Health Care Complaints Commission v Dr Perroux (No. 2)

[2011] NSWMT 15

Medical Tribunal

New South Wales

Medium Neutral Citation:

Health Care Complaints Commission v Dr Perroux (No. 2) [2011] NSWMT 15

Hearing dates:

9 December 2011

Decision date:

09 December 2011

Before:

MURRELL SC DCJ
DR JAMMAL
DR KERTESZ
DR GLEESON

Decision:

Respondent reprimanded

Conditions to be met on re-registration

Respondent to pay costs

Catchwords:

Ex parte
Procedural fairness
Disciplinary orders
Reprimand
Conditions upon re-registration
Costs

Legislation Cited:

Health Practitioner Regulation National Law (NSW) No 86a
Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99

Cases Cited:

Ohn v Walton (1995) 36 NSWLR 77
Lucire v Health Care Complaints Commission [2011] NSWCA 99

Category:

Consequential orders

Parties:

Health Care Complaints Commission
Ex parte

Representation:

Ms Mathur
Ms Westwood

File Number(s):

...

Judgment

1. On 15 August 2010, the Tribunal heard proceedings ex parte in relation to a complaint concerning Ms Denise Perroux. The matter proceeded ex parte after it was ascertained that Ms Perroux had received more than adequate notification that the proceedings were on foot. On 16 August 2011, the Tribunal gave its decision, finding Ms Perroux guilty of unsatisfactory professional conduct: Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99. The Tribunal adjourned the proceedings to afford Ms Perroux the opportunity to present evidence and make submissions in respect of appropriate disciplinary orders: Lucire v Health Care Complaints Commission [2011] NSWCA 99 .

Reasonable opportunity in the circumstances

1. Following the decision of 16 August 2011, the complainant and the Medical Tribunal took steps to ensure that Ms Perroux could avail herself of the opportunity to be heard in relation to disciplinary orders:

August 2011: The Solicitor for the HCCC left a voicemail message for Ms Perroux on what was understood to be her telephone, advising her of the Tribunal's decision.

17 August, 16 September 2011: The HCCC sent letters to a Nimbin address advising Ms Perroux of the Tribunal's decision, the hearing date, and the purpose of the hearing, ie to ascertain the appropriate outcome and consider an application for costs.

14 November 2011: The Commission personally served Ms Perroux at her father's address in the Australian Capital Territory, with a copy of the Tribunal's decision, and copies of the letters of 17 August and 16 September.

15 November 2011: The Medical Tribunal forwarded a letter to Ms Perroux.

20 November 2011: Ms Perroux wrote to the Medical Tribunal, referring to their letter, and providing a short chronology of her perception of how matters had proceeded. She went on to suggest that the New South Wales Medical Board "take financial responsibility for any legal costs they may have incurred via the HCCC". Ms Perroux did not indicate whether she intended to attend the hearing today.

6 December 2011: The Medical Tribunal sent a letter by express post to Ms Perroux. That letter should have reached her in the ACT on 7 December. The letter urged Ms Perroux to obtain legal advice and attend the hearing, and informed her that the Tribunal could take action despite the fact that she was not a registered practitioner, having surrendered her registration on 15 July 2011. She remains unregistered as at this date.

1. In these circumstances, the Tribunal is well satisfied that Ms Perroux:

(1)   Is aware that the outcome proceedings are listed for today;

(2)   Is aware of the findings of the Tribunal made on 16 August 2011;

(3)   Has decided that she will not attend for the purpose of making submissions to the Tribunal about an appropriate outcome or costs.

Proposed Disciplinary Orders

1. Pursuant to ss 139G and 149A of the Health Practitioner Regulation National Law (NSW) No 86a (the Act) , the Tribunal, inter alia, has jurisdiction to:

(1)   Caution or reprimand a health practitioner who is no longer registered;

(2)   Require that conditions be imposed in respect of the practitioner when and if the practitioner is reregistered.

1. The complainant submits that an appropriate outcome is that Ms Perroux be reprimanded, and that conditions be imposed on any future registration. The Tribunal believes that while the nature of the unprofessional conduct was serious, the only appropriate response, given all the circumstances outlined in the substantive judgment, is as the complainant submits.

1. The first of the proposed conditions concerns the practitioner completing at her own expense a course on medical ethics at Monash University within eighteen months of being registered. The Tribunal is divided about whether this condition is appropriate. One member of the Tribunal believes that such a condition should be imposed because, at a general level, Ms Perroux does require education regarding the parameters of behaviour that may be acceptable for a registered practitioner. However, the remaining three members of the Tribunal believe that the condition is not appropriate because the conduct the subject of the complaint was conduct related to a failure to obtain insurance. The Tribunal has no material before it that suggests that the proposed medical ethics course would address such matters, nor does the Tribunal have any reason to believe that the course would address the arrogant attitude to which reference is made in the reasons of 16 August. For these reasons, by majority declines to impose a condition regarding medical ethics.

1. The Tribunal considers that the second proposed condition, which requires an audit of the practitioner's medical practice, is entirely appropriate. An audit would reveal, inter alia, whether the practitioner has complied with the requirement in relation to professional indemnity insurance.

1. The next proposed condition is that Ms Perroux provide a current certificate of professional indemnity insurance within a short period of lodging her application for registration. For obvious reasons, that is an appropriate condition.

1. The final proposed condition refers to the authorisation of exchange of information between the Council and Medicare Australia where such exchange may be necessary to facilitate the monitoring of compliance with the conditions. Again, that condition is appropriate for obvious reasons.

Costs

1. The complainant submits that, in accordance with ordinary practice, costs should follow the event and the successful party should obtain it s reasonable costs: Ohn v Walton (1995) 36 NSWLR 77. The impecuniosity of a respondent is generally no reason to deny a successful complainant a favourable costs order. The Tribunal sees no reason to depart from ordinary practice.

Orders

1. 1. The Tribunal reprimands Ms Perroux.

2. Pursuant to s 149A(3)(b) of the Act, the Tribunal requires that the following conditions (the terms of which are proposed in paras 3.7(2), (3) and (4) of the complainant's submissions dated 16 September 2011) be imposed when the practitioner is registered:

"(1) Within 6 months of recommencing practice as a medical practitioner, she is to submit to an audit of her medical practice by a person nominated by the Council. The audit is in relation to her professional indemnity insurance arrangements and the types of services conducted, to ensure that her insurance arrangements cover the types of service she is providing:

(a)   The practitioner authorises the auditor(s) to provide the Council with a report on their findings. On the basis of that report, the Council will determine if a further audit or other action is required.

(b)   The practitioner is to meet all reasonable costs associated with the audit/s and any subsequent report/s.

(2) As part of any application pursuant to Part 7 of the National Law, Dr Perroux is to provide a current certificate of professional indemnity insurance to both the National Board and the Council within 14 days of lodging her application for registration and thereafter within 14 days of lodging her annual application for renewal of registration within the Australian Health Practitioner Regulation Agency (AHPRA). This condition applies until such times as it is reviewed or revoked by the Council.

(3) The practitioner authorises and consents to any exchange of information between the Council and Medicare Australia where such exchange is necessary to facilitate the monitoring of compliance with these conditions."

3. The respondent is to pay the complainant's costs as agreed or as independently assessed.

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Decision last updated: 23 February 2012