Asar v Medical Council of NSW

NCAT Occupational|2019-08-05

(2) Pursuant to section 163(B)(1)(c) the Tribunal reinstates the applicant as a medical practitioner subject to the following conditions:

Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW).

Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW).

a) The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. b) If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council.

To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner):

a) Where the patients and patient records are shared between the medical practitioners. b) Where there is always one other registered medical practitioner on site. c) Which is an accredited practice.

To treat no more than 28 patients in any one day.

To practise 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.

a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: substance abuse; workload; clinical performance; medical record reviews; appropriate prescribing practices; patient follow-up; and clinical outcomes.

b) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed these conditions.

c)Not to practise until a supervisor has been approved by the Medical Council of NSW.

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 Medical Council of NSW and:

a) The audit is to be held within 6 months from the practitioner's recommencement of medical practice and subsequently as required by the Council.

b) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions.

c) The auditor(s) should pay particular attention to the practitioner's prescribing and management of patients with substance abuse and chronic pain conditions.

d) To authorise the auditor(s) to provide the Council with a report on their findings.

e)To meet all costs associated with the audit(s) and any subsequent reports.

To nominate an experienced general practitioner 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 (as varied from time to time) and as subsequently determined by the appropriate review body.

a) At each mentoring meeting the practitioner is to include discussion of the following: his personal and professional development; initially the issues highlighted in this decision and then any personal and/or medical practice issues that may arise etc.

b) To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct or personal wellbeing.

c) To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy the decision which imposed these conditions.

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.

To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions.

The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW).

Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia.

The applicant is to pay the respondent's costs of this application by way of a lump sum to be agreed or assessed in accordance with section 13(3A) of Schedule 5D of the National Law. Catchwords: PROFESSIONS AND TRADES - health and professionals - medical practitioners - disciplinary proceedings - registration of medical practitioner cancelled - with prohibition on reapplication for registration - medical practitioner making application for reinstatement following period of prohibition Legislation Cited: Health Practitioner Regulation National Law Health Practitioner Regulation (NSW) Regulation 2010 Poisons and Therapeutic Goods Act 1966 Cases Cited: Health Care Complaints Commission v Chen [2016] NSWCATOD 144 Health Care Complaints Commission v Dr Mohammed Sadiq Asar [2016] NSWCATOD 157 In Re Jason Martin [2010] NSWMT 13 Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 Smithson v Medical Council of New South Wales [2016] NSWCATOD 82 Spicer v New South Wales Medical Board & Ors (unreported, judgment delivered in 1981) NSW Court of Appeal Category: Principal judgment Parties: Mohammed Sadiq Asar (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: P Dwyer (Applicant) K Lindeman (Respondent)

Solicitors: Browns Legal and Consulting (Applicant) Medical Council of NSW (Respondent) File Number(s): 2019/00009495 Publication restriction: Nil

REASONS FOR DECISION

On 20 December 2016 the New South Wales Civil and Administrative Tribunal ("the Tribunal") cancelled the registration of the applicant (Asar) as a medical practitioner resulting from a finding of professional misconduct. The Tribunal imposed a non-review period of two years commencing from the date of cancellation. The applicant now makes application pursuant to section 163(A) of the Health Practitioner Regulation National Law ("the National Law") for review following the expiration of the prescribed period and for orders reinstatement pursuant to section 163(B) as a medical practitioner.

