Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Hearing dates: 16 December 2014; 21, 22 April 2015 Decision date: 29 May 2015 Jurisdiction: Occupational Division Before: Acting Judge K P O'Connor, AM, Deputy President E Kok, Professional Member R Gordon, Professional Member A Gray, Lay Member Decision: 1. Pursuant to s 163B(1)(c) of Health Practitioner Regulation National Law (NSW), the Tribunal makes a reinstatement order. 2. Pursuant to s 163B(4), the Tribunal imposes conditions on the applicant's registration the subject of the reinstatement order. The conditions are set out at para [40] of the Tribunal's reasons for decision. 3. The applicant is to pay the respondent's costs of the proceedings, on the ordinary basis, as defined in Schedule 3 of the Civil Procedure Act 2005, except for the respondent's costs of appearance at the hearing held on 16 December 2014. Catchwords: PROFESSIONAL DISCIPLINE – Medical profession - Application for reinstatement by deregistered practitioner – Rehabilitative Steps – Present Fitness – Application granted subject to strict conditions. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a Cases Cited: Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 Bannister v Walton (30 April 1992, CA, unreported) Dawson v Law Society [1989] NSWCA 58 Ex p Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 In the Matter of Stephen Goodwin [2012] NSWMT 17 Parajuli v Medical Council of New South Wales [2011] NSWMT 4 In re Andrzej Kazmierczak, unreported, NSWMT, 6 May 2010, unreported In re Jason Martin [2010] NSWMT 13 Zaidi v Health Care Complaints Commission [1998] NSWSC 335 (CA) Category: Principal judgment Parties: Paul Joseph Ameisen (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: P Strickland SC (Applicant) M Higgins (Respondent) Solicitors: J Hamblin, HWL Ebsworth (Applicant) Crown Solicitor's Office (Respondent) File Number(s): 1420240 Publication restriction: Non-publication order pursuant to Schedule 5D Clause 7(1)(a) of the National Law: to apply to the names of patients referred to in the Schedule to the Complaint REASONS For Decision 1. The Tribunal has before it an application for a reinstatement order made by a former medical practitioner under s 163A of the Health Practitioner Regulation National Law (NSW) No 86a (the National Law). 2. The applicant is Paul Joseph Ameisen (now aged 66). He obtained his registration as a medical practitioner in 1976. His name was removed from the Register of Medical Practitioners by order of the Medical Tribunal on 28 January 2009, with a further order that he not be permitted to apply for restoration of his name to the register for a period of 18 months from that date. He lodged his application for a reinstatement order on 19 June 2014. 3. When considering an application for reinstatement, this Tribunal sits as a 'review body'. It is to undertake an 'inquiry' into the application. The applicable provisions are found at ss 163 to 165 of the National Law (all provisions are particular to New South Wales). The Tribunal has a variety of powers in relation to the orders it may make, commencing with the power to dismiss the application (s 163B(1)(a)) and, as sought by this applicant, power to make a reinstatement order (s 163B(1)(c)), and a power to impose conditions on a person's registration (s 163B(4)). A 'reinstatement order' is an order that a person may be registered in accordance with Part 7 of the National Law if the person makes an application for registration, and the relevant National Board (here, the Medical Council) decides to register the person: s 163B(3). 4. Section 163C(1), provides that '[a] review … is a review to determine the appropriateness at the time of the review, of the order concerned'. In the present case, the 'order concerned' is the order of deregistration made 28 January 2009. Section 163C continues: (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. 1. The Tribunal must, therefore, determine whether, at the date of the hearing, the order removing the applicant's name from the register remains appropriate. Practice History 1. In its decision the Medical Tribunal gave an account of Mr Ameisen's practice history. The following summary of his practice movements is taken from that account, and some additional information provided in the evidence before us. 2. Mr Ameisen graduated from the University of New South Wales, and was registered as a medical practitioner in 1976. He completed his internship at St Vincent's Hospital and Liverpool Hospital. He then practised as a general practitioner at Mudgee between 1978 and 1992, but for a period between 1983 and 1985. During that time he worked at the largest teaching hospital in the southern hemisphere, Baragwanath Hospital, in Soweto, South Africa, in paediatrics, anaesthetics and obstetrics. He was an active participant in the life of the Mudgee community, and mixed socially with many of his patients. 3. During his time at Mudgee he had become very interested in alternative treatments such as nutritional remedies and acupuncture. He obtained a diploma in naturopathy in 1990. He has continued to have a strong interest in alternative therapies, and has published in the field. 4. He decided to relocate to Sydney in 1992. He went into general practice at Bondi in 1992, practising with Dr Muller until 1995. The practice was directed towards, to quote the Tribunal, 'natural therapies, including nutritional remedies, and acupuncture'. It was there and at a related practice in King's Cross that he encountered, for the first time, significant populations of drug dependent patients, many of them of Maori background. 5. From 1995 to 2002, he worked solo as a general practitioner at various locations in the eastern suburbs. He then joined a practice at Edgecliff known as 'Your Health', that included a range of services, including a natural therapies component. That practice collapsed a few years later. In the time immediately prior to his deregistration, he was operating a practice at Edgecliff known as the Vita Centre which comprised his own general practice together with naturopathy services and services provided by other medical practitioners. Reasons for Deregistration 1. In its judgment, the Medical Tribunal summarised the particulars of complaint of the application that gave rise to his deregistration, as follows: * Inappropriate and irresponsible prescription of certain drugs, including Pethidine, Alprazolam, Temazepam, Diazepam, Oxycodone, Codeine Phosphate, Clonazepam, and Flunitrazepam, for some 18 patients between November 2004 and May 2005 * A failure to keep medical records in respect of the prescription of those drugs to those patients in contravention of the applicable laws in that regard * The provision of signed prescriptions for the drug Nilstat to a person who was not a registered medical practitioner, for completion and later issue by that person to patients. 