels to see patients. Dr Allen has been married for 37 years. He has two children, one of whom is disabled and suffers from Autistic Generalised Development Delay with Adjustment Disorder.
The misconduct alleged
5 On 18 May 2002, a young woman who will be referred to by the initials "LT", attended AWHC, a practice which, at that time, was owned by Dr Sood, where Dr Allen was employed for one to two days per week. As Dr Sood is no longer a registered medical practitioner, she will be referred to in this Determination as Ms Sood.
6 On 21 May 2002, at about 4.30 am in the morning, LT miscarried.
7 The allegations against Dr Allen arise from an investigation into a suspected termination of a pregnancy ("TOP") performed by Ms Sood between 20 May 2002 and 21 May 2002. Ms Sood was ultimately found guilty of this offence and a criminal conviction was entered.
8 There is no suggestion that Dr Allen was involved in the TOP. The role of Dr Allen is limited to the provision of a statement dated 11 June 2002. This statement was made in relation to the events surrounding the TOP and provided to Ms Sood, who in turn provided it to the New South Wales Medical Board ("the Board"). The statement was in the following terms:
1. I am a medical practitioner, and have worked with Dr Suman Sood for the last several years, giving intravenous sedation to patients for whom Dr Sood performs the procedure of termination of pregnancy ("TOP").
2. On Tuesday 21 May 2002 I was asked by Dr Sood to call a clinic in Brisbane to enquire as to whether they could perform a TOP at 23-25 weeks gestation, and as to the cost of the termination at that time.
4. In my experience with working with Dr Sood a TCP (sic) has never been performed in relation to a pregnancy of over 20 weeks gestation at Dr Sood's practice, to my knowledge.3. The person I spoke to at the Brisbane clinic told me that they did do TOP's at that stage, that the patient would need an ultrasound, and that it would cost $2,500. I gave that information to Dr Sood.
9 Ms Sood was the subject of a s 66 Inquiry into her conduct surrounding patient LT, and was notified on 6 June 2002 that the Board was to hold a hearing on 12 June 2002 in respect of the TOP. A statement was prepared by Ms Sood for signature by Dr Allen. Attached to the statement was a handwritten note by Dr Allen with the numbers 24/ 24/ 2,500.
10 In their decision and reasons, the s 66 Inquiry observed:
- The delegates also had difficulty reconciling the need for Dr Sood to seek information regarding costs from Brisbane, with her evidence that she had referred approximately 5 or 6 patients to Brisbane in the last year and that she was unaware that the cost was "a few thousand dollars". On this issue, the delegates were further concerned as to why the telephone inquiry regarding cost was requested of another medical practitioner (i.e. Dr Allen) in a 'very busy' medical practice, rather than of a secretary, and note that the request for Dr Allen to be involved occurred after delivery of Baby T on 21 May, and after the patient had not attended for her scheduled 7.30 am appointment that day.
11 Telephone records of Dr Allen's mobile telephone show that a telephone call was made on 7 June 2002 to the Planned Parenthood Clinic and the Caboolture Women's Clinic in Brisbane. Dr Allen's telephone records also show that on 10 June 2002, his mobile telephone was used to call the Planned Parenthood Clinic in Brisbane.
12 Ms Sood was pursued by the police in relation to her activities regarding LT. In April 2004, she was arrested and charged with the following offences:
(i) administer drugs with intent to procure a miscarriage;
(iii) manslaughter.(ii) cause drug to be taken with intent to procure a miscarriage;
13 In July 2006, Ms Sood stood trial in the Supreme Court of New South Wales. Ms Sood was convicted of charges (i) and (ii) and found not guilty of charge (iii). During the course of the trial, Dr Allen was called as a witness by the Prosecution and cross-examined by counsel for Ms Sood.
14 After giving evidence on 21 July 2006, Dr Allen formed the belief that his statement of 11 June 2002 contained wrong information about the fact that he worked at AWHC on 21 May 2002. Leading up to Dr Allen being called to give evidence, enquiries were made in relation to the telephone records of his mobile phone and those of AWHC. It is common ground that telephone calls were made on Dr Allen's mobile phone to the abovementioned Queensland clinics on 7 and 10 June 2002. Records were also obtained for five landlines which were attached to AWHC, which indicated that no telephone calls were made from any of those landlines on 21 May 2002 to either the Planned Parenthood Clinic, or to the Caboolture Women's Health Clinic in Queensland.
15 There was a telephone call made to a Queensland telephone number on 21 May 2002 that was subsequent to LT's miscarriage. The complainant accepted that this telephone call was not made to either of the named Queensland clinics. The HCCC's case is that when Dr Allen made his statement on 11 June 2002, he ought to have known whether he did in fact call the organisation that he says he rang and whether he was told that the cost of a procedure was $2,500.
16 During the course of his evidence in the Supreme Court of New South Wales, the Crown sought leave to cross-examine Dr Allen pursuant to s 38(1) of the Evidence Act 1995 , having formed the view that he was a witness whose evidence was not favourable to the Crown. Leave was granted. Simpson J, the trial judge, informed Dr Allen that if he wanted to obtain a certificate to protect him from prosecution in relation to any false evidence that he may give, a certificate would issue.
17 Dr Allen, in his written statement to the Tribunal, said that he met with counsel appearing for the Crown and subsequently with Ms Sood's counsel in the days leading up to him giving evidence. He says that after these meetings, he started to have serious concerns about his 11 June 2002 statement and "was concerned that I might be in a lot of trouble." He said he had not expected any problem, but from counsel's questions, he began to realise that there was a problem for him.
18 Dr Allen gave evidence in the Supreme Court of New South Wales on 21, 24 and 31 July 2006 and on 1 and 2 August 2006. He says he found the experience very intimidating and confusing as the questions became relentless and aggressive. He said he realised that his situation was very serious. He became alarmed and was unable to concentrate and suffered from insomnia. He said that one day he was so distressed coming to Court that he caught the train in the wrong direction. He became more distressed when asked whether he had taken money from Ms Sood before he signed the statement dated 11 June 2002. He found this to be an unjustified and false attack on his integrity and character.
19 On 31 July 2006, Simpson J gave Dr Allen a caution and suggested he obtain legal advice. Dr Allen subsequently met with Mr J Chicken of counsel, as he then was.
