Notice of Demand

This Notice arises from the following Facts: 

1. In its letter dated 6/11/03 the NSW Medical Board (to be referred to herein as the “Board”) informed me of its decision to impose a Performance Assessment upon me. In that letter the Board applies the Medical Practice Act 1992 as amended (to be referred to herein as the “Act”). In that letter the Board states its reasons for applying the Act as being: 

1.1 A triggering complaint against me dated 3/7/03 to which the Board has given me no opportunity to respond prior to imposing a performance assessment and applying the Act’s powers. AND 

1.2 Previously disposed of complaints that failed to merit further action AND 

1.3 A Tribunal matter that has not been adjudicated. 

2. Pursuant to section 86H of the Act the Board must inform the practitioner of a full account of details of the matters giving rise to the assessment prior to the powers of the Act being applied. 

3. Pursuant to the requirements of the Act, the Board failed to answer my Notice of Demand dated 5/1/04 requiring the Board to produce the details of the matters giving rise to the assessment and to provide reasonable cause for its decisions. (This notice is annexed and marked “A”).

4. On 9/2/04 I served a Default Notice on the Board. (This notice is annexed and marked “B”). Default entitlements subsequently apply pursuant to Common Law, and the principles of procedural fairness, administrative law and Natural Justice. My legal entitlement is for the matter to be at an end in the absence of the Board’s providing details of the matter. 

5. Notwithstanding my entitlements as stated in paragraph 4, the Board’s refusal to inform me of the details giving rise to the assessment is:

5.1 In breach of the NSW Medical Board’s code and standards as stated in the NSW Medical Board’s Performance Assessment Program Handbook. 

5.2 In breach of s86H of the Medical Practice Act 1992 as amended.

6. On 3/6/04 Ms. Mackowski from the Board telephoned me at my surgery. In that telephone conversation I reiterated the issues raised in my previous correspondence and indicated the following to her: 

6.1 A Tribunal matter that has not been adjudicated cannot form a reasonable basis for the Board’s entry onto my premises without my consent.

6.2 Old complaints that have been properly disposed of cannot form a reasonable basis for entry onto my premises without my consent. 

6.3 The “triggering complaint” to which I have had no right of response prior to the Board undertaking to enter my premises cannot form a reasonable basis for entry onto my premises without my consent.

6.4 I do not consent to persons directed by the Medical Board to enter my premises without the Board demonstrating a reasonable cause. 

7. Following that 3/6/04 telephone conversation with Ms. Mackowski and notwithstanding the facts and events as outlined in paragraphs 1 - 

6.4, Ms. Mackowski sent me further correspondence dated 9/7/04 indicating that the Board intends to direct assessors to enter my premises on 30/7/04 (without my consent). Ms. Mackowski indicates in her 9/7/04 letter that the Board has applied the powers of Medical Practice Act 1992 as amended, claiming empowerment by the Act, for individuals designated by the Board to have, upon 14 days notice, certain rights over my person, my property and over other people and their property, in particular: 

7.1 Claiming the authority to enter my premises without my consent, AND

7.2 Claiming the authority to enter any other premises where I conduct my practice - without my consent or the occupier’s consent AND

7.3 Claiming the authority to exert power over any “person” on those premises - without my consent, the occupier’s consent or the “person’s” consent AND

7.4 Claiming the authority to exert power over any “person” on my premises without my consent or the “person’s” consent AND

7.5 Claiming the power to examine any item or record on my premises, without the consent of those to whom the items belong. 

8. In her next letter dated 16/7/04 Ms Mackowski reiterates that the Board persists with its intention to direct assessors to enter my premises (without my consent). A briefing document is attached entitled “Performance Committee Consolidated Registrant History” wherein is listed a “detailed complaint history“ summarising seven complaints against me. The letter states the document will be sent to the assessors. (A copy of this briefing Document is annexed and marked “C”). 

9. The “triggering complaint”, (being the first complaint mentioned in the briefing document, marked “1”) states the complaint summary as if it were a proven fact when I have had no opportunity to answer this complaint prior to the Board’s decision to impose a performance assessment upon me. Furthermore: 

9.1 The Board’s presentation of the first complaint summary as if it were a proven fact forms the foundation for any reasonable person, including the assessors to incorrectly form an inference of guilt on my part. This may lead to a libel upon my professional skill and a loss of livelihood and reputation. 

9.2 The probative facts of this matter are as recorded on the day of the visit in the clinical notes residing in the archives of the after hour emergency medical centre where I was on evening duty. 

9.3 I emphatically deny the allegation of rudeness and insensitivity when attending this child as stated in the summary as if it were a fact. 

9.4 I diagnosed a clear case of gastroenteritis in this child, who was still recovering from pneumonia. To prevent further vomiting and dehydration, I prescribed copious amounts of rehydration fluid, giving i.a. appropriate dietary directions to the mother. I believe that was the 
appropriate treatment for the presenting complaint until such time as the mother returned to her usual doctor on the following working day. The Board has not taken this information into account before using this complaint as a basis for its decision to impose a performance 
assessment upon me or indeed when summarising the complaint on a briefing document to the assessors. 