1. Mr Ameisen unequivocally admitted all of the particulars of complaint, and he was found guilty of professional misconduct. 2. The area of debate was the appropriate disciplinary order. Disciplinary orders have as their primary purpose the protection of the public. Mr Ameisen submitted that he be permitted to continue in practice subject to strict conditions. The Tribunal rejected that submission, and was satisfied that the appropriate protective order was one of deregistration. 3. Investigation of 1994-1995. A pharmacist reported concerns over his prescribing practices to the Pharmaceutical Services Branch. It resulted in the Medical Board issuing a formal warning to him on 4 April 1995. The Tribunal referred to in its reasons the formal interview with the Board Committee that preceded that letter. 4. The Tribunal said in its reasons (at [11]): 'It was in this period that he commenced the pattern of irresponsible and illegal prescribing of drugs to such patients, including drugs of addiction. He said he believed these were 'extreme cases needing extreme measures'. He claimed inexperience with such problems, an element of naiveté, or gullibility, and absence of access to experienced advice and assistance.' 1. The Tribunal continued: 'The Tribunal does not accept these explanations and viewed such attempts to minimise the seriousness of his conduct and his state of awareness as to the turpitude it involved, as indicative of continuing lack of insight.' 1. The Tribunal noted that the investigation had 'revealed extensive improper prescription of such drugs to a number of patients' ([15]). The Tribunal referred to the warning letter, and described it as 'salutary and unambiguous' (at [18]). The Tribunal continued: 'Unfortunately, however, the dismissive attitude displayed during that interview continued, and in the view of this Tribunal persists even today.' At [21] the Tribunal referred to his 'continuing disdain for compliance'. 2. Period 1995-2005. At [25] of its reasons, the Tribunal, referred to his conduct in the years after the warning: 'The evidence overwhelmingly established that the Respondent had, at this period, a total disregard for the legal requirements, or for specialist opinion. The Tribunal is satisfied he was simply supplying drugs on demand to drug seeking patients, and knowingly aware that his conduct was contributing to and aggravating their condition. Of more concern, however, is his continuing lack of insight. This was apparent from the totality of the cross-examination.' The Tribunal then set out an extract from the cross-examination, by way of illustration. 1. Second Investigation, 2005. The Tribunal's reasons then referred to a second investigation in 2005. After being formally interviewed by the Pharmaceutical Services Branch on 5 August 2005, Mr Ameisen surrendered his authority, as a medical practitioner, to prescribe and possess drugs of addiction and to prescribe Schedule 4D drugs. He later stopped prescribing Schedule 8 drugs. 2. That investigation gave rise to the particulars of the complaints, belonging to the period 2004-2005 that were under notice in the proceedings before the Tribunal. Mr Ameisen admitted the particulars of complaint, but submitted that a sufficient order would be one that allowed him to remain in practice subject to strict conditions, including a prohibition on prescribing Schedule 4D and Schedule 8 medications. The Tribunal referred in summary to the professional opinions given by two eminent practitioners (Dr Ian Chung and Dr John Ellard) as to the gravity of the conduct the subject of the particulars. Dr Ellard referred to his prescribing pattern in relation to benzodiazepines. They involved an 'improper rate' of prescribing, made 'even more improper' if the person had a history of drug dependence and was on a methadone program. One or both of these circumstances applied to many of the patients the subject of the investigation. Dr Ellard then referred to his frequent prescription of a narcotic such as pethidine. This, he said, was 'if inappropriate – more reprehensible'. Dr Ellard referred to the quantities given to the 18 patients, and said: 'To prescribe for one patient in this fashion would be unprofessional, to prescribe for a substantial number of them is even more reprehensible.' (All extracts from letter dated 31 January 2007.) 1. The Tribunal considered that his inappropriate and irresponsible prescription of medications, in particular drugs of addiction, had its origins primarily in the circumstances he encountered when he took up practice in Bondi. For the first time in his career, he found himself dealing with a significant number of seriously drug dependent patients. 2. The Tribunal commenced its consideration by observing: 39. The Respondent's position essentially is that he is a different person today from that person that he was in 2005, and that since the investigation and interview in 2005 he has fully recognised and now understands the enormity of his conduct. He says that his disavowal of his misconduct is genuine and made with true insight, and is not mere words. In short, he contended that he has undergone a metamorphosis. 1. The Tribunal proceeded to reject Mr Ameisen's plea on that occasion, and, as noted, ordered deregistration. Application for Reinstatement 1. The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a medical practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the medical profession. 2. The applicant must establish his case for reinstatement 'on solid and substantial grounds' (Dawson v Law Society, [1989] NSWCA 58 per Kirby P at [3]). Further as Walsh JA noted in Ex p Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461: '… Reformations of character and behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man.' 1. Mahoney JA said in Bannister v Walton (30 April 1992, CA, unreported): 'The right to practise medicine affords to a practitioner privileges and opportunities that are not available to others. He is expected to maintain a relationship with patients who are affected by his character. The relationship is one which touches matters such as trust, confidence, confidentiality and right conduct. Clinical capacity is by no means the only consideration to which regard is to be had in determining whether a person is appropriate to practise medicine. It is necessary that the public be protected against those who though having the appropriate skills do not have the character for the opportunities and privileges which the right to practise gives.' 