20 After Dr Allen left the court room on 31 July 2006, he said Detective Sergeant Ainley approached him and said "We know you're a good doctor. You've got to come clean. You have to make a statement about it all." He said he contacted two solicitors to seek their advice as to whether it was appropriate to speak to Detective Sergeant Ainley. Each of the solicitors had no concerns in respect of Dr Allen providing another statement. Dr Allen advised Detective Sergeant Ainley that he would make a further statement. The detective offered to drive him to Wiley Park Railway Station where he had left his car so that Dr Allen could collect it and drive himself to Wetherill Park Police Station where Detective Sergeant Ainley was based. Dr Allen said that he was extremely upset and worried about what was happening to him and he did not know what to think. Detective Sergeant Ainley took Dr Allen to Wetherill Park Police Station. Dr Allen accompanied Detective Sergeant Ainley inside and made a statement. At the time he had his 2002 diary with him. He checked the diary and found that he had not entered that he was working at AWHC on 21 May 2002 in his diary. On the basis of this understanding he says that he inserted paragraph 8 in the statement which read:
Paragraph two (2) of the statement is false. (Dr Allen was referring to his statement of 11 June 2002). Based on my own diary records I couldn't have made the phone call on the 21st May 2002 because I haven't recorded in my diary that I was working at the Australian Women's Health Clinic. If I had been working on that date my diary would show an entry marked FWHC.
21 Dr Allen's evidence is that this statement is wrong as he now knows he was working on that day. His evidence was that Detective Sergeant Ainley said to him during the course of making the statement "well if it's not in your diary then you weren't working there." Dr Allen says that he now knows that his diary was not a good record of his work schedule, however, when he made the statement to Detective Sergeant Ainley, he relied only on his diary.
22 Dr Allen has since seen the Australian Women's Health Drug Register for 21 May 2002. From that document, Dr Allen was able to say that he did work at AWHC on 21 May 2002 as he had signed for drugs he administered in his role as the sedation doctor on that day. The amounts of drugs administered and the patient names are also recorded in the Drug Register.
23 Detective Sergeant Ainley had a copy of the Drug Register for 21 May 2002 whilst Dr Allen was making his statement on 31 July 2006. It is common ground that at no time did Detective Sergeant Ainley make any reference to the Drug Register for 21 May 2002, or advise Dr Allen that he had a document that may have assisted him in remembering whether he was working on that day. Dr Allen became aware of the Drug Register for 21 May 2002 following a conference with Mr Chicken before court the following day (1 August 2002). Relevantly, his statement to Detective Sergeant Ainley of 31 July 2006 stated:
8. Paragraph two (2) is false. Based on my own diary records I couldn't have made the phone call on the 21st May 2002 because I haven't recorded in my diary that I was working at the Australian Women's Health Clinic. If I had been working on that date my diary would show an entry marked FWHC.
9. I signed the statement because Dr Sood asked me to make the statement in order to help here so I did the statement to help Dr Sood. I didn't know how the statement was going to be used. I thought it was only going to be prepared and used at the Medical Board. I didn't think it would be used for the proceedings now at the Supreme Court.
10. Had I known the statement was going to be used at the Supreme Court for the proceedings which are being heard at the moment I wouldn't have made the statement. I now wish to withdraw the statement as my evidence.
11. Paragraph two (2) states that Dr Sood asked me to call a clinic in Brisbane to enquire as to whether they could perform a TOP at 23 - 25 weeks gestation and as to the cost of the termination at that time. That part of the statement is not true. I withdraw that part of the statement. I never made that phone call to a clinic in Brisbane. I don't know of any clinic in Brisbane or Queensland which do these types of things. I don't know about these clinics because that's not my job. I have been set up by Dr Sood to give this false evidence and this false statement. When I say I have been set up I mean that I have been used by Dr Sood to help her out of some trouble.
12. I remember that someone said there was a raid at the clinic. The staff at the time said there was a raid at the clinic. According to my diary records the last time I worked at the Australian Women's Health Clinic was on the 6th April 2002. I was due to work at the clinic on the 16th April 2002 but my records show that was cancelled. According to my diary the next time I worked at the Clinic was on the 21st June 2002.
13. I understand that I have signed a statement dated the 11th June 2002. I don't recall preparing the statement, however, I did sign the statement but I don't remember where I signed it. I could have been called to the Australian Women's Health Clinic and signed it there, or I might have signed it at the Division or some other place. I don't remember, my diary doesn't show me being at the Division or the Clinic on the 11th June 2002.
14. In paragraph three (3) of my statement that part is also incorrect because I didn't make the call.
15. In paragraph four (4) of the statement I say that because most of the statement is false I am not prepared to state that Dr Sood never performed a termination of pregnancy over 20 weeks. I don't have any recall of Dr Sood having performed pregnancies over twenty (20) weeks I would need to refer to the medical records.
16. At 7.38am on Wednesday the 21st June 2006, Dr Sood rang my mobile phone No. xxxxxxxxxx. Her mobile phone number was displayed so I knew at (sic) was her phone ringing. I was driving to work on my way to Marie Stopes International when I answered the phone. I recognised Dr Sood's voice. Dr Sood said, "It's Suman here, we need to meet." I said, "I really can't discuss it." She said, "I need to talk to you because you are the only one I can talk to". I said, "I recommend you speak to an other (sic) Dr if you have medical problems." She said, "You're the only one who understands." or similar words. I terminated the call and removed Dr Sood's mobile phone contact number from the memory of my mobile phone.
...
18. On a Wednesday or maybe the Thursday on either the 19th or 20th July 2006, I received a phone call at my home on Phone Number xxxxxxxx. It was early in the morning and it was a day before or maybe the day I was due to attend the Supreme Court. I received a call from Dr Sood's brother Sunjay. I recognised his voice. Sunjay is a General Medical Practitioner in Coolangatta, Queensland. I worked for a week with Dr Sood's brother, Sunjay, some years ago. He went away for a week and I worked as his Locum whilst he was away. Anyway, Sunjay rang me and said, "Do you remember you had a mobile phone, do you remember using your mobile phone?" This phone call was unexpected and I was quite suspicious about the call. I terminated the call.
19. During the Surpeme Court Trial I was shown two notes with handwriting. I don't know why I made those notes. I don't remember making notes. I didn't make any phone calls to any clinic so I can't see why I would make notes about a call I didn't make.
20. I have stated that the notes look like my handwriting. I don't recall making the notes. It might have been the case that Dr Sood has dictated something to me and I wrote down what she was saying. The reason I say this is because I never made any call to a clinic in Brisbane.
23. I didn't intentionally try to mislead the NSW Medical Board. My only intention was to Help Dr Sood with her suspension. I now admit that by signing the statement I have misled the Medical Board. I have been conned into something that I shouldn't have done.
24. Detective Ainley has asked me why I signed the statement and not Dr Navaratnam or Dr Lall. I would have signed the statement because the statement referred to Tuesday and Tuesday is a day I normally worked.
