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New South WalesMedical Tribunal

CITATION:

TRIBUNAL:PARTIES:

FILE NUMBER(S) :

CORA:CATCHWORDS:

LEGISLATION CITED:

CASES CITED:

DATES OF HEARING:

HCCC v Allen (20101 NSWMT 8

Medical Tribunal

Health Care Complaints Commission (Applicant)Dr Richard Allen (Respondent)

40016 of2009

Staff J; Ng, Dr J; Grimes, Dr D; Smith, Mr RJPROFESSIONAL MISCONDUCT - respondent doctor signeda statement knowing that it would be presented to an inquiryconducted by the Medical Board into a practice conducted byanother medical practitioner where he was employed -respondent careless and reckless in permitting statement to berelied upon ~ care exercised significantly below the standardreasonably expected of an experienced medical practitioner-respondent engaged in conduct relating to the practice ofmedicine in signing statement - conduct improper or unethical- respondent acknowledged misconduct - contrition - Tribunalsatisfied misconduct would not be repeated - practice ofmedicine over lengthy period exemplar - professionalmisconduct - reprimand.Criminal Procedure Act 2005Evidence Act 1995

Medical Practice Act 1992Police Act 1990Health Care Complaints Commission v Karalasingham (2007)NSWCA 267;Health Care Complaints Commission v Litchfield (1997) 41NSWLR 630;Re Dr Parajuli (2010) NSWMT 3;Health Care Complaints Commission v Wingate (2007)NSWLR 323;NSW Medical Board v Dinakar (2009) NSWMT 8;Re A Medical Practitioner and the Medical Practice Act40010/07 3 September 2007 (uneported);Re Dr Richard Wingate (2007) NSWMT 217 May 2010, 18 May 2010, 19May2010

DATE OF JUDGMENTDELIVERY:LEGALREPRESENTATIVES:

ORDERS:

2 July 2010

Mr G Farmer of counsel (Applicant)Health Care Complaints Commission

Ms C Ronalds SC (Respondent)Mr M Fitzgerald solicitor

1. Dr Allen is reprimanded; 2. Dr Allen is to pay the HCCC'scosts of these proceedings, on the ordinar basis as defined ins 3 of the Criminal Procedure Act 2005; Pursuant to cl6 of

Sch 2 of the Medical Practice Act, the Tribunal has made anon publication order in respect of the name ofa patientreferred to in the proceedings

MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIRMA:MEMBERS:

Staff JDr J Ng

Dr D GrimesMr R J Smith

Friday 2 July 2010

Matter No 40016/09

HEALTH CARE COMPLAINTS COMMISSION v RICHARD ALLEN

IMPORTANT NOTE

SUPPRESSION ORDER

PURSUANT TO CLAUSE 6 SCHEDULE 2 OF THE MEDICAL PRACTICEACT 1992 THE TRIBUNAL HAS ORDERED THAT THERE BE NOPUBLICATION OF THE NAME OF THE PATIENT OR OF ANMATERIA CAPABLE OF IDENTIFYING THAT PATIENT.

DETERMINATION AND ORDERS

1 The Health Care Complaints Commission ("the HCCC") alleges that Dr

Richard Allen ("Dr Alen"), a medical practitioner, is guilty of unsatisfactory

professional conduct and/or professional misconduct within the meaning of s

36 and s 37 of the Medical Practice Act 1992 ("the Act") in that:

(i) he has demonstrated that judgment possessed, or careexercised, by him in the practice of medicine is significantlybelow the standard reasonably expected of a practitioner of anequivalent level of training or experience; and/or

(ii) he has engaged in conduct relating to the practice of medicinethat is improper or unethicaL.

2 The particulars of the complaint were:

- 1 -

1. On or about 11 June 2002 the practitioner signed a statement

knowing that it would be presented to a s 66 inquiry conductedby the Medical Board into the practice conducted by Dr Sood.

2. The practitioner failed to include in that statement thefollowing information:

(a) that the statement has heen prepared on his behalf by DrSood;

(b) that he had no independent recollection of theinformation contained with(in) the statement; and

(c) that he signed the statement believing that what Dr Soodhad included in the statement was accurate.

3. On or about 31 July 2006 the practitioner signed a statementknowing that it was to be used in criminal proceedings againstDr Sood being conducted in the Supreme Court of New SouthWales.

4. In the statement dated 31 July 2006, the practitioner referred to

the statement dated 11 June 2002 and stated as follows:

(a) paragraph two of the statement of 11 June 2002 was afalse statement; and

(b) paragraph three of the statement of 11 June 2002 15incorrect because he did not make the telephone call;

in circumstances where the practitioner had no independent

recollection of the events in that statement.

5. In the statement of 31 July 2006, the practitioner stated:

(a) "I have been set up by Dr Sood to give this falseevidence."

(b) "I mean that 1 have been used hy Dr Sood to help her outof some trouble."

(c) "I know the statement is false and I would have signedthe statement to help Dr Sood."

(d) "i now admit that by signing the (11 June 2002)statement I have misled the Medical Board"; and

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(e) III have been conned into something that i shouldn't havedone";

in circumstances where he did not know, or believe, thosestatements to be truthfuL.

3 Ms C Ronalds SC, who appeared for Dr Allen, contended at thecommencement of the proceedings that complaint (i) did not apply, as it was

directed to the interaction between a doctor and a patient and involved the

actual delivery of medical care. Senior counsel submitted it only applied to

"hands-on" medical care. Senior counsel advised that Dr Alen admitted

complaint (ii) and particulars i, 2, and 3. In respect of particular 4, senior

counsel submitted that this particular was unfair because of the way in

which particulars (a) and (h) of the statement of 31 July 2006 were induced

from Dr Allen by Detective Sergeant Clive George Ainley of Fairfield Local

Area Command (LC) Detectives Offce. This is a matter the Tribunal will

deal with later in this Determination. In relation to particular 5, Dr Allen

admitted this particular as to his state of knowledge in July 2006. However,

senior counsel submitted that there were circumstances that needed to be

taken into account as to how this particular should be treated by theTribunaL.

The respondent

4 Dr Allen is 65 years of age. He graduated from the University of New Soutb

Wales in 1968 and was admitted as a Fellow to the Royal Australian College

of General Practitioners in 1975. Dr Alen conducts a private practice at

Fairfield Heights and works two and a half days per week at Marie Stopes

International ("MSI") as a sedation doctor. At the time of the conduct

relevant to the complaint, this practice was known as the Australian

Women's Health Clinic ("AWHC"). Dr Allen has 900 patients on his

database, which includes residents of nursing homes and Methadone

patients. Of these, 288 are aged over 65, including 160 aged over 80. He

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sees 70 patients on the Methadone Program and between 20 to 25 patients a

day. Dr Allen attends five to eight home/aged care calls per day. He visits

four nursing homes and two hostels to see patients. Dr Allen has been

married for 37 years. He has two children, one of whom is disabled and

suffers from Autistic Generalised Development Delay with Adjustment

Disorder.

The misconduct alleged

5 On 18 May 2002, a young woman who will be referred to by the initials "LT",

attended AWHC, a practice which, at that time, was owned by Dr Sood,

where Dr Allen was employed for one to two days per week. As Dr Sood is no

longer a registered medical practitioner, she wil be referred to in this

Determination as Ms Sood.

6 On 21 May 2002, at about 4.30 am in the morning, LT miscarried.

7 The allegations against Dr Allen arise from an investigation into a suspected

termination of a pregnancy ("TOP") performed by Ms Sood between 20 May

2002 and 21 May 2002. Ms Sood was ultimately found guilty of this offence

and a criminal conviction was entered.

8 There is no suggestion that Dr Allen was involved in the TOP. The role of Dr

Alen is limited to the provision of a statement dated 11 June 2002. This

statement was made in relation to the events surrounding the TOP and

provided to Ms Sood, who in turn provided it to the New South Wales

Medical Board ("the Board"). The statement was in the following terms:

1. I am a medical practitioner, and have worked with Dr Suman

Sood for the last several years, giving intravenous sedation topatients for whom Dr Sood performs the procedure oftermination of pregnancy ("TOP").

