Ameisen v Medical Council of NSW

REASONS FOR DECISION

1. By an application filed 24 March 2021 (the "Application"), Mr Ameisen ("the Applicant") applied to the Tribunal for a reinstatement order pursuant to s 163B of the Health Practitioner Regulation National Law (NSW) (National Law), following the cancellation of Mr Ameisen's registration on 30 January 2020. The Medical Council of NSW (the Medical Council) adopts a neutral position in respect of Mr Ameisen's application - that is, the Medical Council neither consents to nor opposes reinstatement. The Medical Council did file and rely upon a Reply to the Application, dated 26 July 2021. That document identified there would be an issue between the parties in relation to the conditions which should attach to any reinstatement of the Applicant's registration.
2. In the hearing the Applicant made clear that, should the Tribunal conclude he be permitted to again be registered as a medical practitioner, he accepts all but one of the conditions the Medical Council seeks the Tribunal impose should it conclude the Applicant is permitted to be reinstated as a registered medical practitioner. The one condition which became the subject of difference between the parties was whether the Applicant should be subjected to Category B or Category C supervision as defined by the Medical Council of NSW "Compliance Policy - Supervision" published 1 February 2015.
3. The conditions which the Medical Council submitted should be applied to the registration of the Applicant, should his reinstatement application be granted by the Tribunal, we set out in "Attachment A" to these reasons.
4. There is no factual dispute between the parties as to how the Applicant came to the position of having to make the Application for reinstatement of his registration as a medical practitioner. The submissions of the Medical Council state the history in a very satisfactory manner and we adopt that account which we here set out.
5. The factual background to the Application emerges from the Medical Tribunal's decision in HCCC v Ameisen [2009] NSWMT 9; this Tribunal's reinstatement decision of 29 May 2015 in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 (the 2015 Reinstatement Decision); and this Tribunal's cancellation decision of 25 February 2020 in Medical Council of NSW v Ameisen [2020] NSWCATOD 18 (the Cancellation Decision). This factual background is summarised in the paragraphs that follow. The Medical Council does not understand these matters to be controversial.
6. Mr Ameisen graduated from the University of New South Wales in 1976, and was registered as a medical practitioner on 2 December 1976. He completed his internship at St Vincent's Hospital and Liverpool Hospital. He then practised as a general practitioner in Mudgee between 1978 and 1992, other than for a period between 1983 and 1985. During that time, he worked at Baragwanath Hospital in Soweto, South Africa.
7. In 1992, Mr Ameisen relocated to Sydney and went into general practice in Bondi. From 1995 to 2002, he worked alone in general practice at various locations in the eastern suburbs of Sydney. In 2002, he joined a group practice in Edgecliff known as "Your Health" where he practised for a few years until the practice collapsed.
8. Following the collapse of "Your Health", Mr Ameisen worked alone as a general practitioner in his own practice in Edgecliff known as the "Vita Centre". He also maintained a clinic in Mudgee during this period, which he attended for two days each month.
9. On 28 March 2008, the Health Care Complaints Commission filed a complaint in the former Medical Tribunal contending that Mr Ameisen was guilty of unsatisfactory professional conduct and/or professional misconduct. The particulars of the complaint alleged that, in short, Mr Ameisen had inappropriately and irresponsibly prescribed certain Schedule 8 (S8) and Schedule 4D (S4D) drugs to a number of patients, had failed to keep proper medical records, and had provided signed prescriptions to a person who was not a registered medical practitioner, for completion and later issue by that person to patients. On 28 January 2009, the Medical Tribunal found Mr Ameisen guilty of professional misconduct under s 37 of the Medical Practice Act 1992 (NSW) (the MPA), and removed him from the register of Medical Practitioners. Mr Ameisen was precluded from practice for a period of 18 months.
10. On 19 June 2014, Mr Ameisen applied to the Tribunal for reinstatement. On 29 May 2015, the Tribunal granted Mr Ameisen's application for reinstatement under s 163B(1)(c) of the National Law, and at the same time imposed a number of conditions on Mr Ameisen's registration under s 163B(4), including a critical compliance condition in the following terms: "(1) Not to possess, supply, administer or prescribe any 'drug of addition' (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW) or any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). This is a critical compliance condition".
11. Conditions were also imposed requiring Mr Ameisen to work in a group practice under supervision, to have a mentor, to attend treatment with a psychologist, and to consult or treat no more than 25 patients per day, and up to a maximum of four patients per hour, amongst other conditions.
12. Between 2015 and 2019, Mr Ameisen applied to the Council for review of the conditions on his registration. As a result, the Council relaxed the supervision condition from Category B supervision to Category C supervision, and increased the number of patients Mr Ameisen could see from 25 to 30.
13. In mid-2019, the Council became aware that Mr Ameisen had prescribed Codeine Phosphate Linctus on 7 July 2017, 29 August 2017, 21 March 2018 and 24 October 2018 to different patients, in breach of Condition 1 on his registration, being a critical compliance condition.
14. On 27 August 2019, the Council made a decision to suspend Mr Ameisen's registration under s 150 of the National Law on the basis that Mr Ameisen had breached his critical compliance condition. Mr Ameisen was notified of the Council's decision that day, and was asked to cease practising immediately. Mr Ameisen complied, and ceased practice that day.
15. The Council referred the matter to the Tribunal as a complaint, as required by s 150(3)(b) of the National Law. On 30 January 2020, the Tribunal immediately cancelled Mr Ameisen's registration, as was required under s 149C(3) of the National Law. The Tribunal made further orders when delivering the Cancellation Decision on 25 February 2020 precluding Mr Ameisen from applying for a review of the cancellation order for three calendar months from 25 February 2020.
16. On 24 March 2021, Mr Ameisen lodged a reinstatement application with the Tribunal pursuant to ss 163A and 163B of the National Law; that is, the present Application. On 26 July 2021, the Medical Council filed its reply to the reinstatement application (Reply). As the Reply makes clear, while the Medical Council neither consents to nor opposes the Application, the Medical Council submits that any reinstatement order is subject to certain identified conditions.
