Beran v Medical Council of New South Wales

Overview

1. Professor Roy Beran has appealed to the Tribunal from a decision of the Performance Review Panel of the Medical Council of New South Wales (the Council). The appeal is made under s 160 of the Health Practitioner Regulation National Law (NSW) (National Law).
2. Prof. Beran is registered as a physician specialising in neurology and respiratory and sleep medicine. For most of his career, he has been in sole practice while holding visiting medical officer positions at various hospitals. He was diagnosed with Acute Myeloid Leukaemia in August 2020. In 2022, he closed his private rooms and concentrated on his role at Liverpool Hospital.
3. In February 2019, a patient who we will refer to as Patient A complained about Prof. Beran's communication and clinical skills (the 2019 complaint). The Council considered both the 2019 complaint and previous complaints about poor communication and clinical skills. The Council found Prof. Beran's "professional performance" to be "unsatisfactory".
4. "Professional performance" means the "knowledge, skill or judgment possessed and applied by the practitioner in the practice of the practitioner's health profession": National Law, s 153. A practitioner's professional performance will be "unsatisfactory" if it is "below the standard reasonably expected of a practitioner of an equivalent level of training or experience": National Law, s 153A.
5. Prof. Beran now accepts that his performance, especially in relation to the 2019 complaint, was "unsatisfactory".
6. On 5 October 2022, the Council imposed conditions on Prof. Beran's registration. One condition was to restrict his practice to no more than 20 hours of clinical practice a week in a public hospital. The Council also imposed a condition that when requesting that a patient undergo an electroencephalogram (EEG), he should not order more than four hours of sleep deprivation. The EEG is a medical test used to measure the electrical activity of the brain. The test can be used to diagnose or monitor conditions such as epilepsy and sleep disorders. A neurologist may request that a person not sleep for a period of time before the EEG (sleep deprived EEG). Sleep deprivation is routinely used to diagnose epilepsy because of the slightly increased risk of the patient having a seizure when the EEG is conducted.
7. These are the conditions, in full, that the Council imposed on Prof. Beran's registration: "1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice including non-clinical practice. 2. The practitioner's practice is restricted to: a. research or medico-legal positions comprising of assessments, report writing and any associated attendances in court or tribunals, not ongoing patient management or treatment. b. undertaking no more than 20 hours of clinical practice per week in a public hospital position only. 3. To undertake no more than: one weekend every two months; and one on-call night per month. a. Within 7 days of the end of each month, the practitioner is to provide the Medical Council of NSW with evidence of hours, days and shifts (including on-call) that the practitioner worked for the preceding month. 4. When requesting or referring a patient for any Sleep Deprivation Electroencephalography Scans (EEGs), the practitioner must: a. State the reasons for the need for sleep deprivation in the request itself; and b. Not order more than four hours of sleep deprivation in any request. 5. Within 7 days of each calendar month the practitioner is to provide the Medical Council of NSW with a record of all Sleep Deprivation EEG requests and referrals issued during the month. The record must include: a. The full name and date of birth of the patient b. Date of consultation when request/referral made c. Reasons and clinical indication for requesting/referring patient to Sleep Deprivation EEG request d. Enclosing copy of the sleep deprivation request/referral itself. 6. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions."
8. The Medical Council submits that the appeal should be dismissed, leaving intact all the conditions imposed on Prof. Beran's registration.
9. Prof. Beran submits that the condition to practise only in a public hospital and the restrictions on his working hours are not necessary or appropriate. He would accept a condition that he does not return to sole private practice. Prof. Beran also objects to the condition that he require no more than 4 hours of sleep deprivation before an EEG. He concedes that a condition that he require no more than 24 hours of sleep deprivation may be warranted.
10. In the notice of appeal, Prof. Beran appealed under both s 160 and s 160A of the National Law. The appeal under s 160A was withdrawn at the beginning of the hearing. We make some observations about the scope of an appeal under s 160A at the end of these reasons.
11. After addressing some preliminary legal issues, we will make findings of fact about Prof. Beran's professional performance. We will then decide whether any aspect of his professional performance is "unsatisfactory". Finally, we will decide whether to impose conditions on Prof. Beran's registration and whether any other action should be taken under s 156C of the National Law.

Nature of appeal under s 160 of the National Law and the Tribunal's powers

What does "dealing with an appeal by way of a new hearing" mean?

1. An appeal under s 160 of the National Law is an "external appeal". In determining an external appeal, the Tribunal may make any orders that are specified in "enabling legislation": Civil and Administrative Tribunal Act 2013 (NSW), s 79 (NCAT Act). The enabling legislation in this case is the National Law. Under s 160(3) of the National Law, the Tribunal has the power to either "dismiss the appeal" or "make any finding or exercise any power or combination of powers that the Performance Review Panel could have made or exercised."
2. Section 160(2) of the National Law provides that the appeal is be dealt with by way of a "new hearing" with fresh evidence allowed: 160 Appeals against decisions of Panel [NSW] (2) The appeal is to be dealt with by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Performance Review Panel, may be given.
3. Section 160(2) is identical to three other appeal rights in the National Law, namely ss 159(3), 159A(3A) and 175(3). When interpreting s 159(3) in Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122, the Court of Appeal set out (at [9]) the following principle about the nature of a "new hearing": "On such an appeal NCAT is required to exercise afresh the administrative discretion in s 150, as if it were the Council, upon the evidence (including any additional evidence that was not before the Council) before it, and having regard to the considerations relevant to the exercise of the discretion conferred by s 150."
4. Similarly, in appeals under s 160(2) of the National Law, the Tribunal is required to exercise afresh the administrative discretion in s 156C, as if it were the Council. Section 156C of the National Law gives the Council (and the Tribunal on appeal) the following powers: 156C Actions by Panel [NSW] (1) At the completion of the performance review, the Performance Review Panel may make the recommendations to the Council about the registered health practitioner the Panel considers appropriate. (2) Without limiting subsection (1), if the Panel finds the professional performance of the registered health practitioner, or a particular aspect of the professional performance of the practitioner, is unsatisfactory, the Panel may do any one or more of the following things - (a) impose the conditions, relating to the practitioner's practise of the health profession, it considers appropriate on the practitioner's registration; (b) order the practitioner to complete an educational course specified by the Panel; (c) order the practitioner to report on the practitioner's practise of the health profession at the times, in the way and to the persons specified by the Panel; (d) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from the persons specified by the Panel. (3) The Panel must recommend to the Council that a complaint be made against the registered health practitioner if the Panel finds the matter - (a) raises a significant issue of public health or safety that requires investigation by the Commission; or (b) raises a prima facie case of professional misconduct by the practitioner, or unsatisfactory professional conduct by the health practitioner. (4) If the Panel makes a recommendation that a complaint be made against the registered health practitioner, the Council must act in accordance with the recommendation. (5) In any other case that the Council thinks it appropriate to do so, the Council may make a complaint in respect of a matter that has been considered by a Performance Review Panel, after consulting with the Commission.
5. Despite Prof. Beran being the appellant in these proceedings, there is no onus on him to show error or to bring evidence to displace the Council's decision: Ghosh v Medical Council of New South Wales at [102]-[103], [112]. The Tribunal is not reviewing the Council's decision or treating it as a starting point: Ghosh v Medical Council of New South Wales at [130]-[133]. While Prof. Beran has "appealed" from the Council's decision, the Tribunal is essentially repeating the process performed by the Council. The Tribunal does not have to re-hear the evidence that was before the Council. The Tribunal can rely on the record of that evidence and take into account any fresh evidence tendered in the appeal proceedings.

