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; 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. 1. No question of suspension arises in these proceedings. The only matter for determination is whether the practice conditions as proposed jointly by both parties are appropriate to be made having regard to the provisions of section 150(1). 2. During the course of the hearing before us the appellant gave oral evidence and we had access also to written statements made by her. The appellant has formally conceded for the purpose of the disciplinary proceedings before the PSC that she is guilty of unsatisfactory professional conduct by reason of the matters which occurred whilst she was treating the patient on 31 January 2014. They are serious matters which do not reflect well on the performance of the appellant as a specialist anaesthetist on that occasion. We are satisfied that the appellant has insight into her inadequacies and the failures which led to the unfortunate circumstances surrounding the death of this patient. Her insight has been confirmed by psychiatric evidence made available to us in the course of the proceedings. 3. The appellant said that she now felt competent and confident to resume a practice administering general anaesthetics. In recent times her practice has been confined to those lists which have been made available to her at the private hospital, namely eye and ENT lists. Much, but not all of this work has involved administering local rather than general anaesthetics. In addition, the appellant has undertaken continuing medical education. 4. In addition, we have been given the reports of the supervisors who have undertaken her supervision pursuant to the practice conditions, and we have had the benefit of separate supporting documentation from them. Furthermore, two of the supervisors, Doctors Sandra Taylor and David Cay gave oral evidence in the proceedings. In particular, Dr Cay has known the appellant for many years, having supervised her during the course of her training at Royal North Shore Hospital. Both of these specialist anaesthetists expressed confidence in the overall ability and competence of the appellant as an anaesthetist. Dr Cay described what happened on 31 January 2014 as an aberration out of keeping with the appellant's general competence and capabilities. He was formerly the director of anaesthetics at Dubbo Base Hospital. Neither Dr Taylor nor Dr Cay were aware of any other complaints arising out of the appellant's practice as a specialist anaesthetist in Dubbo. 5. For completeness we note that the appellant was the subject of an enquiry by a Professional Standards Committee in 2009 arising out of the death of a patient who was transferred from Hornsby Hospital to Royal North Shore Hospital. The appellant conceded that she was guilty of unsatisfactory professional conduct and was reprimanded. However, the circumstances surrounding her treatment of that patient were such that her culpability in the context of the overall circumstances applying to that patient do not cause us to decline to vary the practice conditions in line with the consent position of both parties. 6. We are comfortably satisfied that provided the registration of the appellant is subject to a condition that she undertake supervision in line with that jointly proposed by the parties, namely as described within Category B contained in guidelines issued by the Medical Council of New South Wales, she will not pose a risk to the health or safety of any person or persons as referred to in section 150 (1) of the National Law. We announced at the conclusion of the hearing on 15 October 2015 that we were so satisfied, and varied the practice conditions which then applied to the appellant accordingly. This decision represents our reasons for doing so. The conditions which are set out below reflect the agreed position of the parties as determined by us to be appropriate. 7. The parties were unable to reach agreement about whether any cost orders should be made, and if so which party should bear the burden of any such order. As the matter appears to be complex, at least based upon the competing submissions of counsel, we directed that the parties make written submissions with respect to costs. Due to other commitments of counsel for each of the parties, the submissions will not be able to be completed for a few weeks. Rather than delay the publication of our reasons for decision, we have determined that it is appropriate that we now publish them. The appeal is upheld. We shall defer dealing with costs until we have had an opportunity of considering the written submissions. We make the following orders; 1. The appeal is upheld 2. The practice conditions applying to the registration of the appellant as a medical practitioner are varied with effect from 15 October 2015 to read as follows; 1. 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. 2. At each supervision meeting, the practitioner is to review and discuss her practice with her approved supervisor with particular focus on: her work progress, pre-anaesthetic assessments she has undertaken, her intraoperative management of patients and her medical record-keeping. Each supervision meeting is to include a review of a minimum of 5 medical records of patients the practitioner has anaesthetised in the previous fortnight. 3. To authorise the Medical Council of NSW to provide proposed and approved supervisors with: copies of the Council's Compliance Policy – Supervision, the Public Conditions, all decisions upon which these conditions are based and all other documents the Council deems appropriate. 4. To practise only in a Medical Council of NSW-approved hospital position. 5. To forward evidence to the Medical Council of NSW within 14 days of 16 October 2015 that she has provided a copy of these Conditions to the responsible senior officer at any place at which she practises medicine. 6. Within 14 days of a change in the nature or place of her practice, she is to forward evidence to the Medical Council of NSW that she has provided a copy of these Conditions to the responsible senior officer at any place at which she practises medicine. 1. Costs are reserved. The appellant is to file and serve written submissions on costs within two weeks of 15 October 2015 and the respondent is to file and serve written submissions in reply within two weeks thereafter. 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: 28 October 2015