17. Although there was initially possibly a slight difference between the parties in relation to the approach to be taken by the Tribunal to the application, that ultimately proved to be not the case with both parties adopting the recent decision of the New South Wales Court of Appeal in Qasim v Medical Council of New South Wales [2021] NSWCA 173 ("Qasim")at [16] to [19]. We here set out those paragraphs. "Re-instatement applications: principles and issues 16 The proceedings below were an application, by way of review under s 163A of the National Law, for reinstatement. Such an application is an inquiry into present fitness, and not a review of the original decision in which the practitioner was deregistered. Although, under earlier legislation, the Medical Tribunal could revisit the earlier decision, the present legislation precludes that course, as s 163C of the National Law provides as follows: 163C Inquiry into review application (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. …"
18. In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application. In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered, the paramount consideration being the protection of the health and safety of the public.
19. The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness. An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession.
20. Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit. In this case, given that the sole basis of the appellant's deregistration was lack of competence by reason of an impairment, what the appellant had to demonstrate was that he was no longer unfit by reason of an impairment of such a nature and degree as impaired his mental capacity to practise. On that issue, he bore the onus of proof."
21. The Medical Council submitted that the reinstatement application is brought under ss 163A and 163B of the National Law. Section 163A provides for a right of review in respect of a "relevant order", which is defined to include a cancellation order. Section 163B sets out the powers of the "appropriate review body" (here, the Tribunal) in carrying out such a review.
22. The Medical Council further submitted that there are a number of important aspects the Tribunal must consider to comply with ss 163A, 163B and 163C of the National Law.
23. The Medical Council submitted: "First, the review body (here the Tribunal) must conduct an inquiry into an application for review: s 163B(1); the Tribunal has no discretion to choose not to conduct an inquiry. Secondly, the review is limited to considering whether the order (in this case, the cancellation of Mr Ameisen's registration on 30 January 2020) remains appropriate: s 163C(1). As such, the correct approach is for the Tribunal to focus upon the factors which led the Tribunal to make the cancellation order (including the circumstances which the Tribunal found led to Mr Ameisen breaching his critical compliance condition which in turn triggered the cancellation order), and to assess whether, in light of events subsequent to the cancellation order, the cancellation order remains appropriate at the time of the hearing of the Application. Thirdly, it should be appreciated that the legislature did not give the Tribunal the power to reregister an applicant such as Mr Ameisen. Under the National Law, it is for the National Board to determine whether an applicant will in fact be reregistered. A reinstatement order under s 163B simply allows the applicant the opportunity to apply to the National Board for registration. Fourthly, the review ss 163A and 163B is not an appeal from the order under consideration (here the cancellation order); rather, it is closer to the review provided for in s 150A of the National Law, which simply considers whether the order previously made remains appropriate. The inquiry does not extend to reviewing the order itself, or any findings made in connection with the order: s 163C(2). Fifthly, the Tribunal is required to take notified complaints into account in carrying out the review: s 163C(3). Section 163C does not otherwise prescribe any particular matters to be considered by the Tribunal. It should be noted that the (now repealed) MPA did not contain an equivalent regime to that provided for in ss 163A, 163B and 163C of the National Law. Significantly, while cases determined under the MPA repeatedly stated that, as a matter of principle, the Tribunal needed to consider an applicant's current fitness and propriety to practice medicine in making a reinstatement decision, it is important to appreciate that under the National Law, those considerations are not necessarily relevant in a reinstatement application. This is because, under the National Law, the focus is on the "appropriateness, at the time of the review, of the order concerned". This may or may not direct the Tribunal's attention to considerations of fitness and propriety; this will likely depend upon whether fitness and propriety was considered to be relevant to the decision to make the order under review (the continuing appropriateness of which is to be assessed).
24. The Medical Council referred us to the decision of Ghannoum v Medical Council of NSW [2018] NSWCATOD 118 which we have considered.
25. The Applicant referred us to the decision in Vito Zepinic v Health Care Complaints Commission Complaints Commission [2018] NSWCATOD 16 at [7] and [8]. An extract from that decision was included in those submissions. The Medical Council in oral submission agreed that decision was on point. However, the counsel for each party submitted the decision in Qasim is the most recent decision of the NSW Court of Appeal on the approach to be taken by the Tribunal to a reinstatement application. Both urged us to apply that decision in the determination of this matter.
26. The Applicant in his submission addressed the reasons for the cancellation of his registration by the Tribunal in its' decision delivered 25 February 2020. In order to understand the circumstances which led to the cancellation we here incorporate the decision, without setting it out in full, (Medical Council of New South Wales v Ameisen [2020] NSWCATOD 18 incorporated here).
27. The Applicant submitted that: "Reasons for Cancellation Order 15. The Applicant's registration was cancelled due to breach of a critical compliance condition. Cancellation was mandatory pursuant to s 149C(3) of the National Law. It is relevant to consider the reasons why the Applicant's registration was cancelled. The Applicant testified that his prescription of Codeine Linctus to three of his patients was an unintentional error. He had reviewed the exemption and incorrectly believed that Codeine Linctus 25mg/5ml fell within the exemption from Schedule 8 of certain preparations containing Codeine. Aside from the four occasions on which he prescribed Codeine Linctus, he has complied with his practice conditions. 16. In its decision of 25 February 2020, the Tribunal stated: "One of the matters which this Tribunal will take into account in the exercise of its discretion is that there is no evidence that the respondent placed the safety of any patient treated by him at risk. Here the complaint is that the respondent prescribed a drug which he was not permitted to prescribe because of a condition placed upon his registration. There is no evidence to show that the prescription of the drug was inappropriate for the treatment of the illness/condition which the patient presented with to the respondent". In short, the Tribunal accepted that the underlying breach of the registration conditions leading to the mandatory cancellation did not involve placing any patient or any member of the public at risk. The Tribunal made no finding that the breach of the registration conditions was deliberate. 17. Furthermore, the breach of the critical compliance condition was not caused by either: (a) The Applicant giving in to the demands of drug seeking patients; or (b) the result of inappropriate personal views concerning the medical and legal requirements with respect to the prescription of those drugs; (c) any personal benefit or gain to the applicant."