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2. On Tuesday 21 May 2002 I was asked by Dr Sood to call a clinicin Brisbane to enquire as to whether they could perform a TOPat 23-25 weeks gestation, and as to the cost of the terminationat that time.

3. The person I spoke to at the Brisbane clinic told me that they

did do TOP's at that stage, that the patient would need anultrasound, and that it would cost $2,500. I gave thatinformation to Dr Sood.

4. In my experience with working with Dr Sood a TCP (sic) has

never been performed in relation to a pregnancy of over 20weeks gestation at Dr Sood1s practice, to my knowledge.

9 Ms Sood was the subject of a s 66 Inquiry into her conduct surroundingpatient LT, and was notified on 6 June 2002 that the Board was to hold a

hearing on 12 June 2002 in respect of the TOP. A statement was prepared

by Ms Sood for signature hy Dr Allen. Attached to the statement was a

handwritten note by Dr Allen with the numbers 24/24/2,500.

10 In their decision and reasons, the s 66 Inquiy observed:

The delegates also had diffculty reconciling the need for Dr Sood toseek information regarding costs from Brisbane, with her evidence thatshe had referred approximately 5 or 6 patients to Brisbane in the lastyear and that she was unaware that the cost was Ila few thousanddollarsll. On this issue, the delegates were further concerned as to whythe telephone inquiry regarding cost was requested of another medicalpractitioner (i.e. Dr Allen) in a 'very busy' medical practice, rather thanof a secretary, and note that the request for Dr Allen to be involvedoccurred after delivery of Baby T on 21 May, and after the patient hadnot attended for her scheduled 7.30 am appointment that day.

11 Telephone records of Dr Allen1s mobile telephone show that a telephone call

was made on 7 June 2002 to the Planned Parenthood Clinic and the

Caboolture Women's Clinic in Brisbane. Dr Allen's telephone records also

show that on 10 June 2002, his mobile telephone was used to call the

Planned Parenthood Clinic in Brisbane.

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12 Ms Sood was pursued by the police in relation to her activities regarding LT.

In April 2004, she was arrested and charged with the following offences:

(i) administer drugs with intent to procure a miscarriage;

(ii) cause drug to be taken with intent to procure a miscarriage;

(iii) manslaughter.

13 In July 2006, Ms Sood stood trial in the Supreme Court of New South Wales.

Ms Sood was convicted of charges (i) and (ii) and found not guilty of charge

(iii). During the course of the trial, Dr Allen was called as a witness by theProsecution and cross-examined by counsel for Ms Sood.

14 Afer giving evidence on 21 July 2006, Dr Allen formed the belief that his

statement of 11 June 2002 contained wrong information about the fact that

he worked at AWHC on 21 May 2002. Leading up to Dr Allen being called to

give evidence, enquiries were made in relation to the telephone records of his

mobile phone and those of A WHC. It is common ground that telephone calls

were made on Dr Allen's mobile phone to the abovementioned Queensland

clinics on 7 and 10 June 2002. Records were also obtained for five landlines

which were attached to AWHC, which indicated that no telephone calls were

made from any of those landlines on 21 May 2002 to either the Planned

Parenthood Clinic, or to the Caboolture Women's Health Clinic in

Queensland.

15 There was a telephone call made to a Queensland telephone number on 21

May 2002 that was subsequent to L T's miscarriage. The complainant

accepted that this telephone call was not made to either of the named

Queensland clinics. The HCCC's case is that when Dr Alen made hisstatement on 11 June 2002, he ought to have known whether he did in fact

call the organisation that he says he rang and whether he was told that the

cost of a procedure was $2,500.

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16 During the course of his evidence in the Supreme Court of New South Wales,

the Crown sought leave to cross-examine Dr Allen pursuant to s 38(1) of the

Evidence Act 1995, having formed the view that he was a witness whose

evidence was not favourable to the Crown. Leave was granted. Simpson J,

the trial judge, informed Dr Allen that if he wanted to obtain a certificate to

protect him from prosecution in relation to any false evidence that he may

give, a certificate would issue.

17 Dr Allen, in his written statement to the Tribunal, said that he met withcounsel appearing for the Crown and subsequently with Ms Sood's counsel in

the days leading up to him giving evidence. He says that after thesemeetings, he started to have serious concerns about his 11 June 2002

statement and "was concerned that I might be in a lot of trouble." He said he

had not expected any problem, but from counsel's questions, he began to

realIse that there was a problem for him.

18 Dr Allen gave evidence in the Supreme Court of New South Wales on 21, 24

and 31 July 2006 and on 1 and 2 August 2006. He says he found theexperience very intimidating and confusing as the questions became

relentless and aggressive. He said he realIsed that his situation was very

serious. He became alarmed and was unable to concentrate and suffered

from insomnia. He said that one day he was so distressed coming to Court

that he caught the train in the wrong direction. He became more distressed

when asked whether he had taken money from Ms Sood before he signed the

statement dated 11 June 2002. He found this to be an unjustified and false

attack on his integrity and character.

19 On 31 July 2006, Simpson J gave Dr Allen a caution and suggested he obtain

legal advice. Dr Alen subsequently met with Mr J Chicken of counsel, as he

then was.

.7.

20 Afer Dr Allen left the court room on 31 July 2006, he said DetectiveSergeant Ainley approached him and said "We know you're a good doctor.

You've got to come clean. You have to make a statement about it alL." He

said he contacted two solicitors to seek their advice as to whether it was

appropriate to speak to Detective Sergeant Ainley. Each of the solicitors had

no concerns in respect of Dr Allen providing another statement. Dr Allen

advised Detective Sergeant Ainley that he would make a further statement.

The detective offered to drive him to Wiley Park Railway Station where he

had left his car so that Dr Allen could collect it and drive himself to Wetherill

Park Police Station where Detective Sergeant Ainley was based. Dr Allen

said that he was extremely upset and worried about what was happening to

him and he did not know what to think. Detective Sergeant Ainley took Dr

Allen to Wetherill Park Police Station. Dr Allen accompanied Detective

Sergeant Ainley inside and made a statement. At the time he had his 2002

diary with him. He checked the diary and found that he had not entered

that he was working at AWHC on 21 May 2002 in his diary. On the basis of

this understanding he says that he inserted paragraph 8 in the statement

which read:

Paragraph two (2) of the statement is false. (Dr Allen was refening tohis statement of 11 June 2002). Based on my own diary records Icouldn't have made the phone call on the 21st May 2002 because Ihaven't recorded in my diary that I was working at the Australian

Women's Health Clinic. If I had been working on that date my diarywould show an entry marked FWHC.

21 Dr Allen's evidence is that this statement is wrong as he now knows he was

working on that day. His evidence was that Detective Sergeant Ainley said

to him during the course of making the statement llwell if itls not in your

diary then you weren't working there." Dr Allen says that he now knows

that his diary was not a good record of his work schedule, however, when he

made the statement to Detective Sergeant Ainley, he relied only on his diary.

.8.

22 Dr Allen has since seen the Australian Women's Health Drug Register for 21

May 2002. From that document, Dr Allen was able to say that he did work

at AWHC on 21 May 2002 as he had signed for drugs he administered in his

role as the sedation doctor on that day. The amounts of drugs administered

and the patient names are also recorded in the Drug Register.

23 Detective Sergeant Ainley had a copy of the Drug Register for 21 May 2002

whilst Dr Allen was making his statement on 31 July 2006. It is common

ground that at no time did Detective Sergeant Ainley make any reference tothe Drug Register for 21 May 2002, or advise Dr Alen that be had a

document that may have assisted him in remembering whether he was

working on that day. Dr Allen became aware of the Drug Register for 21

May 2002 following a conference with Mr Chicken before court the following

day (1 August 2002). Relevantly, his statement to Detective Sergeant Ainley

of 31 July 2006 stated:

8. Paragraph two (2) is false. Based on my own diary records I

couldnlt have made the phone call on the 21st May 2002 becauseI haven't recorded in my diary that I was working at theAustralian Womenls Health Clinic. If I had been working on

that date my diary would show an entry marked FWHC.

