Health Care Complaints Commission v Litchfield (No 2) [2022] NSWCATOD 171

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Litchfield (No 2) [2022] NSWCATOD 171 Hearing dates: On the papers Date of orders: 19 December 2022 Decision date: 19 December 2022 Jurisdiction: Occupational Division Before: Coleman SC ADCJ, Principal Member Dr J Aitken, Senior Member Dr E Bernardi, Senior Member Dr C Berglund, General Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Act the Tribunal dispenses with the requirement of a hearing of the proceedings. 2. The Tribunal orders the Respondent: (1) To obtain Medical Council of NSW approval prior to changing the nature of his practice as a "general practitioner" or the place of his practice. (2) To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner) (a) Where the patients and patient records are shared between the medical practitioners (b) Only at times when there is one other registered medical practitioner on site (c) Which is an accredited practice (3) To not undertake: (a) Home and nursing home visits (b) Locum positions (4) To practise no more than 35 hours per week with no more than 7 hours in any 24-hour period. (5) To treat no more than 25 patients in any 24-hour period. (6) To practise under Category B supervision in accordance with the Medical Council of NSW's Compliance Policy- Supervision (as varied from time to time) and as subsequently determined by the appropriate review body and: (a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with a particular focus on: • Communication issues, including communication during consultations • Patient assessment and management • Patient follow-up and clinical outcomes • Assessment of common mental health problems • Non-pharmacological management of common presentations • Appropriate prescribing practices • Workload • Medical record documentation and reviews • Compliance with conditions (b) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition and any other report or decision as determined by the Council. (c) Not to practise until a supervisor has been approved by the Medical Council of NSW. (7) Within 7 days of the end of each calendar month from re-commencement of medical practice, he is to provide the Medical Council of NSW with a record of all consultations and patients treated in the last month. The record must include the following: (a) The date and time of each consultation (b) Medicare Item number (c) The patient's full name and date of birth (d) The nature of the patient's presentation (e) Brief summary of the patient management (f) The full name and signature of the Council- approved Category B supervisor who reviewed the record. (8) To provide the patient record to his Council approved category B supervisor to be reviewed and discussed, prior to submitting the log to the Council. Feedback about the consultations and patient presentation and management is to be included in supervision reports. (9) To submit to an audit of his medical practice, by a random selection of 20 of his medical records by a person or persons nominated by the Medical Council of NSW including, where applicable, as agreed with AHPRA or the Medical Board of Australia and: (a) The audit is to be held within 6 months from re-commencement of medical practice and subsequently as required by the Medical Council of NSW. (b) The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements and compliance with conditions. (c) To authorise the auditor(s) to provide the Medical Council of NSW with a report on their findings. (10) To forward evidence to the Medical Council of NSW within 14 days from recommencement of medical practice, that he has provided a copy of this decision to his employer. (11) Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of this decision to his employer. Health Conditions (12) Not to prescribe for self-medication. (13) to take any medication as prescribed by his treating practitioners. (14) The extent of his professional medical duties is to be guided by his health status and the advice of his treating and Council appointed practitioners (15) To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) Is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: (i) Failure to attend for treatment; (ii) termination of treatment; (iii) a significant change in health status (including a significant temporary change); (b) must provide the Council with the professional details of the treating practitioner. (16) To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; (iii) a significant change in health status (including a significant temporary change); (b) must provide the Council with the professional details of the treating practitioner. (17) To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (a) is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: (i) failure to attend for treatment; (ii) termination of treatment; (iii) a significant change in health status (including a significant temporary change); (b) must provide the Council with the professional details of the treating practitioner. (18) To attend for review by a Council-appointed psychiatrist on a three-monthly basis or as otherwise directed by the Medical Council of New South Wales. (19) To attend a Medical Council of New South Wales' Review Interview on a three-monthly basis, or as otherwise directed by the Medical Council of New South Wales. (20) To authorise the Medical Council of New South Wales to forward copies of the Tribunal decision, any subsequent Council Review Interview or other report, and any other information relevant to his health and treatment, to the Council-appointed practitioners and to his treating practitioners. (21) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. (22) To authorise the Medical Council of NSW to notify current and future persons or organisations at places where he works as a medical practitioner in Australia, of any issues arising in relation to compliance with these conditions. Condition Costs (23) The practitioner is to bear all costs arising out of compliance with these conditions. Review (24) The appropriate review body for the purpose of a review under section 163 - 163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the respondent has a principal place of practice in NSW. (25) Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. Costs (26) Within 21 days from the date of this decision, the Applicant file and serve submissions in writing not exceeding 10 pages in length in support of any application for costs. (27) Within 42 days from the date of this decision, the Respondent file and serve submissions in writing not exceeding 10 pages in length in opposition to any application for costs by the Applicant. (28) Within 56 days from the date of this decision, the Applicant file and serve submissions in writing not exceeding 5 pages in length in reply to the submissions of the Respondent. (29) A party opposing an order dispensing with an oral hearing of any costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) file and serve submissions in writing not exceeding 3 pages in length within 56 days. Catchwords: OCCUPATIONS- Medical Practitioners- conditions attaching to practitioner's registration to protect the health and safety of the public Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 Minister for Immigration and Citizenship v Li [2013] HCA18; (2013) 249 CLR 332 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Bruce Desmond Litchfield (Respondent) Representation: Counsel: P Lowson (Applicant) P Aitken (Respondent)