The written evidence of the Applicant

1. The Applicant set out the following evidence which addressed his proposal for practice if re-registration is permitted. In particular we note the following.
2. The Applicant said he believed that seeing too many patients each day was a factor that contributed to his misreading of the information regarding the scheduling of Codeine Linctus, which thereby led to the cancellation of his registration. The Applicant noted that he felt pressured and consequently rushed his work, which likely contributed to the Applicant's lack of care in relation to checking the scheduling for Codeine Lictus. The Applicant opines that he is now more consciously aware of his own mental health state and the need to avoid similar situations in the Future. The Applicant considered that reducing the number of patients he sees on a daily basis will help him...
3. The Applicant also believes he has become more diligent and careful about his attention to detail. He has worked as a naturopath whilst his registration has been cancelled and he has come to adopt a practice of double and triple checking all his treatments and dosages of herbal and oral vitamin therapies.
4. If permitted to be re-registered the Applicant has been offered a position with Newtown Medical Practice. He says that practice uses Medical Director software. That software has a function where, if a doctor prescribes a S8 drug, the program automatically asks questions. The Applicant had been using that program when he mistakenly prescribed Codeine Linctus for patients. He now says if he is ever asked those questions, when preparing a prescription, he will not prescribe the drug.
5. Dr Sara Guirgis, the principle of the Newtown Medical Practice, has offered the Applicant a position if he regains his registration. She has also offered to be his supervisor if accepted by the Medical Council.
6. The Applicant said that there were two other offers he had received for employment where an on-site supervisor would be available, if acceptable to the Medical Council.