1. In Zaidi v Health Care Complaints Commission [1998] NSWSC 335 (NSWCA), Mason P (Priestley, Powell JJA agreeing) referred to the observations of the Tribunal below and said: 'Before turning to the passage to which objection is taken, it is appropriate to observe that the Tribunal stated the applicable principles in a manner which has attracted no criticism. The Tribunal observed (at pp 36-8) that in an application for reinstatement, the purpose of its jurisdiction remained protective and punitive; and that the applicant bore the onus of proof in seeking to displace an earlier decision which involved the judgment that the applicant was probably permanently unfit to have his name on the Register. The ultimate issue was stated to be one "whether the Tribunal can conclude on the basis of all the evidence that an applicant is now a fit and proper person" to be restored to the Register. The critical issue was the applicant's worthiness and reliability for the future. In making an assessment of this, the Tribunal noted that it could draw inferences from past conduct, particularly the conduct which led to removal from the Register.' 1. For more recent commentaries to similar effect, see Health Care Complaints Commission v Do [2014] NSWCA 307 (4 September 2014), re-emphasising the protective purpose of disciplinary orders; and also, In re Andrzej Kazmierczak, unreported, NSWMT, 6 May 2010, In re Jason Martin [2010] NSWMT 13 at p 8; In the Matter of Stephen Goodwin [2012] NSWMT 17 at [12]-[14], Parajuli v Medical Council of New South Wales [2011] NSWMT 4, and Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 at [63] ff. 2. The following summary of the relevant principles is derived from the Medical Council's submissions, which draw in turn on the cases just mentioned: 1. The purpose of the jurisdiction is to protect the public. 2. The question is whether the applicant is a fit and proper person to be held out as a person worthy of their confidence to the rest of the profession, to patients and to whole of the community. 3. The applicant is in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made. 4. The ultimate issue is whether the Tribunal can conclude on the basis of all the material that the applicant is now a fit and proper person to re-join profession. 5. It is not a question of what the applicant may have suffered in the past but rather what is his worthiness and reliability for the future, in particular whether the applicant will act in accordance with the high standards and responsibilities of the profession. 6. The Tribunal may draw inferences from what has happened in the past and in particular what led to his or her being removed from the Register. 1. Mr Ameisen's case is that he does now recognise the enormity of his misconduct, that he is genuinely remorseful, that he has engaged in rehabilitative steps of significance, that he has now acquired a proper insight into the wrongness of his past conduct, and that he can be trusted to practice responsibly in future. He submits that he has had a reformation of character such that he can again be regarded as fit to practise medicine. To that end, he is willing to submit to strict conditions. 2. Material before Tribunal: Mr Ameisen relied on two personal statements dated 23 June 2014, and 27 November 2014. In those statements he addressed the deficiencies of character and professional performance identified by the earlier Tribunal in its decision of 28 January 2009. He referred to a number of steps he had taken to address those deficiencies, and to steps he had taken since 2009 to maintain the currency of his professional knowledge. In addition he relied upon professional opinions given by Dr Michael Diamond, psychiatrist, and Ms Jane Bayutti, psychologist, expressing the opinion that he was fit to resume practice subject to strict conditions. Finally he furnished personal testimonials and statements from doctors prepared to provide him with work if he is allowed to return to practice. 3. The respondent, the Medical Council, filed two volumes of material, providing the detail of the investigations of 1995 and 2005, and of the material considered by the Tribunal at its hearing in December 2008, giving rise to its judgment in January 2009 ordering his deregistration. 4. Most importantly, it provided an opinion from the psychiatrist to whom it referred Mr Ameisen for assessment, Dr Andrew Pethebridge, dated 27 October 2014 and a supplementary report dated 29 November 2014, which was more guarded in its opinion as to his fitness, though not going so far as to consider him not fit to return to practice. 5. Hearing: The hearing was originally scheduled for 16 and 17 December 2014. Counsel for the applicant had been unable to access his chambers on the morning of 16 December 2014, prepare in the usual way and collect his papers. This was due to the lockdown imposed by the authorities in the aftermath of the Martin Place café siege and the deaths that had occurred overnight. Accordingly the Tribunal proceeded to deal with some formal matters, and, adjourned the proceedings to a date to be fixed, a course to which both parties consented. The hearing resumed on 21 April 2015 and concluded on 22 April 2015. 6. At hearing, Dr Ameisen gave evidence, and was cross-examined. The three expert witnesses, Dr Diamond, Ms Bayutti and Dr Pethebridge, gave evidence concurrently. 7. The net result was that each of the them, including Dr Pethebridge, considered it acceptable and not contrary to the public interest, for Mr Ameisen to be permitted to be reinstated subject to strict conditions. 8. The Council stated in closing submissions that it was not opposed to reregistration. The Tribunal heard submissions on what form any conditions might take, based on a draft prepared by the Medical Council. 9. The Tribunal adjourned, and upon resumption, indicated that it was of the view that Mr Ameisen could be permitted to return to practice, and made a number of observations as to aspects of the draft conditions that it saw as desirable to vary or strengthen. The parties agreed to prepare a further set of draft conditions in light of the Tribunal's observations. The parties filed a further draft, which is agreed, on 4 May 2015. 