The criminal finding was a conviction relating to offences of dishonestly obtaining financial advantage by deception and making false document to obtain financial advantage. The doctor had become involved in a scheme involving doctors and lawyers to defraud insurance companies arising from alleged motor vehicle accidents. As part of this, the doctor had falsified medical records of a patient in order to bolster her injury claim and make her injuries appear worse than they were. On another occasion he provided a false medical certificate to a patient for a fee. He was fined $1,000 and sentenced to an 18 month conditional release order. The Medical Council of NSW had suspended his registration on 31 July 2020.
The doctor had no previous criminal history. He did have prior acts of professional misconduct / records of complaint (where his name had been removed from the register between 1999 and 2003; and conditions imposed on his registration between August 2013 and September 2014).
Determination
At the heart of the Tribunal’s determination was the meaning, construction and application of the words “circumstances of the offence render the practitioner unfit in the public interest to practise medicine”. The Tribunal noted that:
- The term “public interest” was not defined by the National Law.
- It included an objective of public confidence in the standards of the profession.
- The purpose of the orders were protective in the public interest and not punitive with respect to the individual
- Interpretation of the Section was not subject to any ‘probably permanent limitation upon the fitness finding required’
The Tribunal stated the offences were intrinsically serious and involved calculated acts of dishonesty that were an egregious breach of the ethical standards required of a medical practitioner. Each of the offences involved an abuse of the doctor’s position by taking advantage of the public trust in the medical profession and the presumption that doctors would act honestly. In addition, the falsification of medical records posed risks to the health and safety of patients as these records inform future decisions about care and treatment and may be relied upon by other practitioners. The circumstances of the offending revealed defects of character and integrity and clear proof of reformation was required. The Tribunal also noted the potential for significant impact upon the confidence of the public in the medical professional as a whole.
The Tribunal considered the circumstances of the offending at the relevant time (in 2020) would have rendered the doctor unfit in the public interest to practice medicine. However, it had been some two years and the doctor had reflected upon his conduct, engaged in education and intensively with a psychologist and gained insight. The doctor’s treating psychologist’s evidence supported a conclusion that the doctor had reformed (ie., there was no indication of risk factors, he had developed insight, was unlikely to reoffend, there was no indication he was risk to community, there were no concerns about making clinical decisions, he had shown insight and was remorseful).
The Tribunal concluded that the doctor was not now unfit in the public interest to practise medicine. Further, after a period of suspension, very restrictive conditions would be imposed on his registration which would be a good protective measure against reoffending, the risk of which they considered to be small. The Tribunal considered the past adverse findings, which were a different category of professional misconduct, were very relevant to their determination. They accepted he had made a genuine attempt to reform, addressed the root cause of his prior misconduct and continued to keep himself informed with developments in the practice of medicine.
The Tribunal subsequently suspended the doctor’s registration to 16 August 2022 with restrictive conditions relating to practice, monitoring, supervision and health, amongst other things, imposed thereafter.
Take Away
The case is a timely reminder to all health practitioners who may be asked to provide a report for a patient in support of an insurance claim or a workplace issue. Such reports should only address the factual matters of which the practitioner is aware and care must be taken not to embellish or overstate the patient’s complaints.
To read the decision in Health Care Complaints Commission v Hatoum [2022] NSWCATOD 72, click here.