The Oral evidence of the Applicant

1. We here record evidence we noted when the Applicant gave his oral evidence, to the extent it addressed the one remaining issue between the parties. That is whether "Category B" or "Category C" supervision should be required as a condition, to be attached to the registration of the Applicant, once re-instatement is achieved.
2. The Applicant said that he had been required to undertake Category B supervision for a period of only six weeks in 2016 when he was reinstated. During that time his supervisor worked in the same practice as the Applicant. There were approximately seven days during that time when his supervisor was not able to be in the practice while the Applicant wished to work and as a result the Applicant was not able to work on those days.
3. Under cross-examination the Applicant agreed that in January 2009 the Tribunal had found him guilty of professional misconduct and removed him from practice. He was out of practice for 18 months. On 29 May 2015 he was successful in obtaining re-instatement of his registration. That registration came with conditions one of which was a critical compliance condition. The Applicant was asked what his understanding was of a critical condition. He said: "One error and you are de-registered."
4. The Applicant told us that his failing on the last occasion arose because he misunderstood a page of the exemptions in a document he used as a guide to prescribing. He agreed that he had failed to take proper care.
5. The Applicant was asked how he would ensure in the future that he did not succumb to the same problem. He said that he had several options to check if he was permitted to prescribe a particular drug. He could speak to his supervisor, speak to his mentor or a colleague and he could ring the Pharmaceutical Services Information line. He understood that ultimately the responsibility remained with him to ensure that he complied with any conditions imposed on his registration as a medical practitioner.
6. One aspect of the Applicant's future practice, which was addressed in the questions from the Medical Council, was his ability to deal with stress. He was asked about the reference in the report which formed part of exhibit A1, from his psychologist Ms Jane Bayutti. It was put to the Applicant that at page 57 of exhibit A1 of her report, she said the Applicant had been experiencing extreme stress from multiple sources. The Applicant was asked whether he felt he was still experiencing stress as part of his daily life. He said he was. He considered that if he saw fewer patients his stress associated with work would be reduced.
7. In relation to the pressure which might be put on him by patients asking him to prescribe S8 and S4D drugs the Applicant said that the Newtown Medical Practice, where he would like to work, has a policy of not writing any scripts for S8 or S4D drugs. Additionally, the Applicant proposed that he would see only 25 patients per day at the rate of a maximum of four per hour.
8. It was put to the Applicant that a Category B supervision order would give him greater support as he re-entered practice after two years of absence. The Applicant disagreed and said, with Category B supervision his supervisor, when he was under that category at the time he last practised, was not always available. His supervisor left frequently so when that happened the Applicant had to stop work and go home. It meant that appointments which had been made by patients to see him had to be cancelled.
9. The Applicant was asked about his preparedness to continue seeing his psychologist, if that was a condition attached to his registration. He said he was very happy to continue seeing his psychologist.
10. In relation to continuing professional development (CPD) education, as required for registered medical practitioners, the Applicant said most of that education had been undertaken by him this year. He had reported the CPD which he had undertaken. He had undertaken two sessions of training in 2021 which were not on the list which he has supplied.
11. In relation to CPD the Applicant said he had undertaken 120 of the 130 minimum points required and had booked himself in to undertake two more sessions which will give him well in excess of 130 points as required. The CPD statement provided records the three education activities undertaken, each valued at 40 points and of six hours' duration, all being completed in March this year. In addition to that he has undertaken extensive reading of medical journals and has undertaken other medical research relating to his wife's medical condition.
12. The Applicant told the Tribunal that he believed he had kept abreast of the changing list of S4D and S8 drugs.
13. Referring to the stresses impacting on the Applicants life, he was asked about the financial pressures he referred to in his statement and asked whether those pressures might push him to see more patients than he was reasonably comfortable with. The Applicant said that his financial position was manageable at the moment because he was receiving a payment of $5,000 per month from his mother's estate.
14. The Applicant was asked what his proposal was to ensure that he did not breach any further conditions if he was permitted to re-register. He said "In the future I will bookmark Pharmaceuticals Service. If questions come up on the screen when I attempt to write a prescription, I will know it is a S8 or S4 drug." He also said: "I have done a great deal of research and reading and I'm confident I will resist any patient pressure to prescribe. I have told patients in the past I am unable to prescribe. I will be more vigilant in the future and if I have any doubts, I will obtain advice."
15. The Applicant confirmed that there was no complaint levelled against him in the past in relation to prescribing S4D drugs. He said that he has been out of work for two years and that arose as a consequence of his failure to be careful in his prescribing. As a result he has developed a heightened sense of vigilance in relation to prescribing.
16. During the submissions which were made by the Medical Council, the evidence of the Applicant in relation to the difficulties he will experience if required to undertake Category B supervision was addressed. The Medical Council referred to a letter which formed part of the Applicants evidence, which contained the letterhead for the Newtown Medical Practice. The letterhead showed there were a significant number of medical practitioners listed as working in the practice. It was therefore submitted that the Applicant could have two approved supervisors who would be available in the practice while he worked. The Applicant was permitted to be recalled and he provided evidence, as best he could, within his knowledge, of the availability of those practitioners to be a supervisor if approved. The range of available candidates was very limited based on that evidence.

