The grounds for the application are set out, in their final and amended form, at page 55 of exhibit A1. The document is titled "General Practice Re-Entry Plan". That document relevantly provides the following evidence which we summarise as follows.
The Applicant set out detail of his personal background, his practice history and his educational achievements. He recorded the decision of the Tribunal on 9 June 2021 which cancelled his registration. He set out his education activities during the period of his cancellation. He stated that he had undertaken psychological counselling with Mr Warwick McClelland. He had attended group sessions monthly with mental health professionals.
The Applicant set out his intended employment/practice location, as being the South Grafton Medical Centre, where he proposed to work four days per week undertaking broad scope General Practice. He has completed a Working With Children Check. He proposed a supervisor who he believed would be accepted by the Medical Council as acceptable. He advised us in his oral evidence that the proposed supervisor was no longer available, however, he understood that should we grant his application he would need to obtain the services of an acceptable supervisor in order to satisfy a condition which we would impose on his registration. He understood an hourly fee would be required to be paid to his supervisor to compensate the supervisor for the time to be devoted to assisting the Applicant to comply with the "Supervision Condition".
The Applicant attached to his Re-Entry Plan document numerous other documents, most of which evidenced additional educational activities he had undertaken. There were others which we will refer to hereafter.
Included in his evidence, the Applicant included a letter dated 5 June 2023 from Ms Louise Carter, the practice manager of the South Grafton Medical Centre. That letter advises that the Applicant has a work position available at that practice as soon as he is permitted to practise. The following was included in the letter: "As you are aware, Dr Hart previously consulted three days per week at South Grafton Medical Centre from October 2019 until 2021. He has been greatly missed by all his patients, colleagues and staff".
The Applicant also included a letter from Warwick McClelland, Clinical Psychologist, Coffs Psychology and Neurotherapy. That letter is dated 11 May 2023. It advised, inter alia, that the Applicant had presented to psychological intervention on 7 December 2021. The letter includes the following:
"Over the course of our discussions in 2022, John was able to clearly identify the mistakes he had made that led to his de-registration. He disclosed that he could see that the evidence base he initially perceived to be appropriate for his peptide prescribing, was, in fact, inadequate for the standards of the medical profession. After completing his own personal, reading and research, John conceded that he had provided inadequate medical care due to deficits in informed consent and history-taking. Furthermore, he acknowledged that the aforementioned failures exposed his patience to potential risk. I was in turn impressed by John's proactive decision to share his medico-legal research on record-keeping, informed consent, billing practices, prescribing medications, and referring to specialists, to his GP colleagues at South Grafton Medical Centre, and CHC Medical in Coffs Harbour.
It is my impression that John has approached his period, away from the practice of medicine, with intense internal reflection, a commitment to filling the gaps in his education and knowledge, and with a renewed dedication to being the best possible General Practitioner he can be. He has taken up Masters level study in chronic pain, and has read extensively on developmental and complex trauma in order to better inform his future general practice of medicine.
I have no hesitation in providing my complete support to John in his application for re-registration and have the utmost confidence he will be a much better GP as a consequence of his significant personal growth and learning over the past two years."
Correspondence from the manager of the South Grafton Medical Centre confirms the Applicant worked in that practice from 21 October 2019 until 9 June 2021 (the date of the cancellation of his registration).
The Re-entry Plan document also sets out an assertion that the Applicant does not suffer from an impairment which might affect his practice of medicine. In support of that assertion, the Applicant relied upon a letter from his personal GP Dr Phillip Whish-Wilson. That letter is dated 13 March 2023 and states that the Applicant has been a patient for over three years and is "currently fit and well".
The Applicant informed us that he is the holder of a NSW Rural Doctors Network Scholarship. He said that provided funding of $10,000 per year to meet the cost of undertaking the Royal Australian College of General Practitioners qualification course.
[2]
Oral evidence of the Applicant
The Applicant gave oral evidence. When asked if the documents which he had tendered for our consideration (as identified above) were accurate, the Applicant told us that his proposed supervisor was no longer able to supervise him.
The Applicant was cross-examined by counsel for the Medical Council and then answered questions the members of the Tribunal asked him. We have noted the following, in particular, from his oral evidence.
The Applicant addressed the identified deficiencies of his clinical competency and ethical practice. Both those deficiencies were identified in the decision of the Tribunal which ordered the cancellation of his registration.
The Applicant said he agreed with the Tribunal findings that when he made the decision to be involved with peptide prescription his clinical competence was inadequate. He said he has taken steps to remedy that inadequacy. He has undertaken extensive additional instruction in medical science and procedures. He has also undertaken study in pain management, an area of medicine which particularly interests him. He has completed instruction as a Lifeline counsellor. He has been asked to take on a role as a student mentor with Lifeline, since he has been working as a volunteer there.
The Applicant has completed training courses which addressed topics such as informed consent, record keeping and prescribing. Following that training he presented information sessions to the local GP practices in which he had previously worked. This all occurred post cancellation of his registration.
The Applicant described himself as being in a "different place in relation to competency" than he was in 8 to 10 years ago.
The Applicant described the additional personal reading and research he had undertaken since June 2021. He has researched the available literature on the topic of PTSD arising from childhood experiences. He has undertaken some training in the techniques to manage nervous symptoms arising from a traumatic experience. He has read literature which addresses the benefits of exercise and yoga in the treatment of some medical conditions. He became a yoga instructor. He has researched the most recent approaches to the treatment of chronic pain.
The Applicant has a personal goal to complete a Masters Degree on the topic of pain management.
In relation to self-education on the topic of prescribing medication, the Applicant said he had completed 27 of 28 modules in the National Prescribing Curriculum.
When asked to do so, the Applicant told us what he had learned from completing the course on patient informed consent. He told us of those matters which included an assessment of the capacity of the patient to understand what they were consenting to and a need to note who was present when the informed consent was sought and given. He has learnt to develop or use a document which addresses different medical treatments and investigations. He has learned to ensure that is signed by the patient.
In relation to matters of ethical concern in medical practice, the Applicant said he has addressed the circumstances in which he had undertaken unethical conduct. He has worked with his chosen psychologist. He has been employed by the NSW Department of Health as a call centre operator and that has illustrated for him the type of help the elderly really need.
