O’Sullivan v Health Care Complaints Commission (No 3) [2010] NSWADT 309 (30 December 2010)

Last Updated: 31 December 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
O’Sullivan v Health Care Complaints Commission (No 3) [2010] NSWADT 309


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Brendan O’Sullivan

RESPONDENT
Health Care Complaints Commission



FILE NUMBERS:
091056

HEARING DATES:
3 May 2010, 28 June 2010, 28 July 2010

SUBMISSIONS CLOSED:
28 July 2010



DATE OF DECISION:
30 December 2010

BEFORE:
Patten D - Deputy PresidentO'Sullivan M - Non-Judicial MemberMonaghan-Nagle L - Non-Judicial Member





LEGISLATION CITED:
Anti-Discrimination Act 1977
Medical Practice Act 1992
Health Care Complaints Act 1993

CASES CITED:


TEXTS CITED:


APPLICATION:
Victimisation – insufficient evidence to establish

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
Julian Gormly, barrister
RESPONDENT
J Oakley, barrister


ORDERS:
1. Complaint dismissed
2. Subject to 3, no orders as to costs
3. Leave to respondent to make application for costs accompanied by submissions within 30 days. Applicant to reply within 21 days. Matter of costs to be decided on the papers.


Reasons for Decision:

REASONS FOR DECISION

1 The applicant a medical practitioner and specialist psychiatrist complained to the Anti- Discrimination Board (the ADB) on 18 November 2008. The Board accepted that the complaint alleged discrimination and victimisation within sections 49A, 49B, 49J, 49M, 50, 52 and 53 of the Anti Discrimination Act (the Act). The essence of the complaint was that the respondents encouraged or procured the NSW Medical Board (the Board) to require him to be examined by a psychiatrist and that this encouragement or procurement constituted either an act of discrimination based on the applicant's presumed mental incapacity or an act of victimisation based upon the applicant's prior involvement in complaints to the ADB about the conduct of the Health Care Complaints Commission (HCCC) in other matters.

2 In due course the President of the ADB having been unable to resolve the complaint referred it to this Tribunal. Having carefully considered the evidence we have concluded that there was and is no basis for the complaint which should be dismissed. Our reasons for that conclusion follow.

3 The applicant, whom it should be mentioned is or has been the applicant in other proceedings before this Tribunal, attempted to crystallise the complaint in Points of Claim filed 4 September 2009. In those points of claim he sought relief against the respondents viz, HCCC, Mr Kieran Pehm (Mr Pehm) who was at material times the Commissioner of HCCC and Ms Karen Mobbs (Ms Mobbs) who was at material times the Director of Proceedings of HCCC appointed pursuant to s90A of the Health Care Complaints Act (HCCA) and given statutory functions by s90B. The matters pleaded may be summarised as follows:

1. In August 2007 the applicant assisted one ML in making and pursuing a complaint to the ADB concerning the HCCC’s treatment of ML’s complaint to it regarding the death of her son while a patient at Sutherland Hospital. The complaint to the ADB was upheld with potentially adverse consequences for a Dr Andrews who had been retained by the HCCC in other matters to write "peer review" reports.

2. The applicant in September 2007 assisted a mentally ill patient, MA in making a complaint to the HCCC about his medical treatment and when this did not produce the desired result assisted MA in making a complaint to the ADB about the conduct of the HCCC. That complaint was ultimately dismissed.

3. Complaints were made by the applicant to the Legal Services Commissioner regarding the Ms Mobbs who in addition to her statutory duties was a legal officer employed by the HCCC.

4. Complaints were made to the Ombudsman and to a NSW Parliamentary Committee regarding the HCCC’s complaints procedures.

5. As a result of the above matters the applicant was victimised, such victimisation being constituted by:

a) A letter written by Mr Pehm on behalf of the HCCC to the Acting Director of St Vincent’s Public Hospital dated 28 March 2008 in respect of which the HCCC through its solicitor subsequently apologised.

b) A letter written by HCCC to the Board dated 24 April 2008 regarding the possibility of charging the applicant with a criminal offence to which the Board replied that no such action was warranted.

c) The HCCC instructing its solicitor to seek from the Professional Standards Committee of the Board an order restraining the applicant from "threatening and harassing witnesses". In subsequent proceedings before the Medical Tribunal Judge Solomon held that on the evidence before him "the direction of the Chairperson was not justified and the Chairperson in making the direction improperly exercised the implied power reposed in her."

d) In May and June 2008 Mr Pehm and Ms Mobbs making personal representations to the Board to the effect that certain complaints against the applicant namely the complaints of MA and EL should be dealt with by the Medical Tribunal rather than the Professional Standards Committee and subsequently causing HCCC to commence proceedings against the applicant before the Medical Tribunal.

e) HCCC and/or its officers initiating proceedings against the applicant in respect of property (including patient's records) left in his rooms at Macquarie Street, Sydney when he vacated them such proceedings (which ultimately were terminated) being disproportionate to any possible offence.

f) HCCC after the present complaint was made to the ADB writing to the Board urging it to have the applicant psychiatrically examined.

g) HCCC refusing to withdraw any of the complaints made to the Medical Tribunal and/or refer them instead to a Professional Standards Committee notwithstanding evidence produced by the applicant to the effect that at least one of the complaints was unfounded.

4 The above comprises only a very brief summary of the contents of the Points of Claim which contains much argumentative and irrelevant material. It is noteworthy however that none of the allegations in the Points of Claim asserts that the applicant was discriminated against in the provision of services on the grounds of disability contrary to the Act. The substance of the claim is one of victimisation contrary to s50 the terms of which are as follows:

50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

5 It is to be noted that the detriment referred to in s50(1) is predicated upon proceedings taken under the Act or allegations which would amount to a breach of the Act. Some of the matters relied upon in the Points of Claim plainly do not fall within s50 and are irrelevant to the claim in so far as it alleges a contravention of that section.

6 By its defence to the Points of Claim the respondents put in issue or denied most of the matters alleged including the applicant's entitlement to any relief. The respondents did however admit that the applicant as alleged assisted two complainants in their complaints to the ADB but said that the complaints were dismissed as lacking in substance. The respondent also relied upon s54 of the Act which provides protection in respect of acts necessary in order to comply with a requirement of a statute. At the hearing Ms Oakley Counsel for the respondents conceded that the evidence satisfied the requirements of para (a) to (d) of s50(1) in so far as the applicant was concerned.

7 Before coming to the evidence in the case it is appropriate to make brief reference to the respective functions of the Board and HCCC and to the relationship between them.

8 The Board is constituted by the Medical Practice Act 1992 (MPA). Inter alia it has powers in relation to the registration of medical practitioners and jurisdiction in respect of complaints made against them. HCCC is constituted under the HCCA. It has jurisdiction in respect of complaints against all health professionals including medical practitioners in respect of whom its powers overlap those of the Board in that complaints against medical practitioners may be made to and dealt with by either body.

