Goyer v Medical Council of New South Wales

NCAT Occupational|2022-05-12

The application for reinstatement

In the application which is the subject of this matter, which was filed in the Tribunal on 6 September 2021, the applicant seeks the following order: An order that the Applicant's registration as a medical practitioner be reinstated, pursuant to s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) (the National Law).
The application sets out the following grounds: On 12 August 2019, this Tribunal found the Applicant guilty of professional misconduct, within the meaning of s 139E of the National Law. On 24 December 2019, this Tribunal ordered that the Applicant's registration as a medical practitioner be cancelled. Additionally, pursuant to s 149C of the National Law, an order was made prohibiting the Applicant from making an application for review under s 163A of the National Law. Copies of the Tribunal's decisions of 12 August 2019 and 24 December 2019 are attached to this Application (and marked Annexure "A" and Annexure "B" respectively). Pursuant to s 163A(1)(b) of the National Law, the Applicant seeks a review of the Tribunal's cancellation order of 24 December 2019. Further, the Applicant seeks an order pursuant to s 163(1)(c) of the National Law that his registration be reinstated. The Applicant submits that he is now a fit and proper person to be engaged in the medical profession as a medical practitioner. The Applicant submits that he can be trusted to practise in a manner that conforms to the professional standards expected of a health practitioner, and in a manner that presents no risk to the safety of the public. The Applicant will file and serve written submissions and evidence in support of this Application in due course, including proposed conditions on the registration.

The Applicant's evidence

In his statement, dated 23 February 2022, the applicant said that he had taken steps to address the issues outlined by the 2019 Tribunal in its decisions. He said that he had taken steps to remedy the defects identified in his professional practices and his personal characteristics. He recognised that the process of remedying the practices and traits which had been criticised would be an ongoing process.
The applicant said that he had come to an understanding of the defects of the operational model under which he conducted MWI. He understands how that business failed in providing safe and appropriate patient care. He accepts that his record keeping was inadequate. He accepts that the medication he was prescribing posed potential danger to patients.
The applicant said that he would never again engage in telemedicine and would never again adopt a "modality of practice that failed to place patient care and treatment at its core".
The applicant said that he commenced therapy with Dr Hurrell, a psychologist, in 2021. He has found his regular sessions with Dr Hurrell useful in providing insights into the character traits and conduct which contributed to the events which led to his deregistration. In his treatment with Dr Hurrell, he is also learning strategies which will assist him to function in his practice in a considerate, patient focussed way. The applicant stated his intention to continue in his treatment with Dr Hurrell for as long as she recommends that it continue.
The applicant apologised for the conduct which led to his deregistration. In his statement, and in his oral evidence, he demonstrated a detailed understanding of what went wrong at MWI, and expressed contrition and remorse.
We accept the applicant's evidence. We note that the applicant demonstrated that he has overcome, to a considerable extent, the defensiveness that served him so poorly at the 2019 Tribunal hearings.
Dr Hurrell provided a report dated 12 February 2022. Dr Hurrell said that the applicant has demonstrated a high level of commitment and motivation in relation to the therapeutic process.
Dr Hurrell said that she is confident that the applicant accepts and understands the seriousness of his prior misconduct and its connection to the character defects identified by the 2019 Tribunal.
In Dr Hurrell's opinion, the applicant is at low risk of repeating the kind of behaviour which led to his deregistration. The applicant has demonstrated increasing self-awareness and a willingness and ability to change for the better.
Dr Hurrell said that, although the applicant acknowledged that he had an over-reliance on alcohol at times in the past, he does not currently have a problem with alcohol.
We accept Dr Hurrell's evidence. She was not required for cross-examination.
Dr Paisley, a psychiatrist, undertook an independent evaluation of the applicant for the purposes of this matter and provided a report dated 16 February 2022.
Dr Paisley said that the applicant was able to describe accurately what went wrong in the events leading to his deregistration. The applicant was able to identify the potential adverse outcomes for patients which could have resulted from the applicant's previous practice. Dr Paisley said that the applicant appeared genuinely remorseful and did not minimise or attempt to justify his conduct in any way. Dr Paisley could not detect any arrogance or defensiveness.
Dr Paisley said: I consider that Mr Goyer's intention to return to non-surgical cosmetic medicine is appropriate provided he is subjected to ongoing supervision and restrictions. His supervisor will need to monitor his business practices, prescribing habits and ensure that his patients are adequately evaluated and monitored. His clinical records will need to be reviewed on a regular basis to ensure acceptable standards are met. Non-surgical medicine is generally considered to be a low-risk area of medical practice and serious adverse outcomes are unlikely. If these conditions are met, Mr Goyer could not pose any significant risks to patient health and safety.
Dr Paisley suggested that Category C supervision would be appropriate.
In cross-examination before us, Dr Paisley was questioned about the applicant's past substance use and said that the applicant does not presently suffer from a substance use disorder. Dr Paisley said that the applicant does not have a personality disorder
We accept Dr Paisley's evidence.