With all the adverse events which the Applicant has suffered in the last 10 years, the Applicant was led to undertake a self-discovery/diagnoses. Those adverse events included having been made bankrupt, being the subject of a Tribunal finding of unsatisfactory professional conduct and professional misconduct which gave rise to the cancellation of his registration. He suffered the consequent loss of his practice and his reputation as a medical practitioner. He has now retrained himself to undertake self-analysis to see his role in life and the world he lives in. He has determined he was very ego driven and he was exercising that ego in the manner he was practising medicine. He assured us he has changed that. He told us he wants to be a good contributor to his community. He maintained he has changed the way he thinks.
The Applicant was asked to identify why he was found to have unsatisfactory professional conduct and professional misconduct, which he was able to do quickly and without hesitation. He clearly accepts the findings which were made against him by the Tribunal. He said: "Patient safety was not being attended to. There was no adequate examination of the patients and their medical needs. There was no follow-up with patients. The record keeping was inadequate. There was a conflict of interest which was not disclosed to relevant patients. I was practising outside of the Good Practice guidelines. I made false and misleading statements to the HCCC and the Medical Council. I lacked insight in working in the peptide world."
Since the June 2021 cancellation of his registration, he has been working as a volunteer with Lifeline. He has found that work helpful in the exercise of his own self-reflection. He has been able to become more aware of patients' insight. He has benefited from his own psychological therapy and also benefited from the group sessions he has attended in Coffs Harbour. He has taken up the practice of meditation which he finds beneficial.
If reinstated to practice, he told us he and his partner, will move to live permanently in the area he proposes to practise, namely South Grafton. This is the same area he worked in for two years before the cancellation order was made.
As set out earlier, the Applicant was asked about his willingness to accept the conditions proposed by the Medical Council should he be reinstated. He said he would comply with the conditions. He pointed out two of the conditions which may prove problematic because of the practicalities associated with his proposed place of practice. We have detailed those earlier in these reasons.
The Applicant was asked if he envisaged any emotional issues for himself in returning to practice in the same area he practised in before the cancellation. He appreciated that many patients would know he had been disqualified as a doctor, however, he said he felt supported by the congeniality of his fellow practitioners in the practice and the district. He has been told that many of his former patients are eager for his return.
When asked by the Tribunal members to speak to how the Tribunal can be assured that he will not come to the notice of the Medical Council or the Tribunal for adverse conduct in the future, the Applicant said: "I will be keeping on the straight and narrow. I am not going to do this again". He told us his partner is a counsellor with post graduate qualification and she will support and counsel him as he returns to practice.
The Applicant informed us he had undertaken therapy with his psychologist for 18 months in 2022 and 2023. He attended monthly.
The Applicant explained he had undertaken the Hotel Doctor employment and the practice in peptides as additional work, outside of his then primary practice, in order to earn additional income to meet his financial burden. That ultimately failed to clear his debts and he filed for voluntary bankruptcy after he had exhausted all avenues to pay his debts.
Arising from the inclusion of a reference to the use of medicinal cannabis in the documents before us, the Tribunal asked the Applicant a question about his intention to prescribe cannabis. He said he did not propose to do so. He said he has insight into the industry. His own view is that the evidence claimed to support the use of medical cannabis is not good (he said it does not "stack-up") and he is concerned people will become addicted to the medication.
One of the Tribunal members asked the Applicant what course he had undertaken in relation to ethics. He said he had completed an online course with Avant which required 5 or 6 hours of work. He had also completed an online course with Think GP. If required to do so he would undertake a further ethics course as a requirement of any condition imposed on his registration.
The Medical Council undertook to provide the Tribunal with a proposal for the wording of a condition which would require the Applicant to undertake an ethics course approved by the Medical Council. The Medical Council did provide that wording to the Tribunal and to the Applicant. The proposed wording is as follows:
"To complete within X months of the [date of decision] a Council-approved tailored education program with a focus on [topic/s].
a) Within 2 months of the [date of the decision] the practitioner must submit for Council approval, a copy of the proposed tailored education program developed in consultation with an education provider and/or Medical Indemnity Insurer. The program must include:
a. An outline of all learning activities/capabilities with respect to [topic/s]
b. The duration, start and end dates and delivery method
c. Method of assessment for successful completion of the course
b) The education program must be approved by Council, prior to commencement of the program.
c) Within 1 month of completing the abovementioned Council-approved education program, the practitioner must provide:
a. Documentary evidence to the Council of their satisfactory completion
b. A reflective report outlining and demonstrating how the practitioner will implement their learnings into their future medical practice.
d) The practitioner is to bear responsibility for any costs incurred in meeting this condition."
[3]
Credit and presentation of the Applicant
The Applicant appeared for himself. He presented in a reserved and respectful manner. He was even tempered and emotionally unaffected by the cross-examination undertaken by the counsel for the Medical Council. He presented as contrite and expressed remorse for his prior professional misconduct, as found by the Tribunal which cancelled his registration. There was nothing about his presentation or his evidence, in this hearing, which led us to be concerned about his veracity.
[4]
Consideration and Determination
We have concluded that the Applicant should be permitted to apply for reinstatement as a registered medical practitioner subject to the conditions which the Medical Council has suggested and which the Applicant has agreed he would accept.
We have kept in our minds the seriousness of the Applicant's established professional misconduct, as found by the Tribunal and summarised by that Tribunal in its Stage 2 decision. Although we have included this passage earlier in this judgment, we restate it here for emphasis:
"The seriousness of the misconduct including the complete disregard for patient safety; his inclination to practise medicine outside accepted guidelines; his limited insight as to his motivation; the false and misleading statements he made to the HCCC and the Medical Council and his failure to change aspects of his behaviour despite being alerted to his deficiencies persuade us that there would be a risk to the health and safety of the public if he continues to practise, even with conditions. These matters together with confidence in the standards of the medical profession require that Dr Hart's registration be cancelled. Because of the seriousness of the misconduct, he cannot apply for reregistration for two years."
Given the seriousness of the professional misconduct, which led to the cancellation of the Applicant's registration, we have paid close attention to the evidence which the Applicant says establishes he has reformed and that he is now fit to be registered as a medical practitioner and to practice competently, safely and ethically.
We have considered and weighed all of the evidence of the parties in this hearing. We have had regard to the written and oral submission made by each. We have concluded as follows.