How should the Tribunal go about making factual findings?

1. The Medical Council has the burden of proving the facts to the civil standard of proof which is on "the balance of probabilities". While we are not bound by the rules of evidence or the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, those principles remain relevant: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]. That means that when making findings of fact we should take into account matters including the nature of the cause of action or defence, the subject matter of the proceedings, and the gravity or seriousness of the allegations. We should not be reasonably satisfied that something has happened or that Prof. Beran had a particular motivation if the allegation is only supported by "inexact proof, indefinite testimony or indirect inferences": Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

What weight be given to previous interviews, assessments and reviews?

1. The Council submits that in determining this appeal we should give "great weight" to "the comments and findings of previous interviews, assessments and reviews which will include the views of previous assessors and/or reviewers who have specialist knowledge …". Those assessments and reviews have been admitted into evidence in these proceedings. The comments or findings of interviewers, assessors or reviewers is their opinion about the evidence that was before them. On appeal, we should form our own view of Prof. Beran's professional performance and whether it is appropriate to impose any conditions on his registration.

No appeal from finding of unsatisfactory performance

1. Prof. Beran does not appeal from the Council's finding that his performance was unsatisfactory. Nevertheless, the Tribunal is required to exercise afresh the administrative discretion in s 156C. That means that we must decide whether to make findings or exercise any power that the Performance Review Panel of the Council could have made or exercised under that provision. One of those powers is to find that a practitioner's professional performance is unsatisfactory and, if so, impose any conditions considered appropriate. If we come to the same view as the Panel, we would dismiss the appeal.

Conditions unnecessary and inappropriate

1. The main ground of appeal is that some of the conditions imposed by the Council on Prof. Beran's registration are unnecessary and inappropriate.
2. After making a finding of unsatisfactory professional performance, the Council, and the Tribunal when re-exercising the administrative discretion in s 156C, may impose conditions "it considers appropriate": National Law, s 156C(2)(a). Prof. Beran submits that in placing conditions on his registration under s 156C(2)(a), the word "appropriate" must be construed "having regard to" the guiding principles in the National Law. The "objective and guiding principle" set out in s 3B of the National Law, is that: 3B Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
3. "Other guiding principles" are set out in s 3A of the National Law. Prof. Beran pointed, in particular, to the principle in s 3A(2)(c) that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality" (emphasis added). Prof. Beran submits that the Tribunal should only impose conditions on his registration that comply with this principle.
4. The Council submits that the test is not whether it is necessary to impose conditions. The test, as set out in s 156C(2)(a) of the National Law, is whether the Tribunal considers it appropriate to do so.
5. Under s 4 of the National Law, the Tribunal "is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A". The meaning of the expression "having regard to" will depend on the context. One contextual factor is that the guiding principle in s 3A(2)(c) is one of the "other guiding principles" in the National Law. The "protection of the health and safety of the public" is the "paramount consideration". Another contextual factor is that the guiding principle in s 3A(2)(c) is directly relevant when exercising functions under s 156C(2) because each of the things listed in that provision are "restrictions on the practice of a health profession".
6. When determining what is "appropriate" under s 156C(2)(a) of the National Law, the paramount consideration is the protection of the health and safety of the public. In addition, the Tribunal should give fundamental weight to each of the other principles, including that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality".

Factual findings about Prof. Beran's professional performance

Pre-2019 complaints

1. From 1995 to 2019, 28 people complained about Prof. Beran's conduct. Many of those complaints were about poor communication including being rude, arrogant, loud, intimidating, humiliating, aggressive and insensitive; of not listening, of misinterpreting information and of making inappropriate comments. There is also a complaint of rudeness when a patient did not follow Prof. Beran's advice. Prof. Beran attended three performance interviews (in 2005, 2009 and 2014) to explore issues raised in the complaints.
2. Prof. Beran agreed that the summary of previous complaints against him in the Council's decision demonstrates that communication has been a major issue. In a Performance Interview Report dated 13 November 2015, the interview panel addressed a complaint that "Prof. Beran behaved in a rude and dismissive manner when she [a patient] consulted him and that he also caused her severe distress by dictating a letter to her GP in her presence stating that her symptoms were psychosomatic." Prof. Beran told the interview panel that the patient "became angry as a result of his diagnosis of psychosomatic illness and left before he could give her the MRI request form". Prof. Beran told the interview panel that "he has a communicative style that some patients find offensive but which most patients like and appreciate". He said he "uses humour as a tool and believes that only two percent of patients do not like it." The interview panel's report went on: "At the end of the discussion Professor Beran gave the following replies when asked what he had learnt from the experience and what changes he would make to his practice: He has already mellowed and accepts he needs to alter his approach and be more circumspect and not dogmatic; He will be more sympathetic and empathetic; He will try to make the patient feel more empowered; He will ask fewer direct questions and let patients talk; He will rework his vocabulary to suit the patient."
3. The interview panel noted that Prof. Beran had given similar undertakings in each of his previous performance interviews on 21 February 2014, 20 March 2009 and 17 November 2005. In addition, the interview panel noted that Prof. Beran has accumulated 10 complaints (of a total of 20 complaints) about communicating in an inappropriate and disrespectful manner since 2001.
4. We adopt the summary of the previous complaints in the Council's decision and in the various Performance Review Reports provided to the Tribunal. We find that the complaints as summarised were made and that Prof. Beran responded in the way outlined in the reports.

