Woolcock v Medical Board - [2009] NSWMT 3

MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIRMAN: Staff J

MEMBERS:Dr D Child Dr K Ilbery Dr M Gleeson

Wednesday, 10 June 2009

Matter No 40017/07

HEALTH CARE COMPLAINTS COMMISSION v SWAPAN CHOWDHURY

DETERMINATION AND ORDERS

1Dr Swapan Chowdhury graduated from the All India Institute of Medical Sciences, New Delhi in 1977. He came to Australia in 1982 and commenced work as a Resident Medical Officer at Alice Springs Hospital in 1982. In late 1985, Dr Chowdhury relocated to Perth and worked as a Senior Resident Medical Officer in plastic surgery at the Queen Elizabeth II Medical Centre Trust and as a Registrar in Urology at Sir Charles Gairdner Hospital in Perth. Apart from working as a locum general practitioner in Preston, Victoria for two months in 1987, Dr Chowdhury continued to work in general practice in Perth until July 2000. In August 2000, Dr Chowdhury moved to Sydney and commenced working at the Blue Cross Medical Centre in Kingsgrove, the Australian Health Care Centre in Kirrawee and as a general practitioner at the Practise known as "Spectrum Health" in Waverley. Dr

Chowdhury, who we shall therefore refer to subsequently in this Determination as "Mr Chowdhury", did not renew his registration as a medical practitioner when it expired in April 2007.

THE COMPLAINTS

The present proceedings concern two complaints. Firstly, a complaint was made by a former patient of Mr Chowdhury, who shall be referred to as "Patient A". This complaint, which was made to the Health Care Complaints Commission ("the HCCC") on 24 January 2006, involved allegations that Mr Chowdhury had visited Patient A's flat in March 2003, and that during one of these visits, had engaged in oral sex with Patient A.

The second complaint, which was brought by the HCCC against Mr Chowdhury, alleged that between 19 July 2005 and 19 September 2006, Mr Chowdhury had contravened a condition to which his registration was subject. Such conditions were imposed by a Performance Review Panel Inquiry held on 28 April 2005. The Medical Practice Act 1992 ("the Act") makes provision for a performance review to be conducted into the professional performance of a registered medical practitioner. We shall refer to this Inquiry in more detail shortly.

Mr Chowdhury conceded this complaint in his material filed in the present proceedings. It appears that because of the matters contained in this complaint, Mr Chowdhury did not renew his registration to practice as a medical practitioner in 2007.

Both complaints were brought pursuant to s 36 and s 37 of the Act alleging that Mr Chowdhury was guilty of unsatisfactory professional conduct in terms of the first of these sections and/or professional misconduct within the meaning of s 37 of the Act. It is convenient to here set out the terms of the

complaints and the particulars provided by the HCCC in respect of both complaints.

First Complaint

The first complaint alleged that the practitioner:

Has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act…

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.

Keep reading for free

Create a free CaseChat account to read Woolcock v Medical Board and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWMT 3
Decision Date: 10 June 2009

CaseChat Overview and Summary

This case involves two complaints against Dr Swapan Chowdhury, a medical practitioner, brought by the Health Care Complaints Commission (HCCC). The first complaint alleges that Dr Chowdhury engaged in sexual misconduct with Patient A, while the second complaint alleges that he contravened conditions imposed on his registration. The Medical Tribunal of New South Wales was tasked with deciding the legal issues arising from these complaints. The Tribunal found that the first complaint was not established as they were not comfortably satisfied, on the balance of probabilities, that Patient A's account of the alleged incidents of misconduct were to be accepted. However, the second complaint was admitted and found proved, as Dr Chowdhury deliberately and repeatedly breached the conditions imposed on his registration. The Tribunal concluded that his conduct amounted to both unsatisfactory professional conduct and professional misconduct. As a result, the Tribunal ordered that Dr Chowdhury be not re-registered as a medical practitioner and be prohibited from providing any health services for a period of two years. The Tribunal also proposed to reprimand Dr Chowdhury for his conduct. The parties have liberty to apply in respect of the question of costs.

Orders