We find that the Applicant is now a person fit to practice as a medical practitioner who will uphold the high expectations of the public to practice competently, ethically, safely and with the best interests of his patients in the forefront of his mind. In so finding we have accepted the evidence of the Applicant as set out in these reasons. We are satisfied that the Applicant has undertaken a course of conduct, since the cancellation of his registration, designed to develop in him, enhanced medical knowledge and skill together with insight into the reasons he was found guilty of unsatisfactory professional conduct and professional misconduct. We are satisfied he has that insight and is dedicated to ensuring he will not ever come to the notice of the Medical Council or other relevant authority for unsatisfactory, or unethical medical practice. We conclude he is now able to practice medicine competently and safely. As can be seen in the evidence he provided to the Tribunal, he has undertaken extensive further medical education, since his cancellation. The Medical Council has not raised criticism of the Applicant's current skill level to practise medicine.
In paragraph 18 of this judgment, we set out the issues which the Medical Council submitted would be addressed by the Tribunal in this hearing and determination. Having regard to those identified issues we find:
1. The Applicant has demonstrated an understanding of and insight into the deficiencies identified in his practice and associated conduct including his unethical conduct.
2. The CPD courses and learning undertaken by the Applicant since his disqualification covered a wide range of medical education, all of which, it seemed to us, would be germane to the future practice of the Applicant.
3. The Applicant provided evidence in relation to his proposal to return to practice should he gain registration. He intends to practise in South Grafton with practitioners who are all known to the Applicant and all of whom, he considers, supportive of his return to medical practice.
4. We are satisfied that with appropriate support and the attachment of conditions to his registration, the Applicant will not present any appreciable risk to public safety, should he return to practice.
5. We have confidence that the Applicant will comply with conditions imposed upon his registration. He has told us he intends to do all things necessary to ensure he does not present with adverse notice as a result of his future practice. The Applicant clearly acknowledges the immense impact upon himself and his family arising from his professional misconduct and the subsequent cancellation of his registration.
Although we anticipate the Applicant does have sufficient insight into the ethical requirements of medical practice, we do have some concern as to how well entrenched the relevant principles of ethical practice are now resting with the Applicant. Consequently, we propose to require, as a condition of practice, that he undertake further approved instruction in the principles of medical ethical practise. The Medical Council undertook to provide the Tribunal and the Applicant with the wording for such a condition. That wording has been supplied and is as follows:
"To complete within X months of the [date of decision] a Council-approved tailored education program with a focus on [topic/s].
a) Within 2 months of the [date of the decision] the practitioner must submit for Council approval, a copy of the proposed tailored education program developed in consultation with an education provider and/or Medical Indemnity Insurer. The program must include:
a. An outline of all learning activities/capabilities with respect to [topic/s]
b. The duration, start and end dates and delivery method
c. Method of assessment for successful completion of the course
b) The education program must be approved by Council, prior to commencement of the program.
c) Within 1 month of completing the abovementioned Council-approved education program, the practitioner must provide:
a. Documentary evidence to the Council of their satisfactory completion
b. A reflective report outlining and demonstrating how the practitioner will implement their learnings into their future medical practice.
d) The practitioner is to bear responsibility for any costs incurred in meeting this condition."
In relation to the further condition to address a requirement for the Applicant to undertake a course of instruction in ethics, we have determined the condition should be worded as follows:
To complete within 3 months of the date of reinstatement as a registered medical practitioner, (or such later date as the relevant officer of the Medical Council of New South Wales may require), a Council-approved tailored education program with a focus on ethics.
a) Within 2 months of the date upon which the practitioner makes application for registration, the practitioner must submit for Council approval, a copy of the proposed tailored education program developed in consultation with an education provider and/or Medical Indemnity Insurer. The program must include:
a. An outline of all learning activities/capabilities with respect to ethics.
b. The duration, start and end dates and delivery method.
c. Method of assessment for successful completion of the course.
b) The education program must be approved by Council, prior to commencement of the program.
c) Within 1 month of completing the abovementioned Council-approved education program, the practitioner must provide:
a. Documentary evidence to the Council of their satisfactory completion;
b. A reflective report outlining and demonstrating how the practitioner will implement their learnings into their future medical practice.
d) The practitioner is to bear responsibility for any costs incurred in meeting this condition.
The Medical Council has applied for an order that the Applicant pay the Medical Council costs pursuant to Clause 13, Schedule 5D of the National Law, as agreed or assessed. In support of that application the Medical Council submits:
"The Medical Council has properly appeared as respondent to this application. There is nothing in the conduct of this matter that warrants displacing the usual order that costs should be paid by the applicant. The applicant should be ordered to pay the respondent's costs."
The Medical Council relies on decisions of the Tribunal as we have set out earlier. The Applicant submitted he is impecunious and does not have the financial capacity to meet the expected costs of the Medical Council.
The NSW Court of Appeal has stated that costs are awarded to compensate the successful party and accepted that as a general rule, costs of proceedings before the Tribunal should follow the event. See Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42] - [46]. That approach is generally only displaced where there has been some disentitling conduct by the successful party. See Health Care Complaints Commission v CSM [2016] NSWCATOD 125 at [98].
The capacity of the Applicant to pay the costs of the Medical Council has not been the subject of any specific evidence in this hearing. Although there is an available inference that the Applicant would be in financial hardship should he be required to pay the anticipated costs of the Medical Council, we are not in a position to make a positive finding in relation to same.
In Health Care Complaints Commission v Morsingh (No 2) [2023] NSWCATOD 183, the Tribunal set out the following in relation to the principles to be applied to the determination of a cost application.
"Legal principles
3. The Tribunal's power to award costs in these kinds of proceedings is set out in Clause 13 to Schedule 5 of the National Law:
13 Tribunal may award costs [NSW]
(1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal.
(2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect.
(3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate.
(3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
(4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
4. This provision gives the Tribunal a discretionary power to make a costs order: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. The discretion must be exercised on a principled and judicial basis. Costs are compensatory for the successful party in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [44].
