Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cusi (No.2) [2018] NSWCATOD 123 Hearing dates: 26 July 2018 Date of orders: 06 August 2018 Decision date: 06 August 2018 Jurisdiction: Occupational Division Before: D A Cowdroy ADCJ, Principal Member Associate Professor A Garnham, Senior Member Dr S Howle, Senior Member S Lovrovich, General Member Decision: (1) The practitioner is reprimanded; (2) The practitioner is subject to the following practice conditions: (a) To complete within six months of the date of the Stage 2 decision, or a date as to be determined by the Medical Council of NSW, educational courses, approved by the Medical Council of NSW, in relation to the following areas: (i) Obtaining informed consent; (ii) Effective patient communication; (iii) Engaging with and treating vulnerable patients. (b) Within one month of completing the abovementioned courses, the practitioner is to provide evidence to the Council that he has satisfactorily completed the courses. (c) The practitioner is to bear the responsibility for any costs incurred in meeting this condition. (d) To nominate a registered experienced sports physician to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring; (e) To be mentored for a minimum period of 12 months and subsequently determined by the Council. (f) Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply should the practitioner's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. (g) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (3) The respondent is to pay one half of the applicant's costs of these proceedings. Catchwords: MEDICAL PRACTITIONER – finding of unsatisfactory professional conduct – disciplinary sanctions Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Cusi [2018] NSWCATOD 83 Health Care Complaints Commission v Do [2014] NSWCA 307 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Manuel Cusi (Respondent) Representation: Counsel: A Petrie (Applicant) C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Lawyers (Respondent) File Number(s): 2017/00273840 Publication restriction: An order is made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of the name of the patients set out in the Schedule to the complaint. Reasons for decision 1. On 1 June 2018 the Tribunal found that the respondent was guilty of unsatisfactory professional conduct: see Health Care Complaints Commission v Cusi [2018] NSWCATOD 83. The hearing now before the Tribunal concerns any disciplinary sanction which should be imposed upon the respondent in view of the Tribunal's findings. Further evidence 1. The respondent has provided the Tribunal with a comprehensive statement which was filed on 13 July 2018. There are various matters of significance in the statement which the Tribunal will refer to hereunder. 2. Firstly, the respondent states that he has changed the way he conducts his practice. He has ceased treating rib dysfunction and in particular rib mobilisations with which he was highly experienced. Further, when about to undertake a physical examination of a patient, he states that he now clearly explains to the patient the procedures involved and, if he has any concern that the patient may not understand the procedure he requests that they restate it to him in order to avoid any misunderstandings. When the respondent is satisfied that the patient understands the procedure he then specifically requests the patient to give their consent to the conduct of the physical examination. 3. In August 2017, following lodgement of the complaint, but prior to the hearing of the first stage of these proceedings, the respondent attended a medicolegal conference arranged by the Queensland Medico-Legal Society entitled "When yes means No". The respondent states that the attendance at the course provided him with a deeper appreciation of the requirements of a fully informed consent and that it is not sufficient merely to provide information about a particular procedure. The respondent states that he specifically understands that the practitioner bears the onus of obtaining consent before embarking upon physical examinations. 4. In addition the respondent has undertaken an online course of the Australasian College of Sport and Exercise Physicians which is directed to cultural awareness. The respondent states that it raised the importance of acknowledging and respecting different backgrounds and cultures of individuals and has made him aware of the need for respecting such values. The respondent will be reviewed by his peers of sports physician colleagues later this year on the importance of respecting different cultural mores and backgrounds. 5. The respondent has sought the help of the former president of the Australian College of Sport and Exercise Physicians , namely Dr Jeffrey Peter Steinweg, who was the respondent's mentor when the respondent was a registrar with such College. 6. The respondent states that he accepts the Tribunal's criticisms contained in its above decision and accepts that he failed to provide an adequate explanation for the two patients concerned. The respondent stated he now understands their feelings of vulnerability. He fully acknowledges his shortcomings in failing to provide adequate explanation and has offered his sincere apology for any distress which resulted from his actions. The respondent states that it was his desire to concentrate on the clinical challenge before him in respect of each patient which essentially caused him to overlook the fundamental issue of obtaining consent. 7. The respondent states that he has recently treated two patients. In each case he has provided the necessary information to enable appropriate consent to be obtained before conducting examination and treatment. 8. A letter from the Australasian College of Sport and Exercise Physicians dated 2 March 2018 was tendered, which verifies that the respondent has participated in the CPD program of the college for 2017. Consent Orders 1. The parties have reached agreement on all but one condition which is proposed by way of disciplinary sanction. The condition which is not agreed would require the respondent to practice only in a group practice of medical practitioners. 