9. I signed the statement because Dr Sood asked me to make the

statement in order to help here so I did the. statement to help DrSood. I didn't know how the statement was going to be used. Ithought it was only going to be prepared and used at theMedical Board. I didn't think it would be used for theproceedings now at the Supreme Court.

10. Had I known the statement was going to be used at theSupreme Court for the proceedings which are being heard at themoment I wouldn't have made the statement. I now wish towithdraw the statement as my evidence.

11. Paragrapb two (2) states that Dr Sood asked me to call a clinicin Brisbane to enquire as to whether they could perform a TOPat 23 ~ 25 weeks gestation and as to the cost of the terminationat that time. That part of the statement is not true. I withdrawthat part of the statement. I never made that phone call to aclinic in Brisbane. I don't know of any clinic in Brisbane or

.9.

Queensland which do these types of things. I don't know aboutthese clinics because that's not my job. I have been set up by DrSood to give this false evidence and this false statement. WhenI say I have been set up I mean that I have been used by Dr

Sood to help her out of some trouhle.

.12. I remember that someone said there was a raid at the clinic.The staff at the time said there was a raid at the clinic.According to my diary records the last time I worked at theAustralian Women1s Health Clinic was on the 6th April 2002. Iwas due to work at the clinic on the 16th April 2002 but myrecords show that was cancelled. According to my diary thenext time I worked at the Clinic was on the 21st June 2002.

13. I understand that I have signed a statement dated the 11th June

2002. I don1t recall preparing the statement, however, I did signthe statement but I don't remember where I signed it. I couldhave been called to the Australian Women's Health Clinic andsigned it there, or I might have signed it at the Division or someother place. I don't remember, my diary doesn't show me beingat the Division or the Clinic on the 11th June 2002.

14. In paragraph three (3) of my statement that part is alsoincorrect because I didn't make the call.

15. In paragraph four (4) of the statement I say that because mostof the statement is false I am not prepared to state that Dr Soodnever performed a termination of pregnancy over 20 weeks. Idon't have any recall of Dr Sood having performed pregnanciesover twenty (20) weeks I would need to refer to the medicalrecords.

16. At 7.38am on Wednesday the 21" June 2006, Dr Sood rang my

mobile phone No. xxxxxxxxxx. Her mobile phone number wasdisplayed so I knew at (sic) was her phone ringing. I wasdriving to work on my way to Marie Stopes International when Ianswered the phone. I recognised Dr Sood's voice. Dr Soodsaid, "It's Suman here, we need to meet." I said, "I really can'tdiscuss it." She said, "I need to talk to you because you are theonly one I can talk to". I said, "I recommend you speak to another (sic) Dr if you have medical problems." She said, "You'rethe only one who understands.l1 or similar words. I terminatedthe call and removed Dr Sood's mobile phone contact numberfrom the memory of my mobile phone.

18. On a Wednesday or maybe the Thursday on either the 19th or20th July 2006, I received a phone call at my home on Phone

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Number xxxxxxxx. It was early in the morning and it was a daybefore or maybe the day I was due to attend the Supreme Court.I received a call from Dr Soods brother Sunjay. I recognised hisvoice. Sunjay is a General Medical Practitioner in Coolangatta,Queensland. I worked for a week with Dr Soods brother,Sunjay, some years ago. He went away for a week and I workedas his Locum whilst he was away. Anyway, Sunjay rang meand said, "Do you remember you had a mobile phone, do youremember using your mobile phone?" This phone call wasunexpected and I was quite suspicious about the call. Iterminated the call.

19. During the Surpeme Court Trial I was shown two notes with

handwriting. I don't know why I made those notes. I don'tremember making notes. I didn't make any phone calls to anyclinic so I can't see why I would make notes about a call I didn'tmake.

20. I have stated that the notes look like my handwriting. I don't

recall making the notes. It might have been the case that DrSood has dictated something to me and I wrote down what shewas saying. The reason I say this is because I never made anycall to a clinic in Brisbane.

23. I didn't intentionally try to mislead the NSW Medical Board.

My only intention was to Help Dr Sood with her suspension. Inow admit that by signing the statement I have misled theMedical Board. I have been conned into something that Ishouldn't have done.

24. Detective Ainley has asked me why I signed the statement and

not Dr Navaratnam or Dr Lall. I would have signed thestatement because the statement referred to Tuesday and

Tuesday is a day I normally worked.

26. The reason I have given this statement to Detective Sergeant

AINLEY is because I realise the statement dated the 11th June2002 is false and I wish to withdraw it.

27. To assist in making this fresh statement I have referred to two

diaries. A red coloured diary dated 2002 and a hlack coloured

diary dated 2006. I handed those two diaries to DetectiveSergeant AINLEY at Wetheril Park Police Station.

28. I give this statement freely and voluntary. No threat, promise

or inducement has been held out to me to give this statement.

.11-

24 Dr Allen's evidence was that he now knows that a number of theseparagraphs are not correct as he did make a telephone call to a Queensland

clinic, but he did not make it on 21 May 2002. Afer Dr Allen signed the

statement on 31 July 2006, another police offcer drove him back to his car.

He said he arrived home at about 10.00 pm.

25 Dr Allen's evidence was that after he reached home, he continued to be

distressed and confused. He said he was exhausted and had insomnia. He

thought about the evidence he had given and the statement that he had just

signed all night. He decided that he had been coerced by Detective Sergeant

Ainley into making the statement and had not been helped by him at all. He

reread the statement during the night and realised that paragraph 8 was

based solely on his poor recollection and that he had no clear memory of

specific dates in 2002 when he was meant to have done something.

26 Afer a discussion with Mr Chicken the following morning, Dr Alen said he

realised that he had been working on 21 May 2002 and that he could have

made the telephone calls on that day or on various other days when he was

working. He said he then wanted to withdraw the statement before the trial

resumed as he knew it was incorrect. He did not want to cause any further

problems for himself or anyone else.

27 On 1 August 2006, Dr Alen left a message for Detective Sergeant Ainley on

his mobile phone. He asked him to return his call before court commenced

on that day. Detective Sergeant Ainley did not return his call.

28 Dr Allen was recalled as a witness on 1 August 2006. He says he does not

have any recollection of the evidence he gave on that day and can only use

the transcript as a record.

29 Dr Allen stated that he did not mean to sign a statement that was wrong.

He had not been corrected about whether he was at work on 21 May 2002 or

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not. When he signed the statement, he says he was not in a proper state to

do so. He was exhausted and not thinking clearly. He says that an example

of this is to he found at the bottom of the last page of the statement, which

states IlHas any threat, promise or offer of advantage been held out to you to

make this statement?" Dr Allen answered "yes." despite paragraph 28

stating that no threat had been held out. As soon as Dr Alen knew the

statement was wrong, he took steps to withdraw it.

30 Dr Allen stated that he was aware of the Code of Conduct ("the Code") for

medical practitioners introduced by the Board and has attended training

sessions on the Code run by the Australian Medical Association (IlAMlt). He

acknowledged that the breach of the Code was a serious offence and that he

had never intentionally broken the Code, or said or done anything to bring

the medical profession into disrepute.