The Council's Evidence

The Council provided an independent psychiatric report of Dr Samuels, dated 24 February 2022. Dr Samuels was not required for cross-examination.
Dr Samuels said that there was no clear cut evidence that the applicant is suffering from major depression, anxiety, psychosis or bipolar disorder. Dr Samuels acknowledged that the applicant may have had a Substance Use Disorder in the past, but Dr Samuels indicated that there is no evidence of current substance abuse by the applicant.
Dr Samuels acknowledged that the applicant was developing insight through his work with Dr Hurrell, and Dr Samuels recommend that the psychological treatment be on-going. Dr Samuels indicated that the applicant presented as being committed to ensuring that he never engages again in the kind of behaviour which could have an adverse impact on his professional practice.
Dr Samuels indicated that, if the applicant's practice was restricted to non-surgical cosmetic medicine, and if the applicant was supervised, audited and engaging in long-term therapy, any risk to the health and safety of any patient or the public would be addressed.
We accept Dr Samuel's evidence. Dr Samuels was not required for cross-examination.

Consideration

The Council submitted that there was a basis for concern that the applicant would be professionally isolated should he resume practice. The applicant, in his statement, said there had been an adverse response to him from members of the profession after the 2019 Tribunal's decisions were published. However, the applicant also spoke of his current business association with two doctors which has resulted in the production and marketing of a skin care range, in association with the cosmetic clinic managed by the applicant from premises owned by him. He also spoke of the Cosmetic Physicians College of Australasia, through which he can get access to collegial support.
We are confident that the applicant will be able to access sufficient collegial support, if re-registered and restricted to non-surgical cosmetic procedures, to avoid becoming isolated to the degree that his judgment is compromised. His continued work with Dr Hurrell will also help with this.
The Council raised a concern that the applicant may experience financial difficulties which may lead him to fail to prioritise the health and safety of his patients. The applicant gave evidence that he services a sizeable mortgage and has a debt from the operation of his business. We find that the evidence fell well short of establishing that the applicant's financial position is problematic, and certainly did not go so far as to indicate that it may influence him not to practise with integrity.
The Council raised concerns about the applicant's skill level, given that he will not have practised for about two years by the time he is re-registered. The applicant, in oral evidence, pointed to his experience performing non-surgical cosmetic procedures from 2009-2019. He rejected the concern that his skills may have declined, but, through his counsel, offered to undertake an observership.
The Council raised a concern about the adequacy of the applicant's note taking and note keeping.
Having regard to Dr Samuel's report, the Council neither consented to nor opposed the applicant's application. The Council, however, sought to have the applicant's practice restricted to a hospital setting.
Having regard to all of the evidence, we find that the applicant has demonstrated that, as at the date of the hearing of this application, he is no longer unfit to be registered as a medical practitioner, as long as that registration is subject to certain conditions. Those conditions will include conditions regarding an observership and the making and keeping of medical records.
We are confident that the applicant can now practise in the area of minor (non-surgical) cosmetic medicine in a manner which does not compromise the health and safety of the public, or place at risk the maintenance of the confidence of the public in the medical profession. We find that the applicant is now capable of practising in minor (non-surgical) cosmetic medicine in a way which conforms to the professional standards expected of a medical practitioner, and is highly motivated to do so.
We have considered the Council's submission that the applicant should practise at first in a hospital setting, but, having regard to the applicant's practising history, we consider that the objects of the National Law will be better served by having the applicant practise in the area in which he has some depth of experience, which is non-surgical cosmetic medicine.
We determine that the applicant is entitled to a reinstatement order.

