Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Medical Council of New South Wales v Schwartz [2022] NSWCATOD 80 Hearing dates: 7 and 8 March and 30 June 2022 Date of orders: 25 July 2022 Decision date: 25 July 2022 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President Dr M Cox, Senior Member Dr M Mulligan, Senior Member R Wellington, General Member Decision: 1. The decision of the Medical Council dated 20 July 2021 to suspend Dr Schwartz's registration with effect from 5 pm on 18 June 2021, is confirmed. 2. Dr Schwartz is to pay the Medical Council's costs of these proceedings as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Act 2014 (NSW). Catchwords: HEALTH — professional registration and discipline — registration — medical practitioner – appeal from decision of Medical Council to suspend registration – new hearing Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Hogan v Hinch (2011) 243 CLR 506 Ibrahim v Pharmacy Council of NSW [2019] NSWCATOD 187 Medical Board of Australia v Leow 2019 VSC 532 Medical Council of New South Wales v Smithson [2021] NSWCA 53 O'Sullivan v Farrer (1989) 168 CLR 210 Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 Withyman v State of NSW [2010] NSWDC 186 Texts Cited: Australian and New Zealand College of Anaesthetists, "Guideline on sedation and/or analgesia for diagnostic and interventional medical, dental or surgical procedures" PS09(G) 2014 Category: Principal judgment Parties: Gerald Schwartz (Appellant) Medical Council of New South Wales (Respondent) Representation: Counsel: J Sleight (Appellant) A Petrie (Respondent) Solicitors: Neville Hourn and Borg Legal (Appellant) Health Professional Council's Authority (Respondent) File Number(s): 2021/00202644 Publication restriction: Publication of the names of any patients in the material filed with the Tribunal is prohibited. REASONS FOR DECISION Overview 1. Dr Schwartz has appealed to the NSW Civil and Administrative Tribunal (NCAT) a decision of the Medical Council of NSW (the Council) to suspend his registration as a medical practitioner. That decision was made under s 150 of the Health Practitioner Regulation National Law (NSW) (the National Law). We will refer to the Medical Council's decision as the "s 150 decision". 2. Dr Schwartz is a 65-year-old general practitioner who worked as a cosmetic surgeon in a group practice in Sydney. In the s 150 decision, the Medical Council noted that he "primarily conducts blepharoplasties (upper and lower lids) and liposuctions" (a fat removal procedure). 3. In May 2021, a Performance Review Panel (PRP) expressed concerns about several aspects of Dr Schwartz's practice including non-compliance with conditions on his registration about conscious sedation of patients, his clinical judgment and management, record keeping and Medicare billing practices. The PRP terminated the performance review it was conducting and recommended that the Council consider urgent action under s 150 of the National Law. Following those proceedings, the Council suspended Dr Schwartz's registration as a medical practitioner for the health and safety of the public and in the public interest. 4. In summary, the Council's reasons for suspension were that Dr Schwartz had failed to comply with the conditions on his registration and failed to appropriately and meaningfully engage with the proceedings. In addition, the Council took into account several issues of concern raised by the PRP and further issues explored by the delegates during the hearing. Legal principles 1. In accordance with s 3A of the National Law, when exercising any functions under that legislation, "the protection of the health and safety of the public must be the paramount consideration". 2. Section 150 gives the Council the following powers: Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest— (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. 1. Dr Schwartz's right to appeal the s 150 decision is set out in s 159(1)(a) of the National Law: 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession— (a1) against a reprimand by the Council for the health profession under Division 3; or (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; or (b) against conditions imposed by the Council for the health profession on the person's registration under section 127AA or Division 3 or 4 or the alteration of the conditions by the Council; or (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; or (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; or (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note— An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council, may be given. 1. As set out in s 159(3), the appeal is to be determined on the evidence before NCAT, not on the evidence before the Medical Council's delegates at the s 150 hearing. The Tribunal's powers on appeal are set out in s 159C: 159C Tribunal's powers on appeal [NSW] (1) On an appeal against a decision of a Council, the Tribunal may by order— (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made). (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of. 1. As s 150 is expressed in the alternative, NCAT must suspend or impose conditions if satisfied that it is appropriate to do so either for the protection of the health or safety of any person or if the action is otherwise in the public interest. In Medical Council of New South Wales v Smithson [2021] NSWCA 53 at [20] the Court of Appeal (Payne JA, Simpson AJA and Garling J) had this to say about the two limbs of s 150: 2. The subject matter, scope and purpose of s 150 makes clear that it is a protective provision with two independent limbs. The touchstone for the exercise of the Council's role under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for (i) the protection of the health or safety of any person or persons (the first limb), or (ii) that the action is otherwise in the public interest (the second limb): Kirby at [15]; Ghosh at [5]. The two limbs may overlap but the public interest is not subsumed in the first limb: see Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 at [35]. The two limbs are disjunctive; satisfaction of either will suffice to trigger the obligation imposed by s 150. 1. As to the subject and scope of proceedings under s 150, they are not disciplinary proceedings. They are purely protective in character. As the Court explained in Smithson at [20]: 3. The proceedings are not disciplinary and are not necessarily referable to a complaint. The National Law otherwise makes provision for dealing with complaints against registered health practitioners: see Div 3 Subdivs 2-6. The function of a s 150 hearing is purely protective in character: Kirby at [15]; Ghosh at [5]. By s 150D, a Council must, after taking action under s 150(1) (except in the case of impairment), refer the matter to the Health Care Complaints Commission ("HCCC") to be investigated as a complaint. 1. As this is a new hearing, NCAT must identify the nature of any risk to the health and safety of the public, the chances of the suggested harm being realised and the consequences if the suggested harm is realised. There is no requirement for any person to have suffered actual harm: Smithson at [20]. 