Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Malouf (No 2) [2020] NSWCATOD 12 Hearing dates: On the papers Date of orders: 30 January 2020 Decision date: 30 January 2020 Jurisdiction: Occupational Division Before: N Hennessy ADCJ, Deputy President Dr K Keenan, Senior Member Dr J Fogarty, Senior Member S Lovrovich, General Member Decision: We make the following orders in addition to the orders made on 25 October 2019: (9) When the period of suspension has expired, Dr Malouf is to be subject to the following additional conditions: (1) To advise the Medical Council of NSW (the Council) in writing at least seven days prior to changing the nature or place of his practice. (2) To maintain a log listing all patients under his immediate care at any residential aged care facility that he has prescribed any Schedule 8 drug or Schedule 4 Appendix D drug. A copy of the log is to be forwarded to the Council within 7 days of the end of each calendar month. The log is to include: (i) the full name and date of birth of the patient; (ii) the date of the consultation; (iii) the name of the drug prescribed; and (iv) the name of the residential aged care facility. (a) Prior to submitting the monthly log to the Council, Dr Malouf is to submit the log to the Director of Nursing or any other Responsible Senior Officer of the residential aged care facility he has prescribed at for verification. (b) Dr Malouf authorises the Council to contact the residential aged care facility to verify any information recorded in the log. (3) To forward evidence to the Council within 14 days of the expiration of the suspension, that Dr Malouf has provided a copy of the Practice Conditions to the: (a) Medical Director; and/or; (b) Principal of Practice; and/or (c) any other Responsible Senior Officer in any place that he works (including any locum agencies, Local Health District public and private hospitals, day procedures centre, medical centre, residential aged care facility or nursing home where he holds any appointments). (4) Within 14 days of a change in the nature or place of his practice, Dr Malouf is to forward evidence to the Council that he has provided a copy of the Practice Conditions to the: (a) Medical Director; and/or (b) Principal of Practice and/or (c) any other Responsible Senior Officer in any place that he works (including any locum agencies, Local Health District public and private hospitals, day procedures centre, medical centre, residential aged care facility or nursing home where he holds any appointments). (5) To practise under Category C 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) At each meeting, Dr Malouf is to review and discuss his practice with his approved supervisor with particular focus on appropriate prescribing practices and compliance with legislative requirements. (b) To authorise the Council to provide proposed and approved supervisors with a copy of the decision that imposed this condition. (6) To complete within 12 months of the expiration of Dr Malouf's suspension, a course, or courses, in ethics and appropriate prescribing practices, approved by the Council: (a) within 3 months of the expiration of Dr Malouf's suspension, he must provide evidence to the Council of his enrolment in the abovementioned course(s); (b) within 1 month of completing the abovementioned course(s), Dr Malouf is to provide documentary evidence to the Council that he has satisfactorily completed the program; (7) To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Council and: (a) The audit is to be held after 6 months from the expiration of Dr Malouf's suspension and subsequently as required by Council. (b) The auditor is to assess Dr Malouf's compliance with legislative requirements, the practice conditions and appropriate prescribing practice. (c) To authorise the auditor(s) to provide the Council with a report on their findings. (8) To authorise and consent to any exchange of information between the Council, Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these Conditions. (9) Within seven days of commencing any other employment, Dr Malouf is to forward evidence to the Council that he has provided a copy of the conditions to the principal of that place of practice. (10) To authorise the Council to exchange information with current and future persons or organisations at places where he works as a medical practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. (11) Dr Malouf is to meet the costs of compliance with the conditions. Catchwords: MEDICAL PROFESSION – practitioner suspended and one condition imposed – whether additional conditions are appropriate – whether degree of risk justifies audit condition Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr George Malouf (Respondent) Representation: Counsel: S Maybury (Applicant) R Mathur (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Law Pty Ltd (Respondent) File Number(s): 2018/00312313 Publication restriction: Under Cl 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) an order is made prohibiting disclosure to any person or entity of the names of the patients set out in the schedule to the complaint. REASONS FOR DECISION Overview 1. On 25 October 2019, the Tribunal reprimanded Dr Malouf and suspended his registration as a medical practitioner for 6 months. The Tribunal also ordered that, when the period of suspension has expired, Dr Malouf is to be subject to the following condition: Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW) and any substance listed in Schedule 4 Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW), except to prescribe on a medication chart/medical record for any patient who is under his immediate care at any residential aged care facility. 1. The Tribunal directed Dr Malouf and the Health Care Complaints Commission, to provide submissions as to any additional conditions that should be imposed on Dr Malouf's registration. We have received those submissions and have decided to determine this issue without having a hearing: Civil and Administrative Tribunal Act 2013 (NSW), s 50. Proposed conditions 1. The Health Care Complaints Commission proposed 14 further conditions. 1. To advise the Medical Council of NSW (the Council) in writing at least seven days prior to changing the nature or place of his practice. 2. Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW) and any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW), except to prescribe on a medication chart/medical record for any patient who is under his immediate care at any residential aged care facility. 3. To maintain a log listing all patients under his immediate care at any residential aged care facility that he has prescribed any Schedule 8 drug or Schedule 4 Appendix D drug. A copy of the log is to be forwarded to the Council within 7 days of the end of each calendar month. The log is to include: (i) the full name and date of birth of the patient; (ii) the date of the consultation; (iii) the name of the drug prescribed; and (iv) the name of the residential aged care facility. a) Prior to submitting the monthly log to the Council, Dr Malouf is to submit the log to the Director of Nursing or any other Responsible Senior Officer of the residential aged care facility he has prescribed at for verification. b) Dr Malouf authorises the Council to contact the residential aged care facility to verify any information recorded in the log. 4. To forward evidence to the Council within 14 days of the expiration of the suspension, that Dr Malouf has provided a copy of the Practice Conditions to the: a) Medical Director; and/or b) Principal of Practice; and/or c) any other Responsible Senior Officer in any place that he works (including any locum agencies, Local Health District public and private hospitals, day procedures centre, medical centre, residential aged care facility or nursing home where he holds any appointments). 5. Within 14 days of a change in the nature or place of his practice, Dr Malouf is to forward evidence to the Council that he has provided a copy of the Practice Conditions to the: a) Medical Director; and/or b) Principal of Practice; and/or c) any other Responsible Senior Officer in any place that he works (including any locum agencies, Local Health District public and private hospitals, day procedures centre, medical centre, residential aged care facility or nursing home where he holds any appointments). 6. To practise under Category C 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) At each meeting, Dr Malouf is to review and discuss his practice with his approved supervisor with particular focus on appropriate prescribing practices and compliance with legislative requirements. b) To authorise the Council to provide proposed and approved supervisors with a copy of the decision that imposed this condition. 7. To complete within 12 months of the expiration of Dr Malouf's suspension, a course, or courses, in ethics and appropriate prescribing practices, approved by the Council: a) within 3 months of the expiration of Dr Malouf's suspension, he must provide evidence to the Council of his enrolment in the abovementioned course(s); b) within 1 month of completing the abovementioned course(s), Dr Malouf is to provide documentary evidence to the Council that he has satisfactorily completed the program; c) to bear responsibility for any costs incurred in meeting this condition. 8. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Council and: a) The audit is to be held within 3 months from the expiration of Dr Malouf's suspension and subsequently as required by Council. b) The auditor is to assess Dr Malouf's compliance with good medical record keeping standards, legislative requirements and compliance with conditions. c) To authorise the auditor(s) to provide the Council with a report on their findings. d) To meet all costs associated with the audit(s) and any subsequent reports. 9. To authorise and consent to any exchange of information between the Council, Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these Conditions. 10. Within seven days of commencing any other employment, Dr Malouf is to forward evidence to the Council that he has provided a copy of the conditions to the principal of that place of practice. 11. To authorise the Council to exchange information with current and future persons or organisations at places where he works as a medical practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. 12. While Dr Malouf's principal place of practice is New South Wales, 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). 13. While Dr Malouf's principal place of practice is anywhere in Australia other than in New South Wales, section 125 to 127 of the Health Practitioner Regulation National Law are to apply, and accordingly, in those circumstances, a review of these conditions can be conducted by the Medical Board of Australia. 14. Dr Malouf is to meet the costs of compliance with the conditions. 1. Dr Malouf did not object to proposed conditions 1–7 and 9–11 and we agree that those conditions are appropriate. Proposed condition 2 is in virtually identical terms to the condition that the Tribunal imposed in its decision on 25 October 2019. As an order has been made, it is not necessary to re-make the order. The substance of "conditions" 12 and 13 were also made in the 25 October 2019 decision. Disputed proposed conditions Audit condition 1. The only substantive proposed condition to which Dr Malouf objected was condition 8 relating to the auditing of his medical practice. The Health Care Complaints Commission submitted that this condition was justified because: Part of the problem with the Respondent's approach was a lack of express diagnosis of conditions, in particular substance use disorders, which then flowed on to a failure to properly consider appropriate referrals or seek help in treating the patients. If the Respondent's clinical records incorporated such diagnoses, one would hope that warning bells would have been triggered. An auditor will be able to discern if the Respondent's records are being maintained to an appropriate standard, including appropriate use of diagnoses, as well as check for compliance with conditions including the prescribing condition. 