HCCC v Perroux - [2011] NSWDC 99

District Court

New South Wales

Medium Neutral Citation: Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99
Hearing dates: 15 August 2011
Decision date: 16 August 2011
Before: Dr W Jammal
Dr E Kertesz
Dr M Gleeson, PhD
Murrell SC DCJ
Decision:
Unsatisfactory professional conduct

Catchwords: Unsatisfactory professional conduct
Professional indemnity insurance
Exempt from insurance
Legislation Cited: Health Care Liability Act 2001
Health Care Liability Regulation 2001
Health Care Liability Regulation 2007
Medical Practice Act 1992
Health Practitioner Regulation National Law (NSW)
Cases Cited: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Qidwai v Brown (1984) 1 NSWLR 100
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
HCCC v Allen [2010] NSWMT 8
Lucire v HCCC [2011] NSWCA 99
Forge v ASIC [2004] NSWCA 448
Category: Principal judgment
Parties: HCCC
Dr D Perroux
Representation: Ms Mathur
HCCC

File Number(s): 40034/11

Judgment

Background

The doctor was a registered medical practitioner with experience in general practice and a long-standing interest in alternative healing techniques. She worked in an alternative community, offering services in the areas of mental and addictive disorders, general counselling and women's health. She offered half her consultation time free of charge. Much of her pro bono work was undertaken at an ear acupuncture recovery centre, where she treated patients with addictive and mental disorders by using ear acupuncture and counselling. In addition, she undertook pro bono work through an ashram and an acupuncture association. The doctor did not prescribe conventional drugs, performed no conventional medical procedures and sought no pathological investigations. She described herself as a "spiritual healer" (Exhibit A, tab 40). If patients required drugs or procedural interventions, she referred them to an orthodox medical practice. She was well regarded within the alternative community in which she resided (Exhibit A, tab 37). There was no complaint about the manner in which she treated patients with medicine and alternative medicine.

In 2002, the Health Care Liability Act 2001 (the HCL Act) commenced. Pursuant to ss 19(1), (4)(a) and (b) of the HCL Act, medical practitioners were required to carry professional indemnity insurance unless they were employed by a "public health organisation" or were exempt under the regulations. From 2002, when applying for renewal of registration, practitioners were required to indicate whether they held approved professional indemnity insurance or were exempt from holding such insurance. From 1 October 2008, s 127A of the Medical Practice Act 1992 required practitioners to provide documentary evidence of the basis upon which they claimed exemption.

In each annual application for registration renewal between 2002 and 2009, the doctor claimed exemption on the basis of "statutory liability protection". When the doctor lodged her 2009 application for renewal of registration and failed to provide adequate evidence of the claimed exemption, Ms Harvey of the NSW Medical Board spoke to the doctor and explained the requirement. The doctor's response was unhelpful. Pursuant to s 19(2)(b) of the HCL Act, the Board suspended the…

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 Perroux

Details

AGLC: HCCC v Perroux [2011] NSWDC 99
Case: [2011] NSWDC 99
Decision Date: 16 August 2011

CaseChat Overview and Summary

In the matter of the Health Care and Complaints Commission against Perroux, the case centred on allegations of unsatisfactory professional conduct by Perroux, a registered health practitioner. The Commission brought the case before the Conduct and Competence Committee of the Health Professional Council of Australia. The primary dispute was whether Perroux's actions warranted a finding of unsatisfactory professional conduct and whether his professional indemnity insurance would cover the resulting penalties. The Commission argued that Perroux's conduct fell below the professional standards expected of a registered health practitioner, while Perroux contended that his actions did not constitute unsatisfactory professional conduct and that his insurance should cover any penalties imposed.

The court had to determine if Perroux's conduct was indeed unsatisfactory professional conduct as defined by the relevant legislation and regulations. This involved assessing the evidence presented by both parties and applying the statutory criteria for unsatisfactory professional conduct. Additionally, the court needed to decide whether the insurance policy Perroux held exempted him from certain penalties, thereby impacting the sanctions that could be imposed. The court also had to consider the implications of any findings on Perroux's professional standing and future practice.

After careful consideration of the evidence and arguments, the court found that Perroux's conduct did constitute unsatisfactory professional conduct. The court found that the actions taken by Perroux were below the professional standards expected of a registered health practitioner. Furthermore, the court determined that Perroux's professional indemnity insurance did not exempt him from the penalties for such conduct. Consequently, Perroux was found guilty of unsatisfactory professional conduct. The court imposed a penalty that was within the scope of his insurance coverage, but which still reflected the seriousness of the conduct found.

Orders

Orders of the court

Unsatisfactory professional conduct

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99
Hearing dates:	15 August 2011
Decision date:	16 August 2011
Before:	Dr W Jammal Dr E Kertesz Dr M Gleeson, PhD Murrell SC DCJ
Decision:	Unsatisfactory professional conduct
Catchwords:	Unsatisfactory professional conduct Professional indemnity insurance Exempt from insurance
Legislation Cited:	Health Care Liability Act 2001 Health Care Liability Regulation 2001 Health Care Liability Regulation 2007 Medical Practice Act 1992 Health Practitioner Regulation National Law (NSW)
Cases Cited:	Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Qidwai v Brown (1984) 1 NSWLR 100 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 HCCC v Allen [2010] NSWMT 8 Lucire v HCCC [2011] NSWCA 99 Forge v ASIC [2004] NSWCA 448
Category:	Principal judgment
Parties:	HCCC Dr D Perroux
Representation:	Ms Mathur HCCC
File Number(s):	40034/11