31 Dr Allen stated that he deeply regretted the position he found himself in and

accepted that he should have taken some steps of his own before he signed

the statement of 11 June 2002 and checked that it was correct. He stated he

did not sign it knowing it to be false. His evidence was never intended to

mislead any person reading it and he certainly did not intend to mislead the

Board. In relation to the July 2006 statement, Dr Allen stated that hebelieved he was not assisted by Detective Sergeant Ainley who knew what he

was signing to be wrong. He believed that Detective Sergeant Ainley took

advantage of his confused state because he had information that he was at

work on 21 May 2002, which he did not share with him. This, he said, added

to his confusion. Dr Allen stated that he took full responsibility for signing a

statement that was wrong. He acknowledged he needed to check it more

fully than he did by just looking at his diary. He said he would never again

sign any statement or document of any sort without checking its contents

fully and properly. He would never trust another person to prepare astatement for him. He stated that he would never again take at face value a

statement by another medical practitioner to him. He said when he trusted

- 13 -

Ms Sood, it was the first time he had ever done such a thing. He assumed he

could trust a colleague, but he would never assume that again and would

carefully check any document prior to signing. He said he felt the same

about a police offcer.

32 Dr Alen said he was very distressed about what had happened. He realised

he had not complied with the Code. He stated that he thought this was a bad

example to other doctors in his local area, where what had occurred was well

known. He also accepted that he had set a poor example for other

professional people working in the medical field, especially those who know

him and work with him. He stated that he was very remorseful and upset

about what had happened. Being before the Tribunal at this time in his

career caused him great sadness. He had not come under notice previously

before the Board or the TribunaL. He stated that his philosophy in respect to

the practice of medicine has always been to help people. He said he provides

Methadone for patients and has done so for many years because few doctors

do this. Originally he did this in co-operation with the Liverpool Hospital

Methadone Clinic, but now he provides Methadone as a result of patient

referrals to him from the Methadone Clinic in his area.

33 The aged care facilities that he attends all have trouble getting doctors to

visit their premises. All of the patients at his practice at Fairfield Hospital

are Medicare patients. He does not have any private billings. All patients

are disadvantaged and if he did not attend, there is no replacement doctor

immediately available. Dr Allen is extremely sorry that these events

occurred and takes full responsibility for what he allowed to take place in the

June 2002 and the July 2006 statements. Dr Allen attached 10 supporting

references of his professional capacity, 7 of which were from medical

practitioners, 2 from registered nurses, and 1 from a pharmacist. No referee

was required for cross-examination.

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HCCC's evidence

34 The HCCC tendered a statement of Detective Sergeant Ainley, who was the

Offcer in Charge of the investigation into Ms Sood. He was required for

cross-examination.

35 Detective Sergeant Ainley stated that on 13 Octoher 2003, following a

request by the police, Dr Allen provided a statement about his knowledge of

Ms Sood's matter. In this statement, Dr Alen stated that he did not have

any recall of the events of May and June 2002.

36 A short time prior to the commencement of the trial, the Offce of theDirector of Public Prosecutions provided Detective Sergeant Ainley with a

copy of a statement made by Dr Alen to the Board dated 11 June 2002.

Detective Sergeant Ainley said that during the afternoon of 31 July 2006, he

was standing outside the Supreme Court when Dr Allen came out from the

Court. He said he enquired if the doctor was "finishedll and he replied "the

judge asked me to leave the court and contact a solicitor." He said that at

the time, Dr Allen appeared highly anxious and was fidgeting with his phone

attempting to make a number of calls. Detective Sergeant Ainley advised

him to speak with Ms B Crossin, a solicitor employed with United Medical

Protection. Dr Alen told Detective Sergeant Ainley that he was worried

about his statement dated 11 June 2002 and said "the statement was

orchestrated."

37 Detective Sergeant Ainley offered to give Dr Allen a lift in the police vehicle

to his car. During the journey, Dr Allen told Detective Sergeant Ainley that

the statement he made on 11 June 2002 was false and he wanted to

withdraw it. Dr Allen requested to go to Fairfield Police Station and provide

a fresh statement. Detective Sergeant Ainley took him to Wetheril Park

Police Station.

- 15-

38 Detective Sergeant Ainley stated that he informed Dr Allen that he was not

obliged to make a further statement and that any certificate issued by her

Honour would not protect him against any statement that he made outside of

Court. He was also advised that any statement might be used against him at

a Board hearing.

39 Shortly after Detective Sergeant Ainley commenced taking a statement from

Dr Allen he received a call from his solicitor. Detective Sergeant Ainley left

the room whist he spoke to his solicitor. Upon returning, he asked if Dr

Allen wished to continue providing the statement. Dr Allen concluded

making his statement. He subsequently read it and reread it. He made a

number of corrections to grammar and content. Dr Allen signed thestatement which was witnessed by Detective Sergeant Ainley and Inspector

Bailey.

40 At about 6.40 am on 1 August 2006, Detective Sergeant Ainley received a

voice message on his mobile phone from Dr Allen. The voice message said:

"This is Dr Richard Allen Clive, I'm on my way in now. I'm stil trying

to meet with my barrister regarding my position, so before I presentthe evidence or the statement I would like to talk to you about it, I willdiscuss it with the barrister. Thank you. You can ring me back on thismobile otherwise I'll see you in there."

41 Later that morning, Detective Sergeant Ainley received a further phone call

from Dr Allen who said:

"I'm going to meet with my barrister this morning and talk to himabout the statement. I'm happy with the statement and I'm going togive the evidence. I just want to speak to the barrister first."

42 Later that morning, Detective Sergeant Ainley stated that he attended the

trial of Ms Sood in the Supreme Court during which Dr Allen, whilst giving

evidence, rescinded his statement dated 31 July 2006.

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Determination

43 Ms Ronalds submitted that complaint (i), as a matter oflaw, did not involve

the exercise of judgment and care by Dr Allen in the practice of medicine and

therefore this complaint was inapplicable.

44 The essential legal elements of complaint (i) are:

(i) that the respondent is a medical practitioner;

(ii) that judgment or care was exercised in the practice of medicine;and

(iii) such judgment and care was significantly below the standardnormally expected of a medical practitioner of similarexperience.

45 The evidence discloses that Dr Allen made a statement on i i June 2002concerning his work as a doctor at AWHC where he was employed. He made

the statement knowing it was to be relied upon by the owner of AWHC, who

was a medical practitioner at the time, in proceedings instituted pursuant to

s 66 of the Act. (This section is found in Pt 12 of the Act, which enables the

Board to constitute Professional Standards Committees which may conduct

inquiries). The statement was clearly made in the conduct of the practice of

medicine. See generally Health Care Complaints Commission u Wingate

(2007) NSWLR 326. It arose directly fi.om Dr Allen's work as a doctor.Similarly, the statement of 31 July 2006 arose directly from Dr Allen's work

as a doctor. For the reasons that follow, we find that the elements of

complaint (i) have been made out. In respect of complaint (il) Dr Allen

admitted that he engaged in conduct relating to the practice of medicine that

was improper or unethicaL.

46 The particulars of the complaint deal firstly with a statement made by Dr

Allen on 11 June 2002, and secondly, a statement made by Dr Allen on 31

July 2006. It is convenient to deal with the statements separately.

- 17 -

47 Dr Allen admits that he signed a statement on 11 June 2002, knowing that it

would he presented to a s 66 Inquiry conducted by the Board into AWHC,

owned at the relevant time by Ms Sood. He also admits that he failed to

include in that statement that it had been prepared on his behalf by Ms

Sood; that he had no independent recollection of the information contained

within the statement and that he signed the statement believing that what

Ms Sood had included in the statement was accurate.

48 Mr G Farmer of counsel, who appeared for the HCCC, submitted that the

Tribunal should reach the conclusion that Dr Allen's statement of 11 June

2002 was deliberately and intentionally false and that Dr Allen was not

simply careless or reckless in making that statement.

49 Mr Farmer relied on a decision of this Tribunal in Re A Medical Practitioner

and the Medical Practice Act 40010107, 3 September 2007 (unreported) for

the principle that this Tribunal is not limited to making findings based on

the particulars as pleaded in the complaint. That matter involved an appeal

from a decision of a Professional Standards Committee ("PSC"). TheTribunal observed at (16):

The first ground of appeal may he put, perhaps hluntly, by saying thatthe PSC was not entitled to ignore the evidence that there was a clearbreach of s 36(1)(h) hy simply asserting that this head of complaint hadnot been pleaded. The PSC is not and should not be cast as a court ofstrict pleading. Under s 176 and Schedule 2 of the Medical PracticeAct it is empowered to conduct its proceedings as it sees fit, not beingbound by the rules of law governing the admission of evidence. It isconstituted deliberately as an expert body dealing in a practicalmanner with problems faced in the practice of medicine. That does notmean, of course, that it is entitled to deal unfairly with a practitionerand deny the rules of natural justice or procedural fairness. Apractitioner is entitled to know the allegation made against him or her.

