Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ristevski v Medical Council of NSW [2016] NSWCATOD 18 Hearing dates: 2 May 2016 Date of orders: 01 June 2016 Decision date: 01 June 2016 Jurisdiction: Occupational Division Before: K P O'Connor, AM, ADCJ, Deputy President Dr S Messner, Professional Member Dr J Fogarty, Professional Member Dr C Berglund, General Member Decision: (1) Pursuant to s 163B(1)(c) [NSW] of the Health Practitioner Regulation National Law (National Law), the Tribunal grants the applicant's application for reinstatement. (2) Pursuant to s 163B(4) [NSW] of the National Law, the Tribunal imposes the following conditions on the applicant's registration as a medical practitioner: 1. To practise only in a group practice approved by the Medical Council of NSW (the Council) where there are at least two registered medical practitioners (excluding the subject practitioner) where: (a) The patients and the patient records are shared between the medical practitioners; (b) There is always one other registered medical practitioner on site. 2. To practise under Category B supervision in accordance with the Council's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) To authorise the Council to provide proposed and approved supervisors with: (i) A copy of the decision of the Civil and Administrative Tribunal of NSW which imposed these conditions (NCAT decision). (ii) A copy of the decision of the NSW Medical Tribunal – Health Care Complaints Commission v Dr Ristevski [2012] NSWMT 23. (iii) A copy of the judgment of the District Court, 16 February 2011, 2009/64472, Kiro Ristevski v R (b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (i) Communication issues; (ii) Workload; (iii) Clinical performance; (iv) Medical record reviews; (v) Patient follow-up. 3. To practise no more than 40 hours per week, inclusive of supervision time and practice administration time. 4. Within seven days of the end of each calendar month, he is to provide the Council with a record of the number of hours worked per week. The report must include the following: (a) The number of hours of patient consultation; (b) The number of hours of practice administration; (c) The number of hours spent in direct discussion with the supervisor. The report is to be signed by the Council-approved supervisor 5. To nominate an experienced general practitioner to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. (a) To authorise the Council to provide proposed and approved mentors with each of the decisions referred to in condition 2(a). (b) At each mentoring meeting the practitioner is to include discussion of the following: (i) Initially the issues highlighted in these decisions and then any personal and/or medical practice issues that may arise. (c) To authorise the mentor to report, in an approved format, to the Council every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, or personal wellbeing. 6. To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise the treating psychiatrist 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). 8. To complete within 12 months of the date of the NCAT decision the Ethics Course organised by Monash University's School of Medicine Department of General Practice: (a) Within two months of the date of the NCAT decision he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. (b) Within one month 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. (d) In the event that the Ethics Course is unavailable, he must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than two months from the date of these conditions. Additional orders. 1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. 2. Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (3) The applicant is ordered to pay the respondent's costs of the proceedings. Catchwords: PROFESSIONAL DISCIPLINE – Former Medical Practitioner – Application for Reinstatement. Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law, No 86a (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWNCATOD 49 Dawson v Law Society [1989] NSWCA 58 Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 Ex p Tziniolis (1966) 67 SR (NSW) 448 Kazmierczak v NSW Medical Board (unreported, NSW Medical Tribunal, 6 May 2010) Mnywandu v Health Care Complaints Commission [2015] NSWCATOD 43 Reimers v Medical Council of NSW {2015] NSWCATOD 38 Re Mansoor Hider Zaidi [2006] NSWMT 6 Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. Category: Principal judgment Parties: Kiro Ristevski (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: E Pike SC (Applicant) B Baker (Respondent) Solicitors: Browns Legal & Consulting (Applicant) File Number(s): 1520234 REAsONS FOR DECISION 1. This is an application by a former medical practitioner for reinstatement of his registration. 2. The applicant, Mr Kiro Ristevski (born 13 June 1952) graduated in medicine from Skopje University (Republic of Macedonia, then part of the former Yugoslavia) in 1981. He worked as an intern at a hospital in Skopje in 1981-1982. He migrated to Australia in May, 1982. He gained Australian registration in 1992 after fulfilling the requirements for registration applying to overseas qualified doctors. 3. The Medical Tribunal ordered cancellation of his registration on 14 December 2012 because of professional misconduct. The order took effect as from 5 pm on 31 January 2013. It directed that he not be permitted to reapply for 12 months. 