Chen v Medical Council of New South Wales

NCAT Occupational|2021-02-16|Before: Boland AM, Wilhelm AM, Associate Prof P

(b) Not to participate in any on-call roster, provide after-hours services, home visits or nursing home services, or undertake over-time shifts. (c) To practise no more than 32 hours per week with no more than 8 hours in any 24-hour period. (d) To treat no more than 32 patients in any one day. (e) Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). (i) To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 (NSW) to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug, such evidence to be provided within four weeks of the date of these orders. (f) 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. (i) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on the appropriate treatment and referral of patients with mental health disorders, workload, clinical performance, clinical decision making and judgement, medical record reviews, appropriate prescribing practices and patient follow-up. (ii) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. (iii) Not to practise until a supervisor has been approved by the Medical Council of NSW. (g) Within 6 months of being approved by the Medical Council of NSW to commence employment, the practitioner is to spend a total of 10 observation sessions with his approved supervisor. A session is a period of at least 2 hours. (i) Initially, the practitioner is to spend a total of 5 sessions directly observing the supervisor conduct consultations with his or her patients. (ii) The supervisor is then to spend a total of 5 sessions directly observing the practitioner conduct consultations with his patients. (iii) When observing these consultations, the practitioner and supervisor are to consider such matters as: clinical performance, clinical decision making and judgement, treatment and referral of patients with mental health disorders, appropriate prescribing practices, patient follow-up and clinical outcomes. (iv) Within 4 weeks of the completion of the observation sessions, the practitioner is to provide a report to the Medical Council of NSW detailing the dates of attendance, what he learnt and how this will impact on his practice. In the report, he should make reference to, but not restrict himself to the issues in, the decision which led to the imposition of this condition. (v) Once the practitioner's report is written and before it is returned to the Medical Council of NSW, he is to ensure that the supervisor reviews the practitioner's report and that the supervisor provides his or her own report to the Medical Council in which he or she comments on the content and authenticity of the practitioner's report, confirming the dates of attendance and setting out any concerns or other observations. The supervisor's report is to be provided to the Medical Council of NSW within 4 weeks of the completion of the observation period. (vi) The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports. (h) To submit to an audit of his medical practice, by a random selection of 20 of his medical records by a person or persons nominated by the Medical Council of NSW and: (i) The audit is to be held within 12 months from recommencement of practice and subsequently as required by the Medical Council of NSW. (ii) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. (iii) The auditor(s) should pay particular attention to: appropriate prescribing practices, prescribing and treatment provided for mental health disorders, assessment of comorbid conditions, provisional diagnosis, differential diagnosis and investigation and management plans. (iv) To authorise the auditor(s) to provide the Medical Council of NSW with a report on their findings. (v) To meet all costs associated with the audit(s) and any subsequent reports. AND C. Once the practitioner obtains employment in either a public hospital or in general practice: (a) To forward evidence to the Medical Council of NSW within 14 days of the date he recommences practice, that he has provided a copy of the decision which imposed these conditions to the Director of Clinical Services and/or the responsible senior officer in any place that he works or, in the event he is employed in general practice, to the Principal of the practice in any place that he works. (b) Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of the decision which imposed these conditions to the Director of Clinical Services and/or the responsible senior officer in any place that he works or, in the event he is employed in general practice, to the Principal of the practice in any place that he works. (c) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. (d) 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. (2) The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law. (3) Sections 125-127 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. Catchwords: HEALTH - professional registration and discipline - registration - application by former practitioner for re-instatement order Legislation Cited: Health Practitioner Regulation National Law Poisons and Therapeutic Goods Act 1966 (NSW) Health Practitioner Regulation National Law Regulation 2018 (NSW) Cases Cited: Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16 Texts Cited: Nil Category: Principal judgment Parties: Leimin Chen (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: T Hackett (Applicant) A Petrie (Respondent)

Solicitors: Moray & Agnew (Applicant) Medical Council of New South Wales (Respondent) File Number(s): 2020/00236323 Publication restriction: Nil

Introduction

These reasons are in respect of an application by Mr Leimin Chen brought under s 163A of the Health Practitioner Regulation National Law (the National Law) for an order that he be entitled to apply for re-instatement to the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA).
Mr Chen, who, for convenience, we will refer to as the practitioner, was the subject of disciplinary proceedings brought by the Health Care Complaints Commission (HCCC) in this Tribunal in 2017. On 13 August 2018 a differently constituted Tribunal made orders cancelling the practitioner's registration. The Tribunal's orders additionally provided the practitioner could not apply for registration for a period of two years from the date of the decision.
Notwithstanding the Tribunal's order, on 5 August 2020, that is approximately one week before he was entitled to do so, the practitioner filed an application for a re-instatement order. No objection was taken by the Medical Council of New South Wales (the Council) to the application being filed prior to the expiration of the two year period.
In a Reply filed on 13 November 2020 the Council opposes the practitioner's application for a re-instatement order under s 163B of the National Law. The Council maintained that position throughout the hearing. However, at our request, after the conclusion of the hearing the Council provided to us two sets of conditions it proposed should be imposed on the practitioner's registration. The first set of conditions is sought if the practitioner is permitted to practise in a hospital setting only. The second set of conditions is to apply if the practitioner is permitted to practise in general practice only.
Subsequent to the hearing, the practitioner also provided us with a set of combined proposed conditions. He did not oppose a re-instatement order being made subject to conditions. However, given his age, and preference to obtain a position on a general practice training program, he sought that we impose conditions which would apply in either a hospital setting or a general practice setting. The practitioner did not agree to all of the conditions proposed by the Council. We discuss the points of difference in the proposed conditions later in these reasons.
For the reasons that follow, we have determined a re-instatement order should be made and the practitioner's registration should be subject to conditions.

The threshold issue - does the Tribunal have jurisdiction to hear the application?

Section 163A of the National Law sets out the procedure for a person to seek a review of an order made by a body (referred to as the decision-making entity) under the National Law. The Tribunal is a decision-making entity (s 163A(4)(d)).
Section 163(2) requires an applicant for review to lodge his or her application with the Executive Officer of the Council for the health profession in which the person is or was registered. Section 163(3) requires the Executive Officer to refer the application to the appropriate review body.
Section 163A(3)(a) provides that an application for review may not be made "while the terms of the order provide that an application for review may not be made". Prima facie, the practitioner's application filed on 5 August 2020 is incompetent.
It is clear from material exhibited before us by the Council that the practitioner (who was self-represented at the relevant time), first lodged his application with the Executive Officer of the Council and also filed directly in the Tribunal prior to the expiration of the period provided under s 149C(7).
At the commencement of the hearing the Council consented to the uplifting of the application filed 5 August 2020. We permitted the practitioner to re-file his application with the date of the application being 15 February 2021, thereby overcoming any jurisdictional problems.