2019 Complaint

1. In 2019, Patient A, a 33-year-old woman who practised as a psychologist, complained to the Health Care Complaints Commission. Extracted below are the parts of the complaint about what Prof. Beran said and did: "I attended Liverpool Hospital ED on Wednesday 6 February 2019 subsequent to my GP review after a syncopal episode (and subsequent headache - in context of pre-existing Berry Aneurysm). ED doctors tended to my care and discussed my case with Prof. Beran. The hospital was aware that I have an existing treating neurologist. Prof. Beran was said to advise the medical team that my condition was unlikely neurological and I was discharged with feedback that my experience was most likely a migraine. Nevertheless, the attending doctor provided me with a referral to Prof. Beran for the following day at 9 am stating 'that doctor wants to see you immediately tomorrow morning in his rooms'. … I attended Prof. Beran's rooms at 9 am on 7 February 2019. I … would never have elected to see Prof. Beran if I had not been told that I 'had to turn up at 9am'. He proudly told me that he had started work at 8:30 am and had already provided 8 consultations to patients before seeing me, showing me his ticked off patient list. This averaged 3-4 minutes per specialist consultation …. … He proceeded to run through a range of neurological tests on me, dictating his outcomes, but not explaining any to me, other than that my left-right sided differences in sensation were 'psychological in nature as they weren't exactly down the mid-line'. When he asked about my headaches the previous day, he provided 2 descriptors (pulsating or tension) neither of which were appropriate. I attempted to explain that 'it was just sore, not really anything significant initially … just like a normal headache, which I wouldn't take anything for'. He proceeded to raise his voice at me and demean me stating 'there is no such thing as a normal headache. Headaches are not a normal phenomena' [sic] and proceeded to dictate 'as intelligent as the patient is, she is unable to provide a description of her headache, nor is she aware that headaches are not a normal experience'. … He then advises that I 'must immediately do an EEG here at my rooms'. When asked why, he stated he wanted to 'rule out' a seizure, though he did not believe that I had one the previous day. No consent, choice or expenses was provided. … I partook in the EEG in an adjacent consulting room …. … He advised me that my EEG was perfectly normal and he continued to not believe that I had a seizure. Nevertheless he wanted me to partake in a 48 hour sleep deprived EEG the following Monday … at his consulting room … . I asked for the rationale, to which he stated this will induce high levels of stress on the brain and sleep deprivation, which will create a prime opportunity for you to have a seizure if you are going to have one. … I questioned my ability to stay awake for 48 hours, as I did not believe this to be physiologically possible, especially as I was also told that I could not take anything to assist with staying awake (e.g. caffeine, sugar, alcohol etc). … ... I attended Prof. Beran's rooms at 9am on Monday 11th February 2019. I had significant difficulty staying awake for the prescribed 48 hour period, with my body continually shutting down and falling asleep from 40 hours onwards. I was unable to stay awake for any period of time and was unresponsive to my mother's attempts to wake me for the 90 minute drive to his rooms. I completed the EEG …. … This consultation [with Prof. Beran] was, by far, the most distressing interaction which I have had with an individual, let alone a doctor. Prof Beran commenced his dictation, as previously, but proceeded to tell me that I am a 'liar' and that I 'did not sleep deprive yourself. You slept all night.' I attempted to explain my experiences of the previous night, to which he continued to interrupt me, demean me and dictate for 'as intelligent as the patient is, she is unable to follow directions'. I began to cry due to his interpersonal manner, and being extremely fatigued. He proceeded to ask me why I was crying, to which I reported 'I'm tired'. He stated, 'Nobody cries because they are tired and you are most certainly not tired as you slept all night and your EEG reflects this. You have deep psychological issues. Have you had a full psychiatric evaluation?' I asked about his comments, as they were very inappropriate. He proceeded to tell me that 'I have a proper sample of people who actually follow instructions and are 48 hours sleep deprived, and not one of them has ever cried. And you are not sleep deprived, because you slept all night and yet you are crying which tells me that you have deep psychological issues.' He then proceeded to ask who my clinical supervisor was, as they needed to be advised of my 'deep psychological issues'. I asked if he was questioning my ability to practice as a psychologist, to which he responded, 'No, but your supervisor needs to be aware and you should move into a therapeutic relationship with them.' I advised that all this commentary was not just inappropriate, but it was unethical. He continued to state that my supervisor required to be aware of my psychological issues and that he advises that I get a full psychiatric evaluation (which he further dictated into his Dictaphone). … Prof Beran continued on to state that I must repeat the 48 hour sleep deprived EEG. I explained that I did the best I could do, and I did not believe that repeating it would increase my chances of staying awake for the duration. He responded, 'You're a psychologist. Figure it out. It's called willpower.' He then demanded that I … repeat the test …. Again, I asked for his rationale, to which he stated that this must be done, even though he now believed that I had deep psychological issues. I asked if I could consider this at home after I have some rest, as I did not feel that the costs outweighed the benefits. He picked up his phone at this point and stated that if I do not book something immediately, he was contacting the RMS to have my driver's licence immediately suspended. I advised that this was coercion and that I did not appreciate it …. He continued to repeat that he would report me stating, 'I will not have you driving out there and potentially killing your own children and others.' Again I asked, 'If you do not believe I had a seizure, we have 2 normal EEGs and you now tell me that I have psychological issues, why are we doing this and why would you report me?' However, he continued to state that I must make a decision immediately. I asked if I could do the EEG elsewhere, where it would be more convenient and less costly, to which he stated, 'No. You must do the EEG here. I will not look at EEG results from anywhere else.' I was afraid from all his threats and coercive nature, both personally and professionally, and made an appointment [for the EEG]. We paid another $440 for this consultation. I asked my mother to take me to my GP as I was highly distressed and overwhelmed by Prof. Beran's behaviour. I desperately wanted to be allowed to return to my own neurologist's care. …"
