New South Wales Medical Tribunal CITATION : RE THE MEDICAL PRACTICE ACT 1992 AND DR ROBERT L. ANDERSON [2003] NSWMT 1 TRIBUNAL : Medical Tribunal PARTIES : DR ROBERT L ANDERSON FILE NUMBER(S) : 40015 of 2002 CORAM: Sidis DCJ - Klineberg, Assoc Prof P - Grimes, Dr D - Gleeson, Dr M CATCHWORDS: LEGISLATION CITED: THE MEDICAL PRACTICE ACT 1992 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 4 June 2003 JUDGMENT: Medical Tribunal of NSW District Court No 40015/2002 4 June 2003 Page 10 of 10 DETERMINATION NATURE OF COMPLAINT Pursuant to the Medical Practice Act 1992 (the Act), the Tribunal is enquiring into a Complaint (Exhibit A) dated 27 June 2002, of the Health Care Complaints Commission (HCCC), concerning the professional conduct of Dr Robert Leonard Anderson (the practitioner). The Complaint alleges that the practitioner, being a medical practitioner registered under the Act, has been guilty of professional misconduct or unsatisfactory professional conduct within the meaning of ss 36 and 37 of the Act in that he has: (i) demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine; (ii) contravened conditions to which his registration is subject; and (iii) engaged in improper or unethical conduct relating to the practice of medicine. Particulars set out in the Complaint are as follows: Particulars of Complaint One 1. The practitioner failed to report to the New South Wales Medical Board at yearly intervals the outline of the programme undertaken and the continuing education programmes completed, by September 1999, in contravention of Condition 7 of conditions of his registration imposed by a Professional Standards Committee on 16 August 1998. Particulars of Complaint Two 2. The practitioner failed to participate fully in the maintenance of professional standards programme conducted by the Australian and New Zealand College of Anaesthetists in contravention of condition 5 of his registration imposed by the Medical Tribunal on 27 September 1999. 3. The practitioner failed to report annually to the New South Wales Medical Board the outline of the programme undertaken and the continuing education programmes completed by forwarding to the Board the yearly Statement of Participation issued by the Australian and New Zealand College of Anaesthetists in contravention of condition 6 of his registration imposed by the Medical Tribunal on 27 September 1999. Condition 7 of the conditions of registration imposed by the Professional Standards Committee on 16 August 1998 provided: 7. Dr Anderson should report to the New South Wales Medical Board at yearly intervals the outline of the programme undertaken and the continuing legal education programmes completed. Conditions 5 and 6 of the conditions of registration imposed by the Medical Tribunal on 27 September 1999 provided: 5. Dr Anderson must continue to participate fully in the maintenance of professional standards programme conducted by the College. 6. He must report annually to the NSW Medical Board the outline of the programme undertaken and the continuing education programme completed by forwarding to the Board the yearly Statement of Participation issued by the College. Unsatisfactory Professional Conduct Section 36(1)(a) and (c) of the Act are relevant to the Complaint: Meaning of 'unsatisfactory professional conduct' (1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following: (a) Lack of skill etc Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or care, by the practitioner in the practice of medicine. … (c) Any contravention by the practitioner (whether by act or omission) of a condition to which his or her registration is subject. Professional Misconduct Section 37 of the Act defines professional misconduct as: "....unsatisfactory conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register." ADMISSIONS The following admissions were made by the practitioner: 1. that his conduct was unsatisfactory professional conduct; 2. that, in respect of Complaint 1, he failed to comply with condition 7 imposed by the Professional Standards Committee in that he failed to report to the NSW Medical Board as required between 16 September 1998 and 27 September 1999; 3. that, in respect of Complaint 2: (a) he failed to comply with condition 5 imposed by the Medical Tribunal in 1999 and 2000; and (b) he failed to comply with condition 6 imposed by the Medical Tribunal in 1999, 2000, 2001 and 2002. BACKGROUND 1. The practitioner was born on 16 December 1946. In 1972, he was awarded the degrees of Bachelor of Medicine and Bachelor of Surgery by the University of Queensland. 2. The practitioner was registered to practise as a medical practitioner in Queensland in 1972 and in New South Wales in 1977. 