10. We will set out those conditions at this point of our reasons, as the hearing itself focussed to a significant extent on whether if we were satisfied, as we were, that Mr Ameisen was now fit to return to practice, what should be the basis of that return to practice. There was no dispute that any return to practice must be subject to strict conditions, and ones that addressed the areas of incompetence and misconduct that led to his deregistration. The Submitted Agreed Conditions 1. The conditions are as follows. As noted by the Council's solicitor in a letter dated 4 May 2015, they are to be read together with the following documents: Compliance Policy – Supervision (Date of publication – 1 February 2015); Supervisor Approval Position Statement (Date of implementation – 1 February 2015). Public Practice Conditions 1. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW) or any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). This is a critical compliance condition. 2. To practise only in a group practice approved by the Medical Council of NSW where there at least 2 other medical practitioners, with at least one other medical practitioner always on site. The practitioner must only practise on site at the Council approved group practice. This condition is not to be reviewed for a period of 12 months. 3. To obtain Council approval prior to changing the nature or place of practice. 4. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each supervisor meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. Doctor/patient relationship; 2. Workload; and 3. Appropriate prescribing practices. 1. To authorise the Medical Council of NSW to provide proposed and approved supervisor with a copy of this decision any other relevant documents. 1. To nominate a registered experienced general practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each meeting the practitioner is to include discussion of clinical and performance issues. 2. To authorise the Medical Council of NSW to provide nominated and approved mentors with a copy of this decision. 1. To consult or treat no more than 25 patients per day and up to a maximum of 4 patients per hour. This condition is not to be reviewed for a period of 12 months. 2. To practise no more than 40 hours per week not exceeding 8 hours per day. Private Health Conditions 1. To attend for treatment by a psychologist of his choice within 2 months of returning to practice. 1. The frequency of treatment is to be determined by his treating psychologist. 2. To authorise his treating psychologist to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of the treating relationship; and 3. A significant change in health status (including a significant temporary change). 1. The practitioner must provide the Council with the professional details of the treating practitioner within 21 days of the date of the decision. 2. At each meeting with his treating psychologist, the following should be discussed * Professional boundaries * The doctor/patient relationship * Dealing with difficult patients * Peer support 1. To inform the Council in writing of the name of his general practitioner within 21 days of this decision. Consideration 1. Mr Ameisen stated that the following factors were responsible for or contributed to his misconduct over a lengthy period of time: A number of my patients at that time were drug dependent patients; I had an inappropriate desire to please these patients. I perceived my role as acceding to their wishes instead of providing objective medical advice. I acted more as a friend to some of those patients instead of a dispassionate medical practitioner. My views at that time about prescribing Schedule 4D and Schedule 8 drugs were idiosyncratic and contrary to accepted medical standards. I inappropriately believed my personal views should take precedence over the standard medical and legal requirements with respect to the prescription of those drugs. I failed to seek advice or guidance from medical practitioners who specialised in drug addicted or drug seeking patients. I also failed to develop a network of specialists to whom I could refer my patients when required or from whom I could seek advice. My working hours were too long during that period of my practice. I often worked between 8.30am and 11pm. I had no chance therefore to step back and assess the approach I was taking to the practice of medicine. 1. Work Activities since 2009. Mr Ameisen continued to work as a naturopath from the Vita Centre. He sought to employ medical practitioners to work on that side of the practice, but he was unable to do that easily, with the result that the practice closed in August 2011. In the period 2011-2012 he worked as a casual pathology collector for Laverty Pathology. From September 2011 to mid 2013 he practised naturopathy two days a week at the Wonder Life centre in Bondi Junction, an acupuncture and Chinese medicine practice run by Ms Tenercy Ho (his wife). Since mid 2013 he has worked there one day a week. He stated that if patients require medical advice or treatment, he usually refers them to Dr Peter Dobie. 2. He referred to the assistance he gives Ms Ho in other parts of her business, such as the formulation and production of a range of skin and other products using Chinese herbs. 3. Professional Development Activities. Mr Ameisen has actively attended the quality assurance and continuing professional development programs of the RACGP, covering drug and alcohol education and a wide range of other topics of relevance to practice as a GP. He has acquired more than the minimum number of credit points. He referred in his statement to the observations he has made and mentoring he has received in relation to drug and alcohol treatment, including; with the late Dr Ray Seidler, a specialist in drug and alcohol treatment, between 2010 and 2012 at his Kings Cross practice; prior to 2009, and since deregistration, with Dr Gary Swift at the drug treatment centre, Clinic 36; with the We Help Ourselves Program (WHOS), run from the Rozelle Hospital for persons with alcohol or drug dependencies, observing in particular the operation of its residential program for these patients; and with two GP colleagues, Dr Dobie, and Dr Michael Elstein. 4. He noted that he had completed a Graduate Diploma from Monash University in 2008 in 'Family Medicine: Issues in General Practice Prescribing'. 5. He also referred to his book, 'Every Breath You Take, published in 1997, about sinus, asthma and sleep apnoea. He said it had sold in excess of 20,000 copies, and he is now working on a second edition. 