5. The general rule is that costs follow the "event" unless justice requires a different approach: Furber v Stacey [2005] NSWCA 242. The question as to who is the successful party "in the event" is not always straight forward. In any particular case there may be a number of events: Galati v Deans (No 3) [2018] NSWSC 1861 at [18]. Ward CJ in Eq went on at [19] to suggest a "helpful approach" to identifying the "event":
"As I have noted in other cases, a helpful approach to that question is that which was suggested by the English Court of Appeal in Roache v News Group Newspapers Ltd [1998] E.M.L.R. 161 at 168-169. There, the question as to who was to be seen as the successful party "in the event" was posed as being a question as to "who, as a matter of substance and reality, has won? Has the plaintiff won anything of value which he could not have won without fighting the action through to a finish? Has the defendant substantially denied the plaintiff the prize which the plaintiff fought the action to win?"
6. While the event may extend to any disputed question of fact or law, the generally accepted approach is that the event is the event of the claim. The claim in this case is two complaints: that Mr Morsingh is guilty of unsatisfactory professional conduct and that he is guilty of professional misconduct. Generally, a successful party should be awarded the whole costs of the proceedings, including the costs relating to issues on which it has failed: Windsurfing International Inc v Petit (1987) AIPC 90-441 at 37,861-37,862.
7. However, where a successful party has failed on issues of substance, especially where those issues have taken a substantial proportion of the hearing time, the Tribunal may depart from the general rule: James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [31] - [36].
8. In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [49] - [50] Basten JA identified two factors, relevant in this case, which militate against the successful party (assuming that is the Commission) recovering all its costs. The first factor is where the Commission is successful in obtaining findings of unsatisfactory professional conduct, but not professional misconduct. In that case, Basten JA held at [49] that, in the circumstances of that case:
"It is not correct to apportion costs equally between the dismissal of the complaint with respect to professional misconduct and the upholding of the other complaint. The factual basis for each complaint was the same: the proper characterisation of the legal consequences of the findings of fact was a discrete issue, involving a relatively small proportion of the time at the hearing and submissions and on which the Commission was partly successful and partly unsuccessful. Any reduction in costs on account of the part on which it was unsuccessful would be relatively minor."
9. The second factor is where the Commission fails to establish each of the particulars pleaded. Basten JA held at [50] that, in the circumstances of that case:
This aspect is not to be assessed by a numerical calculation of the number of paragraphs of the particulars which were upheld and the number which were rejected. Nor would failure to establish some particulars necessarily result in any diminution in the costs payable to the Commission. However, where it can be said that discrete elements of the conduct complained of were not established, it may be appropriate to reduce the costs to be recovered by the Commission.
10. The onus is on the unsuccessful party to satisfy the Tribunal that it should not apply the general rule that costs follow the "event": Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]."
The mere impecuniosity of the unsuccessful party does not provide sufficient reason for departing from the usual rule. See Health Care Complaints Commission v Philipiah [2013] NSWCA 342 [42]. Similarly, the fact that the Appellant was unrepresented before the Tribunal has been found to be no answer against the award of costs in the Medical Council's favour.
In Waterman v Gerling (Costs) [2005] NSWSC 1111 at [10] Brereton J stated:
"10 The starting point is that the plaintiff, having been successful, is entitled to his costs. It is for the defendants to establish a basis for departing from that rule. A successful plaintiff who has failed on certain issues may be deprived of costs on those issues, or even ordered to pay the defendant's costs of them [Hughes v Western Australia Cricket Association Inc (1986) ATPR 40-748, 48, 136]. But this course, while open, is one on which the court embarks with hesitancy [Mobile Innovations Limited v Vodafone Pacific Limited [2003] NSWSC 423, [4]; Cretazzo v Lombardi (1975) 13 SASR 4, 16; Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259; (1993) 26 IPR 261; Trade Practices Commission v Nicholas Enterprises Pty Ltd (No. 3) (1979) 28 ALR 201; Waters v P C Henderson (Aust) Pty Ltd (NSWCA, 6 July 1994, unreported); NRMA Limited v Morgan (No. 3) [1999] NSWSC 768]. From these cases emerge consistent themes that:-
• Justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case; but
• It may be appropriate to award costs of a separate issue where a clearly definable and severable issue, on which the otherwise successful party failed, has occupied a significant part of the trial."
Having considered the evidence in relation to the costs application, we find that the Medical Council is entitled to its costs in this matter. The Medical Council was required to attend the hearing in this matter. Section 163C(4) provides that the Medical Council is entitled to appear in this inquiry. The Tribunal has been greatly assisted by the Medical Council being represented. The Tribunal has an obligation under the National Law to determine that the Applicant is a fit and proper person, at the time of the hearing, to be again permitted to seek registration as a medical practitioner in circumstances where the Tribunal had, almost three years before the hearing before us, cancelled the registration of the Applicant having found he had engaged in unsatisfactory professional conduct and professional misconduct.
We propose to make the costs order as sought by the Medical Council.
We will make the following orders:
1. Pursuant to s 163B of the National Law, the Applicant John Hart is permitted to seek reinstatement of his registration as a medical practitioner.
2. The Applicant's registration is to be subject to the following conditions:
1. To obtain Medical Council of NSW approval prior to changing the nature or place of practice.
2. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 other medical practitioners:
1. Where patients and patient records are shared between the medical practitioners.
2. Where there is always one other registered medical practitioner on site at the same time as the subject practitioner.
3. Which is an accredited practice.
1. Not to conduct home visits, nursing home visits or after-hours visits.
2. To treat no more than 20 patients in any one day.
3. Not to possess, supply administer or prescribe peptides, peptide compounds or any associated agents.
4. 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. The terms of the Council's Compliance Policy - Supervision are varied so that the practitioner is to:
1. have review meetings with his Council-approved supervisor each week; and
2. authorise the Council-approved supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis.
1. At each supervision meeting the practitioner is to:
1. review and discuss his practice with the approved supervisor with particular focus on:
i. Patient assessment, examinations and history taking
ii. Appropriate prescribing practices, and compliance with condition (2)(e)
iii. Communication
iv. Women's health
1. review all medical records for paediatric patients consulted/treated in the preceding week.
2. discuss continuing professional development and use of best practice resources and guidelines.
1. In addition to the weekly supervision meetings the practitioner will undertake weekly observation sessions with the Council approved supervisor for at least one hour duration. These will alternate between:
1. The supervisor observing the practitioner conduct at least 2 patient consultations
2. And the practitioner observing the supervisor conduct at least 2 patient consultations
3. Feedback about the observations are to be included in the supervision reports.
1. To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed these conditions and all previous decisions.
2. Not to practise until a supervisor has been approved by the Medical Council of NSW.
1. To complete within 6 months of date of this decision (or such later date as the Council may permit), the National Prescribing Curriculum course organised by The University of Tasmania.
