Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Goyer v Medical Council of New South Wales [2022] NSWCATOD 102 Hearing dates: 11 - 12 May 2022 Date of orders: 7 September 2022 Decision date: 07 September 2022 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr A Reid, Senior Member Dr G Yeo, Senior Member J Houen, General Member Decision: (1) A reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) is made in respect of Thomas Clement Goyer ('the practitioner'), subject to the following conditions being imposed upon his registration: (a) The practitioner must obtain the approval of the Medical Council of NSW ('the Council') prior to changing the nature or place of his practice. (b) The practitioner must restrict his practice to minor (non-surgical) cosmetic medical procedures as defined in the Medical Board of Australia's 'Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures'. (c) The practitioner must submit to an audit of his 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 his recommencement of medical practice and subsequently from time to time as may be required by the Medical Council of NSW. (ii) the auditor is to assess the practitioner's compliance with good medical record keeping standards, legislative requirements and compliance with the conditions to which the practitioner's registration is subject, (iii) the practitioner is to authorise the auditor to provide the Medical Council of NSW with a report on the auditor's findings. (iv) the practitioner is to pay all costs associated with the audits and any reports of the audits. (d) The practitioner may conduct consultations with patients in person only. The practitioner may not conduct any telephone or video consultations with any patient. (e) The practitioner is not to supervise or train any medical practitioner or medical student in any context. (f) The practitioner is not to possess, supply, administer or prescribe: (i) phentermine, (ii) diethylpropion, (iii) human chorionic gonadotropin, (iv) hormone replacement therapy and androgen modifiers. (g) The practitioner will practise under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the relevant review body. (i) The terms of the Medical Council of NSW's Compliance Policy – Supervision are varied so that: (A) the practitioner is required to meet with his Council approved supervisor fortnightly; (B) the practitioner must authorise the Council approved supervisor to forward a report to the Council (in a Council approved format) every month. (ii) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (A) clinical management and patient outcomes, (B) appropriate prescribing practices, (C) medical record documentation, (D) compliance with conditions, (E) progress with return to practice, (F) ethics in medical practice. (iii) the practitioner must authorise the Medical Council of NSW to provide the nominated and approved supervisor with copies of the conditions on the practitioner's registration, and of the decision of the Civil and Administrative Tribunal of New South Wales which resulted in the imposition of this condition. (iv) The practitioner must not practise unless and until a supervisor has been approved in writing by the Medical Council of NSW. (h) The practitioner must complete within 12 months of 7 September 2022 the Ethics Counsel Program for Health Professionals organised by the Ethics Centre and: (i) within two months of 7 September 2022, the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the Ethics Counsel Program for Health Professionals. (ii) within one month of completing the Ethics Counsel Program for Health Professionals, the practitioner must provide to the Medical Council of NSW documentary evidence that he has satisfactorily completed the Program, (iii) the practitioner is to pay all costs incurred in meeting this condition, provided that, in the event that the Ethics Counsel Program for Health Professionals is unavailable, the practitioner must, within two months of 7 September 2022 propose to the Medical Council of NSW a similar Ethics course as an alternative course and, in the event that the Medical Council of NSW approves the proposed alternative course, the practitioner may undertake that proposed alternative course in accordance with the provisions of this condition, in fulfilment of this condition. (i) The practitioner must, at his own expense, within one year of 7 September 2022 undertake both a course in relation to allergies and a course in relation to diabetes. Within one month of completing each of those courses, the practitioner must provide to the Medical Council of NSW documentary evidence that he has satisfactorily completed both courses. (j) Within 6 months of being approved by the Medical Council of NSW to commence employment, the practitioner is to spend a total of 4 observation sessions with his approved supervisor. A session is a period of at least 2 hours. (i) Initially, the practitioner is to spend a total of 2 sessions directly observing the supervisor conduct consultations with his or her patients. (ii) The supervisor is then to spend a total of 2 sessions directly observing the practitioner conduct consultations with his patients. (iii) When observing these consultations, the practitioner and supervisor are to consider such matters as: clinical performance, clinical decision making and judgement, treatment and referral of patients with mental health disorders, appropriate prescribing practices, patient follow-up and clinical outcomes. (iv) Within 4 weeks of the completion of the observation sessions, the practitioner is to provide a report to the Medical Council of NSW detailing the dates of attendance, what he learnt and how this will impact on his practice. (v) Once the practitioner's report is written and before it is returned to the Medical Council of NSW, he is to ensure that the supervisor reviews the practitioner's report and that the supervisor provides his or her own report to the Medical Council in which he or she comments on the content and authenticity of the practitioner's report, confirming the dates of attendance and setting out any concerns or other observations. The supervisor's report is to be provided to the Medical Council of NSW within 4 weeks