Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Follent (No2) [2015] NSWCATOD 106 Hearing dates: 13 August 2015 Date of orders: 30 September 2015 Decision date: 30 September 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ (Presiding member) Dr Saw-Hooi Toh (Professional member) Dr Emery Kertesz (Professional member) M Gleeson OAM (Lay member) Decision: Respondent is reprimanded, practice conditions imposed and ordered to pay costs Catchwords: Medical practitioner guilty of professional misconduct-held appropriate protective orders are reprimand and strict regime of practice conditions-costs awarded. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Follent [2015] NSWCATOD 31 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr JW Follent (Respondent) Representation: Counsel: H Bennett (Complainant) P Griffin (Respondent) Solicitors: Health Care Complaints Commission (Complainant) Avant Mutual Group Ltd (Respondent) File Number(s): 1420211 Publication restriction: Non-publication order made Reasons for decision Introduction 1. In a decision published 31 March 2015 (Health Care Complaints Commission v Follent [2015] NSWCATOD 31), we found the respondent medical practitioner guilty of professional misconduct. The respondent had admitted that he was guilty of the complaints and particulars brought against him, and that they constituted professional misconduct. The proceedings were stood over to enable an audit to be conducted of the respondent's practice and for other evidence to be made available to assist the Tribunal in determining what protective orders and other consequential orders were appropriate to be made in the proceedings. For completeness we note that in the course of our decision we imposed a number of restrictions on the respondent's practice of medicine including prohibiting his entitlement to prescribe drugs of addiction, requiring him to practice in a named group practice, limiting the number of patients with whom he could consult in any one day, to practice under supervision, and to undergo an audit of his practice records. 2. The nature of the complaints are set out fully in our earlier reasons for decision. In essence, there were a number of occasions between June 2007 and September 2011 when the respondent had inappropriately prescribed drugs of addiction to a number of patients. In addition on some occasions he had failed to conduct an appropriate physical examination, he had prescribed inappropriate doses of drugs, he had failed to record a number of critical matters, and had failed to detect a compression fracture whilst reading an x-ray report. In all, five patients were involved. 3. We should stress that although we have made a somewhat cryptic reference to the nature and extent of the complaints brought against the respondent, when one considers the detail of the complaints fully set out in our earlier decision, it is plain that they are serious matters which, without more, could justify protective orders resulting in a cancellation of the respondent's registration. The further course of the proceedings 1. During the course of the adjourned hearing on 13 August 2015, we received additional evidence and submissions which we shall now describe. 2. Dr Hani Bittar had conducted an audit of the medical practice of the respondent on 19 June 2015 both at the medical centre where he practised and at a nursing home where he regularly consulted with residents. His written report dated 30 July 2015 became evidence in the proceedings, and this was supplemented by oral evidence. 3. The records of the medical centre were computerised and Dr Bittar noted a "great improvement" in the quality of the medical record taking by the respondent over recent months. There were, however, deficiencies with respect to the records of patients for whom he had prescribed drugs of addiction, but we note that the respondent is no longer able to do this. Dr Bittar noted that the quality of the software used at the nursing home was poor which limited access to the patient records of the respondent. Again, there was a noted improvement in recent months. 4. The audit report then sets out the findings of the auditor with respect to a number of patients both at the medical centre and at the nursing home. Our reading of the reports with respect to some of the patients indicates to us that there are still some deficiencies exhibited by the respondent in terms of his record-keeping and either his failure to carry out appropriate assessments of the patients' conditions or his failure to adequately record these matters. Dr Bittar noted that 9 out of the 20 patients whose records he had examined at the medical centre were diagnosed as suffering "anxiety and depression". He commented that "there was no clear exploration of the causes and factors of this complaint and why the patient wasn't getting better." In oral evidence Dr Bittar noted that in later records the respondent had diagnosed anxiety less frequently. 5. Dr Bittar said in his oral evidence that his impression was that the respondent was capable and competent to work as a medical practitioner. He did not regard the respondent as being dangerous to the public in his practice of medicine, and felt that the respondent needed to take a bit more time with patients. He explained the respondent's lapse as probably resulting from him seeing a lot of patients and working alone. This would certainly have contributed to his failure to adequately document and record many aspects of his patient encounters, diagnoses, management and outcomes. Of course, as Dr Bittar conceded in evidence his opinion and his knowledge of the respondent were based only on the audits of the records which he had undertaken. 