Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Phillipson (No 2) [2021] NSWCATOD 144 Hearing dates: 3 August 2021 18 August 2021 Written Submissions Date of orders: 16 September 2021 Decision date: 16 September 2021 Jurisdiction: Occupational Division Before: Balla ADCJ, Principal Member Dr K Smartt, Senior Member Dr G Heron, Senior Member Ms D Telford, General Member Decision: (1) Dr Phillipson is reprimanded. (2) The following conditions are placed on Dr Phillipson's registration: (a) To obtain Medical Council of NSW approval prior to changing the nature or place of her practice. (b) To practise no more than 30 hours per week with no more than 6 hours in any 24 hour period. (c) To treat no more than 4 patients in any one hour, unless the treatment provided is administering COVID-19 vaccinations. (d) Not to undertake GP shared ante-natal care. (e) To submit to an audit of her medical practice, by a random selection of her medical records by a person or persons nominated by the Medical Council of NSW and: (i) The audit is to be held by 31 May 2022 and subsequently as required by the Council. (ii) The auditor(s) is to assess her compliance with good medical record keeping standards, legislative requirements and conditions on her registration. (iii) Dr Phillipson is to authorise the auditor(s) to provide the Council with a report on their findings. (iv) Dr Phillipson is to meet all costs associated with the audit(s) and any subsequent reports. (3) 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. (4) The appropriate review body for the purpose of a review under s 163 – 163C of the Health Practitioner Regulation National Law (NSW) is the Medical Council of NSW when Dr Phillipson has a principal place of practice in NSW. (5) Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply while Dr Phillipson's principal place of residence is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. Catchwords: OCCUPATIONS - Medical practitioners - Misconduct and discipline - Stage 2 Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3, 3A, 149A, 149B Cases Cited: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Phillipson [2021] NSWCATOD 26 In Health Care Complaints Commission v Do [2014] NSWCA 307 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Sharron Phillipson (Respondent) Representation: Counsel: Mr D Fuller (Applicant) Ms R Mathur (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Avant Law (Respondent) File Number(s): 2020/00105281 Publication restriction: Prohibition of the disclosure of the name of the patient referred to in the Complaint under S 64 (1) (a) of the Civil and Administrative Tribunal Act 2013 REASONS FOR DECISION 1. Dr Phillipson has been found guilty of unsatisfactory professional conduct within the meaning of s 139B of the Health Practitioner Regulation National Law (NSW) (National Law). (see Health Care Complaints Commission v Phillipson [2021] NSWCATOD 26) 2. That conduct was a failure by Dr Phillipson to arrive at a differential diagnosis of an ectopic pregnancy and a consequential failure to give appropriate advice, failures in the follow-up and management of that patient's condition, and deficiencies in Dr Phillipson's record keeping in relation to that patient. 3. It is now our role to determine the protective Orders to be made under ss 149A and 149B of the National Law (Stage 2). 4. The orders available to be made are the following: 1. A caution or reprimand; 2. Impose the conditions we consider appropriate on Dr Phillipson's registration; 3. Order Dr Phillipson to seek and undergo medical or psychiatric treatment or counselling; 4. Order Dr Phillipson to complete a specified educational course; 5. Order Dr Phillipson to report on her practice at the times, in the way and to the persons specified us; 6. Order Dr Phillipson to seek and take advice, in relation to the management of her practice, from persons specified by the Tribunal. (s 149A). Impose a fine (s 149B). 1. The Health Care Complaints Commission asks for a reprimand and the imposition of conditions. 2. Dr Phillipson asks for a reprimand only. Legal Principles 1. Counsel for Dr Phillipson in her written submissions said that: "…The statutory language is clear. The Tribunal must first find that restrictions are necessary to ensure health services are provided safely and are of an appropriate quality before it can move on to consider discretionary matters under s149C of the National Law. The test of necessity must be satisfied to the correct standard of proof. Further, as the language of section 3(3)(c) is in the present tense, the test of necessity must apply to the current practice of the practitioner." 1. This proposition was developed in this way. 2. The paramount consideration when deciding whether to exercise the disciplinary powers or in deciding which powers to exercise is the health and safety of the public (sec 3A). 3. One then turns to s 3. It is entitled "Objectives and Guiding Principles". Set out in the section are the objectives in establishing a national registration and accreditation scheme (s 3(2)) and the guiding principles of the national registration and accreditation scheme (s 3(3)). 