Orders

We will make the following orders; (1) A reinstatement order under s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW) is made in respect of Thomas Clement Goyer ('the practitioner'), subject to the following conditions being imposed upon his registration: a) The practitioner must obtain the approval of the Medical Council of NSW ('the Council') prior to changing the nature or place of his practice. (b) The practitioner must restrict his practice to minor (non-surgical) cosmetic medical procedures as defined in the Medical Board of Australia's 'Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures'. (c) The practitioner must submit to an audit of his practice, by a random selection 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 6 months from his recommencement of medical practice and subsequently from time to time as may be required by the Medical Council of NSW. (ii) the auditor is to assess the practitioner's compliance with good medical record keeping standards, legislative requirements and compliance with the conditions to which the practitioner's registration is subject, (iii) the practitioner is to authorise the auditor to provide the Medical Council of NSW with a report on the auditor's findings. (iv) the practitioner is to pay all costs associated with the audits and any reports of the audits. (d) The practitioner may conduct consultations with patients in person only. The practitioner may not conduct any telephone or video consultations with any patient. (e) The practitioner is not to supervise or train any medical practitioner or medical student in any context. (f) The practitioner is not to possess, supply, administer or prescribe: (i) phentermine, (ii) diethylpropion, (iii) human chorionic gonadotropin, (iv) hormone replacement therapy and androgen modifiers. (g) The practitioner will practise under Category C 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 relevant review body. (i) The terms of the Medical Council of NSW's Compliance Policy - Supervision are varied so that: (A) the practitioner is required to meet with his Council approved supervisor fortnightly; (B) the practitioner must authorise the Council approved supervisor to forward a report to the Council (in a Council approved format) every month. (ii) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (A) clinical management and patient outcomes, (B) appropriate prescribing practices, (C) medical record documentation, (D) compliance with conditions, (E) progress with return to practice, (F) ethics in medical practice. (iii) the practitioner must authorise the Medical Council of NSW to provide the nominated and approved supervisor with copies of the conditions on the practitioner's registration, and of the decision of the Civil and Administrative Tribunal of New South Wales which resulted in the imposition of this condition. (iv) The practitioner must not practise unless and until a supervisor has been approved in writing by the Medical Council of NSW. (h) The practitioner must complete within 12 months of 7 September 2022 the Ethics Counsel Program for Health Professionals organised by the Ethics Centre and: (i) within two months of 7 September 2022, the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the Ethics Counsel Program for Health Professionals. (ii) within one month of completing the Ethics Counsel Program for Health Professionals, the practitioner must provide to the Medical Council of NSW documentary evidence that he has satisfactorily completed the Program, (iii) the practitioner is to pay all costs incurred in meeting this condition, provided that, in the event that the Ethics Counsel Program for Health Professionals is unavailable, the practitioner must, within two months of 7 September 2022 propose to the Medical Council of NSW a similar Ethics course as an alternative course and, in the event that the Medical Council of NSW approves the proposed alternative course, the practitioner may undertake that proposed alternative course in accordance with the provisions of this condition, in fulfilment of this condition. (i) The practitioner must, at his own expense, within one year of 7 September 2022 undertake both a course in relation to allergies and a course in relation to diabetes. Within one month of completing each of those courses, the practitioner must provide to the Medical Council of NSW documentary evidence that he has satisfactorily completed both courses. (j) Within 6 months of being approved by the Medical Council of NSW to commence employment, the practitioner is to spend a total of 4 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 2 sessions directly observing the supervisor conduct consultations with his or her patients. (ii) The supervisor is then to spend a total of 2 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. (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. (k) The practitioner must not prescribe for self-medication. (l) The practitioner must consult with a registered General Practitioner of his choice. The frequency of the consultations is to be determined by the treating General Practitioner. The practitioner: (i) is to authorise his General Practitioner to inform the Medical Council of NSW of any of the following: (A) any failure by the practitioner to attend a scheduled consultation, (B) termination of the doctor/patient relationship, (C) a significant change in the practitioner's health status (including a significant temporary change). (ii) must inform the Medical Council of NSW of the name of the General Practitioner and the address at which the General Practitioner practises. (m) The practitioner must attend for treatment by a registered psychologist of his choice. The frequency of the treatment is to be determined by the treating psychologist. The practitioner: (i) must authorise the treating practitioner to inform the Medical Council of NSW of each of the following: (A) any failure to attend for treatment, (B) the termination of treatment, (C) a significant change in the practitioner's health status (including a significant temporary change). (n) The practitioner must attend for review by a psychiatrist appointed by the Medical Council of NSW on a three monthly basis or as otherwise directed by the Medical Council of NSW. (o) The practitioner must attend a Review Interview arranged by the Medical Council of NSW on a three monthly basis or as directed otherwise by the Medical Council of NSW. (p) The practitioner must authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of the monitoring of compliance with these conditions. (q) The practitioner must provide evidence to the Medical Council of NSW, within 14 days of recommencing medical practise or changing his place of practice, that he has provided any practice or organisation in Australia at which he works with a copy of the full set of conditions to which his registration is subject at the relevant time. (r) The practitioner must authorise the Medical Council of NSW to notify any practice or organisation at which the practitioner works as a medical practitioner of any issues which arise in relation to the practitioner's compliance with these conditions. (s) In the event that the practitioner practises at any practice or organisation of which he is an owner, or the director of an owner, or of which his wife, or any first degree relative of his, is an owner or the director of an owner, the practitioner shall ensure that, within six months of him beginning to practise at that practice or organisation, the practice or organisation purchases, instals and uses for the generation and storage of all electronic medical records and the issuing of all prescriptions, software capable of recording and retaining the medical records of patients, with the appropriate measures to safeguard patient confidentiality, and capable of printing and recording prescriptions. (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 (NSW). (3) Sections 125, 126 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's place of residence is anywhere in Australia other than New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia (4) The practitioner must pay the legal costs of the Medical Council of New South Wales in this matter, to be agreed or assessed.