2. Patient A cancelled her next appointment with Prof. Beran and her GP referred her to her treating neurologist.
3. On 28 February 2019, Prof. Beran provided the Health Care Complaints Commission with a detailed response to this complaint. Extracts of the response which relate to Prof. Beran's diagnosis, the tests he performed, and allegations of poor communication are extracted below.
4. Responding to Patient A's allegation that he boasted of seeing eight patients before 9 am, Prof. Beran said: "That is impossible, if she presented at 9.00 am. In this, I believe she is completely wrong. It is fair to say that I have protocols in place, to make things move smoothly in the morning, which dictates that I see repeat, long term patients, who come back for regular review examinations, for conditions such as Parkinson's disease and epilepsy, first thing in the morning, before I see new or more complicated patients, and they do go very smoothly and are relatively brief consultations, but never are they 3-4 minutes, as claimed."
5. In his view, the history provided by Patient A did "not sound like pre-syncope or syncope and raised concern regarding epilepsy". Prof. Beran went on: "Headaches are a frequent post-ictal manifestation and often occur after focal seizures with altered consciousness and despite my attempts to coax her to better describe what she explained, [Patient A] repeatedly described them as 'normal'."
6. Prof. Beran then set out his thinking in recommending waking and sleep deprived EEGs: "[Patient A] underwent a waking EEG, which was normal and thus a sleep deprived EEG was warranted, particularly in light of the history as given … . She was booked for a 48-hour sleep deprived EEG on 11 February 2019 but it transpires that she went to bed, which nullifies the benefit of the test. The EEG did not show fatigue nor sleep, as one would expect after staying awake for 2 days, and hence I asked her to confirm that she had stayed awake and she said that she went to bed and slept for 5-6 hours, contrary to the written advice given to her to prepare for the test. … She stated that she attended the Liverpool Hospital on 6 February 2019 but at no time was I advised that she was under the care of another neurologist."
7. On the question of whether Prof. Beran pressured Patient A to see him and to undergo the testing, he said: "[Patient A] implies that she was forced to come and see me but this could not be further from the truth. In fact, it is the other way around, namely that I was providing a service, for her, following the assessment by the Registrar in the hospital, who did not feel admission to hospital was required and I offered to see her the next day. … The one important feature, in the clinical examination, was that she had a demarcation, to sensory testing on the face, which was clearly non-anatomical that was explained to her, as she is a psychologist. … At no stage did I say that she must have an immediate EEG but rather I said that we could squeeze her in for one, on the day, and if that was abnormal then she would not have to have a sleep deprived study. The reason for the EEG is quite straightforward. [Patient A] had reported 2 episodes that had resulted in a loss of contact with her environment and she experienced post-ictal symptoms and so the appropriate investigation for that is electroencephalography, looking for focal features or those of epilepsy. … I felt that she justified a timely neurological evaluation and that was what I was trying to provide for her. There was absolutely no element of coercion. … … … She did tell me that she went to bed. This is important because I have read many 48-hour sleep deprived EEGs and when a patient has perfect alpha rhythm, for the majority of the study, it does decry their having stayed awake for 48 hours. Most patients are falling asleep from the onset of recording and do not have normal alert record. Having said that, I never called her a 'liar'. … [Patient A] went on to say that she could not stay awake but what she failed to say is that she actually told me she went to bed, despite being given written instructions that asked her to stay awake. This shows a lack of adherence to advice, despite her professional qualifications as a psychologist. … … At no time does it appear that I dictated, as she quoted, 'for as intelligent as the patient is she is unable to follow directions ...'. My reports are exactly as they are dictated, in front of the patient, and this phrase does not appear anywhere in the report because it was never said. … [Patient A] did cry in the consultation. I have performed many 48-hour sleep deprived EEGs and have not had a single patient break down and cry because they were 'tired'. This rang alarm bells for me and was a 'red flag' to raise concerns about deep seated psychological problems. I did discuss this with her and indicated that I felt there were psychological issues that needed to be addressed. … I tried very hard to be sympathetic/empathic." (emphasis added)
8. Responding to Patient A's complaint of rude and dismissive behaviour, Prof. Beran stated that: "[Patient A] was difficult with my staff and behaved in a fashion which was causing me concern regarding psychological issues, particularly with the objective evidence of non-anatomical sensory dysaesthesia. To say that I made fun of patients and dismissed their concerns is quite offensive and, if anything, I joke with patients to try to bring levity to the practice to alleviate their anxiety and that has always been my hallmark. I have never used the phrase 'it is all in your head'. … I read the patient's EEG and told her it was normal but I never use[d] the word 'perfectly', as nothing is 'perfectly normal' and, a normal EEG does not exclude epilepsy, especially if that is an unprovoked EEG, hence the need for a provoked EEG, such as one with prolonged sleep deprivation. … … [S]he was never told she could not have 'sugar' as part of the pre-EEG conditions." (original emphasis)
9. Prof. Beran concluded by saying that: "I still do not believe [Patient A] has been fully assessed for epilepsy and I still believe that a 48-hour sleep deprived EEG is warranted but I have taken no further action in this because it was brought to my attention, after I saw her, that she was seeing another neurologist. … … In conclusion, it is my contention that this lady was properly assessed and properly advised. The Registrar in hospital felt her presentation did not need hospitalisation but I felt that she should be seen and assessed by a consultant neurologist, rather than the Registrar, and I offered to accommodate this. … … … I have ongoing concerns about her psyche and am still uneasy about her fitness to drive and further that the question of epilepsy has not been resolved to my satisfaction."
