New South Wales Medical Tribunal CITATION : In Re Dr Ross Bills and the Medical Practice Act 1992 [2005] NSWMT 1 TRIBUNAL: Medical Tribunal PARTIES : Dr Ross Bills Health Care Compliants Commission FILE NUMBER(S) : 40010 of 2003 CORAM: Puckeridge, QC DCJ - Child, Dr D - Giuffrida, Dr M - Kusuma, Ms R CATCHWORDS: LEGISLATION CITED: Medical Prcatice Act1992 CASES CITED: DATES OF HEARING: DATE OF JUDGMENT: 17 January 2005 ORDERS: 1 The complaint be dismissed.; 2 Each party pay its own costs. JUDGMENT: Reasons for Determination 1 At the commencement of the hearing the Tribunal was advised that the Health Care Complaints Commission [the complainant] relied upon particular 4(i) of the amended complaint dated 18 February 2004 to support its complaint. 2 Paragraph 4 of the amended complaint reads:- The practitioner contravened a condition of his registration when he: (i) failed to attend for review by Dr P Morse, Board nominated Psychiatrist in July 2000. 3 Dr Bills first came to the attention of the New South Wales Medical Board in 1994 following a notification of the Pharmaceutical Services Branch that he had been self-administering pethidine. An Impaired Registrants Panel was convened on 22 July 1994 and conditions were placed on Dr Bills' practice. 4 At a Board review on 2nd February 1999, Dr Bills agreed to the continuation of his registration as a medical practitioner on certain conditions. 5 Following notification from the Pharmaceutical Services Branch that 2560 Panadeine Forte tablets had been supplied to Dr Bills from the Karabar Pharmacy in the 12 month period to June of 1999, Dr Bills was interviewed on 29 June 1999. In that interview Dr Bills denied self-administration save for the medical condition of arthritis and stated that the Panadeine Forte in question was supplied to patients as 'sample packs'. An Impaired Registrants Panel was convened on 4 February 2000 regarding Dr Bills. 6 On 4/4/2000 the practitioner signed an agreement to certain conditions being placed on his registration. Relevant to the matter now being considered by this Tribunal was Dr Bills' agreement to condition (9) which read: (9) To attend for review by Dr Morse, the Board nominated Psychiatrist, initially on a six monthly basis, at the Board's expense. 7 By letter dated 22nd March 2000 the Medical Board wrote to Dr Bills advising that the Medical Board Health Committee had endorsed the conditions agreed to by the practitioner. In the fourth paragraph of that letter it is stated:- Please ensure that you arrange to see Dr Morse, the Board nominated Psychiatrist, in July 2000 to enable him to forward a report to the Board prior to your review interview. 8 In that letter the Medical Director reminded Dr Bills that it was his responsibility to arrange all future appointments with Dr Morse. 9 The practitioner did not arrange to see Dr Morse in July 2000 and a report was not available to the Board prior to a review interview by Dr Michael Diamond and Dr Bernard Kelly on 25 August 2000. 10 Counsel appearing on behalf of Dr Bills admitted that the practitioner should have arranged to see Dr Morse in July 2000 and failed to do so. During initial discussions with Counsel as to what was relevant to the matter now to be determined by the Tribunal Counsel further stated that it was not admitted that the failure of Dr Bills to arrange an appointment with Dr Morse amounted to a breach of condition (9) and/or amounted to unsatisfactory professional conduct. 11 Counsel for the complainant has stated that the original complaint was framed on the basis of certain information which was later found to be incorrect. Counsel further stated that if the particular of the complaint was established the practitioner was only guilty of unsatisfactory professional conduct. 12 Dr Bills appeared before a s66 inquiry on 2 February 2001. At that enquiry it was submitted to the delegates that whilst the practitioner had failed to attend a treating Psychiatrist, his failure was based on the fact that the practitioner was not convinced that he needed to see such a Psychiatrist. The delegates noted in a report of Dr Morse of 15th December 2000 that doctor's recommendation to the Board was that Dr Bills be required to follow the conditions imposed upon him at the Impaired Registrants Panel on 4 February 2000 and that this included the requirement to attend upon a treating Psychiatrist. The delegates at the s66 inquiry on 2 February 2001 advised Dr Bills that this opinion of Dr Morse was an objective opinion, derived from a specialist in the field of drug and alcohol dependency, and further advised Dr Bills that based on the Board's experience with impaired doctors, such doctors remained vulnerable and at risk of relapsing for an extended period of time. 13 At that inquiry, the delegates accepted that Dr Bills had experienced a degree of difficulty in identifying with a new treating Psychiatrist. The delegates required assurances from Dr Bills that he would find a treating Psychiatrist within the next three months and advised that there was no requirement by the Board to approve the treating Psychiatrist and that he was free to find a Psychiatrist with whom he could relate. A condition to that effect was placed upon Dr Bills' continuing registration by the delegates of the inquiry. 