4. Counsel for Dr Phillipson submitted that "This paramount consideration cannot, however, operate in isolation or render other relevant objectives and guidelines otiose" - and relied on s 3(3)(c) which says: (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; (b) fees required to be paid under the scheme are to be reasonable having regard to the efficient and effective operation of the scheme; (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Relying on s 3(3)(c) counsel for Dr Phillipson submitted that restrictions (ie conditions) on the practice of a health professional can only be imposed if it is "necessary to ensure the health services are provided safely and are of an appropriate quality" i.e. there must be no other way of ensuring health services are provided safely and are of an appropriate quality. She relied on the use of the words "ensure", "only" and "necessary" to submit that the threshold for proof is very high. 2. We do not accept this to be a correct statement of the law. 3. In addition we do not accept the proposition set out in the last paragraph of counsel for Dr Phillipson's written submissions dated 12 August 2021 as follows: "We maintain the submission that the commission has failed to prove that in this case which involves a single error of diagnosis on a single patient on a single day, the conditions advocated for are necessary to ensure the health and safety of the public." 1. Firstly, we do not accept that this is a comprehensive description of our Stage 1 decision. Secondly, we will take into account Dr Phillipson's history with the regulatory authorities as discussed later in these Reasons. 2. As outlined by counsel for the HCCC, the objectives and guiding principles in ss 3 and 3A cover a range of matters which may compete, and need to be balanced. We do not accept that there is any basis for elevating the guiding principle in s 3(3)(c) above the other objectives and principles in s 3, and the paramount consideration in s 3A. 3. We also accept the submission that the guiding principle relied on by counsel for Dr Phillipson applies to the national registration and accreditation scheme and is not expressed to be a principle directly governing the disciplinary powers that may be exercised in particular cases. 4. We have used the following legal principles in arriving at our decision. 5. The protection of the health and safety of the public is the paramount consideration (s 3A of the National Law). 6. The purpose of disciplinary orders is protective rather than punitive. (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, at 637). 7. Subject to the paramount consideration, the appropriate protective Orders are determined by balancing a number of factors. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] the NSW Court of Appeal held: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards … Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 1. In determining which protective Orders accord with these objectives, we take into account our previous findings and Dr Phillipson's history with the regulatory authorities. Stage One 1. Our previous findings as to the seriousness of Dr Phillipson's conduct included the following: 1. Dr Phillipson made a very serious misdiagnosis bearing in mind that she had 25 years' experience in ante-natal shared care and was seeing, in 2019, three to five patients a week in that program. 2. The consequences of Dr Phillipson's failure to identify the risk of ectopic pregnancy could have resulted in the death of patient A. Patient A did experience serious medical complications from the ectopic pregnancy. 3. Complaints One and Two arose out of the treatment of one patient on one day. 4. The patient records which were the subject of Complaint Three were all inadequate with matters such as a history of symptoms not having been recorded in one case and a detailed personal health history not having been recorded in another. The expert evidence was to the effect that, overall, the documentation was grossly inadequate. 1. We accept the submission made by counsel for the Health Care Complaints Commission that Dr Phillipson's treatment of patient A demonstrated serious shortcomings in relation to the essential qualities of a competent general practitioner including: 1. A failure to review the patient's clinical notes, which should have alerted her to possible inconsistencies in the relevant dates; 2. A failure to properly understand or interrogate relevant test results which should also have alerted Dr Phillipson to the patient's pregnancy being further progressed than Dr Phillipson thought; 3. Dr Phillipson's failure to ask for help from other practitioners to explain the pelvic ultrasound report images which she could not read, in circumstances where the comments by the radiologist in the accompanying report raised the possibility of an ectopic pregnancy; 4. Dr Phillipson's failure to take an adequate history, including discussing the characteristics of patient A's bleeding; 5. That Dr Phillipson was dismissive of, or did not treat with the appropriate level of seriousness, information provided and concerns raised by the patient; 6. That Dr Phillipson failed to take adequate clinical notes; and 7. Dr Phillipson's failure to arrange adequate follow-up for the patient, in circumstances which called for urgent review. History 1. Prior to the suspension of her registration on 12 July 2019, Dr Phillipson had received 15 complaints concerning her practice since 1999, which included issues in relation to treatment (12), medical records (1), communication style (1) and informed consent (1). Nine of them were discontinued. 2. A Performance Review Panel established by the Medical Council in September 2016 concerned a complaint by a patient about a skin check. The Panel relevantly concluded that Dr Phillipson's records remained deficient in multiple areas even though she had completed online courses in consent, communication and medical records. They concluded: "The Panel felt that Dr Phillipson has not really taken on board the concerns raised by this current and her previous complaints. Despite completing recent further training in regards to her medical records, Dr Phillipson's records remain deficient in multiple areas. Although improvement was noted since the complaint by [Ms JC], it is insufficient. Dr Phillipson even stated that she felt other doctors at her practice complete their records more comprehensively than she does. Dr Phillipson did not seem to recognise the need for her to do more than she is currently