Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ismail v Medical Council of NSW [2014] NSWCATOD 111 Hearing dates: 29 September 2014 Decision date: 10 October 2014 Jurisdiction: Occupational Division Before: F Marks, Acting District Court Judge Dr J Mair, Lay member Dr V de Carvalho, Professional member M Bennett, Professional member Decision: Order of Medical Tribunal varied in part Pursuant to section 79 (2) (a) of the Civil and Administrative Tribunal Act 2013 and section 159C (1) of the Health Practitioner Regulation National Law (NSW) 2009, the Tribunal varies Practice Condition 1 (c) of the Orders made by the Medical Council of NSW in its Decision dated 16 May 2014 as follows: 1(c) The supervisor(s) not be conducting his or her own list at the same time that the practitioner is practising medicine; except that the supervisor(s) may be supervising one other practitioner conducting a list in an operating theatre who is at no lower level than (i) a career medical officer; or (ii) an advanced trainee or equivalent. Catchwords: External appeal from decision of delegates of medical tribunal-practice conditions varied to facilitate supervision of appellant Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Dr Sanaa Ismail (Appellant) Medical Board of NSW (Respondent) Representation: Counsel K Sant (Appellant) P Lowson (Respondent) Avant Law (Appellant) Crown Solicitor (Respondent) File Number(s): 1420216 reasons for decision Introduction 1This is an appeal brought by the Appellant, Dr Sanaa Ismail from a decision of delegates of the Medical Council of NSW, made on 16 May 2014, which imposed certain practice conditions on the practice of the appellant as an anaesthetist. The notional Respondent to the proceedings is the Medical Council of NSW. In essence, the appellant complained that some of the practice conditions were more restrictive than was necessary to protect the public and had the effect of precluding the appellant from continuing to practice medicine. This was because the public hospital administration at which she conducted a substantial part of her practice was unable to make the necessary resources available to allow her to comply with the practice conditions. During the course of the hearing it became obvious that the substantive matter in dispute was within a narrow compass. This centred around the wording of one of the practice conditions, to ensure that it was in a form which was capable of being applied by the public hospital in which the appellant worked. After discussion between the parties, agreement was reached between them as to a suitable wording which could be adapted to the practice conditions imposed by the Medical Council, subject to this Tribunal being satisfied that it was appropriate to vary the practice conditions in all the circumstances. 2The matter was complicated by the fact that the practice conditions were imposed following an unfortunate incident at the public hospital in which complications arose, during the course of the administration of an anaesthetic by the appellant, and the patient concerned later died. The circumstances surrounding this incident are the subject of ongoing investigations by the Health Care Complaints Commission. It is not known at this stage when that investigation will be complete and whether, and to what extent, the HCCC may determine whether any action may be brought against any person or entity, including the appellant. Thus, the practice conditions may ultimately be overtaken by any decision of the HCCC. 3We proceed to deal with this matter on the basis that the appeal involves a hearing de novo, and that the relevant circumstances are those which apply as at the hearing of this matter. The factual background 4Because the facts are within a narrow compass, and because we have determined that it is appropriate to make the agreed variation to the practice conditions, it is not necessary to traverse the facts in great detail. The facts which we set out below are taken from a large amount of documentary evidence tendered by both parties in the proceedings, including factual matters and conclusions reached by the delegates of the Medical Council as set out in the decision under appeal. 5The appellant was born in 1965. She graduated from an overseas university in 1992 and became a Fellow of the Australian and New Zealand College of Anaesthetists in 2009. The incident which gave rise to the imposition of the practice conditions occurred in a public hospital in Western NSW on 31 January 2014. The patient was admitted on an emergency basis. The appellant reviewed the patient's notes and spoke to him. She then proceeded to administer a general anaesthetic, and during the course of the operation the patient's health deteriorated. 6In their decision, the delegates of the Medical Council expressed concern about a number of issues. These included the pre-operative assessment conducted by the appellant, "the management of the anaesthetic, her apparent lack of recognition that the patient was pre-arrest, and her delay in calling for help before the patient went into full cardiac arrest." It was said also that there were a number of indications that the patient was very sick and an extremely high-risk patient and that the appellant had failed to appreciate the full implication of those matters. It was said that she lacked "clinical skills and insight, and performed a poor pre-operative assessment." There was also criticism levelled at the applicant's record-keeping and her failure to check the pre-operative checklist prepared by the nursing staff. There was a serious concern levelled at an asserted failure by the appellant to acknowledge the nature and extent of the condition of the patient, and at her propensity to "deflect blame or responsibility" on to others. Other matters of concern were expressed in the decision, but these were of a less serious nature. 7We note that included in the evidentiary material made available to this Tribunal are a number of references provided by specialist anaesthetists and other medical practitioners with whom the appellant has worked which have testified as to her competence and their readiness to continue working with her. The determination of the delegates of the Medical Council 8In its decision the delegates of the Medical Council determined to impose practice conditions which would require the appellant to practice subject to level 2 supervision as contained in the Supervision Policy of the Medical Council. The concern of the delegates was, in accordance with the relevant legislation, the overriding necessity to protect the health and safety of the public in the practice of medicine. The delegates said that they would not stipulate whether the appellant might work in either a public or private hospital. However, in applying that level of supervision the delegates stipulated inter-alia as practice condition 1 (c) that the supervisor must not be conducting his or her own list at the same time as the practitioner is practising medicine. It was this particular condition that was at the heart of the appeal, because the public hospital at which the appellant worked is asserted to have determined that it would not be able to make a supervisor available solely for the purpose of supervising the appellant in carrying out her work. Consideration 9As we have said, the subject of this appeal is within a narrow compass. We were asked by the parties to proceed to deal with this appeal on the basis of the factual material provided in the documentation, and the expressions of opinion concerning the competency and conduct of the appellant as determined by the delegates as reflected in their decision. It is quite clear from the decision that there were marked shortcomings and failures in the conduct of the appellant. However, it is also clear that the delegates were of the opinion that the appellant should be entitled to continue to practice as an anaesthetist, provided that she did so under appropriate supervision. 10After considering the conduct of the appellant as determined by the delegates, but taking into account their intention that the appellant should be entitled to continue practice under supervision, we consider that it is appropriate in all the circumstances to modify the practice conditions proposed jointly by the parties because this clarifies the circumstances under which supervision is to apply in a way which is intended to facilitate the application of the supervision by the public hospital concerned, and is thus intended to facilitate the continued engagement of the appellant at that hospital as an anaesthetist. We have so determined having regard to the requirement for us to give primacy to the protection of the public. Order 11Pursuant to section 79 (2) (a) of the Civil and Administrative Tribunal Act 2013 and section 159C (1) of the Health Practitioner Regulation National Law (NSW) 2009, the Tribunal varies Practice Condition 1 (c) of the Orders made by the Medical Council of NSW in its Decision dated 16 May 2014 as follows: (1)1(c) The supervisor(s) not be conducting his or her own list at the same time that the practitioner is practising medicine; except that the supervisor(s) may be supervising one other practitioner conducting a list in an operating theatre who is at no lower level than (i)a career medical officer; or (ii)an advanced trainee or equivalent. ********** 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: 10 October 2014