Thomas v Medical Council of New South Wales [2021] NSWCATOD 211

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Thomas v Medical Council of New South Wales [2021] NSWCATOD 211 Hearing dates: 11-12 November 2021 Date of orders: 15 December 2021 Decision date: 15 December 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr L Cotterell, Senior Member Dr J Fogarty, Senior Member Honorary Associate Prof P Macneill, General Member Decision: (1) The Tribunal makes a reinstatement order. (2) The following practice and health conditions are attached to Mr Thomas's registration: Practice Conditions (a) 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). (b) Not to possess, supply, administer or prescribe any substance listed in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). (c) To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. (d) To practise only in a group practice approved by the Medical Council of NSW where there are at least 3 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. (e) Not to practice in a group practice in which he and/or his wife has a direct or indirect financial interest. (f) To practise no more than 28 hours per week with no more than 8 hours in any 24 hour period. (g) To treat no more than 4 patients in any one hour and no more than 25 patients in any one day. (i) The practitioner is to provide the Medical Council of NSW with copies of records confirming the number of patients treated, their consultation times and hours worked on any dates as specified by the Council. (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: substance abuse; workload; clinical performance; medical record reviews; appropriate prescribing practices; patient follow-up; clinical outcomes; and recent developments in clinical practice. (ii) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision upon which these conditions are based and all other documents the Medical Council of NSW deems appropriate. (iii) Not to practise until a supervisor has been approved by the Medical Council of NSW. (i) Within 3 months of the supervisor being approved by the Medical Council of NSW, the practitioner is to spend a total of 10 observation sessions with the approved supervisor. A session is a period of at least 1 hour. These sessions are to include: 5 sessions where the practitioner directly observes the supervisor conduct patient consultations. 5 sessions where the supervisor directly observes the practitioner conduct patient consultations. (i) When observing these consultations, the practitioner and the supervisor are to pay particular attention to: workload; clinical performance; medical record reviews; appropriate prescribing practices; patient follow-up; clinical outcomes; and recent developments in clinical practice. (ii) Within 1 month 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 affect his practice. (iii) 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 report and that the supervisor provides his or her own report to the Medical Council of NSW 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 2 months of the completion of the observation period. (iv) The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports. (j) To forward evidence to the Medical Council of NSW within 14 days of recommencing practice, that he has provided a copy of the decision upon which these conditions are based to the principal of the practice. (k) 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 upon which these conditions are based to the principal of the practice. (l) 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. (m) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. (n) To complete within 1 month of the date of this decision chapter one, two and three of the e-learning course 'Medical records' organised by AVANT Mutual Group. (i) Within seven (7) days of completing the abovementioned course, the practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course. (ii) To bear responsibility for any costs incurred in meeting this condition. (iii) In the event that the course is unavailable, the practitioner must propose to the Medical Council of NSW for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 1 month from the date of this decision. (o) To complete within 1 month of the date of this decision chapter one and two of the e-learning course 'Prescribing principles' organised by AVANT Mutual Group. (i) Within seven (7) days of completing the abovementioned course, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the course. (ii) To bear responsibility for any costs incurred in meeting this condition. (iii) In the event that the course is unavailable, the practitioner must propose to the Medical Council of NSW for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 1 month from the date of this decision. (p) To submit to an audit of his medical practice, by a random selection 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 6 months from the date he recommences medical 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, legislative requirements, and compliance with conditions. (iii) To authorise the auditor(s) to provide the Medical Council of NSW with a report on their findings. (iv) To meet all costs associated with the audit(s) and any subsequent reports. (q) The practitioner is to provide his employer(s) and supervisor with a copy of these conditions of his registration. Health Conditions (r) To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (i) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (A) Failure to attend for treatment; (B) Termination of treatment; or (C) A significant change in health status (including a significant temporary change). (ii) Must provide the Medical Council of NSW with the professional details of the treating practitioner. (iii) To authorise the Medical Council of NSW to forward copies of the decision upon which these conditions are based and any other information relevant to his health and treatment to his treating psychologist. (3) The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (4) Sections 125 to 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. (5) Mr Thomas is to pay the Medical Council of NSW's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: HEALTH — Professional registration and discipline — Registration — medical practitioner's application for reinstatement to register Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Health Care Complaints Commission v Thomas [2015] NSWCATOD 60 Jan v Health Care Complaints Commission [2021] NSWSC 350 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Category: Principal judgment Parties: Jawahar Thomas (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: R Mathur (Applicant) A Petrie (Respondent)