doing until she had additional time in adjournment with her Avant representative. Whilst Dr Phillipson was able to recount orally and in her explanatory letter what was required in providing adequate clinical assessment, the medical records did not demonstrate that this was occurring at every consultation. There were examples of aspects of this in only two of the patients' records provided. Failure to demonstrate adequacy was in both the general practice based components of consultations and cosmetic medicine. The Panel also felt that Dr Phillipson showed poor insight into her complaint history. She was unable to outline evidence of the impact of previous complaints into improvements in her communication, practice and patient care prior to this complaint. Whilst the Panel acknowledges and commends Dr Phillipson for completing online courses in consent, communication and medical records, clear evidence that she is comprehensively putting this learning into effect is lacking. Finally, although there were no health concerns identified, the Panel recommend to Dr Phillipson that best practice is for her to seek her own care from a GP outside of her own practice, rather than within her practice, which is currently the case." 1. A Performance Assessment was conducted at Dr Phillipson's practice on 15 March 2017. Dr Phillipson told the Assessors there had been 'huge changes' in her record keeping since the Performance Interview. She was using shortcuts to enter a lot more detail about history and examination, reception staff entered some of the information and she was using Medical Director after attending some training. 2. The Assessors observed six consultations after which they set out a lengthy list of issues arising from their observations including: 1. At three consultations, Dr Phillipson's record taking was deficient. 2. At two consultations, Dr Phillipson failed to obtain a full history; 3. At one consultation, Dr Phillipson did not listen adequately to the patient; 4. At another consultation Dr Phillipson did not undertake a necessary examination; 1. The Assessors then examined ten patient records. They concluded that, while there were signs of improvement, the records as a whole were unsatisfactory: "Front sheet data is incomplete, again better in recent notes but it is of concern that much of this including medical history and medications is filled in by reception rather than medical staff. Patient visit notes are sometimes completely non-existent, with only the prescription recorded … Examinations are rarely recorded. Patients with serious chronic complaints … have virtually no history or assessment with regard to these condition(s) by Dr Phillipson, and there is no evidence in the record of Dr Phillipson being actively involved in their chronic care beyond making referrals. Neither the Mental Health Care Plan nor the GP Management Plan contained any of the detailed information regarding diagnoses, problems, actions and care arrangements expected from such documents. It is of concern that the care plan observed by the assessors also lacked key elements. The recall system appears only to be used for skin related problems, and the lack of evidence of preventative activities … was concerning. It may be other GPs are performing this function, but if so this was not clear. Dr Phillipson does say that she acts as general practitioner for 40-50% of her patients, so one might expect a greater proportion to have evidence of preventative activities." 1. A Performance Review Panel hearing was held on 26 March 2018. Dr Phillipson told the Panel she had implemented significant changes to improve her clinical practice. 2. Dr Phillipson told the Panel that as a result of the 2017 Performance Assessment she had started to use the SOAPIF (Subjective, Objective, Assessment, Plan, Information, Follow-up) system of documentation and structured her consultations and medical records to align with the SOAPIF system. 3. The Panel reviewed the medical records for six sequential consultations from the last day she had worked prior to the hearing, 23 March 2018. They concluded that history taking in many of the consultations was excessively brief or non-existent and inadequate. There was little history in the notes, and the information such as past medical history and current medications which was being recorded by front desk, should have been taken by Dr Phillipson. It was likely it had contributed to Dr Phillipson's lack of awareness that one patient had diabetes. Examinations she performed were described as brief but adequate, lacking for one patient, cursory for another and would have been inadequate in yet another patient if not for repeated patient prompting for further assessment. 4. While Dr Phillipson's record keeping had improved, taken as a whole the records were unsatisfactory. There was little in the notes relating to patients' chronic illnesses, and care plans were inadequate. 5. The conduct which gave rise to this Inquiry occurred in 2019. We have set out our relevant findings earlier in these Reasons. 6. On 11 July 2019 a s150A Inquiry placed conditions on Dr Phillipson's registration including the following: 1. To practise no more than 30 hours per week and treat no more than 4 patients in any one hour. 2. Not to provide GP shared ante-natal, care. 3. To practise under category B supervision. 4. To have her medical practice audited when required by the Council. 1. As we have said, Dr Phillipson is currently practising under level B supervision. There is no evidence of the supervisor having any concerns as to the care provided by Dr Phillipson or the standard of her record keeping. 