2. Identifying risk to the health or safety of any person based on a person's past conduct is a relatively straightforward task. Identifying risk to the public interest is more difficult. The meaning of the expression "the public interest" depends on "the subject, scope and purpose of the enactment in which it appears": Hogan v Hinch (2011) 243 CLR 506 at [31], per French CJ; at [69] per Gummow, Hayne, Heydon, Crennan Kiefel and Bell JJ; O'Sullivan v Farrer (1989) 168 CLR 210 at 216. 3. Harrison AsJ listed considerations relevant to "the public interest" in the context of s 150 in Pharmacy Council of NSW v Ibrahim [2020] NSWSC 708 at [32]: . . . in the context of ss 3 and 3A of the National Law, the "public interest" referred to in s 150 includes considerations of maintaining public confidence in the scheme for regulating health practitioners, and the "competence of practitioners and that practitioners will exhibit traits consistent with the honourable practice of an honourable profession": see Hanna at [18]. 1. Harrison AsJ explained at [35] that the public interest is a broader concept than the protection of health and safety. It covers "wider community interests such as the standards to which human conduct is to be held". 2. In a similar legislative context, the Supreme Court of Victoria held in Medical Board of Australia v Leow 2019 VSC 532 at [78], that the equivalent provision to s 150 is: …designed to operate for an interim period, until an investigation or disciplinary proceeding with respect to the medical practitioner is able to be concluded. The purpose of immediate action is to put measures in place to protect against, or ameliorate, harm pending the determination. It is not an end in and of itself. 1. More recently, in Pridgeon v Medical Council of New South Wales [2022] NSWCA 60, the Court of Appeal (Bell CJ, White JA and Harrison J) held at [68] that the "public interest" should be understood as a reference to the public interest in the protection of the public's health and safety. The content to be given to that protection must take its meaning from the conduct of the practice of medicine in respect of which a medical practitioner's registration is granted. At [70], the Court emphasised that s 150 should only be invoked as an emergency power where the circumstances are urgent. Evidence Relevance of the s 150 decision 1. In Ibrahim v Pharmacy Council of NSW [2019] NSWCATOD 187 at [21], NCAT made the following comment about whether NCAT should take into account the Medical Council's reasoning in the s 150 decision: On one view it is not necessary for us to consider the reasoning of the delegates of the Council because we are considering the matter afresh. However, the respondent embraced the reasoning of the delegates, and for this reason it is necessary that we refer to it. 1. The Medical Council provided us with a copy of the s 150 decision. As we are conducting a new hearing, and fresh evidence is admissible, we are not bound by the Council's factual findings or reasoning. We must come to our own view on the evidence before us. For that reason we have treated the Council's s 150 decision as an aide memoir rather than as evidence in the proceedings. Dr Schwartz's evidence 1. Dr Schwartz did not give oral evidence before NCAT. His evidence consists of the responses he gave when questioned by the Council's delegates on 18 June 2021 and the contents of a statement dated 7 October 2021 with annexures, which he provided to the Council. Dr Schwartz did not seek to tender this statement but Council included it in their tender bundle and we admitted it into evidence in the Council's case. At the beginning of the hearing, Dr Schwartz's counsel sought an adjournment to get instructions on whether he was going to call Dr Schwartz to give evidence. Dr Schwartz did not give evidence and his counsel told the Tribunal that he had advised his client of the consequences of not doing so. 2. When the hearing resumed, Dr Schwartz's counsel submitted that this case was analogous to the circumstances in Withyman v State of NSW [2010] NSWDC 186 at 227 where Elkaim SC DCJ held that: 227. Both the plaintiff and Ms Blackburn submitted that an adverse inference should be drawn against the first defendant for its failure to call Mr Roxborough and Mr Neal to give oral evidence. In respect of the plaintiff the first defendant said that no such inference was available because the first defendant had tendered statements from the two potential witnesses. Support for this submission is to be found at paragraph 71 in the judgment of Sackville J in Singh v Minister for Immigration (2001) 109 FCR 152. In addition, I was referred to paragraph 1215 in the seventh edition of Cross on Evidence. I thought there was some substance in these submissions but only to the extent of the material covered in the statements of the witnesses that had been tendered. 1. The Council sought to distinguish Withyman because in that case two witnesses who had provided statements did not give evidence. In the present case it is the appellant, not a witness, who has done so. 2. We accept that by tendering Dr Schwartz's statement, Council did not intend that he would become a witness in their case. As a model litigant it was their intention to provide the Tribunal with all the material in their possession which is relevant to an issue in dispute. We agree that Dr Schwartz's counsel cannot characterise the decision to tender that statement as a forensic decision to fore-go any opportunity to cross-examine. It was Dr Schwartz's decision not to give tender his statement. 3. At the s 150 hearing, Dr Schwartz spoke to the Council delegates by AVL and responded to questions for about two hours from 12.31 pm to 2.27 pm. At that time, he left to pick up his children. He said he would return but did not do so. Expert evidence 1. The expert evidence consisted of reports from two general practitioners, Dr Hester Wilson and Dr Umberto Boffa and a report from an anaesthetist, Dr Ken Harrison. 2. Dr Harrison is a Staff Specialist, Anaesthesia/Dental Sedation/Trauma at Westmead Hospital and a Clinical Associate Professor in the Faculty of Medicine and Health at the University of Sydney. He prepared a report dated 2 February 2021 at the request of the Council which addressed issues around conscious sedation. He was not required for cross-examination. 3. Dr Hester Wilson is a general practitioner with over 30 years' experience. At the request of the Medical Council, she prepared a report dated February 2022. That report focused mainly on issues about anomalies in Medicare billing, inadequate record keeping and concerns relating to clinical judgment and clinical management. Several of the questions Council addressed to Dr Wilson asked her to form an opinion as to whether certain conduct "fell below the standard expected of a practitioner of an equivalent level of training or experience". That question is not relevant when determining an appeal from a s 150 decision to suspend a practitioner's registration. One relevant question, which the Council did ask, was whether any aspect of Dr Schwartz's practice exposes his patients to any unacceptable risk and, if so, the potential consequences of exposing patients to that conduct. 