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) Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/00113489 Publication restriction: Publication of the name of the patient referred to in the decision is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) REASONS FOR DECISION 1. On 31 August 2022, the Tribunal delivered its decision in proceedings brought by the Health Care Complaints Commission (Applicant) against Bruce Desmond Litchfield (Respondent) pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (National Law). 2. The Tribunal found the Respondent guilty of professional misconduct for the reasons recorded in its decision. Directions were then made with respect to the conditions which should be imposed upon the Respondent's registration in the light of the Tribunal's decision that, provided that appropriate protective conditions could be imposed, the Respondent's registration as a medical practitioner should not cancelled. The directions also afforded the parties the opportunity to make submissions in opposition to the making of an order dispensing with a hearing of the determination of the conditions appropriate to be imposed on the Respondent's registration pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act). 3. On 14 September 2022, the Applicant filed further submissions with respect to the conditions which it submitted should be imposed on the Respondent's registration, together with a list of such conditions and a copy of the Compliance Policy - Supervision issued by the Medical Council of NSW on 1 February 2015. The Applicant's submissions made clear that it continued to contend that allowing the Respondent to retain his registration on any basis constituted an unacceptable risk to the health and safety of the public, and that, accordingly, the Respondent's registration should be cancelled pursuant to s 149C(1) of the National Law. 4. On 21 September 2022, the Respondent filed written submissions with respect to the conditions which he submitted should be imposed on his registration. Neither party filed submissions in opposition to the Tribunal dispensing with an oral hearing of the controversy with respect to the conditions which should be imposed upon the Respondent's registration. Dispensing with an oral hearing 1. Although the absence of opposition by the parties to the Tribunal doing so is relevant to whether an order should be made pursuant to s 50(2) of the CAT Act dispensing with an oral hearing, the Tribunal must be satisfied that doing so is appropriate. 2. The Tribunal is satisfied pursuant to s 50(2) of the CAT Act that the issues currently requiring determination can be adequately determined in the absence of the parties by considering the written submissions and other material lodged with the Tribunal by each of the parties. The Tribunal records that, pursuant to the directions of 31 August 2022, the parties have been afforded an opportunity to make submissions about the proposed order in accordance with s 50(3)(a) of the CAT Act. No submissions in that regard having been made, s 50(3)(b) of the CAT Act has no application. 3. Particularly having regard to the limited nature of the current controversy, the Tribunal is satisfied that it is appropriate to dispense with an oral hearing and to determine the present controversy by reference to the submissions of the parties and material supplied by them. Nature of the present determination 1. Section 149A(b) of the National Law provides that the Tribunal "may…impose the conditions it considers appropriate on the practitioner's registration". Determining the conditions which are appropriate involves the exercise of discretion (Ward v Williams [1955] HCA 4; (1955) 92 CLR 496). Although the discretion is undoubtedly "broad", it is not "unfettered" and must be exercised in a principled and judicial manner (Minister for Immigration and Citizenship v Li [2013] HCA18; (2013) 249 CLR 332), and in accordance with the objective and guiding principle of the National Law, which mandates that the health and safety of the public is the "paramount consideration". 2. As is apparent from the nature and scope of the controversy with respect to the conditions which are appropriate to be attached to the Respondent's registration, the "generous ambit within which reasonable disagreement is possible is wide" when, as in this case, "there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community" (Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, Per Brennan J, at [8]). 3. In the present circumstances, providing definitive reasons for our decisions with respect to controversial conditions is not readily achievable, and may not be possible. In Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 Basten JA said at [46]: "Generally, the concept of "reasons" requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgement, it may well not be practicable to provide a detailed articulation as to how specific (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint." 1. In the context of its consideration of the requirement that the Tribunal provide reasons for a discretionary decision, the Court of Appeal in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, at 75, referred, with approval, to Basten JA's statement. 2. It was accepted in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited [1983] 3 NSWLR 378 at [386] that reasons given for a decision do not need to be "elaborate" as "an elaborate argument may not require an elaborate answer. Reasons need be given only so far as is necessary to indicate to the parties why the decision was made and to allow them to exercise such rights as may be available to them in respect of it". 