...
26. The reason I have given this statement to Detective Sergeant AINLEY is because I realise the statement dated the 11th June 2002 is false and I wish to withdraw it.
28. I give this statement freely and voluntary. No threat, promise or inducement has been held out to me to give this statement.27. To assist in making this fresh statement I have referred to two diaries. A red coloured diary dated 2002 and a black coloured diary dated 2006. I handed those two diaries to Detective Sergeant AINLEY at Wetherill Park Police Station.
24 Dr Allen's evidence was that he now knows that a number of these paragraphs are not correct as he did make a telephone call to a Queensland clinic, but he did not make it on 21 May 2002. After Dr Allen signed the statement on 31 July 2006, another police officer drove him back to his car. He said he arrived home at about 10.00 pm.
25 Dr Allen's evidence was that after he reached home, he continued to be distressed and confused. He said he was exhausted and had insomnia. He thought about the evidence he had given and the statement that he had just signed all night. He decided that he had been coerced by Detective Sergeant Ainley into making the statement and had not been helped by him at all. He reread the statement during the night and realised that paragraph 8 was based solely on his poor recollection and that he had no clear memory of specific dates in 2002 when he was meant to have done something.
26 After a discussion with Mr Chicken the following morning, Dr Allen said he realised that he had been working on 21 May 2002 and that he could have made the telephone calls on that day or on various other days when he was working. He said he then wanted to withdraw the statement before the trial resumed as he knew it was incorrect. He did not want to cause any further problems for himself or anyone else.
27 On 1 August 2006, Dr Allen left a message for Detective Sergeant Ainley on his mobile phone. He asked him to return his call before court commenced on that day. Detective Sergeant Ainley did not return his call.
28 Dr Allen was recalled as a witness on 1 August 2006. He says he does not have any recollection of the evidence he gave on that day and can only use the transcript as a record.
29 Dr Allen stated that he did not mean to sign a statement that was wrong. He had not been corrected about whether he was at work on 21 May 2002 or not. When he signed the statement, he says he was not in a proper state to do so. He was exhausted and not thinking clearly. He says that an example of this is to be found at the bottom of the last page of the statement, which states "Has any threat, promise or offer of advantage been held out to you to make this statement?" Dr Allen answered "yes." despite paragraph 28 stating that no threat had been held out. As soon as Dr Allen knew the statement was wrong, he took steps to withdraw it.
30 Dr Allen stated that he was aware of the Code of Conduct ("the Code") for medical practitioners introduced by the Board and has attended training sessions on the Code run by the Australian Medical Association ("AMA"). He acknowledged that the breach of the Code was a serious offence and that he had never intentionally broken the Code, or said or done anything to bring the medical profession into disrepute.
31 Dr Allen stated that he deeply regretted the position he found himself in and accepted that he should have taken some steps of his own before he signed the statement of 11 June 2002 and checked that it was correct. He stated he did not sign it knowing it to be false. His evidence was never intended to mislead any person reading it and he certainly did not intend to mislead the Board. In relation to the July 2006 statement, Dr Allen stated that he believed he was not assisted by Detective Sergeant Ainley who knew what he was signing to be wrong. He believed that Detective Sergeant Ainley took advantage of his confused state because he had information that he was at work on 21 May 2002, which he did not share with him. This, he said, added to his confusion. Dr Allen stated that he took full responsibility for signing a statement that was wrong. He acknowledged he needed to check it more fully than he did by just looking at his diary. He said he would never again sign any statement or document of any sort without checking its contents fully and properly. He would never trust another person to prepare a statement for him. He stated that he would never again take at face value a statement by another medical practitioner to him. He said when he trusted Ms Sood, it was the first time he had ever done such a thing. He assumed he could trust a colleague, but he would never assume that again and would carefully check any document prior to signing. He said he felt the same about a police officer.
32 Dr Allen said he was very distressed about what had happened. He realised he had not complied with the Code. He stated that he thought this was a bad example to other doctors in his local area, where what had occurred was well known. He also accepted that he had set a poor example for other professional people working in the medical field, especially those who know him and work with him. He stated that he was very remorseful and upset about what had happened. Being before the Tribunal at this time in his career caused him great sadness. He had not come under notice previously before the Board or the Tribunal. He stated that his philosophy in respect to the practice of medicine has always been to help people. He said he provides Methadone for patients and has done so for many years because few doctors do this. Originally he did this in co-operation with the Liverpool Hospital Methadone Clinic, but now he provides Methadone as a result of patient referrals to him from the Methadone Clinic in his area.
33 The aged care facilities that he attends all have trouble getting doctors to visit their premises. All of the patients at his practice at Fairfield Hospital are Medicare patients. He does not have any private billings. All patients are disadvantaged and if he did not attend, there is no replacement doctor immediately available. Dr Allen is extremely sorry that these events occurred and takes full responsibility for what he allowed to take place in the June 2002 and the July 2006 statements. Dr Allen attached 10 supporting references of his professional capacity, 7 of which were from medical practitioners, 2 from registered nurses, and 1 from a pharmacist. No referee was required for cross-examination.
HCCC's evidence
34 The HCCC tendered a statement of Detective Sergeant Ainley, who was the Officer in Charge of the investigation into Ms Sood. He was required for cross-examination.
35 Detective Sergeant Ainley stated that on 13 October 2003, following a request by the police, Dr Allen provided a statement about his knowledge of Ms Sood's matter. In this statement, Dr Allen stated that he did not have any recall of the events of May and June 2002.
36 A short time prior to the commencement of the trial, the Office of the Director of Public Prosecutions provided Detective Sergeant Ainley with a copy of a statement made by Dr Allen to the Board dated 11 June 2002. Detective Sergeant Ainley said that during the afternoon of 31 July 2006, he was standing outside the Supreme Court when Dr Allen came out from the Court. He said he enquired if the doctor was "finished" and he replied "the judge asked me to leave the court and contact a solicitor." He said that at the time, Dr Allen appeared highly anxious and was fidgeting with his phone attempting to make a number of calls. Detective Sergeant Ainley advised him to speak with Ms B Crossin, a solicitor employed with United Medical Protection. Dr Allen told Detective Sergeant Ainley that he was worried about his statement dated 11 June 2002 and said "the statement was orchestrated."
37 Detective Sergeant Ainley offered to give Dr Allen a lift in the police vehicle to his car. During the journey, Dr Allen told Detective Sergeant Ainley that the statement he made on 11 June 2002 was false and he wanted to withdraw it. Dr Allen requested to go to Fairfield Police Station and provide a fresh statement. Detective Sergeant Ainley took him to Wetherill Park Police Station.