4. Dr Wilson was provided with a copy of the s 150 decision, but not with the transcript of the proceedings. She was given the transcript on Thursday 3 March 2022, four days before the hearing, but was not asked to consider modifying her report. Under the heading "Limitations of this Report" she quoted the findings of the s 150 panel members in relation to Dr Schwartz's behaviour during the hearing and his credibility. Dr Wilson then wrote: I note that I was not present at the s 150 hearing and while I acknowledge the delegates' concerns, I will endeavour to answer the above questions from the information I have available with particular focus on medical records. I will draw on Dr Schwartz's responses to the Medical Board delegates. 1. In her report, when responding to an invitation to provide "any other relevant observations", Dr Wilson commented adversely on Dr Schwartz's lack of preparedness for the s 150 hearing and his decision to leave the hearing early to pick up his children. Dr Wilson described this behaviour as "extraordinary". She said she found it difficult to understand why Dr Schwartz did not engage more diligently in the process. 2. Dr Wilson agreed that the Council had not asked her to comment on Dr Schwartz's behaviour during the s 150 hearing. Nevertheless, she considered his behaviour to be relevant. That is why she expressed a view about it under the heading "any other relevant observations". 3. We agree with Dr Schwartz's counsel representative that the way Dr Schwartz conducted himself during the hearing is not something within Dr Wilson's field of expertise. By expressing views about that conduct, she has demonstrated that she did not fully understand the limitations on her role as an expert witness. When asked whether she had regard to Dr Schwartz's conduct during the hearing when forming her opinions, Dr Wilson said that her focus was on the primary data and whether Dr Schwartz was providing good quality medical care. However, she conceded that the fact that Dr Schwartz did not participate in the entire proceedings was not going to assist him. 4. We need to carefully assess Dr Wilson's opinions and decide whether they have been affected by her adverse view of Dr Schwartz's level of participation in the s 150 hearing. In our view, her evidence was measured and reasonable. We do not consider that she showed any lack of independence in her assessment of Dr Schwartz's conduct. 5. Dr Boffa prepared a report dated 2 October 2021 at the request of Dr Schwartz. Dr Boffa is a general practitioner with over 40 years of clinical experience and regards himself as Dr Schwartz's collegial peer. He has performed hundreds of minor procedures including removal of skin lesions, blepharoplasties, insertion and removal of contraceptive implants. He gave oral evidence on 30 June 2022. 6. The Council's lawyer questioned Dr Boffa as to the information he had before him when he wrote the report. Dr Schwartz forwarded the letter of instructions and attachments to the Council and the Tribunal. That material had previously been sent to another potential expert witness, Dr Cox, on 27 August 2021, but when that person was not available the material was forwarded to Dr Boffa. That is why neither the Council nor the Tribunal had been given a separate copy of the material addressed to Dr Boffa. 7. Dr Boffa acknowledged that he did not have a copy of the conditions to which Dr Schwartz was subject from 12 December 2017 to 18 January 2021. He did not realise that it was alleged that Dr Schwartz was in breach of those conditions. Dr Boffa wrote only that Dr Schwartz had been "cautioned" and "admonished". 8. Dr Boffa was given a copy of Dr Wilson's report on 11 February 2022 but did not have any memory of the contents. Issues on appeal Summary 1. The Medical Council raised the following concerns in the s 150 decision: 1. possible breach of condition prohibiting use of conscious sedation; 2. concerns relating to clinical judgment and clinical management; 3. inadequate record keeping; 4. anomalies in Medicare billing; 5. disinclination to follow rules and guidelines; and 6. failure to comply with a Notice to Produce. Possible breach of condition prohibiting use of conscious sedation Background 1. From 17 November 2015 until 18 June 2021, when Dr Schwartz's registration as a Medical Practitioner was suspended, his registration was subject to various conditions in relation to conscious sedation of patients. 2. By a decision in s 150 proceeding dated 23 January 2016, the following condition was placed on Dr Schwartz's registration: Not to administer any conscious (intravenous) sedation or monitor any sedated patients. a. The practitioner may perform procedures which require conscious sedation when the administration of the sedation and monitoring of the patient is undertaken by an anaesthetist approved by the Medical Council of NSW, who is responsible for the pre-sedation assessment of the patient and is present for the entirety of the procedure and the patient's recover from sedation. b. Dr Schwartz is to maintain a logbook of all procedures performed under conscious sedation listing the date and nature of each procedure, the patient's name and the name and signature of the anaesthetist present during the course of the procedure. a copy of the logbook is to be forwarded to the Council within 7 days of the end of each calendar month. 1. Dr Schwartz's view was that this condition only prohibited intravenous sedation, but the s 150 panel did not accept Dr Schwartz's interpretation. On 12 December 2017, the condition that he not administer any conscious (intravenous) sedation without a sedationist being present was amended to ensure that all routes for administration were precluded. The condition then read: Not to administer any conscious sedation (by any route) or monitor any sedated patients. a. The practitioner may perform procedures which require conscious sedation when the administration of the sedation and monitoring of the patient is undertaken by an anaesthetist approved by the Medical Council of NSW, who is responsible for the pre-sedation assessment of the patient and is present for the entirety of the procedure and the patient's recover from sedation. b. Dr Schwartz is to maintain a logbook of all procedures performed under conscious sedation listing the date and nature of each procedure, the patient's name and the name and signature of the anaesthetist present during the course of the procedure. a copy of the logbook is to be forwarded to the Council within 7 days of the end of each calendar month. 1. In the s 150 decision of 20 July 2021, the Council found that Dr Schwartz had breached these conditions. Despite the amended condition, Dr Schwartz had continued to administer conscious sedation. The Council found that breach of the condition was "premeditated and deliberate." As we have noted, we are not bound by that finding. Dr Schwartz's evidence 1. Dr Schwartz admits that he administered Fentanyl (and sometimes Tramal, pethidine or morphine) intramuscularly, but considered this to come within the definition of pain relief, rather than amounting to conscious sedation. 