4. His misconduct derived from an inappropriate relationship with a much younger woman (Ms A). He had employed her as a secretary in his sole practice on 10 June 2003. She was then almost 27, married with young children and living with her husband. The applicant had separated from his wife in 1999, and they have since divorced. His wife retained care of their two boys, then aged 5 and 3 years old. 5. By October 2003 the applicant's relationship with Ms A had developed into a romantic and sexual one. Ms A left her husband. She left the applicant's employment around October 2005. The relationship between the applicant and Ms A continued in varying degrees until July 2009. For most of that time the applicant also had an intermittent relationship with a Ms X. 6. The relationship with Ms A finally ended after an altercation early in the morning of 3 July 2009. The applicant had been at a medical conference followed by dinner the previous day. He had been drinking at the dinner. According to his statement for the proceedings A's sister had contacted earlier in the day, referring to an argument with A and asking the applicant to arrange to meet A and help with the problem. After the dinner, he went back to his surgery about 10pm. He contacted Ms A, and she agreed to come over. He played the accordion. They shared a bottle of red wine. He drank the larger share. They opened another one and began to share it. About 3am there was a call to the surgery landline which Ms A answered. It was from Ms X. She ended the call. The applicant returned Ms X's call. His action led to an argument between Ms A and the applicant, which grew into a physical altercation. After finding her way to another room, Ms A called 000, the police attended, and took her to a nearby public hospital for a medical examination. She was found to have bruising on her right cheekbone (c 10cm) and patches of redness (c 3cm) on the right side of her face, right sided jaw tenderness as well as redness on the right shoulder (c 1cm). 7. The applicant was charged with assault occasioning actual bodily harm. He was found guilty of that offence at Sutherland Local Court, and placed on a good behaviour bond for 12 months. The court also issued an apprehended violence order. He appealed to the District Court against both the conviction and the sentence. Her Honour Judge Helen Murrell upheld the Local Court's finding of guilt (21 June 2010). The appeal was successful to the extent that the Court decided not to record a conviction. The Court substituted a non-conviction bond of the same duration. In addition, in December 2010 the applicant settled for a substantial sum a civil claim brought against him by Ms A. 8. Ms A had also been a patient of the applicant. He had provided medical advice and treatment to Ms A over the years 2003-2009. He had not kept records of the treatment in the period 2006-2009. 9. The Medical Tribunal (14 December 2012) found proven each of the particulars relied upon. He had failed to maintain appropriate professional boundaries in his personal relationship with Ms A. Further, he had maintained a doctor-patient relationship with her between 2003 and 2009 contrary to ethical standards. He had failed to keep medical records of his treatment of Ms A between 2006 and 2009. He had been found guilty of a serious criminal offence in respect of his conduct on 3 July 2009. 10. The main debate in the Medical Tribunal's decision related to the question of whether the conduct viewed as a whole amounted to professional misconduct, as distinct from unsatisfactory professional conduct. The Tribunal found that it constituted professional misconduct, that it was of a very serious kind and warranted cancellation of registration. The Application 1. The applicant lodged his application for review of the cancellation order and reinstatement on 2 April 2015. The Medical Council of New South Wales appears as respondent to the application, by leave of the Tribunal given under s 44(1) of the Civil and Administrative Tribunal Act 2013. The application raises important matters of public health and safety to which the Tribunal must have regard. The respondent has a special understanding and interest in these matters, as the statutory body with overall responsibility for the maintenance of registration standards and standards of good practice by doctors in New South Wales. 2. The application is made under s 163A(1)(b) [NSW] of the Health Practitioner Regulation National Law (the National Law)). Under s 163B the Tribunal may, relevantly, dismiss the application ((1)(a)) or make a reinstatement order ((1)(c)), and may impose conditions on the applicant's registration ((1)(d)): see s 163B. The applicant seeks reinstatement subject to detailed conditions. 3. Section 163C provides: 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. Relevant Principles 1. In determining whether the order under review (cancellation) remains appropriate, we should (as the respondent submitted) take account of the guiding principles of the National Law, in particular that 'the protection and safety of the public is the most paramount consideration' (s 3A [NSW]). As the National Law also emphasises (s 3(2)(a)), health practitioners must be 'suitably trained and qualified to practise in a competent and ethical manner'. 2. We also accept the respondent's summary of principles that we should take into account in considering an application for reinstatement: (i) the onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a medical practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the medical profession: Ameisen v Medical Council of New South Wales [2015] NSWNCATOD 49 at [24]; (ii) The question whether an applicant is a fit and proper person to be held out as a person worthy of their confidence to the rest of the profession, to patients and to the whole of the community: Ameisen at [24] (iii) The purpose of the jurisdiction is to protect the public, and is not for punishment of the former practitioner: National Law, s 3A; Re Mansoor Hider Zaidi [2006] NSWMT 6 at [42]; Reimers v Medical Council of NSW {2015] NSWCATOD 38 (iv) The applicant must establish his or her case for reinstatement 'on solid and substantial grounds': Dawson v Law Society [1989] NSWCA 58 per Kirby P at [3]. (v) 'Clear proof' is required to establish that there has been reformation of character, referring to the much cited statement of Walsh JA in Ex p Tziniolis (1966) 67 SR (NSW) 448 at 461 (which we need not repeat here). 