38 Detective Sergeant Ainley stated that he informed Dr Allen that he was not obliged to make a further statement and that any certificate issued by her Honour would not protect him against any statement that he made outside of Court. He was also advised that any statement might be used against him at a Board hearing.
39 Shortly after Detective Sergeant Ainley commenced taking a statement from Dr Allen he received a call from his solicitor. Detective Sergeant Ainley left the room whilst he spoke to his solicitor. Upon returning, he asked if Dr Allen wished to continue providing the statement. Dr Allen concluded making his statement. He subsequently read it and reread it. He made a number of corrections to grammar and content. Dr Allen signed the statement which was witnessed by Detective Sergeant Ainley and Inspector Bailey.
40 At about 6.40 am on 1 August 2006, Detective Sergeant Ainley received a voice message on his mobile phone from Dr Allen. The voice message said:
- "This is Dr Richard Allen Clive, I'm on my way in now. I'm still trying to meet with my barrister regarding my position, so before I present the evidence or the statement I would like to talk to you about it, I will discuss it with the barrister. Thank you. You can ring me back on this mobile otherwise I'll see you in there."
41 Later that morning, Detective Sergeant Ainley received a further phone call from Dr Allen who said:
- "I'm going to meet with my barrister this morning and talk to him about the statement. I'm happy with the statement and I'm going to give the evidence. I just want to speak to the barrister first."
42 Later that morning, Detective Sergeant Ainley stated that he attended the trial of Ms Sood in the Supreme Court during which Dr Allen, whilst giving evidence, rescinded his statement dated 31 July 2006.
Determination
43 Ms Ronalds submitted that complaint (i), as a matter of law, did not involve the exercise of judgment and care by Dr Allen in the practice of medicine and therefore this complaint was inapplicable.
44 The essential legal elements of complaint (i) are:
(i) that the respondent is a medical practitioner;
(iii) such judgment and care was significantly below the standard normally expected of a medical practitioner of similar experience.(ii) that judgment or care was exercised in the practice of medicine; and
45 The evidence discloses that Dr Allen made a statement on 11 June 2002 concerning his work as a doctor at AWHC where he was employed. He made the statement knowing it was to be relied upon by the owner of AWHC, who was a medical practitioner at the time, in proceedings instituted pursuant to s 66 of the Act. (This section is found in Pt 12 of the Act, which enables the Board to constitute Professional Standards Committees which may conduct inquiries). The statement was clearly made in the conduct of the practice of medicine. See generally Health Care Complaints Commission v Wingate [2007] NSWLR 326. It arose directly from Dr Allen's work as a doctor. Similarly, the statement of 31 July 2006 arose directly from Dr Allen's work as a doctor. For the reasons that follow, we find that the elements of complaint (i) have been made out. In respect of complaint (ii) Dr Allen admitted that he engaged in conduct relating to the practice of medicine that was improper or unethical.
46 The particulars of the complaint deal firstly with a statement made by Dr Allen on 11 June 2002, and secondly, a statement made by Dr Allen on 31 July 2006. It is convenient to deal with the statements separately.
47 Dr Allen admits that he signed a statement on 11 June 2002, knowing that it would be presented to a s 66 Inquiry conducted by the Board into AWHC, owned at the relevant time by Ms Sood. He also admits that he failed to include in that statement that it had been prepared on his behalf by Ms Sood; that he had no independent recollection of the information contained within the statement and that he signed the statement believing that what Ms Sood had included in the statement was accurate.
48 Mr G Farmer of counsel, who appeared for the HCCC, submitted that the Tribunal should reach the conclusion that Dr Allen's statement of 11 June 2002 was deliberately and intentionally false and that Dr Allen was not simply careless or reckless in making that statement.
49 Mr Farmer relied on a decision of this Tribunal in Re A Medical Practitioner and the Medical Practice Act 40010/07, 3 September 2007 (unreported) for the principle that this Tribunal is not limited to making findings based on the particulars as pleaded in the complaint. That matter involved an appeal from a decision of a Professional Standards Committee ("PSC"). The Tribunal observed at [16]:
- The first ground of appeal may be put, perhaps bluntly, by saying that the PSC was not entitled to ignore the evidence that there was a clear breach of s 36(1)(b) by simply asserting that this head of complaint had not been pleaded. The PSC is not and should not be cast as a court of strict pleading. Under s 176 and Schedule 2 of the Medical Practice Act it is empowered to conduct its proceedings as it sees fit, not being bound by the rules of law governing the admission of evidence. It is constituted deliberately as an expert body dealing in a practical manner with problems faced in the practice of medicine. That does not mean, of course, that it is entitled to deal unfairly with a practitioner and deny the rules of natural justice or procedural fairness. A practitioner is entitled to know the allegation made against him or her.
50 Ms Ronalds submitted that there was no particular in respect of the statement dated 11 June 2002 that Dr Allen deliberately or intentionally set out to mislead the Board by making that statement.
51 Section 161 of the Act is in similar terms to s 176. It provides that "the Tribunal is to conduct proceedings on an inquiry or appeal as it thinks fit." The section also provides that Sch 2 has effect.
52 In order for the Tribunal to be satisfied that this allegation is established, this Tribunal must be comfortably satisfied, on the balance of probabilities, that Dr Allen's statement of 11 June 2002 was deliberately and intentionally false. Such a finding could only be made after careful scrutiny of the evidence of Dr Allen. The analysis of the evidence which follows does not enable the Tribunal to reach such a finding.
53 It is common ground that on 18 May 2002, LT attended AWHC and was consulted by Ms Sood. LT returned on 20 May 2002. Ms Sood administered a medication to her and instructed LT to return at 7.30 am on 21 May 2002. In the early hours of 21 May 2002, LT miscarried at home.
54 It is accepted by Dr Allen that on 6 June 2002, he understood that Ms Sood was required to attend the Board for an inquiry. He certainly understood this to be the position on 7 June 2002. There is no evidence by way of telephone records to indicate that between 21 May 2002 and 7 June 2002, any calls were made by Dr Allen to clinics in Queensland.