3. In Orr at [74] the Court of Appeal cited that statement with approval. Although, consistent with authority, the Tribunal endeavours to explain why it has decided the controversies with respect to the conditions appropriate to be attached to the Respondent's registration in the way it has, we acknowledge that revelation of the process of reasoning in that regard is necessarily limited, and that others may reasonably disagree with our decisions. The conditions Condition 1 1. The Applicant sought the imposition of a condition that the Respondent "obtain Medical Council of NSW approval prior to changing the nature, scope or place of his practice". The Respondent agreed to that condition, save to the extent that it included the term "scope". In support of the proposed condition the Applicant submitted (page 2, paragraph 4) that "the word "scope" was included to ensure that the respondent does not attempt to avoid conditions by changing the scope of his medical practice from general practitioner (noting that the respondent holds "general registration")." 2. The Respondent submitted (page 3, paragraph 12) that "the word "scope" introduces "considerable ambiguity". If the purpose is to avoid changing registration, then the word scope should be removed and the words "or his registration as a general practitioner" added at the end of the condition." 3. We agree with the Respondent that the inclusion of "scope" may introduce unnecessary uncertainty into the conditions and not avert the asserted risk which prompted the Applicant to seek its inclusion. The Cambridge Dictionary definition of "scope" includes the "range of a subject", a definition which itself probably invites uncertainty. In our view, having regard to the other conditions which will be imposed upon the Respondent, and the limitations which are otherwise binding upon him, inserting "registration as a general practitioner" in lieu of "scope" in Condition 1 would adequately safeguard against the potential mischief upon which the Applicant relies. The Tribunal does not understand the Respondent to have ever said during the substantive proceedings that he wished or intended to practise other than as a general practitioner. Condition 2 1. Condition 2 sought by the Applicant provided that the Respondent: "practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered practitioners (excluding the subject practitioner): (a) where the patients and patient records are shared between the medical practitioners; (b) where there is always one other registered medical practitioner on site; (c) which is an accredited practice." 1. Condition 4 sought by the Applicant provided that the Respondent not undertake: "(a) after hour services or deputising work; (b) home and nursing home visits; (c) locum positions." 1. In lieu of the Applicant's proposed condition 2, the Respondent sought a condition that he: "practice only 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) unless working under Category C supervision at an After Hours practice (including visits to patients at residential aged care facilities in an after hours capacity), otherwise only at times when there is one other registered medical practitioner on site; (c) which is an accredited practice." 1. The Respondent sought, in the alternative to that condition that, "unless working under Category C supervision only for the purpose of visits to patients at residential aged care facilities in an after hours capacity, otherwise only at times when there is one other registered medical practitioner on site". 2. In lieu of Condition 4 sought by the Applicant, the Respondent sought that he not undertake: "(a) home visits; (b) locum positions." 1. The Applicant submitted (page 2, paragraph 4) with respect to conditions 2 and 4 that the Respondent "should not practise in any other than an ordinary general practice with at least two other practitioners present, and specifically should not practise in an after hours practice where it is likely he would be the only practitioner present." The Applicant further submitted that the Respondent should "not work in nursing homes or in patients' homes having regard to the particular vulnerability of patients in these circumstances". 2. The Respondent submitted (page 3, paragraph 13) that the Applicant's wording of proposed condition 2(b) was "too onerous and does not allow for a fellow practitioner's temporary absence through illness, for example, or a practice where one practitioner may work on Sundays, for example, but otherwise more than one may work at the practice on other days." 3. The Respondent submitted "that the same protection would be achieved if the sub condition were to read "only at times when there is one other registered medical practitioner on site" in lieu of the words "where there is always". 4. The Respondent further submitted (page 4, paragraph 14) that there was a possibility that the consultations that occur at an After Hours practice may sometimes involve Dr Kelly or another practitioner not being on site and that the Respondent had accordingly previously proposed Category C supervision for such work "premised on the basis that such consultations were a one-off and the patient would be expected to return to their regular GP, with a report of the consultation outcome also being sent to that practice". The Respondent noted that "the issues of concern with Patient A arose over a number of consultations". 