Ismail v Medical Council of NSW [2015] NSWCATOD 121

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ismail v Medical Council of NSW [2015] NSWCATOD 121 Hearing dates: 15 October 2015 Decision date: 28 October 2015 Jurisdiction: Occupational Division Before: F Marks ADCJ Senior Member Dr K Liyanagama Professional Member Dr M Amos Professional Member J Houen Lay Member Decision: 1) Appeal upheld. 2) Practice conditions varied as per consent document produced by the parties. 3) Costs reserved. Catchwords: Practice conditions imposed under Sec150 - appeal from decision of delegates of Medical Council - practice conditions varied as agreed by parties to facilitate supervision of appellant Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009 Cases Cited: Ismail v Medical Council of NSW [2014] NSW CATOD111 Category: Principal judgment Parties: Dr Sanaa Ismail (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: M Lynch (Applicant) P Lowson (Respondent)

Solicitors: Avant Law (Applicant) Medical Council of NSW (Respondent) File Number(s): 1520135

reasons for decision

Introduction 1. These proceedings come before the Tribunal by way of an appeal purportedly brought by the appellant Dr Sanaa Ismail, from decisions of delegates of the respondent Medical Council of NSW by which certain practice conditions were imposed upon her registration as a specialist medical practitioner. For reasons which we shall shortly discuss, the form of appeal is partly inappropriate. 2. The appellant qualified as a medical practitioner in 1992 in Saudi Arabia. She practised in that country until 2000, and worked in a position equivalent to that of an anaesthetic registrar in Australia. In 2000 she came to Australia under a training program and trained in her chosen specialty, anaesthetics, at Royal North Shore Hospital, Sydney. The appellant was first registered in New South Wales as a medical practitioner on 13 October 2000 and became a Fellow of the Australian and New Zealand College of Anaesthetists in 2009. She worked as a senior registrar and later as a staff specialist in regional hospitals in New South Wales, and from February 2011 was based at Dubbo Base Hospital as a staff specialist in anaesthetics and became the supervisor of training in that specialty at the hospital. 3. On 31 January 2014, the appellant administered an anaesthetic to a morbidly obese man with a number of complicating medical conditions who was undergoing treatment for an infection of the left toe as part of an emergency list. During the course of the operation a number of complications arose, the patient was subsequently admitted to ICU, and later transferred to a Sydney regional hospital where he died. A complaint was made to the Medical Council concerning the treatment afforded to this patient by the appellant. The Council convened proceedings under section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law"), and delegates of the Council imposed practice conditions on the registration of the appellant on 5 April 2014. The appellant sought a review of these conditions under section 150 A of the National Law, which was declined by delegates of the Council on 22 July 2014. An appeal instituted by the appellant against the conditions as originally formulated by the delegates was heard by the Tribunal, differently constituted. On 29 September 2014 the practice conditions were varied by the Tribunal to reflect a consent position put by the appellant and the Council. (See Ismail v Medical Council of NSW [2014] NSW CATOD111. 4. The Practice conditions required the appellant to undergo supervision whilst carrying out her work as an anaesthetist. Difficulties arose in the application of the supervision conditions at Dubbo Base Hospital, where the appellant continued to work. On 13 May 2015 the appellant again applied to the respondent to review the practice conditions under section 150A of the National Law. This application was the subject of a Decision by delegates of the respondent on 23 June 2015. The delegates determined that they would not vary the practice conditions. The sole matter for consideration was the nature and extent of a supervision requirement. The form of appeal instituted by the appellant is directed to this determination, and in all the circumstances this is the substance of the matter which we are required to consider. 5. In the interim, a formal complaint had been instituted by the HCCC against the appellant alleging unsatisfactory professional conduct arising out of the circumstances of the treatment of this patient under section 139B of the National Law. That complaint has been referred to a Professional Standards Committee which will deal with it on 22 and 23 March 2016. We note that this Committee has the power to impose conditions on the registration of the appellant, but does not have the power to cancel or suspend her registration. 6. For completeness, we note that the appellant no longer holds a position with Dubbo Base Hospital, and currently performs work under supervision at a private hospital in Dubbo. 7. In essence, the controversy arose out of conditions originally imposed by delegates of the Council, although later varied by consent, which had the effect of precluding the supervisor, who must in effect be a specialist anaesthetist from conducting his or her own list at the same time that the appellant was performing work as an anaesthetist, although the supervisor could be supervising another practitioner conducting a list in an operating theatre who was at a no lower-level than a career medical officer or an advanced trainee or equivalent. In practice, the surgical arrangements at the private hospital in Dubbo were such that another specialist anaesthetist would need to be available to give close supervision to the appellant, and would be precluded from carrying out any work of his or her own whilst doing so. Although three anaesthetists have been available from time to time to supervise the appellant, she has only been able to work on a limited basis because of the time constraints of the supervising specialists, exacerbated by the limitations on available operating times and facilities at the hospital. The appellant sought a variation of the conditions to allow supervision to occur where the supervisor was physically present at the same location, albeit that he or she may have been working as an anaesthetist. As we have indicated, the respondent agreed that this was an appropriate variation to be made to the practice conditions imposed on the registration of the appellant pending the outcome of the complaint proceedings before the PSC. 8. However, as was acknowledged by both parties it was necessary that this Tribunal determine that such a variation was appropriate having regard to the provisions of section 150(1) of the National Law, which is in the following terms;