10. The briefing document’s second complaint (marked “2”) is one that was dismissed as warranting no further action. As written in my letter to the Board dated 3 January 2003 it refers to a mother to whom I explained possible side effects, as per the manufacturer’s data, of a vaccination, prior to administering it to her 6-months old infant as she had requested. There is no reference to this correspondence in the Briefing document.

10.1 I require the Board to provide me with a lawful and reasonable basis as to why it has represented this informed consent as a complaint marked “Inadequate treatment” when it is my duty of care prior to carrying out a procedure to ensure informed consent has been 
obtained. AND 

10.2 I require the Board to provide me with a lawful basis upon which it includes this matter, represented as a complaint against me as grounds to exercise the powers of entry onto my property against my wishes, under the Act. AND

10.3 I require the Board to take notice that the meningococcal vaccination schedule was changed shortly after this incident to prevent the vaccine’s administration to children less than one year of age.

11. The Board’s briefing document lists the third complaint (marked “3”) which is one that warranted no further action by the HCCC. As stated in my letter to the HCCC dated 21/4/2002 and in accordance with the clinical records kept at the time, the patient’s life was extended by my early diagnosis of his melanoma, its early treatment and the appropriate specialists’ referrals of the patient. Its recurrence years later occurred at a time when the patient was under the care of other doctors including his surgeon and a specialised melanoma clinic. The Board’s briefing document makes no reference to these facts as stated in my submission and supported by the clinical records. The Board’s complaint summary states; “The cpt claims the dr failed to diagnose a Melanoma despite the pt having quarterly checkups. The pt is now deceased.“ Therefore; 

11.1 The Board’s summary forms the foundation for any reasonable person including the assessors to incorrectly form an inference of guilt on my part which may lead to a libel upon my professional skill and a loss to my livelihood and reputation.

12. The Board’s briefing document includes a fourth complaint (marked “4”) which is one that warranted no further action by HCCC. The clinical record supports the fact that this patient is a known addict who wanted me to prescribe drugs of addiction for him upon his request. My refusal resulted in the person lodging a complaint against me. I claim the right and the legal obligation to refuse to prescribe or administer drugs of addiction on demand. Furthermore: 

12.1 I require the Board to provide me with a lawful basis upon which it included this “complaint” in the brief in the first instance and why the summary stands unbalanced under the heading of  “incorrect/inappropriate treatment”, which statement forms the foundation for any reasonable person to incorrectly form an inference of guilt on my part. 

12.2 I require the Board to provide me with a lawful basis upon which it cites this matter, represented as a complaint against me, as grounds to exercise the powers of entry, under the Act, onto my premises without my consent. 

13. The Board’s briefing document lists a fifth complaint (marked “5”) which is one that led to a letter from the Board dated 6/7/00, but no further action was taken. The briefing document’s summary classifies the complaint against me as involving “incorrect and misleading information”. The summary alleges the complainant, Ms. Cheryl Freeman, believes; “that the dr’s advertising is providing cancer sufferers and other sick people with false and misleading information.” As stated in my letter to the Board dated 10 September 2000, I did not advertise any product, I did not publish any material, and much less a cancer treatment and I have never met Ms Freeman. However, Ms. Freeman enjoys such notoriety as to have warranted a mention by the Honourable Richard Jones in NSW Parliament 13 November 2002 - “However, we have received reliable information that one member of the committee [Ms. Cheryl Freeman] has been using a false name to telephone various practitioners, pretending to be a patient and seeking information. That person is trying to dupe these practitioners into giving therapies by means of entrapment as an agent provocateur.” The Board is hereby put on notice that Ms. Freeman is a known habitual complainant against practitioners whose practices, like mine, include wholistic or complementary therapies. Her activities are the subject of a number of investigative articles in the public domain. 

13.1 I require the Board to provide me with a lawful basis upon which it includes the complaint of a notorious person publicly known as an habitual and vexatious complainant, as grounds to exercise the power of entry onto my premises without my consent, under the Act. 

14. The Board’s briefing document lists a sixth complaint (marked “6”) listed as “Prescribing, Incorrect/inappropriate”. The summary reads; “DR. IS ALLEGEDLY PRESCRIBING DRUGS OF ADDICTION AND DRUGS OF DEPENDENCE TO TWO PATIENTS.” The briefing document does not mention the fact that the two patients in question were officially enrolled in my drug and alcohol program and legitimately enrolled in the HIC’s Doctor Shoppers’ program where I was their designated authorised Sole Prescriber under the HIC’s approved program. This matter is now in its eighth year without adjudication. 

14.1 I require the Board to provide me with a lawful basis upon which it has deemed a matter that has not been adjudicated can form a reasonable basis for entry onto my premises without my consent under the powers of the Act.

14.2 I require the Board to provide me with a reasonable basis upon which it included this 
“complaint” in the brief which statement forms the foundation for any reasonable person to 
incorrectly form an inference of guilt on my part which may lead to a libel upon my 
professional skill and a loss to my livelihood and reputation.