5. The Respondent maintained (page 4, paragraph 15) his assertions concerning the appropriateness of Category C supervision in such circumstances and requested "consideration of being able to continue nursing home visits only where accompanied by a registered or enrolled nurse". Reliance was placed upon the fact that such nursing home visits would "also be in an after hours role and not as a regular GP". The Respondent did not seek to attend home visits or work as a locum, and did not oppose conditions 4(b) and 4(c) proposed by the Applicant. 6. The Respondent further submitted (page 4, paragraph 16) that if the Tribunal considered that Category B supervision should apply "across all practices where the Respondent is employed (including the after hours practice) then the Respondent submits that the Applicant's proposed condition 4(a) would not be imposed, consistently with the Tribunal's finding at [631] of its decision of 31 August 2022. The Respondent submitted that doing so would be incompatible with the Respondent's proposed condition 2(b) "as work at the after hours practice could only occur when another doctor was on site. Provision for this version of practice is set out in the Respondent's alternative condition 2(a)". 7. Paragraph 631 of the Tribunal's decision of 31 August 2022 recorded: The Respondent's case appears predicated on his being employed in Dr Kelly's practice and supervised by him. The proposed conditions would appear to have the best chance of success if that were to occur. If the Respondent were not to return to Dr Kelly's practice, he would need the approval of the Medical Council before being employed by any other practice. Any supervisor of conditions of practice for the Respondent should be provided with the consultation template and any reports with respect to the health of the Respondent or progress notes of any health professional who is treating the Respondent as and when they become available. 1. With respect to Counsel for the Respondent, we do not consider that anything recorded in that paragraph advances the Respondent's case with respect to these conditions. 2. The Compliance Policy - Supervision of the Medical Council of NSW sets out the requirements and nature of each category of supervision in a table. Category B supervision provides that "the supervisor is to monitor and provide indirect supervision and be readily available to provide advice, assistance or direct supervision as required". The supervisor is to practise at the same location but may "in exceptional circumstances, be off site but must be contactable by phone to provide advice or assistance as required". 3. So far as "independent practice such as on call, after hours work, nursing home and home visits permitted" are concerned, condition (b) provides "yes, unless restricted by their practice conditions". The frequency of review meetings with a supervisor when Category B supervision is imposed is fortnightly with 3 monthly reports being provided to the Medical Council. 4. Category C supervision is provided when "indirect supervision is required. The supervisor must be contactable by phone for emergencies". The supervisor is not required to practise at the same practice location as the practitioner but "must be contactable by phone and should attend on occasion to review records and files". The ability to engage in "independent practice" is the same as in the case of Category B supervision. The frequency of review meetings with the supervisor is monthly, with reports to be provided to the Medical Council every 6 months. 5. Having regard to the findings recorded in the Tribunal's decision of 31 August 2022, and the Respondent's problematic disciplinary history, we consider that imposing less onerous supervision than Category B would constitute an unacceptable risk to the health and safety of the public and would inadequately achieve the objectives of the protective orders which the Tribunal has found to be necessary. It is to be remembered that the Respondent was subject to reasonably stringent conditions at the time of the offending conduct which led to these proceedings. Less onerous than Category B conditions would also, in our view, risk inadequately signalling to the public, and other medical practitioners how seriously offending conduct of the kind which has been established in this case is regarded. 6. In reality, this is probably the last opportunity for the Respondent to demonstrate that, notwithstanding the difficulties which surround his doing so, he has the capacity to practise medicine safely. Quite apart from the need for Category B supervision to protect the health and safety of the public, it is not in the interests of the Respondent that he be placed in a position where any risk that he may reoffend is not avoided to the greatest extent possible. In time, provided that the Respondent develops a "track record" of satisfactory performance, nursing home visits in the presence of a registered nurse may be appropriate, but, in the light of the Tribunal's findings in its decision of 31 August 2022, allowing such visits now would be contrary to the interests of the health and safety of the public. 7. For these reasons, we consider that Category B supervision is required. The conditions which we thus propose be applied are: "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." "and not to undertake: "(b) home and nursing home visits; (c) locum positions." 