1. Within 1 month of the date of this decision (or such later date as the Council may permit), the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course.
2. Within 1 month of completing the abovementioned course, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the course.
3. To bear responsibility for any costs incurred in meeting this condition.
4. In the event that the abovementioned course is unavailable, the practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months after the date of this decision (or such later date as the Council may permit).
1. To submit to an audit of his medical practice, by a selection of his medical records by a person or persons nominated by the Medical Council of NSW and:
1. The audit is to be held within 6 months of recommencing medical practice and subsequently as required by the Council.
2. The auditor(s) is to assess his compliance with good medical record keeping standards, the Medical Board of Australia's Good Medical Practice - Code of Conduct, legislative requirements and compliance with conditions.
3. To authorise the auditor(s) to provide the Council with a report on their findings.
4. To meet all costs associated with the audit(s) and any subsequent reports.
1. To complete within 3 months of the date of reinstatement as a registered medical practitioner, (or such later date as the relevant officer of the Medical Council of New South Wales may require), a Council-approved tailored education program with a focus on ethics.
1. Within 2 months of the date upon which the practitioner makes application for registration, the practitioner must submit for Council approval, a copy of the proposed tailored education program developed in consultation with an education provider and/or Medical Indemnity Insurer. The program must include:
1. An outline of all learning activities/capabilities with respect to ethics.
2. The duration, start and end dates and delivery method.
3. Method of assessment for successful completion of the course.
1. The education program must be approved by Council, prior to commencement of the program.
2. Within 1 month of completing the abovementioned Council-approved education program, the practitioner must provide:
1. Documentary evidence to the Council of his satisfactory completion;
2. A reflective report outlining and demonstrating how the practitioner will implement his learnings into his future medical practice.
3. The practitioner is to bear responsibility for any costs incurred in meeting this condition.
1. 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.
2. 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 New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.
3. These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW).
1. The Applicant is to pay the Respondent's costs pursuant to Clause 13, Schedule 5D of the National Law, as agreed or as assessed.
[5]
Endnote
Quoting with approval from the decision of NCAT at [7]-[8]. An application for leave to appeal was dismissed in Zepinic v Health Care Complaints Commission [2020] NSWCA 146.
[6]
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: 01 March 2024
(g) To complete within 6 months of date of this decision (or such later date as the Council may permit), the National Prescribing Curriculum course organised by The University of Tasmania.
(i) Within 1 month of the date of this decision (or such later date as the Council may permit), the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course.
(ii) Within 1 month of completing the abovementioned course, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the course.
(iii) To bear responsibility for any costs incurred in meeting this condition.
(iv) In the event that the abovementioned course is unavailable, the practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months after the date of this decision (or such later date as the Council may permit).
(h) To submit to an audit of his medical practice, by a 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 of recommencing medical practice and subsequently as required by the Council.
(ii) The auditor(s) is to assess his compliance with good medical record keeping standards, the Medical Board of Australia's Good Medical Practice - Code of Conduct, legislative requirements and compliance with conditions.
(iii) To authorise the auditor(s) to provide the Council with a report on their findings.
(iv) To meet all costs associated with the audit(s) and any subsequent reports.
(i) To complete within 3 months of the date of reinstatement as a registered medical practitioner, (or such later date as the relevant officer of the Medical Council of New South Wales may require), a Council-approved tailored education program with a focus on ethics.
(i) Within 2 months of the date upon which the practitioner makes application for registration, the practitioner must submit for Council approval, a copy of the proposed tailored education program developed in consultation with an education provider and/or Medical Indemnity Insurer. The program must include:
(A) An outline of all learning activities/capabilities with respect to ethics.
(B) The duration, start and end dates and delivery method.
(C) Method of assessment for successful completion of the course.
(ii) The education program must be approved by Council, prior to commencement of the program.
(iii) Within 1 month of completing the abovementioned Council-approved education program, the practitioner must provide:
(A) Documentary evidence to the Council of his satisfactory completion;
(B) A reflective report outlining and demonstrating how the practitioner will implement his learnings into his future medical practice.
(C) The practitioner is to bear responsibility for any costs incurred in meeting this condition.
(j) 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.
(k) 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 New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.
(l) These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW).
(3) The Applicant is to pay the Respondent's costs pursuant to Clause 13, Schedule 5D of the National Law, as agreed or as assessed.
Catchwords: HEALTH - professional registration and discipline - reinstatement application after three years cancellation period.
Legislation Cited: Health Practitioner Regulation National Law (NSW) - s 3, s 3A, s 4, s 125, s 126, s 127, s 163A, s 163B, 163B(1)(c), s 163B(3), s 163C(4), Clause 13(1) of Sch 5D.
Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49
Fryar v Health Care Complaints Commission [2015] NSWCATOD 117
Health Care Complaints Commission v CSM [2016] NSWCATOD 125
Health Care Complaints Commission v Hart (No 2) [2021] NSWCATOD 79
Health Care Complaints Commission v Hart [2021] NSWCATOD 36
Health Care Complaints Commission v Morsingh (No 2) [2023] NSWCATOD 183
Health Care Complaints Commission v Philipiah [2013] NSWCA 342
Qasim v Medical Council of New South Wales [2021] NSWCA 173
Vo v Medical Council of NSW [2018] NSWCATOD 18
Waterman v Gerling (Costs) [2005] NSWSC 1111
Zepinic v Health Care Complaints Commission [2020] NSWSC 13
Texts Cited: Nil
Category: Principal judgment
Parties: John Hart (Applicant)
Medical Council of NSW (Respondent)
Representation: Counsel:
K Hooper (Respondent)
Relevant History
On 9 June 2021, the Applicant had his registration as a medical practitioner cancelled by the Tribunal (see Health Care Complaints Commission v Hart (No 2) [2021] NSWCATOD 79) ("Stage 2 Decision"). The determination of the Tribunal to cancel the Applicant's registration followed an earlier decision where the Tribunal found the Applicant guilty of both unsatisfactory professional conduct and professional misconduct, as defined by the National Law (see Health Care Complaints Commission v Hart [2021] NSWCATOD 36) ("Stage 1 Decision").