9 Each body is however required by statute to consult with the other regarding complaints (s49 MPA, s12 HCCA). See also s66C of the MPA in these terms:

66C Special provisions--impairment

(1) This section applies if the Board takes action against a registered medical practitioner under section 66 because the Board is of the opinion that the practitioner suffers from an impairment.

(2) The Board must, as soon as practicable after taking that action and, in any event, within 7 days after taking that action, notify the Commission that it has taken that action.

(3) The Board is to consult with the Commission to see if agreement can be reached as to whether the matter should be:

(a) dealt with as a complaint against the practitioner, or

(b) referred to an Impaired Registrants Panel.

(4) The matter is to be dealt with as a complaint against the practitioner only if, following that consultation:

(a) the Board and the Commission agree that it should be dealt with as a complaint, or

(b) either the Board or the Commission is of the opinion that the matter should be dealt with as a complaint.

(5) In such a case, the Board is to refer the matter to the Commission and the matter is to be dealt with by the Commission as a complaint made to the Commission against the practitioner concerned.

(6) The Commission is to investigate the complaint or cause it to be investigated and, as soon as practicable after it has completed its investigation, refer the complaint to the Tribunal or a Committee.

(7) Section 52 (Serious complaints must be referred to Tribunal) applies in respect of any such action by the Commission.

(8) If subsection (4) does not apply, the Board is to refer the matter to an Impaired Registrants Panel.

(9) A matter may be referred to an Impaired Registrants Panel under this section even though the medical practitioner has been suspended under section 66. Part 5 applies in respect of such a referral as if the medical practitioner were a registered medical practitioner.

10 The evidence adduced to support the applicant's case amounted to no more than his short affidavit sworn 12 January 2010 identifying a number of documents which were annexed to the affidavit and an affidavit of his solicitor Ms C V Donnelly sworn 24 May 2010 which annexed minutes of various meetings of the Conduct Committee of the Board two of which namely meetings of 27 May 2008 and 25 November 2008 were designated "Consult Meeting with HCCC and Director of Proceedings".

11 The applicant was cross-examined by Ms Oakley. He was an unimpressive witness principally because in response to many of the questions asked of him he provided an irrelevant commentary rather an appropriate answer. However the case does not turn on whether or not we accept the evidence of the applicant but rather on the inferences to be drawn from the large volume of documents placed before the Tribunal. Notwithstanding that comment we do include in these reasons an exchange between Ms Oakley and the applicant regarding his assertion that the HCCC was responsible for the Board requiring him to submit himself to psychiatric examination in October 2008:

Q. It’s the case, isn’t it, that you have maintained to the Anti-Discrimination Board that Mr Pehm encouraged and convinced the Medical Board to have you medically examined.

A. Yes.

Q. That’s the case isn’t it? You made that assertion to the Anti-Discrimination Board didn’t you?

A. I did.

Q. And you have made that assertion to this Tribunal haven’t you?

A. I have.

Q. You have maintained that assertion, notwithstanding that you were aware that the Medical Board had decided approximately a month before Mr Pehm’s letter was sent to the Medical Board, do you agree?

A. Quite incorrect.

Q. Well, I’ll take it step by step. It is the case isn’t it, that you have maintained that assertion notwithstanding that you knew that the Medical Board had decided in October 2008 to refer you for psychiatric assessment. You agree with that?

A. Incorrect.

Q. Well, you received a letter, did you not, dated 30 October 2008 requiring you to attend for an appointment with Dr Anderson?

A. What - the date again, please?

Q. The 30 October 2008, I’m happy to show you the letter.

A. No, no, I recall it. I did.

Q. That letter told you, did it not, and I’m happy to show it to you if you wish, that the Board’s conduct, this is the Medical Board’s Conduct Committee at its meeting on 14 October 2008 resolved that you were to attend a Board nominated psychiatrist, do you agree?

A. Correct.

Q. And you are aware are you not that Mr Pehm’s letter to the Medical Board is dated 13 November 2008, aren’t you?

A. Correct.

Q. So you have always been aware since you became aware of Mr Pehm’s letter, the existence of Mr Pehm’s letter you always knew did you not, that Mr Pehm’s letter had been sent after the Medical Board had made its decision. Or at least the Conduct Committee of the Medical Board.

A. Yes, when that letter arrived by subpoena well after the complaint was made to the Anti-Discrimination Board I became aware that his letter had followed the decision of the Conduct Committee in October but at the time of the complaint I did not know that.

Q. But you knew, didn’t you, at the time you last appeared before this Tribunal that Mr Pehm’s letter post dated the decision of the Board, didn’t you?

A. Oh yes, that was pointed out, yes.

Q. And you maintained before this Tribunal, didn’t you that Mr Pehm had somehow encouraged and convinced the Medical Board to make its decision.

A. Yes, in the meetings of May and June 2008 when he attended the Medical Board in person and failed to declare any conflict of interest, that’s when it happened.

Q. And you give that evidence do you?

A. He was part of the process, there was a part of the process of organising that.

Q. You were not present at the Medical Board meetings were you?

A. I know someone who was.

Q. And not somebody who is giving evidence in these proceedings?

A. No.

Q. Not someone you’ve asked to give evidence in these proceedings?

A. Someone who would rather not.

12 We turn now to deal with the specific matters raised by the applicant in the Points of Claim summarised above the numbering corresponding to the numbering previously employed

13 Points of Claim Summary 1 - As indicated earlier the respondents admitted that the applicant assisted ML to make a complaint to the ADB although their contention was that the complaint was ultimately dismissed. The outcome of the complaint is irrelevant to these proceedings as the applicant’s involvement in the making of it brought him within section 50 of the Act.

14 Points of Claim Summary 2 - The respondent also admitted that the applicant assisted MA in making a complaint to the ADB.

15 Points of Claim Summary 3 - There is no evidence that the complaints to the Legal Services Commissioner related to or raised breaches or possible breaches of the Act. Accordingly this allegation in the Points of Claim is irrelevant for present purposes.

16 Points of Claim Summary 4 - Again there is no evidence of any relationship between the complaint and the Act. The assertion in the Points of Claim is irrelevant.

17 Points of Claim Summary 5 (a) - The letter dated 28 March 2008 from HCCC over the signature of Mr Pehm to the Chief Executive Officer of St Vincent's Hospital was as follows:

Dear Mr Anderson,

Dr Brendan O'Sullivan

Dr O’Sullivan has sent to the Commission a copy of his letter to you dated 6 March 2008 complaining about Dr Andrew Wilson proving a "medico-legal" report on St Vincent's letterhead. I thought it appropriate to write to you in order to give you some context to Dr O'Sullivan's letter and because of concerns expressed to this Commission by Dr Wilson.

The Commission has had extensive dealings with Dr O'Sullivan although confidentiality provisions do not allow me to go into them in detail. As part of these matters, Dr Wilson was engaged by the Commission to provide his expert opinion on issues of professional conduct, under section 30 of the Health Care Complaints Act. Dr Wilson provided his report on St Vincent's letterhead.