- 18-

50 Ms Ronalds submitted that there was no particular in respect of thestatement dated 11 June 2002 that Dr Allen deliberately or intentionally set

out to mislead the Board by making that statement.

51 Section 161 of the Act is in similar terms to s 176. It provides that "the

Tribunal is to conduct proceedings on an inquiry or appeal as it thinks fit."

The section also provides that Sch 2 has effect.

52 In order for the Tribunal to be satisfied that this allegation is established,

this Tribunal must be comfortably satisfied, on the balance of probabilities,

that Dr Allen's statement of 11 June 2002 was deliberately and intentionally

false. Such a finding could only be made after careful scrutiny of the

evidence of Dr Allen. The analysis of the evidence which follows does not

enable the Tribunal to reach such a finding.

53 It is common ground that on is May 2002, LT attended AWHC and was

consulted by Ms Sood. LT returned on 20 May 2002. Ms Sood administered

a medication to her and instructed LT to return at 7.30 am on 21 May 2002.

In the early hours of 21 May 2002, LT miscarried at home.

54 It is accepted by Dr Allen that on 6 June 2002, he understood that Ms Sood

was required to attend the Board for an inquiry. He certainly understood

this to be the position on 7 June 2002. There is no evidence by way of

telephone records to indicate that between 21 May 2002 and 7 June 2002,

any calls were made by Dr Allen to clinics in Queensland.

55 On 7 June 2002, the day after Ms Sood was told that she was required to

attend the s 66 Inquiry before the Board, there appears in Dr Allen's mobile

phone records, telephone calls to the Planned Parenthood Clinic and

Caboolture Women's Clinic in Queensland. There were two telephone calls

made on 7 June 2002. On that day Dr Allen made two handwritten notes

indicating the differences between prices for a procedure at the respective

- 19-

clinics. There were further calls made from Dr Allenls mobile phone to both

clinics on 10 June 2002. This was a puhlic holiday in New South Wales. He

agrees that he made one call to a Queensland clinic on 7 June 2002, but

clearly, although he has no recollection of this, he made two calls on that day.

So much was conceded by Ms Ronalds. Dr Alen's evidence is that he did not

make any calls to the Queensland clinics on 10 June 2002. On that day,

there were six different calls made to a women's clinic. These calls were

made at 17:57:16; 17:57:50; 17:58:24; 17:58:57; 17:59:50 and 18:00:27. Dr

Allen did not work at A WHC on public holidays as it was closed. When he

did work, he usually finished by 1.00 pm at the latest. He said he had never

been there at 6.00 pm. His evidence was that during 2002 and later, his

disabled son had a fiation with the use of mobile phones. He would

repeatedly redial numbers that were already in the phone from previous

calls. In June 2002, Dr Allen only had a limited awareness of this problem

with his son's conduct. On or about 5 October 2004, Dr Allen's son was

charged with the offence of "use carriage service so other isharassed/menaced.l1

56 The calls made on 10 June 2002 occurred at 6.30 pm. Some were for a few

seconds and some lasted up to 30 seconds. When the pattern of calls on 10

June 2002 are examined, and taking into account the evidence of Dr Allen

that he did not make any calls to Queensland clinics on that day, theTribunal are not satisfied to the requisite standard that Dr Allen made such

calls on 10 June 2002. It is highly prohahle that the calls were made by Dr

Allenls son.

57 Dr Allenls evidence was that he has no recollection of when, or how many

telephone calls he made on 7 June 2002. The Trihunal has found that it is

clear from two handwritten notes that he made two calls on that day. He

recalled that Ms Sood asked him to make a telephone call for her, but he does

not recall the contents of the conversation. He concluded that Ms Sood must

have asked him to make a call and ascertain the costs of a third trimester

- 20-

abortion as he would not have done this without a specific request from her,

as he had no need for such information. Apart from sedation advice, Dr

Alen gave no other medical advice directly to patients at A WHC. Dr Alen's

evidence was that whie he did not usually do secretarial work for Ms Sood,

he was non~confrontational by nature. His evidence was that dealing with

Ms Sood on occasions was very diffcult as she was very disorganised,

demanding and bossy in the way she treated her staff, including him. He

said he would have done what she asked him to do to help out, even if the

task "was really not his sort of work."

58 Dr Allen1s evidence is that on 11 June 2002, he signed a statement which had

been prepared for him by Ms Sood. He was aware that the police had raided

AWHC on 22 May 2002 and also that Ms Sood was required to appear before

the Board. Ms Sood had informed him of that fact. Dr Allen said that he

recalled reading the statement provided to him by Ms Sood, but he did not

think that he read it carefully, or checked the dates contained in the

statement. He said he did not have any records available to check the dates

and did not, at that stage, have any phone records available to him. His

evidence was that he remembered that the details in the statement did not

particularly concern him. When he read the statement quickly, the details

seemed to be correct and he was happy with them. When he signed the

statement, he said that he knew he had made a telephone call to a Brisbane

clinic, but he did not recall whether he specifically considered or checked the

dates recorded in the statement.

59 Dr Allen said that he had no reason to suspect that Ms Sood would mislead

or implicate him in any wrongdoing. Professionally, he had no reason to

mistrust her. He did not suspect that she would take advantage of him. His

evidence was that, at no time on 11 June 2002, did he know that the

statement was not correct. He said he had no intention of making an

incorrect statement to the Board, or to mislead or deceive the Board. Dr

Allen accepts that he was careless and disregarded his ethical principles

- 21 -

when he signed the statement, to the extent that he did not properly check

the statement. Dr Allen's evidence is that he has now no independent

recollection of the events of May 2002. He deeply regrets he is unable to

assist further in respect of those matters due to his lack of recalL. He accepts

that he failed to take adequate care in signing the 11 June 2002 statement.

60 This is an important admission in that it follows that in failing to take

adequate care, Dr Alen failed to ensure the accuracy of the 11 June 2002

statement. At the every least, he was negligent of his responsibilities.

61 Mr Farmer challenged Dr Allen's credibility. Counsel asked Dr Allen on at

least 10 occasions whether he and Ms Sood had entered into an arrangement

to deliberately mislead the Board. On each occasion Dr Allen rejected this

assertion that there had been in effect a conspiracy between he and Ms Sood

to mislead the Board. Dr Allen also rejected this proposition during the

Supreme Court trial of Ms Sood, including the assertion that he had received

money from Ms Sood in return for making the statement. Ms Sood was not

called to give evidence. Although Dr Allen did not know this at the time that

he made the statement of June 2002, it is now apparent that Ms Sood is a

person lacking in credit. There is no evidence that would satisfy the

requisite standard which would enable the Tribunal to reach a finding upon

the required standard that Dr Allen deliberately set out to mislead the Board

through the creation of the statement of 11 June 2002.

62 Although Dr Allen was vague on occasions during his evidence, the Tribunal

formed the view that this was caused through his lack of memory of events

which occurred over a period of almost six years ago in respect of the 2002

statement, and four years ago in respect of the 2006 statement. The

Tribunal found Dr Allen to be a credible witness. Mr Farmer criticised Dr

Allen for not answering questions which, counsel contended, were diffcult

for him to answer. Counsel submitted that he had adopted a similar

approach when giving evidence in Ms Sood's triaL. To the extent that such

- 22-

criticism was directed to Dr Allen's rejection of the conspiracy line of

questioning, Dr Alen's evidence was consistent before this Tribunal and also

before the Supreme Court. In making this assessment of Dr Allen's

credibility, we are mindful of the evidence given by Dr Allen in Ms Soods

trial in the Supreme Court that he "couldn't concentrate at the moment",

that he was "stressed", that he had "not previously been questioned by a

Crown Prosecutor" and that he was "not sleeping."