2. After we had completed the Stage 2 hearing, we were sent a report which had been made after an audit of Dr Phillipson's records in May 2021. We then invited the parties to make further written submissions, which they did. 3. While, in general, the Auditor did not express any serious concerns, we are concerned at the following observations: 1. "Family history was missing in the majority of records reviewed and this should be improved". 2. "I could not find evidence of reminders for seven of the relevant 14 patients for cervical, breast or bowel cancer screening." 3. "There is very little evidence of safety-netting or follow up plans documented in the records except for 'review with results' or 'review PRN'." 4. "While I consider that another practitioner could take over the care of the patient with relative ease, for eleven (and up to 13 with a bit of digging) of the 15 records reviewed there were deficiencies in Dr Phillipson's recording of history of presenting illness, examination findings, and management plans (including advice given, action required, safety netting and proposed follow-up) that should be improved." 1. The Auditor also observed that Dr Phillipson's records were very brief, using a tick-box option for history and physical examination which was convenient but did not "provide a clear 'story' of the presenting problem and the detail generally required to meet best practice standards". 2. The Auditor noted that the records she had reviewed did not make use of the SOAPIF system, despite Dr Phillipson's statement to the Panel on 26 March 2018. 3. The Auditor concluded that "Given that Dr Phillipson has conditions on her registration requiring her medical records to be reviewed at her weekly supervision meetings, I would expect that they would be of a higher standard at this stage." 4. The Council delegates considered the audit report and resolved that a further medical records audit would be required in 12 months. Character references 1. There are a number of references attesting to Dr Phillipson's character and professional reputation. These include the following. 2. Professor Baber is a professor of obstetrics and gynaecology who has known Dr Phillipson for over 20 years. Dr Phillipson has referred numerous patients to him for specialist management. He considers her referrals to be thoughtful, appropriate and clinically accurate and he has never received complaints of inappropriate treatment by her. She has been a regular attendee at his continuing education lectures. He considers her a highly skilled family medicine practitioner who has always maintained currency in her medical education and training. 3. Dr Gaut is a medical practitioner and has been a friend of Dr Phillipson since 1984, when they were interns together. She described Dr Phillipson as one of the hardest working people she knows who is held in high regard and respected by her peers. They discuss medical issues and she considers Dr Phillipson to be well informed, up-to date with current medical practice and describing appropriate care. She described Dr Phillipson as a sincere, generous, positive and enthusiastic person, and a genuine, loyal and caring friend. 4. Dr Burton is an obstetrician and gynaecologist and has known Dr Phillipson for about 38 years. He has worked with her professionally as a general practitioner for approximately 22 years, they have shared patients and he has been to education meetings where she has been present. Dr Burton considers Dr Phillipson to be a highly ethical and thoughtful person. He considers that she is highly competent, takes a very good medical history and her examinations are very precise. Specifically, he considers she is very good at gynaecology and obstetrics with a very high reputation in the community. 5. Dr Ford is an obstetrician and gynaecologist and was Dr Phillipson's treating gynaecologist when she gave birth to her children. Over the years she has referred patients to him and he has been impressed by her thorough and competent appraisal of her patient's needs. Her patients hold her in high regard, and see her as a caring and competent health professional. 6. Dr Johnston is a general practitioner who has worked with Dr Phillipson in the past. He has a high personal and professional regard for Dr Phillipson as she is very friendly, easy to relate to, provides wise counsel and is very trustworthy. He considers that Dr Phillipson is very highly regarded amongst her peers. Determination 1. As we have said, the Health Care Complaints Commission asks for a reprimand and the imposition of conditions while Dr Phillipson asks for a reprimand only. 2. While we acknowledge the support Dr Phillipson has received from members of the medical profession who have worked with Dr Phillipson and others, we are not persuaded that these have any direct bearing on the issues which we need to consider when formulating the appropriate protective Orders. 3. We have decided that a reprimand and the imposition of conditions on Dr Phillipson's registration meet the objectives of protecting the health and safety of the public, upholding public confidence in the standards of the profession, denouncing Dr Phillipson's misconduct and operating both as a deterrent to Dr Phillipson as well as to the general body of practitioners. 4. In reprimanding Dr Phillipson, we are intending to officially rebuke her for the serious shortcomings in her treatment of patient A, being the subject of our Stage One determination. 5. We have decided to impose conditions for the following reasons. 6. There is a clear pattern, over many years of Dr Phillipson failing to maintain adequate medical records despite receiving advice on several occasions from various delegates of the Medical Council as to what the deficiencies were and undertaking numerous courses. On a number of occasions, she has given assurances that she has reformed and that her record keeping is at an acceptable standard. Since May 2020 the Medical Council has received supervision reports which do not raise any issues. However, in May this year, an audit of Dr Phillipson's records still found concerning deficiencies and no evidence of Dr Phillipson using the SOAPIF system. The Medical Council considers that another audit should be done in May 2022. 