1. As is readily apparent, imposing Category B supervision on the Respondent removes an unacceptable risk to the health and safety of the public if he undertakes after hours services or deputising work. Condition 3 1. The Applicant sought as condition 3 that the Respondent: "Not consult, examine, treat, prescribe to, or perform any procedures on any female: (a) the practitioner may only provide emergency medical services to such persons in compliance with s 139C(c) of the Health Practitioner Regulation National Law; (b) if any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council." 1. The Respondent opposed the imposition of condition 3 in its entirety. 2. In support of the imposition of condition 3, the Applicant recorded (page 3) that condition 3 was "included in response to Professor Morris' suggestion". The Applicant relied upon the finding of the Tribunal at [456] that: "The unsatisfactory professional conduct which we have found proved involves serious boundary violations with insensitive, offensive and inappropriate remarks to a patient who the Respondent knew, or should have known, was vulnerable and whose health was likely to be adversely impacted by such violations. The offending comments were made on more than one occasion and, we accept, continued despite Patient A, both verbally, and by her body language, making apparent to the Respondent that she did not want him to explore the matters which he was seeking to explore, and was uncomfortable with his doing so. As the evidence establishes, the Respondent's conduct represented a real risk to Patient A's health and safety. The Respondent's offending conduct was improper and unethical, and seriously so." 1. The Applicant also relied upon the Respondent's previous findings of guilt with respect to breaching professional boundaries with other female patients which were recorded in the Tribunal's decision of 31 August 2022 at [92]. 2. The Applicant submitted that the decision of the Tribunal at [585] suggests that it is "minded to impose the restrictions that Professor Morris proposed if the Respondent is permitted to continue to practise medicine, which in turn suggests the Respondent cannot be trusted to observe proper professional standards in his conduct towards female patients unless a chaperone is present". 3. The Tribunal found at [585] that "Professor Morris was submitted to have recommended conditions including limiting to patients with limited single episodes of care, no follow-up patients, no complex emotional problems, advanced patient screening, weekly supervision and chaperoned for any female examinations where clothes are removed". The Tribunal expressed its broad agreement with such conditions. The Tribunal also recorded the evidence of Professor Morris that "advance screening of patients who the Respondent should not see" would not be "easy or straightforward" and required diligence and vigilance by the Respondent's supervisors "to avoid a repetition of the conduct to which Patient A was exposed". The qualification expressed by Professor Morris with respect to female patients is significant. So is the fact that he did not suggest that the Respondent should not see female patients in other circumstances. 4. The Respondent "strenuously opposed" (page 4, paragraph 17) the imposition of this proposed condition. The Respondent submitted that the "central issues in the proceedings were communication, engagement, purported counselling and persisting in inappropriate questioning, on a background of impairment and an examination of competence to practice". The Respondent relied (page 4, paragraph 18) upon the absence of findings that the Respondent's offending conduct involved sexual gratification. 5. The Respondent submitted, in reliance upon the evidence of Dr Samuels that the conduct of concern "could apply equally to a male patient" and that the Applicant's own expert did not think that such a condition was appropriate or necessary. The Respondent made a number of submissions (page 3, paragraphs 8 to 11) with respect to the absence of need for a chaperone, with particular reliance upon the Applicant's expert, Dr Samuels. 6. We find, largely for the reasons advanced by the Respondent, and having regard to the conditions which we will impose, that proposed condition 3 is not necessary to protect the health and safety of the public. Without detracting from the force of our criticisms of the conduct of the Respondent, as recorded in the decision of 31 August 2022, the reality is that, unlike his prior offending conduct, the conduct of the Respondent which gave rise to the present proceedings did not involve findings of sexual motivation or gratification and were as submitted by the Respondent. We are not persuaded that allowing the Respondent to see female patients would, with the conditions which will be imposed upon him, and the requirements of the Code of Conduct, constitute an unacceptable risk to the health and safety of the public. Condition 5 1. The Applicant sought that the Respondent "practise no more than 35 hours per week with no more than 7 hours in any 24 hour period". 2. Condition 6, sought by the Applicant sought that the Respondent "treat no more than 25 patients in any 24 hour period". 3. The Respondent sought that he not practise for more than 40 hours per week, with no more than 8 hours in any 24 hour period, and that he treat no more than 25 patients in any 24 hour period. 4. The Respondent agreed (page 5, paragraph 24) that he "would be prepared to accept a limit of 25 patients per 24 hour period and 40 hours per week and would ask that the limit of hours per day in such circumstances be 8 rather than 7." It was submitted that "This increase in working hours (but not total patient numbers) would permit more time for the work required by proposed condition 8 to be attended to". 