The oral evidence of Dr Samuels

1. The Applicant relied upon a report dated 12 May 2021 from Dr Anthony Samuels. Dr Samuels' report is extensive and very informative. At par 69 of the report Dr Samuels addressed the Applicant's insight into the prescribing issues which led to the cancellation of his registration. The Applicant told Dr Samuels that: "In all the time he worked in Newtown he has been extremely careful about S4D and S8 medications. He said he is pressured on a daily basis for these types of medications, but he always resists the pressure. He said the issue with Codeine Linctus really was an oversight and misunderstanding on his part. He said he should have rung the Pharmaceutical Services Information line. He had done that in the past and they had always been very helpful. He really thought he was not doing anything wrong at the time and he was not prescribing this medication very frequently, in fact, it was only four times in four years."
2. Under the heading "Opinion", Dr Samuels addressed questions which have been asked of him by the Applicant's lawyer. In relation to the question asked as to the extent to which the Applicant has demonstrated an understanding of and insight into the matters which led to his de-registration in February 2020 for breaching his critical compliance condition, Dr Samuels said: "I am satisfied that the Mr Ameisen has a very clear understanding of the reasons for his deregistration. I feel confident that Mr Ameisen will be very careful in the future prescribing medications that potentially fit within the restricted group".
3. Dr Samuels opined that the Applicant is a fit and proper person to hold registration as a doctor. He believes the Applicant will practice in accordance with appropriate ethical and professional standards. He was of the opinion that the Applicant has learnt a great deal from the previous experiences which brought him to the attention of the Tribunal. He believes the Applicant was genuinely trying to adhere to his conditions, that he is very aware of his professional obligations and will be even more scrupulous about them in the future.
4. In relation to the level of supervision which is recommended for the Applicant, Dr Samuels said he would recommend that the Applicant's conditions essentially remain the same but perhaps, at least initially, the number of patients he sees in a day could be reduced to a maximum of 20. Dr Samuels said the Applicant should: "Continue with Category C supervision". He said: "I see no reason to increase the level of supervision and he seems to have generally been performing well. He should continue to see his psychologist. The S4D and S8 conditions should remain critical compliance conditions and if there is any question in the future about a medication falling into this category, Mr Ameisen should seek further advice from the Pharmaceutical Services Information line before proceeding to write prescriptions for such medication."
5. The recommendation made by Dr Samuels for the Applicant to be the subject of Category C conditions, was the subject of cross-examination undertaken by the Medical Council.
6. Dr Samuels confirmed that he had only seen the Applicant on one occasion. He said that he considered the Applicant was able to withstand the pressure from patients to prescribe S8 and S4D drugs. He had concluded that the four occasions that he did prescribe Codeine Linctus had been in the mistaken belief that he was allowed to prescribe it. He considered that the Applicant had learnt from the prior experience. He believed he should continue to engage with his psychologist as he thought he had greater insight now than he had in the past.
7. In relation to the recommendation that there be a restriction on the number of patients the Applicant can see in a day, Dr Samuels said the Applicant had volunteered that less patients would mean more time to check with his supervisors and more thinking time in his day.
8. In relation to the category of supervision which should be the subject of a condition to the Applicant's registration, Dr Samuels was asked whether he agreed that Category B supervision would provide the Applicant with better support than Category C supervision. Dr Samuels agreed that it would, however, he did not agree that Category B supervision would have averted the prescription of the Codeine Linctus by the Applicant. Dr Samuels said that if the Applicant had a difficult patient he could consult with his supervisor who may be able to sit in with him with that patient, on the next consultation. He said that the breach of the critical condition, whilst serious, was quite restricted. Otherwise the Applicant was progressing well under the conditions which had been imposed prior to the last cancellation. Whilst it is important to make sure this doesn't happen again it does impose a greater restriction on him. He considered Category B supervision too restrictive for the Applicant. Dr Samuels said that it would be important for the Applicant to be able to contact his supervisor during the day either by phone or otherwise personally. He said: "I think he needs to be able to contact someone during the day. Both Category B and Category C supervision will meet that need. But what benefit will Category B have if it makes his employment untenable?"
9. It was put to Dr Samuels that if the Applicant was required to meet with a supervisor fortnightly rather than monthly, the supervisor could cover more patients with the Applicant than would be the case in a monthly meeting. Dr Samuels did not accept that was necessarily so. He said it really depended on the quality of the supervisor. The quality of the supervision also depends on the information the Applicant passes on to his supervisor. He agreed that the supervisor checking and prescribing on the part of the Applicant could reveal issues which might not arise from a simple interview with the Applicant. He opined that fortnightly meetings with the supervisor will detect deficiencies/mistakes quicker, but it is not critical.
10. Dr Samuels was asked: "Do you not consider that Category B supervision will better protect the public?" Dr Samuels said: "It is really about proportionality. We don't need to go to a higher level. He was otherwise practising reasonably well. There were no concerns from his supervisor. The higher category of supervision will lead to more difficulties in practice for him."
11. It was put to Dr Samuels that as the Applicant has been out of practice for more than two years he would be better supported with a Category B supervision then with a Category C supervision condition. Dr Samuels responded: "He is a very experienced GP. The length of time he has been out of practice is not of great importance. I do not think that Category B is necessary for a safeguard. I think there is enough with Category C and he has better insight."