1. The respondent's summary of principles drew attention in this regard to the observation in Ameisen at [24] that the applicant is therefore in cases of the present kind 'in a more disadvantageous position than an original applicant [for registration]. He or she must in effect displace the decision for deregistration that has been made'. Grounds for Application 1. The basis for the applicant's application for reinstatement is: (1) his improved insight into and understanding of the personal factors that gave rise to his misconduct; (2) the efforts he has made to keep current his professional knowledge, and (3) the support he has from other practitioners to return to work. 1. His case essentially is that he has undertaken a program of rehabilitation over the last three years which justifies the conclusion that he is fit to resume practice, and will not present any risk to public confidence in the practice of the profession. He has received psychiatric assistance and counselling on a regular basis from Dr J Murray Wright. The treatment has sought to address, in particular, the issues of insight and understanding of professional boundaries that give rise to the Medical Tribunal's order. He has undertaken continuing professional development in the degree that would have been required had he remained registered. He has undertaken observerships, 4 days a week, in a variety of settings. He has maintained an active social life and is actively involved in a Church (St George's Life Church, Peakhurst). There is also a strong endorsement of the applicant's unlikelihood of repetition of the conduct that led to him being deregistered from Dr Julian Short, psychiatrist, St Leonards, his interim psychiatrist while Dr Wright was on extended leave in 2014. 2. As is usual, the respondent referred the applicant to a psychiatrist of its choosing for assessment, in this instance Dr Anthony Samuels. Dr Samuels did not oppose reregistration, provided it was subject to appropriate conditions. He noted Dr Wright's view, in partial explanation of his conduct in relation to Ms A, that the applicant had had as at 2011 an adjustment disorder with mixed symptoms of anxiety and depression. In his report for the proceedings (27 January 2016) Dr Samuels noted that Dr Wright had seen the treatment received by the applicant between 2012 and 2014 as assisting the applicant in gaining a better understanding of what he done was inappropriate, and he now had a greater sense of remorse and an improved understanding of professional boundaries. 3. Dr Samuels did not regard the applicant as depressed or anxious, in a clinical sense. The applicant had, what Dr Samuels described as 'personality vulnerability' in handling and dealing with awkward situations. His overall conclusion was that the applicant's likelihood of further breach of boundaries in the way that had occurred previously was 'low'. On the other hand, he considered 'difficult to assess' the depth of his insight into why what he had done was inappropriate and the degree of his personal vulnerabilities. However he had no major concerns in relation to reregistration subject to appropriate conditions. The Evidence 1. The respondent's formal position at the opening of the hearing (on the basis of the material filed and ahead of hearing the oral evidence) was that this may be a case where conditional registration is appropriate, the conditions going to such matters as limit on hours worked, group practice, continuation of counselling, ethics education, and mentoring. 2. At hearing the applicant gave evidence. Dr Wright and Dr Samuels gave evidence, in joint session. 3. The applicant had also attended monthly consultations with Dr Ian Chung since May 2014. He had been assisted by him (as well as by Dr Wright) in dealing with issues of stress, relaxation, diet, work-life balance and the like. Dr Chung's report was before us. We decided that was sufficient, and did not ask him to attend to give oral evidence. 4. The applicant worked for many years as a sole practitioner. He accepted in his statement prepared for the hearing and in evidence that in future it would be better if he worked in a group practice. His observership activity has involved at least one group practice where the practitioner in charge has indicated a preparedness to employ him. 5. He provided a long list of CPD activities in which he had engaged in 2014 and 2015. For example, in 2015 he attended 45 medical meetings, many of which would attract CPD points, across a diverse range of subjects relevant to general practice. He has a similar level of activity in undertaking observerships. 6. He provided long lists of attendances at the practices of doctors indicating that he had been present as patient consultations. They were Dr Richard Adams-Dzierba, GP, at Ashfield, Dr Andrzej Czyniewski, GP at Bankstown, Dr Rajesh Brahmbhatt, Consultant Cardiologist, at Hurstville, Dr Anand Sharma, Interventional Cardiologist, at Hurstville, Dr Kit Lam, General Radiologist, at Hurstville, and Dr Yvonne Holcombe, Pathologist, at Fairfield Heights. 7. He described as examples of 'continuing professional development' his attendances at regular 'case studies and imaging review' meetings at Sutherland hospital, similarly 'pathology reports reviews' at Austech Medical Laboratory. 8. There was a very long document (75 pages) listing private educational activity undertaken by the applicant in the period April 2014 to December 2015, such as by reading medical journals and handbooks, searching the internet on medical topics, and the like. 9. The 2016 updates provided in the applicant's bundle of documents for hearing had a similar profile to the above. 10. The level of activity was so great as to invite some doubt on our part as to how much of what was being observed or learnt had actually been absorbed, and to what extent the level of activity was simply in aid of building a case for the present proceeding. 