Brennan v Medical Council of NSW [2020] NSWCATOD 100

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brennan v Medical Council of NSW [2020] NSWCATOD 100 Hearing dates: 23 April 2020 and 24 April 2020 Date of orders: 4 September 2020 Decision date: 04 September 2020 Jurisdiction: Occupational Division Before: Le Poer Trench ADCJ, Principal Member Dr A Reid, Senior Member M Kelly, General Member J Aitken, Senior Member Decision: (1) ORDER under s 163(1)(c) of the Health Practitioner Regulation National Law ("the National Law") that Keith Ian Brennan ("the practitioner") may apply to the Medical Board of Australia for registration as a medical practitioner. (2) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. (3) Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (4) ORDER that upon the practitioner becoming registered on the register of practitioners maintained by the Australian Health Practitioner Regulation Agency on behalf of the Medical Board of Australia the following conditions are imposed on his registration. (5) Practice conditions: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner) and where there is predominantly one other registered medical practitioner always on site. 3. To practise no more than 35 hours per week and no more than 5 days per week. 4. To treat, no more than 4 patients per hour or 25 patients in any one day (a) This condition does not prohibit the practitioner from providing emergency medical services to a patient in compliance with section 139C(c) of the Health Practitioner Regulation National Law. (b) If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 5. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a statement of the hours worked, the number of patients seen and the number of hours spent in consultation with his supervisor in the preceding month. 6. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) The terms of the Council's Compliance Policy – Supervision are varied so that the frequency of the practitioner's review meetings with his supervisor is to be weekly for the first 12 weeks of the practitioner recommencing practice, with the provision of monthly reports to the Medical Council of NSW during the first 12 weeks. (b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: • professionalism and professional ethics including the maintaining of appropriate professional boundaries with patients; • recent developments in clinical practice; • workload management; • clinical performance including review of medical record and clinical outcomes. (c) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any relevant Council decision or report. (d) Not to practise until a supervisor has been approved by the Medical Council of NSW. (e) To be supervised for a minimum period of two (2) years and as subsequently determined by the Council. 7. To nominate an experienced general practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the Medical Council of NSW. (a) At each mentoring meeting the practitioner is to include discussion of the following: • Personal and/or professional development • Personal and/or medical practice issues as they arise • Personal and/or professional boundary issues • Work/life balance and personal wellbeing (b) To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing. (c) To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy of the decision which imposed this condition and any relevant Council decision or report. (d) To be mentored for a minimum period of two (2) years and as subsequently determined by the Council. 8. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 9. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Health Conditions 10. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) Is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) Must provide the Medical Council of NSW with the professional details of his treating practitioner. 11. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) Is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (i) Failure to attend for treatment; (ii) Termination of treatment; or (iii) A significant change in health status (including a significant temporary change). (b) Must provide the Medical Council of NSW with the professional details of the treating practitioner. 12. To take any medication as prescribed by his treating practitioners. 13. To act upon the advice of his treating practitioners so that the extent of his professional medical duties is guided by his health status and the advice of his treating and Council-appointed practitioners. 14. To abstain completely from the consumption of alcohol. 15. To comply with the Medical Council's Alcohol Screening Policy and Participant Procedure: EtG screening (as varied from time to time) and attend for EtG screening (urine), commencing with twice-weekly screening. 16. To attend for review by a Council-appointed psychiatrist at the conclusion of his first three months of practice and thereafter on a three-monthly basis or as otherwise directed by the Medical Council of NSW. 17. To attend a Medical Council of NSW's Review Interview on a three-monthly basis or as otherwise directed by the Council. 18. To authorise the Medical Council of NSW to forward copies of the decision which imposed these conditions, and any subsequent Council Review Interview or other reports, and any other information relevant to his health and treatment, to the Council-appointed practitioners and to his treating practitioners. (6) The parties are to forthwith commence consultation for the purpose of endeavouring to reach agreement as to a cost order, which might be made by consent. In the event of agreement, the parties are to file the form of consent order to be made. In the event of no agreement being reached, then any cost order being sought is to be filed and served, with short submission attached, within 21 days from the date hereof. The party receiving service of that application and submission, is to respond by filing and serving a response within a further 21 day period. Catchwords: PROFESSIONS AND TRADES – health and professionals – medical practitioners – reinstatement application- formulation of appropriate conditions Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Chen v HCCC [2017] NSWCA 186 Coe v Health Care Complaints Commission [2013] NSWNMT 12 Dawson v Law Society of NSW [1989] NSWCA 58 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 Haber v Health Care Complaints Commission [2018] NSWCATOD 16 Health Care Complaints Commission v Brennan [2017] NSWCATOD 75 Health Care Complaints Commission v Brennan (No. 2) [2018] NSWCATOD 51 In Re Jason Martin [2010] NSWMT 13 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Re Jason Martin [2010] NSWMT 13 Re Mansoor Haider Zaidi [2006] NSWMT 6 Reimers v Medical Council of NSW [2015] NSWCATOD 38 Scully v HCCC [2013] NSWNMT 7 Shah v Health Care Complaints Commission [2014] NSWCATOD 94 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16 Texts Cited: None cited. Category: Principal judgment Parties: Keith Ian Brennan (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: T Hackett (Applicant) L Fernandez (Respondent)