The use of St Vincent's letterhead is, of course, entirely a matter for your organisation. I do take this opportunity to assure you that experts are engaged by the Commission because of their individual clinical expertise and judgement and on the basis of their professional experience. It is immaterial to this Commission whether or not its experts report on the letterhead of organisations where they may work.

Dr O'Sullivan's letter to you, while somewhat cryptic, appears to imply that the use of letterhead is somehow misleading or deceptive. He also seeks to besmirch Dr Wilson's clinical skills and judgement. I assure you that the Commission has no concerns on either of these counts. There are currently confidential, in camera, disciplinary proceedings pending which make it inappropriate to canvas the substance of Dr Wilson's report by any person, including Dr O’Sullivan. For that reason, l will not go into detail about the report.

The fourth paragraph of Dr O'Sullivan's letter asserts that Dr Wilson "has earned substantial money" from the provision of expert reports to the Commission. The Commission's database shows that Dr Wilson has provided only two expert reports for the Commission, one in August 2005 and the more recent one the subject of Dr O'Sullivan's complaint to you.

The Commission values the commitment of Dr Wilson and all its experts to the proper governance and accountability of health service provision. The fees paid by the Commission are not commensurate with the time and considerable effort expended by the experts in providing the Commission with their opinion, Where there is a basis for the prosecution of a complaint, they are also required to give evidence against practitioners before disciplinary bodies. This is inherently a difficult and demanding process for medical practitioners. Unfortunately, on rare occasions, they also have to endure attempts to discredit them by practitioners whose conduct is the subject of their reports.

The Commission is considering what action is available to it regarding Dr O’Sullivan’s letter to you about Dr Wilson. I thought it only fair that you be given some reasonable basis on which to assess Dr O’Sullivan’s complaint to you.

A copy of this letter will be provided to Dr O’Sullivan and Dr Wilson. As Dr O’Sullivan’s letter to you has been copied to others, you may wish to disseminate this letter to others in your organisation.

Yours faithfully

Kieran Pehm

(sgd) K Pehm

Commissioner

28 March 2008

18 Some months later on 5 December 2008 HCCC provided an apology to the applicant in these terms:

Dear Dr O’Sullivan,

On behalf of the Commission, I apologise for any breach of your privacy that the Commission, has committed in my letter dated 28 March 2008 to St Vincent’s Hospital.

Yours faithfully,

Keiran Pehm

Commissioner

19 The letter of 28 March 2008 could only be relevant to this case if there were evidence that it constituted a detriment to the applicant and that such detriment was grounded upon his involvement in complaints to the ADB. Accepting that the letter may have constituted a detriment by lowering the reputation of the applicant in the eyes of his peers there is no evidence of any causal relationship between the letter and the complaints. Indeed the terms of the letter itself suggest the contrary. Mr Julian Gormly counsel for the applicant submitted that inferences should be drawn from the absence of Mr Pehm from the witness box but the law entitles us to do no more than infer that his evidence would not have assisted the respondent's case. In our opinion we should not speculate as to what Mr Pehm might have said if called particularly as the letter itself provides what we regard as valid reasons for its coming into being.

20 Points of Claim Summary 5 (b) - On 24 April 2008 Mr Pehm on behalf of HCCC wrote to the Chairman of the Board in these terms:

PRIVATE AND CONFIDENTIAL

Dear Mr Dix

Re: Potential breach of a PSC suppression order

complaint against Dr Brendan O’Sullivan

I refer to the directions on suppression order made on 5 September 2007 by the Chairperson in the current PSC proceedings concerning Dr O'Sullivan. I note the directions were made after a directions hearing on 5 September 2007 at which the Commission raised with the Chairperson concerns from one of the Commission's peer reviewers, Dr Andrew Wilson, about possible harassment by Dr O'Sullivan. Dr Wilson's concerns arose because in July 2007 Dr O'Sullivan had contacted one of Dr Wilson’s senior colleagues at St Vincent's Hospital where Dr Wilson is a VMO in relation to Dr Wilson's confidential report to the PSC.

I note that the PSC proceedings are currently stayed due to an appeal lodged in the Tribunal by Dr O'Sullivan and that the appeal relates, in part, to the legality of certain directions made by the Chairperson on 5 September 2007.

I advise that in March of this year, Dr Wilson again contacted the Commission and advised that Dr O'Sullivan had written a letter dated 6 March 2008 to Mr Jonathan Anderson, the Chief Executive officer of St Vincent's Hospital. The letter is a formal complaint about Dr Wilson and discusses Dr Wilson's report filed in the PSC proceedings although it does not make mention of those proceedings. The letter was purportedly copied to the Honourable Reba Meagher, MP, Minister for Health and to Sr Elizabeth Dodds, Congregational Leader, Sisters of Charity. A copy of the letter is attached. Dr Wilson has expressed concern to the Commission about Dr O'Sullivan's actions which he considers to be a form of harassment and about the potential impact on the pending PSC proceedings and on Dr Wilson's role as an independent peer.

The Commission has formed the view that Dr O'Sullivan's actions in writing to St Vincent's and copying the letter to other persons may constitute a breach of the suppression order and/or a breach of section 190 of the Medical Practice Act 1992 which, as you are aware, deals with the confidentiality of any information obtained in connection with the administration or execution of the Medical Practice Act.

As the conduct relates to potential offences under the Act, I am referring the matter to the Board to consider whether it should take any enforcement action.

I propose to write Dr O’Sullivan and Dr Wilson and advise them of the Commission's decision to refer this matter to the Board however I will defer doing so until I hear from you.

Yours sincerely

Kieran Pehm

Commissioner

24 April 2008

21 In our opinion the private and confidential letter written to Mr Dix was not capable of constituting a detriment to the applicant in the circumstances of this case. On its face it was a perfectly proper and appropriate communication by the HCCC pursuant to its statutory responsibilities. But again in any event there is no evidence that it was grounded on the applicants participation in complaints to the ADB.

22 Points of Claim Summary 5 (c) - We have been unable to find in the material before us evidence of "an instruction" to the HCCC’s solicitor as alleged. Presumably there was one because it is not disputed that the Chairperson of the Professional Standards Committee made a direction "Dr O’Sullivan is not to threaten, harass or seek to intimidate any potential witness to the Professional Standards Committee inquiry". The applicant sought to set aside this direction in an appeal to the Medical Tribunal. It is appropriate to quote Judge Solomon's reasons for allowing the appeal upon this point as, contrary to the impression which the applicant gave in his Points of Claim, the reasons seem to us to reflect little credit upon him.

"The appellant submits that the Chairperson did not have power to make the direction. There is no express power contained in the Act to enable the Chairman to make such a direction. However, statutory tribunals have implied powers; (see Household Financial Services Limited v Commercial Tribunal of New South Wales [1995] 136 NSWLR 220.) Further, the implied powers of statutory tribunals extend to powers necessarily incidental to enable a tribunal to work effectively within its jurisdiction; (see Commissioner for Young Children and Young People v Attorney General [2002] NSWSC 949).