FACTS

The applicant was born in Afghanistan on 27th of September 1957. He completed his primary and secondary school education in Afghanistan and commenced studies at the medical school that in Kabul in 1976. In 1981, in his final year of study, he left the country due to the political situation.
Thereafter the applicant completed his medical course from 1983 to 1985 at the Sindh Medical College (which is now known as the Jinnah Sindh Medical University, Pakistan). At such University the applicant obtained the degree of MB BS.
The applicant practised medicine in Karachi until 1988 when he travelled to Germany. He awaited five years to obtain his refugee status during which he underwent language courses and carried out observations at a university medical clinic. He was then provided with conditional registration by the Baden Wurttemberg state government as a medical practitioner. As a result he was able to commence working in the private practice of Professor Peter Smrz in the city of Ulm, and worked with him from 1990 to 1994.
In 1994 the applicant migrated to Australia. He passed the examination of the Australian Medical Council in 1995. The AMC Standard Pathway has two examinations, a theory and a practical examination. The applicant passed the clinical examination in 1996. From 1997 to 1998 he worked at Gosford Hospital as an intern and thereafter as a Resident Medical Officer. The applicant received unconditional medical registration in 1998.
In 1999 the applicant was accepted into the Australian General Practice Training Program. He worked at Wollongong Hospital and then in 2000 his basic term of the General Practice program with Dr Jameson in North Nowra. The applicant completed his advanced term of the General Practice program with Dr Ben Lim at Northern Polyclinic in Corrimal.
The applicant was awarded a Fellowship of the Royal Australian College of General Practitioners ("RACGP") and in 2001 returned to Sydney where he completed his mentorship with Dr Peter Kenny at Dellwood Medical Centre, South Granville.
In 2002 the applicant established his solo practice at Quakers Hill. He carried out such practice until March 2016. In 2010 the applicant states that he was treating a patient with bad arthritis in his knees. He prescribed OxyContin for such patient. The applicant stated that he did not have a great deal of experience with the prescription of Schedule 8 drugs. However he states that he was contacted by the Pharmaceutical Services Unit ("the Unit") and made aware that the patient was also being treated by another doctor. Accordingly he ceased prescribing OxyContin

Decision of the Tribunal

The decision of the Tribunal (Health Care Complaints Commission v Dr Mohhamad Sadiq Asar [2016] NSWCATOD 157) records the complaints which are made against the applicant. The decision shows that in fact the applicant had been prescribing OxyContin for such patient since 2008. The applicant again came to the attention of the Unit in 2013 when a patient of the applicant who was incarcerated asserted that he had been receiving drugs of addiction prescribed by the applicant. The unit nominated a further 23 persons believed to be patients of the applicant who it was thought had been prescribed Schedule 8 drugs without the requisite authority.
As a result, on 2 August 2013 the applicant agreed that he would be prohibited from supplying or possessing drugs of addiction. By order made on 31 January 2014 by the delegates of the Medical Council of NSW ("the Medical Council") following an enquiry under section 150 of the National Law, practice conditions were imposed upon the applicant's registration precluding him from prescribing, possessing, supplying or otherwise being involved in drugs of addiction referred to in Schedule 4D and Schedule 8 of the Poisons and Therapeutic Goods Act 1966 ("the PTG act").
Thereafter the Health Care Complaints Commission ("the Commission") filed complaints in the Tribunal alleging in Complaint One that the prescription of prohibited drugs to 26 patients constituted unsatisfactory professional conduct under section 139B of the National Law. Further, by Complaint Two it was alleged that the applicant was guilty of unsatisfactory professional conduct under section 139B(1) of the National Law by engaging in improper or unethical conduct in his practice in respect of several of the patients. Complaint Three alleged breach of the Health Practitioner Regulation (NSW) Regulation 2010 because of the failure to maintain adequate records. Complaint Four alleged that the conduct referred to constituted conduct sufficient to justify suspension or cancellation of the applicant's registration as a medical practitioner.
The complaints were heard before the Tribunal on 7, 8, 9 and 10 March 2016. The issue of disciplinary sanction was heard on 25 November 2016, and the Tribunal decision was delivered on 25 December 2016.
The applicant conceded that he was guilty of professional misconduct and unsatisfactory professional conduct as defined in section 139E and section 139B respectively of the National Law. The Tribunal found that in view of the concessions made by the applicant, and the fact that the applicant was aware that he required a relevant authority under the PTG legislation to prescribe such drugs, his conduct was carried out in contumelious disregard for his lawful obligations.
The Tribunal also found that in respect of Complaint Two that, the applicant had issued private scripts because it was more likely that his misconduct would not come to the attention of the authorities. The Tribunal observed (at paragraph [80]): "The misconduct of the respondent as we have described, which involved him in engaging in the unlawful and inappropriate distribution of drugs of addiction was compounded by his failure to maintain adequate and proper medical records as set out in Schedule 2 to the Health Practitioner Regulation (NSW) Regulation, 2010 for each of the patients."
The Tribunal also observed at [81] in respect of the proven failure of the applicant to main appropriate clinical records: "A failure to keep and maintain necessary and appropriate records may not only constitute a breach of the statutory requirements referred to above, but may, in appropriate cases per se be characterised as constituting unsatisfactory professional conduct and professional misconduct."
The Tribunal was satisfied that the applicant's conduct constituted professional misconduct. At [77] it stated: As has been endorsed often by the Tribunal, a medical practitioner who prescribes and handles drugs of addiction recklessly and contrary to the law constitutes professional misconduct. In Spicer v NSW Medical Council (unreported, CA No.3 of 1981, 19 February 1981), Hope JA (Reynolds and Hutley JJA agreeing) said: In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way that is reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfitted to treat those addicted or habituated to drugs but that that unfitness in itself demonstrated his present unfitness to be a medical practitioner.
The Tribunal also regarded the applicant's conduct as serious. It stated at [80] and [81]: Furthermore, the respondent was aware that he required a relevant authority under the Poisons and Therapeutic Goods legislation to dispense such drugs, and that his misconduct was carried out in contumelious disregard for his lawful obligations. By reason of the matters referred to in Complaint Two, the respondent conceded that he had issued private scripts. Despite, and, relevantly, because of the respondent's inability to give any plausible explanation as to why he would do this, we infer that the private scripts were issued so that it was more likely that the respondent's misconduct would not come to the attention of the authorities. The misconduct of the respondent as we have described it, which involved him in engaging in the unlawful and inappropriate distribution of drugs of addiction was compounded by his failure to maintain adequate and proper medical records as set out in Schedule 2 to the Health Practitioner Regulation (NSW) Regulation, 2010 for each of the patients. It is a trite observation that comprehensive record-keeping is essential to assist a medical practitioner in affording proper and appropriate treatment to patients. A history of reported symptoms, diagnoses, tests and procedures, medication, and referrals amongst other matters are necessary tools in the practice of medicine. It is important also that another medical practitioner who may be required to afford treatment to the patient, be able to become informed about the patient as quickly as possible by reference to existing medical records. A failure to keep and maintain necessary and appropriate records may not only constitute a breach of the statutory requirements referred to above, but may, in appropriate cases per se be characterised as constituting unsatisfactory professional conduct and professional misconduct.
For these reasons, the applicant's registration as a medical practitioner was cancelled with effect from 7 days of the date of the decision. The Tribunal made the following further order: (2) Pursuant to section 149(C)(7) of the National Law, an application for review of these orders is not to be made for a period of 24 months from this date.