Background

The practitioner was born in 1962 and is presently aged 58 years. He graduated with the degree of MBBS from Wannan Medical College in China in 1984 and obtained an MD from the Beijing Medical University in 1990.
The practitioner worked as a doctor in China from 1985 until he moved to Australia in 1992.
Between 1999 and 2001 the practitioner undertook studies in Australia and completed a graduate medical course and was awarded a Bachelor of Medicine from the University of Queensland.
The practitioner says he pursued a surgical career and completed Surgical Part 1 of the Royal Australian College of Surgeons program. He held general registration in Queensland from 2003 to 2010.
Between 2011 and 2015, the practitioner worked as a career medical officer and unaccredited registrar in various hospitals, including Auburn Hospital, and as a part-time career medical officer at Royal North Shore Hospital.
From November 2014 until June 2015 the practitioner was employed by Aura Medical Corporation (Aura) where he prescribed the S 8 drug ketamine for patients suffering severe depression. Ketamine is a rapid-acting general anaesthetic agent that is not approved for treatment of depression in Australia. The practitioner says he treated patients under the direction of Professor Graham Barrett (referred to by the practitioner as Dr Barrett).
On 30 October 2015 the practitioner was offered a place in the 2016 Australian General Practice Training program on the rural pathway in the Northern Territory region.
On 19 November 2015, delegates of the Council conducted a hearing under s 150 of the National Law. On that day the delegates imposed a number of conditions on the practitioner's registration, including a condition that he only practise in an approved public hospital position as a junior resident medical officer, and that he practise under category B supervision.
The delegates conducted further proceedings under s 150A of the National Law. On 7 January 2016, the delegates varied the condition that the practitioner practise only as a junior resident medical officer and added to that condition "or as a career medical officer".
In 2016 the practitioner joined the general practice training program. He worked in the Emergency Department at Orange Hospital from April 2016 to November 2016. He then worked as an unaccredited registrar in dermatology in Darwin from February 2017 and July 2017 and as a GP registrar in a general practice at Central Australian Aboriginal Congress in Alice Springs in February 2018.
On 9 June 2017 the HCCC commenced disciplinary proceedings in the Tribunal. The Tribunal commenced hearing the complaint over four days commencing on 12 March 2018. On 15 March 2018, the Tribunal determined to suspend the practitioner's registration. An application to lift the suspension was dismissed on 24 April 2018.
Dr Samuel Heard, Category B supervisor, provided a report to the Council covering the period 17 October 2017 to 27 December 2017. Dr Heard reported that the practitioner "continued to operate at a high level in this service" and that he was appreciated by patients and staff. Under the heading "Other comments" Dr Heard opined: Dr Chen is a pleasure to work with and I believe does not need this level of ongoing scrutiny given the fact he is in GP training. No doubt this will be determined soon and I hope he can get on with his career in primary care. I believe Dr Chen will be a competent and reliable general practitioner in the future.
The Tribunal published its Stage 1 reasons on 17 May 2018. The Tribunal's reasons record at [4] that the practitioner conceded he was guilty of unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law. The reasons also record that the practitioner conceded he was guilty of unsatisfactory professional conduct under s 139B(1)(b) (a record keeping complaint) but he did not admit he was guilty of professional misconduct under s 139E. The Tribunal found the practitioner guilty of professional misconduct and stood the proceedings over for a Stage 2 hearing on 24 and 25 July 2018 to consider appropriate protective orders.
Between the Stage 1 and Stage 2 hearing the practitioner gave an interview to a reporter for the publication "Australian Doctor". An article about his practice at the Aura clinic was published in Australian Doctor on 5 July 2018. The article noted "As he awaits sanctions, he says he is a scapegoat and believes he is a good, caring doctor".
On 13 August 2018 the Tribunal published its Stage 2 reasons. The protective orders made by the Tribunal were that the practitioner's registration as a medical practitioner be cancelled and that he not apply for re-registration for a period of two years from the date of the decision.
On 29 June 2019 the practitioner was referred by his GP to Dr Andrew Leon (Dr Leon), a psychiatrist, who he saw on 3 July 2019. Dr Leon provided a letter to support the practitioner's application for early release of his superannuation entitlements. The practitioner consulted Dr Leon again on 23 November 2020.
At some time after the disciplinary proceedings, the practitioner joined an organisation, HPARA. Material from HPARA (acronym for Health Professionals Australia Reform Association) web-site was tendered without objection in these proceedings. The practitioner gave evidence that he had attended the association's conferences and engaged in some meetings in the eastern suburbs of Sydney. The practitioner asserts he did not contribute to meetings but listened to discussion and received support from other attendees.
On 24 February 2020 the practitioner enrolled in the Graduate Certificate in Bioethics program at the University of Sydney. A certificate from the University discloses he completed semester 1 in 2020 gaining 18 credit points and passing the subjects Introduction to Ethical Reasoning, Philosophy of Medicine and Clinical Ethics. The subject Critical Concepts in Bioethics was completed in semester 2.
In December 2020 the practitioner undertook and completed a number of 1 and 2-hour modules provided by the Medical Indemnity Protection Society (his insurer).
On 25 November 2020 the practitioner completed a one-hour program conducted by the Black Dog Institute for mental health professionals entitled "Expert insights: Using TMS and Ketamine to Treat Depression: Efficacy, Evidence and Application".