The Council has provided a written submission to assist the Tribunal in which it includes a summary of the findings made against the Applicant, in the Stage 1 Decision. That summary is as follows:
"Stage 1 Decision
6. On 1-4 February 2021, the Tribunal heard proceedings involving two complaints by the Health Care Complaints Commission ("the HCCC") against the applicant. The Tribunal described the first complaint, made 2 October 2019, as the Peptide Complaint and the second complaint, made 16 April 2020, as the Anti-Ageing Complaint.
7. The Peptide Complaint arose from the applicant's involvement in Peptide Clinics Australia Pty Ltd, an online peptide clinic which the applicant and two other people set up in 2013.
8. The Peptide Complaint related to 29 people that the applicant prescribed peptides to between February 2014 and July 2016, and the applicant self-prescribing some peptides. The applicant admitted he was guilty of unsatisfactory processional conduct and professional misconduct, and "that he did not conduct an appropriate assessment before prescribing the peptides; there was no therapeutic purpose for prescribing them and he did not adequately monitor any of the patients": T1[2]. The Tribunal noted that the applicant's involvement with Peptide Clinics ended in September 2016 and that, as of that date, the applicant had agreed to remove himself from the Peptide Clinics business and to stop prescribing peptides: T1[3].
9. The Anti-Ageing Complaint related to the applicant's treatment of an 82-year-old woman with dementia. The applicant applied "the Breseden protocol" to this treatment of this patient. The applicant admitted he was guilty of unsatisfactory professional conduct and professional misconduct with respect to the Anti-Ageing Complaint. Specifically, he admitted that he had recommended inappropriate investigations and treatment, and prescribed drugs without a therapeutic purpose for doing so: T1[4].
10. The Tribunal found that, in a number of identified respects, the applicant had given misleading information to the HCCC or attempted to mislead it: T1[24], [27], [30], [33], [35].
11. The Tribunal also found that the applicant's credibility was brought into question because after a hearing before the Medical Council in September 2016, the applicant continued to prescribe dehydroepiandrosterone and other substances for which there was no good quality evidence of their efficacy: T1[35]-[40]. In addition, the Tribunal observed that in 2016 the Medical Council had drawn the applicant's attention to the conflict of interest provisions in the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia". However, the applicant had failed to disclose a potential conflict to Patient AE: T1[41]. The Tribunal found at T1[42]:
Prescribing substances that he said he would not prescribe, goes to the extent to which Dr Hart can be trusted to do what he says he is going to do. Similarly, his credibility is affected by the fact that he continued to prescribe substances for which there was no good quality evidence and failed to avoid or disclose a conflict of interest.
12. The Tribunal found the complaints in the Peptide Complaint were admitted or were proved (with a small number of exceptions, T1[143]). The Tribunal found that the applicant had not obtained an adequate history from the patients (T1[63]) and noted the applicant admitted that he had not conducted a proper assessment of or adequately monitored the patients (T1[67], [78]), and had not obtained written informed consent from the patients: T1[68].
13. The Tribunal found that the applicant had "prescribed each of the substances listed in the 29 complaints without an appropriate therapeutic purpose": T1[120]. There were "major gaps" in his "knowledge and competence" including by way of example prescribing testosterone to a patient who was not androgen deficient. The Tribunal was satisfied that the applicant had "prescribed the specified medications without an appropriate level of training": T1[132].
14. The Tribunal found that the particulars relating to the inadequacy of the applicant's clinical records were proved: T1[142].
15. The Tribunal found the complaints in the Anti-Ageing Complaint were admitted or were proved (with a small number of exceptions, T1[176]). It found that the applicant had always known he was not following contemporary guidelines and standards and "knew that he was practising outside the standards expected of medical practitioners but he did not stop doing so until his registration was under threat": T1[151]. The Tribunal observed that Professor John Carter in his reports had found the applicant's treatment of the patient "to be significantly below the expected standard and to invite his strong criticism": T1[152].
16. The Tribunal considered various procedures or investigations that the applicant had caused to be carried out on Patient AE and generally found they were inappropriate or not clinically indicated. It found there was "no evidence of informed consent being obtained for the significant number of investigations which were extremely unlikely to have influenced Patient AE's clinical management": T1[167]. The applicant admitted the part of the complaint concerning his having a conflict of interest which he failed to inform Patient AE of (see T1[171]). At [174]-[175] the Tribunal stated:
[173] Dr Hart admitted this part of the complaint. He did not tell Patient AE that he received these rebates. He also acknowledged that when he was before the Medical Council in September 2016, the relevant parts of the Code of Conduct were brought to his attention. Despite that, he did not inform Patient AE of the conflict. He could not offer any reason to the Tribunal for failing to do so.
[174] We find that this conduct amounts to "other improper or unethical conduct"."
The Approach to the Application as defined by the National Law and Tribunal decisions
The Tribunal's jurisdiction to consider an application for a reinstatement order pursuant to s 163B(1)(c) is conferred by s 163A. Section 163A provides as follows:
163A Right of review [NSW]
(1) A person may apply to the appropriate review body for a review of -
(a) a prohibition order made in relation to the person; or
(b) a relevant order made in relation to the person.
(2) A person may also apply to the appropriate review body for a review of an order made under this Division.
(3) An application for review of an order may not be made -
(a) while the terms of the order provide that an application for review may not be made; or
(b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending.
(4) In this section -
decision-making entity means the following -
(a) a Committee;
(b) a Performance Review Panel;
(b1) a Council, but only in relation to orders made under this Division, Subdivision 5 of Division 3 or section 155C (1) (f);
(c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal;
(d) the Tribunal or the Tribunal List Manager;
(e) the Supreme Court;
(f) a review body in New South Wales, when deciding a matter under section 127A.
relevant order, in relation to a person, means any of the following orders made by a decision-making entity -
(a) an order that the person's registration as a registered health practitioner or student is suspended; or
(b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or
(c) an order that conditions be imposed on the person's registration in a health profession.
The "appropriate review body" is the Tribunal: s 163(1)(c).
The Tribunal's powers on this review are set out in s 163B. That section provides:
163B Powers on review [NSW]
(1) 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.
…
(3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if -
(a) the person makes an application for registration to the National Board; and
(b) the relevant National Board decides to register the person.