of the completion of the observation period. (vi) The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports. (k) The practitioner must not prescribe for self-medication. (l) The practitioner must consult with a registered General Practitioner of his choice. The frequency of the consultations is to be determined by the treating General Practitioner. The practitioner: (i) is to authorise his General Practitioner to inform the Medical Council of NSW of any of the following: (A) any failure by the practitioner to attend a scheduled consultation, (B) termination of the doctor/patient relationship, (C) a significant change in the practitioner's health status (including a significant temporary change). (ii) must inform the Medical Council of NSW of the name of the General Practitioner and the address at which the General Practitioner practises. (m) The practitioner must attend for treatment by a registered psychologist of his choice. The frequency of the treatment is to be determined by the treating psychologist. The practitioner: (i) must authorise the treating practitioner to inform the Medical Council of NSW of each of the following: (A) any failure to attend for treatment, (B) the termination of treatment, (C) a significant change in the practitioner's health status (including a significant temporary change). (n) The practitioner must attend for review by a psychiatrist appointed by the Medical Council of NSW on a three monthly basis or as otherwise directed by the Medical Council of NSW. (o) The practitioner must attend a Review Interview arranged by the Medical Council of NSW on a three monthly basis or as directed otherwise by the Medical Council of NSW. (p) The practitioner must authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of the monitoring of compliance with these conditions. (q) The practitioner must provide evidence to the Medical Council of NSW, within 14 days of recommencing medical practise or changing his place of practice, that he has provided any practice or organisation in Australia at which he works with a copy of the full set of conditions to which his registration is subject at the relevant time. (r) The practitioner must authorise the Medical Council of NSW to notify any practice or organisation at which the practitioner works as a medical practitioner of any issues which arise in relation to the practitioner's compliance with these conditions. (s) In the event that the practitioner practises at any practice or organisation of which he is an owner, or the director of an owner, or of which his wife, or any first degree relative of his, is an owner or the director of an owner, the practitioner shall ensure that, within six months of him beginning to practise at that practice or organisation, the practice or organisation purchases, instals and uses for the generation and storage of all electronic medical records and the issuing of all prescriptions, software capable of recording and retaining the medical records of patients, with the appropriate measures to safeguard patient confidentiality, and capable of printing and recording prescriptions. (2) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (3) Sections 125, 126 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's place of residence is anywhere in Australia other than New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (4) The practitioner must pay the legal costs of the Medical Council of New South Wales in this matter, to be agreed or assessed. Catchwords: OCCUPATIONS — Medical practitioners — application for reinstatement of registration Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 Health Care Complaints Commission v Goyer (No 2) [2019] NSWCATOD 195 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Category: Principal judgment Parties: Thomas Clement Goyer (applicant) Medical Council of NSW (respondent) Representation: Counsel: P Dwyer (applicant) A Petrie (respondent) Solicitors: Specialist PTSD & Injury Lawyers (applicant) Health Professional Councils Authority (respondent) File Number(s): 2021/00255375 Publication restriction: Nil REASONS FOR DECISION 1. By order of the Tribunal (the 2019 Tribunal) made on 12 August 2019, the registration of Mr Goyer (hereinafter referred to as 'the applicant') as a medical practitioner was cancelled. Under s 149C(7) of the Health Practitioner Regulation National Law (NSW) ('the National Law') the applicant was prohibited from applying for the review of that decision for twelve months from the date of the order. 2. By application filed on 6 September 2021, under s 163A(1)(b) of the National Law, the applicant seeks the reinstatement of his registration as a medical practitioner. The application named the Health Care Complaints Commission ('the Commission') as the respondent, but the proper respondent is the Medical Council of New South Wales ('the Council'), and an order was made (on 24 September 2021), the effect of which was to substitute the Medical Council of New South Wales as the respondent. 3. At the hearing of the application, both parties tendered folders of documentary evidence, much of which related to the history of the matter leading up to the making of the application. The applicant's documents included, among other things, the applicant's statement of 23 February 2022, a report of Dr Paisley, psychiatrist, dated 23 February 2022, and the clinical notes of Dr Hurrell, treating psychologist, together with a report of Dr Hurrell, dated 12 February 2022. The applicant and Dr Paisley gave evidence. The respondent's documents included a report of Dr Samuels, psychiatrist, dated 24 February 2022. The Tribunal decisions of 12 August 2019 and 24 December 2019. 1. The 2019 Tribunal set out the following information about the applicant (Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 ('Goyer (No 1)') at [10]-[21]): The practitioner 10. The practitioner's statement only briefly deals with his professional career. His curriculum vitae, which is annexed to his statement, contains a very truncated professional history. The practitioner's professional history is explored by the Medical Council of NSW (the Council) in the reasons following a hearing under s 150 of the National Law and we repeat some of the material in those reasons about the practitioner's qualifications and experience. 