The disciplinary proceedings

We are conscious that it is not our role in these proceedings to review the decision or findings which led to the cancellation of the practitioner's registration. However, in order to assess the practitioner's presently asserted insight and remorse, it is appropriate that we summarise the earlier Tribunal's findings.
In the Stage 1 reasons the Tribunal set out the background of the complaint, namely that a company, Aura Medical Corporation, promoted the drug ketamine to treat major depressive illnesses unresponsive to conventional treatments. The complaint recorded, accurately, that ketamine is a S 8 medication and at the time of the complaint was not approved by the Therapeutic Goods Administration in Australia, or indicated in the product information, for depressive illnesses.
It is not in dispute that, although the practitioner conceded at the Stage 1 hearing that a complaint based on s 139B(1)(a) of the complaint was established, he denied a number of particulars of the complaint.
The reasons record that the practitioner accepted a position with Aura and worked at its clinics between November 2014 and May 2015. The HCCC's expert evidence was discussed by the Tribunal who noted at [35] that the practitioner prescribed for 21 patients in circumstances where he had no post-graduate training in the diagnosis or the treatment of "treatment-resistant depression".
At [38] the Tribunal recorded the expert's evidence that the records maintained by the practitioner were inadequate.
The Tribunal's reasons also record that in treating patients the practitioner relied on "an oral protocol" provided to him by Dr Barrett when he visited Melbourne for two days to obtain instruction on the use of ketamine. At [62] the Tribunal noted: The Practitioner stated that he relied upon an oral protocol provided to him by Dr Barrett when he visited Melbourne for two days to obtain instruction on the use of ketamine. There was no written protocol. He agreed that it was not appropriate to have relied strictly upon the protocol and that he should have made his own enquiries and that in consequence, he put patient's lives at risk. He acknowledged that of the patients he treated, only 14 of those patients' general practitioners were contacted, sometimes after the treatment had commenced.
The Tribunal set out its findings at [119]-[122]. It is appropriate that we repeat those findings: The Tribunal is satisfied that the particulars alleged against the Practitioner are established. The information relevant to the assessment, diagnosis and treatment progress of the patients at each visit was clearly inadequate; there are negligible particulars of a clinical opinion reached in respect of each patient; there is insufficient particulars provided in the notes to know whether any advice or information was provided to the patient. The Practitioner has admitted that he prescribed ketamine for a purpose that did not accord with the recognised therapeutic standard of what is appropriate, contrary to cl 79 of the PTGR; that he failed to communicate and to advise and liaise with treating practitioners of several patients and failed to provided treatment summary for most of the patients. The Practitioner acknowledges he acted without proper authority under the PTG Act as required by s 28(2)(a) when he prescribed ketamine; that he used a consent form in respect of many patients which did not contain the relevant information or sufficient information for the patient; that he failed to obtain proper informed consent. The Practitioner denied that he failed to provide proper supervision and ongoing assessment during the treatment of several patients; that in respect of Patient A, the treatment should have been provided by a general practitioner; that he failed to provide follow-up support for four patients when providing them with takeaway doses of ketamine; that he failed to have proper regard to the history of methamphetamine use in respect of one patient; that he inappropriately prescribed such drug to a patient in circumstances where there is no evidence that the K10 test or the MADRS test was being used to inform the treatment. The Tribunal finds that each of the complaints particulars which are denied by the Practitioner are established. The Tribunal also finds that the particulars to each complaint are established.
On 13 August 2018 the Tribunal published its Stage 2 decision. At [7] the Tribunal recorded its finding that the practitioner "continued to demonstrate little or no insight into his conduct". The Tribunal explained that the practitioner described the "risks" involved in his conduct being a risk of disciplinary proceedings, not a risk to his patients.
At [9] the Tribunal recorded that the practitioner expressed regrets about his career and asserted that the treatment received by patients was safe and beneficial and that he had experience in psychiatry.
The Tribunal recorded at [10] the practitioner's position that he had relied on Dr Barrett for instruction and his acknowledgment that he had not conducted any background check on Aura but rather that he relied on the local agency who offered the employment.
At [13]-[14] the Tribunal made a number of adverse findings about the practitioner including that he took little responsibility for his actions, and that his evidence was "contradictory and confusing, and at times defiant and defensive". The Tribunal explained it was "concerned by the lack of evidence of Dr Chen having undertaken any critical reflection about his conduct or its remediation".
The Tribunal recorded that the practitioner had virtually no liaison with patients' treating general practitioners. At [18] the Tribunal recorded but rejected the submission made by the practitioner's lawyers that his conduct may have been attributable to his personality and cultural background noting that he had worked as a doctor in Australia since 1992.
At [21] the Tribunal set out its conclusions about the practitioner's lack of insight as to a comprehensive approach to patient care and noted the failure of the practitioner to demonstrate insight into the deficits in his patient care.
The Tribunal's conclusions are set out at [23]-[25]. We now set out those paragraphs: The Tribunal notes that the respondent's practise, as outlined above, demonstrated poor clinical decision making and poor judgement over a considerable period of time and for many patients, and were not confined to an isolated case. The Tribunal was most concerned that even after three to four years since the practitioner's conduct came to notice, and even following suspension of his registration after Stage 1 of these proceedings, the respondent demonstrated ongoing poor insight into his conduct. For these reasons the Tribunal finds that the protective orders below are necessary. The cancellation to be imposed is necessary to enable the respondent to retrain for any future application for reregistration as a medical practitioner. It would be expected that the practitioner would undertake courses at least in relation to record keeping, a comprehensive approach to patient care and similar courses. The evidence before the Tribunal has disclosed that the primary focus of the practitioner appears to have been the prescription of one drug without regard to any other treatment that might have been more suitable for the practitioner's patients. They received only treatment based upon the practitioner's desire to prescribe ketamine at $3000 per treatment albeit that there is no evidence that the respondent himself benefitted from the money charged. The practitioner misunderstands his professional responsibilities when he states that his function was simply to prescribe ketamine to his patients, as stipulated by another practitioner interstate. The Tribunal was concerned that the respondent's rigidity of thinking, defensiveness and unwillingness to acknowledge the deficits of his past conduct appeared to have increased, rather than decreased, in the months since the Stage 1 proceedings, which further argues against less restrictive orders. The Tribunal is satisfied that the practitioner should have his registration cancelled and that he not be able to reapply for registration until two years from the date of publication of this decision.

Relevant statutory provisions and principles applicable to a re-instatement application