1. Dr Malouf submitted that there was no justification for imposing this condition because any deficiency in medical record keeping standards was not part of the Complaint. Dr Malouf is correct, but that is not the only justification the Health Care Complaints Commission gives for proposing the condition. It is also said to be necessary to check for compliance with the prescribing condition which the Tribunal has already made. 2. Dr Malouf has, in effect, been subject to the prescribing condition since 30 March 2016. There was no evidence that he has breached that condition by prescribing Schedule 8 or Schedule 4 Appendix D drugs. We note that Dr Malouf is permitted to prescribe on a medication chart/medical record for any patient who is under his immediate care at any residential aged care facility. There is a small risk in that context, that his lack of prescribing knowledge will lead to inappropriate prescribing. There is a more significant risk that Dr Malouf's lack of prescribing knowledge will lead to inappropriate prescribing of non Schedule 8 or non Schedule 4 Appendix D drugs. Several drugs which are not listed in Schedule 8 or Schedule 4 Appendix D are open to abuse or have a street value. In those circumstances, an audit condition is appropriate. 3. The Council's proposed order was that the first audit should take place within 3 months from the expiration of Dr Malouf's suspension and subsequently as required by Council. In our view, an audit within the first three months would be premature. An auditor is more likely to uncover any prescribing issue if he or she examines medical records over a longer period than three months. An audit after 6 months from the date of suspension would be preferable. Costs conditions 1. Finally, Dr Malouf submitted that proposed condition 14, that he meets the costs of compliance with the conditions, is superfluous. The supervision condition (proposed condition 6) requires compliance with the Medical Council Compliance Policy. That Policy stipulates that all costs associated with complying with supervision are to be borne by the practitioner. In relation to the education course (proposed condition 7), the condition itself specifies at 7(c) that the practitioner bears the responsibility for any costs incurred in meeting this condition. 2. The Health Care Complaints Commission submitted that as there is no dispute that Dr Malouf should meet the costs of compliance with the conditions, a Tribunal order confirming that state of affairs is appropriate. In our view, the clearest and least repetitive way of expressing this obligation is to state, at the end of all the conditions, that "Dr Malouf is to meet the costs of his compliance with the conditions." Orders 1. We make the following orders in addition to the orders made on 25 October 2019: (9) When the period of suspension has expired, Dr Malouf is to be subject to the following additional conditions: (1) To advise the Medical Council of NSW (the Council) in writing at least seven days prior to changing the nature or place of his practice. (2) To maintain a log listing all patients under his immediate care at any residential aged care facility that he has prescribed any Schedule 8 drug or Schedule 4 Appendix D drug. A copy of the log is to be forwarded to the Council within 7 days of the end of each calendar month. The log is to include: (i) the full name and date of birth of the patient; (ii) the date of the consultation; (iii) the name of the drug prescribed; and (iv) the name of the residential aged care facility. (a) Prior to submitting the monthly log to the Council, Dr Malouf is to submit the log to the Director of Nursing or any other Responsible Senior Officer of the residential aged care facility he has prescribed at for verification. (b) Dr Malouf authorises the Council to contact the residential aged care facility to verify any information recorded in the log. (3) To forward evidence to the Council within 14 days of the expiration of the suspension, that Dr Malouf has provided a copy of the Practice Conditions to the: (a) Medical Director; and/or; (b) Principal of Practice; and/or (c) any other Responsible Senior Officer in any place that he works (including any locum agencies, Local Health District public and private hospitals, day procedures centre, medical centre, residential aged care facility or nursing home where he holds any appointments). (4) Within 14 days of a change in the nature or place of his practice, Dr Malouf is to forward evidence to the Council that he has provided a copy of the Practice Conditions to the: (a) Medical Director; and/or (b) Principal of Practice and/or (c) any other Responsible Senior Officer in any place that he works (including any locum agencies, Local Health District public and private hospitals, day procedures centre, medical centre, residential aged care facility or nursing home where he holds any appointments). (5) To practise under Category C 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) At each meeting, Dr Malouf is to review and discuss his practice with his approved supervisor with particular focus on appropriate prescribing practices and compliance with legislative requirements. (b) To authorise the Council to provide proposed and approved supervisors with a copy of the decision that imposed this condition. (6) To complete within 12 months of the expiration of Dr Malouf's suspension, a course, or courses, in ethics and appropriate prescribing practices, approved by the Council: (a) within 3 months of the expiration of Dr Malouf's suspension, he must provide evidence to the Council of his enrolment in the abovementioned course(s); (b) within 1 month of completing the abovementioned course(s), Dr Malouf is to provide documentary evidence to the Council that he has satisfactorily completed the program; (7) To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Council and: (a) The audit is to be held after 6 months from the expiration of Dr Malouf's suspension and subsequently as required by Council. (b) The auditor is to assess Dr Malouf's compliance with legislative requirements, the practice conditions and appropriate prescribing practice. (c) To authorise the auditor(s) to provide the Council with a report on their findings. (8) To authorise and consent to any exchange of information between the Council, Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these Conditions. (9) Within seven days of commencing any other employment, Dr Malouf is to forward evidence to the Council that he has provided a copy of the conditions to the principal of that place of practice. (10) To authorise the Council to exchange information with current and future persons or organisations at places where he works as a medical practitioner in Australia, regarding any issues arising in relation to compliance with these conditions. (11) Dr Malouf is to meet the costs of compliance with the conditions. ********** 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: 30 January 2020