3. He undertook post-graduate training in anaesthetics at Royal Brisbane Hospital by two terms each of six months duration over a period of two years. He received a further six month period of training in anaesthetics at the Alfred Hospital, Melbourne, in the course of his three year period of service with the Royal Australian Navy. 4. He has practised as a general practitioner-anaesthetist since February 1997 at various private and public hospitals. Between 1988 and 1998 he carried out between 30 and 50 anaesthetic procedures per week. Since 1998 the numbers of procedures have decreased to between 15 and 20 due to their increasing complexity. He now practises exclusively as an anaesthetist. 5. The complaint dealt with by the Professional Standards Committee in August 1998 and by the Medical Tribunal in September 1999 arose out of the death on 16 March 1992 of a patient to whom the practitioner had administered general anaesthetic. Both disciplinary bodies found the practitioner guilty of unsatisfactory professional conduct. 6. In the reasons for its decision the Professional Standards Committee expressed great concern concerning the practitioner's training, experience, continuing medical education and professional review. The Committee imposed conditions designed to address these concerns, including a requirement that the practitioner undertake a course of training. 7. On appeal the Medical Tribunal set aside the condition requiring a course of training and imposed in its place an obligation to participate fully in the Maintenance of Professional Standards ( MOPS ) programme conducted by the Australian and New Zealand College of Anaesthetists ( ANZCA ). THE EVIDENCE The evidence before this Tribunal established: 1. Notwithstanding a number of reminders of his need to comply with the conditions imposed by the Professional Standards Committee and the Medical Tribunal and requests for information issued by the New South Wales Medical Board ( the Board ) and the HCCC commencing in December 1999, the practitioner did not respond until 31 October 2001 when he forwarded details of some CME and QA activities to the HCCC. 2. In his letter to the HCCC of 31 October 2001 (Exhibit B11) , the practitioner represented that he had submitted material to ANZCA to secure enrolment in MOPS for the year 2000. The practitioner agreed in his evidence before the Tribunal that this representation was incorrect and that it was made in an attempt to persuade the HCCC to take no further action. 3. Requests made by the Board for copies of Statements of Participation with the requirements of MOPS were not complied with until 27 May 2003, although copies of such Statements for 2001 and 2002 were attached to the practitioner's statement of 5 March 2003. 4. The practitioner in fact enrolled in MOPS in March 2001. It is a requirement of MOPS that returns of activity claimed to meet the CME and QA requirements of the Programme be provided by the end of February following each year of participation. The practitioner did not provide returns of his activities until February 2003, when returns were lodged for the years 2001 and 2002. 5. The practitioner's CME and QA activities in 1998 and 1999, if accepted by MOPS, would have earned him points equal to or in excess of the minimum requirements of the Programme. His activities in 2000 would have been insufficient to meet the minimum requirements of the Programme. There is a dispute as to the extent of the deficiency which does not need to be addressed for the purpose of this inquiry. 6. The practitioner did not report to the Board annually as required by condition 6 imposed by the Medical Tribunal. Details of activities were provided during 2001 and 2002 to the HCCC and the Board after much prompting. 7. The practitioner was not able to offer a satisfactory explanation for his failure to comply with the conditions of his registration as a medical practitioner. There was some evidence that delay was experienced in enrolling in MOPS because of the practitioner's difficulty in locating copies of degrees awarded by Queensland University. This evidence was unconvincing. 8. Dr Loughman, a senior specialist anaesthetist, reviewed the practitioner's conduct and on 17 January 2001 reported (Exhibit B7) : (a) that he was severely critical of the practitioner's failure to comply with the conditions upon which he was registered to practise as a medical practitioner; (b) that he was severely critical of the practitioner's failure to demonstrate between September 1999 and September 2001 his participation in MOPS; and (c) that he was moderately critical of the practitioner's failure to comply with the requirement that he report to the Medical Board. Dr Loughman was called to give evidence before the Tribunal. He maintained his severe criticism of the practitioner's failure to comply with conditions of registration, in