On 8 February 2016, orders were made in disciplinary proceedings against the applicant practitioner (Health Care Complaints Commission v Ghannoum (No 2) [2016] NSWCATOD 17). The orders made by the Tribunal included order 7, which is:
"The conditions contained in orders 3.1, 3.2, 3.5(i), (ii), (iii) and (iv) are critical compliance conditions contravention of which will result in the respondent's [the applicant herein] registration being cancelled."
Order 3.5(iii) made by the Tribunal on 8 February 2016 required the applicant to:
"Attend at least one continuing medical education course each month whilst registered to practice."
By a letter dated 17 February 2016, the Medical Council wrote to the applicant and identified critical compliance conditions and notified the applicant of the consequences of breaching critical compliance conditions.
The applicant failed to provide evidence to the respondent that he attended a continuing medical education course in the month of December 2016 or the month of January 2017. It is common ground that he did not attend an education course in either of those months.
The power to make critical compliance orders is in s 149(4)(A) of the Health Practitioner Regulation National Law (NSW) ("the National Law").
The delegates of the Medical Council conducted a hearing on 11 July 2017 into the issue of whether the practitioner had contravened the relevant condition of his registration. The Council, by its delegates, decided that the practitioner had breached critical compliance condition in both December 2016 and January 2017 and pursuant to s 150(3) of the National Law, the Council therefore suspended the practitioner's registration and referred the matter to the Tribunal as a complaint. These steps were required by the National Law.
The powers of the Tribunal dealing with that complaint are specified in s 149C(iii) of the National Law, which provides:
(iii) The Tribunal must cancel a registered health practitioner's … registration if the Tribunal is satisfied that the practitioner … has contravened a critical compliance order or condition.
Ghannoum v Medical Council of NSW [2018] NSWCATOD 118 | Case summary | Zoe
Accordingly on 4 December 2017 there was a hearing of the Tribunal in respect of a complaint by the Medical Council that the applicant practitioner had contravened a critical compliance order. The Tribunal, as is required by the legislation, cancelled the applicant's registration and made an order that the respondent may not apply for a review of the decision until after 11 January 2018.
On 6 February 2018, the applicant filed his application for a review of the cancellation decision.
This was the hearing of that application.
[2]
The Evidence
The evidence comprised the following:
1. 24 documents in a tabulated and indexed volume filed by the respondent Medical Council on 18 April 2018.
2. The applicant's Application filed 6 February 2018.
3. 11 certificates certifying completion of continuing medical education courses by the applicant in the period from 26 November 2016 and throughout the period January 2018 to April 2018.
4. Further medical report by Dr Ralf Ilchef.
5. Letter of 23 April 2018 from Dr George Al-Horani (owner of the Dutton Street Medical Centre), an employer of the applicant.
6. Further letter of same date by Dr Al-Horani.
7. Accreditation Certificate for Dutton Street Medical and Dental Centre from Australian General Practice Accreditation Limited certifying accreditation until July 2019.
8. Letter of 23 April 2018 from practice manager of Dutton Street Medical and Dental Centre.
9. Letter of 23 April 2018 from Dr Mohamad Mourad, a visiting specialist of the Dutton Street Medical and Dental Centre.
10. Letter of 23 April 2018 from Rosemary Qummouh, a mental health social worker at the Dutton Street Medical and Dental Centre.
11. Letter of 29 January 2018 from Dr Al-Horani.
12. Incomplete application by the practitioner to the Royal Australian College of General Practitioners to enter into the Specialist Pathway Program dated 14 February 2017.
13. Applicant's receipt from AHPRA for his registration fees paid on 27 September 2016 for the 2016/2017 year.
14. Copy of conditions of registration.
15. Letter of 14 February 2017 from Dr Al-Horani to Royal Australian College of General Practitioners Fellowship Services supporting the applicant's proposed entry into the Fellowship Program College Fellowship Exams.
16. The practitioner's Certificate of Membership of the Australian Medical Association dated August 2013.
17. Certificate of the practitioner's registration with the NSW Medical Board of 28 June 1995.
18. Certificate of the practitioner plus the examinations conducted by the Australian Medical Council.
19. Receipt for payment to the Royal Australian College of General Practitioners in October 2016 for assessment.
20. Undated Certificate of the Australian Medical Association certifying that the applicant has been "a member in good standing since 1997" and "has fulfilled the objectives of the Association and abided by its Code of Ethics".
21. Certificates of Completion for five continuing medical education courses completed by the applicant in May 2018.
22. Letter dated 26 April 2018 by the practitioner to the Tribunal.
23. Copy of Orders of 9 March 2018.
24. Copy of letter of 9 March 2018 from the Tribunal to the applicant notifying him of directions made that day.
[3]
Relevant Law
In s 163 of the National Law, the legislature deals with the issue of the appropriate review body to conduct this review. There being no provision in the order that it may be reviewed by the Council and no application by the applicant submitting that the appropriate review body is the Council or the National Board, para 163(1)(c) applies and the Tribunal is the appropriate review body.
Section 163A(1)(b) provides that in this circumstance the applicant can apply to the appropriate review body for a review of the cancellation order (See also para 163A(4)(e)).
The powers of the appropriate review body when conducting an enquiry into an application for review are set out in s 163B(1) and include the power to make a reinstatement order.
In s 163B(3) "reinstatement order" is defined as an order that the person may be registered in accordance with Part 7 of the National Law if:
(a) the person makes an application for registration to the National Board; and
(b) the relevant National Board decides to register the person.