In order to determine whether the direction of the Chairperson was unfairly prejudicial to the appellant, it is necessary to consider the background to the direction made by the Chairperson. Dr F, a psychiatrist, who was to give evidence at the Professional Standards Committee inquiry as an expert peer reviewer, received a copy of an email sent by the appellant to Dr G of Department of Psychiatry, St Vincent's Hospital, on 26 July 2007. I set out the contents of the original email:

"Dear G. I am not sure if you are the right person to address this email to, but, if not perhaps you could pass it on to the appropriate executive at St Vincent's. AVMO at St Vincent's Hospital by the name of F has jumped in at the last minute, after I had pretty well dispensed with the last of the three Dr X malpractice complaints against me. Dr F wrote a 2 1/2 page peer report for the HCCC upon St Vincent's Hospital letterhead for the sum of $500 and made the HCCC both surprised and happy with his dogmatic and unqualified statements regarding my writing of Schedules under the Mental Health Act. For example, he said,

'In all cases without exception personal examination is required.'

Dr F forgets that if he himself had a patient recently interviewed by him in his own private rooms, who several days later and (say) up to the past, told him in clear and uncertain terms in a detailed telephone conversation that he had become suicidal and/or homicidal and/or otherwise dangerous, that he (ie. Dr F) would not write a schedule because 'a phone conversation is not enough' in order to do so, and because, 'in all cases without exception personal examination is required'.

You can see what the HCCC people will happily do with such medical "peer" dogma.

Of course, Dr X went even further and alleged that I wanted to use a Schedule as a 'get out of gaol free card' for a patient. The absurdity of it.

I hope that the money that is paid for such reports (upon St Vincent’s Hospital letterhead) actually goes to the hospital. I will check this.

I also hope the hospital will indemnify and otherwise back their VMO staff for these extra-curricular activities and opinions all upon St Vincent’s Hospital letterhead.

My intention of course is to pass all relevant costs onto where they belong. Finally, G, the HCCC is not forthcoming about how they actually solicited this last minute extra peer report from Dr F. I personally think it is improper to go "shopping around" for opinions that just agree, and, as you know, the whole system of peer review reports by the HCCC is problematic and has been referred many times to and from the NSW Parliamentary Committee on the HCCC, I will report this case myself, in due course so the matter is likely to come back to you (and/or the hospital's administration). I might even call up some old Catholic connections. Why not?

Best wishes, Brendan O'Sullivan."

The HCCC sought the directions hearing after it was contacted by Dr F in relation to the email, The HCCC submits that the conduct of the appellant in sending a copy of the email to Dr F had the potential effect of threatening, harassing or intimidating Dr F who was to give evidence at the Professional Standards Committee hearing. The HCCC further submits that the Chairperson was obliged to take appropriate action to ensure that the hearing before the Professional Standards Committee proceeded in an orderly and lawful manner and the Chairperson had an implied power to make the decision.

I must now consider whether the Chairperson properly exercised her implied power.

There is no evidence before me that Dr F or indeed any other person complained of being threatened, harassed or intimidated as a consequence of reading the email sent by the appellant on 26 July 2007 to Dr G.

On the evidence before me I find that the direction of the Chairperson was not justified and the Chairperson in making the direction improperly exercised the implied power reposed in her.

Appeal seven is upheld."

23 In light of the terms of the applicant’s email to Dr G we think it was entirely reasonable for the respondent to seek a direction from the Chairperson of the Committee of the kind which she gave. We do not infer that the application was in any way founded upon the applicant's involvement in complaints to the ADB.

24 Summary of Points of Claim 5 (d) - There is no evidence that on 27 May 2008 Mr Pehm or Ms Mobbs "Went in person to the NSW Medical Board and on that occasion and on other later occasions in June of 2008 they argued that both the MA and EL complaint matters should be elevated to the New South Wales Medical Tribunal and no longer be dealt with in PCS’s."

25 The Minutes of the "Conduct Committee Consult" meeting of 27 May 2008 indicate that Mr Pehm and Ms Mobbs were present that Ms Mobbs informed the Committee "that (the outstanding matter involving the applicant) should be ready for consult at the June 2008 meeting". There was nothing untoward about the presence of Mr Pehm or Ms Mobbs in view of section 49 of the MPA.

26 As we have earlier indicated the Director of Proceedings is a statutory officer under section 90A of the HCCA. The functions and powers of the Director are prescribed by sections 90B, 90C and 90D as follows:

90B Functions of Director of Proceedings

(1) The following functions of the Commission are to be exercised only by the Director of Proceedings in relation to any complaint referred to the Director by the Commission:

(a) to determine whether the complaint should be prosecuted before a disciplinary body and, if so, whether it should be prosecuted by the Commission or referred to another person or body for prosecution,

(a1) if the Director determines that the complaint should be prosecuted before a disciplinary body by the Commission, to prosecute the complaint before the disciplinary body,

(b) to intervene in any proceedings that may be taken before a disciplinary body in relation to the complaint.

(2) In addition, the Director of Proceedings has any other functions conferred or imposed on the Director by or under this or any other Act.

(2A) Without limiting subsection (2), the Director of Proceedings may exercise any other functions conferred or imposed on the Commission by another Act and delegated to the Director under section 84.

(3) The Director of Proceedings:

(a) may at any time consult with a professional council in relation to the exercise of any of the Director’s functions, and

(b) must consult with the appropriate professional council (if any) before determining whether or not a complaint should be prosecuted before a disciplinary body.

(3A) If the Director determines that a complaint should not be prosecuted before a disciplinary body, the Director may refer the complaint back to the Commission for action to be taken under section 39 (1) (c)–(g).

(4) The exercise by the Director of Proceedings of any function referred to in subsection (1) is taken to be the exercise of that function by the Commission.

(5) While holding the office of Director of Proceedings, a person is not to exercise any function of the Commission other than a function referred to in subsection (1) or (2A).

90C Criteria relevant to determinations of Director of Proceedings

(1) The Director of Proceedings is to take into account the following matters when making a determination as to whether or not a complaint should be prosecuted before a disciplinary body:

(a) the protection of the health and safety of the public,

(b) the seriousness of the alleged conduct the subject of the complaint,

(c) the likelihood of proving the alleged conduct,

(d) any submissions made under section 40 by the health practitioner concerned.

(1A) When determining whether a complaint should be prosecuted by the Commission before a disciplinary body, the Director of Proceedings is to consider making a determination with respect to any associated complaint that has been referred to the Director of Proceedings (other than an associated complaint that is a complaint that has been discontinued or terminated and not reopened) so that the complaints are prosecuted concurrently.

(2) For the purpose of enabling the Director of Proceedings to fulfil the Director’s functions under this section in relation to a complaint referred to the Director, the Commission is to provide the Director with any submissions received under section 40 in relation to the complaint.

.................

90D Independence of Director of Proceedings

The Director of Proceedings is not subject to the direction and control of the Commissioner in relation to dealing with any particular complaint that has been referred by the Commission to the Director for consideration.