55 On 7 June 2002, the day after Ms Sood was told that she was required to attend the s 66 Inquiry before the Board, there appears in Dr Allen's mobile phone records, telephone calls to the Planned Parenthood Clinic and Caboolture Women's Clinic in Queensland. There were two telephone calls made on 7 June 2002. On that day Dr Allen made two handwritten notes indicating the differences between prices for a procedure at the respective clinics. There were further calls made from Dr Allen's mobile phone to both clinics on 10 June 2002. This was a public holiday in New South Wales. He agrees that he made one call to a Queensland clinic on 7 June 2002, but clearly, although he has no recollection of this, he made two calls on that day. So much was conceded by Ms Ronalds . Dr Allen's evidence is that he did not make any calls to the Queensland clinics on 10 June 2002. On that day, there were six different calls made to a women's clinic. These calls were made at 17:57:16; 17:57:50; 17:58:24; 17:58:57; 17:59:50 and 18:00:27. Dr Allen did not work at AWHC on public holidays as it was closed. When he did work, he usually finished by 1.00 pm at the latest. He said he had never been there at 6.00 pm. His evidence was that during 2002 and later, his disabled son had a fixation with the use of mobile phones. He would repeatedly redial numbers that were already in the phone from previous calls. In June 2002, Dr Allen only had a limited awareness of this problem with his son's conduct. On or about 5 October 2004, Dr Allen's son was charged with the offence of "use carriage service so other is harassed/menaced."
56 The calls made on 10 June 2002 occurred at 6.30 pm. Some were for a few seconds and some lasted up to 30 seconds. When the pattern of calls on 10 June 2002 are examined, and taking into account the evidence of Dr Allen that he did not make any calls to Queensland clinics on that day, the Tribunal are not satisfied to the requisite standard that Dr Allen made such calls on 10 June 2002. It is highly probable that the calls were made by Dr Allen's son.
57 Dr Allen's evidence was that he has no recollection of when, or how many telephone calls he made on 7 June 2002. The Tribunal has found that it is clear from two handwritten notes that he made two calls on that day. He recalled that Ms Sood asked him to make a telephone call for her, but he does not recall the contents of the conversation. He concluded that Ms Sood must have asked him to make a call and ascertain the costs of a third trimester abortion as he would not have done this without a specific request from her, as he had no need for such information. Apart from sedation advice, Dr Allen gave no other medical advice directly to patients at AWHC. Dr Allen's evidence was that while he did not usually do secretarial work for Ms Sood, he was non-confrontational by nature. His evidence was that dealing with Ms Sood on occasions was very difficult as she was very disorganised, demanding and bossy in the way she treated her staff, including him. He said he would have done what she asked him to do to help out, even if the task "was really not his sort of work."
58 Dr Allen's evidence is that on 11 June 2002, he signed a statement which had been prepared for him by Ms Sood. He was aware that the police had raided AWHC on 22 May 2002 and also that Ms Sood was required to appear before the Board. Ms Sood had informed him of that fact. Dr Allen said that he recalled reading the statement provided to him by Ms Sood, but he did not think that he read it carefully, or checked the dates contained in the statement. He said he did not have any records available to check the dates and did not, at that stage, have any phone records available to him. His evidence was that he remembered that the details in the statement did not particularly concern him. When he read the statement quickly, the details seemed to be correct and he was happy with them. When he signed the statement, he said that he knew he had made a telephone call to a Brisbane clinic, but he did not recall whether he specifically considered or checked the dates recorded in the statement.
59 Dr Allen said that he had no reason to suspect that Ms Sood would mislead or implicate him in any wrongdoing. Professionally, he had no reason to mistrust her. He did not suspect that she would take advantage of him. His evidence was that, at no time on 11 June 2002, did he know that the statement was not correct. He said he had no intention of making an incorrect statement to the Board, or to mislead or deceive the Board. Dr Allen accepts that he was careless and disregarded his ethical principles when he signed the statement, to the extent that he did not properly check the statement. Dr Allen's evidence is that he has now no independent recollection of the events of May 2002. He deeply regrets he is unable to assist further in respect of those matters due to his lack of recall. He accepts that he failed to take adequate care in signing the 11 June 2002 statement.
60 This is an important admission in that it follows that in failing to take adequate care, Dr Allen failed to ensure the accuracy of the 11 June 2002 statement. At the every least, he was negligent of his responsibilities.
61 Mr Farmer challenged Dr Allen's credibility. Counsel asked Dr Allen on at least 10 occasions whether he and Ms Sood had entered into an arrangement to deliberately mislead the Board. On each occasion Dr Allen rejected this assertion that there had been in effect a conspiracy between he and Ms Sood to mislead the Board. Dr Allen also rejected this proposition during the Supreme Court trial of Ms Sood, including the assertion that he had received money from Ms Sood in return for making the statement. Ms Sood was not called to give evidence. Although Dr Allen did not know this at the time that he made the statement of June 2002, it is now apparent that Ms Sood is a person lacking in credit. There is no evidence that would satisfy the requisite standard which would enable the Tribunal to reach a finding upon the required standard that Dr Allen deliberately set out to mislead the Board through the creation of the statement of 11 June 2002.
62 Although Dr Allen was vague on occasions during his evidence, the Tribunal formed the view that this was caused through his lack of memory of events which occurred over a period of almost six years ago in respect of the 2002 statement, and four years ago in respect of the 2006 statement. The Tribunal found Dr Allen to be a credible witness. Mr Farmer criticised Dr Allen for not answering questions which, counsel contended, were difficult for him to answer. Counsel submitted that he had adopted a similar approach when giving evidence in Ms Sood's trial. To the extent that such criticism was directed to Dr Allen's rejection of the conspiracy line of questioning, Dr Allen's evidence was consistent before this Tribunal and also before the Supreme Court. In making this assessment of Dr Allen's credibility, we are mindful of the evidence given by Dr Allen in Ms Sood's trial in the Supreme Court that he "couldn't concentrate at the moment", that he was "stressed", that he had "not previously been questioned by a Crown Prosecutor" and that he was "not sleeping."
63 The Tribunal having analysed the evidence, is not comfortably satisfied that Dr Allen deliberately or intentionally sought to mislead the Board during the s 66 Inquiry. However, the Tribunal finds that Dr Allen was careless and reckless in making the statement of 11 June 2002, knowing that it was to be provided to the Board. The Tribunal accepts his evidence that he was misled by Ms Sood as to the accuracy of the contents of the statement of 11 June 2002.
64 Dr Allen had an obligation to ensure that information provided to the Board was accurate. This Tribunal expects that any medical practitioner appearing before it or the Board or when called upon to make a statement that is to be relied upon before the Board will be honest and frank in his/her dealings with the Board. Any limits or uncertainty in their knowledge should be made clear.
65 The Tribunal turns to consider particulars 3, 4 and 5. Dr Allen admits that he signed a statement knowing that it was to be used in criminal proceedings against Ms Sood being conducted in the Supreme Court of New South Wales (particular 3).