The National Law

Section 163B of the National Law requires the Tribunal to conduct an inquiry into an application for review and provides that, under s 163(1)(c), the Tribunal may make a re-instatement order.
A re-instatement order is defined in s 163B(3). Section 163B(4) provides: The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order.
The Tribunal's powers on review are found in s 163C. That section provides as follows: 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division.
As with all applications under the National Law, the Tribunal is informed by and guided by ss 3 and 3A. The latter provision requires the Tribunal to have the protection of the health and safety of the public as its paramount consideration.
The principles applicable to determining a review are subject to well-established authority. In Bahramy v Medical Council of New South Wales [2014] NSWCATOD 116 the relevant principles are explained at [59]-[64] as follows: Although determined prior to the introduction of the National Law, principles dealing with re-registration applications under repealed legislation remain relevant and apposite to this application. Those principles are not in doubt and have been discussed in many decisions of courts, including the High Court of Australia, intermediate appellate courts, as well as tribunals. (see Re Lenehan; [1948] HCA 45; 77 CLR 403; per Latham CJ, Dixon and Williams JJ at [33] Ex Parte Tziniolis; Re the Medical Practitioners Act (1966) 67 SR 488; Peter Cecil Harcourt Dawson v Law Society of NSW [1989] NSWCA 58; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Zaidi v HCCC [1998] NSWSC 335 per Mason P at 15; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637).) In In Re Jason Martin the Medical Tribunal explained the purpose of the jurisdiction is "not punishment or further punishment" of the former practitioner, rather the jurisdiction being exercised is for the protection of the public. Although decided in the context of lawyers who have been removed from the roll of practitioners, the principles enunciated in such cases are generally apposite to these proceedings. The High Court has made it plain that the power to re-instate should "be exercised with great caution and only upon solid and substantial grounds". However a court (or a tribunal) should exercise its discretion having regard to the facts of each case (see Lenehan). While found in a dissenting judgment, the remarks of Kirby P (as his Honour then was) in Dawson have been adopted and applied in other decisions in the Medical Tribunal and other health practitioner disciplinary tribunals. His Honour explained: 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 affirmatively proved reform, are afforded a second chance. In In Re Jason Martin the Medical Tribunal pointed out it 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". That Tribunal noted the difficulty associated with predicting how a practitioner will behave in the future and remarked that "the decision in the particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant". The Tribunal explained "in making that assessment [the tribunal] may draw inferences from what has happened in the past and in particular, what led to his [her] being removed from the Register". When considering issue of "good character" the principles set out in HCCC v Karalasingham [2007] NSWCA in the reasons of Basten JA are instructive. His Honour, at [45] explained the words " 'not of good character' do not bear a special or technical meaning. " His Honour went on to discuss situations, by reference to authority, where personal conduct, as distinct from professional misconduct, may be relevant to the question of a practitioner's good character. His Honour cited, with apparent approval, the factors set out in the decision of McBride v Walton (unreported NSWCA 15 July 1994) as follows: To determine whether a finding of proven misconduct should be followed by a consequential finding that the practitioner is not of good character in the context of fitness to practise medicine, one must consider: (a) whether the misconduct can be satisfactorily explained as an error of judgment rather than a defect of character; (b) the intrinsic seriousness of the misconduct qua fitness to practise medicine; (c) whether the misconduct should be viewed as an isolated episode and hence atypical or uncharacteristic of the practitioner's normal qualities of character; (d) the motivation which may have given rise to the proven episode of misconduct; (e) the underlying qualities of character shown by previous and other misconduct; and (f) whether the practitioner's conduct post the proven episode of misconduct demonstrates that public and professional confidence may be reposed in him to uphold and observe the high standards of moral rectitude required of a medical practitioner.
The relevant principles are also referred to by Adams J in Vito Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85]. Her Honour cited with approval the Tribunal's exposition of the relevant principles in Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16 at [7]-[8].