27 On 28 May 2008 Ms Mobbs exercised her power under section 90B and notified her decision to the Board by the following letter:

PRIVATE AND CONFIDENTIAL

Dear Mr Dix

RE: Complaints against Dr Brendan O’Sullivan (MPO 149995)

Following consideration of the complaint made against Dr O'Sullivan by EL, and taking into account the matters set out in s.90C of the Health Care Complaints Act 1993 ("the Act"), I propose to make a determination pursuant to s90 B(1)(a) of the Act that the Commission prosecute a complaint against Dr O'Sullivan.

Whilst the matter is unlikely to result in de-registration or suspension, I am of the view that it is nonetheless appropriate that this matter should be heard before a Medical Tribunal. In reaching this view, I have regard to the nature of the complaint, which is clinical in nature and which also involves boundary issues that relate to the treatment of a patient who is the partner of Dr O'Sullivan's current barrister. I note that given the delicate and unusual nature of this part of the complaint, that it would seem appropriate that the matter be dealt with in a jurisdiction that allowed both Dr O'Sullivan and the Commission to be legally represented by independent counsel.

I have also had regard to the other complaints against Dr O'Sullivan, namely the complaint against Dr O'Sullivan was found proved by a Medical Tribunal in December 2006 and which is still the subject to an appeal by Dr O'Sullivan ("the first complaint"). I have also had regard to the current complaint against Dr O'Sullivan that was brought before a Professional Standards Committee (PSC) and which relates to the patient MA ("the second complaint").

I have also had regard to the history of these two complaints in that they were both initiated before PSC's. The first complaint was ultimately referred to a Tribunal by the Medical Board. I will deal further with the forum of the second complaint below in my view that it should be referred to a Medical Tribunal, but note that there have been significant delays with having the second complaint heard by the PSC and that there is already in being an appeal to the Medical Tribunal with the prospect of further appeals foreshadowed. In my view, the public interest would best be served by having the complaint by EL dealt with by the Medical Tribunal as any legal issues could be more immediately dealt with by the Chairperson or Deputy Chairperson, a District Court Judge. Further, there is an increased level of procedure in the Medical Tribunal which would more easily accommodate any issues that may be raised by the parties in relation to witnesses and summonses.

Second Complaint

I note that there have been numerous delays in having the second complaint heard by a PSC and that an appeal has recently been finalised by the Medical Tribunal. Whilst the matter has been remitted back to the PSC, it seems that Dr O'Sullivan has already foreshadowed further appeals in the matter in the event that certain orders are not made by the PSC. It is noted that the second complaint relates to the patient MA, whom Dr O'Sullivan has already indicated is to be called as a witness by him. This in itself has the potential to give rise to a number of issues, not least is a concern in relation to MA's mental health and his ongoing involvement in this matter.

Moreover, MA has made a number of complaints to the Commission in relation to various parties who the Commission has submitted have no relevance to the complaint but who Dr O'Sullivan wishes to have called as witnesses. It also appears that MA has obtained and apparently provided to Dr O'Sullivan a document that purports to be a statutory declaration from another party but which is in fact false. There have been other proceedings lodged by MA against the Commission in which Dr O'Sullivan has also had some involvement. In these circumstances, I am of the view that it would be in the public interest for the second complaint to be conducted in a public forum where the conduct of both parties, especially that of the Commission, is totally transparent and open to public scrutiny. It would also allow both parties to be represented by experienced and independent counsel.

In my view it is in the public interest for the details of both complaints (on the basis that the Board agrees with my proposal for the complaint by EL) to be before the Tribunal. For the reasons outlined above in relation to the complaint by EL, the legal and procedural issues which have already been raised by Dr O'Sullivan in relation to the second complaint would also be best dealt with by a Tribunal. For the reasons outlined above, I propose the following:

1. To refer the second complaint to the Medical Tribunal.

2. To prosecute the complaint by EL before a Medical Tribunal

3. To join the EL complaint with the second complaint.

Given that the second complaint is to shortly be re-listed before the PSC, your urgent advice regarding consultation would be appreciated. Should you require further information, please do not hesitate to contact me on 9XXX XXX.

Yours faithfully

Karen Mobbs

Director of Proceedings

28 May 2008

28 Ms Mobbs letter came before a Conduct Committee Meeting (at which neither she nor Mr Pehm was present) on 10 June 2008 when as the minutes record:

"DP Recommendation:

For the reasons outlined in the Director of Proceedings letter dated 28 May 2008 (attachment 1), the Director of Proceedings proposed the following:

1. To refer the complaint currently before the Professional Standards Committee to the Medical Tribunal (file no: 04/00987).

2. The Commission prosecute the complaint by EL before the Medical Tribunal (file no: 06/01832).

3. The above complaints be joined.

Outcome:

The Committee concurred with the recommendation of the Director of Proceedings that the Commission:

- withdraw and refer the complaint currently before a Professional Standards Committee to the Medical Tribunal (file no: 04/00987).

- prosecute the complaint by EL before the Medical Tribunal (file no: 06/01832) and

- that the above complaints be joined.

29 For a number of reasons nothing done by HCCC or any of its officers in the period May to June 2008 in our opinion assists the applicant in his case. There is no evidence to suggest that HCCC and Ms Mobbs were seeking to do otherwise than fulfil their statutory obligations. If necessary we would consider the defence based upon section 54 of the Act. However it does not come to that. There simply is no reason to infer that anything done was grounded on the applicant’s participation in a complaint to the ADB.

30 The applicant also raised the asserted failure of Mr Pehm and Ms Mobbs to disclose a conflict of interest at the Conduct Committee Consult Meeting on 27 May 2008 when according to the applicant they should have done so. This assertion is based on the claim that at the time complaints by the applicant against both of them were pending before the ADB and the Ombudsman. The status of those complaints at the relevant time is not clear to us. But even if there were an obligation to declare a conflict, failure to do so would not invalidate the proceedings which in any event as our earlier reference to them makes clear were purely formal in so far as they related to the applicant. Moreover failure to disclose an interest which possibly should have been disclosed does not assist the applicant in seeking to rely on s50.

31 Points of Claim Summary 5 (e) - In truth the relevant complaint seems to have been initiated by a letter from the Board's Legal Officer Ms Miranda St Hill to Mr Pehm dated 25 June 2008:

Dear Mr Pehm

Dr Brendan O’Sullivan

Referral of a complaint pursuant to section 50 of the Medical Practice Act

The Board refers the following complaint about Dr Brendan O'Sullivan to the Commission for investigation.

The Board complains that the enclosed documents appear to show there has been contravention of section 126 (2) of the Medical Practice Act and of clause 9 of the Medical Practice Regulation 2003 by Dr O'Sullivan.

In support of this complaint please find enclosed a letter to the Board from Maxwell Investigation dated 6 June 2008 enclosing the following:

a) Statement of Mathew Thompson dated 15 May 2008

b) 4 photographs printed on one sheet

c) Copies of a selection of materials (tabbed 1-16) apparently left by Dr O'Sullivan at Suite 3/Level 10, 229 Macquarie Street, Sydney.