66 In respect of particular 4, Ms Ronalds submitted that this particular was unfair because of the way the statement of 31 July 2006 was adduced by Detective Sergeant Ainley. It will be recalled that the basis of the statement made on 31 July 2006 was that Dr Allen believed, after consulting his diary, that he did not work on 21 May 2002 at AWHC. It was on this basis that he sought to withdraw paragraphs 2 and 3 of his 11 June 2002 statement when making the further statement with Detective Sergeant Ainley on 31 July 2006. At the time that Dr Allen was making this statement, Detective Sergeant Ainley was aware that the Drug Register of AWHC indicated that Dr Allen was working at AWHC on 21 May 2002. Detective Sergeant Ainley did not bring this fact to Dr Allen's attention when he was making the statement.
67 Ms Ronalds was critical of Detective Sergeant Ainley, submitting that he knew that Dr Allen worked on 21 May 2002, but permitted him to sign a statement which Detective Sergeant Ainley knew to be false. Ms Ronalds submitted that it was clear that the statement made on 31 July 2006 was polluted by the false view held by Dr Allen, at that stage, that he was not at work on 21 May 2002. It was on this basis that Ms Ronalds submitted that particular 4 was unfair because of the way that the information contained in particulars 4(a) and 4(b) were adduced from Dr Allen.
68 Ms Ronalds referred the Tribunal to s 7 of the Police Act 1990, which provides, among other matters, that each member of the New South Wales Police Force is to act in a manner which upholds the rule of law, preserve the rights and freedoms of individuals and ensures that authority is exercised responsibly.
69 Mr Farmer submitted that s 7 did not carry with it any requirement that Detective Sergeant Ainley ought to have made known to Dr Allen that records were available that would have assisted his recollection of whether he worked on 21 May 2002. His obligation, so it was submitted, was to let Dr Allen make a statement.
70 Detective Sergeant Ainley's evidence in the Supreme Court was that he knew Dr Allen was wrong when he said, in his statement of 31 July 2006, that he was not working on 21 May 2002. Detective Sergeant Ainley gave this evidence during a voir dire conducted during the trial of Ms Sood:
Q. He told you during this conference that the reason why he thought that he didn't make the phone call to Queensland was because his diary seems to suggest he wasn't working on the relevant day?
A. That's what he told me, yes.
...
Q. Did you think it would be of assistance to tell him that it was not the case?
CROWN PROSECUTOR:
I object. It doesn't relate to the voir dire.
HER HONOUR:
It could potentially go to fairness, yes. I would allow the question.
BOULTEN:
Q. You knew that he was mistaken, apparently, is that right?
A. Yes.
Q. There was no doubt in your mind that he was giving this statement on a completely false premise; is that right?
A. I knew he was wrong.
Q. Eh?
A. I knew he was wrong.
Q. Well, why didn't you tell him that he was wrong?
A. It's his statement, it's not my statement - it's Dr Allen's statement.
Q. Did you think it was fair to him to continue down this track on a misapprehension of the truth?
A. No, what I did, I obtained a statement from Dr Allen and he gave me his statement and I've handed it to the Court.
Q. You were content for the Court to work on the basis that the doctor had reached conclusions on a false factual premise, is that right?
A. No.
CROWN PROSECUTOR:
I object.
HER HONOUR:
I will allow it. It's been answered anyway.
BOULTEN:
Q. He was very nervous, wasn't he, when you were speaking with him?
A. I don't say he was nervous. I'd say he was upset.
Q. He was very anxious, wasn't he?
A. I think, yeah, "anxious" could be a word you could use, yes.
Q. Detective, did you actually ever caution him yesterday that he didn't have to answer your questions?
A. Yes.
Q. When was the first time?Q. When?
A. A number of times.
A. In the car.
HER HONOUR:
Q. Detective, you weren't investigating him as a suspect, were you?
A. No, no.
BOULTEN:
Q. You had formed the view that he had given false testimony, right?
A. No, I'd formed the view that he had provided a false statement to the Medical Board.
Q. You understood that he had given evidence in this trial consistent, in part at least, with his statement to the Medical Board, didn't you?
A. Yes.
Q. You told him that it would be in his interests to rectify the problem, didn't you?
A. I asked him, "What are you going to do about it?"
Q. Yes, and did you tell him it would be in his interests to make things good?
A. No, I didn't say that at all.
Q. The doctor told you that this statement was only being made on the assumption that he was, in fact, not at work on 21 May; isn't that right?
A. That he only made the statement? No. The doctor made a statement.
Q. Yes, and he said, didn't he, the way that you have transcribed it at paragraph 8, "Based on my own diary records, I couldn't have made the phone call," right?
A. He said that, yes.
Q. "Because I haven't recorded in my diary that I was working", right?
A. He said that, yes.
Q. He never once said that he was told by Dr Sood to give false evidence, did he?
A. Have you read that?
Q. And he never once said that the doctor asked him to give false evidence, did he?Q. I've read the lot, yes?
A. I agree with you.
A. No.
71 The Tribunal neither wishes to be critical of the police investigation that resulted in charges being brought against Ms Sood, nor does it wish to be critical of the conduct of the police during the trial. However, if Detective Sergeant Ainley had approached his interview with Dr Allen with more diligence, the situation that is now the subject of consideration before the Tribunal, which arises from a complaint made by Detective Sergeant Ainley, may not have arisen. The Tribunal is of the view that there is some force in the submission made by Ms Ronalds in respect of particular 4.
72 Dr Allen's evidence, which the Tribunal accepts, was that on the afternoon of 31 July 2006, he was confused, stressed and had not been sleeping. His general practitioner, Dr Peter Hansen, in a report dated 1 August 2006 (which is referred to in more detail later), stated that Dr Allen "suffered an attack of hypomania in 1983 and since that time has been in good remission. He has however experienced occasional perturbations of mood, usually related to life stresses and he is prone to anxiety." Dr Hansen further stated that it was quite possible he could have difficulties with recall, especially if he is very anxious and for this reason he may not be an entirely reliable witness under the tensions of the court room. It is therefore quite likely that Dr Allen's mental state compromised his perceptions at this time. An example of this is that in paragraph 28 of the statement of 31 July 2006, Dr Allen stated that "I give this statement freely and voluntarily. No threat, promise or inducement has been held out to me to give this statement." Below this paragraph in handwriting are the following questions:
Q: Has any threat, promise or offer of advantage been held out to you to make this statement?Q: Have you made this statement of your own free will?
A: Yes.
A: Yes.
73 The Tribunal has taken into account these matters in determining the Order that should ultimately be made in this matter.