The Submission of the Applicant

1. The Applicant submitted that in relation to s 163B of the National Law, the Tribunal in the review of the cancellation order would have regard to the decision made on 25 February 2020 and to the fact that the prescribing which led to the automatic cancellation of the Applicant's registration, was inadvertent. Further the Tribunal would find that a lack of intent to prescribe contrary to the imposed conditions is quite different to a conscious intent to do so. It was submitted that there has been a "Sea Change" in the attitude of the Applicant to compliance with a critical compliance condition. In relation to the prescription, which led to the cancellation of the Applicants registration, there is no allegation that the prescription was inappropriate. There is no allegation in the Medical Council case that the Applicant lacks clinical competence.
2. It was submitted that the Applicant has addressed the error which led to the cancellation of his registration and he has set out in his evidence the steps he will take to ensure there is no repetition of inadvertence on his part. The evidence of his psychologist is important to support the application now brought.
3. The Applicant submits that the Tribunal will take into account that the Applicant waited longer than necessary to make this application. It should be noted that the Applicant has said if he has any doubt about his permission to prescribe a drug he will not prescribe it. He will check on each occasion. He knows if he makes a mistake, it will mean the end of his ability to practice medicine.
4. The Tribunal was referred to the references which form part of the bundle of evidence relied upon by the Applicant. It is submitted that those references paint a picture of a reliable and competent medical practitioner.
5. The Applicant addressed matters of financial consequence, which it was submitted, are potentially relevant. The Applicant had set out in his statement the financial pressure he has been under since the cancellation of his registration. In particular he has the pressure of the cost of medical services necessary for his wife who is currently suffering an illness which requires substantial medical expenditure.
6. In relation to the condition which stipulates the category of supervision which should be applied to the Applicant, it was submitted that Dr Samuels does not support the necessity to have Category B supervision. His evidence supports a conclusion that had the Applicant been under Category B supervision at the time he prescribed the Codeine Linctus, it would not have averted the breach of the critical condition.
7. It was submitted that the Tribunal would keep in mind that the breach of the prescribing conditions was not a systematic breach. It was an inadvertent breach of the critical condition. At the time the breaches occurred the Applicant had a supervisor on site. His downfall had been a failure to properly understand the relevant listing of drugs as either S4D or S8 medications. All the other safeguards, which are contained in the conditions sought by the Medical Council, are not opposed by the Applicant.
8. The Applicant said that the critical difference between Category B and Category C supervision, for him, was the requirement to have the supervisor on site at the same time the Applicant is working. Consequently if a supervisor had to leave the practice during the normal work hours or became ill and was unable to attend the workplace it would mean the Applicant would not be able to work. It was submitted in the circumstances of this case, such a requirement would be onerous on the Applicant and not required to protect the health and safety of the public. It was submitted that a Category C supervision condition would well and truly protect the public in this case.