You will see that the selection of materials includes patient discharge summary (tab 2), patient pathology results (tab 3), patient neurophysiology results (tab 4), correspondence concerning patients and apparently medico-legal matters (tabs 5, 6, 7,11 and 16), blank prescription (tab 8, 9), blank pathology request form (tab 10), patient medical certificate (tab 12), Medicare bulk bill statement (tab 13), completed Medicare forms (tab 14) and receipts (tab 15).

Please note that Peter Maxwell asks in his letter to the Board whether he should attend to collect the selection of materials that are still in the Macquarie Street premises. He has been advised that the matter has been referred to the Commission and so the Commission will contact him in relation to this.

I can be contacted on 9879 2267 if you have any questions.

Yours sincerely

Miranda St Hill

Legal Officer

32 As far as we can see there is no evidence that the complaint was in any way instigated by any of the respondents. We do not think that any inference can be drawn from the fact that "K Mobbs" appears in handwriting towards the top of a copy of the letter in evidence.

33 Points of Claim Summary 5 (f) - On 12 August 2008 the applicant wrote what we regard as an extraordinary and intemperate letter to Ms Sarah Connors HCCC’s Senior Legal Officer:

2 August 2008

Dear Ms Connors,

Re: Ms Karen Mobbs' advice to you

I note the advice that you have received from Ms Karen Mobbs, which was in your email to me dated 11 August 2008 (at 1.47pm).

Your email said:

"Dear Dr O'Sullivan,

I refer to your email dated 11 August 2008 (attached)

I advise Ms Mobbs is not aware of any current complaints made about her to external bodies.

I confirm that I am the Solicitor with carriage of the prosecution of the complaints concerning the patients MA and EL.

Yours faithfully

Sarah Connors Senior Legal Officer

In public office, Ms Connors, honesty and fairness are extremely important. But they are especially important in a body such as the Health Care Complaints Commission, where the consequences of inordinate delays and dishonesty and bias can be extremely serious.

I am now very concerned that Ms Mobbs has deliberately misled you, and she has lied to you as a Senior Solicitor working within the Health Care Complaints Commission ("the HCCC").

Ms Mobbs claimed to you that she did not know of any potential conflicts of interest in her decision-making in relation to me, and, specifically, that she was not aware of current complaints made about her to external bodies.

At issue here, of course, is Ms Mobbs' 'credibility' in relation to her sudden and excessive and prejudicial letter to me dated 30 June 2008 (a copy is attached).

In essence, after two (2) years of these same complaint matters sitting in her lap, Ms Mobbs' has now decided, as of 30 June 2008, to elevate these two (2) completely different complaint matters to the NSW Medical Tribunal.

One complaint matter has been 'hard fought over', but was already proceeding in a PSC. The new Chairperson for that PSC has had this matter removed from her jurisdiction and responsibility by Ms Mobbs.

34 There is no evidence that the Board was aware of this letter when it's Conduct Committee met on 14 October 2008 but if it had known of the letter in our opinion this would have given it further cause for concern.

35 The Conduct Committee recorded a lengthy minute regarding the applicant which apart from a formal introduction read as follows:

Background

The purpose of this item is

1. To provide the committee with an update of Dr O'Sullivan's Board matters and management of his file

2. To consider whether the Board should advise Dr O'Sullivan that it considers his allegations against staff to be vexatious and will not be responded to

3. To suggest that the documents on his file become a standing item for this Committee's agenda and

4. To ask whether Dr O'Sullivan should be referred to section 66 proceedings, and or whether he should be referred to a Board nominated psychiatrist.

Re 1) Update of Dr O’Sullivan’s Board matters and management of his file

Dr O'Sullivan's Board file now consists of 33 lever arch volumes. He is currently involved with the board in relation to matters under the MPA as follows:

- The Board is actively pursuing costs from Dr O'Sullivan in relation to subpoenas set aside in a Medical Tribunal hearing of November 2006. The Crown Solicitor is acting for the Board so Dr O'Sullivan should communicate with CSO re this.

- Two complaints have been recently referred to the Medical Tribunal (MA matter which was initially referred to a PSC, and EL matter). The Board will appoint Tribunal non-judicial members and advise of the outcomes of the hearings, so communication between Dr O'Sullivan and the Board should be minimal.

- The Board made a complaint about Dr O'Sullivan to the Commission on 25 June 2008 (re possible breach of the Medical Practice Regulation). This remains under investigation by the Commission. There should be no need for Dr O'Sullivan to communicate with the Board in relation to this complaint while the investigation is ongoing.

- Dr O'Sullivan has practice conditions on his registration, which are monitored by the Board's monitoring team. (He appealed the Medical Tribunal decision of November 2006 which imposed these conditions. The appeal was heard on 17 September 2008 in the Court of Appeal and judgment is currently reserved.)

- A complaint Dr O'Sullivan made recently about a number of Board staff has been referred by the President to a Board member to inquire into.

- Dr O'Sullivan's various FOI and Privacy requests of the Board are dealt with in accordance with the legislation.

Other matters are as follows:

- Dr O'Sullivan is conditionally registered in Queensland and the Board provides regular updates to Queensland on request.

- Dr O'Sullivan states he is making complaints to ICAC, the Ombudsman, the Legal Services Commissioner, the Anti-Discrimination Board, the Privacy Commissioner and the Administrative Decisions Tribunal about Board staff. He broadcasts such complaints widely and inappropriately.

Attached to this item are copies of all documents placed on Dr O'Sullivan's file as the preparation of this item since the date of the last conduct committee meeting on 9 September 2008. The bulk of these documents come from Dr O'Sullivan. The reason for providing these is to give the Committee a sense of the volume, nature and current management of Dr O'Sullivan's file. (The volume is particularly large this month, but it has also been at this level in the past.)

It can be noted that much of his correspondence does not fall within legitimate reasons for him corresponding with Board.

Re 2) Should the Board advise Dr O'Sullivan that it considers his allegations against staff to be vexatious

An examination of Dr O'Sullivan's file in relation to matters he raises in complaints he makes demonstrates that what he alleges has no apparent factual basis given the processes of the board in exercising its functions.

The contents of the Presidents previous letter to Dr O'Sullivan dated 23 October 2007 (see page 263) is self-explanatory.

In light of the above please consider the contents of the attached discussion paper " Dealing with Dr O'Sullivan as a maker of vexatious complaints".

Re 3) Standing item

It is suggested that the contents of Dr O'Sullivan's file become a standing item for this Committee’s monthly agendas – for noting only unless anything specific is drawn to the Committee’s attention.

This is to keep the board informed about developments on Dr O'Sullivan's file and to limit the management of his file to a monthly review, save for matters which otherwise require a proper response from the Board. This approach may also assist to guard against individuals becoming inappropriately engaged in his constant correspondence.

Re 4) Should Dr O'Sullivan be referred to Section 66 Proceedings

There has been an ongoing concern that Dr O'Sullivan may be a risk to the health and safety of his patients, however it was felt that the paucity of direct evidence of this was insufficient to warrant s66 proceedings being convened in recent years. (Dr O'Sullivan was the subject of s66 proceedings in 2002.) Concerns essentially existed in relation to the nature and volume of his correspondence and the lack of judgment this exhibited.