Applicants Evidence before this Tribunal

The applicant has provided his statement dated 24th of April 2019. The statement recites the applicant's prior history and the issues of prescribing prohibited drugs which he experienced whilst a sole practitioner. The applicant states that he joined a group practice in 2016 in Quakers Hill for a period of 9 months and worked under supervision of Dr Henry Chau until his registration was cancelled as a result of the Tribunal's orders.
The statement of the applicant also recites the difficulties he has experienced whilst absent from practice and the steps that he has taken to address the issues which ultimately led to his deregistration.
The applicant also provided a supplementary statement dated 11 July 2019 providing additional information relating to courses which he has undertaken during the period of his cancellation. The statement also contains supporting documentation of numerous courses undertaken, as are discussed more fully hereunder.

Medical courses and treatment

The applicant has undertaken numerous courses since his deregistration. They include courses such as "Effective Pain Management in General Practice"; courses provided by the RACGP entitled: "AJGP Clinical Challenge January-February 2019: Medico-legal; Smoking Cessation for People with Mental Illness"; A course in genetics in January-February 2019; Clinical Challenge December 2018; Adult Immunisation MCQs; Clinical Challenge November 2018: Palliative care; Managing Patients who are Opioid Dependent; Immunology, November 2018; Managing patients on PrEP in General Practice; Recognising and Responding to changing substance use Practice (Part 3): Managing a positive HIV and STI results; Congenital CMV - Common and commonly missed; Advance Care Directive and The Law; Renal Problems; menopause, Tackling Childhood Obesity; Chest pain; Contraception; Menopause; Neurology; Urology; Participation in a computer introductory course"
This is not the full list but it provides an example of the nature of the courses undertaken by the applicant during his period of suspension.
The applicant has also attended appointments with a psychiatrist Dr Murray Wright. As is recorded in the Tribunal's decision, Dr Wright had been consulted by the applicant on three occasions prior to the Tribunal hearing and Dr Wright provided evidence to that Tribunal, as shall be discussed hereunder. Dr Wright also provided evidence before this Tribunal and a report dated 11 March 2019.
The applicant has also consulted Dr Anthony Samuels, consultant psychiatrist who has provided a report dated 9 May 2019. Dr Samuels also provided oral evidence to the Tribunal.