(3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4).
(4) 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.
(5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
The Medical Council then set out a summary of the Stage 2 Decision, which we here include:
"Stage 2 Decision
17. The Stage 2 hearing was on 20 May 2021 and the decision is dated 9 June 2021.
18. The Tribunal considered the seriousness of the applicant's conduct associated with the Peptide Complaint. It found that the applicant had "designed a seriously flawed questionnaire and did not perform the most rudimentary steps in caring for his patients" including "taking a proper history, clinically assessing the patient, only recommending treatments when there is a therapeutic need, obtaining the patient's informed consent and monitoring their progress": T2[20]. The applicant "did not even take the very basic precaution of checking to see whether a previous prescription would have been exhausted before prescribing further courses" and the Tribunal found this demonstrated "a complete disregard for patient safety": T2[21]. The conduct extended over a 5-year period "and involved approximately 500 courses of peptides or hormones": T2[21].
19. With respect to the Anti-Ageing Complaint, the Tribunal observed that "[e]ven after being interviewed by the Medical Council about the Peptide Complaint, Dr Hart continued to practise medicine which was not evidence based." The applicant's conduct with respect to Patient AE was "extremely serious because of her vulnerability - she had dementia, was depressed and was severely underweight": T2[22]. The applicant's non-disclosure of his conflict of interest was moderately serious; it was made worse because he did not disclose the conflict to Patient AE after the Medical Council drew his attention to the conflict of interest provisions in the Code of Conduct, in September 2016: T2[23].
20. The Tribunal considered the risk to the health and safety of the public if the applicant were to continue to practise with conditions. It found, inter alia, that the applicant's understanding and insight remained deficient: T2[35]. The Tribunal was concerned that despite the time the applicant had had to reflect on his conduct, he continued to identify patient safety as one of the motivations for embarking on the Peptide Clinics business and, in fact, his "failure to perform the most rudimentary steps in caring for a patient showed a complete disregard for their safety": T2[40]. At T2[41]-[42], the Tribunal stated:
[41] Dr Hart characterised his conduct as having made a bad decision; as having thought it was a good idea at the time and as the worst decision of his life. He continues to lack insight into the motivation for setting up the Peptide Clinics business, the extent to which he was providing appropriate medical care and the potential risks to patients, including Patient AE. That misguided mindset continues to influence Dr Hart's thinking.
[42] Examples of his mindset include misleading the Medical Council by saying there is reliable data showing that certain peptides inhibit the functional deficits of aging; justifying prescribing DHEA by claiming that there is more evidence of its possible benefits than for peptides; and expressing gratitude in his reflection document that no patients were harmed. When questioned about this comment, he agreed that he had no idea whether any patient had been harmed.
21. The Tribunal was "critical of [the applicant's] strong inclination to practise medicine outside accepted guidelines" and said that inclination was "exacerbated by two factors" being that "he did not explain the lack of evidence or the known risks so that he could obtain properly-informed consent from each patient" and "he did not follow up to see if any issues had arisen or there was a risk of on-selling peptides": T2[43]. The Tribunal concluded that (T2[44]):
the seriousness of the misconduct including the complete disregard for patient safety; his inclination to practise medicine outside accepted guidelines; his limited insight as to his motivation; the false and misleading statements he made to the HCCC and the Medical Council and his failure to change aspects of his behaviour despite being alerted to his deficiencies persuade us that there would be a risk to the health and safety of the public if he continues to practise, even with conditions. These matters together with confidence in the standards of the medical profession require that Dr Hart's registration be cancelled. Because of the seriousness of the misconduct, he cannot apply for reregistration for two years."
We have read both the Stage 1 Decision and the Stage 2 Decision and conclude that the summaries set out above, as created by the Medical Council, are fair and accurate.
A reinstatement order does not have the effect of causing reregistration of a person (s 163B(3)) however it permits the person to apply to the National Board, which then decides whether to register the person. The National Board cannot impose conditions that are inconsistent with those imposed or altered by the Tribunal: s 163B(3A).
Section 163C identifies the scope of the Tribunal's review. It provides:
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.
In Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85], Adams J identified relevant principles as follows: [1]
"[7] The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms:
12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include:
(1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a));
(2) The paramount consideration is the protection of the health and safety of the public: see s 3A;
(3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24];
(4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13].
(5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23].
(6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24].
(7) 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". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34];"
See also Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [17]-[19] (Brereton JA, Bell P and Emmett AJA agreeing).
"17 In conformity with s 163C(1), the task of the review tribunal on a reinstatement application is therefore to determine the appropriateness of an order reinstating the applicant, as at the date of hearing the application.[8] In performing that task, the Tribunal must have regard to the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered,[9] the paramount consideration being the protection of the health and safety of the public.[10]
18 The position of an applicant for reinstatement is disadvantaged by reason that presumptions of fitness, which might otherwise arise from an absence of contrary suggestion, do not operate for the benefit of an applicant who has been deregistered on the basis of unfitness.[11] An applicant for reinstatement bears the onus of demonstrating that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner and presents no risk to the safety of the public and their confidence in the profession.[12]
19 Thus the essential task of an applicant for reinstatement is to show that he or she is no longer unfit. In this case, given that the sole basis of the appellant's deregistration was lack of competence by reason of an impairment, what the appellant had to demonstrate was that she was no longer unfit by reason of an impairment of such a nature and degree as impaired her mental capacity to practise. On that issue, she bore the onus of proof."
Section 3A of the National Law requires the protection of the health and safety of the public to be the paramount consideration. The Tribunal is to have regard to the objectives and guiding principles of the National Law in determining the appropriateness of the orders made on 8 March 2022, including ss 3 and 3A: see s 4.
The Medical Council in its submission stated:
"The Tribunal in the Stage 2 Decision set a non-review period of 2 years. When setting the non-review period, the predominant consideration is the protection of the public: Health Care Complaints Commission v Guard (No 3) [2022] NSWCATOD 161 at [32]. In Health Care Complaints Commission v Drakopoulos [2021] NSWCATOD 72 at [57] the Tribunal held: '[t]his period is habitually fixed by reference to the minimum time assessed to be appropriate to enable a practitioner to undertake some form of rehabilitation or re-education process, to undergo treatment if relevant, and the like'."
