Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ghannoum (No.2) [2016] NSWCATOD 17 Hearing dates: On the Papers Date of orders: 08 February 2016 Decision date: 08 February 2016 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ - Principal Member Dr R Gordon - Professional Member Dr E Kertesz - Professional Member Ms M Kelly - General Member Decision: See Paragraph 31 Catchwords: Medical practitioner- stage 2 decision – prescribing drugs, medical records, breach of conditions of registration, health problems - extensive conditions imposed. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Wael Ghannoum (Respondent) Representation: Counsel: S F Beckett (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Withstand Lawyers (Respondent) File Number(s): 1420282 Publication restriction: Publication or broadcast of names or other identifying information of any patient is prohibited. Judgment Introduction 1. By the decision of 17 December 2015, the tribunal set out its factual findings, and reasons generally, and indicated in paragraph 172 as follows: The Tribunal has decided that for the protection of the public orders per (1) to (4) below should be made and is considering whether for the protection of the public there should be orders that have the effect per (5) to (10) inclusive: 1. A finding that the respondent is guilty of professional misconduct; 2. A reprimand; 3. Conditions 1 & 6 (regarding Schedule 4D and Schedule 8) drugs and condition 2 (Oxygen and Adrenalin) imposed on the Respondent's Registration in August 2012 to continue to apply. 4. Condition 4 (Supervision) imposed on the Respondent's Registration in August 2012 to continue to apply until 1 January 2017; 5. A recommendation by the Tribunal to the Medical Council of NSW that for review of medical records the supervisor use only medical records chosen randomly by the supervisor; 6. The Respondent's Registration be subject to the following further conditions: 1. He must not undertake solo practice after 29 February 2016; 2. He must attend once every 4 months for assessment and report to the Medical Council by a psychiatrist nominated by the Council and pay the reasonable fees of the psychiatrist; 3. He must remain in active follow-up with his general practitioner, his psychologist and psychiatrist and comply with their advice in regard to his treatment; 1. A condition of his Registration that the respondent join a Division of the Royal Australian College of General Practitioners within 1 month and attend at least one continuing, medical education course each month while registered to practice; 2. A condition of his Registration that the Respondent by 31 December 2016 do all acts necessary to become a Fellow of the Royal Australian College of General Practitioners and comply with the requirements to continue that Fellowship while ever practising as a general practitioner; 3. An order that the conditions referred to in (3), (4) (6) and (7) be critical compliance conditions, contravention of which will result in the Respondent's registration being cancelled; and 4. An order that the Respondent pay the Applicant's costs. 1. Pursuant to an order that the parties provide submissions in relation to paragraphs (5) to (10) inclusive of paragraphs 172 of the Stage 1 decision, submissions were received from the applicant and the respondent. 2. The respondent accepted the proposals (5) to (10) in paragraph 172, with the exception only of the proposal (6)(a) that he not undertake solo practice. On that issue the submission by his solicitors was as follows: We submit that proposal (6)(a) is not accepted by our client on the basis that it is redundant and an unnecessary oppression on our client. Our client is operating an AGPAL accredited solo practice, and on his own merit has made significant attempt to compromise with the HCCC and Medical Council by implementing safeguards to ensure his practice is operated with the upmost efficiency. Such behaviour is not only adherent to professional medical ethics and codes of conduct but surpasses such inherent obligation as he demonstrates autonomous and voluntary willingness to improve ad a medical practitioner and abide by the tribunal Imposed conditions. Such safeguards include: 1. His intention to employ other doctors to work within his practice; 2. Strong relationship, mentoring, monitoring, supervision and guidance from supervisors such as Dr Aloe (as previously ordered by the tribunal); 3. Compliance with the other conditions imposed by NCAT. Dr Ghannoum employment of more doctors to work within his practice is a reasonable and beneficial alternative to the provision (6) (a) of the conditions imposed. As such, it is reasonable to discern that for the past 3 years of practice, since the s150 proceedings and subsequent orders, Dr Ghannoum has demonstrated a great understanding of his misconduct and an astute comprehension of his responsibilities. To dismiss this personal and professional progression of Dr Ghannoum in rendering a decision as to the provision (6) (a) would be inequitable and unjust. Supervision companied (sic) with the acceptance of doctors to join his practice which has recently been accredited by AGPAL are significant attributions and safeguards which we submit are a better alternative to the provision of (6) (a). In light of the circumstance, if you fail to accept our submissions our client will suffer severe injustice and detriment. On this basis, we kindly urge you to accept our submissions. 1. The applicant proposed a particular wording of the condition. 2. The tribunal is concerned that the respondent will continue as a solo practitioner if it is not a condition of his registration that he not do so. The major disadvantage of this is the isolation from practitioners and isolation from their advice and the scrutiny and support of him and his practice of medicine. 