6. Dr Greg Hunter, a general practitioner practising in the same region as the respondent had been appointed his supervisor since 28 July 2015. He had known the respondent for about 35 years as a fellow GP in the same area. In a letter dated 10 August 2015 Dr Hunter said that he had had contact with the respondent at locations independent of his practice. On those occasions the office manager of the medical centre where the respondent practices had randomly selected a number of patient medical records covering the prior six months, and these were discussed at each of the sessions. Dr Hunter noted an improvement in patient histories over the short period during which he had supervised the respondent. He said; "I am of the opinion that Dr Follent practices safely in his role of a general practitioner, and that his depth of experience and basic knowledge assist him greatly in this role. I am confident that Dr Follent will make substantial changes to his practice techniques to enhance his ability to continue in his role as a general medical practitioner, and to maintain the regard his colleagues have for him." 7. In the course of giving oral evidence Dr Hunter said that he had examined about 15 patient records in the first meeting and eight or nine in each of the second and third meetings. There were a number of significant details omitted from some of the records including matters such as whether the patient was a smoker, family history and obstetric history. He discussed some suggestions with the respondent for improving his record taking, and thought that this would assist. 8. Dr Hunter was aware of the nature of the complaints brought against the respondent and the fact that he had admitted that he was guilty of them. In cross-examination he agreed that he was not in a position to say that the respondent currently practices safely and acknowledged that he would need to sit in on consultations over a period of time. Whilst, in the circumstances, he could not say that the respondent was currently practising medicine safely, he thought that with his knowledge of the respondent's medical practice over the years that he could be safe. He thought that something must have gone wrong with the respondent for him to have failed to have carried out his practice of medicine appropriately. He concluded that he had no concerns about the treatment by the respondent of his patients. 9. Dr R Singh is a member of the same group practice as the respondent. He agreed to become the respondent's mentor. In a letter dated 10 August 2015 he said that the respondent's "clinical performance and progress continue to improve. He initially overused the software template autofill in his progress notes, he has since improved on his progress notes. We continue to monitor his mental and physical health." Dr Singh provided informal mentoring between 20 July and 30 July 2015. 10. In oral evidence Dr Singh said that he had known the respondent for 2 ½ years while working in the same practice. He observed a consultation that the respondent conducted with a patient. He said that the respondent's performance was adequate, although it was not a lengthy consultation. The respondent's communication skills were adequate, and his progress notes were sufficient. He was happy to remain as a mentor of the respondent. 11. In cross-examination Dr Singh conceded that he had not read the complaints brought against the respondent to which he had pleaded guilty and was not aware that they traversed matters such as poor record-keeping, a lack of physical examination, a failure to diagnose properly and inappropriate prescribing of drugs of addiction. 12. Dr Singh said all of the staff at the practice were concerned to monitor the health of all of the practitioners, especially because of a recent event (not involving the respondent). The practice was very busy, and it appeared to him that the respondent was coping with his work. Overall, he was of the opinion that the respondent was "getting better" because he was cutting down on his patient numbers. Dr Singh did say however that the general consensus in the practice was that the respondent had room for improvement in his clinical diagnostic skills. He thought that the treatment which the respondent reported was appropriate and noted that the respondent had a special interest in the mental health sphere. 13. The respondent gave further evidence. He had completed a course conducted by Monash University entitled "Issues in General Prescribing", obtaining a mark of 74 which an extract from his academic record showed to be at Distinction level. The course was completed as distance learning and involved submitting four written assignments. 14. In terms of his personal circumstances the respondent said that he had become bankrupt on 12 April 2013, and his wife also had recently been declared bankrupt. They had been forced to sell the family home. They have six children aged between 21 and 30, three of whom were still living at home. He is the sole breadwinner, and his only source of income is as a medical practitioner. He is paying regular instalments to his trustee in order to reduce his debt and is hopeful that he will be discharged from bankruptcy in about April 2016. 15. The respondent gave evidence that he sees his general practitioner on a regular, but infrequent basis, and has also consulted a psychiatrist and psychologist to learn strategies to handle any stress. He has increased his exercise slightly, reduced the level of alcohol consumption and maintains his diet. 16. The respondent said that he had complied with all of the interim practice conditions imposed upon him by the Tribunal. He is currently working about 55 hours per week. He has benefited from his sessions with Dr Hunter and can now see "light at the end of the tunnel" which makes him perform better. He is conscious of the criticisms levelled at him as disclosed in our earlier Decision, which he has read. He now exceeds the continuing education requirements which are imposed on all medical practitioners. 