Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Winter v Medical Council of New South Wales [2024] NSWCATOD 100 Hearing dates: 11 July 2024 Date of orders: 11 July 2024 Decision date: 11 July 2024 Jurisdiction: Occupational Division Before: Levy SC ADCJ, Principal Member Decision: (1) Leave to the appellant to withdraw his appeal with the consequence that the appeal is dismissed. (2) Pursuant to cl 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Tribunal makes no order as to costs. Catchwords: OCCUPATIONS — registration of medical practitioners — appeal by suspended general medical practitioner pursuant to s 159 of the National Law — appellant's late application to withdraw and dismiss his appeal — appellant conceded cognitive impairment — grant of leave to withdraw appeal — order that appeal be dismissed COSTS — consideration of appropriate order for costs on withdrawal and dismissal of appeal — no order as to costs Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009, s 3, s 3A, s 3B, s 150, s 150(1)(c), s 159(1)(a), cl 13 of Sch 5D Cases Cited: House v The King (1936) 55 CLR 499; [1936] HCA 40 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Mahenthirasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 73; [2008] NSWCA 201 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Category: Principal judgment Parties: Frank Winter (Appellant) Medical Council of New South Wales (Respondent) Representation: Appellant (self-represented) Counsel: H Bennett (Respondent) Solicitors: L Collingwood (Medical Council of New South Wales) (Respondent) File Number(s): 2024/00136168 Publication restriction: None REASONS FOR DECISION Introduction 1. This appeal brought by Dr Frank Winter ("the appellant") pursuant to s150(1)(c) of the Health Practitioner Regulation National Law (NSW) ("the National Law)", is listed for hearing today. The appellant is self-represented. 2. Without reciting the full procedural history, the issue to be determined is whether to confirm or vary an order made on 20 March 2024 by the delegates of the Medical Council of New South Wales ("the respondent") which at a hearing convened pursuant to s 150 of the National Law, suspended the medical registration of the appellant and referred him to the Health Care Complaints Commission for the investigation of a complaint. 3. The matter at issue which led to the appellant's suspension was the respondent's concern, based on cogent expert evidence, that the appellant might have a relevant impairment that adversely impacted on the health, safety and protection of the public, which is the ultimate and paramount determining factor for making determinations in such proceedings: s 3, s 3A and s 3B of the National Law. The respondent's stance in opposing the appeal was in the public interest according to those considerations and on the merits of the decision of the delegates. 4. At the eleventh hour the applicant decided that he wanted to withdraw his appeal citing his ill-health, and after discussion, conceding his cognitive impairment: Exhibit "A". 5. On the substantive question of withdrawal of the appeal, the respondent raised no objection to that course, but initially sought an order that the appellant pay the respondent's costs of the appeal. 6. A question then arose as to whether in the circumstances of the appellant's concession of cognitive impairment, it would be fair and just to make an order for costs where such costs were most likely incurred due to the appellant's cognitive impairment. 7. After debate and discussion, subject to the requirement for these reasons, the respondent conceded that in the circumstances, the appropriate order for costs was that there be no order for costs, with the intent that each party pay their own costs of the appeal. 8. The rationale for that result requires an understanding of the appellant's background, his complaints history, and the history of his previous proceedings. Appellant's Background 1. The appellant is presently aged 79 years. He graduated with the degrees of Bachelor of Medicine and Bachelor of Surgery from the University of Sydney in 1968. Soon after he completed his primary degrees he worked as a tutor in physiology at the University of NSW. He has been a registered in Australia as a general medical practitioner since 21 May 1969. 2. The appellant has a range of other impressive academic achievements. After qualifying in medicine in Sydney, he spent some time as an intern in the United States, in Florida. He later completed degrees in geology, zoology and has studied mathematics. He has worked in numerous locum positions in Australia and in a range of overseas locations on contracts of varied duration. 3. More recently, up until the time of the suspension of his registration on 20 March 2024, he has been working two days per week as a locum general practitioner in Springwood, NSW, as well as working in other rural and remote areas of Australia. Complaints History 1. The evidence in the appeal papers reveals the appellant has at times been brusque and dismissive in his communications and at times that style of communication has ruffled the sensitivities of some patients, and that has led to a series of complaints to the regulator. 