A number of factors have come together that may warrant re-examination of this question:

1. Dr O'Sullivan exited the Board's Health Program ' in November 2007. Since then the Board has had no information as to whether he continues to be treated by a psychiatrist.

He was in the Health Program for 12 years, and the report of the Exit interview (page 4 of attachment 4) included the comment "In many ways being involved in the Health program has been protective for Dr O'Sullivan during these complex processes."

Since quitting the Health Program he has apparently worked in Dubbo and Queensland. The Board has not been provided with information about where he currently works or the type of psychiatry he is currently practising.

However his correspondence contains ample material to question his judgment and current mental health status. It seems there is evidence of all the following:

a) Grandiosity/imperiousness

b) Poor judgment (has he advised his employer of how much he uses their fax machine etc? Attending the Board when told not to. Inappropriate, if not illegal broadcasting of confidential material. Inappropriately involving patients in his matters. Intimidating and making complaints about witnesses complainants, and exaggerating or misrepresenting the status of his complaints.)

c) Sense of persecution/disproportionate responses to issues. Sees all problems as being due to someone else and not him.

d) Inappropriately personal and/or vindictive and/or displays retaliatory conduct towards people he sees as acting against his interests.

e) Blurring of professional boundaries and apparent involvement of patients in the management of his complaints.

f) Preoccupation with matters he suspects, but he does not provide objective evidence to support, particularly that members of Board and HCCC staff are deceiving him, acting corruptly, etc.

g) Strong tendency to self-deceive to the point of his story developing into clear untruths

h) Possible manic behaviour (late night emails, multiples of correspondence, attending the SC, HCCC, barristers' chambers, and the Board all in the one day (on 17/9/08).

i) Inability to comply with directions, code of conduct and legislation.

j) Actual complaints/outcomes about his practice of medicine which he appears unable to accept

k) Inability to practice what he preaches. The content of his criticisms of others mirror others' perceptions of him. He excuses his conduct by alleging the same of others.

2. Dr O'Sullivan's attendance at the Board in person on 17 September 2008 (see file notes at pages 155-162, emails from Dr O'Sullivan dated 17 September 2008 at pages 163-164, and Board letter to Dr O'Sullivan dated 23 September 2008 at page 249) appears to represent a concerning escalation in Dr O'Sullivan's behaviour.

His subsequent emails also demonstrate that he subjectively diminishes and excuses his behaviour.

3. Changes to the MPA mean the threshold for taking action under section 66 has been changed to include taking action for reasons "otherwise in the public interest".

For instance, is it in the public interest to have a psychiatrist in practice who so patently lacks objectivity and the ability to maintain appropriate boundaries?

Is it conceivable that a practitioner who demonstrates such poor judgment in his relationship with the Board and other authorities can at the same time be exhibiting good judgment in his practice of medicine?

Outcome

1. The Committee declared Dr O'Sullivan's complaints about Board staff as vexatious. As a consequence the Board will adopt the strategy outlined in attachment 3 for dealing with Dr O'Sullivan as a maker of vexatious complaints.

2. The letter to Dr O'Sullivan concerning his status as a maker of vexatious complaints be prepared and forwarded to Dr O'Sullivan by the Crown Solicitors Office.

3. Dr O'Sullivan is directed to attend a Board-nominated psychiatrist under section 54 of the MPA. A new Board-nominated psychiatrist is to be requested to assess Dr O'Sullivan.

4. All material received by Dr O'Sullivan will be tabled at the Conduct Committee meeting. The secretariat is to provide the Committee with a table of contents of all correspondence received.

5. The question of whether proceedings pursuant to section 66 of the MPA 1992 should be convened to be deferred until after receipt of the Board-nominated psychiatrists report.

36 Section 54 of the MPA is in these terms:

54 Board may require practitioner to undergo examination

(1) The Board may by notice given to a registered medical practitioner against whom a complaint has been made direct the practitioner to undergo an examination by a specified registered medical practitioner or a specified registered health practitioner at a specified time and place.

(2) A practitioner must not be directed to undergo an examination under subsection (1) unless it is reasonable to require the examination, given the nature of the complaint against the practitioner. The time and place specified for the examination must be reasonable.

(3) The examination is to be at the expense of the Board.

37 As indicated above the complaint to the ADB by the applicant was made on 18 November 2008, more than a month after the Board decided to require him to be examined by a psychiatrist. As it happens, on 13 November 2008 HCCC, over the hand of Mr Pehm, wrote to the Chairman of the Board conveying the Commissions view that " it would be appropriate to arrange for Dr O'Sullivan to be psychiatrically assessed". The letter sets out at some length the reasons which prompted HCCC to make that recommendation and as it is featured heavily in the submissions made on the applicant's behalf it is appropriate that we set out its terms:

Dear Mr Dix

Re: Dr Brendan O’Sullivan – Possible Impairment

I advise that the Commission is concerned that Dr Brendan Sullivan suffers from a possible psychiatric impairment.

The background of this matter is that in October 2002 Dr Horvath, who was then the CEO of the South Western Sydney Area Health Service, referred a complaint concerning Dr O'Sullivan's treatment of a patient with flunitrazepam to the Commission ("the 2002 Complaint"). That complaint was referred to a PSC in August 2004. It was subsequently prosecuted in the Medical Tribunal in November 2006 and the appeal to the Court of Appeal was heard in September this year (judgement reserved).

In May 2004 Dr Horvath referred a complaint about Dr O'Sullivan's conduct in issuing a Schedule 2 for a male patient, MA, whom Dr O'Sullivan had treated since 2003 for a psychotic illness and depression ("the 2004 Complaint"). That complaint was referred to the PSC in January 2007. Following a series of directions hearings and an interlocutory appeal to the Medical Tribunal earlier this year, the matter has now been referred for hearing in the Medical Tribunal. It is anticipated the matter will be heard sometime next year.

In September 2006, EL, a former patient complained about her treatment by Dr O'Sullivan the 2006 complaint. That complaint was referred to the Medical Tribunal in June of this year.

The last 3 or 4 years, Dr O'Sullivan has written numerous e-mails and letters to the Commission about the handling of the various complaints about against him. He has also lodged complaints with the Commission and other bodies about other health professionals who were involved in the complaints against him and made various complaints to other complaint handling organisations about the Commission and the Commission staff, including complaints to the Office of the Legal Services Commission about the Commission’s Director of Proceedings, another staff member and various counsel appearing for the HCCC. He has also written letters to various officials including the NSW Minister for Health and the NSW Premier about the Commission and other persons connected with the investigation and prosecution of the complaints against him. The content of Dr O'Sullivan's correspondence is often highly critical of others, factually incorrect and/or based on unproven assumptions.