5. Largely for the reasons recorded by the Tribunal in its decision of 31 August 2022 with respect to the Respondent's personality, we propose limiting the Respondent to practising for no more than 35 hours per week, and for no more than 7 hours in any 24 hour period, and treating no more than 25 patients in any 24 hour period. We do not understand that those conditions would preclude or limit the Respondent's ability to fully comply with the obligations to be imposed upon pursuant to proposed condition 8, and to be likely to be conducive to his effective compliance with proposed condition 8. As with the determination of other disputed conditions, we prefer to err on the side of caution, primarily in the interests of the health and safety of the public, but, also, in the interests of optimising the prospects of the Respondent safely making the contribution to society through the practice of medicine which he so desires, and can potentially make. Less rather than potentially more stress for the Respondent is conducive to the achievement of both objectives. Condition 7 1. The Applicant proposed that the Respondent: "practise under Category A 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 notes; * 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." 1. The Respondent sought conditions that he practise: "(1) under Category B supervision in any primary care practice or in any after hours practice, and (2) under Category C supervision at times where another doctor may not be on site at the after hours practice, and (3) to practice under Category C supervision for nursing home visits, 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: (a) at each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with 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 (b) to authorise the Medical Council of NSW to provide proposed and approved supervisor with a copy of the decision which imposed these conditions and any other decision or report relevant to the practitioner; (c) not to practice until a supervisor has been approved by the Medical Council of NSW." 1. In the alternative, the Respondent proposed that he practise: "(1) Under Category B supervision in any primary care practice or in any after hours practice; and (2) To practice under Category C supervision for nursing home visits, 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." 1. In the event that the proposed alternate condition 7 were imposed, the Respondent's proposed conditions 7(a), (b) and (c) would apply, albeit they are recorded as 7A(d), (e) and (f). 2. In support of the conditions sought by the Applicant, it was submitted (page 4) to be "necessary to impose the highest level of supervision on the Respondent with a view to trying to avoid patients being put at risk again". The Applicant relied upon the fact that during the period in which the Respondent consulted with Patient A he had been required to attend regular supervision meetings with "particular focus on communication issues, assessment of common mental health problems and medical reviews". The Respondent was submitted to have had "every opportunity" over a two month period to identify that he required supervision and to obtain that assistance from his supervisor, but did not do so. 3. We have earlier set out the requirements of Category B and C supervision. Category A is required when "direct supervision is required at all times" and that the supervisor "at all times" is required to practise at the same practice location as the practitioner, independent practice is not permitted, continuous supervision with weekly review meetings is required, with reports to be provided to the Medical Council once per month. The Applicant submitted, not unreasonably, that the Medical Council was "unable to enforce whether the Respondent has complied with the consultation template" which became Exhibit R1, Tab 1B in the proceedings. As the submissions of the Applicant recorded, Category A supervision requires "oversight of each consultation". 4. The Applicant submitted (page 6) that it did not "endorse the Respondent's suggestion that the supervisor regularly contact the Respondent's treating health professionals" for the reasons there referred to. 5. We are not persuaded that Category A supervision should be imposed on the Respondent in order to adequately protect the health and safety of the public. We have not been referred to any expert evidence supporting doing so. As recorded in the decision of the Tribunal of 31 August 2022, the Respondent has greater insight into his own personality, and capacity to avoid conduct of the kind to which Patient A was subjected,than ever before. Conversely, we are not persuaded that Category C supervision as sought by the Respondent would adequately protect the health and safety of the public. Without reiterating them, the reasons for our decision of 31 August 2022, and the matters reiterated above provide the foundation for that determination. Consistent with maximising the protection of the health and safety of the public, we consider the matters of "particular focus" sought by the Applicant to be appropriate and will include them in the conditions to be imposed upon the Respondent. Condition 8 1. Condition 8 sought by the Applicant provided that: "Within 7 days of the end of each calendar month from recommencement of medical practice, [the Respondent] 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: * the date and time of each consultation * Medicare item number * the patient's full name and date of birth * the nature of the patient's presentation * brief summary of the patient management * the full name and signature of the Council approved Category A supervisor who reviewed the record." 