2. Since 1998, in this State, there have been 11 complaints about the appellant, 9 of which relate to his communication skills. In essence those complaints raised allegations that he had been rude, dismissive, insensitive, and unsympathetic to patients. Since May 2023, there have been 5 complaints about the appellant which raised a consistent theme of concern over his communication style. Previous Assessment Hearings involving the Appellant 1. The appellant has been involved in two previous assessment hearings convened pursuant to s 150 of the National Law, as identified in the following tabulation. Date Type Outcome 19 May 2005 Performance Interview No further action, however "recommend that Dr Winter undertake continuing medical education activities in the area of clinical communication and patient-centered clinical method."5 19 June 2023 Health Assessment (Neuropsychology) IRP (Impaired Registrants Panel) rescheduled as s.150 proceedings 1 September 2023 s.150 proceedings (the First s.150 Proceedings) No action taken under s.150, however "recommended that Dr Winter should undergo a practice- based Performance Assessment and he assessed by a Council Directed psychogeriatrician"6 Pending [see Outcome: recommendation from 1 September 2023 s.150 proceedings, above] Performance Assessment Pending 28 November 2023 [see Outcome: recommendation from 1 September 2023 s.150 proceedings, above] Health Assessment (psychogeriatrician) Referred to an Impaired Registrants Panel 22 February 2024 Impaired Registrants Panel Offered conditions. Appellant did not consent to those conditions. 20 March 2024 s.150 proceedings (the Second s.150 Proceedings) Registration suspended on interim basis, practitioner referred to the HCCC for investigation. Expert Evidence 1. The respondent required the appellant to be assessed by a neuropsychologist, Dr Amanda White, and a consultant psychiatrist, Associate Professor Chanaka Wijeratne. Those reports were the only reports available for consideration and they must therefore be taken to be uncontradicted. Dr Amanda White 1. On 19 June 2023, at the request of the respondent, the appellant underwent a neuropsychological assessment by Dr Amanda White. On 30 June 2023, Dr White issues her report on that assessment. 2. Dr White noted the respondent's concerns arising from a series of complaints over the appellant's clinical work. Dr White also noted that in the appellant's complaints history, between 1998 and 2021, there were complaints about his communication style, including claims of rudeness and unprofessionalism. 3. Dr White noted that the appellant reported he was in general good health, without any significant medical history. She also noted the appellant did not report any cognitive difficulties. Dr White also noted the appellant had an idiosyncratic response style 4. Dr White identified the following neuropsychological tests she administered: "Tests Administered Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV), Wechsler Memory Scales – Fourth Edition (WMS-IV) selected subtests, Test of Premorbid Functioning, California Verbal Learning Test - Third Edition (CVLT-3), Wisconsin Card Sorting Test, Boston Naming Test- Second Edition, Controlled Oral Word Association Test, Trail Making Test, Rey-Osterrieth Complex Figure Test, Haylings Sentence Completion Test, Clock Drawing Test, Depression, Stress and Anxiety Scales (DASS-21). Stand-alone and inbuilt measures of valid test performance were also administered." 1. Dr White set out her interpretation of the appellant's test results seven categories, summarised as follows: 1. Performance Validity – His performance was measured as satisfactory, although qualitatively, some variable effort was noted; 2. Premorbid (Baseline) Intellectual Functioning – His premorbid intellectual functioning was estimated to be at least within the high average to superior range; 3. Current Intellectual Functioning – Full Scale IQ was within the average range. Verbal abilities, including general knowledge, vocabulary and abstract reasoning were in the high average to superior range, and visual skills were in the low average range. 4. Attention and Concentration/Information Processing – Immediate auditory attention span and working memory results were average, and speed of information processing was assessed as being low; 5. Language abilities – Naming of everyday objects and items was within normal limits but semantic fluency was below expectation; 6. New Learning and Memory – Performance on this test result was interpreted as being significantly below expectation, and recall for visual and verbal information was assessed as being mildly impaired, being below the 1st percentile; 7. Visuospatial abilities – After reviewing some examples of difficulty with object drawing and slow completion of tasks, Dr white interpreted this test result as indicating the presence of difficulty grasping the task and constructional difficulty when dealing with increased complexity of block puzzles, but the ability to