As a direct result of complaints and correspondence from Dr O’Sullivan to third parties, two of the Commission’s expert psychiatric reviewers have advised the Commission that

they will no longer perform Commission work. In the case of the expert used for the 2002 Complaint, Dr William Andrews, he has advised that he will not do any further Commission work. In the case of an expert used for the 2004 complaint, Dr Andrew

Wilson, he has advised that will not do any further work in relation to that complaint against Dr O'Sullivan and in particular, he is not prepared to give evidence at the Medical Tribunal inquiry. In emails and in conference with the Commissions barrister he has

confidentially advised that holds fears for himself and family if he was to give evidence against Dr O'Sullivan.

Overlapping the period of Dr O’Sullivan's disputes with the Commission, Dr O'Sullivan was involved a series of disputes/ litigation with South Western Sydney Area Health Service relating to the cessation of his employment with the Area Health Service in mid 2000. That dispute was resolved by a mediated settlement and payment of monies to Dr O'Sullivan in early 2007. Dr O'Sullivan also took a very active part in that dispute and engaged in correspondence with various parties in which he was highly critical of a number of persons including a number of his colleagues.

In June 2003 the Board arranged for Dr O'Sullivan to be assessed by Dr Peter Morse. In his report dated 14 July 2003 Dr Morse commented on Dr O'Sullivan’s behaviour in relation to his dispute with the Area Health Service.

Without going into the merits of the complaints against Dr O'Sullivan, past or current, it is disturbing to note that the behaviour the subject of Dr Morse's report continues, now focussing, on the Commission and individuals associated with the Commission and that the behaviour appears to be escalating. In this regard, I note Dr O'Sullivan has recently initiated two sets of proceedings in the Administrative Decisions Tribunal against the

Commission.

The other aspect that is of concern is that Dr O'Sullivan has involved a former patient MA, in his own disputes with the Commission. Whilst Dr O’Sullivan informed the Commission in an email dated 2August 2007 that he could no longer treat MA,

shortly afterwards he requested MA to obtain a statement from another practitioner who had, previously treated MA, Dr Andrew McDonald, as Dr O’Sullivan wished to call Dr McDonald in the pending PSC proceedings. The PSC Chairperson had made a direction that Dr O'Sullivan obtain a witness statement from Dr

McDonald. MA's attempts to obtain a statement from Dr McDonald apparently then resulted in a dispute between Dr O’Sullivan and the patient, when, according to Dr O'Sullivan, MA sought payment from Dr O'Sullivan for getting the statement. It has

subsequently been established that the statutory declaration obtained was entirely false. These dealings with MA are outlined in correspondence between Dr O'Sullivan and the Board's legal officer in August/September 2007.

In addition, Dr O'Sullivan involved himself in MA's complaint against the Commission to the Anti Discrimination Board in September 2007, writing a detailed statement of complaint on behalf of MA.

The Commission is not aware of the precise details of Dr O'Sullivan's employment since he closed down his private practice in Sydney this year, however it appears Dr O’Sullivan has performed work on a contract basis within the public health system in both New South Wales and Queensland. The Commission has received a number of faxes from Dr O’Sullivan from the Dubbo Community Mental Health fax number earlier this year and more recently, faxes from a Queensland fax number stamped "Community Mental Health." A question arises about Dr O’Sullivan's ability to focus on his professional work given the level of personal involvement he has demonstrated in his complaint matters. In relation to the 2006 complaint, Dr O’Sullivan was (and still is) represented by his medical defence organization, Avant, yet he continued to correspond directly with the Commission by email about the complaint whilst the matter was being investigated. Similarly in his appeal to the Supreme Court, Dr O'Sullivan was legally represented, but he continued to correspond directly with the Commission about the appeal and was reminded on a number of occasions that it was not in his best interests to do so.

The Commission is of the view it would be appropriate to arrange for Dr O'Sullivan to be psychiatrically assessed.

Enclosed is a folder of emails and correspondence from Dr O'Sullivan either sent or cc'ed to the Commission over the last year, together with a copy of Dr Morse's report. The folder is not exhaustive. In this regard I can advise that the Commission has 11 level arch fo1ders of correspondence relating to the prosecution of the 2002 complaint.

Yours faithfully

Kieran Pehm

Commissioner

13 November 2008

38 Apart from the fact that the letter postdated the Board’s decision to require psychiatric examination it seems to us on a fair reading that it makes a strong case for suggesting a psychiatric examination. Moreover no where does it link its recommendation to the applicant's involvement in complaints to the ADB nor in our opinion can such link be inferred. We see no reason to doubt that the decision of 14 October 2008 and the letter of 13 November 2008 were quite coincidental. In any event the letter of HCCC cannot in the circumstances have caused the applicant any detriment as he had already been subjected to a requirement that he undergo psychiatric assessment.

39 We should add on this aspect of the matter that in our opinion no significance should be attributed to the fact that on 11 November 2008 the Conduct Committee of the Board rescinded the resolution requiring the applicant to subject himself for psychiatric examination under s54 and substituted a resolution to the same effect under s78A. It expressed its reasons for that decision in these terms:

"Although section 54(1) appears to be fulfilled, in that Dr O'Sullivan currently has three complaints made against him (the MA and EL complaints which have been referred to the Medical Tribunal and that Board's complaint about medical records), it does not seem reasonable to require psychiatric assessment based on the nature of these complaints.

It seems clear from page 4 of the Minutes from the Conduct Committee meeting held on 14 October that there is a concern about Dr O'Sullivan's current mental health status and an assessment is required to assess whether there is any basis for that concern.

If this is correct, the Board would normally envisage referring a practitioner such as Dr O'Sullivan to an IRP if on receipt of a report from a Board-nominated psychiatrist there was any indication of impairment.

On this analysis Dr O'Sullivan should be directed to attend our Board-nominated psychiatrist under section 78A of the MPA.

Despite this above conclusion, and in the light of the question being considered at the October Conduct Committee meeting ("Should Dr O'Sullivan be referred to Section 66 Proceedings?"). There is nothing to preclude the Committee from later deciding that the content of the report which was commissioned under s78A actually warrants the Board convening section 66 proceedings."

40 Points of Claim Summary 5(g) - At the relevant time there were three complaints against the applicant under consideration. That concerning the property including patients records left in the applicant's rooms at Macquarie Street, Sydney was terminated without any formal hearing. The other complaints were dealt with in the Medical Tribunal at the direction of Ms Mobbs as to which she exercised the statutory discretion conferred on her by s90B of the HCCA. There is no evidence that she exercised her discretion improperly let alone because of the applicant's involvement in complaints to the ADB. She gave cogent reasons for her decision at some length in the letter of 28 May 2008 quoted above.

41 In the result the Medical Tribunal upheld the two complaints being those of MA and EL. There were findings of unsatisfactory professional conduct in respect of both matters. Upon the complaint of MA the applicant was reprimanded and on the complaint of EL he was directed to complete a course of Medical Ethics. He was also ordered to pay the costs of proceedings.

42 It follows from the above conclusions that the applicant has failed to establish his complaints. We make these orders:

1. Complaints dismissed.

2. Subject to 3 no order as costs.

3. Leave to the respondent to make application for costs accompanied by submissions in support within 30 days. Applicant to make submissions in reply within 21 days. Matter of costs to be decided on the papers.