11. The respondent cross-examined the applicant in relation to the following matters: his understanding of the practice issues that led to his deregistration (inappropriate relationship, employee as patient, failure to keep records, the assault); why his relationship was inappropriate and wrong; his view of the personal factors that led him to behave in that way, and how he proposed to address those factors in future; his involvement in the Macedonian community; managing practice pressures that might arise from those associations; the nature of the assault; his pursuit of an appeal; his view today of his personal responsibility for that conduct; the factors that led to that behaviour and how he now addresses them; the issue of alcohol, and his present level of consumption; and whether he has any continuing contact with Ms A (he said he had not seen her since the civil proceedings). The respondent's questioning then turned to practice and communication issues, including professional isolation, development of better communication strategies to deal with awkward patient situations, and managing the desire to please those that seek assistance so as to avoid circumstances developing that are not professionally appropriate or desirable. He referred to the assistance he had received from Dr Wright's and Dr Chung's counselling in these regards. The questioning then turned to the acceptability of conditions of registration, in such matters as supervision, mentoring, limiting patient contact hours, CPD requirements, and training in ethical duties. 12. The members of the Tribunal questioned the applicant as to the following matters: the nature of the consent received from the patient that enabled him to sit in as an observer; how he goes about recognising that he has become stressed, issues such as his sleep pattern and diet, and how he deals now with stress issues; his consumption of alcohol; his Church activities (he explained that the Church was an evangelistic one unconnected to the Macedonian community); how he would handle requests for treatment from people he was close to, such as those in the Macedonian community; the effect of his behaviour on the night of the assault on Ms A; and further questions as to the extent to which his observerships involved him in being provided with access to confidential patient information. 13. We will not review his responses to all these matters in these reasons. Overall we considered that the applicant now had a strong insight into the personal factors in his life that had led him into difficulty, and in how to manage them for the future. He had kept in touch with practice, and taken in an interest in a number of areas of general practice. 14. We agree with his treating psychiatrists and Dr Samuels that the likelihood of reoffence is low in relation to such matters as: inappropriate personal relationships with subordinate staff, providing care and treatment where it is unethical to do so because of close association, and not documenting treatment. His evidence is that his consumption of alcohol is now occasional and small in amount. We have no real way of testing evidence of this kind. It is a matter that should be kept under notice in future treatment and mentoring. 15. The applicant referred to, and we accept, that he has a good, positive relationship with his sons, now adults. He has a wide and active community life. 16. Those who provided testimonials were aware of the circumstances that had led to his loss of registration, and were supportive of his re-entry to the profession. 17. Dr Adams-Dzierba provided a personal testimonial, and indicated he was prepared to employ the applicant on a part-time basis in his Family Medical Practice at Ashfield. He was prepared to undertake mentor or supervisor obligations, and was aware of what those roles involved. Dr Cziernwiewski also spoke positively on the applicant's commitment, and referred positively to the involvement that the applicant had had in Macedonian Community Radio discussing medical topics of current interest with invited guest speakers. Dr Brambhatt referred to the relationship that had existed between them from about 2007 onwards with the applicant often referring patients to him. He referred to the friendship relationship they have had in more recent times through Bible study classes at common involvement in the same Church. All of these referees spoke of the great remorse he had expressed to them over the matters that led to his deregistration. 18. Our main reservation relates to the applicant's perception of his involvement in the assault. In our view, the applicant continues to struggle with the question of the degree of his conduct in the early morning hours of 3 June 2009. 19. In his first police interview (see District Court judgment, para [12]), he spoke only of Ms A pushing against him in anger, and referred to the possibility that he pushed her down on the couch or pushing her against the couch. 20. In his written statement of evidence filed for the hearing, he compressed the circumstances of the assault to the following: There were arguments about a number of matters. This culminated in some wine being thrown and some pushing, shoving and wrestling. We fell to the floor. Patient A suffered facial abrasions. 1. In cross examination before us the applicant again depicted the event as one involving a collision, or coming together of their two bodies, followed by a falling motion, near the couch. He weighed around 105g at that time while Ms A was a slightly built woman of about 60 kg (see District Court judgment). 2. The key contested issue before the local court and again at the District Court had been the degree of physical interaction that occurred between the applicant and Ms A. Ms A acknowledged in her evidence to both courts that she had, in a sense, started the argument, by becoming aggressive and angry over the call of Ms X, and that she had thrown red wine at the applicant. But both courts firmly rejected the applicant's testimony that there was just one physical interaction between them (the initial collision and fall), and the further contention that that event was the source of Ms A's injuries. The applicant sought to explain those injuries by the possibility that he may have accidentally trod on her as they fell. 3. In her original statement to the police and subsequent evidence, Ms A had consistently acknowledged the pushing that occurred between them, and that they ended up on the floor. But she went on to say that once he was on top of her he had put pressure on her throat, 'strangling her' so that she could not breath. She said it was events subsequent to this point that had given rise to the bruising and similar injuries that she suffered. Those events were the applicant's actions in grabbing the telephone from Ms A, punching her, and stomping her with his foot. She acknowledged in regard to the stomping motions that he had not used full force or pressure. 