74 Dr Allen admitted particular 5. However, in doing so, Ms Ronalds submitted that there were particular matters that should be taken into account, those being, that he had been giving evidence for a significant period of time in the Supreme Court; it was late in the afternoon when he spoke to Detective Sergeant Ainley; he had received a warning from her Honour; he was confused, he had no memory of the events in 2002; and he had not been sleeping.
75 The statement of 31 July 2006 confirmed Dr Allen's view that he had been set up by Ms Sood to give false evidence and that he had been used by Ms Sood to help her out of some trouble. It also confirms that he knew the statement of 11 June 2002 to be false (based upon his knowledge at that time that he did not work on 21 May 2002) and that he signed the statement to help Ms Sood.
76 Mr Farmer contended that there was no logical connection between Dr Allen being at work on 21 May 2002 and whether he made a phone call to a Queensland clinic. Counsel pointed to the statement of 31 July 2006 in which Dr Allen stated that he made no phone call at all to a Brisbane clinic. The difficulty with this analysis of the statement of 31 July 2006 is that it is, as was submitted by Ms Ronalds , polluted by the incorrect belief by Dr Allen that he was not working on 21 May 2002. A fair reading of the statement of 31 July 2006, would be that the reference to "not making any calls to any clinic" should have included the words "on 21 May 2002." The statement was about what occurred on that day. So much was confirmed by the evidence of Detective Sergeant Ainley during Ms Sood's trial.
77 The statement should be read as a whole. Paragraphs 8, 14 and 20 of the statement of 31 July 2006 should be read in the context of the preceding paragraphs in the statement. To read them in isolation, in the Tribunal's view, would lead to error. It is clear from the evidence, although Dr Allen does not now have an independent recollection, that he made two telephone calls to Queensland Clinics on 7 June 2002. It follows that the reference to making a call on 21 May 2002 was incorrect and all subsequent matters linked to that actual date were also incorrect when put before the Board. The Tribunal finds accordingly.
78 Each of the statements referred to in particular 5 were contained in the statement of 31 July 2006. Dr Allen's evidence is that each of these statements are correct. He says he was set up by Ms Sood, who he trusted. She gave him the statement which he signed. However, Dr Allen did not admit that these statements were made in circumstances where he believed them to be untruthful. The Tribunal finds that at the time he made these statements, he believed that they were truthful. We are unable, having regard to all the evidence, to reach the level of satisfaction required to find that Dr Allen made the statements intentionally knowing them to be false.
79 Ms Ronalds submitted that particulars 3, 4 and 5 should be struck out because they did not give rise to any disciplinary issue. Counsel contended that they were simply statements of fact that did or did not occur and did not give rise to any misconduct because of the way that they have been pleaded. The purpose of particulars is to identify the scope of the facts properly relevant to the issues raised in the complaints. All facts on which the complaints depend are therefore material to the complaints. The critical question that arises in circumstances where Dr Allen has admitted particulars 3, 4 and 5 subject to the qualification made by Ms Ronalds, is what was his intention in acting in this manner and in making the statements of 11 June 2002 and 31 July 2006. The Tribunal is comfortably satisfied that Dr Allen was careless in making these statements, but the evidence does not allow a finding to be made that he deliberately sought to mislead the Board. In respect of the statement of 31 July 2006, the matters raised earlier in mitigation by Ms Ronalds must be accorded appropriate weight. However, taking all those factors into account, Dr Allen's conduct fell below that expected of an experienced medical practitioner and is deserving of criticism.
80 A medical practitioner has a duty to disclose the full nature of his or her understanding of factual matters if called upon to provide a statement to the Board or this Tribunal. If relevant, practitioners should indicate the limits of their knowledge. If the Board had been appraised of what Dr Allen now says are the circumstances surrounding the provision of his statement to Ms Sood, it is highly likely that the Board would have given no weight to Dr Allen's statement. The statement would have been seen for what it was, that being, an attempt by Ms Sood to mislead the Board.
Whether unsatisfactory professional conduct or professional misconduct
81 For the purpose of this Act, "unsatisfactory professional conduct" of a medical practitioner is defined as follows:
- 36 Meaning of “unsatisfactory professional conduct”
(1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:
- (a) Conduct significantly below reasonable standard
- Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
(m) Other improper or unethical conduct
- Any other improper or unethical conduct relating to the practice or purported practice of medicine.
82 For the purposes of this Act, "professional misconduct" of a registered medical practitioner means:
(a) unsatisfactory professional conduct, or37 Meaning of "professional misconduct"
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct,
of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner’s name from the Register.
83 Mr Farmer submitted that the Tribunal should find that Dr Allen had engaged in professional misconduct. The HCCC relied upon an expert report from Dr Linda Mann, a general practitioner who considered the material currently before the Tribunal. In respect of the statement that Dr Allen made to support Ms Sood in her appearance before the Board, Dr Mann stated:
- When asked to make such a statement, a general practitioner should relay the truth, indicating the limits of their knowledge. Such limits may be clinical limits, or limits related to time, or what was seen, or what went on. If unsure of the subject matter of the statement the general practitioner should indicate just this. If the provision of a statement is difficult because of the general practitioner being unsure of the subject matter of that statement, the general practitioner can get advice from his medical defence organisation, who can make clear exactly how a general practitioner can answer the request for such a statement.
84 Dr Mann further stated:
- With regard to the statements of 11 June 2002, 13 October 2003 and 31 July 2006 and assuming that Dr Allen knew that all or part of any of these statements was false, I would consider that Dr Allen's behaviour in writing such a statement which contained false information departs significantly from the standard expected of a practitioner of an equivalent level of training or experience, applicable at the time the statement was written namely 2002, 2003, 2006 . Dr Allen knew at the time that the statements were written that they were important, and related to a medical situation known to the Medical Board, and subsequently to the Police. ... Assuming that Dr Allen knew that all or part of at least one of these statements were false, he behaved in a way that is unethical and attracts my strong criticism because of the significance of the statements over time .
...
With regard to the statement dated 11 June 2002 and 13 October 2003 and assuming that Dr Allen was unsure when he made any or all of these statements that all or part of these statements were true, complete or correct, it behoved Dr Allen to indicate in the statement, what part of the information he was writing about was true to his knowledge, and what part he was unsure about. The provision of such a statement assumes that the information provided was correct, because this is the behaviour expected of a practitioner of an equal level of training or experience applicable in 2002 and 2003. The statements do not contain any expression that suggests that Dr Allen was unsure. Assuming that he was unsure, the statements are not truthful ones. I would consider that Dr Allen's behaviour in writing such statements which contained inaccurate or untruthful information departs significantly from the standard expected of a practitioner of an equivalent level of training or experience, applicable at the time the statement was written namely 2002 and 2003.