11. Between 1997 to 2000 the practitioner says he undertook studies at JCU (James Cook University). 12. During 2001 to 2004 the practitioner engaged in medical studies at the University of Queensland. He obtained the degrees of MB.BS from that university in 2004. 13. After his graduation, the practitioner engaged in service in the Australian Army. 14. The practitioner was granted conditional registration on 16 January 2006. His registration was subject to the condition that he undertake an internship from 16 January 2006 to 21 January 2007. Between 27 August 2007 to 19 February 2008 the practitioner was not registered. From 20 February 2008 to 2 November 2008 the practitioner was re-registered as an intern. From 3 November 2008 to 20 November 2008 the practitioner was not registered. From 21 November 2008 the practitioner was granted general registration in New South Wales. Since 22 March 2017 the practitioner's registration has been subject to conditions including a condition limiting his practice to minor (non-surgical) cosmetic medical procedures. 15. In 2006 the practitioner commenced an internship at Hornsby Hospital. After encountering professional difficulties at that hospital which resulted in referrals to the then Medical Board of NSW he thereafter completed his internship at John Hunter Hospital. The practitioner determined to pursue a career in non-surgical cosmetic medicine. 16. Between 2009 and 2015 the practitioner worked on a part-time basis at Concept Cosmetic Medicine with Dr Neal Hamilton. During the same period he also worked on an unspecified part-time basis at the Australian Medical Institute (AMI). AMI provided telemedicine (consultations by telephone) for men experiencing conditions such as erectile dysfunction and premature ejaculation. We note that the practitioner does not list his work at AMI in his curriculum vitae. 17. Between 2009 to 2011 the practitioner worked at Laser Clinics Australia. 18. The practitioner asserts he commenced his own practice in 2010 and in 2013 set up Sydney Cosmetic Clinic. 19. The practitioner's curriculum vitae discloses between 2010 and 2017 he worked at Eden Laser Clinics. 20. In these proceedings the practitioner gave evidence that he operated the Sydney Cosmetic Clinic at a number of sites. He asserts that the Sydney Cosmetic Clinic changed its name in 2018, and he now practises at "The Skin Project" at North Sydney. 21. The practitioner asserts he is a Fellow of the Cosmetic Physicians College of Australia and a member of a multi-disciplinary body, the Australian Academy of Anti-Ageing Medicine. 1. The 2019 Tribunal summarised the complaints against the applicant in the following way (Goyer No 1 at [2]-[3]): 1. The complaints relate to a period in 2015 to 2017 when the practitioner was the Medical Director of a business operated under the name Medical Weight Loss Institute (MWI). MWI provided its services using a model of "telemedicine". Patients were not seen in person but conferred with MWI staff by telephone or "online". The complaints agitated by the HCCC involve the practitioner's treatment and prescribing for 25 patients who were seeking to lose weight. The practitioner's prescribing included prescriptions for compounded phentermine capsules, diethylpropion capsules, sublingual drops of Human Chorionic Gonadotrophin (hCG) as well as injectable hCG. It is asserted by the HCCC that the practitioner is guilty of both unsatisfactory professional conduct and professional misconduct, as defined in the Health Applicant Regulation National Law (the National Law). 2. It is also asserted by the HCCC that the practitioner failed to maintain proper clinical records as required under the Health Practitioner Regulation (NSW) Regulation 2010 (repealed) (the regulation). 1. The applicant was a director and shareholder of Medical Weight Loss Institute ('MWI') from its incorporation in 2015. 2. At the hearing before the 2019 Tribunal, it was alleged in Complaint 1 (a complaint of unsatisfactory professional conduct), particular 1, that the applicant failed to provide appropriate care and treatment for patients at MWI in that, between 1 January 2015 and 26 February 2016, the applicant provided 462 prescriptions for compounded phentermine capsules (phentermine 30mg, chromium picolinate 500mcg and 5-hydroxytryptophan 50mg), to assist patients with weight loss. It was alleged that this prescribing occurred in circumstances where the compounded preparation does not have an evidence-based therapeutic purpose in Australia. Further, the applicant did not consult specialist colleagues with relevant experience, he did not have sufficient knowledge and expertise in relation to the treatment and management of obesity and there was insufficient evidence to support his rationale for this prescribing, which was that compounded phentermine was more effective and had less side effects than Duromine. 3. It was alleged in Complaint 1, particular 2 that, between 1 January 2015 and 26 February 2016, the applicant failed to provide adequate care and treatment for patients at MWI in that he provided 232 prescriptions for diethylpropion capsules (75mg) and compounded diethylpropion capsules (chromium 400mcg and diethylpropion 75mg) to assist patients with weight loss. It was alleged that this prescribing occurred in circumstances where the applicant did not consult specialist colleagues with relevant experience, he did not have sufficient knowledge and expertise in relation to the treatment and management of obesity and there was insufficient evidence to support his rationale for this prescribing, which was that the drugs prescribed assisted with anxiety and insomnia and had less side effects than compounded phentermine. 