particular in circumstances where his practice had previously come under notice of disciplinary bodies. This failure to comply, he said, he regarded as improper conduct. Dr Loughman was moderately critical of the practitioner's failure to enrol in MOPS because of the loss of opportunity to receive information distributed by ANZCA to participants. Dr Loughman was moderately critical of the practitioner's failures to lodge returns with ANZCA within the times prescribed by MOPS, because of the loss of opportunity for feedback on the activities reported and the effect which the delay had upon the value of the Statement of Participation. FINDINGS 1. In addition to the admissions already noted, the practitioner expressed to the Tribunal his apologies for his failure to comply with the conditions of his registration as a medical practitioner. He did not accept that he had deliberately failed to comply with those conditions but accepted that he had ignored and flouted them. He undertook to the Tribunal that in future he would comply with the requirements of the conditions scrupulously. 2. It is clear that the practitioner encountered difficulties in facing up to the obligations imposed upon him by these conditions. He gave evidence concerning the assistance he had received from a colleague, Dr Chiew, a specialist anaesthetist, in dealing with these obligations and of his intention to continue to obtain assistance from Dr Chiew. 3. A letter (Annexure L to Exhibit 1a) from Dr Chiew, dated 15 February 2003, stated that he was willing to continue to oversee compliance by the practitioner with conditions directed at his participation in MOPS. 4. It was submitted on behalf of the Complainant that there was sufficient evidence to warrant a finding by the Tribunal of professional misconduct although this was not contended for by the Complainant. 5. The Tribunal is charged with exercising powers to sanction members of the medical profession for the purpose of protecting the community. The principal consideration in the exercise of these powers is the maintenance of the standards of the medical profession and maintaining the confidence of the public in the profession. The public is entitled to the assurance that measures will be taken to address breaches of acceptable standards of practice. 6. Taking this principle into account, together with the undertaking given to the Tribunal by the practitioner, the evidence concerning Dr Chiew, and the professional references of Dr Chiew and Dr Durmush as to the practitioner's professional capacity, the Tribunal is not persuaded that a finding of professional misconduct should be made. 7. The Tribunal, however, accepts the concession of the practitioner and finds that his conduct to date has amounted to unsatisfactory professional conduct of a very serious nature. ORDERS 1. The practitioner is severely reprimanded. 2. The practitioner is fined the sum of $7,500. 3. The conditions of registration imposed upon the practitioner on 27 September 1999 are confirmed and varied by adding the following further conditions: (1) The practitioner is to provide to the New South Wales Medical Board annually an outline of the programme he intends to adopt in order to meet the requirements of MOPS. The programme is to be submitted by not later than 31 December in each year and is to outline proposed CME and QA activities for the following calendar year. (2) The practitioner is to report to the Medical Board at six monthly intervals in respect of the CME and QA activities undertaken in pursuit of the outline programme. The reports are to be submitted by not later than 30 June and 31 December in each year. (3) The practitioner is to continue to enrol annually in MOPS and is to comply with all requirements of ANZCA in respect of MOPS including the requirement to lodge annual returns by the date specified. (4) A specialist anaesthetist who is a member of ANZCA, nominated by the practitioner and approved by the Medical Board, is to be appointed to oversee the practitioner's continuing compliance with the conditions of registration imposed on the practitioner. The appointment is to be made by not later than 30 June 2003. The appointee is to endorse the practitioner's six monthly reports to the Medical Board to the effect that the practitioner has satisfactorily complied with the nominated conditions. The appointee is to report to the Medical Board any failure by the practitioner to comply with the nominated conditions. 4. The practitioner is to pay the Complainant's costs of the proceedings. Dated: 4 June 2003 Deputy Chairperson, Judge Sidis …………………………………………. Associate Professor P L Klineberg …………………………………………. Dr D Grimes AO …………………………………………. Dr M Gleeson, PhD …………………………………………. 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