63 The Tribunal having analysed the evidence, is not comfortably satisfied that

Dr Allen deliberately or intentionally sought to mislead the Board during the

s 66 Inquiry. However, the Tribunal finds that Dr Allen was careless and

reckless in making the statement of 11 June 2002, knowing that it was to be

provided to the Board. The Tribunal accepts his evidence that he was misled

by Ms Sood as to the accuracy of the contents of the statement of 11 June

2002.

64 Dr Allen had an obligation to ensure that information provided to the Board

was accurate. This Tribunal expects that any medical practitioner appearing

before it or the Board or when called upon to make a statement that is to be

relied upon before the Board will be honest and frank in hislher dealings

with the Board. Any limits or uncertainty in their knowledge should be

made clear.

65 The Tribunal turns to consider particulars 3, 4 and 5. Dr Allen admits that

he signed a statement knowing that it was to be used in criminal proceedings

against Ms Sood being conducted in the Supreme Court of New South Wales

(particular 3).

66 In respect of particular 4, Ms Ronalds submitted that this particular wasunfair because of the way the statement of 31 July 2006 was adduced hy

Detective Sergeant Ainley. It will be recalled that the basis of the statement

made on 31 July 2006 was that Dr Alen believed, after consulting his diary,

- 23-

that he did not work on 21 May 2002 at AWHC. It was on this hasis that he

sought to withdraw paragraphs 2 and 3 of his 11 June 2002 statement when

making the further statement with Detective Sergeant Ainley on 31 July

2006. At the time that Dr Allen was making this statement, Detective

Sergeant Ainley was aware that the Drug Register of A WHC indicated that

Dr Alen was working at A WHC on 21 May 2002. Detective Sergeant Ainley

did not bring this fact to Dr Allen's attention when he was making the

statement.

67 Ms Ronalds was critical of Detective Sergeant Ainley, submitting that he

knew that Dr Allen worked on 21 May 2002, but permitted him to sign a

statement which Detective Sergeant Ainley knew to be false. Ms Ronalds

submitted that it was clear that the statement made on 31 July 2006 was

polluted by the false view held by Dr Allen, at that stage, that he was not at

work on 21 May 2002. It was on this hasis that Ms Ronalds submitted that

particular 4 was unfair because of the way that the information contained in

particulars 4(a) and 4(h) were adduced from Dr Allen.

68 Ms Ronalds referred the Tribunal to s 7 of the Police Act 1990, which

provides, among other matters, that each member of the New South Wales

Police Force is to act in a manner which upholds the rule of law, preserve the

rights and freedoms of individuals and ensures that authority is exercised

responsibly.

69 Mr Farmer submitted that s 7 did not carry with it any requirement thatDetective Sergeant Ainley ought to have made known to Dr Allen that

records were available that would have assisted his recollection of whether

he worked on 21 May 2002. His obligation, so it was submitted, was to let Dr

Allen make a statement.

70 Detective Sergeant Ainley's evidence in the Supreme Court was that he knew

Dr Allen was wrong when he said, in his statement of 31 July 2006, that he

- 24-

was not working on 21 May 2002. Detective Sergeant Ainley gave this

evidence during a voir dire conducted during the trial ofMs Sood:

Q. He told you during this conference that the reason why hethought that he didn't make the phone call to Queensland wasbecause his diary seems to suggest he wasn't working on the

relevant day?

A. That's what he told me, yes.

Q. Did you think it would be of assistance to tell him that it wasnot the case?

CROWN PROSECUTOR:I object. It doesn't relate to the voir dire.

HER HONOUR:It could potentially go to fairness, yes. I would allow the question.

BOULTEN:Q. You knew that he was mistaken, apparently, is that right?A. Yes.

Q. There was no doubt in your mind that he was giving thisstatement on a completely false premise; is that right?

A. I knew he was wrong.

Q. Eh?A. I knew he was wrong.

Q. Well, why didn't you tell him that he was wrong?A. It's his statement, it's not my statement ~ it's Dr Allen's

statement.

Q. Did you think it was fair to him to continue down this track on amisapprehension of the truth?

A. No, what I did, I obtained a statement from Dr Allen and hegave me his statement and I've handed it to the Court.

Q. You were content for the Court to work on the basis that thedoctor had reached conclusions on a false factual premise, isthat right?

A. No.

CROWN PROSECUTOR:I object.

- 25-

HER HONOUR:I will allow it. It's been answered anyway.

BOULTEN:Q. He was very nervous, wasn't he, when you were speaking with

him?A. I don't say he was nervous. I'd say he was upset.

Q. He was very anxious, wasn't he?A. I think, yeah, "anxiousll could be a word you could use, yes.

Q. Detective, did you actually ever caution him yesterday that hedidn't have to answer your questions?

A. Yes.

Q. When?A. A number of times.

Q. When was the first time?A. In the car.

HER HONOUR:Q. Detective, you weren't investigating him as a suspect, were you?A. No, no.

BOULTEN:Q. You had formed the view that he had given false testimony,

right?A. No, I'd formed the view that he had provided a false statement

to the Medical Board.

Q. You understood that he had given evidence in this trialconsistent, in part at least, with his statement to the MedicalBoard, didn't you?

A. Yes.

Q. You told him that it would be in his interests to rectify theproblem, didn't you?

A. I asked him, "What are you going to do about it?"

Q. Yes, and did you tell him it would be in his interests to makethings good?

A. No, I didn't say that at all.

Q. The doctor told you that this statement was only being made onthe assumption that he was, in fact, not at work on 21 May;isn't that right?

- 26-

A. That he only made the statement? No. The doctor made astatement.

Q. Yes, and he said, didn't he, the way that you have transcribed itat paragraph 8, "Based on my own diary records, I couldn't havemade the phone call," right?

A. He said that, yes.

Q. I1Because I haven't recorded in my diary that I was working",right?

A. He said that, yes.

Q. He never once said that he was told by Dr Sood to give falseevidence, did he?

A. Have you read that?

Q. I've read the lot, yes?A. I agree with you.

Q. And he never once said that the doctor asked him to give falseevidence, did he?

A. No.

71 The Tribunal neither wishes to be critical of the police investigation that

resulted in charges being brought against Ms Sood, nor does it wish to be

critical of the conduct of the police during the triaL. However, if Detective

Sergeant Ainley had approached his interview with Dr Alen with more

diigence, the situation that is now the subject of consideration before the

Tribunal, which arises from a complaint made by Detective Sergeant Ainley,

may not have arisen. The Tribunal is of the view that there is some force in

the submission made by Ms Ronalds in respect of particular 4.

72 Dr Allen's evidence, which the Tribunal accepts, was that on the afternoon of

31 July 2006, he was confused, stressed and had not been sleeping. His

general practitioner, Dr Peter Hansen, in a report dated 1 August 2006

(which is referred to in more detail later), stated that Dr Allen "suffered an

attack of hypomania in 1983 and since that time has been in good remission.

He has however experienced occasional perturbations of mood, usually

related to life stresses and he is prone to anxiety." Dr Hansen further stated

- 27-

that it was quite possible he could have diffculties with recall, especially if

he is very anxious and for this reason he may not be an entirely reliable

witness under the tensions of the court room. It is therefore quite likely that

Dr Allen's mental state compromised his perceptions at this time. An

example of this is that in paragraph 28 of the statement of 31 July 2006, Dr

Allen stated that IIi give this statement freely and voluntarily. No threat,

promise or inducement has been held out to me to give this statement."

Below this paragraph in handwriting are the following questions:

Q: Have you made this statement of your own free will?A: Yes.

Q: Has any threat, promise or offer of advantage been held out toyou to make this statement?

A: Yes.

73 The Tribunal has taken into account these matters in determining the Order

that should ultimately be made in this matter.