4. It was alleged in Complaint 1, particular 3, that, between 1 January 2015 and 26 February 2016, the applicant failed to provide appropriate care and treatment for patients at MWI in that he provided 319 prescriptions for sublingual drops of Human Chorionic Gonadotrophin ('hCG') (125iu/O.25ml) and 5 prescriptions for injections of hCG (150iu/0/25ml) to assist patients with weight loss. It was alleged that this prescribing occurred in circumstances where there was no evidence to support the use of hCG as a weight control medication. Further, the applicant did not have sufficient knowledge or expertise in relation to the treatment or management of obesity, he lacked specialist qualifications in endocrinology, gynaecology or urology, he did not consult with specialist colleagues with relevant experience, and hCG has been associated with an increased risk of strokes, coronary artery dissection due to fibromuscular hyperplasia, lower extremity DVT and pulmonary embolism and the induction of psychosis. 5. The applicant admitted the elements of Complaint 1 set out above, and the 2019 Tribunal found the applicant guilty of Complaint 1, and, therefore, guilty of unsatisfactory professional conduct. 6. Complaint 2 to Complaint 26 were each complaints of unsatisfactory professional conduct. They relate to Patient A to Patient Y respectively. In respect of each of the 26 patients referred to, the Complaints alleged (paraphrased and in summary) that: 1. The applicant failed to obtain an adequate medical history prior to prescribing, 2. The applicant failed to perform an adequate examination prior to prescribing, 3. The applicant failed to provide appropriate care and treatment for the patient in the course of prescribing, 4. The applicant failed to appropriately monitor the patient after prescribing in that he did not monitor or assess pulse, blood pressure or change in weight, 5. The applicant failed to obtain informed consent from the patient prior to prescribing, because he did not provide adequate information from the patient and ensure that the patient understood the risks and benefits of the treatment and the quality of evidence supporting it, 6. The applicant failed to engage with the patient's regular treating general applicant to ensure co-ordinated care, 1. In some of Complaints 2 to 26, it was also alleged that the applicant failed to order appropriate investigations in relation of the patient prior to prescribing, generally relating to the failure to order a pregnancy test for a female patient because the taking of Phentermine is contraindicated in pregnancy. 2. A further 'particular' was pleaded with respect to most of Complaints 2 to 26, to the effect that two or more particulars, pleaded with respect to the Complaint, taken together, demonstrated a course of conduct which justified a finding of unsatisfactory professional conduct. 3. We have set out the broader level allegations in Complaints 2 to 26. Each of these was elucidated in sub-particulars with respect to each patient. Although the 2019 Tribunal found that several of those sub-particulars had not been established, each particular was found to have been established with respect to each patient. The detailed findings are set out in Goyer (No 1) at [40] to [556], and we have had regard to those detailed findings. 4. Complaint 27 alleged that the applicant was guilty of professional misconduct within the meaning of s 139E of the National Law. 5. The 2019 Tribunal said, in Goyer (No 1) at [563]-[570]: 563. We find that the practitioner's conduct as particularised in Complaint 1 is of itself sufficiently serious to warrant the suspension or cancellation of the practitioner's registration. The practitioner prescribed without any proper research or other basis for the drugs he prescribed, particularly the compounded medications, one of which had been removed from sale in Europe and Australia because of adverse side effects. He continued to prescribe that drug while supplies were available. 564. The HCCC also rely on the particulars set out above to cumulatively lead us to a finding of professional misconduct. We have set out our findings in respect of each particular of the complaint. It is unnecessary that we repeat each of our findings which we have taken into consideration in reaching a finding that the practitioner is guilty of professional misconduct. 565. We find that the practitioner's conduct in prescribing compounded stimulant medication for this cohort of particularly vulnerable patients, without a physical examination, was totally inappropriate. Further, his conduct in prescribing was particularly reprehensible in the case of those patients whose own disclosure in nurse consultations revealed medical conditions which contraindicated such prescribing such as Patients I and S who suffered from hypertension. 566. We also find that the practitioner had, and still has, a completely inadequate understanding of what is required by the regulation. His note keeping was, in every case, a standard proforma entry. While a proforma set of questions may provide an appropriate and convenient check list of some standard questions to be asked by a practitioner, in the case of many female patients in these proceedings, it is clear that he did not investigate or at least record any information about contraception or pregnancy. His mere "history confirmed" does not disclose any proper discussion with a patient about the risks and benefits of the medication, or assessment of their previous weight loss attempts. 567. We were not persuaded by the practitioner's reliance on other employees of MWI to "fill the gaps" in his patient care. It was clear from the practitioner's evidence that initially MWI did not employ nurses, and overseas personnel were used in the latter stages of the operation of MWI. Patient S's medical information was provided not to a nurse, but a program manager. The practitioner was not engaged in any oversight of the MWI employees or the advice they provided. Although he initially worked from premises at King's Cross (referred to as Potts Point in the PRU report) used by MWI his evidence was clear that for the majority of the operation of MWI he conducted his role as Medical Director from his own premises at North Sydney and accessed information from a record keeping system kept "in the cloud" that was unreliable. 568. The overall impression from the practitioner's evidence was that his patient consultations were pro-forma and uninformative to the patient. Our conclusions are based on the unchallenged patient statements before us, and the unreliability of the practitioner's evidence. It is noteworthy that he frequently answered questions by saying the circumstances were "too complex" to explain, or that he had no recollection of patients, or events. 