judge visual information on a line judgment screening test was within normal limits; 8. Executive Functioning – Dr White commented on this testing in the following terms: "Adaptive or executive functions refer to the capacity to regulate and control one's responses in accord with what is happening in a given situation. Essentially these abilities enable a person to deal with new and unusual tasks that require them to reason, problem solve, check that they are proceeding correctly and modify their behaviour if necessary. Dr Winter's performances on measures of executive functioning indicated impairment across a number of areas. On a measure of mental flexibility, requiring him to alternate between two streams of thought, his performance was reduced, falling withinthe Borderline impaired range. He made three errors and required prompting and guidance to continue. On a conceptual reasoning test, he was unable to adapt his responses according to set rules and feedback. He was perseverative in his responding and showed frustration leading to him terminating the task prematurely. When copying a complex geometric design, his approach was haphazard. He had reduced attention to detail and demonstrated reduced visuoconstructional abilities. On a measure of inhibitory control, where Dr Winter was required to inhibit over learnt responses in the place of novel ones, he experienced some difficulty. While he was able to generally give desired (novel) responses, he took considerable time to do this, reflecting inefficiency and difficulty. He was noted to forget the task requirements on a few occasions, requiring reorienting to task. His performance on a word generativity task for letters was mildly reduced and notably he had two rule breaks." 1. Affective Status – This test result, a self-rated measure of current mood state, did not suggest clinically elevated levels of depressive, anxious and stress symptomatology. 1. In summary, based on those assessments, Dr White concluded that the appellant presented with evidence of significant areas of difficulty in nominated areas of intellectual functioning, as well as demonstrating inefficiencies in generativity and inhibitory control. Her interpretation was that there is evidence reflecting a marked decline from previous expected levels of function. She therefore expressed her concluding opinions as follows: "Although there is limited collateral evidence available at the time of the assessment, notwithstanding the details in the complaint, the current assessment suggests that Dr Winter is likely to be experiencing decline in aspects of his daily functioning and difficulties in his work; although as with many high functioning individuals, this can often be masked for a period, which can delay identification and diagnosis. This is made more difficult by the nature of Dr Winter's lifestyle and work, being that he resides alone and works in locum positions staying in places for short periods of time. Dr Winter presents with poor insight into his cognitive deficits and a lack of awareness regarding the potential impact on his professional practice. In conclusion, the results of the current assessment indicate significant cognitive decline across several areas and evidence of significant difficulty and impairment in areas including executive functioning and visuospatial skills. Aetiology is unclear although indicates a neurocognitive disorder and the possible early stages of a neurodegenerative process with predominantly frontal and parietal involvement. This is likely on a longstanding background of personality factors. As such, I am of the view that Dr Winter would qualify as suffering from an impairment according to the Health Practitioner Regulation Law (NSW)." Associate Professor Chanaka Wijeratne 1. On 28 November 2023, at the request of the respondent, the appellant was examined by Associate Professor Wijeratne, whose report of that examination is dated 8 December 2023. 2. That examination covered the appellant's unremarkable past health and medical history, his euthymic mental state, his work history, and the complaints history from his perspective. Dr White's neuropsychological test results and her report was considered in that examination. 3. Associate Professor Wijeratne also considered the subject matter of the s 150 hearing of 1 September 2023 at which the panel did not think that he was impaired, although a psychogeriatric examination and a practice-based performance assessment were recommended. 