6. In addition, he has lectured in naturopathy for the Australian College of Nutritional and Environmental Medicine on the subjects of cardiovascular and neoplastic disease. 7. The extent of his efforts to remain in touch with the work of the GP and the special demands of dealing with drug dependent patients were accepted at the hearing. 8. Testimonials. Mr Ameisen also furnished testimonials from medical practitioners and others, including a rabbi, as to his reformation of character. Their number included medical practitioners who would be prepared to offer him employment if he was permitted to return to practice. 9. Professional Assessments of Present Fitness. The key concern for the Medical Council and for the Tribunal related to the extent of his understanding and insight into the problems of naiveté, gullibility and indifference to professional standards that he had demonstrated over a period of at least 15 years prior to his deregistration in relation to the treatment of drug and alcohol dependent people. 10. In that regard, he furnished opinions from a consulting psychiatrist, Dr Michael Diamond, dated 11 December 2013 and a consulting psychologist, Mr Jane Bayutti, dated 27 May 2014. They had each assessed him in relation to the critical questions of his insight into the wrongness of the conduct that led to his deregistration, his remorse, and his commitment to practising in accordance with the required standards if permitted to return to practise. They had each expressed the opinion that it he should be permitted to return to practice, subject to strict conditions. 11. In his report, Dr Diamond set out Mr Ameisen's professional and personal history over the years since 1976. He noted that by the late 1990s, he had developed a 'niche practice' involving his skills in naturopathy, acupuncture and dietary advice. He noted that he had worked in the field of 'complementary medicines' since his deregistration. Dr Diamond noted the efforts that Mr Ameisen had made since his deregistration in addressing 'boundary issues', in particular through the consultations with Ms Bayutti. (Because of the common use of the term 'boundary issues' in reference to sexual transgressions by practitioners, we should note that this is not a case of that kind.) 12. In this regard, a recurring theme in the material considered by the earlier Tribunal and in our consideration has been the suggestion that Mr Ameisen has in the past got too close to patients, and has been influenced in his choices as to treatment by their requests and demands. He has also engaged in actions of personal support, which have been seen as problematic. 13. Dr Diamond gave an account in his report of each of his consultations with Mr Ameisen (six in the period October 2012 to December 2013). He mapped an increasing level of understanding and acceptance by Mr Ameisen as to the degree wrongness of the conduct that led to deregistration, and an increasing level of understanding and acceptance by Mr Ameisen of the need, as a GP, to ensure that patients are treated according to accepted evidence-based standards of medical practice. 14. He reported Mr Ameisen as seeing his difficulty with observing appropriate professional boundaries as only affecting him in relation to drug and alcohol patients. He identified with their marginalised state and his perception that they were neglected and not treated well. He reported Mr Ameisen as stating that he remained integrated into the world of traditional medicine except when dealing with severely disadvantaged and addicted patients. 15. He referred in detail to his consultation with Mr Ameisen in September 2013. He noted that Mr Ameisen, having again read thoroughly the Tribunal's decision of 2009, now understood better that he was arrogant in his perception that it was he who was treating the patient and he should be left to do so rather than understand the context in which prescribing such medication was permitted. He now better recognised that he lost perspective and judgment because of the intensity of his drive. 16. He described Mr Ameisen as 'chastened and saddened by the extent of his professional misconduct' (p 17 of 22). He referred to the public and professional humiliation he has suffered. He noted the breadth of his activity since 2009 aimed at rehabilitating himself, and gaining better insight and understanding of his deficiencies identified by the Tribunal. Dr Diamond stated that he has a 'better understanding of the extent to which he was an isolated, marginalised and idiosyncratic practitioner in the past' (ibid). 17. Dr Diamond was satisfied that Mr Ameisen had benefitted from the further education and observational activity he has undertaken in relation to the treatment of drug and alcohol dependent people: 'He has cumulatively gained understanding, insight and skills in this medical discipline. It has given him much clearer understanding of the extent to which his views and clinical practice were aberrant, destructive, illegal and idiosyncratic.' 18. Dr Diamond referred positively to the improvement in Mr Ameisen's understanding of appropriate practice standards in dealing with drug and alcohol dependent persons, and his recognition that 'his views previously were highly aberrant and unacceptable.' Further he noted that '[h]e makes no claims to support his former opinions and practices as being appropriate' (p 18 of 22). 19. He considered that he did not suffer from any personality disorder that causes him to be exploitative or manipulative. He stated that: His professional misconduct arises from personal vulnerabilities to do with needing to please people, to extend a perceived expertise in the hope of providing additional treatment opportunities for disadvantaged people and a profound naivety and belief that his idiosyncratic views and preferences about the practice of medicine were sufficient to override standard and established medical regulations and legal requirements with regard to the practice of medicine. … [I] can accept that he is currently a fit and proper person to hold medical registration. I expect that he will practise in accordance with appropriate ethical and professional standards. Importantly I believe he will not stray into practice areas where he does not have sufficient expertise or where his propensity to deal inappropriately with vulnerable people in a misguided attempt to assist them, will prevail. 