Health Care Complaints Commission v Bester [2016] NSWCATOD 140

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Bester [2016] NSWCATOD 140 Hearing dates: 1, 2 and 3 August 2016 Date of orders: 03 August 2016 Decision date: 03 August 2016 Jurisdiction: Occupational Division Before: Mullane ADCJ, Principal Member Dr L Cotterall, Professional Member Dr P Anderson, Professional Member Assoc Prof P Macneill, General Member Decision: 1. The Practitioner is guilty of professional misconduct; 2. Pursuant to s149C(1)(b) of the National Law the practitioner's medical registration is suspended for 6 months from 23 August 2016; 3. The Medical Council is the appropriate review body for the purposes of part 8, Division 8 of the Health Practitioner Regulation National Law (NSW); 4. Sections 125 to 127 of the Health Practitioner National Law (NSW) are to apply should the registrant's principal place of practice be anywhere in Australia other than in the New South Wales so that the appropriate review body in these circumstances is the Medical National Board; 5. Pursuant to s149A(1)(b) the following conditions are imposed on the practitioner's registration: Practice Conditions (1) Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW); (2) To obtain Council approval prior to changing the nature or place of his practice; (3) To practice only in a group practice approved by the medial council of NSW where there are at least 3 registered medical practitioners, (including the subject practitioner), where there is always at least one other registered medical practitioner on site when he is there. For the purpose of monitoring this condition the practitioner is to provide the council with copies of the practice appointment book on any dates specified by the Council to confirm compliance with this condition; (4) To authorise the Council to notify all medical practitioners at the practitioner's place of practice of his practice conditions and any issues arising in relation to compliance with any of his conditions, and to request those practitioners to raise with the Council any concerns they have about the practitioner or his practice; (5) To notify the Council of any change in practice partners/associates within seven (7) days of a practice partner/associate either leaving the practice or commencing work at the practice; and (6) To authorise and consent to any exchange of information between the Council and Medicare Australia for the purpose of monitoring compliance with the practitioner's conditions. Health Conditions (1) Not to prescribe for self-medication; (2) To attend for treatment by a general practitioner of his choice, at a minimum of an annual basis, and at other times at a frequency to be determined by the practitioner and the treating practitioner. To notify the Council, in writing the name of the treating practitioner within 2 weeks of changing treating practitioners, should his treating practitioner change. To authorise the treating practitioner to confirm attendance in writing to the Council and to inform the Council of failure to attend for treatment, termination of treatment, or if there is a significant change in health status (including significant temporary change); (3) 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); (4) To attend for treatment by a clinician of his choice specialising in drug & alcohol (different from the primary treating psychiatrist in Health Condition 3) at a frequency to be determined by the treating practitioner. To authorise the treating practitioner 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); (5) To continue taking any medication prescribed by his treating practitioners; (6) That the extent of his professional duties is to be guided by his health status and the advice of his treating, and any Council appointed, practitioners; (7) Not to self administer: a. any schedule 4D or 8 Drug; or b. any narcotic derivative; or c. any non-prescription compound analgesic or cold medication. Such medication must only be prescribed and taken at the direction of his treating practitioner; (8) That should he be prescribed or directed to take: a. any schedule 4D or 8 Drug; or b. any narcotic derivative; or c. any non-prescription compound analgesic or cold medication, the practitioner must notify any Council appointed psychiatrist and the Council. In addition within 7 days he must provide the Council with written confirmation of such treatment from the treating practitioner; (9) To attend for Random Urine Testing (UDT) in strict accordance with Council's protocol. Results of Urine Drug Testing to be forwarded to any Council appointed and treating practitioners and to the Council. He understands that such UDT will be at his expense; (10) To abstain completely from the consumption of Alcohol; (11) To attend for review by a Council appointed psychiatrist on a six (6) monthly basis or as otherwise directed by the Council, at the Council's expense; (12) To attend a Review Interview at the Council in 6 months or as otherwise directed by the Council, at the Council's expense; (13) To authorise the Council to forward copies of the Impaired Registrant's Panel Report, subsequent Council Review Interview reports and other information relevant to his impairment to any Council appointed practitioners and his treating practitioners; and (14) To forward to the medical Council of NSW every three months a record of his attendance for treatment by his treating practitioners. The record must include: a. The date of each attendance for treatment; and b. The name of the treating practitioner; and c. The contemporaneous signature of the treating practitioner. 6. Practice Condition 1 and Health Conditions 1 and 7 are critical compliance conditions, the contravention of which will result in the practitioner's registration being cancelled; 7. The applicant must provide the Royal Australian College of General Practitioners with a copy of these orders; 8. The practitioner must pay the costs of the applicant of or incidental to these proceedings as agreed or as assessed; and 9. Publication of the name of any patient referred to in the proceedings, or other information that identifies the patient, is prohibited. Catchwords: Disciplinary proceedings, Medical practitioner, prolific breaches of legislation and conditions of registration, dishonesty, professional misconduct, impairments, drug addiction and Bipolar II Disorder, Suspension. Legislation Cited: Health Profession Regulation National Law (NSW); Health Practitioner Regulation (NSW) Regulation 2010; Poisons and Therapeutic Goods Regulation 2008; Poisons & Therapeutic Goods Act 1966 (NSW) Cases Cited: HCCC v Dinnaker [2009] NSWMT 8: Ohn v Walton (1995) 36NSWLR 77; HCCC v Dr Mazzaferro [2011] NSWMT 9 Category: Principal judgment Parties: Health Care Complaints Commission (HCCC) (Applicant) Dr Johannes Cornelis Bester (Respondent) Representation: Counsel: A Britt (Applicant) M Lynch (Respondent)