10. Prof. Beran wrote to Patient A's general practitioner on 12 February 2019, the day after the "sleep deprived" EEG was performed. He copied that letter to the Licence Review Unit of Roads and Maritime Services (RMS) and to Patient A's treating neurologist, Dr Hassan. Relevant extracts from that letter are set out below: "The EEG on this 33 year-old, right handed lady was done in the 48-hour sleep deprived state but she actually went to bed at 1:00 am this morning and slept on and off from that time. I find this incredible for a lady who is as bright as [Patient A] … … With 48-hours of sleep deprivation one would expect a lot of attenuated background but [sic] this stage but it did not appear in the study, which makes me think she slept longer than she said she did. There were occasional episodes and attenuated background but not enough for what we are trying to achieve with a provocative EEG. … I was particularly concerned with [Patient A] because her reaction was way beyond anything I have seen in a patient after 48-hours sleep deprivation and I am particularly concerned that there is something going on under the surface of which I am unaware. As you will see in my letter of 8th February 2019, the physical examination revealed hard evidence of non-organic disease and as such I think there are psychological issues of which I am not aware but which require further investigation."
11. The letter also noted in a postscript that stated: "The patient cancelled her 48 hour sleep deprived EEG and further follow up and said she will return to her current neurologist, recognising that I was not aware that Dr Hassan was involved in her case."
12. Prof. Beran wrote in his 28 February 2019 response to the Health Care Complaints Commission that: "The question of her driving, in these circumstances, is a serious worry, especially as I did not conceal that copies of correspondence would be sent to the Roads & Maritime Services but, after that, she cancelled all further appointments and it was then that I was advised she was seeing Dr Hassan. I decided not to pursue this further. The Roads & Maritime Services had been appraised of my concerns and could continue to have discussions with him. … My big worry, in a patient such as this, was the question of fitness to drive and so I had to exclude epilepsy. I was concerned, as she did not comply with the 48-hour sleep deprived EEG and I felt it was important to address that issue but [Patient A] has not been seen since her consultation on 11 February 2019. I cannot avoid the impression that, having openly sent a copy of my correspondence to the Roads & Maritime Services, she chose not to return and, up until that time, no one knew of the existence of another neurologist. Her fitness to drive remains a concern for me but as she now attended a colleague, I chose to relegate responsibility to him."
13. During the hearing, Prof. Beran gave evidence that he told Patient A not to drive until she had a sleep deprived EEG.
14. Prof. Beran admits that his performance was unsatisfactory but does not specify the precise behaviour that he admits or denies. We must make findings of fact based on the written evidence and Prof. Beran's oral evidence. We have not heard from Patient A in person and the Medical Council did not cross-examine Prof. Beran about his response to her complaint.
15. Patient A complained on 20 February 2019 about consultations with Prof. Beran on 7 February and 11 February 2019. Prof. Beran responded to the complaint on 28 February 2019. Given the relatively short time that had elapsed since the consultations, both Patient A and Prof. Beran are likely to have had a reasonably clear recollection of what was said and done. Patient A gave a detailed account of the consultations and the effect they had on her. Her account is credible.
16. Prof. Beran also appears to have a detailed recollection of events. He disputed some aspects of Patient A's account and added detailed observations about her behaviour, including his firm opinion that she had deep psychological issues. He denied saying that she was a liar or that it was all in her head. We accept those denials because they are specific and he was not cross-examined about them.
17. Prof. Beran emphatically denied making fun of Patient A and maintained that he joked with patients to relieve their anxiety. Finally, he said that he "tried hard" to be empathetic. Based on both accounts of the words said in the consultations and on Patient A's reactions, Prof. Beran was not being light-hearted or empathetic on this occasion.
18. Other significant findings of fact are that Prof. Beran: 1. requested Patient A to undergo an EEG and instructed her not to sleep for 48 hours beforehand; 2. told Patient A that he had seen several patients before her during a relatively short time frame; 3. told Patient A that she had "deep psychological issues" and asked her if she had ever had a "full psychiatric evaluation"; 4. told Patient A that "there is no such thing as a normal headache" and "nobody cried because they are tired and you are most certainly not tired as you slept all night and your EEG reflects this"; 5. told Patient A in the consultation that "I have a proper sample of people who actually follow instructions and are 48 hours sleep deprived, and not one of them has ever cried"; 6. when Patient A said she had not been able to stay awake for that length of time, Prof. Beran told her that the test had to be repeated with the same period of sleep deprivation; 7. after Patient A explained that she did not think that repeating the 48 hour sleep deprived EEG would increase her chances of staying awake, Prof. Beran said, "You're a psychologist. Figure it out. It's called willpower"; 8. when Patient A asked if she could go home and consider whether to have a second EEG, Prof. Beran "picked up his phone at this point and stated that if I do not book something immediately, he was contacting the RMS to have my driver's licence immediately suspended"; 9. conveyed to Patient A's general practitioner in a letter, his opinion that "… I think there are psychological issues of which I am not aware but which require further investigation"; 10. dictated and included in the letter to Patient A's general practitioner that "… she actually went to bed at 1:00 am this morning and slept on and off from that time. I find that incredible for a lady who is as bright as [Patient A]"; 11. knew before he sent the GP letter on 12 February 2019, that Patient A had cancelled the follow up EEG appointment and would see her own neurologist; and 12. copied the GP letter of 12 February 2019 to Roads and Maritime Services and to Patient A's treating neurologist.

