Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Howe [2014] NSWCATOD 30 Hearing dates: 3, 4, 5, 6, & 7 February 2014 Decision date: 07 April 2014 Jurisdiction: Occupational Division Before: Acting Judge R H Solomon, Principal member Dr M Giuffrida, Medical member Dr M Friend, Medical member Dr C Berglund, Lay member Decision: Complaint One is proven Complaint Two is not proven The Tribunal orders that the registration of the practitioner is subject to conditions. The Tribunal orders that each party pay its own costs. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336, Rejfek v McElory (1965) 112 CLR 517, Bannister v Walton (1993) 30 NSWLR 699) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Gordon Christopher Howe (Respondent) Representation: Counsel Mr P Griffin (Complainant) Mr M Lynch (Respondent) Health Care Complaints Commission (Complainant) Avant Law Pty Ltd (Respondent) File Number(s): 1420015 Publication restriction: Non publication order made in respect of any patient of Dr Howe referred to in the proceedings. order and reasons for decision 1The Tribunal is constituted to deal with a Complaint received by it from the Health Care Complaints Commission ("HCCC"). 2The Complaint to be dealt with by the Tribunal is that Dr Gordon Christopher Howe ("the practitioner") being a medical practitioner registered under the Health Practitioner Regulation National Law ("the National Law"): COMPLAINT ONE Has impairments. PARTICULARS OF COMPLAINT ONE (1)The practitioner has physical and mental impairments and conditions, namely Parkinson's disease with mild cognitive impairment, hearing loss and monocular vision that detrimentally affect or are likely to detrimentally affect the practitioner's capacity to practise the profession. COMPLAINT TWO Is not competent to practise the medical profession under section 139 of the National law as the practitioner does not have sufficient physical and mental capacity to practise the profession. PARTICULARS OF COMPLAINT TWO (1)The practitioner has impairments as particularised in Complaint 1 above. (2)The practitioner's impairments are of a sufficient nature and degree to impair the practitioner's physical and mental capacity to practise the profession. 3The Health Care Complaints Commission bears the onus of proving the particulars contained in the Complaint to the Tribunals comfortable satisfaction on the balance of probabilities (see Briginshaw v Briginshaw (1938) 60 CLR 336, Rejfek v McElory (1965) 112 CLR 517 and Bannister v Walton (1993) 30 NSWLR 699). The Health Care Complaints Commission seeks an order that the Tribunal cancel the practitioner's registration pursuant to section 149C(1)(a) of the National Law. GENERAL BACKGROUND OF THE PRACTITIONER 4The practitioner was born on 11 August 1943. The practitioner graduated from Sydney University in 1969 with the degrees of Bachelor of Medicine and Bachelor of Surgery. In 1970 the practitioner was employed as a resident medical officer at Royal Newcastle Hospital. The practitioner continued employment at Royal Newcastle Hospital undertaking training in orthopaedics and plastic surgery until 1973. 5In 1974 the practitioner was employed as a Senior House Officer at Bradford Royal Infirmary. In 1975 and 1976 the practitioner was employed at King Edward VIII Hospital in Durban, South Africa and undertook general surgery and plastic surgery as a Senior Registrar. In 1975 the practitioner was admitted to fellowship of the Royal College of Surgeons (Edinburgh). Between 1977 and 1978 the practitioner was employed at Hornsby District Hospital as a Senior Registrar undertaking plastic surgery. 6In 1978 the practitioner was accredited by the New South Wales Medical Board as a plastic and reconstructive surgeon. From 1978 until 2008 the practitioner worked as a consultant plastic surgeon at Wallsend District Hospital, Newcastle Mater Misericordiae Hospital and John Hunter Hospital. For the period 1978 to 2011 the practitioner practised in private practice in the Newcastle area as a plastic surgeon. In 1984 the practitioner established the Newcastle Melanoma Unit and held the position of Director of the unit until 2004. Between 1993 and 1994 the practitioner was the President of the Hunter branch of the Australian Medical Association. 7On 30 September 2010 the practitioner had conditions imposed on his registration following a finding by the Medical Tribunal of professional misconduct regarding the conduct of the practitioner with a female patient. The conditions imposed by the Medical Tribunal included interalia a condition that a chaperone be present when the practitioner examined or treated a female patient and a condition that the practitioner undertake a neuropsychometric assessment by a neuropsychologist. In accordance with the condition imposed by the Medical Tribunal regarding the neuropsychometric assessment, the practitioner was assessed by a neuropsychologist, Associate Professor Wayne Reid, on 8 March 2011. On 15 March 2011 Associate Professor Reid provided a report to the Medical Council of New South Wales and concluded that the practitioner was "found to have significant cognitive impairment consistent with the cognitive impairment associated with the akinetic form of Parkinson's disease". 