In its submission the Medical Council helpfully identified "issues" which it submitted the Tribunal would consider. Given our view of the appropriateness of the identified issues, and given the Applicant was unrepresented, we drew his attention to those issues and recommended that he address same in his oral evidence and submission. The identified issues are as follows:
1. the extent to which the Applicant has demonstrated an understanding of and insight into the deficiencies identified in his practice and associated conduct;
2. how the CPD and other activity the Applicant has undertaken, particularly recently, has related to the deficiencies identified and what learning the Applicant has derived from it;
3. what the Applicant's intentions are with respect to his return to practice;
4. given the nature of the Applicant's past experience and the passage of time during which he has been suspended, whether the Applicant is capable of returning to practice in the manner intended by him, without presenting any appreciable risk to public safety, including on the basis that conditions are imposed on his registration as proposed by the Respondent; and
5. whether the Applicant will comply with conditions imposed.
The Medical Council neither consents to nor opposes the application for reinstatement. However, should the Tribunal see fit to grant the reinstatement order sought, the Medical Council recommends that conditions be required for attachment to the Applicant's registration. Those proposed conditions were attached to the written submission of the Medical Council and were the subject of submission and argument before us. The Medical Council agreed to some variations of its proposed conditions, and we now set out the amended version:
To obtain Medical Council of NSW approval prior to changing the nature or place of practice.
To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 other medical practitioners (excluding the subject practitioner):
a) Where patients and patient records are shared between the medical practitioners.
b) Where there is always one other registered medical practitioner on site at the same time as the subject practitioner.
c) Is an accredited practice.
Not to conduct home visits, nursing home visits or after-hours visits.
To treat no more than 20 patients in any one day..
Not to possess, supply administer or prescribe peptides, peptide compounds or any associated agents.
To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body.
a) The terms of the Council's Compliance Policy - Supervision are varied so that the practitioner is to:
i) have review meetings with his Council-approved supervisor each week; and
ii) authorise the Council-approved supervisor to provide reports to the Council (in a Council-approved format) on a monthly basis.
b) At each supervision meeting the practitioner is to:
i) review and discuss his practice with the approved supervisor with particular focus on:
A. Patient assessment, examinations and history taking
B. Appropriate prescribing practices, and compliance with condition 5.
C. Communication
D. Women's health
ii) review all medical records for paediatric patients consulted/treated in the preceding week.
iii) discuss continuing professional development and use of best practice resources and guidelines.
c) In addition to the weekly supervision meetings the practitioner will undertake weekly observation sessions with the Council approved supervisor for at least one hour duration. These will alternate between:
i) The supervisor observing the practitioner conduct at least 2 patient consultations
ii) And the practitioner observing the supervisor conduct at least 2 patient consultations
iii) Feedback about the observations are to be included in the supervision reports.
d) To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed these conditions and all previous decisions.
e) Not to practise until a supervisor has been approved by the Medical Council of NSW.
To complete within 6 months of [date of decision] the National Prescribing Curriculum course organised by The University of Tasmania.
a) Within 1 month of [date of decision], the practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course.
b) Within 1 month of completing the abovementioned course, the practitioner is to provide documentary evidence to the Council that they have satisfactorily completed the course.
c) To bear responsibility for any costs incurred in meeting this condition.
In the event that the abovementioned course is unavailable, the practitioner must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 2 months after [date of decision].
To submit to an audit of his medical practice, by a selection of his medical records by a person or persons nominated by the Medical Council of NSW and:
a) The audit is to be held within 6 months of recommencing medical practice and subsequently as required by the Council.
b) The auditor(s) is to assess his compliance with good medical record keeping standards, the Medical Board of Australia's Good Medical Practice - Code of Conduct, legislative requirements and compliance with conditions.
c) To authorise the auditor(s) to provide the Council with a report on their findings.
d) To meet all costs associated with the audit(s) and any subsequent reports.
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.
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 New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.
These conditions may be altered, varied or removed by the Medical Council of New South Wales and the Medical Council is the appropriate review body for the purposes of Part 8 Division 8 of the Health Practitioner Regulation National Law (NSW).
The Applicant did raise a practical concern in relation to the implementation of proposed condition 2(a) as set out above. He told us that there may well be a change in the contractual arrangement between the practice owners, where he has been offered a position, and himself. That arises because of a concern to ensure he is a contractor, and not an employee, as financial consequences flow to the practice owners should he be determined to be an employee by revenue bodies within the State and Australian Governments. The Applicant foreshadowed that if there were changes to the provisions of his contractual relationship it would most likely include the cancellation of the ability to access the "shared medical records" of the practice.
We have considered that possible practical interference with the proposed condition 2(a) and concluded that should it arise, the Medical Council will have the power to vary the condition. He also spoke about a possible problem with proposed condition 6(c). He told us that he spends up to 30 minutes with each patient and he might not have 3 patients to be observed by his supervisor in a one-hour observation session. The Medical Council agreed to reduce that number to a minimum of 2 patients.
With the exception of his opposition to proposed condition 2(a) the Applicant said he did not oppose the Tribunal imposing those conditions should it grant his application for reinstatement.
The Medical Council does seek an order that the Applicant pay its costs. It submitted that the Tribunal has the power to make the order it seeks.
Clause 13(1) of Sch 5D to the National Law provides:
13 Tribunal may award costs [NSW]
(1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal.
The Medical Council submitted it has properly appeared as Respondent to this application. It submitted there is nothing in the conduct of this matter that warrants displacing the usual order that costs should be paid by the Applicant. The Applicant should be ordered to pay the Respondent's costs. It referred the Tribunal to the decisions in Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [90]-[92]; Fryar v Health Care Complaints Commission [2015] NSWCATOD 117 at [103]-[106]; Vo v Medical Council of NSW [2018] NSWCATOD 18 at [141]-[144].
The Applicant opposed the costs order on the basis of his being impecunious. He said he had experienced one bankruptcy and that if a costs order was made it would likely lead to another bankruptcy for him.
The Medical Council also sought a publication restriction order in relation to the names of any patients which appear in the evidence in this hearing, or in this judgment. The order sought is identical to that made by the Tribunal in the published orders in the Stage 1 Decision: "Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure of the names of the patients in the schedule to each complaint is prohibited." We propose to include the words: "or in the evidence tendered in this hearing" to the order.