569. We also found that the practitioner whilst at MWI paid scant or no regard to his obligation to obtain an informed consent from patients before prescribing stimulant medication. That obligation was not fulfilled by recommending, if he did so, that a patient consult their own general practitioner. As is apparent from our reasoning in respect of this particular, which is repeated for all 25 patients, we did not find the practitioner was absolved by providing an information sheet, if he in fact did so. Patient S's experience was he received a "welcome booklet". The information in that booklet, even if received by every patient, did not fulfil the practitioner's obligations to ensure a proper and real consent from each patient. 570. In summary, we are satisfied that complaint 1 of itself justifies a finding of professional misconduct. Further and in addition, we are satisfied for the reasons given in respect of the particulars we have found established, when considered cumulatively, those established particulars warrant a finding that the practitioner's conduct is so serious that it could lead to the suspension or cancellation of his registration. We are satisfied that complaint 27 is established. 1. In Health Care Complaints Commission v Goyer (No 2) [2019] NSWCATOD 195 ('Goyer (No 2')), on 24 December 2019, the 2019 Tribunal made an order cancelling the applicant's registration as a medical practitioner. The Tribunal made a further order prohibiting the applicant from making an application for review under s 163A of the National Law for twelve months from the date of the order. 2. In Goyer (No 2), the 2019 Tribunal indicated that it had significant doubt about the truthfulness and integrity of the applicant, which cast doubt upon the extent to which the 2019 Tribunal could be satisfied that his professed insight and acceptance of his wrongful conduct was genuine (see Goyer (No 2) at paragraphs 63-66). The Tribunal was concerned that the applicant had engaged in behaviour which was characterised as arrogant, obstructive and unco-operative. The application for reinstatement 1. In the application which is the subject of this matter, which was filed in the Tribunal on 6 September 2021, the applicant seeks the following order: An order that the Applicant's registration as a medical practitioner be reinstated, pursuant to s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) (the National Law). 1. The application sets out the following grounds: On 12 August 2019, this Tribunal found the Applicant guilty of professional misconduct, within the meaning of s 139E of the National Law. On 24 December 2019, this Tribunal ordered that the Applicant's registration as a medical practitioner be cancelled. Additionally, pursuant to s 149C of the National Law, an order was made prohibiting the Applicant from making an application for review under s 163A of the National Law. Copies of the Tribunal's decisions of 12 August 2019 and 24 December 2019 are attached to this Application (and marked Annexure "A" and Annexure "B" respectively). Pursuant to s 163A(1)(b) of the National Law, the Applicant seeks a review of the Tribunal's cancellation order of 24 December 2019. Further, the Applicant seeks an order pursuant to s 163(1)(c) of the National Law that his registration be reinstated. The Applicant submits that he is now a fit and proper person to be engaged in the medical profession as a medical practitioner. The Applicant submits that he can be trusted to practise in a manner that conforms to the professional standards expected of a health practitioner, and in a manner that presents no risk to the safety of the public. The Applicant will file and serve written submissions and evidence in support of this Application in due course, including proposed conditions on the registration. Provisions of the National Law 1. Pursuant to s 163A of the National Law, a person may apply for a review of a 'relevant order', which includes an order that the person's registration be cancelled. An application may not be made while the terms of the order provide that an application for review may not be made (see s 163A(3)(a)). We note that the twelve month period, within which the 2019 Tribunal specified that a review application may not be made, expired on 24 December 2020, so the applicant was eligible to apply for a review of the cancellation of his registration when he filed this application. 2. After conducting an inquiry into an application for review under s 163A of the National Law, in a case where the registration has been cancelled, the Tribunal may dismiss the application (s 163B(1)(a)) or make a reinstatement order (s 163B(1)(c)). 3. The National Law provides, in s 163B(3), (3A) and (4): (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if— (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. 1. The purpose of a review, in a matter of this type, is to determine the appropriateness of the order cancelling the registration continuing in force as at the time of the review (s 163C(1) National Law). It is not the purpose of the review to reconsider the decision to cancel the registration or to reconsider any findings made in connection with the making of that decision (s 163C(2) National Law). 2. In conducting this review, we bear in mind the objective and guiding principle of the National Law, which is set out in s 3A: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note— This section is an additional New South Wales provision 1. The applicant bears the onus of demonstrating that he can be trusted to practise in a way that conforms to the professional standards expected of a medical practitioner and which presents no risk to the safety of the public or to the confidence of the public in the medical profession. The applicant must demonstrate that he is no longer unfit to be registered (see Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [18]-[19]). The standard of proof in relation to any fact relied upon is the balance of probabilities. The Applicant's evidence 1. In his statement, dated 23 February 2022, the applicant said that he had taken steps to address the issues outlined by the 2019 Tribunal in its decisions. He said that he had taken steps to remedy the defects identified in his professional practices and his personal characteristics. He recognised that the process of remedying the practices and traits which had been criticised would be an ongoing process. 