2. During the s150 hearing Dr Schwartz initially told the Council delegates that he uses a local anaesthetic but does not use any sedation to help the patient relax or prepare them for the surgery. Later he said he uses "narcotics, pain relief". When asked what kind of narcotics he uses, Dr Schwartz said: It depends if they have any allergies and it also depends on if they have any special requirements but in general I have a listing. So generally Fentanyl or sometimes Tramal sometimes pethidine sometimes morphine but in general most of my experience is with Fentanyl. 1. He said that two nurses are present during the procedure – a scrub nurse and a general theatre nurse. He did not mention a sedationist. 2. In his 7 October 2021 statement, Dr Schwartz continued to deny that he had breached the condition: "Since the imposition of the conditions, I have not sedated a patient myself and have not needed to use a sedationist. … In terms of the drugs that I did administer, Fentanyl was administered as pain relief and the dose dependent on the patient's weight. I asked the patient for their weight at their consult and if they did not know, I would then weigh them on the scales in my clinic. On 5 August 2020, I had an initial consultation with (name deleted) regarding transconjunctival blepharoplasty and I said to her that I could not sedate her myself, but raised with her that she may likely feel anxiety and discomfort from operating around the eye or in the lower fomix. I said to (name deleted) that I could only offer pain relief and an antihistamine that would enhance the anaesthetic effects of the painkiller, so that the patient would be able to tolerate the surgery better. (Name deleted) advised that she would like to continue with the procedure, which was performed on September 2020. The medication administered pre-operatively on the date of the procedure was Fentanyl 100 ug IMI promethazine 50 mg. In my view, based on my teachings, the combination of medication is not considered sedation, but the effects of the pain relief are enhanced." 1. Medical records produced by Dr Schwartz to the Council include the following: (i) 23 July 2020: analgesic IM Fentanyl 50mcg-100mcg with 100mcg circled for patient A; (ii) 17 February 2021: IM Fentanyl 50-100mcg with 100mcg circled for patient B; (iii) 17 September 2020: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient C and promethazine 50mg was also administered; (According to the Council it is noteworthy that the Medication Order does not show that promethazine was administered and only shows Fentanyl circled.) (iv) 19 September 2019: medical records for Patient D who underwent a liposuction procedure with Dr Schwartz for "love handles" and Fentanyl 100mcg injected into buttock; (v) 6 August 2020: another liposuction procedure of the stomach for Patient D where Fentanyl 100mcg was injected into buttock; (vi) 6 August 2020: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient D; (vii) 19 September 2019: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient D; (viii) 15 August 2019: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient E; (ix) 15 August 2019: IM Fentanyl 50mcg-100mcg with 100mcg circled for Patient F. 1. Dr Schwartz's counsel submitted that Dr Schwartz "did not intend to breach this condition" and "he understands from the evidence adduced that he has inadvertently done so and will not do so in the future". Dr Schwartz's counsel submitted that it was obvious from Dr Schwartz's statement that he did not intend to breach the condition. That is the case if we accept the proposition in an article attached to Dr Schwartz's statement, that the combination of fentanyl and promethazine is not considered sedation. However, the article is cited to support the proposition that anti-histamines are not sedatives. This article is focused on the use of sedatives and anxiolytics in the geriatric outpatient setting for sleep disorders and anxiety. It is not relevant to procedural sedation. 2. There is no direct evidence of intention to breach the condition, but Dr Schwartz has 40 years' experience as a GP and has been practising for a considerable time in the area of cosmetic procedures. There has been a condition on his registration since 2017 that he not administer conscious sedation without a sedationist present. In those circumstances he should have known, or have taken steps to find out, exactly what conscious sedation means. Expert evidence 1. Dr Schwartz's expert, Dr Boffa, and the Council's expert, Dr Harrison, agree that Dr Schwartz's use of opioids (such as fentanyl) together with promethazine (such as Phenergan) to potentiate the effects of sedation, is conscious sedation. (Potentiate is a medical term meaning to make more effective or more active.) 2. Dr Harrison provided the following definition of conscious sedation: ANCZA publish a document called PS09 (attached to this report), which is the base document on sedation referred to by the Australian Health Practitioner Regulation Agency (Ahpra), all state bodies and most other medical colleges. It says: "Conscious sedation is defined as a drug-induced depression of consciousness during which patients are able to respond purposefully to verbal commands or light tactile stimulation. Interventions to maintain a patent airway, spontaneous ventilation or cardiovascular function may, in exceptional situations, be required. Conscious sedation may be achieved by a wide variety of drugs including propofol, and may accompany local anaesthesia. All conscious sedation techniques should provide a margin of safety that is wide enough to render loss of consciousness unlikely." 1. The above definition is sourced from a publication titled "Guideline on sedation and/or analgesia for diagnostic and interventional medical, dental or surgical procedures" PG09(G) 2014 published by the Australian and New Zealand College of Anaesthetists. Administration can be by any route, oral, IVI, IMI, nasal or even rectally. 2. The document (PS09) also contains the following paragraphs: "Practitioners who administer procedural sedation and/or analgesia should be aware that the transition from complete consciousness through the various depths of sedation to general anaesthesia is a continuum and not a set of discrete, well-defined stages. The margin of safety of drugs used to achieve sedation and/or analgesia varies widely between patients and loss of consciousness with its attendant risk of loss of protective reflexes may occur rapidly and unexpectedly." 