1. The Respondent agreed with those conditions, subject to the deletion of "Category A" in the last of the requirements. In view of our earlier determination, the condition will provide "B" in lieu of "A" in the last recording requirement. 2. The Respondent sought that the requirement "is to be reviewed by the Medical Council of NSW after 9 months or such earlier period as the Council determines in its discretion". We do not propose including that condition. We do not wish to appear to influence any decision which the Medical Council may make or any action which the Medical Council or the Respondent may take in the future in reliance upon the evidence which is then able to be paced before that body. 3. As our decision of 31 August 2022 makes clear, this is a case where, having managed to retain his registration, every reasonable precaution needs to attach to the Respondent's entitlement to practise to safeguard the health and safety of the public. The Respondent's regrettable disciplinary history, and other matters to which we have referred must be kept in mind when determining the conditions appropriate to be imposed upon his registration and the timeframe within which that potentially applies. Put bluntly, if the conditions we impose are to be reviewed in a manner that renders them less onerous, that should only be after the Respondent establishes a significant "track record" of unproblematic conduct, and satisfies the appropriate authority that doing so does not create an unacceptable risk to the health and safety of the public. We agree with the submission of the Applicant that condition 8 serves "a number of purposes" as identified by the Applicant (page 6). Condition 9 1. Condition 9 sought by the Applicant provided that the Respondent "provide the patient record to his Council approved Category A 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". 2. The Respondent did not oppose condition 9 and we accept that it is appropriate. Condition 10 1. Condition 10 sought by the Applicant provided that the Respondent: "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 and: (a) the audit is to be held within 6 months from recommencement 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." 1. The Respondent consented to proposed condition 10 but suggested that the condition should read "Medical Council of NSW, including where applicable, as agreed with Ahpra Qld and". We agree that the inclusion of those words is appropriate and do not understand that the Applicant would have any opposition to their inclusion. Condition 11 1. Condition 11 sought by the Applicant provided that the Respondent "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". 2. The Respondent did not oppose that condition. Condition 12 1. The Applicant proposed that "Within 14 days of a change in the nature or place of his practice, [the Respondent] is to forward evidence to the Medical Council of NSW that he has provided a copy of this Decision to his employer". The Respondent did not oppose the imposition of that condition. Conditions 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 1. Subject to the matters referred to in his proposed conditions 25 and 26, the Respondent did not oppose the impositions of these conditions. We agree that these conditions are reasonable and appropriate. 2. We will record them in full at the conclusion of these reasons. It is sufficient at this point to note that these provisions are concerned with "health conditions" the imposition of which is amply supported by the findings of the Tribunal in its decision of 31 August 2022. Condition 24 1. The Applicant proposed that the Respondent "bear all costs arising out of compliance with these conditions". The Respondent proposed that he "bear all costs arising out of compliance with these conditions aside from the costs arising from the audit or Council appointed psychiatrist meetings or organising and conducting reviews". 2. The Applicant did not make any particular submissions in support of this condition. The Respondent's submissions record (page 7, paragraph 34) that it was "understood that the Medical Council ordinarily bears the cost of organising an audit, the costs of a Council appointed psychiatrist, and the costs of organising and conducting reviews" (Subject to the views of the Medical Members of the Panel). In the absence of persuasive reasons for doing so, we are disposed to impose the condition sought by the Respondent. Conditions 25 and 26 1. The Applicant sought (25) that "The appropriate review body for the purpose of a review under s 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" and (26) "sections 125 and 127 of the Health Practitioner Regulation Nation 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". 2. The Respondent sought with respect to proposed condition 25 that "The appropriate review body for the purpose of a review under sections 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 or Ahpra QLD when the Respondent has a principal place of practice in QLD. And in this respect where these conditions refer to the Medical Council of NSW, this should be taken to include Ahpra QLD either in addition or in substitution, as determined and directed by the Medical Council of Australia." (26) It was further submitted that "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, or Ahpra, as determined by the Medical Council of Australia." 