Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dr Marburg v Medical Council of New South Wales [2015] NSWCATOD 87 Hearing dates: 27 July and 7 August 2015 Decision date: 07 August 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ Dr C Dalton, Professional member Dr R Payten , Professional member Dr A Glass, Lay member Decision: Appeal allowed by variation of practice conditions, no order as to costs. Catchwords: Medical practitioner - practice conditions imposed while complaints investigated - varied on appeal to expand permitted area of practice –costs order declined Legislation Cited: Health Practitioner Regulation National Law (NSW), ss150, 159 Category: Principal judgment Parties: Dr Alexander Kocmut Von Marburg (Appellant) Medical Council of New South Wales (Respondent) Representation: Counsel: A Horvath (Appellant) P Ginters (Respondent) Solicitors: Holman Webb Lawyers (Appellant) Medical Council of New South Wales (Respondent) File Number(s): 1520063 Publication restriction: Non-publication order identifying the patients of the appellant REASONS FOR DECISION Introduction 1. These are appeal proceedings brought under section 159 of the Health Practitioner Regulation National Law (NSW), ("the Act") from a decision of delegates of the Medical Council of NSW under section 150 of the Act to impose conditions on his registration as a medical practitioner by precluding him from carrying out surgical procedures. 2. Relevantly, sections 150 and 159 are in the following terms: 150 Suspension or conditions of registration to protect public [NSW] (1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest- (a) by order suspend a registered health practitioner's or student's registration; or (b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or (c) by order impose on a student's registration the conditions the Council considers appropriate. (2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens- (a) the complaint about the practitioner or student is disposed of; (b) the suspension is ended by the Council. (3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must- (a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and (b) refer the matter to the Tribunal as a complaint. (4) A Council for a health profession may take action under this section- (a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and (b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal. (5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition. (6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned. (7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who- (a) is not a registered health practitioner or student in the health profession for which the Council is established; and (b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act. 159 Right of appeal [NSW] (1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession- (a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension; (b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council; (c) against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I; (d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E; (e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K. Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . (2) An appeal may not be made in respect of a request by a person that is rejected by a Council because it was made during a period in which the request was not permitted under section 150I or 152K. (3) The appeal is to be dealt with by reconsideration of the matter by the Tribunal and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Council when it considered the matter, may be given. Background to the Proceedings 1. The narration which follows is based on documentary and oral evidence admitted or given in these proceedings. 2. The appellant has conducted a practice as a specialist Ear Nose and Throat Surgeon in Albury Wodonga for approximately 15 years. He has held the qualification of Fellow of the Royal Australasian College of Surgeons since 1998. 3. The appellant had first come to the attention of the relevant authorities in connection with his practice when he commenced self-administering pethidine and other drugs of addiction from March 2008, until about August of the same year. As a result of an enquiry conducted by delegates of the then Medical Board of New South Wales, the appellant was suspended from practice for up to 8 weeks with effect from October 2008. Conditions were imposed on his practice prohibiting him from prescribing Schedule 8 drugs, prohibiting self-medication, requiring treatment by psychiatrist and urine testing. 4. The complaints which were the subject matter of those proceedings came before a Medical Tribunal. In a decision published on 8 May 2012, the appellant was found guilty of unsatisfactory professional conduct and professional misconduct and, in effect, the same practice conditions continued to apply to his registration. There is no suggestion of non-compliance with those conditions, or that anything has arisen from them which would adversely impact on the ability of the appellant to practice medicine. A further complaint brought against him was dismissed in 2013 for lack of evidence. 5. In 2013, a complaint was made about the appellant by Dr Alistair Mah, Executive Director Medical Services of Albury Wodonga Health concerning the billing practices which he had adopted when making admission arrangements on behalf of patients for surgery at Albury Hospital and concerning the classification and description of certain surgical procedures for which claims were made by him. The appellant replied to this complaint which prompted its referral to Associate Professor Briggs of the University of Melbourne for an opinion. Associate Professor Briggs was critical of the listing procedures undertaken by the appellant, the manner in which he sought to classify his procedures for charging purposes, and some clinical aspects of the procedures themselves. Subsequently, complaints concerning the appellant were made by some of his patients to the HCCC. 6. The Medical Council of NSW determined to convene proceedings under section 150 of the Act which were heard on 23 March 2015. By written decision dated 12 May 2015 the delegates decided that they were satisfied that it was appropriate to preclude the appellant from performing any surgical procedures in any setting whether in private rooms or a hospital. It is from that decision that the appeal to this Tribunal is brought. The Evidentiary Material 1. We have available to us a transcript of the proceedings before the delegates of the Medical Council which are the subject of this appeal. The appellant gave lengthy evidence in those proceedings and was the subject of vigorous and detailed interrogation by one of the delegates. We also have a number of reports provided by Dr John Curotta, an eminent ENT surgeon retained by the HCCC in connection with investigations which it is currently carrying out into the conduct of the appellant. Furthermore, Dr Curotta gave evidence in these proceedings, and the members of the Tribunal had the opportunity of engaging with him concerning the clinical ability and the practices of the appellant. We accept his evidence unequivocally and we acknowledge the benefit of having received a number of expressions of opinion from Dr Curotta. 