The practitioner's own evidence

The practitioner provided two folders of documents in support of his re-instatement application. Some of the material relied on in the practitioner's material was duplicated in the Council's material.
The practitioner relied on a statement dated 27 November 2020 and a supplementary statement dated 31 January 2021 (which became Exhibit 3) as well as submissions dated 17 September 2020.
The practitioner's material included a copy of the interview published in Australian Doctor, his curriculum vitae, and documents evidencing his qualifications.
The practitioner also relied on two reports from Dr Leon and a number of character referees whose evidence we summarise below. Dr Leon and the character referees were not required for cross-examination.
The practitioner's counsel advised us that the practitioner did not seek to read or rely on the five appendices to his documents. However, as we later discuss, those appendices were tendered without objection in the Council's case.
At paragraph 11 of his first statement dated 27 November 2020, the practitioner stated that he "categorically" acknowledged he had made a fundamental mistake in prescribing ketamine for the treatment of patients under instruction of Dr Barrett. He referred to discussing his actions with Dr David Gorman and "Dr Margret Delay" [sic] after the cancellation of his registration. He asserts that "both doctors spent time with me helping me to understand the errors in my judgment and my involvement with the Aura Medical Company and the off-label treatment of ketamine for depression".
At par 14 the practitioner sets out his admission that he does not have "proper mental health qualifications" and that he should not have started treating the patients.
At par 16 the practitioner asserts that the period during which he prescribed ketamine is not consistent with his 19 years of training and the high medical and clinical standards he applied in his time as a medical practitioner in Australia.
At par 17 the practitioner explains: During the last two years I have enrolled in various courses in ethics and critical clinical practice to improve my understanding in this area. Further I have read many literature reviews about mental health and associated diseases. I also followed the Black Dog Institute courses to improve my understanding of depression and its treatments including alternative and holistic approaches to working with and treating mental health patients.
The practitioner also refers to studying literature and regulations regarding S 8 drugs including reference to the Poisons and Therapeutic Goods Act 1966 (NSW). He also refers to studies undertaken relevant to record keeping.
The practitioner asserts that his experience of having his registration cancelled has resulted in him now having "a great deal of humility" and that he is now a very different person.
The practitioner's supplementary statement dated 31 January 2021 was prepared by the practitioner with the assistance of his lawyers. Under the heading "My mindset at the time of the misconduct", the practitioner refers to being "over-confident" and that his prescribing was outside his scope of practice. He states he was naïve in his approach and overly trusting of an Australian university professor and his company, Aura. He says that he would not have proceeded with the role if he had investigated Aura. Although he says he raised concerns with Professor Barrett about his workload and the need for a psychiatrist to be employed, he goes on to explain "Unfortunately, I did not recognise at that time that my day to day work had slipped below appropriate standards".
At pars 18 to 26 the practitioner details how he reacted to the proceedings.
Under the heading "Reflection on standards and reformed character", the practitioner explains the difficulties and embarrassment he has suffered as a result of the cancellation of his registration and his inability to work in a profession he loves. He states: This experience necessarily causes one to reflect on their behaviours, the misconduct (and its causes) and then to ultimately accept full responsibility for it.
The practitioner goes on to assert he is a very different person now. Under the heading "Insight" the practitioner refers to "another poor decision" being his decision to participate in the interview with Australian Doctor published on 5 July 2018. He acknowledges that, at that time, he felt he had been singled out and was a "scapegoat". The practitioner says "I had not accepted the findings or taken accountability for my misconduct".
At par 34 the practitioner explains: According to the article I stated my greatest regret was that my reputation as a doctor had been tarnished by the process. On reflection a [sic] have a number of great regrets including the risks to the patients due to my unsafe practice at the time. The misconduct will not be repeated.
The practitioner, at pars 36 and 37, acknowledges he made a fundamental mistake in administering ketamine for the treatment of depression to patients, and even though at the time he felt he was doing so under the instruction of Dr Barrett explains that it was his responsibility "to confirm the histories, liaise with treating practitioners, ensure comprehensive care and importantly not to work outside the scope of my expertise". He goes on, at par 38, to explain that although other doctors at Aura were also administering ketamine "I should not have naively followed their instructions without question". The practitioner says in so doing he became an active participant in unethical prescriptions.
At par 41, the practitioner explains that his defensive and combative attitude was because he was "looking outwardly and attempting to shift blame to others, rather than looking inward at my own conduct".
The balance of the practitioner's statement chronicles courses he has undertaken or studies in which he has engaged during the last two years.
The practitioner states at par 55 that, if permitted to return to practice, he would like to resume his RACGP training, initially in a group practice. He states he would also consider returning to resume his GP training in the Northern Territory.
The practitioner concludes his statement with comments on the opinions expressed by Dr Anthony Samuels (Dr Samuels), the expert relied on by the Council in these proceedings.
It is sufficient at this point that we note the practitioner explains he is in general agreement with Dr Samuels' report. He states that he agrees with Dr Samuels' opinion that it is likely he would abide by any conditions placed on his registration.
In the concluding paragraphs of his statement the practitioner says: I have been regularly meeting a group including senior clinicians (and non- clinicians) informally for dinner on a monthly basis. Discussions include many topics including our professional lives. These discussions have assisted and supported my reflections on my conduct. I recognize I would need support if I was to return to practice. If I am permitted to return to practice, I would seek out a senior colleague as a formal mentor.
The practitioner was cross-examined on his statements and his attendance on Dr Leon, psychiatrist, and recommendations of his general practitioner that he seek counselling from a psychologist.
The practitioner made a significant number of concessions about his treatment of the patients the subject of the complaint including that the patients were vulnerable and that the ketamine administration exposed patients to significant risk and imperilled their safety.
A number of the practitioner's answers to questions posed appeared to us to support his assertion of insight and steps taken to remedy the deficiencies in his understanding identified by the earlier Tribunal. He gave an explanation of selecting the University of Sydney bioethics course because of the reputation of the course, and said the course had enabled him to better understand clinical ethics philosophy, evidence-based medicine and important ethical questions concerning the best interests of patients.
The practitioner was cross-examined as to why he had included patient records relating to his treatment of patients at Aura in his documents for these proceedings. He explained he had provided this material because Dr Samuels had questioned him about the number of prescriptions he had written. He asserted that he had not written prescriptions for 360 vials of ketamine, but acknowledged he had written prescriptions for 220 vials, including 127 vials whilst working in Sydney. He explained that he did not initially agree with the Tribunal's decision, in part, because of what he perceived to be factual errors and also that, at the time, he saw things "in black and white". However, he explained before us that "fundamentally I was incorrect". He went on to acknowledge that he had made a "big mistake". He also conceded that, although he had maintained patient records, that his record keeping was inadequate.
We accept that the practitioner, who was self-represented at the time, provided the documents in the appendices to his statement for the purpose he explained in his answers to cross-examination. We did not find he provided this material because he still views the earlier Tribunal's findings about him as incorrect.
The practitioner was also cross-examined about his association with HPARA and questioned about that organisation's statements on its website. It was of some concern to us that the practitioner appeared to be associating with other practitioners who had been or are subject of current disciplinary proceedings for support as these practitioners may not provide the type of mentoring appropriate for this practitioner going forward. However, when questioned about his ongoing association with one such doctor, the practitioner's explanation for why he saw this practitioner demonstrated kindness and concern for the doctor, who is ill. We formed the view that, if the practitioner is well supported on his return to practice, with a supervisor approved by the Council, he will receive appropriate guidance.

Dr Andrew Leon

Dr Leon, Consultant Psychiatrist/Psychotherapist, provided two letters relied on by the practitioner. His medical records were produced under Summons to the Tribunal. He was not required for cross-examination.
Dr Leon's first letter is dated 3 July 2019. It is not addressed to any person. In the letter Dr Leon notes that he had consulted with the practitioner (his clinical notes also record the consultation date as 3 July 2019). He opines in the letter that the practitioner suffers from "major depressive disorder and post-traumatic stress disorder". Dr Leon states the practitioner is unable to work in his medical profession and "is unfit for work because of the above" and notes that the practitioner "is having financial difficulty because of this and would greatly benefit from some access to his superannuation".
Dr Leon's second letter is dated 23 November 2020 and is addressed to the Council. Dr Leon states "He [the practitioner] understands the complaints against him and has made efforts through formal learning and self-examination to remedy his previous defects. He comes across to me as a thoughtful and ethical person who realises his mistakes and how they occurred and has seriously addressed these issues".
The practitioner sent an email to Dr Leon when he learnt his medical records had been the subject of a Summons issued by the Council. He noted the late issue of the Summons and then said "But I guess they are entitled to do so as a powerful control organisation over doctors". He concluded the email saying "I am sorry if it is taking your [sic] lots of time and inconvenience for this matter".

The character referees

The practitioner submitted documents evidencing his training and experience. It is unnecessary that we record details of these documents, many of which are historical and not subject to dispute. A number of the letters do however support the practitioner's contention that prior to his involvement with the Advanced Medical Institute and Aura he was generally regarded as a competent doctor.
The practitioner also relied on a supervision report dated 29 December 2017 from Dr Samuel Heard. Dr Heard opined that the practitioner was "a pleasure to work with" and went on to say "I believe he does not need this level of ongoing scrutiny due to the fact that he is in GP training". Dr Heard also provided a reference for the practitioner dated 10 July 2018. He again expressed positive views about the practitioner's abilities as a doctor while noting he had clearly made profound errors.
A letter commending the practitioner was provided by Richard Tasker dated 16 September 2020. He also relied on a character reference from Ms Maria Zoras-Christo, solicitor, also dated 16 September 2020, as well as a character reference from Dr Anthony Pun OAM, Chair, Multicultural Communities Council dated 29 September 2020.
None of the referees referred to having been provided with or read either the Stage 1 or Stage 2 decision. In these circumstances while we place some weight on the references, we are unable to give them significant weight particularly in respect of the issue of insight and/or remorse. We do accept that the referees speak of their high regard for the practitioner.

