Day v Medical Council of NSW [2021] NSWCATOD 6

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Day v Medical Council of NSW [2021] NSWCATOD 6 Hearing dates: 25 and 26 May 2020 Date of orders: 20 January 2021 Decision date: 20 January 2021 Jurisdiction: Occupational Division Before: Le Poer Trench ADCJ, Principal Member Dr J Christie, Senior Member Dr M Cox, Senior Member M Kelly, General Member Decision: (1) The conditions attached to the registration of Dr Maurice Jerome Day, by order of the Medical Council of NSW, published 23 December 2019, are discharged and pursuant to section 150(1)(b) of the National Law, the following conditions are to be entered. (2) That the practitioner's performance of spinal surgery is limited to the following procedures: (a) Non-instrumented surgery. This includes surgery to relieve compression of the spinal-cord and nerves roots, as well as surgery to deal with tumours and infections. (b) Instrumented anterior cervical spine surgery, including anterior cervical decompression and fusion, disc arthroplasty, only for 1-2 levels, where the purpose of that surgery is for the relieving of spinal cord and nerve root compression, AND only where it is approved by a neurosurgeon or orthopaedic spinal surgeon, approved by the Medical Council and noted by both Dr Day and the said neurosurgeon or orthopaedic spinal surgeon, to be the preferred approach to address the pathology found in the patient. (3) Whenever the practitioner undertakes any spinal surgery: (i) For non-instrumented surgery, the practitioner must obtain intraoperative confirmation from a Council approved neurosurgeon or orthopaedic spinal surgeon (the confirmer) that the correct level has been identified and this corresponds to the level/s consented to by the patient. The confirmation by the confirmer can be obtained in a face-to-face meeting between the practitioner and the confirmer or by other media provided the confirmer has the capacity to see the relevant documents and images, in an acceptable form and can provide the confirmation in a form which can be recorded for the purpose of providing same to the Medical Council of NSW. (ii) For anterior cervical spine instrumented surgery, a Council approved neurosurgeon must be present to document the correct level and to supervise the procedure. (4) The conditions set out herein do not operate in relation to spinal or cervical surgery, of any nature, when the practitioner is assisting another surgeon who has principal carriage of the surgery and who is present to supervise any aspect of the surgery performed by the practitioner. (5) To practise under category C 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 practitioner is to: (i) have review meetings with his Council-approved supervisor each fortnight (ii) authorise the Council-approved supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis (b) At each supervision meeting the practitioner is to: (i) review and discuss his practice with his approved supervisor with particular focus on: i. Patient selection ii. Pre and Intraoperative planning processes iii. Consent processes iv. Clinical decision making v. Record keeping (c) To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition and his current conditions. (6) Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all spinal procedures performed in the last month. The record must include the following: (a) The full name and date of birth of the patient (b) The date and time of the procedure (c) The name of the surgical procedure (d) Medicare item number (e) The name and signature of the Council-approved supervisor who confirmed the correct level (f) Any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any post-operative infection) (7) To undergo a performance assessment. (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) The Medical Council of NSW is the appropriate review body for the purpose of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (10) Dr Day is to pay 75% of the costs of the Medical Council of NSW as agreed, or as assessed. Catchwords: HEALTH – Professional registration and discipline – Registration – medical practitioners – disciplinary proceedings – practising conditions imposed on registration - costs order made Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Ake v Health Care Complaints Commission [2019] NSWCATOD 165 Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 DHO v Medical Council of NSW [2018] NSWCATOD 13 Donnelly v Health Care Complaints Commission [2011] NSWSC 705 Hanna v Medical Council of NSW [2017] NSWCATOD 27 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Phillipiah [2013] NSWCA 342 Hill v Medical Council of NSW [2019] NSWCATOD 52 Jambrovic v Day [2017] NSW 1468 Karimi v Medical Council of NSW [2017] NSWCATOD 180 Rajesh Dinakar v Medical Council of NSW, 12 December 2012, Medical Tribunal of NSW Vo v Medical Council of NSW [2018] NSWCATOD 18 Texts Cited: Nil Category: Principal judgment Parties: Maurice Jerome Day (Appellant) Medical Council of NSW (Respondent) Representation: Counsel: S Barnes (Appellant) H El-Hage (Respondent)