1. Dr Diamond recommended that his return to practice be subject to a number of practice conditions of the following kind: restriction on prescription of Schedule 8 and Schedule 4D drugs; ban on solo practice, involvement in a group practice with at least three GPs; supervision by an approved, experienced, senior and well informed practitioner; limits on his workload; notice to intended place of practice of the conditions, and the need for strict adherence; notice of any change of practice location and environment; consideration of appointment of a medical mentor; and usual conditions in relation to review, any interstate relocation, and appropriate distribution of reports. 2. Ms Bayutti noted that Mr Ameisen had attended for 35 'psychology strategy sessions' between 30 July 2010 and 1 May 2014. The following issues were discussed during therapy: psychological and historical issues that may have contributed to the events that lead to his deregistration; management of professional boundaries; understanding of the matters that led to his deregistration; insight into the matters that led to his deregistration; and methods of addressing the issues relating to the matters that led to his deregistration. 3. A number of Ms Bayutti's observations were similar to those of Dr Diamond. The sessions showed the same pattern of increasing recognition by Mr Ameisen of the waywardness of his practice of medicine in the past, his sense of self-righteousness over the way he went about treating patients and his indifference to the controls applying to the prescription of significant drugs, especially drugs of addiction, to persons known to be drug dependent or who should reasonably have been assessed as to that possibility. 4. Ms Bayutti was satisfied that Mr Ameisen has now gained insight that he had over-prescribed for a very long period; that he had broken the law, and that there are no excuses for that; acted out of erroneous beliefs that he was helping others, when in fact he may have been contributing to their harm as he enabled and supported drug-seeking behaviour and the addiction of drug addicts; is now remorseful that he gave into the manipulation and the will of drug seekers against any logic, medical best practice recommendations, regulations and laws; acted in isolation by failing to be part of peer support groups; needs to set up very clear professional boundaries between his patients and himself; needs to rectify his clinical practice inadequacies. In the latter respect, she referred to his better insight into the way drug-seeking patients move from doctor to doctor and seek to construct special relationships to assist them in gaining access to drugs of dependence. She referred to his understanding that office and practice management systems need to be established and utilised that guard against this. 5. She referred positively to the range of activities Mr Ameisen had engaged in since January 2009 to improve his professional knowledge, and his commitment to implementing behavioural changes should he be reregistered. 6. As had Dr Diamond in his report, Ms Bayutti referred to his recognition that the natural desire of a medical practitioner to 'save' others from physical distress had miscarried and been misdirected in his case, leading to lack of boundaries, and a preparedness to break the law. Like Dr Diamond, she also attributed this orientation to aspects of his family's migrant, Jewish background and a distressing family history in and around the Second World War, his upbringing, matters it is unnecessary to refer to in detail in these reasons. 7. She was satisfied that he was now a suitable person to be reregistered as a medical practitioner. 8. Dr Pethebridge interviewed Mr Ameisen at the request of the Council on 17 October 2014. He his main report is dated 27 October 2014, and there is a further supplementary report responding to matters raised by the Council, dated 29 November 2014. While he accepted that Mr Ameisen had taken significant steps by way of rehabilitation and in improving his understanding of the behaviours of drug dependent patients, and in the ways of identifying patients of that kind, Dr Pethebridge continued to have reservations as to the adequacy of his insight into the wrongness of his past behaviour. Dr Pethebridge considered that Mr Ameisen continued to display narcissistic personality traits. While they did not amount to a personality disorder, these traits, Dr Pethebridge considered, affected his ability to truly appreciate his past errors, and that he may remain vulnerable to acceding to the requests of manipulative patients. If he were to return to practice, he strongly supported strict conditions along the lines proposed by Dr Diamond. 9. He referred with concern to matters such as: the possibility, based on Mr Ameisen's statements to Dr Allnutt in October 2008 and to him, that he had a level of dependence on the drug, marijuana, between the ages of 25 and 35; his continued belief in the overall soundness of his management of a case relating to two substance-dependent patients, a mother and a daughter, that had fallen under notice at the 2008 Tribunal hearing; and paying the rent due for a patient who was unable to meet that commitment. 10. Matters Canvassed at Hearing. We have alluded to Mr Ameisen's interest in the practice of complementary medicine and natural therapies. Mr Ameisen in evidence at hearing reiterated his belief in the value of an approach to the practice of medicine which looks at the whole person, and provides the patient with advice and assistance that promotes and supports a healthy lifestyle, going beyond the redress of the immediate problem that has given rise to the patient's visit. 11. He was questioned as to where he saw the balance as lying as between the provision of advice and remedies that fell within the accepted standards of medical practice, and the provision of advice and remedies that fell outside that sphere. His reply was that in future in dealing with patients he would confine himself to advice and remedies that fell within accepted standards of medical practice. He saw that as including appropriate advice in relation to such matters as weight loss, exercise, nutrition provided it was 'evidence-based', and that he would practise naturopathy 'as it is taught by doctors not as taught by naturopaths'. He was referring here to the learning endorsed by such recognised practice bodies as the Australian College of Environmental Medicine, the Australian Medical Acupuncture College, and the Australian Lifestyle Medicine Association. He expected to continue to practise acupuncture, within the limits accepted by Medicare. 