7. To protect the public we consider that a condition providing for ongoing audits of Dr Phillipson's records is necessary. This will monitor whether she maintains the improvements she has made in her record keeping and progresses to make the further improvements suggested by the Auditor and others. 8. Dr Phillipson's history and her treatment of patient A which led to the Complaint, give rise to concerns about deficiencies in both Dr Phillipson's ability to engage with patients in a meaningful way and also to ensure that she provides safe medical care when undertaking tasks such as conducting a physical examination, taking a history and making notes. We consider that these deficiencies have primarily been caused by the interrelationship of Dr Phillipson's lack of insight into this aspect of her personality and Dr Phillipson failing to spend enough time with patients. 9. Our concern as to Dr Phillipson's lack of insight arises primarily from her ongoing denials of any fault on her part. We do note however that in one of her reflection statements she did concede that there was a theme of patient dissatisfaction in the complaints she had received over the past 20 years. 10. Dr Phillipson has acknowledged in another reflection statement that one of the issues which contributed to her poor record keeping was not allocating enough time to patient consultations. She also has, in her statement dated 16 April 2021 conceded that her workload and hours may have contributed to her failures in treating patient A. 11. Dr Phillipson only recommenced practice in May 2020. She is currently subject to conditions on her registration limiting her hours of practice and the number of patients she can see an hour. She said she is working 20 hours a week with 15 minute appointments which allows her time to consult, examine and treat patients. She is also able to write more extensive notes. 12. We are satisfied that the need for conditions restricting the number of patients Dr Phillipson can see a day and the number of patients she can see an hour should be continued to ensure that she can focus on the quality of care being provided to patients, in particular to adequately record consultations, take thorough histories and consider her management of those patients to ensure it is appropriate. We agree with the conditions proposed by the Health Care Complaints Commission being a limit of 30 hours week, 6 hours in any 24 hour period, and four patients an hour with a proviso allowing Dr Phillipson to see more patients an hour if she is seeing them to give them a COVID vaccination. 13. There is no evidence that Dr Phillipson has provided GP antenatal shared care since resuming practice. We consider it appropriate that she be restrained from that area of practice as there is no persuasive evidence before us of recent intensive professional development in that area. 14. We consider that it is appropriate to include a condition for Dr Phillipson to work only in a practice approved by the Medical Council while it is managing the conditions on her registration. Costs 1. The Tribunal has the power to make such orders in relation to costs as it considers appropriate. The usual principle is that costs follow the event, although where a party has been partly successful, costs may be limited by reference to the extent of the party's success. 2. Counsel for Dr Phillipson submitted that, as the Commission had failed to prove professional misconduct, each party should pay its own costs. 3. We accept the submission made by counsel for the HCCC which seeks 75% of its costs: 1. The Commission made four Complaints one of which (Complaint Four – professional misconduct) was based on the other Complaints; 2. Two Complaints were found to be proved (Complaints One and Three). Both of those Complaints were contested, although the particular of Complaint Three and one particular of Complaint One were admitted; 3. The main factual dispute was in relation to Complaint One, three particulars of which were disputed. 1. To reflect that outcome, we propose to Order Dr Phillipson to pay 75% of the costs of the Health Care Complaints Commission. Orders 1. We make the following Orders: 1. Dr Phillipson is reprimanded. 2. The following conditions are placed on Dr Phillipson's registration: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of her practice. 2. To practise no more than 30 hours per week with no more than 6 hours in any 24 hour period. 3. To treat no more than 4 patients in any one hour, unless the treatment provided is administering COVID-19 vaccinations. 4. Not to undertake GP shared ante-natal care. 5. To submit to an audit of her medical practice, by a random selection of her medical records by a person or persons nominated by the Medical Council of NSW and: 1. The audit is to be held by 31 May 2022 and subsequently as required by the Council. 2. The auditor(s) is to assess her compliance with good medical record keeping standards, legislative requirements and conditions on her registration. 3. Dr Phillipson is to authorise the auditor(s) to provide the Council with a report on their findings. 4. Dr Phillipson is to meet all costs associated with the audit(s) and any subsequent reports. 1. 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. 2. The appropriate review body for the purpose of a review under s 163 – 163C of the Health Practitioner Regulation National Law (NSW) is the Medical Council of NSW when Dr Phillipson has a principal place of practice in NSW. 3. Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply while Dr Phillipson's principal place of residence is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2021