Medical Tribunal New South Wales

• Medium Neutral Citation: Health Care Complaints Commission v Dr Nair [2013] NSWMT 19
• Hearing dates: 02/12/2013
• Decision date: 02 December 2013
• Jurisdiction: Civil
• Before: Elkaim SC DCJ; Dr M Cox; Dr J Wright; Ms D Robinson

Decision

See paragraph 31

• Catchwords: Serious criminal conduct, breach of conditions, deregistration
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Health Practitioner Regulation National Law (NSW) (No 86a); Drug Misuse and Trafficking Act 1985
• Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; General Medical Council v Spackman [1943] AC 627; Lee v Health Care Complaints Commission [2012] NSWCA 80
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Applicant); Dr Suresh Surendranath Nair (Respondent)
• Representation: Mr P Strickland SC (Applicant); Mr M Lynch (Respondent); Health Care Complaints Commission (Applicant); Avant Law (Respondent)
• File Number(s): 40026/12
• Publication restriction: Suppression order in relation to the identity of Persons A and F

REASONS FOR DECISION

1 The proceedings before the Tribunal are brought by the Health Care Complaints Commission ("the HCCC"). The HCCC seeks resolution of four complaints. They are contained in an Amended Notice of Complaint dated 2 December 2013.

2 The respondent has consented to the Tribunal dealing with both the establishment of the complaints and the imposition of protective orders at the same time.

3 The Tribunal is acutely aware of the seriousness of the allegations put by the HCCC and the long-reaching effect of the orders open to it. Accordingly it has approached the evidence on the basis of the standard of proof in Briginshaw v Briginshaw (1938) 60 CLR 336.

Some background

4 The respondent was born in 1968 in Malaysia. He came to Australia with his family when aged 11. He remains a Malaysian citizen. He attended secondary school in Sydney and graduated from Sydney University with the degree of MBBS in 1991. He began his medical career as an intern at St Vincent's Hospital and then worked at various hospitals as a Registrar, usually in the area of neurosurgery. In 2001 he became a Fellow of the Royal Australian College of Surgeons in Neurosurgery.

5 At the present time the respondent is not a registered medical practitioner. His registration was suspended on 26 November 2009.

6 On 4 February 2010 the respondent was charged with murder. He later pleaded guilty to three charges: the manslaughter of Person A on 19 November 2009, the supply of a prohibited drug (cocaine) on 15 February 2009 and the supply of a prohibited drug (again cocaine) on 9 January 2010. The respondent was sentenced in the District Court on 26 August 2011. He was sentenced to imprisonment for a period of a little less than eight years with a non-parole period of just over five years. The reasons for sentence of Toner SC DCJ, together with the Statement of Agreed Facts, appear behind Tab 5 in Exhibit A.

7 The sentence imposed on the respondent was the subject of an appeal, which resulted in some minor changes to the term of imprisonment imposed in respect of the first count of supplying a prohibited drug. The result of the decision of the Court of Criminal Appeal (Exhibit A, Tab 7) is that the respondent will become eligible for release on parole on 31 July 2014.

The complaints

8 Complaint One is an allegation that the respondent was convicted of the three offences outlined above. In specific terms the drug offences were contrary to Section 25(1) of the Drug Misuse and Trafficking Act 1985. The offence of manslaughter is defined in Section 18(1)(b) of the Crimes Act 1900.

9 Complaint Two alleges that the respondent has been guilty of unsatisfactory professional conduct within the meaning of Section 139B of the Health Practitioner Regulation National Law (NSW) (No 86a) (the National Law) in that he contravened conditions that had been imposed upon his registration. The conditions had been imposed on 2 September 2005 and included a health condition that: "Dr Nair is not to self-administer any substance detailed in Schedule 4 or Schedule 8 of the NSW Poisons List or Schedule 1 of the Drug Misuse and Trafficking Act ...".

10 The particulars of the complaint allege that the condition was breached in February, June and November 2009.

11 Complaint Three was deleted in the Amended Notice of Complaint.

12 Complaint Four alleges that the respondent is guilty of professional misconduct under Section 139E of the National Law. The particulars of the complaint are the matters relied on in respect of Complaint Two.

13 Complaint Five alleges that the respondent "is not a suitable person to hold registration in the practitioner's profession." The complaint relates to the supply of a prohibited drug on 19 November 2009 in breach of bail conditions to which the respondent was then subject. In addition it is alleged that the respondent made false and misleading statements to the Medical Board in relation to his compliance with his conditions of practice.

14 The respondent admitted all of the complaints. The evidence against the respondent was overwhelming. The Tribunal formally finds the complaints have been established. This relates to both the alleged facts and the respective findings of unsatisfactory professional conduct and professional misconduct. In addition, again admitted by the respondent, the Tribunal is satisfied that the respondent is not a suitable person to hold registration in the practitioner's profession.

15 The respondent elected not to attend the hearing. He is currently in custody. He has been represented by experienced solicitors and counsel and has provided a detailed statement. The Tribunal is satisfied that his case has been comprehensively presented and that the respondent has not been prejudiced by his absence. In addition the Tribunal has not regarded the respondent's decision not to attend as indicative of any lack of respect for the Tribunal.