2. The applicant said that he had come to an understanding of the defects of the operational model under which he conducted MWI. He understands how that business failed in providing safe and appropriate patient care. He accepts that his record keeping was inadequate. He accepts that the medication he was prescribing posed potential danger to patients. 3. The applicant said that he would never again engage in telemedicine and would never again adopt a "modality of practice that failed to place patient care and treatment at its core". 4. The applicant said that he commenced therapy with Dr Hurrell, a psychologist, in 2021. He has found his regular sessions with Dr Hurrell useful in providing insights into the character traits and conduct which contributed to the events which led to his deregistration. In his treatment with Dr Hurrell, he is also learning strategies which will assist him to function in his practice in a considerate, patient focussed way. The applicant stated his intention to continue in his treatment with Dr Hurrell for as long as she recommends that it continue. 5. The applicant apologised for the conduct which led to his deregistration. In his statement, and in his oral evidence, he demonstrated a detailed understanding of what went wrong at MWI, and expressed contrition and remorse. 6. We accept the applicant's evidence. We note that the applicant demonstrated that he has overcome, to a considerable extent, the defensiveness that served him so poorly at the 2019 Tribunal hearings. 7. Dr Hurrell provided a report dated 12 February 2022. Dr Hurrell said that the applicant has demonstrated a high level of commitment and motivation in relation to the therapeutic process. 8. Dr Hurrell said that she is confident that the applicant accepts and understands the seriousness of his prior misconduct and its connection to the character defects identified by the 2019 Tribunal. 9. In Dr Hurrell's opinion, the applicant is at low risk of repeating the kind of behaviour which led to his deregistration. The applicant has demonstrated increasing self-awareness and a willingness and ability to change for the better. 10. Dr Hurrell said that, although the applicant acknowledged that he had an over-reliance on alcohol at times in the past, he does not currently have a problem with alcohol. 11. We accept Dr Hurrell's evidence. She was not required for cross-examination. 12. Dr Paisley, a psychiatrist, undertook an independent evaluation of the applicant for the purposes of this matter and provided a report dated 16 February 2022. 13. Dr Paisley said that the applicant was able to describe accurately what went wrong in the events leading to his deregistration. The applicant was able to identify the potential adverse outcomes for patients which could have resulted from the applicant's previous practice. Dr Paisley said that the applicant appeared genuinely remorseful and did not minimise or attempt to justify his conduct in any way. Dr Paisley could not detect any arrogance or defensiveness. 14. Dr Paisley said: I consider that Mr Goyer's intention to return to non-surgical cosmetic medicine is appropriate provided he is subjected to ongoing supervision and restrictions. His supervisor will need to monitor his business practices, prescribing habits and ensure that his patients are adequately evaluated and monitored. His clinical records will need to be reviewed on a regular basis to ensure acceptable standards are met. Non-surgical medicine is generally considered to be a low-risk area of medical practice and serious adverse outcomes are unlikely. If these conditions are met, Mr Goyer could not pose any significant risks to patient health and safety. 1. Dr Paisley suggested that Category C supervision would be appropriate. 2. In cross-examination before us, Dr Paisley was questioned about the applicant's past substance use and said that the applicant does not presently suffer from a substance use disorder. Dr Paisley said that the applicant does not have a personality disorder 3. We accept Dr Paisley's evidence. The Council's Evidence 1. The Council provided an independent psychiatric report of Dr Samuels, dated 24 February 2022. Dr Samuels was not required for cross-examination. 2. Dr Samuels said that there was no clear cut evidence that the applicant is suffering from major depression, anxiety, psychosis or bipolar disorder. Dr Samuels acknowledged that the applicant may have had a Substance Use Disorder in the past, but Dr Samuels indicated that there is no evidence of current substance abuse by the applicant. 3. Dr Samuels acknowledged that the applicant was developing insight through his work with Dr Hurrell, and Dr Samuels recommend that the psychological treatment be on-going. Dr Samuels indicated that the applicant presented as being committed to ensuring that he never engages again in the kind of behaviour which could have an adverse impact on his professional practice. 4. Dr Samuels indicated that, if the applicant's practice was restricted to non-surgical cosmetic medicine, and if the applicant was supervised, audited and engaging in long-term therapy, any risk to the health and safety of any patient or the public would be addressed. 5. We accept Dr Samuel's evidence. Dr Samuels was not required for cross-examination. Consideration 1. The Council submitted that there was a basis for concern that the applicant would be professionally isolated should he resume practice. The applicant, in his statement, said there had been an adverse response to him from members of the profession after the 2019 Tribunal's decisions were published. However, the applicant also spoke of his current business association with two doctors which has resulted in the production and marketing of a skin care range, in association with the cosmetic clinic managed by the applicant from premises owned by him. He also spoke of the Cosmetic Physicians College of Australasia, through which he can get access to collegial support. 