2. The appellant gave evidence before us and we were given an opportunity to engage with him concerning certain aspects of his practice of medicine, and about his response to the various matters of criticism of Associate Professor Briggs, Dr Curotta, and the delegates of the Medical Council. 3. It is not necessary for the purpose of disposing of these proceedings that we examine the evidentiary material concerning a number of matters of detail as they applied to the patients of the appellant. This is because the appellant, consistent with the evidence of Dr Curotta and others, conceded certain shortcomings in his practice, and proposed an alternative regime by way of practice conditions designed to avoid those shortcomings and to minimise, if not eradicate, any concerns about his practice of medicine. 4. For completeness we note that Dr Curotta had expressed concerns in his reports about particular matters affecting a limited number of patients. Dr Curotta was given access to certain information which satisfied those concerns, and we do not need to deal with them. 5. It was the evidence of Associate Professor Briggs and Dr Curotta that there were concerns about the surgery conducted by the appellant involving the ear canal, the middle ear, and the mastoid and inner ear. Except for limited circumstances, the appellant conceded that he would not perform procedures involving these areas. He agreed that his practice in these areas would be limited to the insertion of short duration grommets of the Shepard type as indicated by abnormal audiometric testing and the removal of grommets when necessary and repair of a small tympanic membrane perforation caused by a grommet. He agreed that any such repair would be confined to an excision of the rim of the perforation and plugging the hole with gel foam. 6. Furthermore, the appellant conceded that the manner in which he had classified some of his procedures for the purpose of Medicare and other claims was incorrect. He also acknowledged that some of the surgery which he had undertaken may not have been necessary because it was unlikely to produce any improvement in the condition of the patients, and some of the complaints of these patients may have been somatic in origin. Dr Curotta was of the opinion that restricted in this way, the appellant could safely continue to practice medicine in NSW as a specialist ENT surgeon. Consideration 1. In essence, the evidence before the Tribunal was sufficient to enable us to be comfortably satisfied on the balance of probabilities that there were serious deficiencies in the clinical competence of the appellant in connection with what we shall describe, generally, as "ear surgery", there were examples of over-servicing by way of undertaking unnecessary procedures, and there were examples where claims for payment were simply incorrectly described. 2. We should add that the "ear surgery" which the appellant undertook represented a significantly minor part of his practice, and that there is no evidence that would justify concluding that there were any or sufficient concerns about the remainder of the surgery undertaken by the appellant to justify restricting his ability to practice in these areas, subject to the audit and performance assessment conditions which we shall shortly describe and which, in our opinion, should be imposed as being appropriate in the public interest and for the protection of the public having regard to the totality of the matters to which we have referred. On this basis, we were of the opinion that for the purpose of dealing with the practice of the appellant under section 150 of the Act pending the outcome of the HCCC enquiries, it was appropriate to modify the practice conditions in the manner referred to above. 3. For completeness, we note that the primary position taken by the Medical Council was that the appellant should remain subject to the practice conditions imposed by the delegates, and the appeal should be dismissed accordingly. The narration of the evidence set out above, and in particular the opinion expressed by Dr Curotta is such that there is, in our opinion, no evidence that the practice of medicine by the appellant in general terms creates any relevant risk requiring any protective order having regard to the health and safety of any persons or in the public interest, save for those areas specifically identified and with respect to which the appellant consented to restrictions being placed on his registration. In these circumstances, it would be inappropriate to impose practice conditions which would have the effect of restricting the appellant's right to practice medicine beyond the protection which is created by the terms of section 150 (1) of the Act. To this extent, and for these reasons we rejected the primary position taken by the Medical Council. 4. However, the Medical Council did cooperate in the drafting of practice conditions which, save for some minor details, were the subject of a consent position between the parties. After hearing submissions from the parties during the course of an adjourned hearing on 8 August 2015, we imposed practice conditions on the registration of the appellant effective that day which were in substitution for those imposed by the delegates and which were the subject of these appeal proceedings. 5. The practice conditions which we imposed were in the following terms: PRACTICE CONDITIONS DR ROLAND VON MARBURG ("practitioner") 10 AUGUST 2015 1. The practitioner is not to undertake any procedure involving the ear canal, middle ear, mastoid or inner ear, with the exception of the following: (a) The insertion or removal of short-term ventilation tubes in patients under 16 years of age only. The necessity of each procedure must first be established by abnormal audiometric testing results; (b) The repair of small tympanic perforations in patients under 16 years of age only. Such repairs are to be confined to an excision of the rim of the perforation and plugging the hole with Gelfoam® or similar substance. (c) Simple removal of wax or foreign bodies from the ear canal without general or local anaesthetic. 