3. The objective of the conditions was clearly stated by the Applicant (page 7) as being "intended to ensure compliance irrespective of the Respondent's place of residence or place of work". We accept that it is appropriate to ensure that the Respondent complies with conditions, irrespective of his place of residence or place of work. 4. The Respondent submitted (page 7, paragraph 35) that, for the reasons there set out, an amendment to allow for the "contingency" that the Applicant's practice may "straddle the border regions" the additional provisions proposed by him were appropriate. 5. Although we perceive that there is not a major distinction between the two proposals, rather than risk the intention of the conditions being defeated or compromised, it is preferable to impose the more detailed provisions. To be clear, the intention of the conditions is that if the Respondent is practising in New South Wales and Queensland, his compliance with the conditions in this State would be regulated by the Medical Council of NSW whilst his compliance with his conditions of practice in Queensland would be regulated by the Medical Board of Australia or Ahpra as determined by the Medical Board of Australia. The Respondent should not imagine that he could have any aspect of regulation of his conditions of practice not regulated by either or both of the appropriate regulatory bodies. 6. The Tribunal is comfortably satisfied that the onerous conditions which we propose attaching to the Respondent's registration adequately protect the health and safety of the public, and are consistent with the authorities with respect to the determination of protective orders to which we referred in the decision of 31 August 2022. The imposition of such onerous conditions reflects the seriousness of the Respondent's offending conduct. Our orders also signal to the Respondent, the medical profession and the public how gravely the Tribunal regards such conduct. Costs 1. The Tribunal will make directions with respect to the costs of the proceedings and whether either party opposes the issue of costs being determined "on the papers" and without an oral hearing pursuant to s 50(2) of the CAT Act. Orders 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) 1. Where the patients and patient records are shared between the medical practitioners 2. Only at times when there is one other registered medical practitioner on site 3. Which is an accredited practice 1. To not undertake: 1. Home and nursing home visits 2. Locum positions 1. To practise no more than 35 hours per week with no more than 7 hours in any 24-hour period. 2. To treat no more than 25 patients in any 24-hour period. 3. 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: 1. 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 1. 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. 2. Not to practise until a supervisor has been approved by the Medical Council of NSW. 1. 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: 1. The date and time of each consultation 2. Medicare Item number 3. The patient's full name and date of birth 4. The nature of the patient's presentation 5. Brief summary of the patient management 6. The full name and signature of the Council- approved Category B supervisor who reviewed the record. 1. 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. 2. 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: 1. 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. 2. The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements and compliance with conditions. 3. To authorise the auditor(s) to provide the Medical Council of NSW with a report on their findings. 1. 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. 2. 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 1. Not to prescribe for self-medication. 2. to take any medication as prescribed by his treating practitioners. 3. 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 4. 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: 1. Is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: 1. Failure to attend for treatment; 2. termination of treatment; 3. a significant change in health status (including a significant temporary change); 1. must provide the Council with the professional details of the treating practitioner. 1. To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: 1. failure to attend for treatment; 2. termination of treatment; 3. a significant change in health status (including a significant temporary change); 1. must provide the Council with the professional details of the treating practitioner. 1. To attend for treatment by a psychiatrist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: 1. failure to attend for treatment; 2. termination of treatment; 3. a significant change in health status (including a significant temporary change); 1. must provide the Council with the professional details of the treating practitioner. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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 1. The practitioner is to bear all costs arising out of compliance with these conditions. Review 1. 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. 2. 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 1. 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. 2. 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. 3. 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. 4. 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. ********** 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: 19 December 2022