4. Her Honour Judge Murrell said: 23. .... In the electronically recorded interview, soon after the alleged incident, the appellant referred only to one episode of physical interaction between himself and the complainant when he referred to the possibility of pushing her onto the lounge. But in the course of evidence even he conceded that there was considerably more interaction. 1. We have some doubt as to whether, to this day, the applicant has accepted that he did more than fall to the floor on top of Ms A. He still does not appear to have accepted the fuller account of what occurred, as found by both courts. 2. Nonetheless, we accept the thrust of what was put to us by his psychiatrist, Dr Wright, and broadly accepted by Dr Samuels. That is that today he has much greater insight into the wrongness of his behaviour on that occasion. He has developed much greater insight into the wrongness of his conduct as a senior and experienced practitioner in pursuing a romantic involvement with an employee, especially one who was in a very vulnerable situation by reason of youth, the need to keep her job and other factors. Moreover, she was the only employee in a practice where they would inevitably be alone together on a regular basis. This circumstance is one that a sole practitioner should take great care to manage in a professional and acceptable way. 3. She was quite young relative to him, and as the relationship developed her marriage came under pressure, increasing her vulnerability to his approaches. As we see it, she found herself in a dependent relationship, further complicated by the applicant being her treating practitioner. As an experienced practitioner, he should have been well aware that his professional judgment may well be impaired by the personal relationship between them. We accept that the counselling provided by Dr Wright has dealt carefully with these issues, and the possibility of recurrence of this type of behaviour is now very low. 4. We accept the experts' opinion that his understanding and insight into the personal factors that gave rise to this behaviour is much improved, and that similarly he has much improved empathy and understanding of the wrong he committed and the psychological and other harm he caused to Ms A. 5. Dr Wright referred in his report of 18 November 2014 to the following factors as contributing to the applicant's misconduct: ... [his] tendency to work excessively long and poorly defined hours, his availability to patients at all times, seven days a week, and poor delineation of working time from personal time. He also treated many members of the Macedonian community, of which he was also a member, adding to the risks of blurred professional boundaries. His divorce and sense of estrangement from his family also contributed to the circumstances under which the misconduct took place. 1. In our view, these factors continue to present some risk. The level of activity reflected in his list of activities of a CPD and observerships have, it seems to us, some similar characteristics. Conditions on registration should address these dangers. Assessment 1. The circumstances that gave rise to the applicant's deregistration involved a serious transgression of professional boundaries that occurred over many years confined to one person, culminating in an assault on her resulting in injury. The assault was seen by the courts as falling at the lesser end of the spectrum of violence of this kind, with no conviction being recorded and a good behaviour bond being imposed. 2. Nonetheless special trust is placed by the community in medical practitioners to observe appropriate boundaries in relation to personal space, touching and physical contact. Medical practitioners have a special duty to do no harm in their physical contact with people, physical contact (often of an intrusive or intimate nature) that is an intrinsic aspect of their calling. While the applicant's conduct was at the lower end of the spectrum of abusive conduct seen by courts in criminal cases, it fell at the high end of the spectrum of wrongful conduct by a person trained as a medical practitioner. A physical assault in a social setting by a medical practitioner is reprehensible. 3. The applicant has taken, as we have recounted, a number of steps to address his misbehaviour. He settled litigation brought by Ms A for a substantial sum. He has undertaken a strong program of rehabilitation, addressing in particular the circumstances in his life and of a personal kind that contributed to his relationship with Ms A. His own psychiatrist Dr Wright is positive about the extent of his remorse and his insight into the wrongness of his actions, and in what to do if he is confronted by similar situations in the future. Most notably, Dr Samuels, the expert engaged by the respondent to make an independent assessment, is also supportive, though in a more reserved way than Dr Wright. 4. We have expressed some scepticism about the extent to which he acknowledges to this day the full dimensions of his behaviour on 3 July 2009. 5. He has built a seemingly impressive record of CPD and observership activity over the years he has been deregistered. We have expressed some scepticism, simply because of its scale, as to its depth. He has doctors supportive of his return to practice. 6. We are satisfied that he has established that he is fit to return to practice, and can be trusted to practise in a safe and ethical way. We were presented with a series of proposed conditions. They traversed many of the issues to which we have referred in these reasons. 