85 Dr Mann's report in part is based on the assumption that Dr Allen knew that all or part of the statements of 11 June 2002 and 31 July 2006 were false. Dr Mann's conclusions must be considered in light of the findings made by the Tribunal. In particular, that Dr Allen did not deliberately or intentionally make a false statement on 11 June 2002 and 31 July 2006. The HCCC also relied upon the New South Wales Code of Professional Conduct and the duties of a doctor registered with the New South Wales Medical Board.
86 In Dr Mann's opinion, Dr Allen's conduct crossed professional boundaries and fell below the standard expected of a practitioner whose level of training and experience was equivalent to that of the practitioner. Dr Allen's conduct attracted Dr Mann's strong criticism, particularly his failure to state what matters he was unsure about and the limits of his knowledge. The Tribunal has found that Dr Allen's conduct fell significantly below the standard reasonably expected of a medical practitioner of his experience. Dr Allen admitted such conduct was improper or unethical and the Tribunal finds accordingly. Dr Allen made statements carelessly and seemingly without any concern as to whether anyone may be misled by them. The making of such statements, as we have observed, calls for strong criticism by others in the profession. We find Dr Allen guilty of professional misconduct.
87 The complainant's position was that if the Tribunal made such a finding, the Tribunal should consider making an order for the deregistration of Dr Allen. It was submitted that the gravity of the conduct renders Dr Allen unfit to practice medicine having regard to his conduct. This jurisdiction is protective rather than punitive, and deregistration is not an automatic outcome of professional misconduct, even where that conduct is sufficiently serious to justify it: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. It is clear that deregistration may be required in serious cases of misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and by maintaining public confidence in the professional: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]. Medical practitioners clearly have an obligation to be candid in any dealings that they have with the Board: see Health Care Complaints Commission v Wingate (at [43] - [44].
88 Ms Ronalds submitted that there was no risk that such misconduct would recur. Counsel emphasised that Dr Allen acknowledged his misconduct and was contrite and remorseful. He had stated that he was extremely sorry that these events had occurred. He further acknowledged that he had broken the Code and that his conduct was a bad example to other doctors, particularly in his local area where he is well known and also in New South Wales. The Tribunal is satisfied that Dr Allen will not repeat this conduct. The Tribunal has come to this opinion because it considers that Dr Allen committed the misconduct because he trusted Ms Sood and that dealing with Ms Sood on occasions was very difficult as she was very disorganised, demanding and bossy. The Tribunal also has to take into account that Dr Allen admitted the second complaint and the majority of the particulars.
89 A further matter that the Tribunal has taken into account is that Dr Allen's practice of medicine has been exemplary. There is no doubt that this is the reason he received very positive character references from a number of his colleagues, two nurses and a pharmacist. Many of them have worked with him for in excess of 25 years and stated that they have known him personally. They also commented on the important work that he does in the community. We have taken these references into account.
90 Ms Ronalds also relied on medical reports in respect of Dr Allen's state of health. Dr Bruce Westmore, a forensic psychiatrist, provided a medical report dated 14 May 2007. Dr Westmore set out the circumstances that led to this complaint, Dr Allen's medical history, observing that he first saw a psychiatrist in 1986 when he was diagnosed with an anxiety disorder and that he continues to attend a psychiatrist every three to six months. Relevantly, Dr Westmore's opinion was as follows:
1. I would imagine that Dr Allen's home life has a significant impact on him psychologically. He would be concerned about his wife, the illness and her future. His son is likely to have had long-standing problems which would also impact from time to time on Dr Allen's mental state.
2. Most people do attempt to avoid stressful situations but some people are more prone to psychological distress and anxiety when confronted with difficult, demanding or stressful situations. I would accept that Dr Allen has some of those qualities, it is difficult to pass many comments about his personality structure and profile however as I have only examined him on one occasion.
4. I do not think his medication would adversely affect his mental state or have any significant impact on his behaviour.3. Again, I would note I have only examined him once and my ability to pass many comments about aspects of his personality is limited because of that fact. It is possible that when highly anxious this man is more vulnerable to suggestion and to being influenced by others. He does present as being a shy somewhat timid individual and he was quite anxious when I examined him. I noted the circumstances which he said were present at the time the second statement was prepared and signed, although I do also note his handwritten observations at the end of that document. He has not had much contact or experience with police officers or court. He may be prone to get flustered at times and that may have been the case after he had given evidence in court and when speaking to the police officer.
91 Ms Ronalds also relied upon two reports from Dr Hansen, Dr Allen's general practitioner since July 1984. In a report dated 1 August 2006, Dr Hansen stated:
He suffered an attack of hypomania in 1983 and since that time has been in good remission. He has however experienced occasional perturbations of mood, usually related to life stresses and he is prone to anxiety.
He tries to avoid undue stresses in his life.
I do not think that his medication would affect his memory/recall but his anxiety level could.It is quite possible that he could have difficulties with recall, especially if he is very anxious and for this reason he may not be an entirely reliable witness under the tensions of the court room.
92 The evidence discloses that during the Supreme Court trial, Dr Allen was taking Lithium for his mental illness. He increased the medication during the trial. The evidence also discloses that one of the symptoms of Dr Allen's illness is problems with memory and anxiety. The Tribunal has taken these matters into account in the overall determination of this complaint.
93 The Tribunal has also taken into account Dr Allen's age (65 years), the length of time that he has practised medicine (42 years) and his work as a doctor with Methadone and aged care patients who live in Western Sydney. Dr Allen has not previously come to the attention of the Board or this Tribunal. The Tribunal in considering the question of Dr Allen's character, has taken into account the matters set out earlier, which support his continued registration. The Tribunal considers that in all the circumstances Dr Allen's misconduct requires that he be reprimanded. In reaching this decision, we have also been mindful of the desirability of similar disposition of cases involving similar facts. In this regard, the Tribunal was referred to Re Dr Richard Wingate [2007] NSWMT 2.
Costs
94 The Tribunal's power and discretion in relation to costs was reviewed in NSW Medical Board v Dinakar [2009] NSWMT 8. The general rule is that, in the absence of disentitling conduct by the successful party, the Tribunal will exercise its discretion by compensating the successful party through an order for costs. The HCCC sought costs in the event that it was successful. No submissions were put in opposition to this by Ms Ronalds. Dr Allen should pay the HCCC's costs of these proceedings on the ordinary basis as defined in s 3 of the Civil Procedure Act 2005.
ORDERS
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.
1. Dr Allen is reprimanded.
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.
(signed and sealed)
His Honour Justice Staff Dr D Grimes
Dr J Ng Mr R Smith
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