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: 07 September 2022

(F) ethics in medical practice. (iii) the practitioner must authorise the Medical Council of NSW to provide the nominated and approved supervisor with copies of the conditions on the practitioner's registration, and of the decision of the Civil and Administrative Tribunal of New South Wales which resulted in the imposition of this condition. (iv) The practitioner must not practise unless and until a supervisor has been approved in writing by the Medical Council of NSW. (h) The practitioner must complete within 12 months of 7 September 2022 the Ethics Counsel Program for Health Professionals organised by the Ethics Centre and: (i) within two months of 7 September 2022, the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the Ethics Counsel Program for Health Professionals. (ii) within one month of completing the Ethics Counsel Program for Health Professionals, the practitioner must provide to the Medical Council of NSW documentary evidence that he has satisfactorily completed the Program, (iii) the practitioner is to pay all costs incurred in meeting this condition, provided that, in the event that the Ethics Counsel Program for Health Professionals is unavailable, the practitioner must, within two months of 7 September 2022 propose to the Medical Council of NSW a similar Ethics course as an alternative course and, in the event that the Medical Council of NSW approves the proposed alternative course, the practitioner may undertake that proposed alternative course in accordance with the provisions of this condition, in fulfilment of this condition. (i) The practitioner must, at his own expense, within one year of 7 September 2022 undertake both a course in relation to allergies and a course in relation to diabetes. Within one month of completing each of those courses, the practitioner must provide to the Medical Council of NSW documentary evidence that he has satisfactorily completed both courses. (j) Within 6 months of being approved by the Medical Council of NSW to commence employment, the practitioner is to spend a total of 4 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 2 sessions directly observing the supervisor conduct consultations with his or her patients. (ii) The supervisor is then to spend a total of 2 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. (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. (k) The practitioner must not prescribe for self-medication. (l) The practitioner must consult with a registered General Practitioner of his choice. The frequency of the consultations is to be determined by the treating General Practitioner. The practitioner: (i) is to authorise his General Practitioner to inform the Medical Council of NSW of any of the following: (A) any failure by the practitioner to attend a scheduled consultation, (B) termination of the doctor/patient relationship, (C) a significant change in the practitioner's health status (including a significant temporary change). (ii) must inform the Medical Council of NSW of the name of the General Practitioner and the address at which the General Practitioner practises. (m) The practitioner must attend for treatment by a registered psychologist of his choice. The frequency of the treatment is to be determined by the treating psychologist. The practitioner: (i) must authorise the treating practitioner to inform the Medical Council of NSW of each of the following: (A) any failure to attend for treatment, (B) the termination of treatment, (C) a significant change in the practitioner's health status (including a significant temporary change). (n) The practitioner must attend for review by a psychiatrist appointed by the Medical Council of NSW on a three monthly basis or as otherwise directed by the Medical Council of NSW. (o) The practitioner must attend a Review Interview arranged by the Medical Council of NSW on a three monthly basis or as directed otherwise by the Medical Council of NSW. (p) The practitioner must authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of the monitoring of compliance with these conditions. (q) The practitioner must provide evidence to the Medical Council of NSW, within 14 days of recommencing medical practise or changing his place of practice, that he has provided any practice or organisation in Australia at which he works with a copy of the full set of conditions to which his registration is subject at the relevant time. (r) The practitioner must authorise the Medical Council of NSW to notify any practice or organisation at which the practitioner works as a medical practitioner of any issues which arise in relation to the practitioner's compliance with these conditions. (s) In the event that the practitioner practises at any practice or organisation of which he is an owner, or the director of an owner, or of which his wife, or any first degree relative of his, is an owner or the director of an owner, the practitioner shall ensure that, within six months of him beginning to practise at that practice or organisation, the practice or organisation purchases, instals and uses for the generation and storage of all electronic medical records and the issuing of all prescriptions, software capable of recording and retaining the medical records of patients, with the appropriate measures to safeguard patient confidentiality, and capable of printing and recording prescriptions. (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 (NSW). (3) Sections 125, 126 and 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst the practitioner's place of residence is anywhere in Australia other than New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (4) The practitioner must pay the legal costs of the Medical Council of New South Wales in this matter, to be agreed or assessed. Catchwords: OCCUPATIONS - Medical practitioners - application for reinstatement of registration Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 Health Care Complaints Commission v Goyer (No 2) [2019] NSWCATOD 195 Qasim v Medical Council of New South Wales [2021] NSWCA 173 Category: Principal judgment Parties: Thomas Clement Goyer (applicant) Medical Council of NSW (respondent) Representation: Counsel: P Dwyer (applicant) A Petrie (respondent)

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (3)