The Council's expert

As earlier noted, the Council relied on a report dated 3 December 2020 prepared by Dr Samuels following his consultation with the practitioner that day. Dr Samuels had the benefit of reading a number of documents provided by the Council, including the reasons of the delegates following s 150 and s 150A proceedings, as well as the Tribunal's Stage 1 and Stage 2 reasons and the Pharmaceutical Services Unit Report dated 19 October 2015.
At par 38, Dr Samuels refers to Dr Leon's letter dated 23 November 2019 and notes that the report "does not really comment on Mr Chen's mental state".
At par 71 of his report, Dr Samuels records that the practitioner related seeing Dr Leon "in relation to financial issues and release of superannuation". He records "He said he was depressed because of his situation but he does not think he had significant depression or anxiety symptoms" and that he was not presently depressed or anxious.
Under the heading "Opinion", at par 78, Dr Samuels states: At this point Mr Chen does seem to have insight into the fact he should not have been engaging in this treatment or giving interviews to the media about the treatment.
Dr Samuels explains that the practitioner "has taken some steps to remedy his practice, doing a course in medical ethics" and goes on to explain that the practitioner "indicates he would be open to having supervision and conditions if necessary".
Dr Samuels refers to the practitioner's personality noting some conflict with colleagues and his supervisor at Orange Base Hospital and his being "somewhat abrasive in his interactions with Pharmaceutical Services and with his interactions in the Tribunal". Dr Samuels concludes that "apart from some mild narcissistic personality traits" he could not find any underlying psychiatric disorder.
At par 87 of his report, Dr Samuels opines that the practitioner now seems open to criticism, has reflected on it and understands he was working outside his scope of practice and expertise. Dr Samuels goes on to record his impression that the consequences of the practitioner's conduct has been a "salutary experience". He concludes "I feel fairly confident that Mr Chen would be very careful about working within his scope of practice in the future".
At par 89, Dr Samuels responds to a question posed by the Council in which he is asked, if the practitioner is reinstated "are there any conditions you consider should be imposed on his registration?". Dr Samuels responds saying that "given the history" some form of oversight and supervision would be appropriate and certainly when dealing with psychiatric patients.
In his oral evidence, Dr Samuels explained that he thought, if the practitioner were reinstated, it would be appropriate for the practitioner to be working in the short to medium term in a hospital, and that he would be concerned if the practitioner worked unsupervised because there is potential that he could overvalue his own abilities.
Dr Samuels confirmed that the practitioner "had said the right things" and was suitably contrite. Later he opined that he thought the practitioner was genuine although some of his answers were a bit "stereotyped".
When questioned by counsel for the Council about Dr Leon's report of 3 July 2019, Dr Samuels explained he did not place much weight on the report which he regarded as a medico-legal report in support of the practitioner's application for early release of his superannuation, rather than having a therapeutic purpose.
In response to questions posed by the practitioner's counsel, Dr Samuels explained that it was not possible to get into the practitioner's mind and that insight was acquired in a continuum. Dr Samuels later very appropriately explained that the assessment of whether the practitioner's insight is genuine is ultimately a matter for this Tribunal, and that the practitioner appeared to be saying "all the right things". He also explained that the practitioner is an intelligent man, that being de-registered had an impact on his livelihood and that if re-registered, he was unlikely to do anything to jeopardise his registration again.

The parties' submissions

As will be apparent from our discussion below, at the conclusion of the practitioner's lengthy cross-examination we were satisfied that he demonstrated sufficient insight and remorse for his conduct at Aura for a reinstatement order to be made. However, we agreed with Dr Samuels that suitable conditions should be placed on the practitioner's registration. We conveyed our views to the parties and made directions for the filing of submissions and proposed conditions.

The Council

The Council's primary position before us was that the practitioner had taken insufficient steps at this point in time to be re-instated to the register. The Council however agreed to provide two sets of proposed conditions for consideration and comment by the practitioner and ultimate determination by us. Annexed hereto and marked "A" is a copy of the conditions proposed by the Council if the practitioner obtains employment in a general practice rather than in a hospital. Annexure "B" is a document setting out conditions to be imposed if the practitioner works in a public hospital as an intern or resident medical officer.

The practitioner

The practitioner's solicitors provided us with a "combined" set of proposed conditions in identical terms to those proposed by the counsel subject to several changes marked-up on the original. The practitioner proposed that, if he obtains employment in a public hospital in a position approved by the Council, he should be entitled to practise as a registrar or resident medical officer with a senior medical practitioner on site.
The practitioner's solicitors submit that by reason of the practitioner's age he is highly unlikely to be able to obtain a position as an intern. We pause to note that the practitioner's curriculum vitae discloses periods of employment as an unaccredited registrar.
The practitioner's solicitors, while noting the practitioner does not strenuously oppose the Council's proposed conditions, submit that the Council's proposed conditions 8 and 9, relevant to general practice, may be unnecessary because the practitioner will be supervised in the GP training program.
The solicitors also point out that a requirement that the practitioner not prescribe Schedule 4D drugs "may be unnecessarily restrictive given he has not had any concerns raised with these drugs previously".