Protective orders

16 In addition to the admission of the complaints the respondent added, in his statement dated 19 November 2013 (Exhibit 1, Tab 1), these comments:

"17. I do not contest the cancellation of my registration as a medical practitioner and I have no intention of reapplying for registration on my release from custody or in the foreseeable future.

18. I have discussed this with my advisers and I am aware that I would not be able to meet the requirements for registration as a medical practitioner. I understand I have brought the profession into disrepute, and I have breached my professional obligations to my colleagues, and in some circumstances my patients. Apart from the unlikelihood of ever retraining to re-establish myself as a neurosurgeon, I accept that there is a significant breach of trust with the profession that is probably irreparable."

17 By letter to the Tribunal dated 22 November 2013 the HCCC outlined the remaining issues in the hearing as follows:

"The matters which remain at issue between the parties are: whether the Tribunal should make an order under section 149C(7) of the National Law that an application for review of an order under Part 8 may not be made until after a specified time, and, if so, the period of time; and costs."

18 At the commencement of the hearing the parties indicated an agreed position in respect of the orders to be made by the Tribunal. The only matter not agreed concerned costs; however an agreed position was ultimately reached.

19 In respect of the period for which the respondent would not be able to apply to renew his registration the parties had agreed that this would be until 31 December 2019, effectively some ten years since the commission of the offences.

20 It was submitted that this preclusion period fell within the general range of similar periods applied in other cases, remembering that other periods could be of guidance only (Lee v Health Care Complaints Commission [2012] NSWCA 80).

21 The Tribunal accepts that its role is not to punish. This was the task of Judge Toner in the District Court and of the Court of Criminal Appeal. The Tribunal's task is to make protective orders, protective of both the public and the medical profession. The following statement of Viscount Simon LC in General Medical Council v Spackman [1943] AC 627 is an appropriate starting point:

"The high reputation of the medical profession as a whole depends in no small measure on excluding from it those whose professional misconduct makes them unworthy to belong to it, and the confidence which the public are accustomed to put in the family doctor is intimately connected with the assurance that those who practise the art of medicine are, in all relations with their patients, individuals of the highest honour".

22 In relation to the medical profession the respondent says in paragraph 16 of his statement:

"16. I accept the findings of the sentencing judge and the Court of Appeal. I accept that the Medical profession will view my conduct severely."

23 His observation is correct.

24 The conduct was over a prolonged period during which the respondent must have known that his actions were both medically and ethically wrong as well unlawful. His history of cocaine use is set out in the report of Dr Wilcox dated 27 June 2011 (Exhibit 1, Tab 4).

25 In addition the conduct involved a complete abandonment by the respondent of his fundamental role as a protector of human health.

26 The events of 19 November 2009 are graphically described in the statement of one of the escorts involved (Exhibit A, Tab 43). They formed the background to the manslaughter charge. They display a complete disregard for the welfare of the two escorts the respondent had engaged. He plied them with cocaine and alcohol until one of them reached a state in which she (Person A) desperately required medical attention. This attention, which could have been administered, or at least arranged, by the respondent was not available because he had, by his own actions, again through alcohol and cocaine, rendered himself ineffectual. This passage is included in the Agreed Facts before Judge Toner:

"The offender ingested a large quantity of cocaine allowing himself to become very intoxicated and consequently diminishing his capacity to appreciate the condition of the invitees and act responsibly. When she became unwell the offender failed to provide adequate medical assistance, particularly by failing to call an ambulance." (Exhibit A, Tab 5).

27 The respondent acknowledges his failings in paragraph 20 of his statement.

"20. I acknowledge that I allowed myself to become so intoxicated that I failed to fulfil my responsibility as a medical practitioner towards these women, and in particular, to Person A."

28 In addition these events occurred only about seven months after another escort (Person F) had passed away after taking cocaine during an engagement with the respondent. He was aware of her death.

29 The breach of health conditions already imposed on the respondent must also be viewed very seriously. The conditions were imposed both for the benefit of the respondent and his patients. His disregard for the conditions, including the inherent dishonesty displayed, would of itself justify a cancellation of the respondent's registration. The same can be said for the false and misleading statements listed in Complaint Five.

30 In considering the preclusion for review period the Tribunal's first impression was that the agreed length of time was not sufficient. However, on further consideration, and bearing in mind that the HCCC advocated the suggested period, the Tribunal came to the decision that the length of time was sufficient and appropriate. The Tribunal is also mindful of the very high bar the respondent will need to surmount in order to be permitted to re-register.

Final orders

31 The Tribunal makes the following orders:

(a) A direction that the respondent's registration be cancelled;

(b) Alternatively, if appropriate, a direction that subject to Order (c) below the respondent be disqualified from applying for re-registration;

(c) The respondent may not make an application for review of his registration prior to 31 December 2019;

(d) Each party is to pay its own costs of the proceedings up to and including 12 September 2013. Thereafter the respondent is to pay the HCCC's costs;

(e) The appropriate review body is the Medical Tribunal of New South Wales.

(f) The exhibits may be returned.

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Decision last updated: 02 December 2013