7. The proposed conditions covered the following matters: (1) To practise only in a group practice (2) To practise under category B supervision (3) 40 hours limit on work per week (4) regular reporting to Medical Council (5) appointment of professional mentor (6) standard term as to exchange of information between relevant authorities (7) attendance on psychiatrist of choice (8) further education in ethics. 1. We adjourned briefly at hearing to consider the detail of the proposed conditions, and provided feedback to the parties especially in relation to some areas of minor contention or uncertainty, such as whether both a supervisor and a mentor was needed, the appropriate interpretation of the work time limit standard and the need or otherwise for the ethics course. 2. We have decided that the conditions as appear in our final order below should be placed on the applicant's registration. Our view on the areas of contention or uncertainty are reflected in our final terms. 3. In the orders as proposed to us, Condition 5 stipulated a minimum period for mentoring of 12 months and subsequently as determined by the Council. We have not included that provision in our terms of order. There were no other time provisions in the orders as proposed, except for the notification requirements of Condition 8, which we have retained. 4. We think it better to leave the setting and administration of time periods to the respondent. In principle, we consider that all the ongoing conditions (1 to 6) should operate for the first 12 months. After that the issue of the continued operation of particular conditions, and their detail, should be left, we think, to the respondent, having regard to the views of the treating psychiatrist, the mentor and the supervisor. 5. The term we see as being the least negotiable in this way is term 1. It requires the applicant to practise henceforth in a group practice environment. We see this as in the nature of a long term condition. We do not think it desirable for the practitioner ever to resume sole practice. We canvassed our view with the parties at hearing, and we understood the applicant to have no difficulty in this regard and to appreciate the value to him and to the protection of the community in working in that way. Comment: Observership by Deregistered Practitioners with a view to Reregistration 1. As was reflected in the Tribunal's questioning of the applicant, the Tribunal had some concern over whether his presence at sessions with patients was ethical and appropriate. 2. We acknowledge that it is not unusual for deregistered practitioners intent on applying for reregistration to seek to assist their case by sitting in on consultations by a registered practitioner with patients. We were troubled in this case as to the nature of the consent given by the patients to being observed by the applicant. It was said by the applicant that informed consent was given, but we had no corroborating material. 3. We discussed the issue in the joint session with the treating psychiatrists. In our view, as they suggested, the ultimate responsibility for ensuring that the patient is at ease with and has given an informed consent for a third person to be present lies with the patient's treating practitioner. We were not clear in this case as to what kind of authorities had been procured by the treating practitioners, and what information had been given to them about the applicant. Patients, in our view, need to have appropriate information provided to them about the background of the third person reasonably in advance of the consultation and in a way that does not involve pressure to consent. 4. There is a public interest, we accept, in former practitioners who are seeking to reregister being permitted to take steps to maintain currency of knowledge, and to address in a practical way, practice or knowledge failures that led to deregistration. But there seems to us to be a lack of clarity as to the protocols to be observed by treating practitioners who are prepared to have such a person sit in on actual consultations with patients, view records and the like. This is a matter to which the respondent or some other appropriate authority might wish to give attention. The deregistered practitioner seeking reregistration, sitting in on a consultation, is not a regulated person in the way, say, a medical student is. Costs 1. The respondent applied for its costs of the proceedings. The applicant applied for no order as to costs. 2. The Tribunal's power to award costs is conferred by Sch 5D cl 13 [NSW] of the National Law. The power is broadly expressed, and, as relevant to this application, states: The Tribunal may order .... any ... person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry .... before the Tribunal to pay costs to another person as decided by the Tribunal. 1. The applicant noted that the respondent was joined as a party of its own motion, which was neither opposed nor consented to by the applicant. 2. As we noted earlier in our reasons, the respondent appeared by leave of the Tribunal. The respondent's role in proceedings of this kind is, as we see it, to give voice to concerns or matters relevant to proper standards of practice and to the community's interest in safe and competent practice of medicine: see further, Kazmierczak v NSW Medical Board (unreported, NSW Medical Tribunal, 6 May 2010). 3. There is a risk that without a respondent of this kind in an application for reinstatement, the Tribunal may overlook matters of importance of that kind that the respondent routinely oversees and implements. An applicant for reinstatement will be inclined to put a partial case forward, partial in the sense of self-interested, and partial in the sense of not drawing attention to negative matters. Applicants for reinstatement in this jurisdiction would, we consider, expect interest to be taken in their application by the respondent, and equally anticipate that the Tribunal would ordinarily grant leave to the respondent to appear. This is very likely to be the case where the reason for deregistration is a finding of professional misconduct. There is a strong public interest in ensuring that practitioners found guilty of professional misconduct are not lightly restored to the register. 