Facts

The practitioner in the matter of Hampshire v Health Care Complaints Commission [2021] NSWCA 283 was first registered as a medical practitioner in 1976, and had been a consultant psychiatrist since 1988.

His registration was cancelled by the NSW Civil and Administrative Tribunal (‘the Tribunal’) in 2020 because he had sent sexually inappropriate text messages to a young woman (‘Patient A’) after a medico-legal assessment of her in April 2017. He had also failed to comply with health conditions on his registration that imposed limits on his intake of alcohol and sedatives, and he was considered not competent to practice due to alcohol dependence.

The practitioner knew Patient A was vulnerable because he had assessed her: she was young, and was reliant on him for a report in her damages claim against another party.

Regulatory response

The practitioner’s registration was suspended in August 2017 after Patient A lodged her complaint.  In July 2019 the Health Care Complaints Commission (‘HCCC’) filed a complaint in the Tribunal.

The HCCC complaint contained two elements:

1.  The boundary violation of Patient A; and
2. The breaches of conditions on the practitioner’s registration relating to limits to alcohol use and sedative medication. 

The HCCC alleged that the practitioner was both impaired and not competent to practise, as a result of a diagnosis of alcohol use disorder. 

In the Tribunal hearing the practitioner tendered expert evidence from Dr Apel relating to the practitioner’s alcohol dependence, including:

1. whether he had capacity to practise medicine safely, and
2. what conditions would be appropriate.

The HCCC did not tender expert evidence in reply.  Dr Apel diagnosed depression in remission and alcohol use disorder, for which a period of abstinence was necessary - but had not yet commenced.  He also said the alcohol use disorder could not be said to be in remission until a period of abstinence of at least three years had passed.  With respect to what conditions would be appropriate, Dr Apel considered that monitoring and supervision were appropriate.

The Tribunal found that the practitioner was impaired based on his alcohol use disorder, which can grossly impair judgment and clinical ability.  The Tribunal found, therefore, that he was not competent to practise. 

The Tribunal cancelled the practitioner’s registration and directed that there be no review for three years (this being the period required for abstinence based on Dr Apel’s report).  

Appeal

The practitioner appealed to the NSW Court of Appeal against the finding of professional misconduct with respect to the text messages and communications with Patient A.  He also appealed against the finding that he was not competent to practise due to his alcohol use disorder.  The practitioner did not challenge the Tribunal findings of unsatisfactory professional conduct, nor the finding of impairment.

The practitioner challenged the protective orders as excessive, and instead sought suspension, reprimand and imposition of practice conditions.

The Court of Appeal decided that cancellation of registration was open to the Tribunal.  The practitioner’s conduct in relation to Patient A was the result of consumption of alcohol and sedatives in breach of the conditions of his registration on a single day.  It was open to the Tribunal to assess that monitoring and supervision conditions did not address the risk to health and safety of the public.

The practitioner had a previous history of periods of deregistration and suspension[1]. 

The findings that the practitioner was not competent to practise was based solely on the diagnosis of alcohol use disorder and alcohol dependence.  This diagnosis had been made during the Tribunal hearing, when it was raised by a Tribunal member to the practitioner’s treating psychiatrist, Dr Armstrong. 

The practitioner’s boundary violation with Patient A, taken together with the breaches of conditions, and misleading regulators in respect of his use of both alcohol and sedatives over a period of two years, led to the cancellation of the practitioner’s registration. 

The Tribunal found that the practitioner had deliberately misled the regulatory authorities about his alcohol and sedative use in his Council Review Interviews (CRI) and Council Appointed Psychiatrist (CAP) assessments in the period from 2015 to 2017. The Court of Appeal agreed it was open to the Tribunal to find that this conduct warranted suspension or cancellation of his registration.

Impairment

The Tribunal noted that a finding of impairment does not necessarily lead to a finding of lack of competence to practise: there is a distinction between impairment and competence.  The question of competence was solely based on reference to the practitioner being impaired by reason of alcohol use disorder and alcohol dependence.

Failure to comply with conditions

The practitioner’s history of failing to comply with conditions in the past and his having actively hidden this from those monitoring him, was a significant factor in the decision to cancel his registration (rather than imposing further conditions).  The Tribunal had no confidence that the doctor would adhere to the conditions proposed by them. 

The Court of Appeal held that it was open to the Tribunal to conclude that the doctor’s alcohol dependence could not be managed, and that the public could not be sufficiently protected by conditions on his registration, as opposed to cancellation. 

The risk of relapse was ever present and the decision to impose a three-year cancellation before review was appropriate, given the expert evidence that a period of three years abstinence was needed before the alcohol dependence condition could be said to be in remission.

Significance

The matter of Hampshire v Health Care Complaints Commission [2021] NSWCA 283 is not the first to clearly illustrate the importance of complying with professional standards, and the risks of failing to do so.

This is similar to the matter of Rahman v Health Care Complaints Commission [2021] NSWCA 247 (discussed in Holman Webb’s December 2021 article), in that the practitioners in question both had histories of non-compliance with conditions, which gave the respective Tribunal Members no confidence that either would adhere to further conditions imposed.

Hampshire v Health Care Complaints Commission [2021] NSWCA 283 illustrates that professional standards apply even if a practitioner is not in a treating relationship with a complainant.  Boundary violations will be treated just as seriously when consultation is for one-off medico-legal assessment, as when the doctor and patient are in a therapeutic relationship.

This matter further illustrates that conduct over the course of a single day can be sufficient to attract severe penalty, including cancellation of registration. 

In this instance, the Tribunal found that the conduct in relation to Patient A was the result of consumption of alcohol (six or more standards drinks) and one tablet of a Benzodiazepine, in breach of the conditions on the practitioner’s registration on a single day. However, this was in the context of serial breaches of conditions, as well as the misleading of regulators and a finding of incompetence to practice.

If you have a query relating to any of the information in this case note, please don’t hesitate to get in touch with Zara Officer, Partner within Holman Webb’s Insurance Group.