Other evidence

The applicant states that in his earliest days of his practising (in Australia) he understood that there was a strict legal requirement in relation to having an authority to prescribe Schedule 8 medications. However he states at paragraph [21] of his statement: "This requirement appeared to me to have been relaxed and I think I wrongly relax my own approach, failing to appreciate the need for vigilant assessment and reassessment of patients over time and for obtaining a prescribing Authority for continued prescribing or in instances where identified, or should have identified drug dependency issues or where prescribing was to continue beyond the very short term".
The applicant states that his knowledge of the regulations and legislation concerning drugs of addiction and management of patients with drug dependency "was superficial" he further states in paragraph [21] of his statement: "I deeply regret my failure to apply the advice I had received back in 2010 and my failure to make a point of properly educating myself about the medical dangers of prescribing drugs of addiction or about the legal requirements for prescribing."
The applicant asserts that as a result of completing the various courses he has undertaken he now has learnt more about legal issues concerning the prescribing of Schedule 8 drugs and the requirements of the Prescribing Authorities. He also says that he has been fortunate to obtain professional development through Dr Henry Chau, his former supervisor at the Emerald Medical Centre, Quakers Hill, and that since early 2018 he has attended a one-hour meeting every second week with Dr Chau to discuss medical issues, new developments and new guidelines. He states that in the discussions, Best Practice software issues have been considered, case studies, appropriate practice for taking detailed patient histories and that they have compared notes in relation to seminars which each has attended recently. He states that Dr Chau and he kept a record of such meetings which list the issues raised in points for discussion and that Dr Chau has provided excellent support for him.
The applicant states that he has spent much of his time reading books, journals and magazines of a medical and non-medical nature; listening to medical webinars; attending conferences and workshops. The evidence indicates that the applicant has undertaken approximately 95 courses during his period of cancellation. He also states that he is an active member in the Afghan community group and has regular meetings where cultural, social and religious issues are discussed.
The applicant states he is particularly ashamed and embarrassed because of his failure in relation to his patients and is determined not to fall into error in the future. The applicant stated he is passionate about helping others especially those needing help with significant health problems; that it is his intention, if permitted, to go back into a group practice where he will feel secure and have support systems around him. If he cannot rejoin the Emerald Medical Centre he will seek employment at a well-resourced group practice.
Dr Chau provided oral evidence to the Tribunal by telephone. He was very supportive of the applicant's application and spoke highly of his abilities. Whilst not guaranteeing a position for the applicant in his Quaker's Hill practice, he stated that he was confident that the applicant could be accommodated in his practice. This practice usually has at least four medical practitioners at any one time and sometimes can increase to nine practitioners who are rostered. In addition to the Quaker's Hill Practice, Emerald Medical Centre also has a practice at St Mary's. Dr Chau primarily works at the St Mary's practice, only spending half a day a week at the Quaker's Hill practice.

Medical Council

The Medical Council neither opposes nor consents to the application. If the Tribunal is mindful to grant the application, then the Medical Council indicated it would seek conditions relating to the future practice of the applicant.