4. The respondent referred to the observations of the Tribunal in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [90], where a costs order in favour of the respondent was made: Proceedings of the present kind arise because of the prior misconduct of the applicant, and can be seen as ancillary. While it might be said that the applicant has been 'successful', and thereby should, at the least, not be exposed to the respondent Council's costs, that misunderstands the nature of the respondent's involvement at the inquiry. 1. The applicant drew attention to some recent cases in the Tribunal where costs have not been ordered in favour of the respondent appearing by leave in response to successful reinstatement applications. In a nurse's reinstatement case, Mnywandu v Health Care Complaints Commission [2015] NSWCATOD 43, there was no order as to costs, and the Tribunal explained its approach at [128]-[146]. It emphasised the discretionary nature of the Tribunal's power, and questioned the drawing of analogies in the exercise of the power with the court approach to the exercise of costs discretions expressed in similar terms to cl 13, that of 'costs follow the event'. The Tribunal acknowledged that such an approach might be appropriate when dealing with disciplinary complaints that are found proven, and lead to adverse orders against the practitioner. It put successful reinstatement applications in a different category. 2. It is apparent from the reasons of the Tribunal in Mnywandu that there had been contention over the scale of the respondent's reply to the nurse's reinstatement application, and over the way the respondent chose to conduct its case. 3. No issues of that kind arise in this case. Properly in our view, counsel for the applicant did not make any criticisms of that kind. In our view, the respondent conducted its case in an appropriate and concise way. Its filings were not voluminous and they were confined to clearly relevant material. Only three witnesses were called to give evidence, and two of those were the applicant and his treating psychiatrist. 4. In Donnelly v Health Care Complaints Commission [2014] NSWCATOD 155 (reinstatement as a psychologist) the Tribunal dealt at some length with the competing considerations in relation to an order for costs in cases of this type. It referred to matters such as the financially adverse effect of a costs order on the applicant's ability to get started afresh. 5. It is noteworthy that again in that case the Tribunal was concerned by the way the respondent comported itself in the proceedings. The respondent had opposed outright the reinstatement application, and had to be pressed to supply any proposed conditions in relation to possible reinstatement. Clearly the Tribunal took a much more positive view of the application than the respondent. It could possibly be said that the respondent 'lost' its case in opposition to reinstatement, and that considerably weakened its application for a costs order in its favour. The Tribunal made no order as to costs. 6. Donnelly, as we see it, involves a situation where the Tribunal was not assisted in the way seen as appropriate in the circumstances of the case by the respondent's choices as to its mode of participation. The same can be said of Mnywandu. 7. This is not a case of that kind. The respondent proceeded in an appropriate way, and its submissions were in line with the views of the psychiatrist to whom it referred the applicant. It assisted in the process of formulating possible conditions. Properly the respondent reserved its final position at the outset of the hearing until the evidence had been heard, in particular the applicant's evidence. 8. Our attention was also drawn to another decision of the Tribunal where no order as to costs was made in respect of a reinstatement application by a former doctor, Roberts v Medical Council of New South Wales [2015] NSWCATOD 35. This was also a case where there were special features. The Tribunal referred to the discussion in Donnelly and concluded: In the present case the report of Dr Wright [for the respondent] did not call into question any of the medical opinions tended [sic] on behalf of Mr Roberts. Counsel for the Medical Council acknowledged that Mr Roberts had taken time before applying for registration and had taken steps to keep himself up-to-date with medical practice. He had shown remorse. It was only the absence of a provision permitting the respondent to consent to the application for re-registration that prevented that course being adopted. 1. The case before us is not a case where, in our opinion, it could have been seen as tenable that the matter was one that could have been resolved by a consent order were that an available course. (We assume, for this purpose, that the Tribunal's observation about the need for a special provision is correct.). In Roberts it would seem that the view formed was that the respondent's role was not required, in any meaningful way, to the resolution of the application. 2. What emerges from the review of the cases raised by the applicant where no order was made is that the public interest respondent who is given leave to appear in answer to a reinstatement application should not assume that the Tribunal will compensate it for their participation, at least where the applicant's application is successful. Some attention will be given by the Tribunal to the way the respondent conducted itself in the proceedings (a usual matter in all cases involving costs disputes). Where the participation is seen as unsatisfactory or of little or no value, it may be disposed not to order costs. 