14 Counsel for Dr Bills stated that it was on the Friday prior to the commencement of the hearing on Monday 2 August 2004, that he was advised that the complainant was proceeding on the basis that Dr Bills contravened a condition of his registration when he failed to attend for review by Dr Morse in July of 2000. It was submitted on behalf of the practitioner that the Tribunal should first make a determination in relation to the complaint and then proceed to the second stage of considering the conditions to which the practitioner's continuing registration is subject. 15 Counsel for the complainant submitted that the provisions of s66B(3) of the Medical Practice Act required that following the s66 inquiry the complainant was obliged to refer the complaint either to the Tribunal or a committee. 16 Counsel for the complainant stated that a concern arose following the Impaired Registrants Panel convened on 4 February 2000, that the practitioner was not complying with the urinalysis condition imposed on his registration and that it was this concern which prompted the s66 Inquiry which occurred on 2 February 2001. 17 Counsel for the complainant stated that once it was determined that the complaint would be framed in terms that Dr Bills had been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of s36 and 37 of the Medical Practice Act in that he had contravened conditions to which his registration was subject the complainant was obliged to refer the matter to the Tribunal. Subsection 4 of s66B requires that serious complaints must be referred to the Commission. 18 The complainant submitted that on the information supplied by the Medical Board in good faith and relied upon by the complainant, it was appropriate for the Tribunal determine the complaint. 19 It was submitted on behalf of the practitioner that the provisions of s66C of the Medical Practice Act applied, and that there was a need for evidence of the matters referred to in ss (3) and (4) of s66C before it could be said that the complaint had come to the Tribunal by reason of the s66 inquiry. 20 S66C applies if the Board imposes conditions on the registration of a registered medical practitioner under s66 because the Board is of the opinion that the practitioner suffers from an impairment. Subsection (4) states that the matter is to be dealt with as a complaint against the practitioner only if following a consultation with the Commission:- (a) the Board and the Commission agree that it should be dealt with as a complaint, or (b) either the Board or the Commission is of the opinion that the matter should be dealt with as a complaint. 21 Counsel for the complainant stated that if a decision was now being made as to the matter at present before the Tribunal, it may well be that the matter would have been referred by the Medical Board to a committee in accordance with section 66B(3). The complainant does not now allege that the particular complaint being considered by the Tribunal amounts to serious misconduct. 22 Taking into account the time that has elapsed since the failure of Dr Bills to arrange for an appointment to see Dr Morse in July of 2000 and the determination of the s66 Inquiry of 2 February 2001, that Dr Bills attend for treatment by a Psychiatrist of choice and at a frequency to be determined by the treating doctor, and further that Dr Bills attend for review by Dr Morse initially on a six monthly basis at the Board's expense, the Tribunal does not consider that any contravention of condition 9 of the agreement to conditions signed by the practitioner on 4/4/2000 amounts to unsatisfactory professional conduct. 23 On 2nd August 2004, the Tribunal advised Dr Bills that the Tribunal having considered the matter were of the view that on the evidence as adduced, and on the admissions made by the practitioner the Tribunal was of the view that the conduct as referred to in particular 4(i) of the amended complaint of 18/2/04 did not amount to unsatisfactory professional conduct. 24 Having determined that the practitioner is not guilty of unsatisfactory professional conduct the Tribunal does not consider that it is appropriate for the Tribunal to vary the conditions imposed on the continuing registration of Dr Bills. 25 The respondent served his submissions as to Jurisdiction on 21 July 2004. The complainant considered these submissions and documents served in support of same and after making certain enquiries determined to withdraw particulars 2, 3 and 4(ii) of the amended complaint. The complainant submitted that the information supplied to it by the Medical Board [subsequently found to be incorrect] justified the bringing of a complaint that the practitioner was guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of section 36 and section 37 of the Medical Practice Act. 26 The Tribunal considers in the circumstances that each party pay its own costs. ORDERS 1 The complaint be dismissed. 2 Each party pay its own costs. 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.