Observations of the First Tribunal

In its consideration of the evidence before it, the 2016 Tribunal, in making the orders cancelling the registration of the applicant, considered the evidence of Dr Wright. It noted the conclusion of Dr Wright that there was no evidence that the applicant was suffering from any psychiatric impairment. Dr Wright opined that the applicant: … was a resilient individual who had coped well with a number of personal and professional adverse events in his life".
The Tribunal also had before it the statement of Dr Wright that whilst there was no clear evidence that the respondent was suffering from an underlying personality problem, he had only seen him on four occasions and had not viewed the respondent's patients records. The Tribunal noted: "He (Dr Wright) emphasised the respondent's life history which he thought was very relevant because it showed that the respondent was resilient and determined to overcome the significant challenges which had faced him in Afghanistan and in Pakistan. He thought that these challenges had desensitised the [the applicant] which operated as a survival tactic. This is why he thought [the applicant] was resistant to feedback from those in authority. However Dr Wright emphasised that this was a hypothesis and not a conclusion. Finally, Dr Wright thought that the respondent was not impaired in terms of his practice of medicine."
The Tribunal also recorded as follows: Dr Wright was not convinced that the respondent was suffering from an unredeemable personality trait or disorder, that he now had some insight, and that he was unlikely to reoffend if he did not have prescribing rights for drugs of addiction.
The Tribunal recorded at [22] of its decision that Dr Wright thought that the respondent would be able to practise medicine safely but subject to conditions. Part of the conditions related to the fact that the respondent was working in an isolated practice with little interaction with colleagues and that he was subject to a level of intimidation and pressure from his patients. He thought that it was appropriate that the respondent should be subject to formal supervision and/or mentoring, that he should work in a group practice and that there should be a limitation on his hours of work and patient numbers. He needed formal contact with another practitioner who was experienced in patient boundaries and patient challenges. The Tribunal made the following observation at paragraph [79] concerning the conduct of the applicant: The professional misconduct of the respondent which we have found following his admissions and our conclusions concerning those matters which were contested is of a most serious kind. With respect to Complaint One, the respondent has conceded that he engaged in conduct that demonstrated that his knowledge, skill or judgement which he possessed and the care which he exercised in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. This misconduct was not confined to a few cases. It extended to 26 patients over a considerable period of time. It persisted notwithstanding warnings received from the Pharmaceutical Services Unit. The respondent conceded that, in the bulk of the cases, he did not perform an appropriate medical assessment prior to issuing the scripts, he did not exercise responsible medical judgement as to whether it was appropriate to issue the scripts, he failed to refer the patients to a specialist for treatment, review or advice and he was aware that his conduct in prescribing drugs of addiction was contraindicated because of the likelihood of substance abuse.
The Tribunal also observed in paragraph [86]: We note from the evidence of Dr Wright, that he had been able to observe the respondent over a period of 13 months. Our understanding of his evidence is that the respondent only gradually gained insight into the fact that he may have misconducted himself, and that as at February 2016 any improvement remained "a work in progress." Based on this evidence we are not confident that the respondent currently has sufficient insight into the totality of his conduct which is at the heart of these proceedings. The Tribunal also observed at [87]: [87] We note further that Dr Wright identified significant deficits in the clinical knowledge of the respondent in dealing with the treatment of chronic pain, long-term dependence on narcotics and difficult patients. Whilst Dr Wright thought that the respondent would be able to practice medicine safely, this opinion was expressed in the context of the imposition of a number of practice conditions, the nature and extent of which, in our opinion, are indicative that the respondent is not currently able to practice [sic] medicine safely.
At paragraph [89] the Tribunal observed: We have also sought to discern some reason for his conduct from the evidence of the respondent. We have previously summarised his evidence, and we can only describe him as an enigmatic personality. Either he was aware of the nature and extent of his misconduct and did not care about the consequences, as he seems to suggest, or, in some respects, he did not want to know that his misconduct was entirely inappropriate in all the circumstances. Either scenario casts doubt on the ability of the respondent to practice safe medicine.
At [91] and [92] the Tribunal stated: For reasons which we have earlier advanced, we have concerns about the level and quality of the respondent's insight into his conduct. Furthermore, such explanation as is available to us as to why the respondent engaged in the course of conduct which constituted his professional misconduct as found does not satisfy us that, in some way, he has sufficiently rehabilitated so that we can be comfortable that he is unlikely to offend again. His "resilient" character and the apparent possible lack of concern for authority are matters which we find troubling. Furthermore, the misconduct found is indicative of either a disregard for or complete ignorance of a number of clinical matters which are fundamental to the safe and proper practice of medicine. The respondent willingly prescribed drugs of addiction to persons whom he knew to be drug-dependent, or might become so, and he prescribed them in quantities which were fundamentally inappropriate, and he prescribed them together with other drugs which created a significant risk to the health of the patients involved. The respondent has failed to practice [sic] safe medicine in a deliberate fashion extending to a large number of patients over a significant period of time with reckless indifference as to the outcome, and contumelious disregard for his statutory obligations.