4. In Associate Professors' diagnostic consideration, he made the following remarks: "Dr Winter is a general practitioner with a wealth of experience. His views about the value of a College fellowship and CPD may be said to be contrary in nature. In contrast, his opinion about certain IMG colleagues are broad generalisation without an evidence base. Whilst his belief about the primacy of diagnosis in clinical practice is appropriate, his views on the role of communication is not consistent with the MBA's Good medical practice: a code of conduct for doctors in Australia. This document states that "effective communication is an important part of the doctor-patient relationship." Although he was well aware of his longstanding style of interaction with patients, admitting his responded in a robust manner when a patient crossed the threshold by demanding something, it is of concern that he did not see a need to modify it. The 10 complaints in the last 25 years mostly reflect this communication style with several complaints alleging that he was rude or dismissive. It is notable there has been an acceleration of complaints given half have been in the last two years, leading to consideration of an age-related neurocognitive disorder. The acceleration of complains may reflect a coarsening of premorbid personality traits due to executive dysfunction (see below). The general public being less tolerant of what they consider inappropriate behaviour by a doctor may be another factor. The neuropsychological assessment was detailed and tested all aspects of cognition, not just visuospatial function. It has shown declines from estimated premorbid function in multiple cognitive domains apart from verbal abilities. There was particular decline in several tests of executive function, as well as observations that Dr Winter demonstrated low frustration tolerance and poor persistence at tasks. The findings are essentially consistent with preservation of crystallised intelligence which depends on education and experience, and decline in fluid intelligence which is required for novel problem solving and speed of processing. However, the results do not necessarily provide evidence of a neurodegenerative course. Two confounding factors have been raised about the validity of the neuropsychological assessment by Dr Winter and the S150 panel respectively." 1. Associate Professor Wijeratne concluded that Dr Winter's most likely diagnosis was Mild Cognitive Impairment for which there was no obvious risk factors other than age. He concluded that the appellant has an impairment that potentially detrimentally effects his capacity to practise medicine, as defined by the National Law. He then went on to recommend the following steps: "RECOMMENDATIONS Consideration should be given to the following Conditions 1. Cerebral MRI scan with coronal views to determine whether there is any cerebrovascular disease or medial temporal atrophy (report to be given to Council) 2. Repeat neuropsychological assessment in June 2024 3. Consultation of an independent GP for ongoing care which may include referral to an appropriate specialist after the neuroimaging results are known 4. Work under supervision I note a performance assessment has been recommended". Appellant's position on cognitive impairment 1. Dr Winter said he has undergone psychological testing by another psychologist who has reached different conclusions to those of Dr White. He said he has undergone MRI scanning of his brain which he says does not confirm cognitive impairment. That evidence has not been made available to the Tribunal for review. As a consequence, the opinions of Dr White and Associate Professor Wijeratne must stand as being uncontradicted. In those circumstances, reasonably and pragmatically, Dr Winter has conceded he is cognitively impaired. Conclusion 1. On a review of the above evidence, the Tribunal accepts that Dr Winter's concession of cognitive impairment should be accepted as being reasonable. Similarly, his decision to withdraw his appeal and have it dismissed is also reasonable. This leaves the remaining question to be the question of costs. Costs 1. It is common ground that the basis for an order for costs in cases such as this is the reasoned exercise of discretion: cl 13 of Schedule 5D of the National Law: House v The King (1936) 55 CLR 499; [1936] HCA 40; Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11, at [67]; Mahenthirasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 73; [2008] NSWCA 201, at [8] – [9]; Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59, at 542. 2. In this case the respondent ultimately conceded that in light of the available evidence, and in the circumstances of the appellant's concession that the evidence suggests he is cognitively impaired, the appropriate order is that there should be no order as to costs, with the intent that each party should bear their own costs of the appeal. 3. The rationale for that result was the subject of discussion before the respondent decided to accept that position, on advice and instructions. Part of that rationale was that if the appeal was instituted whilst the appellant was affected by a relevant cognitive impairment, albeit belatedly accepted by him, the fair and just order for costs should be as is now agreed. Orders 1. The Tribunal therefore makes the following orders: 1. Leave to the appellant to withdraw his appeal with the consequence that the appeal is dismissed. 2. Pursuant to cl 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the Tribunal makes no order as to costs. ******** 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 Amendments 22 July 2024 - Removed Order 2. 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: 22 July 2024