8On 31 May 2011 proceedings were brought pursuant to section 150 of the National Law to determine whether it was appropriate to take action in relation to the practitioner pursuant to section 150 of the National Law. The proceedings were convened to consider the findings of Associate Professor Reid and a breach of the chaperone condition imposed by the Medical Tribunal. 9On 31 August 2011 the Medical Council of New South Wales through its delegates imposed conditions on Dr Howe's registration pursuant to section 150(1)(b) of the National Law. The conditions, interalia, included a condition that the practitioner attend neuropsychological testing by a Council appointed psychologist. 10The Medical Council of NSW appointed Dr Pauline Langeluddecke to examine the practitioner. The practitioner attended Dr Langeluddecke for testing on 22 September 2011 and on 23 September 2011 Dr Langeluddecke in a report advised the Medical Council of NSW that: "I would expect the cognitive and fine motor impairments evident on neuropsychometric testing to adversely affect Dr Howe's capacity to practise medicine in a safe and responsible manner and to competently perform the duties of a specialist plastic surgeon. Accordingly I am of the opinion that Dr Howe currently suffers from an impairment within the meaning of the Health Practitioner Regulation National Law". (see Exhibit A1, tab 7B, page 12). 11On 16 December 2011 further proceedings under section 150 of the National Law were heard. At the expiration of the hearing the delegates were comfortably satisfied that pursuant to section 150(1)(a) of the National Law that the practitioner's registration be suspended from Friday 16 December 2011. RELEVANT EVIDENCE REGARDING THE PRACTITIONER'S VARIOUS MEDICAL CONDITIONS 12The practitioner gave evidence that in the year he completed Medicine 1 at the University of Sydney he had a vacation in Stroud, New South Wales where he contracted encephalitis which was not diagnosed at the time. The condition caused the practitioner to suffer high frequency bi-lateral hearing loss and tinnitus. The practitioner in 2004 was diagnosed with ocular melanoma and underwent enucleation of the left eye. In 2010 the practitioner noticed that he had developed stiffness in his right hand, that his handwriting had deteriorated and that he was slower in performing surgical procedures than had been the case in the past. The practitioner attended upon Dr Burton a neurologist in September 2010. 13Dr Burton gave evidence at the hearing that when he examined the practitioner in 2010 the practitioner presented with a hemi-Parkinsonian syndrome. Dr Burton in his evidence noted that there has been a very slow progression in the practitioner's Parkinsonian feature. (see transcript page 141, line 11). Dr Burton gave evidence to the effect that he has not observed any significant cognitive issues in the practitioner. Dr Burton gave evidence to the effect that he had read the neuropsychological assessments and that the assessments indicate a consistent pattern of some executive function deficit but that he would not expect the deficit to have a significant impact on the practitioner's capacity to practise as a surgeon who restricted his activities to skin cancer procedures (see transcript page 140, line 31, transcript page 141, line 6). 14Professor Christopher Levi, conjoint Professor of Neurology at the University of Newcastle, examined the practitioner on four occasions between September 2010 and September 2013. In his report dated 13 September 2013 Professor Levi opined: "As I said I am very happy with his functional status, he is clearly showing stability in maintaining treatment responsiveness without any significant fluctuations". (see Exhibit 1, tab 6). 15Dr Peter Barrie, an ear nose and throat surgeon, examined the practitioner on 25 November 2013. In a report dated 27 November 2013 Dr Barrie opined: "His speech discrimination when aided is 92%. This means that in a consulting environment without significant background noise Dr Howe would hear quite well". (see Exhibit 1, tab 10). 16Dr Robert Griffits, an ophthalmic surgeon, examined the practitioner . In a report dated 17 January 2014, Dr Griffits opined: "His vision in the RE at 65 with his glasses correction ...... His visual acuity and depth perception is adequate for holding a driver's licence and for work". (see Exhibit 1, tab 23). NEUROPSYCHOLOGICAL TESTING 17The practitioner has been examined by four neuropsychologists, namely Associate Professor Reid on 8 March 2011, Dr Langeluddecke on 22 September 2011, Dr Roberts on 21 January 2013 and 14 February 2013, and Dr Baird on 13 December 2013 and 20 December 2013. 18Each of the neuropyschologists found on testing that the practitioner had cognitive impairments, especially in the area of executive functioning and that the practitioner had an impairment to his fine motor movements. The neuropsychological testing was conducted by the neuropyschologists over a two years and nine months time frame and the practice effect was manifest in a number of the test results. 19Professor Levi prior to giving his evidence read each of the neuropsychological reports and gave evidence as follows: "The assessments in my view demonstrate stability of cognitive performance over time. No significant change was my bottom line on those serial assessments which, to me, was quite reassuring clinically". (see transcript page 66, line 6). 