3. The tribunal considers that this a critical requirement given the professional misconduct found against the respondent and his past lack of interest in, or commitment to, associating with fellow practitioners or attending continuing medical education. In the past the respondent has indicated to his supervisor and others a willingness and intention to commence practising with another or other practitioners. However, despite considerable time passing, he has not done so. Nor has he in the proceedings provided any evidence of any serious attempt to do so. 4. The public interest requires that he only practice in a group practice approved by the Medical Council of NSW where there are at least 2 other practitioners. When the tribunal's reasons were released on 17 December 2015, it appeared it was proposed that the condition would be that he must not practice solo until after end February 2016. Unfortunately, the tribunal members did not receive these submissions for the respondent until the week commencing 18 January 2016. 5. In the circumstance, the time for the respondent to make the necessary arrangements for him to practice with other practitioners should be about 3 months from the release of these reasons and the orders. Issue (3) of Paragraph 172 of the Stage 1 Decision – Conditions regarding drugs and oxygen and adrenalin 1. It is agreed that those conditions should continue, but the submission of the HCCC is as to the form of the condition and the respondent has not raised any objection to the form suggested by the HCCC. The tribunal agrees with the form of condition suggested. Issue (4) of 172 of the Stage 1 Decision – Supervision 1. The panel raised an issue as to whether a condition of the respondent's registration of August 2012 for supervision should continue until 1 January 2017. The respondent consents to such an order. 2. The HCCC proposes in item 4 of its submissions that the order take a particular form. Included in that suggestion is a provision that the supervisor be "a person with whom he does not have a personal or family relationship". Unfortunately, it appears from the respondent's evidence at the hearing that the current supervisor was, at the time he commenced supervision, a friend of the respondent. 3. The panel considers this is unsatisfactory because of the need for the supervisor to be frank and objective in the scrutiny, advice and assistance that the supervisor provides to the respondent and also in the reports to the Medical Council, that the supervisor provides. 4. The tribunal therefore finds that the condition should specify that the Supervisor not be a person with whom the Respondent has a personal or family relationship.. 5. The respondent raised no objections to the other provisions of the orders suggested by the HCCC in respect to supervision. 6. The tribunal has determined that the form of the order proposed by the HCCC will best protect the interests of the public. Issue (5) in Paragraph 172 of the Stage 1 Decision – Review of Medical Records by supervisor – random choice by supervisor 1. The forms of the conditions for supervision submitted by the HCCC to the tribunal covers this aspect and there is no need then for a separate condition. There is no opposition to such a requirement by the respondent. Proposals (6)(b) and (c) of Paragraph 172 of the Stage 1 Decision – Requirements regarding follow up with General Practitioner, Psychologist and Psychiatrist and compliance with the advice, and regular assessment and report by psychiatrist nominated by the Council 1. The respondent consents to these proposals, but the HCCC does not require the respondent to submit to the assessments by a psychiatrist nominated by the Council. Instead, the proposal is that the respondent attend for treatment by his General Practitioner, Psychiatrist and Psychologist and authorise reporting by any of those if he fails to attend for treatment or treatment is terminated or there is a significant change in his health status. 2. The respondent has not opposed the form of condition proposed by the HCCC and the tribunal is satisfied that it will adequately serve the purpose of making relevant information available to the Medical Council to protect the public, and accordingly that form of order has been adopted. Further Issue – Additional Orders Proposed by HCCC 1. In its submissions, the HCCC propose that there be orders made as follows: 1. Dr Ghannoum authorises and consents to any exchange of information between the Medical Council of NSW, the Pharmaceutical Services Unit of NSW Health, and Medicare Australia where such exchange is necessary to facilitate the monitoring of compliance with these conditions; 2. The Medical Council is the appropriate review for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW); 3. Sections 125 – 127 of the Health Practitioner Regulation National Law (NSW) are the apply whilst the practitioners' place of practice is anywhere in Australia other than in NSW, so that a review of these conditions can be conducted by the Medical Board of Australia; 4. These conditions will appear on the Public Register. Issues (7) and (8) of Paragraph 172 – Membership of Royal Australian College of General Practitioners and Becoming a Fellow 1. The respondent consents to these proposed conditions of his registration and the HCCC does not oppose them. 2. The tribunal considers that these orders are required as another avenue of ensuring that the respondent does not continue to be isolated from other practitioners, and that he does participate in continuing medical education and maintenance and improvement in his medical knowledge and clinical skills. 3. Appropriate conditions will therefore be included. Issue (9) of Paragraph 172 – Critical Compliance conditions 1. The respondent consents to such a provision. The HCCC does not oppose it. 2. The tribunal considers the most important conditions for protection of the public should be critical conditions, particularly bearing in mind that the professional misconduct of the respondent has included breach of conditions of his registration. Issue (10) of Paragraph 172 – Costs 1. The applicant seeks an order for payment of its costs by the respondent. The respondent in submissions in response to the orders of 17 December 2015 consented to the costs order proposed. 2. Section 175B of the National Law gives the tribunal power to make an order for costs. The proceedings came about primarily because of serious professional misconduct by the respondent, including breaches of conditions of his registration. 