Under s 163B(4) the appropriate review body may also impose additional conditions on the respondent's registration or alter the conditions that already apply.
Section 163C(1) provides that a review is a "review to determine the appropriateness, at the time of the review of the order concerned." It is not to review the decision to make the order, or any findings made in connection with the making of that decision. (s 163C(2)).
Section 163B(1) provides:
The appropriate review body must conduct an inquiry into an application for review and may then do any of the following:-
(a) dismiss the application;
(b) make an order ending or shortening the period of the suspension concerned;
(c) make a reinstatement order;
(d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions;
(e) make an order:
(i) ending or shortening the period of a prohibition order; or
(ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions.
The ultimate decision issue in this application is "whether the Tribunal can conclude on the basis of the evidence that an applicant is now a fit and proper person to be restored to the register", even though the making of the reinstatement order is not directly re-registration. It places the successful applicant with a group of people who may seek registration through the National Board.
The applicant's position is different to most practitioners making such an application in that the cancellation of his registration came about automatically. The Council and the Tribunal exercised powers they were required to exercise under the National Law. They had no discretion.
In addition, the position of the Council is the respondent has reserved its position and currently neither opposes nor consents to the application.
[4]
Consideration
At the time of the hearing it was 28 months since the conditions were imposed on the applicant's registration by the Tribunal in February 2016.
The evidence does not disclose any other breach of the conditions of his registration or any other complaint about his conduct (since the orders imposing the conditions) as a medical practitioner or otherwise.
The evidence is that since January 2017 the applicant has complied with the condition relating to continuing Medical Education and has also attended additional courses.
The particular breaches, in terms of the protection of the public, are not serious, being only two occasions when he failed to attend a course.
Since the Medical Council suspended the practitioner's registration on 11 July 2017 it is already nearly 12 months. If the practitioner succeeds in his application for his registration to be restored, it will take some further months to make his application and supporting material and for the application to be decided. The long period of the suspension will be a very serious deterrent to the applicant and other practitioners whose registration includes conditions, especially critical compliance conditions.
In all the circumstances, the Tribunal has concluded that the applicant should have the opportunity to seek Registration and therefore should have a reinstatement order.
[5]
Costs
These proceedings became necessary because of the non-compliance of the applicant with a critical compliance order. The legislation compelled the respondent to suspend the practitioner's registration and then to make the complaint to the Tribunal. The Tribunal was then required by the legislation to cancel the applicant's registration.
If the applicant had complied with the conditions of his registration the applicant would not have needed to make this application.
The Tribunal's power to award costs is in cl 13 of Sch 5D of the National Law. It provides that generally costs follow the event. (See Health Care Complaints Commission v Philipiah [2013] NSWCA 342). In these proceedings the applicant sought an order for reinstatement and in that regard succeeded.
But the respondent Medical Council seeks an order that the applicant pay the respondent's costs of these proceedings.
The respondent did not oppose the application for a reinstatement order. The Tribunal is satisfied that because the proceedings would not have occurred if the applicant had complied with the critical conditions of his registration, that is a circumstance that justifies departure from the usual rule and there should be an order for the applicant to pay the respondent's costs of these proceedings.
[6]
Comment
The practitioner obtained general registration in June 1995 and practised solo in June 2009. From June 2009 to August 2010 because of severe depression and anxiety he did not practise. In July 2016 there was a complaint about the practitioner prescribing benzodiazepines and codeine based analgesics irresponsibly. In November 2009 the practitioner consented to the imposition of conditions on his registration, principally prohibiting him from prescribing, possessing, supplying, administering, handling or dispensing any Sch 8 or 4D drugs.
After he resumed work it was discovered that he had prescribed such drugs between May 2011 and April 2012. Subsequently his registration was subjected to additional conditions for supervision and for assessments by a council appointed psychiatrist.
In 2015 the practitioner was admitted to the Council's health Program. Disciplinary proceedings were also commenced against the practitioner in March 2015 by the Health Care Complaints Commission in the Tribunal in March 2015. The decision was given on 8 February 2016. It continued conditions regarding Sch 8 and 4D drugs, conditions for his practice of medicine to be supervised, conditions that required him to practice in a group practice and attend for treatment by a GP, a psychiatrist and a psychologist, conditions requiring him to join the Royal Australian College of General Practitioners, while registered to attend at least one continuing medical education course each month, and become a fellow of the Royal Australian College of General Practitioners.
Some of the conditions were nominated as critical compliance conditions, the breach of which would under the National Law cause his registration to be cancelled.
The practitioner breached critical compliance condition 3.5(iii) of the conditions by failing to attend a continuing medical education course in each of December 2016 and January 2017. The breach of the condition in December was less than 11 months after the critical compliance order was made. In July 2017 there was a s 150 inquiry and in accordance with the requirements of the National Law the delegates resolved that the practitioner's registration be suspended and a complaint be made to the Tribunal. On 5 January the Tribunal, as required by the National Law, cancelled the practitioner's registration.
The Tribunal expresses its concern at the practitioner's professional and other difficulties which may render him unsuitable for registration.
[7]
Orders
The orders of the Tribunal are:
1. There is a reinstatement order in favour of the applicant and he may be registered in accordance with Part 7 of the National Law subject to the conditions in s 163B(3) of the National Law.
2. The applicant must pay the respondent's costs of or incidental to the proceedings as agreed or as assessed.
[8]
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
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Decision last updated: 01 August 2018