2. We are confident that the applicant will be able to access sufficient collegial support, if re-registered and restricted to non-surgical cosmetic procedures, to avoid becoming isolated to the degree that his judgment is compromised. His continued work with Dr Hurrell will also help with this. 3. The Council raised a concern that the applicant may experience financial difficulties which may lead him to fail to prioritise the health and safety of his patients. The applicant gave evidence that he services a sizeable mortgage and has a debt from the operation of his business. We find that the evidence fell well short of establishing that the applicant's financial position is problematic, and certainly did not go so far as to indicate that it may influence him not to practise with integrity. 4. The Council raised concerns about the applicant's skill level, given that he will not have practised for about two years by the time he is re-registered. The applicant, in oral evidence, pointed to his experience performing non-surgical cosmetic procedures from 2009-2019. He rejected the concern that his skills may have declined, but, through his counsel, offered to undertake an observership. 5. The Council raised a concern about the adequacy of the applicant's note taking and note keeping. 6. Having regard to Dr Samuel's report, the Council neither consented to nor opposed the applicant's application. The Council, however, sought to have the applicant's practice restricted to a hospital setting. 7. Having regard to all of the evidence, we find that the applicant has demonstrated that, as at the date of the hearing of this application, he is no longer unfit to be registered as a medical practitioner, as long as that registration is subject to certain conditions. Those conditions will include conditions regarding an observership and the making and keeping of medical records. 8. We are confident that the applicant can now practise in the area of minor (non-surgical) cosmetic medicine in a manner which does not compromise the health and safety of the public, or place at risk the maintenance of the confidence of the public in the medical profession. We find that the applicant is now capable of practising in minor (non-surgical) cosmetic medicine in a way which conforms to the professional standards expected of a medical practitioner, and is highly motivated to do so. 9. We have considered the Council's submission that the applicant should practise at first in a hospital setting, but, having regard to the applicant's practising history, we consider that the objects of the National Law will be better served by having the applicant practise in the area in which he has some depth of experience, which is non-surgical cosmetic medicine. 10. We determine that the applicant is entitled to a reinstatement order. Orders 1. We will make the following orders; (1) A reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) is made in respect of Thomas Clement Goyer ('the practitioner'), subject to the following conditions being imposed upon his registration: a) The practitioner must obtain the approval of the Medical Council of NSW ('the Council') prior to changing the nature or place of his practice. (b) The practitioner must restrict his practice to minor (non-surgical) cosmetic medical procedures as defined in the Medical Board of Australia's 'Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures'. (c) The practitioner must submit to an audit of his 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 his recommencement of medical practice and subsequently from time to time as may be required by the Medical Council of NSW. (ii) the auditor is to assess the practitioner's compliance with good medical record keeping standards, legislative requirements and compliance with the conditions to which the practitioner's registration is subject, (iii) the practitioner is to authorise the auditor to provide the Medical Council of NSW with a report on the auditor's findings. (iv) the practitioner is to pay all costs associated with the audits and any reports of the audits. (d) The practitioner may conduct consultations with patients in person only. The practitioner may not conduct any telephone or video consultations with any patient. (e) The practitioner is not to supervise or train any medical practitioner or medical student in any context. (f) The practitioner is not to possess, supply, administer or prescribe: (i) phentermine, (ii) diethylpropion, (iii) human chorionic gonadotropin, (iv) hormone replacement therapy and androgen modifiers. (g) The practitioner will practise under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the relevant review body. (i) The terms of the Medical Council of NSW's Compliance Policy – Supervision are varied so that: (A) the practitioner is required to meet with his Council approved supervisor fortnightly; (B) the practitioner must authorise the Council approved supervisor to forward a report to the Council (in a Council approved format) every month. (ii) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (A) clinical management and patient outcomes, (B) appropriate prescribing practices, (C) medical record documentation, (D) compliance with conditions, (E) progress with return to practice, (F) ethics in medical practice. (iii) the practitioner must authorise the Medical Council of NSW to provide the nominated and approved supervisor with copies of the conditions on the practitioner's registration, and of the decision of the Civil and Administrative Tribunal of New South Wales which resulted in the imposition of this condition. (iv) The practitioner must not practise unless and until a supervisor has been approved in writing by the Medical Council of NSW. (h) The practitioner must complete within 12 months of 7 September 2022 the Ethics Counsel Program for Health Professionals organised by the Ethics Centre and: (i) within two months of 7 September 2022, the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the Ethics Counsel Program for Health Professionals. (ii) within one month of completing the