1. When asked to comment on Dr Schwartz's use of Fentanyl, Tramal, Pethidine or Morphine, Dr Harrison said in his report of 2 February 2022 that: These drugs and doses are typed onto Dr Schwartz's form and it is the same for all his forms that are in the correspondence I have seen. I suspect he had those names prewritten and presume he had a protocol for each, but would circle only one drug for each patient. They are all big doses and in some patients, they might result in decreased respiratory effort. I will address all 4 drugs in order. Fentanyl is a potent short-term analgesic that does not help with postoperative pain, but is the standard opioid used in conscious sedation for procedures that are painful but when the postoperative pain will be less severe. Tramal is a less potent drug but can have severe side effects especially in those with kidney disease or prostaglandin issues. Pethidine has been rarely used for the past 15 years. It has occasional but severe side effects especially fitting and has no benefits over morphine at all. Morphine is a potent analgesic and its effects are much longer than fentanyl, so it would be used for those patients when the pain is expected to be present for some hours after the operation. 1. Dr Harrison identified the dangers of prescribing Fentanyl and Phenergan to Patient C. The amount and combination of these two drugs is in my opinion a dangerous way to give conscious sedation but it is sedation. The doses administered are large doses as I will explain below and the method, IMI injection, does not allow for any irritability (sic titratability). 1. Dr Harrison goes on to explain why these drugs are dangerous: It is dangerous because different patients have different physiological and pharmacological responses to drugs. A good way to understand this is to remember that the "bell curve" is applicable to all patients and different patients sit in different parts of the bell curve. Thus, if we give a standard dose of a drug to a patient, 5% of patients might have no effect to a drug, 90% have a good effect, but, and it is an important but, 5% will be effectively overdosed. It is impossible to totally predict how a particular patient will react, which is why small, titrated IVI doses of sedative drugs are the safest way to conduct sedation. What this means is that whilst for most patients the doses chosen will just cause significant analgesia and sedation, in a small percentage of patients they will cause deep sedation. 1. According to Dr Harrison, small titrated intravenous doses of sedative drugs are the safest way to conduct sedation. Dr Harrison finds it 'frankly unbelievable' for Dr Schwartz to deny the sedative effects of Promethazine (Phenergan). 2. In Dr Boffa's opinion, there is a substantial risk to patients if Dr Schwartz continues to use "conscious sedation during surgical procedures when it was previously demonstrated to him to be unsafe in a GP setting". Dr Boffa advises against using sedation in a general practice setting unless a trained sedationist is present. He goes on in his report to say that: Having already been admonished, repeat use of sedation should not have occurred, but it is not clear whether Dr Schwartz had in the meantime tightened up on staff training making him more confident. 1. There is no evidence that Dr Schwartz has tightened up on staff training or that improved staff training is equivalent to providing a sedationist. Other evidence 1. Dr Schwartz tendered evidence of his continuing professional development. His 2020-22 Triennium Statement from the RACGP demonstrates that he has complied with the minimum standards for continuing professional development. 2. The Council tendered evidence of the content from the website of the Matraville Medical Complex, Aesthetic Surgery Centre and Travel Clinics Australia as of 29 June 2022. The document contains a photograph of "Dr Jerry Schwartz GP/Surgeon" The website included the following statement, "Please call reception to make an appointment". This document is not evidence that Dr Schwartz has been treating patients, but the Council submitted that it demonstrates that Dr Schwartz is holding himself out as a medical practitioner when in fact his registration has been suspended. That conduct was said to suggest that he would be unlikely to comply with any conditions imposed on his registration. The failure to update his website is, at best, a weak indication that Dr Schwartz would not comply with future conditions. We have not given that evidence any weight. Consideration 1. We find that Dr Schwartz has breached the amended condition on his registration by administering conscious sedation to patients without an approved anaesthetist being present. During the s 150 hearing, he initially denied using any sedation but later admitted to using "pain relief." He considered fentanyl to be a kind of pain relief and promethazine to merely enhance the effects of pain relief. 2. Dr Harrison's unchallenged opinion is that prescribing Fentanyl and Phenergan together is dangerous. That combination will induce deep sedation in approximately 5% of patients. In other words, one in every twenty patients receiving that combination of drugs is at risk. We do not accept the characterisation of Dr Schwartz's counsel that only "a few" patients would be affected. We repeat that there is no requirement for any person to have suffered actual harm. 3. Dr Harrison was also asked to comment on Dr Schwartz's use of Fentanyl and other analgesics by themselves to achieve sedation. He said Fentanyl "is the standard opioid used in conscious sedation procedures that are painful but when the postoperative pain will be less severe". 4. Based on that statement, and the expertise of the members of the Tribunal, the administration of Fentanyl, Tramal, Pethidine or Morphine, by themselves, has the potential to be conscious sedation. Transition from complete consciousness to sedation to loss of consciousness is a continuum with interindividual variability in response. Fentanyl is an opioid analgesic. A dose of 100mcg is clinically significant as it is equivalent to morphine 10mg, and pethidine 75mg. The principal actions of therapeutic value are analgesia and sedation. Dr Schwartz should have this knowledge of the pharmacology of these drugs. Consequently, not only was Dr Schwartz administering conscious sedation when using a combination of fentanyl and promethazine, he was using conscious sedation when administering fentanyl alone. Even if that is not accepted, Dr Schwartz was undoubtedly in breach of the condition when administering Fentanyl and Phenergan together. 5. We agree with Dr Harrison that it is not credible given Dr Schwartz's training and experience, that he denies the sedative effects of promethazine. Dr Schwartz continues to deny that what he was doing came within the definition of conscious sedation. His counsel submits that it was inadvertent and that any breach of the condition was not intentional. We are not satisfied on the basis of all the evidence, that that inference can be drawn. Nor are we satisfied that placing a condition on Dr Schwartz's registration would safeguard the health and safety of future patients. 6. Dr Schwartz's counsel emphasised that the original condition only specified intravenous sedation and Dr Schwartz did not consider that he was in breach of that condition. Even if that is accepted, the amended condition made it clear that he was not to administer any conscious sedation (by any route) or monitor any sedated patients without the presence of a sedationist. Dr Schwartz is in breach of that condition. 