Observations of this Tribunal

It is not the function of this Tribunal to revisit the conduct which led to the cancellation of the applicant's registration. The Tribunal proceeds upon the basis that the 2016 Tribunal found that the applicant was not a fit and proper person to practise medicine. The issue before this Tribunal is whether it is satisfied, upon the evidence now before it, that the circumstances which led to the cancellation no longer prevail and that the health and public safety of the community are protected in accordance with the requirements of section 3A of the National Law. That is, the Tribunal is required to assess whether or not the deficiencies in the applicant's character have been remedied. As was stated in In Re Jason Martin [2010] NSWMT 13 at page 8: [I]t is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her) reliability for the future".
It has been well recognised that the proper handling and prescribing of drugs by medical practitioners is of the greatest importance to the community. Further, if a medical practitioner fails to observe the statutory requirements in a way which is "reckless and which shows a disregard to the law it cannot be said that he is fitted at such a time to be a medical practitioner": see Spicer v New South Wales Medical Board & Ors (unreported) NSW Court of Appeal, Thursday, 19 February 1981 at 5, 6 per Hope JA with whom Reynolds and Hutley JJA agreed. Such principles have been affirmed more recently by the Tribunal in Health Care Complaints Commission v Chen [2016] NSWCATOD 144 especially at [137].
Where a medical practitioner has demonstrated that the issue which led to the cancellation of registration is now fully recognised, and is controlled, the imposition of a further period before reregistration could be granted would serve no purpose. The Tribunal respectfully agrees with the observations of Kirby P (as His Honour then was) in his dissenting judgement in Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58 where his Honour said: "There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have an affirmative reproved reform, are afforded a second chance".
Although in dissent in respect of the principal issues, His Honour's remarks have been adopted and applied in other decisions in other medical Tribunals: see for example Smithson v Medical Council of New South Wales [2016] NSWCATOD 82 at [46].
The applicant has clearly a desire to return to practise. This is evident from the fact that, during his period of cancellation, he has devoted considerable effort to improving his medical knowledge by undertaking the numerous courses, the evidence of which has been provided to us in both his statements and in the annexes which lists all of the courses which he has undertaken. The applicant has also provided the Tribunal further notes which were made during the fortnightly meetings with Dr Chau. The Tribunal further notes the opinions of Dr Wright and Dr Samuels, namely that the applicant possesses the requisite skills to resume practice.
The Tribunal also notes references of Dr John Nguyen dated 7 February 2019 and a statement of Dr Henry Chau dated 23 April 2019, each of which testify of the high moral and professional qualities of the applicant and of the applicants industry during his period of deregistration. Dr Chau, in his written statement states that if the applicant receives reinstatement, he will be willing to consider engaging him as a practitioner in the Emerald Medical Centre at Quakers Hill. Dr Chau considers that such Centre would provide a supportive environment for the applicant and that he would be prepared to provide ongoing supervision or mentoring and that other practitioners in that practice are also willing to provide support for the applicant.
Dr Murray Wright has provided an updated report in which he confirmed his original impression that the applicant had appeared to: "…lack a sufficient understanding of how to manage difficult patients, particularly those requesting strong analgesia and/or sedative hypnotics, and there were also challenges arising from the fact that he ran a solo practice and was not fully cognizant of the significant professional boundary challenges… and how this might have contributed to some of the incidents which are now the subject of a complaint at the Tribunal Hearing."
Dr Wright now considers that the applicant has: "…a deep understanding of his past failures with regards to regulations and procedures in clinical practice, and has a greatly improved clinical knowledge of how to treat persons requesting drugs of addiction and persons suffering from chronic pain."
Dr Wright considered that if the applicant were permitted to return to practise, he should not initially be permitted to prescribe Schedule 8 and Schedule 4D drugs and that he be subject to level C supervision and that he continue with regular meetings with a mentor and that there be a cap on the total number of patients seen on any one day or seen across a working week.
Dr Samuels was also supportive of the application. He considered that the applicant's prior difficulties resulted from the following (as stated in Dr Samuel's report dated 9 May 2019): It does seem that aspects of his personality, developmental history and life situation at that time, that [sic] may have impacted upon his apparent inability to conform to good clinical practice and appropriate prescribing of restricted medications.
Dr Samuel's considered that safeguards should be maintained for a considerable period if the applicant returned to practise. As to the imposition of conditions he stated: His prescribing should be monitored, he should not have access to S4D and S8 medications, he should not be permitted to write private scripts, he should not prescribe for himself or family members. He should only work in group practice; he should have a supervisor and mentor and he should be subjected to further clinical and prescribing audits.