3. There has been no submission of a reason as to why costs should not follow the event, as is the usual approach (see HCCC v Gower [2011] NSWNMT 17 [65] – [76]). 4. Accordingly, there should be an order that the respondent pay the applicant's costs of or incidental to the proceedings. 5. Protection of privacy of patients. 6. The privacy of patients should be protected by an order prohibiting publication of names or other identifying information. Orders 1. The orders of the tribunal therefore are: 1. The respondent is guilty of professional misconduct; 2. The respondent is reprimanded; 3. The registration of the respondent as a Medical Practitioner is subjected to the following practice conditions: 3.1 He must not prescribe, possess, supply, administer, handle or dispense any drug of addiction (schedule 8 drugs) or any prescribed restricted substance (schedule 4D drug or schedule 4D derivative). 3.2 Any (future) change in schedule 8 / schedule 4D authority must be in accordance with the Medical Council of NSW's Protocol. This must include consultation with the Medical Council of NSW prior to the submission of any variation application to the Pharmaceutical Services Unit of NSW Health; 3.3 He must obtain and thereafter continue to maintain sufficient supplies of oxygen and adrenalin to manage any medical emergencies to or arise at his rooms; 3.4 The respondent must nominate a supervisor (being a person with whom he does not have a personal or family relationship) within the next 14 days to be approved by the Medical Council of NSW, to monitor and review his clinical practice and compliance with Conditions in accordance with level C Supervision as contained in the Medical Council of NSW's Guidelines for Supervision (Policy PCH 7.5) until 1 January 2017. The supervisor must be a Fellow of the Royal Australian College of General Practitioners. The supervisor is to be provided with a copy of the Council's Policy PCH 7.5, a copy of the Decision upon which these decisions are based, and any reports the Medical Council of NSW deems appropriate. The Practitioner is to be responsible for all costs associated with the supervision arrangement and is to ensure that: (i) He and the supervisor meet face-to-face on a fortnightly basis for at least 1 hour, the first meeting will occur within 1 fortnight of being advised by the Medical Council of NSW that his nominated supervisor has been approved. (ii) Issues to be discussed at the meetings must include , but not be limited to the following: appropriate prescribing practices, appropriate pain management, drug and alcohol issues, medical record keeping, and management of emergencies in general practice, and the treatment of the patients referred to in the medical records. (iii) At each meeting the supervisor completes the record of matters discussed at the meeting in a format prescribed or approved by the Medical Council of NSW. (iv) The supervisor forwards to the Medical Council of NSW initially on a monthly basis a supervision report in a format prescribed or approved by the Medical Council of NSW. (v) The supervisor informs the Medical Council of NSW immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance of if the supervisor relationship ceases to authorise a supervisor to provide such information to the Medical Council of NSW. (vi) In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for the approval by the Medical Council of NSW within 21 days of the cessation of the original supervisory relationship. (vii) This Condition will apply until 1 January 2017. 3.5 The respondent must: (i) After 1 May 2016 practice only in a group practice approved by the Medical Council of NSW where there are at least two (2) practitioners (excluding the respondent). (ii) Join a division of the Royal Australian College of General Practitioners within 1 month of these orders; (iii) Attend at least one (1) continuing medical education course each month whilst registered to practice.; (iv) By 31 December 2016, do all acts necessary to become a Fellow of the Royal Australian College of General Practitioners and comply with the requirements to continue that Fellowship whilst ever practising as a General Practitioner. The following health condition is imposed on the respondent's registration as a Medical Practitioner: 1. The respondent must attend for treatment by a General Practitioner of his choice, at a frequency to be determined by the Practitioner, and authorise the treating Practitioner to inform the Council of failure to attend for treatment, termination 2. of treatment, or if there is a significant change in his health status (including a significant temporary change); and 3. Attend to treatment by a psychiatrist and psychologist of his choice, at his own expense, at a frequency to be determined by the treating psychiatrist and psychologist (except that it must not be less frequent than once every 4 months); 4. He must authorise both the treating psychiatrist and psychologist to inform the Council of failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including a significant temporary change). 1. The respondent must: 1. Authorise and consent to any exchange of information between the Medical Council of NSW, the Pharmaceutical Services Unit of NSW Health, and Medicare Australia where such exchange is necessary to facilitate the monitoring of compliance with the above conditions. 1. The Medical Council of NSW is to do an appropriate review for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW). 2. Sections 125 – 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of practice is anywhere in Australia, other than in NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. 3. The conditions contained in orders 3.1, 3.2, 3.5i,ii & iii, and (4) are critical compliance conditions, contravention of which will result in the respondent's registration being cancelled. 4. The respondent must pay the costs of the applicant of or incidental to these proceedings as agreed, or as assessed. 5. Conditions imposed above on the registration of the respondent are to appear on the Public Register. 6. Publication or broadcast of names or other identifying information of any patient is prohibited. ********** 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: 10 February 2016