12. He was taken by his counsel through the proposed conditions that might apply to him if he was allowed to return to practice. The proposed conditions were substantially similar to those finally submitted, and set out earlier in these reasons. 13. We were satisfied that he had a full understanding of the scope and implications of these conditions, and, most importantly, understood clearly that a breach of condition 1 (non-prescription of Schedule 4D and 8 drugs) would most likely result in immediate loss of registration. 14. While this matter has not received detailed attention in our reasons so far, we were satisfied that he recognised the importance of maintaining appropriate record systems, the use of modern practice computer systems, and his exposure to random audits. Clearly any group practice that he might join would need to have systems in place that comply in these regards. 15. He was questioned as to his difficulty with maintaining appropriate professional boundaries. He acknowledged his inadequacy in the past, and attributed it to a degree to his years practising in the relatively small community of Mudgee. For example, he had been a successful pop musician in his youth, and had maintained that interest in Mudgee – 'I was treating musicians I was playing with'. He also acknowledged his vulnerability in relation to persons who were disadvantaged and in need. He accepted that he had been arrogant prior to his deregistration, and now appreciated the wrongness of his outlook then. He accepted that he had mismanaged the mother/daughter case to which Dr Pethebridge had referred. 16. He acknowledged that 'being liked' had been a problem for him over the years. He accepted that that tendency got in the way of dispassionate professional judgment. 17. He was questioned about the following matters by counsel for the Medical Council: why he wanted to be reregistered; the nature of his commitment to the practice of medicine; the role of complementary medicine and alternative therapies in the practice of medicine; his approach to checking the history of new patients, and in particular identifying patients with alcohol and other drug histories; managing them so as not to infringe the prohibition on prescribing Schedule 4D and Schedule 8 drugs; relationship to supervision; hours of work; professional boundaries; reasons for failing to observe those boundaries in the past; risks of relapse; possible triggers for relapse, and managing them; the benefits he obtained from his experiences with Dr Seidler, Dr Swift and the WHOS service; the gravity of his misconduct in the period 1992-2005; the explanations for his disobedience of the formal warning of 1995; and the matters that Dr Pethebridge had raised as illustrating potential continuing concerns about his level of understanding of the wrongness of his behaviour. 18. Members of the Tribunal questioned him about: his personal circumstances; his personal health; his current beliefs in relation to the practice of 'natural medicine'; his proposed employment at the practice in Newtown, and his knowledge of its likely patient population; the proposed supervision arrangements; and his interest in therapies such as intravenous vitamin therapy for cancer (he stated he would not be engaging in that, even though he had been interested in it in the past). 19. We will not detail at length Mr Ameisen's replies in relation to all of these matters. We will note the following. 20. On the issue of the extent to which he might engage in naturopathic treatments, he stated that he would not engage in vitamin therapy, and would only give advice or supply treatments that were 'evidence based' and 'part of mainstream medicine'. He said he saw himself as a 'doctor interested in lifestyle change'. He had an interest in reducing, where possible and appropriate, patients' dependence on medications. 21. We were satisfied that his personal circumstances were stable and supportive. We were satisfied that he would not have any connection in his future proposed employment with his partner's Chinese medicine and herbal remedies practice. We acknowledge that he had in mind giving advice of a naturopathic character where it fell within the acceptable standards of medical practice, something his supervisor and mentor would need to inquire about, as needed. He proposed to use acupuncture, where appropriate. We were satisfied that he had a strong understanding, and commitment to, maintaining appropriate professional boundaries in future. He understood the importance of observing the principal condition (non prescription of S4D and S8 drugs). 22. The three experts, Dr Diamond, Ms Bayutti and Dr Pethebridge gave evidence concurrently. Dr Pethebridge saw Mr Ameisen's narcissistic belief in the rightness of his approach as extending through the years 1995 to 2005, but accepted that this had changed with his voluntary surrender of his prescribing authority in 2005. Dr Diamond said that there were a number of features of Mr Ameisen's practice in the past that were 'profoundly deficient'. Ms Bayutti saw the conditions as insulating Mr Ameisen from the dangers that had given rise to his misconduct in the past. She saw his preparedness to work in a group practice setting, his active attendance at courses and as an observer as giving confidence that he would practise safely and competently in future. Dr Pethebridge held a similar view. 23. Dr Pethebridge emphasised the value of Mr Ameisen seeing a psychiatrist in future, not in the context of a mental illness, but to assist him in, what he saw as, his tendency to be manipulated. He believed this remained an issue. After further discussion, Dr Pethebridge indicated that a treating psychologist could satisfactorily deal with that concern. This position is reflected in agreed private health condition 2. 24. In response to questions from counsel for the Medical Council, Ms Bayutti saw as relevant to his past conduct of illegal prescribing, and difficulty with professional boundaries, a misplaced sense of community founded, in part in his family's background (to which we have already referred). She did not think he had any greater degree of narcissism than most people practising professions, and that his early years in a rural setting contributed to the blurring of boundaries when he returned to Sydney. 