Findings

The Tribunal considers that the evidence provided by the medical experts called in support of his application to warrant the Tribunal granting the application for reinstatement, subject to conditions of practice which are to be imposed. The evidence established that the applicant now has a much greater awareness of methods for treatment of pain, other than by drugs. The applicant has informed himself by undertaking courses during his period of cancellation. He has been most diligent in educating himself in many aspects of practice which would serve to assist him in the future.
The applicant also has now a very clear understanding of the dangers to patients of inappropriate prescribing Schedule 8 and Schedule 4D drugs. In addition, he is aware of the necessity to recognise and abide by the legal requirements for the prescribing of such drugs.
The applicant only came to notice after many years of practice because of his prescribing practises. The Tribunal is satisfied that these deficiencies have now been addressed and with the imposition of conditions there will be negligible risk to the health of the public if he were admitted to resume practice. It is apparent from the evidence provided by the applicant that he did not appreciate the significance of the requirements of the law and the regulations relating to the prescribing of drugs. The applicant now has an improved understanding of the treatment without the use of drugs.
Both Dr Samuels and Dr Wright agree that there is no underlying mental issue involved and that the applicant is not suffering from any mental impairment. They are in agreement that the applicant now has a change in his appreciation of the legal requirements resulting in a deeper appreciation of both pain treatment and prescribing practices.
The Tribunal is satisfied that with conditions and also the fact that the applicant will be working in a joint practice will ensure that the interests of the public are safeguarded. Whilst Dr Wright and Dr Samuels considered that level C supervision would be adequate, the Tribunal considers that to ensure that the applicant is afforded the best supervision on resumption of his practice, level B supervision should be imposed. The applicant consents to such condition, and to all other conditions which are contained in the Tribunal's orders hereunder.
The Tribunal has the fundamental obligation of protecting the health and safety of the public as set out in section 3A of the National Law. The conditions to be imposed will ensure that the public is properly protected.
It is unnecessary to repeat the numerous authorities which have emphasised such a requirement, as they are already set out in the 2016 Tribunal's decision at [83] thereof. Further, where the use of drugs is concerned, special considerations apply: see the 2016 Tribunal's decision at [77].

Costs

The respondent makes an application that its costs of this application be paid by the applicant pursuant to section 13(3A) of Schedule 5D of the National Law. The applicant consents to an order that he pay the repondent's costs as a lump sum to be agreed. The Tribunal will so order.

Orders

The Tribunal therefore orders: 1. The application pursuant to section 163A(1) of the National Law for reinstatement as a medical practitioner is granted. 2. Pursuant to section 163(B)(1)(c) the Tribunal reinstates the applicant as a medical practitioner subject to the following 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. Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). 3. Not to treat or prescribe to himself or immediate family members. 1. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. 2. If any such event occurs, the practitioner must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council. 4. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 registered medical practitioners (excluding the subject practitioner): 1. Where the patients and patient records are shared between the medical practitioners. 2. Where there is always one other registered medical practitioner on site. 3. Which is an accredited practice. 5. To treat no more than 28 patients in any one day. 6. To practise 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. 1. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: substance abuse; workload; clinical performance; medical record reviews; appropriate prescribing practices; patient follow-up; and clinical outcomes. 2. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed these conditions. 3. Not to practise until a supervisor has been approved by the Medical Council of NSW. 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 Medical Council of NSW and: 1. The audit is to be held within 6 months from the practitioner's recommencement of medical practice and subsequently as required by the Council. 2. The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. 3. The auditor(s) should pay particular attention to the practitioner's prescribing and management of patients with substance abuse and chronic pain conditions. 4. To authorise the auditor(s) to provide the Council with a report on their findings. 5. To meet all costs associated with the audit(s) and any subsequent reports. 8. To nominate an experienced general practitioner 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 (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each mentoring meeting the practitioner is to include discussion of the following: his personal and professional development; initially the issues highlighted in this decision and then any personal and/or medical practice issues that may arise etc. 2. To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct or personal wellbeing. 3. To authorise the Medical Council of NSW to provide proposed and approved mentors with a copy the decision which imposed these conditions. 9. 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. 10. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 11. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 12. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 13. The applicant is to pay the respondent's costs of this application by way of a lump sum to be agreed or assessed in accordance with section 13(3A) of Schedule 5D of the National Law.

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 30 August 2019 - [58] change 'applicant's costs' to 'respondents costs' Order 13 - clarification the Applicant to pay Respondent's costs. 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 August 2019

At a glance

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Judgment (42 paragraphs)

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Legislation Cited (2)

Cases Cited (4)

Cited By (5)