7. These proceedings come before the Tribunal without any complaint having been made by a patient or any particulars having been provided. That is how the legislative scheme is designed. It is not relevant on appeal for us to consider the time taken to investigate these matters or the fact that no formal complaint has been made. Our role is merely to consider the s 150 panel's decision and come to our own conclusion based on the relevant evidence before us. 8. In accordance with these conclusions, it is appropriate to take some action for the protection of the health and safety of Dr Schwartz's future patients. We do not agree with Dr Boffa that the imposition of further conditions will protect Dr Schwartz's patients. When giving that opinion, Dr Boffa was not aware that Dr Schwartz had failed to comply with such a condition in the past. Given the denial in his statement that the combination of fentanyl and promethazine is conscious sedation, we have no confidence that he will comply with such a condition in the future. The risk to the health and safety of future patients means that urgent action is required. 9. On this basis alone, we confirm the decision of the Council to suspend Dr Schwartz's registration with effect from 5 pm on 18 June 2021. 10. Below we briefly address the other concerns the PRP highlighted, which the Council addressed in the s 150 hearing. We do not consider those matters, either alone or in combination, to justify suspension of Dr Schwartz's registration. Incomplete excision and referral Summary 1. Another issue before the Council was the record keeping and clinical management of a patient, MD. Based on the clinical notes and the transcript of the s 150 hearing, we find that Dr Schwartz performed several excisions of BCC's (basal cell carcinomas) for patient MD. Two of those excisions, one in March 2014 and one in March 2021, were "incomplete". For the second excision, the pathology specimen was not labelled as to the site from which it was removed. There was no record of any communication to MD as to the outcome of the pathology nor did the notes record any follow up with the patient or future management plans. Dr Schwartz's evidence 1. Dr Schwartz told the s 150 panel that between 10%-20% of excisions he does are incomplete and require follow up. In this case, he did not follow up MD himself but says he referred him for further management to a "skin cancer specialist". Dr Schwartz described this person as a surgeon. Later he identified that person as Dr Valliappan. However, there is no referral letter in the notes and Dr Valliappan is not a surgeon, he is a general practitioner who works in the same medical practice as Dr Schwartz. Dr Schwartz said that he "would hope that the skin cancer specialist would have sent me back a letter" but does not know whether there was any follow up correspondence. Dr Schwartz repeatedly said that he could not answer the questions he was being asked because he did not have his computer in front of him to check his own records and had not had enough time to prepare. Expert evidence 1. Dr Boffa's view is that Dr Schwartz appropriately acknowledged and managed the not uncommon problem of "involved margins" by re-excision and referral. The only failing was not knowing the outcome of final disposal, and that is a shared failing between doctor and patient. According to Dr Boffa, Dr Schwartz had a robust tracking system in place for tracking pathology results and did not fail to pick up on the inadequate excision. Dr Boffa's view was that: While medical practice software assist in tracking pathology results, they do not do so for specialist letters in response to referrals. The most common system is to ask the patient on next review and if they do not re-present, the matter rests on the partnership between doctor and patient – in practical terms all specialist referrals could not be tracked without computerised means, which are not widely available. 1. Dr Boffa says he was under the impression that Dr Schwartz had a "robust tracking system" because he acted on pathology results either by asking the patient to return or by referring the patient to someone else. The tracking system only works if the doctor enters the relevant data. In any case, as Dr Schwartz ultimately admitted, he did not refer this patient to a specialist. Finding 1. Dr Schwartz carried out two incomplete excisions and failed to refer this patient to a specialist. We are not satisfied that it is appropriate to take any urgent action to protect the health and safety of any person, nor is any action otherwise in the public interest. Inadequate notes and unlabelled specimen for patient MD Summary 1. Dr Schwartz's response to the s 150 panel when questioned about the unlabelled pathology specimen was that it is not a common occurrence but "mistakes do happen". 2. The PRP made the following comment: The notes for MD show he had an excision of a BCC but there is no clear indication as to site, size or clinical features. The notes refer to both a lesion from '"the scalp' and again 'left later temple'. Additionally, the histopathology result states that the 'specimen was unlabelled as to site'. 1. The transcript of the s 150 hearing records Dr Schwartz agreeing that his notes do not include a description of the site, size or clinical features of the BCC. Expert evidence 1. Dr Wilson expressed the following view about this conduct: The lack of description of the lesions and incomplete labelling of the specimen pathology in March 2021 could have led to confusion about what part of the body the sample was taken from and could have adversely affected management. The lack of comprehensive documented treatment plan after each excision would have made it difficult for another doctor to easily continue management. 1. When giving evidence, Dr Wilson reiterated that there was not enough information in the clinical notes to determine whether this patient could be at risk. In particular, when a lesion is incompletely excised one would expect the treating doctor to record any follow up in the notes. 2. As to the specimen being unlabelled as to site, Dr Wilson agreed that confusion would only arise if more than one specimen had been taken and both were not from the left lateral temple. As this was not the case here, there was no real potential for confusion. It was put to Dr Wilson that there was no evidence of any adverse outcome from any of these practices. While she agreed with that proposition, she emphasised that we simply do not know the outcomes. 3. Dr Wilson's comment about poor documentation was as follows: Poor documentation is known to increase risk of hospital admission, failure of follow up, increased costs and medication errors. Dr Schwartz's poor documentation potentially leaves patients at risk. It is not always clear what treatment patients have had and Dr Schwartz doesn't appear to remember himself what was done and not done. The notes make it difficult for other practitioners to take over care and this means that a task needed to be undertaken may either not be undertaken or unnecessarily repeated. 