20It is noted that no neuropsychological testing was undertaken prior to the practitioner's diagnosis of Parkinsons' disease in 2010. That being the case the Tribunal is unable to find that the Parkinsons' disease contributed to the practitioner's cognitive impairment. In this regard the Tribunal accepts the opinion of Dr Baird contained in her report of 1 January 2014 where she opined: "It is not possible to determine whether his cognitive weaknesses are due to his encephalitic illness at 21 years of age and therefore longstanding in nature, or as a result of a more recent onset of PD. Therefore, the effect of these cognitive changes on his surgical skills cannot be determined". (See Exhibit 1, tab 5, page 5). The practitioner's fine motor skills were found to be impaired by each of the neuropsychologists who assessed the practitioner. The fine motor skills test given to the practitioner was the grooved pegboard test. The Tribunal notes that the practitioner due to his monocular vision may have had difficulty in undertaking the grooved peg board test. THE PRACTITIONER'S PHYSICAL CAPACITY TO PRACTISE SURGERY 21The practitioner as a consequence of his Parkinsons' disease has rigidity in his right hand. The practitioner indicated in his evidence that the rigidity has caused him to undertake surgical procedures at a slower pace than he did prior to the onset of Parkinsons' disease. The practitioner further indicated in his evidence that the Parkinsons' disease did not affect his accuracy or capacity to undertake plastic surgery (see transcript page 164, line 7). 22The Tribunal notes that the practitioner does not suffer from a tremor in his hands. 23The practitioner was examined by Dr Steven J Kemp, a hand and upper limb surgeon, on 27 November 2013, who opined in a report of the same date that: "It is my impression there is no structural issue in Dr Howe's hands that would prevent him from returning to surgical practice. He certainly has some degenerative changes consistent with his age however he retains sufficient dexterity and strength to perform the fine motor tasks that would be involved in plastic surgical practice". (see Exhibit 1, tab 12). 24Dr Burton gave evidence that he has not observed any apparent physical incapacity in respect of the practitioner undertaking skin cancer surgery. (see transcript page 139, lines 40-42). ASSESSMENTS OF THE PRACTITIONER'S CAPACITY TO PERFORM PLASTIC SURGERY PRIOR TO DECEMBER 2011 25Dr Rob Burgess, an anaesthetist, worked with the practitioner between 1998 and 2011. In his statement dated 8 November 2013 Dr Burgess considered that the practitioner displayed a very high level of professional standards and was known as an honest, dedicated and hardworking surgeon (see Exhibit 1, tab 19, page 2). 26Dr Hazel McClarty, a general practitioner and surgical assistant, assisted the practitioner in surgery for about fifteen months prior to the practitioner's suspension. In December 2011 Dr McClarty in her statement (undated) indicated that the practitioner performed a number of procedures including excision of skin cancers with either full thickness or split skin grafting together with other procedures and that she had not ever witnessed any unexpected complications whilst assisting the practitioner. Additionally in her statement Dr McClarty indicated that in her capacity as a general practitioner she referred patients to the practitioner. (see Exhibit 1, tab 17). 27Dr John V Newton, a cosmetic plastic surgeon, in his letter of 25 October 2013 indicated that he worked in Newcastle as a colleague of the practitioner from 1986 and that his professional association continued with the practitioner until the end of 2011. Dr Newton in his letter indicated that he had operated with Dr Howe as late as 2011 on a patient who had facial surgery and that he and the practitioner worked together to obtain the optimal result for the patient. Dr Newton in his letter indicated that he examined a number of the practitioner's patients after the practitioner had ceased to practise and stated: "In short, given the opportunity to follow up Dr Howe's patients as a group subsequent to his cessation of practice, I found no problems of any significance whatsoever". (see Exhibit 1, tab 16). 28Janeen Parmenter, a nurse educator, worked with the practitioner as his instrument nurse at NIB Private Hospital from 2008 until December 2011. In her letter dated 24 September 2013 Ms Parmenter wrote: "A major part of my role as an Instrument Nurse is acting as the patient's advocate. Therefore it should be noted throughout my time of working with Dr Howe I felt at no time was a patient put in an unmanageable or dangerous situation with the patients' safety always the number one priority". (see Exhibit 1, tab 14). 