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[2014] NSWCATOD 28
NCAT Occupational
2013-12-20
Mr P
Original judgment source is linked above.
Summary 1On 20 December 2014 this Tribunal found Dr Athour: Guilty of unsatisfactory professional conduct and Guilty of professional misconduct. 2The matter was then adjourned to give the parties an opportunity to call evidence and make submissions in relation to the appropriate protective Orders. 3On that day the Tribunal published its Reasons in relation to those findings. In summary the Complaint arose out of Dr Athour's treatment of 14 patients, who were heroin addicts, with rapid opioid detoxification. The Tribunal found that Dr Athour:
Legal principles 5In formulating its Orders the Tribunal is exercising a protective, not a punitive jurisdiction. 6S149A of the Health Practitioner Regulation National Law (NSW) provides that the Tribunal may do any one or more of the following: (a)Caution or reprimand the doctor; (b)Impose the conditions it considers appropriate on the doctor's registration; (c)Order the doctor to seek and undergo medical or psychiatric treatment or counselling; (d)Order the doctor to complete an educational course specified by the Tribunal; (e)Order the doctor to report on his practice at the times, in the way and to the persons specified by the Tribunal; (f)Order the doctor to seek and take advice, in relation to the management of his practice, from persons specified by the Tribunal. 7S 149B of the National Law provides that the Tribunal may impose a fine. 8As the Tribunal has found Dr Athour guilty of professional misconduct the Tribunal may suspend his registration for a specified period or cancel his registration (s149C). 9The fact that Dr Athour's conduct was sufficiently serious to justify suspension or removal from the Register does not mean that his name must be removed. The legislation makes it clear that the full range of disciplinary powers is available to this Tribunal on a finding of professional misconduct. The discretion of the Tribunal is at large and will depend upon the circumstances of the individual case. 10S3A of the National Law provides that the protection of the health and safety of the public must be the paramount consideration. 11The purpose of disciplinary proceedings is to maintain proper ethical and professional standards in the protection of the community and also to protect the good standing and reputation of the profession and not to punish the practitioner. The public and professional colleagues must have confidence that a medical practitioner will properly and safely perform in his profession. The object of protecting the public includes deterring the practitioner from repeating his misconduct and deterring others who might be tempted to behave in a similar way. 12The authorities also establish that before a medical practitioner is deregistered or exposed to the sanction of their livelihood being taken away, albeit, for a protective purpose, this Tribunal needs to find that the practitioner is probably permanently unfit to practice.
Dr Athour 13Dr Athour was born in Turkey and is 56 years of age. In 1987 he graduated in Germany with an MBBS. He worked in Europe until he migrated to Australia in 1988. In 1996 Dr Athour obtained registration as a medical practitioner in New South Wales. Dr Athour is not vocationally registered. He has worked in various positions as a general practitioner.
Current employment 14In 2007 Dr Athour commenced working at the Plus 1 Medical Centre which is a general practice. He saw the 14 patients the subject of this Complaint at this practice before he undertook each of their procedures. He is employed to work in this practice six days a week. Dr Athour sees a broad range of general practice patients and some patients requiring Methadone. There are three other general practitioners working full time at the Centre and a gynaecologist, psychologist and physiotherapist, working part time. 15In 2007 Dr Athour also commenced working at the Barbara Street Ciinic, which is an Opioid Substitution Clinic. Dr Athour exclusively works with pharmacotherapy patients requiring initiation or maintenance on methadone or buprenorphine. He works on Thursday afternoons from 3pm to 6pm seeing 10-15 patients. He currently holds an authority to prescribe Methadone to 200 patients. There are three other medical practitioners employed at the Barbara Street Clinic. 16Dr Athour also sees a total of 8 patients in three nursing homes. He is their primary general practitioner and attends as requested by the nursing home staff.