17. In cross-examination the respondent said that he now conducted his practice in a more rigorous fashion, ensuring that patient history was properly recorded and the patients were followed up with a management plan. 18. The respondent was asked by members of the Tribunal how he would manage patients suffering from anxiety. He discussed a number of possible physical complaints which might be attributed to anxiety and a number of tests which should be conducted. He also discussed management strategies other than the use of medication which he had been prohibited from prescribing. The respondent was also asked questions by members of the Tribunal concerning the time taken with new patients, his use of the computerised records and his general approach to health care planning. Consideration 1. Our task is to determine what protective and other orders should appropriately be made given the nature and extent of the matters which have led us to conclude that the respondent is guilty of professional misconduct. We readily acknowledge that other medical practitioners found guilty of comparable misconduct have had their registration cancelled or suspended. Indeed, the complainant submitted that the appropriate protective order that should be imposed was one involving suspension from practice for a period of, say, six months. We asked counsel for the complainant why suspension would be appropriate in all the circumstances. It was said that a period of suspension would give the respondent an opportunity to reflect upon his misconduct and the manner in which he might consider improving his practice of medicine so as to minimise any possible conduct of this kind in the future. Counsel emphasised that the respondent's misconduct continued during a period ending in 2011 and the respondent had had an adequate opportunity to improve his practice of medicine, and that on the available evidence he had failed to do so except in the area of record keeping. 2. We are conscious that although our task does not involve imposing any punishment on the respondent for his transgressions, we are obliged to ensure to the best of our ability that the health and safety of the public is protected from the practice of medicine by the respondent, and that the reputation of the medical profession is not disparaged by failing to make appropriate protective orders. The deterrent effect of any orders is also an important consideration. 3. In determining the appropriate approach to the formulation of protective orders we are mindful that the respondent has been in unrestricted practice since 2011 and has practised in this manner until we imposed restrictions on his practice in our earlier decision on 31 March 2015. Whilst there is evidence that there is some criticism of some aspects of the respondent's practice of medicine since that date, there is no evidence available to us that would indicate that the respondent lacks sufficient expertise, competence and dedication to pose an inappropriate risk to the health and safety of his patients both present and future. Whilst concerned on the one hand about the seriousness of the respondent's misconduct, we are mindful on the other hand that the respondent has appeared to have made genuine efforts to improve, has succeeded in improving himself at least in the area of record keeping, has reduced the number of patients whom he now sees on a regular basis, and significantly, is not practising in an unsafe manner. Furthermore, the respondent has a genuine commitment to continuing education. Although, the respondent may have initially been slow to fully embrace the need to improve his practice of medicine, the evidence is that he is now doing so, has relevant insight into his past misconduct and, given that he is an experienced practitioner, should hopefully be able to continue to practice safe medicine. 4. In all the circumstances, we are of the opinion that a period of suspension is inappropriate because it would not serve any good purpose in protecting the public although it might be seen to have a salutary deterrent effect in its impact upon other medical practitioners. In these circumstances appropriate orders would include either cancellation of registration or allowing the respondent to continue to practice medicine albeit subject to stringent conditions. Although, in our opinion, the nature and extent of the serious misconduct which the respondent has admitted would per se justify cancellation of registration, we are of the opinion that on balance it is appropriate to permit the respondent to continue to practice medicine, but subject to stringent conditions. This would also be accompanied by a reprimand. The presence of a finding of professional misconduct coupled with a reprimand and the stringent practice conditions, all noted on the respondent's registration constitute, in our opinion, a significant consequence of his professional misconduct, and one which would seriously jeopardise his further entitlement to practice medicine if he erred again. 5. Although it was the position of the complainant that a period of suspension was appropriate in all the circumstances, the complainant nevertheless participated in discussions concerning appropriate practice conditions and other matters which should be imposed upon the respondent's registration if we were minded not to accede to its primary position. We are pleased that sensible discussions between the parties have allowed us to make orders which they both acknowledged as being satisfactory in the circumstance that we have declined to order suspension. 6. For completeness, we note that the complainant sought a costs order against the respondent which was not opposed. In all the circumstances we are of the opinion that it is appropriate to make such an order. 