Is any aspect of Prof. Beran's professional performance "unsatisfactory"?

The legal test

1. The test is whether the knowledge, skill or judgment Prof. Beran possesses or applies is "below the standard reasonably expected of a practitioner of an equivalent level of training or experience".
2. Prof. Beran was first registered in 1972. He is a highly qualified and experienced medical practitioner with specialty fields of respiratory and sleep medicine and neurology.
3. This evidence as a whole, including our specific findings, relates to Prof. Beran's knowledge, skills and judgment - in particular, his communication skills, his judgment in disclosing patient information to RMS without any requirement to do so, and his knowledge and judgment in requiring 48 hours of sleep deprivation before performing an EEG.

Communication skills

1. The Medical Board of Australia's 'Good Medical Practice: A code of conduct for doctors in Australia' (March 2014) (Code of Conduct) states that: "3.2 Doctor-patient partnership A good doctor-patient partnership requires high standards of professional conduct. This involves: 3.2.1 Being courteous, respectful, compassionate and honest."
2. Prof. Beran raised his voice and demeaned Patient A by saying words to the effect of, "There is no such thing as a normal headache" and, "Nobody cries because they are tired and you are most certainly not tired as you slept all night and your EEG reflects this." Prof. Beran told Patient A when she started crying that she had deep psychological issues. Prof. Beran acknowledged that he had no qualifications in psychology or psychiatry, but nevertheless thought it appropriate to tell both Patient A, her GP and RMS of his concerns. Even if he thought that Patient A had psychological issues, it was inappropriate and insensitive for him to say so.
3. Prof. Beran ridiculed Patient A by saying that willpower was all it took to stay awake for 48 hours. He then insisted that she undergo a second sleep deprived EEG. Finally, he picked up the phone and threatened to contact RMS and have her driver's licence suspended when she was unsure as to whether she wanted to book a second appointment.
4. These interactions with Patient A were not courteous, respectful or compassionate. Prof. Beran's communication skills are below the standard expected of a health practitioner with his level of training and experience. Even a relatively inexperienced practitioner would not be expected to behave in that way.
5. There is also evidence that satisfies us that Prof. Beran sometimes spends less time in a consultation than is needed for him to obtain a comprehensive and accurate medical history and make an informed diagnosis. His judgment in that respect is below the standard expected of a health practitioner with his level of training and experience.

Judgment in failing to recognise a conflict of interest and disclosing patient information to RMS

1. Prof. Beran wrote to Patient A's general practitioner on 12 February 2019, the day after the "sleep deprived" EEG was performed. He copied that letter to the Licence Review Unit of RMS. The Medical Council submits that doing so was unethical. It was done without Patient A's consent and was unnecessary because, by that stage, Prof. Beran knew that Patient A was under the care of another treating neurologist.
2. The Code of Conduct provides at section 3.4 that: "3.4 Confidentiality and privacy Patients have a right to expect that doctors and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations. …"
3. Austroads and the National Transport Commission have produced guidelines about what medical practitioners should do when a patient with a possible diagnosis of epilepsy attends for the first time: Austroads and National Transport Commission, Assessing fitness to drive for commercial and private vehicle drivers, Medical standards for licensing and clinical management guidelines, 2022 edition (Austroads Guidelines). Doctors have a duty to report a patient to the RMS when there is a reasonable basis for concern about their driving.
4. Prof. Beran states that his aims when dealing with Patient A, "were essentially in concert with the dictates of the Austroads Guidelines". Prof. Beran concedes that he did not recognise the potential conflict of interest after Patient A told him that she was going to see a different neurologist. He acknowledges that he could have advised her new neurologist and the family doctor of his concerns without taking the additional step of notifying Roads and Maritime Services. Prof. Beran explains his failure to recognise this conflict as being because he had a "level of rapport" with the RMS. He says he did not expect RMS to cancel Patient A's driver's licence. His aim was to make them aware of his concerns. Prof. Beran says that what he should have done was notify Patient A's treating doctors who would have assumed the responsibility.
5. At the hearing, Prof. Beran said that, in future, if he suspected epilepsy, he would tell the patient that they could not drive and would ask them to contact RMS. If he did not think they would do so, he would get in touch with RMS himself. He added that his normal practice was to ask the patient's permission before contacting RMS. Now, he would just leave it to the new or treating doctor and the patient.
6. The clinical information sent to the RMS did not make any recommendation about driving and Patient A was not informed that her clinical details would be sent to the RMS. Prof. Beran was not entitled to be acting as Patient A's neurologist in communicating with RMS after she had informed him that she had returned to the care of her previous neurologist.
7. Prof. Beran's judgment in sending RMS a copy of Patient A's clinical information was below the standard expected of a health practitioner with his level of training and experience. He should not have communicated with RMS when he was not Patient A's treating neurologist. Even if he had been Patient A's treating neurologist, he should have obtained her permission before sending a copy of Patient A's information. His lack of judgment led to Patient A's clinical information being disclosed without her consent.