25. We are satisfied from the material placed before us and the matters canvassed at hearing that Mr Ameisen is again fit to practise medicine, subject to strict conditions. He has undertaken what we see as a substantial program of rehabilitation, and he has now developed the insight so lacking in his previous encounters with disciplinary intervention, starting with the warning given to him 20 years ago following the PSB investigation and culminating in his deregistration in January 2009. He has submitted to specialist counselling, and his advisers are supportive of his return to practice. We are mindful of the reservations raised, in particular by Dr Pethebridge, and through thorough questioning by counsel for the respondent. The applicant satisfied us that he now recognised and understood how misdirected his approach had been to the treatment of vulnerable patients, an approach that continued over an extended period of time. We consider that he can again be trusted to practice in a manner that involves the responsible practice of medicine, and in particular is vigilant to apply independent and informed professional judgment to what is best for the patient. We are satisfied that the order of deregistration is no longer appropriate, and that it is appropriate to permit Mr Ameisen to be registered. 26. Accordingly, the Tribunal will grant Mr Ameisen's application, and grant a reinstatement order, subject to the agreed conditions, as submitted by the parties on 4 May 2015. Costs 1. The Tribunal heard oral submissions in relation to costs at the conclusion of the hearing. Clause 13(1) of Schedule 5D [NSW] of the National Law empowers the Tribunal to make an order for costs. 2. The applicant sought an order that there be no order as to costs, with each party to bear their costs of the proceedings. The respondent applied for an order that the applicant pay its costs, subject to the concession no order be made in relation to the costs lost because of the adjournment of the hearing on 16 December 2014, granted at the request of the applicant and not opposed by the respondent. That time was lost because of the impact of the events of 15/16 December 2014 on the ability of applicant's counsel to prepare and present his client's case, referred to earlier in these reasons. 3. In support of his application, the applicant referred to his financial circumstances. We were informed that he was suffering financial hardship, and were referred to his family and living circumstances. This material was not challenged by the respondent. We will not set it out in detail here. In our view, this is a matter to which little or no weight can be given in relation to the primary issue of whether a party should be relieved from an order for costs, where such an order is the usual order in the circumstances: 'mere impecuniosity is not a justifiable reason for departing from that rule' (Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] per Meagher JA). 4. Proceedings of the present kind arise because of the prior misconduct of the applicant, and can be seen as ancillary. While it might be said that the applicant has been 'successful', and thereby should, at the least, not be exposed to the respondent Council's costs, that misunderstands the nature of the respondent's involvement at the inquiry. As noted by the Tribunal in Kazmierczak at [54] (and set out at [76] in Parajuli): '[A]ltough the applicant has been successful, the fact is that it was entirely appropriate for the Medical Board to oppose his application. The Medical Board in such applications plays a highly significant part on behalf of the public and the medical profession in putting applicants to the test and in ensuring that their background or at least their character is properly ventilated: that no applicant is reregistered without a sufficient investigation into what they have done since the deregistration.' 1. Parajuli was a case where the respondent had actively opposed the application, but the applicant had prevailed. The Tribunal continued: 'Because it was entirely appropriate for the application to have been opposed and because it was in effect the applicant's conduct which has brought about this application in any event, he should pay the costs of the application'. 1. Here the ultimate position of the respondent was one that was not opposed to reregistration, though the ultimate decision is always that of the Tribunal. The same rule should apply. 2. The applicant also referred to a jurisdictional objection raised by the applicant that had been canvassed as a preliminary matter before the List Head, Acting Judge Boland. The issue had arisen after the application for a reinstatement order was filed, and derived from statements as to the legislative scheme made by Meagher JA in obiter dicta at [46] ff in Do (decided 4 September 2014). It was an unanticipated issue, that, in the applicant's submission, then needed to be addressed. The issue was not the subject of a final ruling, and the matter proceeded to hearing. We were informed that the issue had been (or was to be) the subject of a statutory amendment that has resolved (or will resolve) the question. We were not referred to the exact detail of the provision, or its progress. 3. While it may be that the observations led to some uncertainty as to the Tribunal's role, it was nonetheless the case, as the respondent submitted in reply, that the applicant chose the press the jurisdictional objection. 4. We have decided that the usual order in proceedings of this kind be made, subject to a qualification in relation to the costs lost because of the adjournment granted in respect of 16 December 2014. The parties advised us that there is no facility for a suitor's fund certificate in relation to those costs. Had there been, we would have granted a certificate. 5. Further, in line with an approach taken by the Tribunal in Parajuli, if there is an application by the applicant for time to pay, we encourage the respondent to give sympathetic consideration to such an application, and to allow for the possibility that the costs might be paid by instalments. Order 1. Pursuant to s 163B(1)(c) of Health Practitioner Regulation National Law (NSW), the Tribunal makes a reinstatement order. 2. Pursuant to s 163B(4), the Tribunal imposes conditions on the applicant's registration the subject of the reinstatement order. The conditions are set out at para [40] of the Tribunal's reasons for decision. 3. The applicant is to pay the respondent's costs of the proceedings, on the ordinary basis, as defined in Schedule 3 of the Civil Procedure Act 2005, except for the respondent's costs of appearance at the hearing held on 16 December 2014. 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: 29 May 2015