Consideration

We are satisfied that the practitioner has taken diligent steps to address issues of concern raised by the earlier Tribunal's decisions. He has enrolled and completed a graduate certificate in Bioethics at the University of Sydney and undertaken numerous online short courses offered by his insurer.
We also accept that he has, in the absence of being able to locate a suitable course, familiarised himself with the requirements of the Poisons and Therapeutic Goods Act and other record keeping requirements.
We found Dr Samuel's report and his oral evidence relevant and compelling. We accept and agree with Dr Samuels that the practitioner's insight has been a gradually evolving one. We endorse the findings of the earlier Tribunal that the practitioner's attitude following the Stage 1 hearing was combative and that he perceived himself to have been victimised. However, before us he fully accepted responsibility for his actions, including exposing his patients to risk in providing ketamine injections, including "take home" injections, and acting outside his scope of practice. His demeanour was humble and contrite. We accept he was truthful and frank in his oral evidence.
Initially, it was of concern to us that the practitioner thought it appropriate to provide the patient records which had been the subject of the disciplinary proceedings in what appeared to be an attempt to justify his behaviour at Aura. However, after hearing the practitioner's answers to questions posed in cross-examination, we accept the practitioner's explanation that this material was provided to demonstrate the actual number of prescriptions he wrote.
We had a level of concern about the practitioner's judgment in associating with, and seeking support from, at least one practitioner who has been subject of disciplinary proceedings. This appears to have occurred predominantly in the period before and generally shortly after the practitioner's registration was cancelled.
We are satisfied that, going forward, appropriate supervision and support can be provided to the practitioner through the imposition of appropriate and relevant conditions on his registration. We found that the practitioner demonstrated a level of insight in his acknowledgement that the imposition of conditions on his registration was a likely and appropriate outcome of this reinstatement application. We also note that he did not oppose a restriction on his prescribing rights in respect of S 8 drugs. We found these concessions supported our conclusions about the practitioner's insight.
We have also taken into account that the practitioner has a long history in this country of practice, over almost two decades, without any serious complaints. In fact, many of the references he provided going back to 2003 support a finding that he was regarded as a competent medical practitioner in hospital positions in which he was employed. In making this finding we do not ignore the criticisms of the practitioner by his supervisor at the Orange Base Hospital during his employment at that hospital. However, his supervisor's adverse comments do not appear to be typical or recurring. To the contrary, the practitioner's work history generally, and particularly in the Northern Territory, discloses he was a well-regarded practitioner by his employers.
The practitioner proposes that he be permitted to seek re-admission to complete his general practice accreditation, preferably in New South Wales, or, if he cannot find a suitable position, to resume his training in the Northern Territory.
We do not ignore the fact that the practitioner was found guilty of professional misconduct of such a serious nature that his registration was cancelled and a two-year period imposed before he could apply for reinstatement. The Stage 2 decision disclosed the practitioner did not accept the Tribunal's Stage 1 findings. The practitioner's insight and acknowledgment of his conduct is relatively recent. We are satisfied in these circumstances that his return to practice should be subject to conditions on his registration.
The provision of a supervision condition will ensure the practitioner is supported and monitored on his return to practice.
The practitioner himself proposed that he limit his working hours to four days per week. That is a condition proposed by the Council (i.e. a limit of 32 hours) and we find it to be appropriate, as is the condition that the practitioner treat no more than 32 patients per day. The practitioner acknowledged before us that he wishes to practice in a slow and careful manner. That will be facilitated by these conditions.
We have expressed some reservations about the support and advice received by the practitioner since his de-registration. The practitioner expresses a desire to complete his GP training. That can be well achieved in a group practice and with the conditions proposed by the Council.
We are satisfied, given the practitioner's age and practice history in Australia, that conditions on his registration should be imposed so that he can work either in general practice, particularly if he can regain a position in the general training program, or in a public hospital.
We agree with the submissions made by the practitioner that to limit his employment in a public hospital to an intern position, given his age and experience in hospital employment, is not appropriate. We find the practitioner should be able to seek employment in a public hospital as a supervised Junior Medical Officer or Career Medical Officer.
We accept that the supervision conditions 8 and 9 proposed by the Council in the event that the practitioner works in general practice may be unnecessary if the practitioner is supervised in the GP training scheme. However, at this stage the likelihood of the practitioner obtaining a place on the training scheme is speculative. Accordingly, we find it is appropriate to impose such conditions, particularly as the practitioner has had very limited general practice experience.
We agree with the submissions made on behalf of the practitioner in respect of Schedule 4D drugs and that such a condition is unnecessary.
We do not accept the submissions made on behalf of the practitioner that an audit condition is unnecessary. We are cognisant that the practitioner has conceded his record keeping was deficient. Further, while he has self- educated himself about record keeping, he did not refer to knowledge of the Health Practitioner Regulation National Law Regulation 2018 (NSW). We find the audit condition proposed by the Council to be appropriate.
Accordingly, we propose to make a reinstatement order, subject to the conditions as generally proposed by the Council.

Costs

We did not receive any submissions on the costs of this application. We have therefore provided that if either party wishes to make an application for costs such application is to be filed within 21 days of the date of these reasons. The parties should indicate if they consent to a costs application, if any, being dealt with on the papers.

Orders 1. A reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law is made in respect of Leimin Chen (the practitioner) subject to the following conditions being imposed on his registration: A. In the event the practitioner obtains employment in a public hospital: (a) To practise only in a Medical Council of NSW approved public hospital position as a supervised Junior Medical Officer or Career Medical Officer. (b) To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. (c) To practise only when there is a senior practitioner or clinical supervisor on site. (d) Not to undertake locum positions. (e) To practise no more than 32 hours per week with no more than 8 hours in any 24-hour period. (f) Not to participate in any on-call roster or undertake over-time shifts. (g) Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). (i) To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 (NSW) to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug, such evidence to be provided within four weeks of the date of these orders. (h) 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. (i) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on workload, clinical performance, clinical decision making and judgement, medical record reviews, appropriate prescribing practices, patient follow-up and treatment of patients with mental health disorders (including the practitioner's involvement of senior clinical staff in the treatment of such patients). (ii) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. (iii) Not to practise until a supervisor has been approved by the Medical Council of NSW. OR B. In the event the practitioner obtains employment in general practice: (a) To practise only in a group practice approved by the Medical Council of NSW, and where there are at least two registered medical practitioners (excluding the subject practitioner): (i) Where the patients and patient records are shared between the medical practitioners. (ii) Where there is always one other registered medical practitioner on site. (iii) Which is an accredited practice approved for the Australian General Practice Training (AGPT) Program as a training placement. (b) Not to participate in any on-call roster, provide after-hours services, home visits or nursing home services, or undertake over-time shifts. (c) To practise no more than 32 hours per week with no more than 8 hours in any 24 hour period. (d) To treat no more than 32 patients in any one day. (e) Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW). (i) To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 (NSW) to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug, such evidence to be provided within four weeks of the date of these orders. (f) 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. (i) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on the appropriate treatment and referral of patients with mental health disorders, workload, clinical performance, clinical decision making and judgement, medical record reviews, appropriate prescribing practices and patient follow-up. (ii) To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. (iii) Not to practise until a supervisor has been approved by the Medical Council of NSW. (g) Within 6 months of being approved by the Medical Council of NSW to commence employment, the practitioner is to spend a total of 10 observation sessions with his approved supervisor. A session is a period of at least 2 hours. (i) Initially, the practitioner is to spend a total of 5 sessions directly observing the supervisor conduct consultations with his or her patients. (ii) The supervisor is then to spend a total of 5 sessions directly observing the practitioner conduct consultations with his patients. (iii) When observing these consultations, the practitioner and supervisor are to consider such matters as: clinical performance, clinical decision making and judgement, treatment and referral of patients with mental health disorders, appropriate prescribing practices, patient follow-up and clinical outcomes. (iv) Within 4 weeks of the completion of the observation sessions, the practitioner is to provide a report to the Medical Council of NSW detailing the dates of attendance, what he learnt and how this will impact on his practice. In the report, he should make reference to, but not restrict himself to the issues in, the decision which led to the imposition of this condition. (v) Once the practitioner's report is written and before it is returned to the Medical Council of NSW, he is to ensure that the supervisor reviews the practitioner's report and that the supervisor provides his or her own report to the Medical Council in which he or she comments on the content and authenticity of the practitioner's report, confirming the dates of attendance and setting out any concerns or other observations. The supervisor's report is to be provided to the Medical Council of NSW within 4 weeks of the completion of the observation period. (vi) The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports. (h) To submit to an audit of his medical practice, by a random selection of 20 of his medical records by a person or persons nominated by the Medical Council of NSW and: (i) The audit is to be held within 12 months from recommencement of practice and subsequently as required by the Medical Council of NSW. (ii) The auditor(s) is to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. (iii) The auditor(s) should pay particular attention to: appropriate prescribing practices, prescribing and treatment provided for mental health disorders, assessment of comorbid conditions, provisional diagnosis, differential diagnosis and investigation and management plans. (iv) To authorise the auditor(s) to provide the Medical Council of NSW with a report on their findings. (v) To meet all costs associated with the audit(s) and any subsequent reports. AND C. Once the practitioner obtains employment in either a public hospital or in general practice: (a) To forward evidence to the Medical Council of NSW within 14 days of the date he recommences practice, that he has provided a copy of the decision which imposed these conditions to the Director of Clinical Services and/or the responsible senior officer in any place that he works or, in the event he is employed in general practice, to the Principal of the practice in any place that he works. (b) Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of the decision which imposed these conditions to the Director of Clinical Services and/or the responsible senior officer in any place that he works or, in the event he is employed in general practice, to the Principal of the practice in any place that he works. (c) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and the Pharmaceutical Regulatory Unit for the purpose of monitoring compliance with these conditions. (d) 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. 1. The Medical Council of NSW is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law. 2. Sections 125-127 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.