Knowledge and judgment in ordering 48 hour sleep deprived EEGs

1. Dr Scott Coussens is a clinical neurophysiologist and clinical sleep physiologist. He wrote a report for these proceedings setting out his opinion as to the efficacy of various periods of sleep deprivation before conducting an EEG. He made the general point that performing an EEG after sleep deprivation has long been seen as a method to increase the yield of inter-ictal activity in patients with suspected seizures and to further improve the accuracy of the diagnosis of epilepsy. However, in his view, there is little high-quality evidence supporting particular periods of sleep deprivation.
2. Dr Coussens expressed the view that the evidence that does exist indicates that the optimum duration of sleep deprivation for maximum sensitivity is between 24 and 48 hours. While there is no universally accepted duration, 24 hours of sleep deprivation prior to an EEG is common and is recommended by the Association for Neurophysiology Scientists of Australia. Forty-eight hours of sleep deprivation is currently uncommon but does exist within the profession. In Dr Coussens' view, four hours is appropriate for the diagnosis of epilepsy in children, but not recommended in adults unless special circumstances are present.
3. Dr Neil Griffith, a consultant neurologist, provided a "reference" in support of Prof. Beran. In his letter dated 14 March 2023, he expressed the view that: "The standard deprivation period is no sleep overnight with EEG performed the next morning. The 24-hour sleep deprived EEG is a standard practice and is frequently performed as a routine part of clinical neurological practice. There is no clinical utility for 4 hours sleep deprived EEG."
4. The Medical Council submits that we should give little weight to Dr Coussens' opinions because he is not a medical practitioner. However, he was not required for cross-examination, he is an expert in the field, and his evidence is supported by Dr Neil Griffith.
5. The Medical Council submits that the Tribunal should find that requiring a 48 hour sleep deprived EEG was not justified by the increased associated risks and the inconvenience imposed. In Prof. Beran's statement of 13 March 2023, he says: "With regards to 48-hour sleep deprived EEGs, while I have, on occasions had significant yield produced by this approach, I no longer intend to order same as the number of cases for which the yield has proven extremely positive, may, on percentage positive yield figures, not justify the inconvenience imposed."
6. Prof. Beran confirmed in oral evidence that if he was faced with the same situation today, he would not require a 48 hour sleep deprived EEG for a patient in a similar situation to Patient A. That is a significant change from his statement in February 2019 that he still believes that a 48 hour sleep deprived EEG was warranted for Patient A.
7. Prof. Beran tendered a synopsis of a project with the title "Comparison of the yield of routine and sleep deprived EEG studies" sponsored by South Western Sydney Local Health District. He is named in the synopsis as a "sub-investigator". Prof. Beran was questioned extensively about research studies he had relied on in relation to sleep deprived EEGs. We do not need to set out his responses in detail because we are satisfied, on the basis of Dr Coussens' evidence, that 24 hours of sleep deprivation prior to an EEG is generally appropriate. It is common and is recommended by the Association for Neurophysiology Scientists of Australia.
8. Prof. Beran's judgment in requiring 48 hours of sleep deprivation was below the standard expected of a health practitioner with his level of training and experience.

What conditions, if any, should be imposed on Prof. Beran's registration?

Communication skills

1. In 2015, Prof. Beran told an interview panel about his intention to communicate more effectively. He said that he had already mellowed and would be more sympathetic and empathetic; he would let patients talk and make them feel more empowered. However, Prof. Beran did not communicate in those ways when interacting with Patient A.
2. Following a Performance Assessment in 2021, the Council invited Prof Beran to agree to certain conditions on his registration: National Law, s 155C. One of those conditions was to complete a Clinical Communication Program organised by an organisation called the Cognitive Institute. Although he did not agree to other conditions about where he could work and for how long, he did complete that program.
3. Prof. Beran made the following comments about his communication skills in his statement for these proceedings dated 14 March 2023: "It was apparent to me that communication was the root cause of most of my difficulties with patients and I voluntarily undertook a Cognitive Institute educational program and further I opted to participate in the extended program which included active role playing, involving a professional actor. In the past, the Council identified flaws in my approach with regards to communication, which I could accept but what was missing, within the criticisms proffered by the Council, was the key element of how to deal with those issues. …"
4. When questioned by the Tribunal at the hearing about how he would communicate with Patient A today, Prof Beran said he would be more aware of her anxiety. He said the course at the Cognitive Institute taught him that his approach with patients is pragmatic and directive instead of open-ended. He does not use silence enough and that "going straight to the jugular may be perceived as arrogant and uncaring". In future, he would ask more open-ended questions such as "tell me what happened" and then ask specific questions. He said that with the benefit of hindsight, he would allow up to an hour on a first consultation for a new patient. That is a significant change from his previous practice.
5. Prof. Beran said he has never "tried" to be rude and always listens. He conceded it is "possible" that he spoke in a loud and aggressive manner on occasions. He accepted that patients perceived him as rude, aggressive and dismissive, and that that was "their experience", but denied that he actually exhibited those traits. Prof. Beran accepted that his communication is "extremely poor and potentially harmful", but he had difficulty accepting that it was below the relevant standard. He added that he has addressed the complaints and being diagnosed with cancer has changed the way he communicates with patients.
6. Prof. Beran agreed that he probably had some prejudice about a patient who he thought had a psycho-somatic condition and that he has been acutely aware of the need to re-appraise that attitude. He found it difficult to accept that Patient A's emotional presentation may have been caused, at least in part, by tiredness and heightened emotions rather than a psychological condition that required treatment. But he volunteered that it would have been better to ask Patient A how he could help her, rather than offering suggestions such as that she seek help from her a psychologist or her supervisor.
7. Apart from an anonymous discontinued complaint, we accept that no other complaints have been made about Prof. Beran since he completed the program at the Cognitive Institute in 2019. That program involved some role playing and Prof. Beran appears to have learnt some skills especially about how to be less directive and ask open ended questions. However, he is still reluctant to accept that his communications were below the relevant standard. Rather than take full responsibility for his own behaviour, he continues to focus on the patient's "perception" of his behaviour as being a factor. Prof. Beran has not yet gained full insight into the harmful effects that his poor communication has on some of his patients. Without that insight, we are concerned that he may not be able to sustain the improved communication skills he says he has developed.
8. One way for Prof. Beran to reflect further on his behaviour would be for him to write to Patient A identifying the ways in which his communication fell short of the relevant standard and, if he feels remorseful, to apologise for his behaviour. We have no power to order Prof. Beran to apologise, but such a gesture would, we think, go some way to Prof. Beran identifying and taking responsibility for what he has done. It may also give Patient A some comfort that Prof. Beran will do his best not to behave in a similar way towards other patients in the future.
9. Options for further improving Prof. Beran's communication skills include a supervision or mentor condition on his registration or an ongoing requirement for training and education. In our view, a supervisor or mentor is unlikely to have the necessary professional skills to give Prof. Beran further insight and improve his ability to communicate effectively with his patients.
10. No doubt Prof. Beran has gained some skills through the training he has already undertaken. However, to ensure that the services Prof. Beran provides are of an appropriate quality, we consider it appropriate to impose a condition that Prof Beran complete another course such as the Clinical Communication Program run by the Cognitive Institute within 6 months of the date of this decision. We take that view because of the extremely poor communication skills he exhibited towards Patient A, the history of other complaints, his inability to modify his behaviour over several decades, and the lack of insight he still exhibits.
11. We would encourage Prof. Beran to provide a copy of this decision to the organisers of the Clinical Communication Program so that any role-playing activities can include situations to which Prof. Beran has not responded effectively in the past.
12. Prof. Beran accepts that he should not return to sole private practice. We agree that that is an appropriate condition. Sole private practice is isolating. There is no support.
13. The Council considered it to be more likely that poor communication and poor clinical performance would be noticed and challenged by fellow clinicians and allied staff in a public as opposed to a private hospital. However, if he continues to improve his communication skills, we consider it unnecessary to prohibit Prof. Beran from working in a private hospital.
14. We also consider that Prof. Beran should allocate a reasonable time for all his consultations. At the hearing, he volunteered that in future he would allow up to an hour on a first consultation for a new patient. To ensure that he allocates sufficient time to communicate effectively with patients and take a full history, a condition that he allocate 45 minutes for each new patient consultation and 30 minutes for each existing patient consultation, is appropriate.