2. Dr Steinweg testified as to the long association which he had had with the respondent. He stated that since the complaints arose, he has been counselling the respondent. The counselling has consisted of approximately eight face to face meetings over a period of two years, each of about 15 minutes supplemented by numerous and frequent telephone conversations. In those discussions he has discussed the issue of privacy of a patient and consent and the feelings of patients when they feel threatened. Dr Steinweg states that the respondent now has an understanding of the patient's feelings and much more insight into such issue. He knows that the respondent has changed his practice and is fully cognizant of his shortcomings, specifically the need for a patient to know that he or she was happy to proceed with the examination. Dr Steinweg stated that he will continue to monitor the respondent. 3. Dr Steinweg expressed the opinion that no benefit would be obtained by the condition which required the respondent to work only in a group practice. He states that whilst a sole practitioner may be isolated, the practitioner can still be in close contact with his professional colleagues. He also stated that, even in a group practice, a practitioner may feel isolated. 4. Dr Steinweg proposes to meet with the respondent at least four to six times per year. He reiterated that a condition requiring the respondent to work solely in a group practice is unnecessary. 5. The respondent also testified that whilst he is no longer engaged with a group practice, having ceased his engagement with Orthosports, a group practice with which he was involved previously, and is now in sole practice, he will retain his professional relationships with other practitioners. The respondent also stated that his specialty peer group meets every two to three months for discussion and there are also international conferences available. The respondent states that as a sport and exercise physician, he does not feel isolated by virtue of the CPD meetings which are held for the benefit of its members. Consideration 1. The jurisdiction of the Tribunal is protective of the health and safety of the public, which is the paramount consideration: s 3A of the Health Practitioner Regulation National Law (NSW). This fundamental obligation has been confirmed in numerous cases: see for example Health Care Complaints Commission v Do [2014] NSWCA 307; Chen v Health Care Complaints Commission [2017] NSWCA 186; Prakash v Health Care Complaints Commission [2006] NSWCA 153. 2. The findings of the Tribunal revealed a significant shortcoming in the respondent's professional standards. The issue of consent of a patient is of fundamental importance prior to the conduct of any medical procedure or examination. In the present circumstances, having heard the further evidence, and of the measures that are now in place to ensure as far as possible that such a lapse will not recur, the Tribunal is satisfied that the respondent is now fully aware of such responsibility. 3. The Tribunal has considered the conditions suggested and finds that they are appropriate, subject to the condition which would require the respondent to conduct his practice only in a group practice of medical practitioners. Taking into consideration the evidence from Dr Steinweg that no added benefit would arise from the imposition of such a condition, and taking into account the other evidence adduced in this stage of the hearing to the effect that the respondent is now acutely aware of his deficiencies concerning consent, the Tribunal considers that requiring the respondent to operate in a group practice will not assist in communication, nor in respect of consent in the consulting room. The Tribunal is satisfied that the other conditions proposed will be adequate to meet the safeguards required for the public. 4. The Tribunal specifically notes the content of par 49 of the respondent's statement where he states: "Finally, I want to take this opportunity to say to Patient A and Patient B that I am sorry for the distress that I caused them, and reassure them that I have taken steps to make sure that the distress I caused them is not experienced by other patients." Costs 1. Costs of these proceedings have been agreed. Orders 1. The practitioner is reprimanded; 2. The practitioner is subject to the following practice conditions: 1. To complete within six months of the date of the Stage 2 decision, or a date as to be determined by the Medical Council of NSW, educational courses, approved by the Medical Council of NSW, in relation to the following areas: 1. Obtaining informed consent; 2. Effective patient communication; 3. Engaging with and treating vulnerable patients. 1. Within one month of completing the abovementioned courses, the practitioner is to provide evidence to the Council that he has satisfactorily completed the courses. 2. The practitioner is to bear the responsibility for any costs incurred in meeting this condition. 3. To nominate a registered experienced sports physician to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy – Mentoring; 4. To be mentored for a minimum period of 12 months and subsequently determined by the Council. 5. Sections 125 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply should the practitioner's principal place of practice be anywhere in Australia other than in New South Wales, so that the appropriate review body in those circumstances is the relevant National Board. 6. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 1. The respondent is to pay one half of the applicant's costs of these 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 06 August 2018 - 6/08/2018: "professional misconduct" amended to "unsatisfactory professional conduct" in catchwords and at par [1] 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: 06 August 2018