74 Dr Alen admitted particular 5. However, in doing so, Ms Ronalds submitted

that there were particular matters that should be taken into account, those

being, that he had been giving evidence for a significant period of time in the

Supreme Court; it was late in the afternoon when he spoke to Detective

Sergeant Ainley; he had received a warning from her Honour; he was

confused, he had no memory of the events in 2002; and he had not been

sleeping.

75 The statement of 31 July 2006 confirmed Dr Allen's view that he had been

set up hy Ms Sood to give false evidence and that he had been used by Ms

Sood to help her out of some trouble. It also confirms that he knew the

statement of 11 June 2002 to be false (based upon his knowledge at that time

that he did not work on 21 May 2002) and that he signed the statement to

help Ms Sood.

- 28-

76 Mr Farmer contended that there was no logical connection between Dr Allen

heing at work on 21 May 2002 and whether he made a phone call to a

Queensland clinic. Counsel pointed to the statement of 31 July 2006 inwhich Dr Alen stated that he made no phone call at all to a Brisbane clinic.

The difculty with this analysis of the statement of 31 July 2006 is that it is,

as was submitted by Ms Ronalds, polluted by the incorrect belief by Dr Alen

that he was not working on 21 May 2002. A fair reading of the statement of

31 July 2006, would be that the reference to "not making any calls to any

clinic" should have included the words "on 21 May 2002." The statement was

about what occurred on that day. So much was confirmed by the evidence of

Detective Sergeant Ainley during Ms Sood's triaL.

77 The statement should be read as a whole. Paragraphs 8, 14 and 20 of the

statement of 31 July 2006 should be read in the context of the preceding

paragraphs in the statement. To read them in isolation, in the Tribunal's

view, would lead to error. It is clear from the evidence, although Dr Allen

does not now have an independent recollection, that he made two telephone

calls to Queensland Clinics on 7 June 2002. It follows that the reference to

making a call on 21 May 2002 was incorrect and all subsequent matters

linked to that actual date were also incorrect when put before the Board.

The Tribunal finds accordingly.

78 Each of the statements referred to in particular 5 were contained in the

statement of 31 July 2006. Dr Allen's evidence is that each of thesestatements are correct. He says he was set up by Ms Sood, who he trusted.

She gave him the statement which he signed. However, Dr Allen did not

admit that these statements were made in circumstances where he believed

them to be untruthfuL. The Tribunal finds that at the time he made these

statements, he believed that they were truthfuL. We are unable, having

regard to all the evidence, to reach the level of satisfaction required to find

that Dr Alen made the statements intentionally knowing them to be false.

- 29-

79 Ms Ronalds submitted that particulars 3, 4 and 5 should be struck out

because they did not give rise to any disciplinary issue. Counsel contended

that they were simply statements of fact that did or did not occur and did not

give rise to any misconduct because of the way that they have been pleaded.The purpose of particulars is to identify the scope of the facts properly

relevant to the issues raised in the complaints. All facts on which the

complaints depend are therefore material to the complaints. The critical

question that arises in circumstances where Dr Allen has admitted

particulars 3, 4 and 5 subject to the qualification made by Ms Ronalds, is

what was his intention in acting in this manner and in making thestatements of 11 June 2002 and 31 July 2006. The Trihunal is comfortahly

satisfied that Dr Allen was careless in making these statements, but the

evidence does not allow a finding to be made that he deliberately sought to

mislead the Board. In respect of the statement of 31 July 2006, the matters

raised earlier in mitigation by Ms Ronalds must be accorded appropriate

weight. However, taking all those factors into account, Dr Alen's conduct

fell below that expected of an experienced medical practitioner and is

deserving of criticism.

80 A medical practitioner has a duty to disclose the full nature of his or herunderstanding of factual matters if called upon to provide a statement to the

Board or this TribunaL. If relevant, practitioners should indicate the limits of

their knowledge. If the Board had been appraised of what Dr Allen now says

are the circumstances surrounding the provision of his statement to Ms Sood,

it is highly likely that the Board would have given no weight to Dr Allen's

statement. The statement would have been seen for what it was, that being,

an attempt by Ms Sood to mislead the Board.

- 30-

Whether unsatisfactory professional conduct or professional misconduct

81 For the purpose of this Act, "unsatisfactory professional conduct" of a medical

practitioner is defined as follows:

36 Meaning of "unsatisfactory professional conduct"

(1) For the purposes of this Act, unsatisfactory professional conductof a registered medical practitioner includes each of the

following:

(a) Conduct significantly below reasonable standardAny conduct that demonstrates that the knowledge, skillor judgment possessed, or care exercised, by thepractitioner in the practice of medicine is significantlybelow the standard reasonably expected of a practitionerof an equivalent level of training or experience.

(m) Other improper or unethical conductAny other improper or unethical conduct relating to thepractice or purported practice of medicine.

82 For the purposes of this Act, uprofessional misconduct" of a registeredmedical practitioner means:

37 Meaning of"professional misconduct"

(a) unsatisfactory professional conduct, or

(b) more than one instance of unsatisfactory professional conductthat, when the instances are considered together, amount to

conduct,

of a suffciently serious nature to justify suspension of the practitionerfrom practising medicine or the removal of the practitioner's namefrom the Register.

83 Mr Farmer submitted that the Tribunal should find that Dr Allen hadengaged in professional misconduct. The HCCC relied upon an expert report

ú'om Dr Linda Mann, a general practitioner who considered the material

currently before the TribunaL. In respect of the statement that Dr Allen

made to support Ms Sood in her appearance before the Board, Dr Mann

stated:

- 31 -

When asked to make such a statement, a general practitioner shouldrelay the truth, indicating the limits of their knowledge. Such limitsmay be clinical limits, or limits related to time, or what was seen, orwhat went on. If unsure of the subject matter of the statement thegeneral practitioner should indicate just this. If the provision of a

statement is diffcult because of the general practitioner being unsure

of the subject matter of that statement, the general practitioner can

get advice from his medical defence organisation, who can make clearexactly how a general practitioner can answer the request for such astatement.

84 Dr Mann further stated:

With regard to the statements of 11 June 2002, 13 October 2003 and

31 July 2006 and assuming that Dr Allen knew that all or part of anyof these statements was false, I would consider that Dr Allen'sbehaviour in writing such a statement which contained falseinformation departs significantly from the standard expectedof a practitioner of an equivalent level of training orexperience, applicable at the time the statement was writtennamely 2002, 2003, 2006. Dr Allen knew at the time tbat thestatements were written that they were important, and related to amedical situation known to the Medical Board, and subsequently to thePolice. ... Assuming that Dr Allen knew that all or part of at least oneof these statements were false, he behaved in a way that is unethicaland attracts my strong criticism because of the significance ofthe statements over time.

With regard to the statement dated 11 June 2002 and 13 October 2003

and assuming that Dr Allen was unsure when he made any or all ofthese statements that all or part of these statements were true,

complete or correct, it behoved Dr Alen to indicate in the statement,what part of the information he was writing about was true to hisknowledge, and what part he was unsure about. The provision of sucha statement assumes that the information provided was correct,because this is the behaviour expected of a practitioner of an equallevel of training or experience applicable in 2002 and 2003. Thestatements do not contain any expression that suggests that Dr Allen

was unsure. Assuming that he was unsure, the statements are nottruthful ones. I would consider that Dr Allen's behaviour inwriting such statements which contained inaccurate oruntruthful information departs significantly from the standardexpected of a practitioner of an equivalent level of training orexperience, applicable at the time the statement was writtennamely 2002 and 2003.

.32.

85 Dr Mann's report in part is based on the assumption that Dr Allen knew that

all or part of the statements of 11 June 2002 and 31 July 2006 were false. Dr

Mann's conclusions must be considered in light of the findings made by the

TribunaL. In particular, that Dr Allen did not deliberately or intentionally

make a false statement on 11 June 2002 and 31 July 2006. The HCCC also

relied upon the New South Wales Code of Professional Conduct and the

duties ofa doctor registered with the New South Wales Medical Board.