The submission of the Medical Council

1. The Medical Council relied on its written submissions. We have had regard to those submissions. It has set out its submission in relation to ss 163A, 163B and 163C of the National Law at pars 15 and 16 of those submissions. The Medical Council submitted that the question for the tribunal to consider is the appropriateness of the review as at the date of this hearing. In par 19 of the submissions the Medical Council also addressed those sections. We have set out earlier in these reasons, those parts of the submissions of the Medical Council which are referred to above.
2. The Medical Council addressed the question of worthiness of the Applicant for re-instatement. It said the present case is unusual because it does not turn on appropriateness that is fitness or proprietary. The Medical Council informed the tribunal those matters are not challenged by it in this hearing and were not challenged in the 2020 hearing. It was submitted that the question to be answered is whether the cancellation of the Applicants registration should be maintained.
3. The legal principles to be applied are not in issue between the parties and those legal principles, as asserted by each, have been referred to by us earlier in these reasons. The Medical Council referred the tribunal to s 163C(3) of the National Law. It submitted that the tribunal is to take into account any complaint which has been made against the Applicant. In this regard the Medical Council directed our attention to the decisions of the Medical Tribunal in January 2009, the Tribunal's decision in May 2015, the Medical Council's s 150 decision in August 2019 and the Tribunal's decision in 25 February 2020. We have had regard to those decisions which formed part of Exhibit R1.
4. We have also had regard to the evidentiary certificate contained at Tab 8 of exhibit R1. That document sets out the conditions which have previously been imposed on the Applicant's registration. The Medical Council referred us to par 31 of its submissions in relation to the continuation of conditions on the registration of the Applicant should he be re-instated to practice. In that paragraph the Medical Council stated as follows: "31. The imposition of conditions that are essentially the same as those imposed on Mr Ameisen's registration prior to the Cancellation Decision (including with a reduction in the number of patients Mr Ameisen is permitted to see each day) is supported by Dr Samuels (whose report Mr Ameisen relies upon in his Application). Mr Ameisen has stated that he does not oppose the imposition of conditions on his registration: see Mr Ameisen's statement dated 21 June 2020 at [19]-[20]. It should also be noted that Dr Samuels further records in his report at [74] that "Mr Ameisen told me that if he were allowed to return to practice, he would be very happy to continue with all of these conditions" - that is, the conditions on his registration prior to cancellation."
5. In its' oral submissions, the Medical Council said that Category B supervision conditions should be imposed for the following reasons:

• The Applicant has been out of practice for at least two years. There has been a lack on his part of engaging in CPD education over the entirety of that period. The CPD Record of the Applicant, which has been provided in this hearing, is of recent time. The aspect of only having recent CPD compliance is, says the Medical Council, important when considering that the Applicant has been away from practice.
• The breach of the critical condition by the Applicant arose out of confusion about whether the drug that he was prescribing was a S8 drug. It is submitted by the Medical Council that the Applicant would benefit from the immediacy of Category B supervision. His supervisor will be present in the same practice while he is working. With Category C supervision the supervisor needs only to be available by phone in emergencies.
• It is submitted that the regularity of review meetings with the supervisor being fortnightly rather than every four weeks will enable more frequent meetings between the Applicant and the supervisor. The supervisor would also be able at these meetings to review the Applicant's records and prescribing as they are on site.

1. The Medical Council referred to the evidence of Dr Samuels who opined that more frequent supervision meetings would not assist the Applicant. Dr Samuels said the effectiveness of supervision is really conditional upon the medical practitioner who is being supervised, being able to identify difficulties. The Medical Council submitted that part of the role of the supervisor would be to have access to the Applicants prescribing history. That would enable earlier detection of any shortcomings that may exist. It was pointed out that the proposed Condition 9, which is agreed to by both parties, does not provide for continual monitoring by the Medical Council, of problematic prescribing by a medical practitioner.
2. The Medical Council further points out that the breaches of the conditions by the Applicant occurred when he was under Category C supervision.
3. The Medical Council submits that the imposition of Category B supervision for the Applicant is necessary to protect the health and safety of the public. The Medical Council referred to the evidence of Dr Samuel who said that both Category B and Category C supervision would suit the needs of the Applicant. He conceded that more regular supervision may detect issues earlier than may occur with Category C conditions. The Medical Council submitted we should not accept the recommendation of Dr Samuel in supporting Category C supervision.
4. It was submitted by the Medical Council that the difficulties which the Applicant had with his supervisor in the past, should not inform the decision that Category B supervision is generally not appropriate.