7. The following represent the formal form of the orders made in indicative terms by us at the conclusion of the proceedings on 13 August 2015. ORDERS 1. The practitioner is reprimanded PRACTICE CONDITIONS 2. The practitioner's registration is subject to the following conditions: PRESCRIBING RIGHTS 1. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the 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). AUDIT 2. The practitioner is to submit to audit of his medical practice, by a random selection of his medical records by a person nominated by the Medical Council of NSW as follows: a. An audit is to be conducted within 6 months of today's date and a second audit is to be conducted within 6 months of the first audit and then further audits as required by the Medical Council of NSW; b. The auditor is to assess the practitioner's compliance with good medical record keeping standards and legislative requirements; c. The auditor is to pay particular attention to: history taking and assessment, investigations and analysis of test results, diagnosis, prescribing, treatment plan and follow up, and utilisation of care plan as an active part of medical management of patients; d. The practitioner is to authorise the auditor to provide the Medical Council of NSW with a report on their findings; e. The practitioner is to meet all costs associated with the audit and any subsequent reports. MENTORING 3. Within twenty eight (28) days the practitioner is to provide for approval by the NSW Medical Council the name and professional address of a registered medical practitioner who has agreed to act as his professional mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the NSW Medical Council's guidelines. a. The Practitioner is to authorise the mentor to report, in an approved format, to the NSW Medical Council every three (3) months which is to include the fact of contact, and any concerns as to his professional conduct. b. The Practitioner is to authorise the mentor to notify the NSW Medical Council of any: failure to attend; termination of the mentoring relationship against the advice of the mentor; or any other matter the mentor considers appropriate. c. The Practitioner will meet with the mentor for an initial period of twelve (12) months from the date of the first consultation and as subsequently determined by the Council. d. In the event that the approved mentor is no longer willing or able to continue as mentor, he is to nominate another mentor for approval by the NSW Medical Council within 28 days of the cessation of the original mentor relationship. e. The practitioner is to be responsible for any costs associated with the mentoring process. f. The meetings should include discussion concerning the issues highlighted in the Reasons for Decision and any personal and/or medical practice issues that may arise. SUPERVISION 4. The Practitioner is to practise under Category C 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. a.The supervisor is to be provided with a copy of the Medical Council of NSW's Compliance Policy and a copy of the Tribunal's decision. b.The practitioner is to meet with the supervisor on a fortnightly basis for at least (2) hours, the first meeting to occur within a month of being advised by the Medical Council of NSW that his nominated supervisor has been approved. c.At each meeting the practitioner and supervisor are to address the matters highlighted as concerns identified in the Tribunal's Reasons for Decision and in particular: history taking and assessment, investigations and analysis of test results, diagnosis, prescribing, treatment plan and follow up, and utilisation of care plan as an active part of medical management of patients; d.The practitioner is to authorise the supervisor to forward supervision reports to the Medical Council of NSW on a three monthly basis in a format prescribed or approved by the Council. Where this condition varies the requirements of Category C supervision as set out in the Medical Council of NSW's Compliance Policy (Supervision), this condition prevails. PRACTICE ARRANGEMENTS 5. The practitioner is to practise only in a group practice approved by the Council where there are at least three medical practitioners (excluding the practitioner). 6. The practitioner is to consult no more than 40 patients per day inclusive of nursing home patients except in the case of emergencies. EDUCATION 7. To complete within twelve months of the date of this decision the Difficult Doctor Patient Relationships Course organised by the Cognitive Institute and: (a) Within eight weeks of this Decision he must provide evidence to the Council of his enrolment in the abovementioned course. (b) Within four weeks of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. (c) To bear responsibility for any costs incurred in meeting this condition. OTHER 8. The practitioner is to seek counselling from a registered psychologist or psychiatrist at intervals and for a duration as deemed appropriate by the treating practitioner. The treating practitioner is to be provided with a copy of this Decision and the Tribunal's reasons for Decision dated 31 March 2015. REVIEW 3. The conditions set out in Order 2 may be altered, varied or removed at the discretion of the Medical Council of NSW and the Medical Council is the appropriate review body for the purposes of Part 8 of the Health Practitioner Regulation National Law (NSW). 4. Conditions 1, 5 and 6 as set out in Order 2 are not to be reviewed or amended until a period of 3 years has elapsed from the date of this Decision. 5. Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply while the practitioner's principal place of practice is anywhere in Australia other than New South Wales so that a review of these conditions can be conducted by the Medical Board of Australia. COSTS 6. The respondent is to pay the applicant's costs of these proceedings assessed under the Civil Procedure Act in default of agreement.. ********** 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: 30 September 2015