1. Dr Wilson's overall opinion about the management of this patient was as follows: Inadequate management of skin lesions leave patients at risk of potentially serious complications including untreated skin cancer with risk of local and distant spread. 1. When questioned about this opinion Dr Wilson agreed that, excluding the unlabelled pathology request and the brevity of Dr Schwartz's notes, there was no evidence of inadequate management of this patient's BCCs. Finding 1. The unlabelled specimen and inadequate note taking are inappropriate. However, we are not satisfied that that conduct justifies urgent action to protect the health and safety of any person, nor is any action otherwise in the public interest. Limited use of dermatoscope Summary 1. In 2017, the PRP raised with Dr Schwartz his use of a dermatoscope. A dermatoscope is a type of handheld illuminated magnifying device which allows a practitioner to see skin lesions in greater detail. Dr Schwartz told the s 150 panel that he has used it more frequently since 2017, but not for BCCs or solar keratoses which he says he can detect with the naked eye. He will use a dermatoscope when he has doubts about the lesion and wants to assess shape or colour. He said that he does use it routinely where he believes it is going to give him additional information. Expert evidence 1. Dr Wilson's view is that Dr Schwartz's "intermittent use of dermatoscopy may have led to less accurate diagnosis with missed diagnosis of malignant lesions and overuse of biopsy and excision for benign lesions". 2. Dr Boffa's only criticism of Dr Schwartz's use of a dermatoscope was that he should record that he has used it in his clinical notes so that colleagues know the level of reliability and accuracy of the observations he has made. He said that BCC and SCCs (squamous cell carcinoma) do not generally require a dermatoscope, but it is good practice to use one. Finding 1. We accept from Dr Wilson that a practitioner should use a dermatoscope to assess all visible lesions that cannot be confidently diagnosed, not just pigmented ones. While that is best practice, Dr Schwartz says he does use it "when he has doubts on the diagnosis or wants to assess shape and colour." We are not satisfied that it is appropriate to take any urgent action to protect the health and safety of any person, nor is any action otherwise in the public interest. Contraceptive implant and consent Summary 1. To prevent pregnancy, a contraceptive implant can be inserted under a woman's skin on the inside of the arm. The brand Implanon NXT is used in Australia and is effective for up to three years. The medical records for patient SR contain a consent form dated 6 June 2018 regarding the insertion of an implant. 2. There are factual issues. The first is whether Dr Schwartz was using the current consent form, the second is why the patient's signature is not on the consent form and the third is whether Dr Schwartz was using the correct procedure to insert the contraceptive implants. Dr Schwartz's evidence 1. Dr Schwartz told the Council delegates that the consent form he used on 6 June 2018 was his 'old one', not the College of GPs form with appropriate details for a consent. Following a practice review in 2017, he says he has been using the new form. He did not have a new form to show the Council delegates because he was at home. He agreed to forward the new one to them. 2. The form contained Dr Schwartz's signature but not that of the patient. Dr Schwartz could not explain to the s 150 panel why it was not signed, except to say that it was not signed because he also used the College of GPs consent form which could still be in his records. In our view, this explanation is highly unlikely to be true. 3. Dr Schwartz's records show that in March 2021, nearly 3 years after inserting a contraceptive implant into SR's arm, he removed it. His notes record that the implant was "removed with much difficulty because it was very deep". When questioned about this entry by the s 150 panel, Dr Schwartz said he does not know why he wrote that because he does not have access to his notes. He suggested that the implant may have worked its way down into the subdermal layer and that is why he needed to put in a suture. He said that was a normal process. 4. Dr Schwartz made a similar note in SR's file after removing an implant 6 years earlier. The note for 1 July 2015 is "implanon removed from left arm with difficulty as quite deep in the tissue". 5. He told the s 150 panel that he now inserts the implant between the triceps and bicep muscles. The Council's conclusion was that Dr Schwartz has continued to insert implants between the biceps and triceps despite being told by the PRP in 2017 that the current advice from the manufacturer was to place the implant over the triceps. Dr Schwartz denied inserting the implant incorrectly and suggested that there is "a lot of movement in the patient's body" and "it's gone to the deeper subdermal layer". Expert evidence 1. In Dr Boffa's opinion, consent is normally obtained verbally, and the consent form is a protective device for the doctor performing an invasive procedure. Inappropriate use will harm the doctor, not the patient. 2. In Dr Boffa's opinion: Deep insertion was more common with the older insertion device than it is now with the new one that tends to prevent too steep an insertion angle although I agree rods have been known to migrate. He removed the rods without incident and I have no adverse comment to make. 1. Dr Boffa agreed that Dr Schwartz may have been using an outdated practice in relation to the positioning of the implant but added that they can become deep even using proper technique. 2. In Dr Wilson's view, it is concerning that there is no evidence that Dr Schwartz changed his insertion protocols and positioning of the implant despite the fact that the issue was raised with him in 2017. Conclusion 1. There is insufficient evidence to find that Dr Schwartz was using an outdated method to insert the implant. 2. The only reference in Dr Schwartz's clinical notes to implant insertion on 6 June 2018 is the words "wishes replacement of implanon". There is no record that a new implant was inserted. The s 150 panel identified two possibilities. Either Dr Schwartz did not insert a new implant on that day, despite completing and signing the checklist on the consent form, or he did replace the implant and did not record that procedure in his notes. We agree that they are the two options. 3. In either case, Dr Schwartz's records are inadequate, incomplete and confusing. He advised that he has since updated his procedures and now uses the form recommended by the Royal Australian College of General Practitioners. However, he was told by the PRP assessors in November 2017 about this form. 4. There is no record in the notes for SR of any discussion by Dr Schwartz on the two occasions when he found it difficult to remove the implants. 