Length of sleep deprivation before EEG

1. Prof. Beran's response to the Council's condition about no more than four hours of sleep deprivation is that he does not consider such a test would add anything to the "diagnostic yield" of a waking EEG. On the other hand, he does not intend to order 48-hour sleep deprivation as "the number of cases for which the yield has proven extremely positive, may, on percentage positive yield figures, not justify the inconvenience imposed".
2. Despite his stated intention, we consider it appropriate to impose a condition, based on Dr Coussens' expert opinion, that Prof Beran not order more than 24 hours of sleep deprivation in any request.
3. There was no evidence or any reason to conclude that Prof. Beran's workload, as distinct from the time he allocated to see patients, was affecting his professional performance. If the conditions we have identified are in place, it is not appropriate to restrict the hours that Prof. Beran can work.

Appeal under s 160A of the National Law

1. Prof. Beran submitted that the appeal was made under s 160A, as well as s 160 of the National Law, "for completeness". When questioned at the hearing, Prof. Beran withdrew that appeal. As far as we are aware, s 160A has not been considered in any detail by the Tribunal or the courts. We make the following observations.
2. Section 160A gives a health practitioner who is the subject of a performance review, the right to appeal "with respect to a point of law". 160A Appeals on points of law [NSW] (1) A registered health practitioner who is the subject of a performance review may appeal with respect to a point of law to the Tribunal. Note - An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal may be made - (a) during a performance review - within 28 days after the date of the Performance Review Panel's decision on the point of law that is the subject of the appeal; or (b) before the commencement of a performance review but after the date the practitioner is informed of the performance review. (3) If a performance review has not been completed when an appeal is made, the Performance Review Panel must not continue with the performance review until the appeal has been disposed of. (4) The Performance Review Panel must not make any decision that is inconsistent with the Tribunal's determination with respect to the point of law.
3. An appeal under s 160A can only be made by a health practitioner "who is the subject of a performance review" (emphasis added.) An appeal may be made either "during a performance review" or "before the commencement of a performance review". We did not hear detailed argument on the meaning of s 160A, although the Medical Council made the following submission: "Section 160A provides for limitations on the Council's continuing exercise of its functions where an appeal on a point of law is made."
4. That submission accords with our tentative view. Appeals under s 160A are confined to a decision on a point of law made before or during a performance review. If that interpretation is correct, there is no appeal available with respect to a point of law after a performance review has been completed. Prof. Beran accepted that it was not necessary for him to establish a point of law for the Tribunal to alter the conditions on his registration. Nevertheless, he continued to rely on that ground of appeal until it was withdrawn at the beginning of the hearing.

Costs

1. Under clause 13 of Schedule 5D of the National Law, "ordinarily costs should follow the event unless there are reasons to conclude otherwise": Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182. As we have neither dismissed the appeal, nor made orders wholly in accordance with Prof Beran's submissions, the parties should be given an opportunity to make brief submissions as to costs.

Orders 1. Within 14 days of the date of publication of these reasons, Professor Beran is to file and serve any submissions as to costs and any submission as to whether the question of costs should be determined 'on the papers' under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. Within a further 14 days, the Medical Council is to file and serve any submission as to costs and any submission as to whether the question of costs should be determined 'on the papers' under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 3. Within a further 7 days, Professor Beran is to file any submissions in reply. 4. The Tribunal imposes the following conditions on the practitioner's registration: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice including non-clinical practice. 2. To complete within 6 months of the date of this decision the Clinical Communication Program organised by the Cognitive Institute. a. Within 3 months of the date of this decision, he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. b. Within 2 weeks of completing the abovementioned course, he must provide documentary evidence to the Council that he has satisfactorily completed the course. 3. To bear responsibility for any costs incurred in meeting condition 2. 4. If the Clinical Communication Program is not available, he must propose a similar course to Council for approval within 2 months of the date of this decision. 5. To undertake clinical practice in a public or private hospital position, but not in sole private practice. 6. To treat no more than one new patient every 45 minutes and to treat no more than one existing patient every 30 minutes. 7. When requesting or referring a patient for any Sleep Deprivation Electroencephalography Scans (EEGs), the practitioner must: a. State the reasons for the need for sleep deprivation in the request itself; and b. Not order more than twenty-four hours of sleep deprivation in any request. 8. Within 7 days of the end of each calendar month, the practitioner is to provide the Medical Council of NSW with a record of all Sleep Deprivation EEG requests and referrals issued during the month. The record must include: a. the full name and date of birth of the patient b. date of consultation when request/referral made c. reasons and clinical indication for requesting/referring patient to Sleep Deprivation EEG request d. enclosing copy of the sleep deprivation request/referral itself. 9. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), an order is made prohibiting the publication or disclosure of the name of Patient A referred to in these reasons.

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: 19 July 2023