29The evidence of the practitioner's colleagues presented to the Tribunal was overwhelmingly to the effect that the practitioner was competent to practise as a plastic surgeon at the time of his suspension in December 2011. THE VALUE OF A PRACTICAL PERFORMANCE ASSESSMENT OF THE PRACTITIONER 30The Tribunal is of the view that the neuropsychological testing administered to the practitioner is of significant relevance to the assessment of the practitioner's competency. However, the thrust of the evidence both documentary and oral is that in order to effectively test the practitioner's present competence a practical performance assessment of the practitioner is required in addition to the neuropsychological testing. (See evidence of Dr Langeluddecke, transcript page 40, lines 11 to 36, evidence of Professor Levi, transcript page 66, line 4, evidence of Professor Storey, transcript page 109, line 37 to transcript page 110, line 13, report of Dr Baird, Exhibit 1, tab 5, page 5, evidence of Dr Burton, transcript page 141, line 17, report of Professor Newton, Exhibit 1, tab 1, Annexure C, page 7.) THE PRACTITIONER'S CURRENT MEDICAL KNOWLEDGE 31The practitioner has not practised medicine since 16 December 2011. The long period over which the practitioner has not practised medicine is noted by the Tribunal. However the practitioner's long experience as a plastic surgeon and the fact that the practitioner intends to perform only skin cancer surgery mitigates the Tribunal's concern for the safety of the public. THE EVIDENCE OF THE PRACTITIONER 32The practitioner gave evidence over many hours during the hearing and was closely observed by the members of the Tribunal. The practitioner gave his evidence in a clear, lucid, articulate and confident manner. The practitioner answered questions put to him in cross examination directly without prevarication. Further, the practitioner made appropriate concessions during his evidence. The thrust of the practitioner's evidence was that if he was permitted to practise he would restrict his practice to as a plastic surgeon to skin cancer surgery. THE NATURE OF COMPLAINT 33The Notice of Complaint contains two complaints. (1)Complaint One complains that the practitioner has impairment. "Impairment" is defined in section 5 of the National Law as follows: Impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects of is likely to detrimentally affect - (a)for a registered practitioner or an applicant for registration in a health profession the person's capacity to practise the profession. The Notice of Complaint sets out the Particulars of Complaint One in the following terms: The practitioner has physical and mental impairments and conditions, namely Parkinson's disease with mild cognitive impairment, hearing loss and monocular vision that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession. The practitioner in his statement dated 26 September 2013 admitted Complaint One (see Exhibit 1, tab 1, paragraph 111). In light of the evidence given at the hearing and the practitioner's admission, the Tribunal is comfortably satisfied that Complaint One has been proven. The finding by the Tribunal that the practitioner is impaired cannot of itself bring about a deregistration order pursuant to section 139C of the National Law. The Tribunal's powers after a finding of impairment by it are restricted to the powers set out in section 149 of the National Law. (2)Complaint Two complains that the practitioner is not competent to practise the medical profession under section 139 of the National Law as the practitioner does not have sufficient physical and mental capacity to practise the profession. The Notice of Complaint sets out the Particulars of Complaint Two in the following terms: (1)That the practitioner has impairments as particularised in Complaint One; and (2) That the practitioner's impairments are of sufficient nature and degree to impair the practitioner's physical and mental capacity to practise the profession. 34Section 139 of the National Law provides a person is competent to practise a health profession only if the person - (a)has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b)has sufficient communication skills for the practice of the profession including an adequate command of the English language. 35The evidence presented to the Tribunal by the Health Care Complaints Commission regarding the competence or otherwise of the practitioner does not include evidence of the practitioner's ability or inability to perform plastic surgery as assessed by way of practical performance assessment. 36The Tribunal is of the view that evidence of a practical performance assessment of the practitioner's ability or inability to perform plastic surgery was necessary to be given at the hearing in order for the Tribunal to properly determine the competency or otherwise of the practitioner. 37On the evidence presented to the Tribunal Complaint Two is not proven. 38The Tribunal orders that each party pay its own costs. CONDITIONS 39The Tribunal orders that the registration of the practitioner is subject to the following conditions. EMPLOYMENT (1)Prior to recommencing practice, Dr Howe is to complete the equivalent of one year's pro-rata, of CPD activities relevant to skin cancer surgery, consistent with the requirements of AHPRA's Recency of practice registration standard, clause 1 (b). (i)To provide evidence to the Medical Council of New South Wales within 21 days of completing the above mentioned CPD activities. (2)Dr Howe is not to recommence to practise prior to the Medical Council of New South Wales verifying his compliance with condition 1. (3)Dr Howe to practise only as an assistant surgeon to a specialist plastic surgeon for a minimum period of 100 hours in not less than three months. (i)To maintain a log of his practice as an assistant surgeon. The log is to record the dates, length of time worked, the name and contemporaneous signature of the specialist