Determination

1. Following the reasons set out in Qasim we are required to consider the current fitness for re-instatement of the registration of the Applicant as a medical practitioner. As emphasised by the Medical Council, that inquiry is to be undertaken in light of s 3 and s 3A of the National Law. Section 3A stating: In the exercise of functions under the NSW provision, the protection of the health and safety of the public must be the paramount consideration.
2. We also accept that the Applicant bears the onus of demonstrating that he can be trusted to practice in a way that conforms to the professional standards expected and present no risk to the safety and health of the public or their confidence in the medical profession.

Is the Applicant currently fit to practice medicine in a safe and competent and ethical manner?

1. In this matter there is no challenge to the competence of the Applicant. As we have set out earlier, the cancellation of the Applicant's registration arose as a result of a critical compliance condition which was breached. There appears to be no issue that the breach arose as a result of avoidable actions. That is, greater care is required on the part of the Applicant to ensure he remains up-to-date in his knowledge of those drugs which fall within S8 and S4D of the NSW Poisons List, proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW).
2. The Applicant has undertaken research on his own part in an endeavour to remain up to date with medical knowledge. He has undertaken CPD, as we have set out earlier in the reasons, and he has read medical journals and undertaken study in order to assist his wife who is suffering from a debilitating illness.
3. The evidence provided by the Applicant also demonstrates that the financial pressures which have been a great concern for him whilst he was unable to practice medicine, during the last two years, have been ameliorated, to an extent, by a successful resolution of his claim against his mother's estate. The Applicant informed us that he is in receipt of a payment of $5,000 per month which will be current into next year. The Applicant still carries with him the stress associated with his wife battling a debilitating disease.
4. The Medical Council remains neutral on the issue of whether the Applicant should have his cancellation of registration continued. It does say however that if the Applicant is to be permitted re-registration as a medical practitioner then that registration should be the subject of the conditions set out by the Medical Council in its submission. The Applicant consents to all of the conditions sought by the Medical Council with the exception of the category of supervision sought by it. The Applicant submits that the level of supervision should stand at Category C rather than Category B.
5. We have considered the question of the Applicant's current fitness to practice as a medical practitioner and we conclude that he is fit to do so, provided that his registration is attended with conditions. To that end we find that it no longer remains appropriate for the cancellation of the registration order made by the Tribunal on 25 February 2020 to continue.
6. With the exception of the category of supervision, the conditions proposed by the Medical Council are not opposed.
7. We have considered the evidence and submissions provided by each of the parties relating to the category of supervision which should be imposed as a condition upon the registration of the Applicant. Whilst we understand that there may be obstacles which the Applicant will need to overcome in order to make the practice of medicine by him workable, we do consider, given his absence from practice of two years, and the necessity for the Applicant to once again face the stress of medical practice, that the immediate availability of a supervisor who is working in the same practice as the Applicant, is necessary to ensure the health and safety of the public. That consideration we find overrides the consideration of inconvenience to the Applicant.
8. We therefore conclude that the Application made by the Applicant should be granted to the extent of his being permitted to be re-registered subject to the conditions of practice as sought by the Medical Council. We will so order.

Orders

1. The Orders of the Tribunal are as follows: 1. Under s 163(1)(c) of the Health Practitioner Regulation National Law the practitioner may apply to the Medical Board of Australia for registration as a medical practitioner. 2. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the National Law. 3. The registration is to be subject to the following conditions: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 other registered medical practitioners, with at least one other registered medical practitioner always on site. 3. To consult or treat no more than 25 patients per day and no more than 4 patients per hour. 4. To practise no more than 40 hours per week and no more than 8 hours per day. 5. 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) or any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). This is a critical compliance condition. 6. To practice under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 7. At each supervisor meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. Doctor/patient relationship; 2. Workload; and 3. Appropriate prescribing practices. 1. To authorise the Medical Council of NSW to provide proposed and approved supervisor with a copy of this decision and any other relevant decision or report. 2. Not to practice until a supervisor has been approved by the Medical Council of NSW. 3. To nominate a registered experienced general practitioner to act as his professional mentor for approval by Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each meeting the practitioner is to include discussion of initially the issues highlighted in this decision, personal and professional development as a medical practitioner and any personal and/or medical practice issues that may arise. 2. 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, health or personal wellbeing. 3. To authorise the Medical Council of NSW to provide nominated and approved mentors with a copy of this decision and any other relevant decision or report. 1. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. 2. To attend for treatment by a psychologist of his choice within 2 months of returning to practice. 1. The frequency of treatment is to be determined by his treating psychologist. 2. To authorise his treating psychologist to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of the treating relationship; and 3. A significant change in health status (including a significant temporary change). 1. The practitioner must provide the Council with the professional details of the treating practitioner. 1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 2. Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia.

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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: 01 October 2021