3. In this case the reinstatement application has been brought relatively soon after the making of the cancellation order. It was filed on 2 April 2015, a little more than two years after the order took effect. Another year has now passed. In essence, the applicant needed to demonstrate that in a relatively short space of time he had undergone a sufficient reformation of character to warrant readmission to the profession. 4. The grant of leave to appear to allow bodies such as the Medical Council or the Heath Care Complaints Commission to respond to applications for reinstatement is guided by the public interest, and the protective purpose of disciplinary statutes. 5. An applicant who seeks relatively early reinstatement would, we think, recognise that key regulators would take a close interest in the application and be likely to seek and be granted leave to appear. Quite properly, the applicant did not oppose the grant of leave in this case. It remains open to an applicant who does not oppose the grant of leave, nevertheless to raise the question of any limits being placed on possible costs, though this is not commonly done. 6. We accept that the Tribunal should be vigilant and not compensate by a costs order a respondent who proves in the preparation and conduct of their role to be unconstructive, unduly hostile or whose participation proves to be token. 7. In our view the basic point made in the passage quoted from Ameisen stands. A reinstatement application ordinarily has its genesis in a finding of professional misconduct involving conduct so egregious that cancellation of registration is required in the public interest. The applicant should factor in the possibility of their application being tested and challenged by a respondent for the public interest. Provided the respondent conducts its case appropriately, it should be compensated regardless of whether the order is granted or refused. 8. The power to award costs is discretionary. Each of the recent cases to which our attention was drawn, where no order to costs was made, had exceptional features. 9. We accept equally there may be reinstatement cases where the genesis is not a finding of professional misconduct, but perhaps impairment and consequent incompetence to practise. It may well be that the question of costs of respondent in reinstatement applications of that kind warrants a different approach. Order 1. Pursuant to s 163B(1)(c) [NSW] of the Health Practitioner Regulation National Law (National Law), the Tribunal grants the applicant's application for reinstatement. 2. Pursuant to s 163B(4) [NSW] of the National Law, the Tribunal imposes the following conditions on the applicant's registration as a medical practitioner: 1. To practise only in a group practice approved by the Medical Council of NSW (the Council) where there are at least two registered medical practitioners (excluding the subject practitioner) where: (a) The patients and the patient records are shared between the medical practitioners; (b) There is always one other registered medical practitioner on site. 2. To practise under Category B supervision in accordance with the Council's Compliance Policy – Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) To authorise the Council to provide proposed and approved supervisors with: (i) A copy of the decision of the Civil and Administrative Tribunal of NSW which imposed these conditions (NCAT decision). (ii) A copy of the decision of the NSW Medical Tribunal – Health Care Complaints Commission v Dr Ristevski [2012] NSWMT 23. (iii) A copy of the judgment of the District Court, 16 February 2011, 2009/64472, Kiro Ristevski v R (b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (i) Communication issues; (ii) Workload; (iii) Clinical performance; (iv) Medical record reviews; (v) Patient follow-up. 3. To practise no more than 40 hours per week, inclusive of supervision time and practice administration time. 4. Within seven days of the end of each calendar month, he is to provide the Council with a record of the number of hours worked per week. The report must include the following: (a) The number of hours of patient consultation; (b) The number of hours of practice administration; (c) The number of hours spent in direct discussion with the supervisor. The report is to be signed by the Council-approved supervisor 5. To nominate an experienced general practitioner to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy – Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. (a) To authorise the Council to provide proposed and approved mentors with each of the decisions referred to in condition 2(a). (b) At each mentoring meeting the practitioner is to include discussion of the following: (i) Initially the issues highlighted in these decisions and then any personal and/or medical practice issues that may arise. (c) To authorise the mentor to report, in an approved format, to the Council every six months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, or personal wellbeing. 6. To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with these conditions. 7. To attend for treatment by a psychiatrist of his choice, at a frequency to be determined by the treating psychiatrist. To authorise the treating psychiatrist 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). 8. To complete within 12 months of the date of the NCAT decision the Ethics Course organised by Monash University's School of Medicine Department of General Practice: (a) Within two months of the date of the NCAT decision he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. (b) Within one month 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. (d) In the event that the Ethics Course is unavailable, he must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than two months from the date of these conditions. Additional orders 1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. 2. Sections 125 to 127 of the National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 1. The applicant is ordered to pay the respondent's costs of the proceedings. 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 Amendments 15 July 2016 - Amendments made to Order (2) and Order (2) condition 5. 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: 15 July 2016