15. The Board’s briefing document lists a seventh complaint (marked “7”) dating back to 1997, which complaint summary states; “PT. REQUESTED TO SEE A SPECIFIC DOCTOR WHEN HER HEALTH DETERIORATED. DR. REFUSES TO EXAMINE.” The first time I learnt of this complaint was by way of an HCCC letter which has since been lost. To the best of my recollection, upon investigating the matter with my then receptionist I learnt from her that on a Saturday after all dental and medical staff, including myself, had left the surgery premises for the weekend, a woman (the complainant) approached the surgery door when the receptionist was outside the door taking a smoko break. The receptionist informed the woman (who was not a patient of the surgery) that all medical staff had left the surgery and that she was only there doing some administrative work. 

15.2 I require the Board to provide me with the exact particulars of this complaint including the complainant’s sworn statement for the purpose of verifying the details as stated and to assert my right to answer the complaint for the record. 

15.3 I require the Board to provide me with just cause as to why it included this “complaint” in the brief which statement forms the foundation for any reasonable person to incorrectly form an inference of guilt on my part which may lead to a libel upon my professional skill and a loss to my livelihood and reputation.

15.4 I require the Board to provide me with just cause as to why it applies the powers of the Act, citing this matter as grounds to exercise the powers of entry onto my premises without my consent.

Claims

Pursuant to the aforesaid Facts and Demands, I Claim: 

1. The Board claims to derive its power from the Medical Practice Act 1992, when no grounds have arisen to warrant the exercise of the power conferred by the Act. 

2. The Board’s powers of entry, conferred under the Act, do not arise until reasonable cause is established. 

3. Pursuant to section 86H of the Act the Board must inform me of details of the matters giving rise to the performance assessment before it applies the powers of the Act. 

4. The Board has a legal obligation to answer my demands for information as stated in my Notice of Demand dated 5/1/04. 

5. The Board has a duty of care and a legal obligation : 

5.1 to adhere to procedural fairness prior to embarking upon actions against me which would be otherwise oppressive or illegal. 

5.2 to observe the Act, common law entitlements, administrative law and the rules of procedural fairness and Natural Justice

6. The Board’s stating the complaint summaries as proven fact forms an incorrect presumption of guilt leading to fundamental procedural unfairness. 

7. The Board has a duty of care to refrain from pressing frivolous, vexatious or unsubstantiated complaints and asserting them as facts. 

8. The Board has failed to observe proper procedures and laws as stated in paras 1-7 of claims and 1-15.4 of facts, that are required by law to be observed in relation to its decision to apply the powers of the Act. 

9. Failure by the Board to observe proper procedures and laws before applying the Act’s powers :

9.1 Is an act by the Board contrary to law

9.2 is an act by the Board that denies me the exercise of my rights 

9.3 is an act by the Board that denies me Natural Justice

9.4 is an unlawful basis upon which to enter my premises without my consent

9.5 Is an unlawful basis upon which to seek a warrant to enter my premises

9.6 is an improper exercise of the Board’s power 

10. An improper exercise of the NSW Medical Board’s power is a matter for the public interest. 

11. The NSW Medical Board has a duty of care to inform all employees, agents and or delegates involved in the decisions pertaining to this matter as herein stated, as to the legal implications for themselves arising from any of their decisions that deny me Natural Justice.

12. The NSW Medical Board management is responsible for the decisions made by its employees, agents and delegates AND

13. The NSW Medical Board’s management and employees, agents and delegates are individually responsible and liable for decisions that they make that deny me my common law rights, statute law rights, Constitutional rights, and/or Natural justice and accordingly the Board’s management and its employees, agents and delegates are liable for Claims of Damages. 

14. The NSW Medical Board is put on notice as from the time of receipt of this Notice and in the future that it has a legal obligation to: 

14.1 Refrain from pressing frivolous, vexatious or unsubstantiated complaints 

14.2 Refrain from asserting such claims as facts to any person for any reason whatsoever. 

14.3 Refrain from giving rise to frivolous, vexatious or unsubstantiated complaints. 

Demands 
Take Notice that you are required within 14 days of the service of this Notice of Demand upon you :

1. To demonstrate a proper defence against all the Facts and Claims upon which this Notice is founded. 

2. To Answer the aforesaid Demands herein as demarcated in italics and contained within paragraphs 10 to15.4 


Take Notice that failure within 14 days to comply with the aforesaid Demands AND failure to demonstrate a proper defence against all the Facts and Claims upon which this Notice of Demand is founded then it shall be taken that the NSW Medical Board and its representatives:

1. Admit the facts as said are correct AND

2. Admit that the claims arising from said facts are proper and reasonable AND

3. Admit that the demands of this Notice of demand must be complied with AND 

4. Admit that the complaints against me as herein stated are at an end and cannot be further used by the Board for any purpose whatsoever now or in the future and will be expunged from the Board’s record. AND

5. Admit that I am entitled to apply to the Court for summary judgement for orders pursuant to the demands and claims as herein stated. 

6. Admit that the NSW Medical Board has improperly exercised its power.

Dated This 28th day of July in the Year of our Lord, 2004





Dr Eckard Roehrich MBBS, PhD