2. The practitioner is to attend as a dissector and successfully complete a course in sinus surgery on an annual basis. Compliance with this condition is necessary for the practitioner to continue to undertake nasal cavity or sinus surgery. (a) The practitioner must: (i) Prior to his enrolment, obtain the Medical Council of NSW's (Council) approval of the sinus surgery course he proposes to attend. (ii) Provide evidence to the Council of his enrolment in the sinus surgery course, within 10 days of enrolment. (iii) Ensure successful completion of the sinus surgery course by 31 December every year, with the initial course to be completed by 31 December 2015. (iv) Within 2 weeks of completing the sinus surgery course, provide evidence of attendance and satisfactory completion of that course to the Council. (b) The practitioner is to bear responsibility for any costs incurred in meeting this condition. 3. The practitioner is to submit to audits of his medical practice by a person or persons nominated by the Medical Council of NSW (Council), with an initial audit to be held within 6 months from 10 August 2015 and audits thereafter as reasonably required by the Council. In relation to audits: (a) The auditor(s) will examine and assess aspect of the practitioner's practice including: (i) Appropriate selection of patients for procedures; (ii) Clinical performance; (iii) Clinical outcomes; (iv) Billing procedures, and in particular, the Medicare Benefits Schedule item numbers used; (v) The practitioner's compliance with the conditions imposed on the practitioner's registration. (b) The practitioner is to authorise the auditor(s) to provide the Council with a report on the audit findings. (c) The practitioner is to meet all costs associated with the initial audit and report, and any subsequent audits and reports. (d) The auditor(s) are to be practitioners selected from outside the Albury/Wodonga region. 4. Within 14 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all procedures undertaken in the last month. The record must include the following: (a) The date and duration of each procedure; (b) Medicare Benefits Schedule item number; (c) The patient's name and date of birth; (d) The nature and site of the surgical procedure; (e) The location at which the surgical procedure was performed; (f) Any complications arising as a result of the procedure (including specific advice as to any unplanned return to theatre and/or any postoperative infection) and any readmission to hospital; (g) If the procedure involved the insertion or removal of short-term ventilation tubes, a copy of the audiometric testing results relied upon to justify the procedure. 5. The practitioner 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. 6. The practitioner is to forward evidence to the Medical Council of NSW within 14 days of 10 August 2015 that he has provided a copy of the practice conditions on his registration to the Director of Clinical Services or equivalent in any place at which he practises medicine. 7. Within 14 days of a change in the nature or place of his practice, the practitioner is to forward evidence to the Medical Council of NSW that he has provided a copy of the practice conditions on his registration to the Director of Clinical Services or equivalent in any new place at which he practises medicine. Suppression order 1. For completeness, we confirm that a suppression order was made on 27 July 2015 to protect the identity of any patient of the appellant. Costs 1. The appellant sought an order that the respondent pay for his costs of the appeal based upon the outcome of the appeal proceedings which he asserted was more advantageous to him than the practice conditions which were imposed by the delegates. The appellant emphasised that the primary position of the respondent had always been that no variation to the practice conditions should be made. The respondent opposed the making of any costs order and contended that each party should bear his or its own costs. We rejected the costs application and the material which follows represents our reasons for doing so. 2. The position contended for by the appellant is not as clear-cut as was initially submitted. It was not until the appellant first indicated through his solicitors that he would consent to the practice conditions being imposed which were similar in effect, but not identical to those ultimately imposed by us, that the focus of attention in the proceedings arguably shifted to an examination of those areas of practice which might not be restricted. That letter is dated 3 July 2015. Indeed, as is clear from the narration contained above, we were not satisfied that it was appropriate to vary the practice conditions until, firstly, Dr Curotta had given evidence on the second day of the hearing and, secondly, we had had the benefit of engaging with the appellant about certain concerns we had in relation to his practice of medicine. In these circumstances it cannot be said that the appellant has "won" his appeal as originally formulated in any outright manner. 3. Furthermore, in considering whether and to what extent any costs order might be appropriate, it is necessary to have regard to the circumstances surrounding the initial section 150 enquiry, and the circumstances that apply to an appeal under section 159 of the Act to this Tribunal. The section 150 enquiry does not involve any formal, or indeed, adversarial process. The delegates met with the appellant with his solicitor in attendance when they enquired into the circumstances of his practice in the context of the complaints which had been made. It was not until the proceedings were heard before this Tribunal by way of appeal that they assumed a more formal and recognisable adversarial character, particularly with the presence of a contradictor. In these circumstances, the "general principle" that a successful party is entitled to a costs order in appeal proceedings from a section 150 decision may need to be ameliorated. As the circumstances apply to these proceedings involving these parties, even if the appellant had clearly "won" in terms of the outcome, it may not be so clear that a costs order would almost inevitably have been made in his favour. 4. On balance, we were not persuaded that a costs order as sought by the appellant was appropriate. 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: 21 August 2015