86 In Dr Mann's opinion, Dr Allen's conduct crossed professional boundaries

and fell below the standard expected of a practitioner whose level of training

and experience was equivalent to that of the practitioner. Dr Allen's conduct

attracted Dr Mann's strong criticism, particularly his failure to state what

matters he was unsure about and the limits of his knowledge. The Tribunal

has found that Dr Allen's conduct fell significantly below the standard

reasonably expected of a medical practitioner of his experience. Dr Allen

admitted such conduct was improper or unethical and the Tribunal finds

accordingly. Dr Allen made statements carelessly and seemingly without

any concern as to whether anyone may be misled by them. The making of

such statements, as we have observed, calls for strong criticism by others in

the profession. We find Dr Allen guilty of professional misconduct.

87 The complainant's position was that if the Tribunal made such a finding, the

Tribunal should consider making an order for the deregistration of Dr Allen.

It was submitted that the gravity of the conduct renders Dr Allen unfit to

practice medicine having regard to his conduct. This jurisdiction is

protective rather than punitive, and deregistration is not an automatic

outcome of professional misconduct, even where that conduct is sufficiently

sei'ious to justify it: Health Care Complaints Commission u Karalasingham

(2007) NSWCA 267 at (67). It is clear that deregistration may be required in

serious cases of misconduct in order to adequately achieve the objectives of

minimising the risk of recurrence and of deterring other practitioners from

engaging in such conduct and by maintaining public confidence in the

- 33 -

professional: Health Care Complaints Commission v Litchfield (1997) 41

NSWLR 630; Re Dr Parajuli (2010) NSWMT 3 at (32). Medical practitioners

clearly have an obligation to be candid in any dealings that they have with

the Board: see Health Care Complaints Commission v Wingate (at (43) - (44).

88 Ms Ronalds submitted that there was no risk that such misconduct would

recur. Counsel emphasised that Dr Allen acknowledged his misconduct and

was contrite and remorsefuL. He had stated that he was extremely sorry that

these events had occurred. He further acknowledged that he had broken the

Code and that his conduct was a bad example to other doctors, particularly in

his local area where he is well known and also in New South Wales. The

Tribunal is satisfied that Dr Allen will not repeat this conduct. The Tribunal

has come to this opinion because it considers that Dr Alen committed the

misconduct because he trusted Ms Sood and that dealing with Ms Sood on

occasions was very diffcult as she was very disorganised, demanding and

bossy. The Tribunal also has to take into account that Dr Allen admitted the

second complaint and the majority of the particulars.

89 A further matter that the Tribunal has taken into account is that Dr Allen's

practice of medicine has been exemplary. There is no doubt that this is the

reason he received very positive character references from a number of his

colleagues, two nurses and a pharmacist. Many of them have worked with

him for in excess of 25 years and stated that they have known him

personally. They also commented on the important work that he does in the

community. We have taken these references into account.

90 Ms Ronalds also relied on medical reports in respect of Dr Allen's state of

health. Dr Bruce Westmore, a forensic psychiatrist, provided a medical

report dated 14 May 2007. Dr Westmore set out the circumstances that led

to this complaint. Dr Allen's medical history, observing that he first saw a

psychiatrist in 1986 when he was diagnosed with an anxiety disorder and

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that he continues to attend a psychiatrist every three to slx months.

Relevantly, Dr Westmore's opinion was as follows:

1. I would imagine that Dr Allen's home life has a significant

impact on him psychologically. He would be concerned about

his wife, the ilness and her future. His son is likely to have hadlong-standing problems which would also impact from time totime on Dr Alen's mental state.

2. Most people do attempt to avoid stressful situations but some

people are more prone to psychological distress and anxietywhen confronted with diffcult, demanding or stressfulsituations. I would accept that Dr Alen has some of those

qualities, it is diffcult to pass many comments about hispersonality structure and profile however as I have onlyexamined him on one occasion.

3. Again, I would note I have only examined him once and myability to pass many comments about aspects of his personalityis limited because of that fact. It is possible that when highlyanxious this man is more vulnerable to suggestion and to beinginfluenced by others. He does present as being a shy somewhattimid individual and he was quite anxious when I examinedhim. I noted the circumstances which he said were present at

the time the second statement was prepared and signed,although I do also note his handwritten observations at the endof that document. He has not had much contact or experiencewith police offcers or court. He may be prone to get flustered attimes and that may have been the case after he had givenevidence in court and when speaking to the police offcer.

4. I do not think his medication would adversely affect his mental

state or have any significant impact on his behaviour.

91 Ms Ronalds also relied upon two reports from Dr Hansen, Dr Alen's general

practitioner since July 1984. In a report dated 1 August 2006, Dr Hansen

stated:

He suffered an attack of hypomania in 1983 and since that time hasbeen in good remission. He has however experienced occasional

perturbations of mood, usually related to life stresses and he is proneto anxiety.

He tries to avoid undue stresses in his life.

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It is quite possible that he could have diffculties with recall, especiallyif he is very anxious and for this reason he may not be an entirelyreliable witness under the tensions of the court room.

I do not think that his medication would affect his memory/recall but

his anxiety level could.

92 The evidence discloses that during the Supreme Court trial, Dr Allen was

taking Lithium for his mental ilness. He increased the medication during

the triaL. The evidence also discloses that one of the symptoms of Dr Allen's

illness is problems with memory and anxiety. The Tribunal has taken these

matters into account in the overall determination of this complaint.

93 The Tribunal has also taken into account Dr Allen's age (65 years), the

length of time that he has practised medicine (42 years) and his work as a

doctor with Methadone and aged care patients who live in Western Sydney.

Dr Allen has not previously come to the attention of the Board or this

TribunaL. The Tribunal in considering the question of Dr Allen's character,

has taken into account the matters set out earlier, which support his

continued registration. The Tribunal considers that in all the circumstances

Dr Allen's misconduct requires that he be reprimanded. In reaching this

decision, we have also been mindful of the desirabilty of similar disposition

of cases involving similar facts. In this regard, the Tribunal was referred to

Re Dr Richard Wingate (2007) NSWMT 2.

Costs

94 The Tribunal's power and discretion in relation to costs was reviewed in

NSW Medical Board u Dinahar (2009) NSWMT 8. The general rule is that,

in the absence of disentitling conduct by the successful party, the Tribunal

will exercise its discretion by compensating the successful party through an

order for costs. The HCCC sought costs in the event that it was successfuL.

No submissions were put in opposition to this by Ms Ronalds. Dr Alen

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, ,.

should pay the HCCC's costs of these proceedings on the ordinary basis as

defined in s 3 of the Criminal Procedure Act 2005.

ORDERS

1. Dr Allen is reprimanded.

2. Dr Allen is to pay the HCCC's costs of these proceedings, on the

ordinary basis as defined in s 3 of the Criminal Procedure Act 2005.

Pursuant to cl 6 of Sch 2 of the Medical Practice Act, the Tribunal has made a non

publication order in respect of the name of a patient referred to in the proceedings.

(signed and sealed)

His Honour Justice Staff

Dr J Ng

Dr D Grimes

Mr R Smith

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17/'1/2"'"

13:32 JUDGE'S CHAMBERS ~ Ø937~~727

9258~988

NO. 104 ""'

should pay the HeeC's costs of these proceedings on the ordinary basis as

defined in s 3 of the Criminal Procedure Act 2005,

ORDERS

1. Dr Allen is reprimanded.

2. Dr Allen is to pay the HeCC's costs of these proceedings, on the

ordinary ba.sis as dermed in s 3 of the Criminal Procedure Act 2005.

Pursuant to cl 6 of Sch 2 of the Medical Practice Act, the Tribunal has made a non

4

(signed and s~aled) d,~'4His Honour Ji.stice Sta-l~ "

Dr J Ng "" j /tDr D Grimes

Mr R Smith

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-~1¡)V'--~-