Chen v Medical Council of New South Wales [2021] NSWCATOD 33

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chen v Medical Council of New South Wales [2021] NSWCATOD 33 Hearing dates: 15 – 16 February 2021 and by written submissions dated 23 February 2021 and 2 March 2021 Date of orders: 29 March 2021 Decision date: 29 March 2021 Jurisdiction: Occupational Division Before: Boland AM ADCJ, Deputy President Dr S Sen, Senior Member Prof K Wilhelm AM, Senior Member Honorary Associate Prof P Macneill, General Member Decision: (1) A reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law is made in respect of Leimin Chen (the practitioner) subject to the following conditions being imposed on his registration: A. In the event the practitioner obtains employment in a public hospital: (a) To practise only in a Medical Council of NSW approved public hospital position as a supervised Junior Medical Officer or Career Medical Officer. (b) To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. (c) To practise only when there is a senior practitioner or clinical supervisor on site. (d) Not to undertake locum positions. (e) To practise no more than 32 hours per week with no more than 8 hours in any 24-hour period. (f) Not to participate in any on-call roster or undertake over-time shifts. (g) Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). (i) To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 (NSW) to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug, such evidence to be provided within four weeks of the date of these orders. (h) 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. (i) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on workload, clinical performance, clinical decision making and judgement, medical record reviews, appropriate prescribing practices, patient follow-up and treatment of patients with mental health disorders (including the practitioner's involvement of senior clinical staff in the treatment of such patients). (ii) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. (iii) Not to practise until a supervisor has been approved by the Medical Council of NSW. OR B. In the event the practitioner obtains employment in general practice: (a) To practise only in a group practice approved by the Medical Council of NSW, and where there are at least two registered medical practitioners (excluding the subject practitioner): (i) Where the patients and patient records are shared between the medical practitioners. (ii) Where there is always one other registered medical practitioner on site. (iii) Which is an accredited practice approved for the Australian General Practice Training (AGPT) Program as a training placement. (b) Not to participate in any on-call roster, provide after-hours services, home visits or nursing home services, or undertake over-time shifts. (c) To practise no more than 32 hours per week with no more than 8 hours in any 24-hour period. (d) To treat no more than 32 patients in any one day. (e) Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). (i) To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 (NSW) to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug, such evidence to be provided within four weeks of the date of these orders. (f) 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. (i) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on the appropriate treatment and referral of patients with mental health disorders, workload, clinical performance, clinical decision making and judgement, medical record reviews, appropriate prescribing practices and patient follow-up. (ii) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. (iii) Not to practise until a supervisor has been approved by the Medical Council of NSW. (g) Within 6 months of being approved by the Medical Council of NSW to commence employment, the practitioner is to spend a total of 10 observation sessions with his approved supervisor. A session is a period of at least 2 hours. (i) Initially, the practitioner is to spend a total of 5 sessions directly observing the supervisor conduct consultations with his or her patients. (ii) The supervisor is then to spend a total of 5 sessions directly observing the practitioner conduct consultations with his patients. (iii) When observing these consultations, the practitioner and supervisor are to consider such matters as: clinical performance, clinical decision making and judgement, treatment and referral of patients with mental health disorders, appropriate prescribing practices, patient follow-up and clinical outcomes. (iv) Within 4 weeks of the completion of the observation sessions, the practitioner is to provide a report to the Medical Council of NSW detailing the dates of attendance, what he learnt and how this will impact on his practice. In the report, he should make reference to, but not restrict himself to the issues in, the decision which led to the imposition of this condition. (v) Once the practitioner's report is written and before it is returned to the Medical Council of NSW, he is to ensure that the supervisor reviews the practitioner's report and that the supervisor provides his or her own report to the Medical Council in which he or she comments on the content and authenticity of the practitioner's report, confirming the dates of attendance and setting out any concerns or other observations. The supervisor's report is to be provided to the Medical Council of NSW within 4 weeks of the completion of the observation period. (vi) The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports. (h) To submit to an audit of his medical practice, by a random selection of 20 of his medical records by a person or persons nominated by the Medical Council of NSW and: (i) The audit is to be held within 12 months from recommencement of practice and subsequently as required by the Medical Council of NSW. (ii) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. (iii) The auditor(s) should pay particular attention to: appropriate prescribing practices, prescribing and treatment provided for mental health disorders, assessment of comorbid conditions, provisional diagnosis, differential diagnosis and investigation and management plans. (iv) To authorise the auditor(s) to provide the Medical Council of NSW with a report on their findings. (v) To meet all costs associated with the audit(s) and any subsequent reports. AND C. Once the practitioner obtains employment in either a public hospital or in general practice: (a) To forward evidence to the Medical Council of NSW within 14 days of the date he recommences practice, that he has provided a copy of the decision which imposed these conditions to the Director of Clinical Services and/or the responsible senior officer in any place that he works or, in the event he is employed in general practice, to the Principal of the practice in any place that he works. (b) Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of the decision which imposed these conditions to the Director of Clinical Services and/or the responsible senior officer in any place that he works or, in the event he is employed in general practice, to the Principal of the practice in any place that he works. (c) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. (d) 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. (2) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law. (3) Sections 125-127 of the Health Practitioner Regulation 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. Catchwords: HEALTH — professional registration and discipline — registration — application by former practitioner for re-instatement order Legislation Cited: Health Practitioner Regulation National Law Poisons and Therapeutic Goods Act 1966 (NSW) Health Practitioner Regulation National Law Regulation 2018 (NSW) Cases Cited: Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16 Texts Cited: Nil Category: Principal judgment Parties: Leimin Chen (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: T Hackett (Applicant) A Petrie (Respondent)