ANNEXURE "A" MEDICAL COUNCIL OF NSW'S PROPOSED CONDITIONS - GENERAL PRACTICE

To practise only in a group practice approved by the Medical Council of NSW, and where there are at least two 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 approved by the Royal Australian College of General Practitioners as a training practice.
Not to participate in any on-call roster, provide after-hours services, home visits or nursing home services or undertake over-time shifts.
To practise no more than 32 hours per week with no more than 8 hours in any 24 hour period.
To treat no more than 32 patients in any one day.
Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 1. To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug by [insert date - generally 4 weeks from date of decision].
Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). 1. To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Act 1966 to prohibit him from possessing, supplying, administering or prescribing any Schedule 4 drug listed in Appendix D by [insert date].
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 the appropriate treatment and referral of patients with mental health disorders; workload; clinical performance; clinical decision making and judgement, medical record reviews; appropriate prescribing practices; and patient follow-up. 2. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 3. Not to practise until a supervisor has been approved by the Medical Council of NSW.
Within 6 months of being approved by the Medical Council of NSW to commence employment, the practitioner is to spend a total of 10 observation sessions with his approved supervisor. A session is a period of at least 2 hours. 1. Initially, the practitioner is to spend a total of 5 sessions directly observing the supervisor conduct consultations with his/her patients. 2. The supervisor is then to spend a total of 5 sessions directly observing the practitioner conduct consultations with his patients. 3. When observing these consultations, the practitioner and supervisor are to consider such matters as: clinical performance, clinical decision making and judgement, treatment and referral of patients with mental health disorders, appropriate prescribing practices, patient follow-up and clinical outcomes. 4. Within 4 weeks of the completion of the observation sessions the practitioner is to provide a report to the Medical Council of NSW detailing the dates of attendance, what he learnt and how this will impact on his practice. In the report he should make reference to, but not restrict himself to the issues in the decision which led to the imposition of this condition. 5. Once the practitioner's report is written and before it is returned to the Medical Council of NSW he is to ensure that the supervisor reviews the practitioner's report and that the supervisor provides his or her own report to the Medical Council in which he or she comments on the content and authenticity of the practitioner's report, confirming the dates of attendance and setting out any concerns or other observations. The supervisor's report is to be provided to the Medical Council of NSW within 4 weeks of the completion of the observation period. 6. The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports.
To submit to an audit of his medical practice, by a random selection of 20 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 12 months from 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: appropriate prescribing practices, prescribing and treatment provided for mental health disorders, assessment of comorbid conditions, provisional diagnosis, differential diagnosis and investigation and management plans. 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.
To forward evidence to the Medical Council of NSW within 14 days of the date he recommences practice, that he has provided a copy of the decision which imposed these conditions to the Principal of the practice in any place that he works.
Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of the decision which imposed these conditions to the Principal of the practice in any place that he works.
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. Orders
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.

ANNEXURE 'B' MEDICAL COUNCIL OF NSW'S PROPOSED CONDITIONS - HOSPITAL WORK

To practise only in a Medical Council of NSW approved public hospital position as an intern or resident medical officer.
To obtain Medical Council of NSW approval prior to changing the nature or place of his practice.
To practise only when there is a senior practitioner or clinical supervisor on site.
Not to undertake locum positions.
To practise no more than 32 hours per week with no more than 8 hours in any 24 hour period.
Not to participate in any on-call roster or undertake over-time shifts.
Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW). 1. To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug by [insert date - generally 4 weeks from date of decision].
Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). 1. To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Act 1966 to prohibit him from possessing, supplying, administering or prescribing any Schedule 4 drug listed in Appendix D by [insert date].
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 workload; clinical performance; clinical decision making and judgement, medical record reviews; appropriate prescribing practices; patient follow-up and treatment of patients with mental health disorders (including the practitioner's involvement of senior clinical staff in the treatment of such patients). 2. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision which imposed this condition. 3. Not to practise until a supervisor has been approved by the Medical Council of NSW.
To forward evidence to the Medical Council of NSW within 14 days of the date he recommences practice, that he has provided a copy of the decision which imposed these conditions to the Director of Clinical Services and/or the responsible senior officer in any place that he works.
Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of the decision which imposed these conditions to the Director of Clinical Services and/or the responsible senior officer in any place that he works.
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. Orders
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.

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: 29 March 2021

Health Practitioner Regulation National Law Poisons and Therapeutic Goods Act 1966(NSW)

At a glance

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Before

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Judgment (21 paragraphs)

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Legislation Cited (4)

Cases Cited (7)

Cited By (3)