plastic surgeon he is assisting. (ii)The log is to be submitted to the Medical Council of NSW at the completion of the minimum period. (4)Following the completion of the minimum period stipulated in Condition 3, Dr Howe is to undergo Performance Assessment to be conducted by delegates of the Medical Council of New South Wales in order to assess his capacity to safely conduct surgery as principal surgeon. (5)The surgery performed by Dr Howe for the purpose of the Performance Assessment, is to be performed under the supervision of a qualified plastic surgeon. (6)Dr Howe is not perform any surgery as principal surgeon, until he has been assessed by the Performance Assessors as being capable of safely doing so and the Medical Council of New South Wales has approved him doing so. (7)A further Performance Assessment is to be conducted by delegates of the Medical Council of New South Wales in not less than three months in the event of Dr Howe becoming eligible to commence performing surgery as the principal surgeon. (8)Dr Howe is to nominate within 21 days of any resumption of performing surgery as a principal surgeon a specialist plastic surgeon for approval by the Medical Council of NSW. For a period of 12 months following the Council's approval of the specialist plastic surgeon; (i)Dr Howe is to forward pre and post-surgery de-identified photographs and histology on every patient operated on by him as principal surgeon, to the approved specialist plastic surgeon. The approved specialist plastic surgeon is to review the photographs and maintain a record as to appropriateness of each surgical procedure performed by Dr Howe. (ii)A random selection of 5 patients operated on by Dr Howe in a month, are to be referred to the approved specialist plastic surgeon referred to in 8 (i) supra in order to assess the clinical indications for the surgery, the appropriateness of the surgical procedure and the operation result. (iii)Dr Howe is to authorise the approved specialist plastic surgeon referred to in 8 (i) supra to forward a copy of the record maintained by the approved plastic surgeon with regard to the matters in paragraphs (i) and (ii) above to the Council within seven days of the end of each calendar month. (iv)All costs associated with condition 8 are to be borne by Dr Howe. (9)Dr Howe is not to work more than five hours a day for a maximum of three days per week. (10) Dr Howe is to perform only skin cancer surgery. (11)Whenever Dr Howe examines or treats any female patient, an adult third person must be present at all times. Such person may be a family member of the patient. (12)Dr Howe will forward to the Medical Council of New South Wales within seven days of the end of each calendar month, a report listing all female patients examined by him during the calendar month, showing in respect of each patient, the date of every examination and the name or names of the person or persons present throughout that examination. This report must include: (i)The name of the patient and the chaperone; (ii)The contemporaneous signature of the chaperone; (iii)The date and time of the examination. (13)Dr Howe is 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. HEALTH (1)Dr Howe is to attend a Review Interview at the Medical Council of NSW in 6 months or as otherwise directed by the Council. (2)Dr Howe is to attend a review by the Council- Appointed Neurologist on a 3 monthly basis or as otherwise directed by the Medical Council of NSW, at the Council's expense. (3)Dr Howe is to attend for treatment by a neurologist of his choice at a frequency to be determined in consultation with the treating neurologist. He is to authorise the treating neurologist to inform the Council of any failure to attend for treatment, termination of treatment or if there is any significant change in health status. (4)Dr Howe is to attend for treatment by a psychiatrist of his choice at a frequency to be determined in consultation with the treating psychiatrist. He is to authorise the treating psychiatrist to inform the Council of any failure to attend for treatment, termination of treatment or if there is any significant change in health status. (5)Dr Howe is to attend for treatment by a general practitioner of his choice at a frequency to be determined in consultation with the treating general practitioner. He is to authorise the treating general practitioner to inform the Council of any failure to attend for treatment, termination of treatment or if there is any significant change in health status. (6)The extent of Dr Howe's surgical practice is to be guided by his health status, the advice of his treating practitioners and Council-appointed practitioners. (7)Dr Howe is to attend for neuropsychometric assessment at the direction of the Medical Council of New South Wales. (8)Dr Howe is to authorise the Medical Council of NSW to forward copies of this decision and any subsequent Council Review Interview or other reports and any other information relevant to his health and treatment to the Council Appointed Practitioner and to his treating practitioners 40These conditions may be altered, varied or removed at the discretion of the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW). 41Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia. ********** 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: 07 April 2014