5. While these are all shortcomings in Dr Schwartz's record keeping and clinical practice, we are not satisfied that it is appropriate to take any urgent action to protect the health and safety of any person, nor is any action otherwise in the public interest. Performing surgery on patients with high blood pressure Summary 1. The PRP expressed concerns that Dr Schwartz was performing surgery on patients with high blood pressure readings. For example, he performed abdominal liposuction on a patient, AK, who had a pre-operative blood pressure of 165/65. Prior to a second procedure six weeks later, the patient's blood pressure was 149/95. Dr Schwartz also performed a blepharoplasty on a patient, BG, when she had a preoperative blood pressure of 151/91. Dr Schwartz told the medical Council delegates at the s 150 hearing that his cut off for commencing a surgical procedure would be a blood pressure not above 130/95. Patients AK and BG had blood pressure readings higher than that. Expert opinion 1. According to Dr Wilson, there is an increased risk of complications related to hypertension during surgery including perioperative myocardial ischemia (lack of oxygen to the heart muscle). She concedes that liposuction and blepharoplasty may still proceed with hypertension but, ideally, hypertension should be stabilised prior to elective surgery. 2. Dr Boffa does not consider the blood pressure readings to be medically significant. Conclusion 1. In our view, these blood pressure readings are not particularly significant in otherwise well patients. We are not satisfied that it is appropriate to take any urgent action to protect the health and safety of any person, nor is any action otherwise in the public interest. Medicare billing practices Summary 1. Dr Schwartz's billings covered an 18 month period from 1 March 2018 to 28 August 2019. The PRP was concerned about Dr Schwartz billing Medicare for long consultations with patients before they underwent cosmetic procedures. The PRP also expressed concern that Dr Schwartz had billed Medicare for consultations with family members and on two occasions, for himself. We have not canvassed the issue of Dr Schwartz billing Medicare for so-called research purposes as the evidence about this practice is less definitive. 2. A document published by the Australian Government with the title "Medicare Benefit Schedule" GN. 13.33 lists services that do not attract a Medicare benefit. That list includes "non-therapeutic cosmetic surgery", "professional services rendered by a medical practitioner to dependants or partners or a partner's dependants" or the "issue of repeat prescriptions when the patient does not attend the surgery in person". In several instances, Dr Schwartz claimed a benefit for those kinds of consultation when he was not entitled to do so. Dr Schwartz's evidence 1. Dr Schwartz told the Council delegates that his current practice is not to bulk bill for the initial cosmetic surgery consultation. He said he was told by a review panel three and a half years ago that he cannot bulk bill, so he does not charge for the initial consultation. He only charges for the procedure. In his statement, Dr Schwartz repeated that evidence. 2. For himself and his relatives, during a 17 month period, Dr Schwartz billed for his wife 17 times, for his father in law six times and for himself twice. Dr Schwartz's response to the Council delegates was that those billings were for referrals to specialists, writing a script or checking a response from a specialist. In his statement, Dr Schwartz was more specific. He stated that the only instances where Medicare was billed was for consultations where he provided a prescription or a pathology request. He does not mention that he cannot claim for repeat scripts where the patient does not attend the surgery in person. His understanding is that when a patient is referred to a specialist the referral must come from a GP and so Medicare is to be billed. 3. Dr Schwartz acknowledged in his statement that he should not have billed Medicare for services for himself, his family or for cosmetic surgery consultations. Expert evidence 1. Dr Boffa's view is that the deficiencies in Medicare billing are substandard medical practice but not of a nature detrimental to the health of patients or the public. 2. As for billing Medicare for prescribing finasteride (a treatment for baldness) to himself, Dr Wilson's opinion is that it is "extraordinary to think of charging for a consultation for your own care". Dr Wilson was also critical of Dr Schwartz charging Medicare for billing for services that are not covered by Medicare including treating family members. Conclusion 1. Even if Dr Schwartz is no longer billing Medicare for the initial consultation for cosmetic surgery, he admits that he did so in the past. It is correct that a patient cannot claim a rebate from a specialist unless there is a referral from a general practitioner, but the GP is not required to bill Medicare for the writing of the referral. Dr Schwartz is either ignorant of the circumstances in which he is entitled to bill Medicare or he has deliberately made claims he knows he is not entitled to make. Even if he is ignorant, it is his responsibility to ensure that he does not claim for services which do not attract a benefit. 2. It is relevant that the last cited instance of inappropriate billing was in August 2019, two and a half years ago. We have no evidence of any inappropriate billing since that time. The Council submitted that because of Dr Schwartz's 40 years of experience as a GP, he should know how to bill Medicare correctly. We agree with Dr Boffa that incorrect billing does not directly affect patient health or safety, but it does raise an issue of public interest. There may be circumstances where alleged Medicare fraud justifies immediate suspension of a practitioner's registration in the public interest. But the scale of the allegations in this case is relatively small. Billing Medicare for services that he is not entitled to bill for, may leave Dr Schwartz open to prosecution for Medicare fraud. But that conduct does not pose a direct risk to the health or safety of his patients, nor are we satisfied that any action is appropriate in the public interest. Costs 1. The Council has been successful in these proceedings and has applied for Dr Schwartz to pay its costs. Dr Schwartz has also applied for costs on the basis that the Council should not have pursued the concerns other than breach of the condition on Dr Schwartz's registration. 2. Clause 13 of Schedule 5D of the National Law gives the Tribunal power to award costs. 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013. 1. In the normal course, the successful party is entitled to their costs if there is no disentitling conduct. Defending the Council's decision on each basis on which it was decided is not disentitling conduct. Dr Schwartz should bear the Council's costs of these proceedings as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Act 2014 (NSW). Orders 1. The decision of the Medical Council dated 20 July 2021 to suspend Dr Schwartz's registration with effect from 5 pm on 18 June 2021, is confirmed. 2. Dr Schwartz is to pay the Medical Council's costs of these proceedings as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Act 2014 (NSW). ********** 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: 25 July 2022