Ethics Counsel Program for Health Professionals, the practitioner must provide to the Medical Council of NSW documentary evidence that he has satisfactorily completed the Program, (iii) the practitioner is to pay all costs incurred in meeting this condition, provided that, in the event that the Ethics Counsel Program for Health Professionals is unavailable, the practitioner must, within two months of 7 September 2022 propose to the Medical Council of NSW a similar Ethics course as an alternative course and, in the event that the Medical Council of NSW approves the proposed alternative course, the practitioner may undertake that proposed alternative course in accordance with the provisions of this condition, in fulfilment of this condition. (i) The practitioner must, at his own expense, within one year of 7 September 2022 undertake both a course in relation to allergies and a course in relation to diabetes. Within one month of completing each of those courses, the practitioner must provide to the Medical Council of NSW documentary evidence that he has satisfactorily completed both courses. (j) Within 6 months of being approved by the Medical Council of NSW to commence employment, the practitioner is to spend a total of 4 observation sessions with his approved supervisor. A session is a period of at least 2 hours. (i) Initially, the practitioner is to spend a total of 2 sessions directly observing the supervisor conduct consultations with his or her patients. (ii) The supervisor is then to spend a total of 2 sessions directly observing the practitioner conduct consultations with his patients. (iii) When observing these consultations, the practitioner and supervisor are to consider such matters as: clinical performance, clinical decision making and judgement, treatment and referral of patients with mental health disorders, appropriate prescribing practices, patient follow-up and clinical outcomes. (iv) Within 4 weeks of the completion of the observation sessions, the practitioner is to provide a report to the Medical Council of NSW detailing the dates of attendance, what he learnt and how this will impact on his practice. (v) Once the practitioner's report is written and before it is returned to the Medical Council of NSW, he is to ensure that the supervisor reviews the practitioner's report and that the supervisor provides his or her own report to the Medical Council in which he or she comments on the content and authenticity of the practitioner's report, confirming the dates of attendance and setting out any concerns or other observations. The supervisor's report is to be provided to the Medical Council of NSW within 4 weeks of the completion of the observation period. (vi) The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports. (k) The practitioner must not prescribe for self-medication. (l) The practitioner must consult with a registered General Practitioner of his choice. The frequency of the consultations is to be determined by the treating General Practitioner. The practitioner: (i) is to authorise his General Practitioner to inform the Medical Council of NSW of any of the following: (A) any failure by the practitioner to attend a scheduled consultation, (B) termination of the doctor/patient relationship, (C) a significant change in the practitioner's health status (including a significant temporary change). (ii) must inform the Medical Council of NSW of the name of the General Practitioner and the address at which the General Practitioner practises. (m) The practitioner must attend for treatment by a registered psychologist of his choice. The frequency of the treatment is to be determined by the treating psychologist. The practitioner: (i) must authorise the treating practitioner to inform the Medical Council of NSW of each of the following: (A) any failure to attend for treatment, (B) the termination of treatment, (C) a significant change in the practitioner's health status (including a significant temporary change). (n) The practitioner must attend for review by a psychiatrist appointed by the Medical Council of NSW on a three monthly basis or as otherwise directed by the Medical Council of NSW. (o) The practitioner must attend a Review Interview arranged by the Medical Council of NSW on a three monthly basis or as directed otherwise by the Medical Council of NSW. (p) The practitioner must authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of the monitoring of compliance with these conditions. (q) The practitioner must provide evidence to the Medical Council of NSW, within 14 days of recommencing medical practise or changing his place of practice, that he has provided any practice or organisation in Australia at which he works with a copy of the full set of conditions to which his registration is subject at the relevant time. (r) The practitioner must authorise the Medical Council of NSW to notify any practice or organisation at which the practitioner works as a medical practitioner of any issues which arise in relation to the practitioner's compliance with these conditions. (s) In the event that the practitioner practises at any practice or organisation of which he is an owner, or the director of an owner, or of which his wife, or any first degree relative of his, is an owner or the director of an owner, the practitioner shall ensure that, within six months of him beginning to practise at that practice or organisation, the practice or organisation purchases, instals and uses for the generation and storage of all electronic medical records and the issuing of all prescriptions, software capable of recording and retaining the medical records of patients, with the appropriate measures to safeguard patient confidentiality, and capable of printing and recording prescriptions. (2) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (3) Sections 125, 126 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's place of residence is anywhere in Australia other than New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia (4) The practitioner must pay the legal costs of the Medical Council of New South Wales in this matter, to be agreed or assessed. ********** 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: 07 September 2022