Rapid opioid detoxification 17Dr Athour has not performed any rapid opioid detoxification procedures since he was advised to stop by the NSW Health Department on 18 March 2011. 18Dr Athour now accepts that rapid opioid detoxification is a potentially risky procedure, which, at the time, he was not sufficiently trained in or equipped to conduct. He also accepts that rapid opioid detoxification has a high rate of relapse. 19Dr Athour says that he performed the procedures because he was helping patients who wanted a quick result. He now accepts that methadone maintenance therapy is the best treatment option for drug addicts. 20Dr Athour acknowledges that he put the patients at risk by performing the procedure without having access to resuscitation equipment or oxygen. He said he first became aware on 18 March 2011 that the procedure must only be performed in licensed premises. 21Dr Athour said that he was not aware that he required an authority when he prescribed s8 drugs to a number of patients. 22At the time Dr Athour thought rapid opioid detoxification was a minor procedure which did not require a full consent process. He now understands he should have asked each patient to sign a consent form which he should have kept in the patient's medical records. 23Dr Athour says he is now aware that he should have arranged long term psychological support for the patients. 24Dr Athour admits that at the time he performed the rapid opioid detoxifications he did not look for or find any Guidelines and admits that he shouid have. He acknowledges that his research into the procedure was inadequate. 25Dr Athour is very ashamed of his conduct in performing rapid opioid detoxification on the patients and regrets what he has done. He believes that he has learned from his mistakes. 26On 11 May 2011 Dr Athour attended a s150 Inquiry convened by the Medical Council of NSW. Conditions were imposed on his registration. Those conditions are set out in full as Annexure "A" to these Reasons. In summary they provided that Dr Athour would not undertake rapid opioid detoxification, would only work in a Council approved practice with at least three other practitioners and with one other practitioner always on site, to meet fortnightly with an approved Level 3 supervisor who would monitor and review his clinical practice and compliance with his Practice Conditions, to meet with a professional mentor for at least 12 months and to undertake various courses. 27Although there was some discussion as to whether Dr Athour's work at the nursing homes was properly characterised as working in a group practice, the Tribunal declines to find that the Health Care Complaints Commission has shown that Dr Athour has not complied with the conditions. 28Dr Athour started meeting with Dr Sadek as his supervisor in August 2011. They discuss the level of detail required for medical records, general practice issues and interesting or difficult patients. Dr Athour sits in on consultations conducted by Dr Sadek to observe how he manages patients and Dr Sadek sits in on Dr Athour's consultations with patients to observe how he manages patients. Dr Sadek's monthly reports to the Council do not reflect any concerns about Dr Athour's clinical practice. Dr Sadek says that Dr Athour is now very cautious and alert to the rules and regulations of general practice. He also believes that Dr Athour is a more thorough practitioner and he consults his peers more frequently. 29Initially Dr Athour's mentor was Dr Samad. Their mentoring sessions started on a weekly basis but were reduced to a fortnightly basis in July 2012. In August 2012 Dr Athour started meeting with Dr Setrak on a monthly basis for around half an hour. They discuss general issues that arise in practice and personal issues. Neither mentor has raised any concerns about Dr Athour or his practice in their reports to the Council. 30Dr Athour has continued to undergo continuing professional development. He is required to complete 120 points per triennium. He completed more than this - 867 points between 2011 and 2013. He attended the Annual Revision Seminar conducted by the Royal Australian College of General Practitioners in 2012 and in June 2013 he commenced the Addiction Medicine Online Learning Modules offered by the RACP. He is enrolled in the Monash University Course, Issues in General Practice Prescribing for Semester 1 2014.
Later complaints 31In mid 2011 two complaints were made to the Health Care Complaints Commission about Dr Athour's management of two patients. The Complaints did not relate to rapid opioid detoxification. The complaints were referred to the Medical Council which, on 26 June 2012, arranged a Performance Assessment. The report from the assessors noted that Dr Athour's practice is dominated by his interest in mental health and addiction medicine. He sees a substantial number of methadone patients. The assessors said Dr Athour demonstrated good communication skills and empathy and his clinical judgment and management appeared mostly adequate. His record keeping had shown improvement though the improvement needed to be extended and maintained. 32However the assessors felt that Dr Athour's basic clinical skills (examination) and prescribing particularly in the area of mental health and diabetes were unsatisfactory. They concluded that his professional performance was below the standard reasonably expected of a practitioner of an equivalent level of training or experience in the areas of Basic Clinical Skills (examination) Prescribing Skills. 33The Medical Council postponed convening a Performance Review Panel Inquiry pending the outcome of these proceedings. Accordingly Dr Athour has not had the opportunity to respond to the comments made by the assessors. The Tribunal anticipates that the inquiry will now be convened so that the issues which have been raised can be fully investigated and determined.
Objective seriousness of the conduct 34The Tribunal is satisfied that Dr Athour's conduct was very serious. The Tribunal in its earlier Reasons identified the risks which arose as a consequence of Dr Athour's conduct. These included a real risk of serious and potentially fatal complications so that the practice of carrying out the procedure in a family home or hotel room was inappropriate and dangerous. The risks are well known and documented although there is no evidence of any adverse event in relation to these 14 patients. 35Further, Dr Athour did not engage in this conduct on only one occasion. He engaged it on fourteen separate occasions between May 2010 and August 2010. 36The Tribunal also accepts the submission made by counsel for the Health Care Complaints Commission that Dr Athour only undertook a cursory assessment of the patients prior to embarking on administering the cocktail of drugs involved in the rapid opioid detoxification procedure. He did not take steps to ensure that the patients were suitable candidates for the treatment and did not take adequate steps to explain the risks of the treatment or to obtain informed consent. 37Further, the Tribunal finds that Dr Athour's misconduct demonstrates a severe lack of judgement in embarking on such treatment without having undertaken any research into the relevant legislation and Guidelines.
The appropriate protective Orders 38As set out above, the authorities establish that a relevant consideration in determining whether to suspend or cancel a medical practitioner's registration is whether the practitioner is probably permanently unfit to practice. Dr Athour's fitness to practice is to be assessed at the time of this hearing rather than at the time of the misconduct. It was not suggested, and the Tribunal declines to find, that Dr Athour is probably permanently unfit to practice. 39The Health Care Complaints Commission did not seek suspension or cancellation of Dr Athour's registration. The Tribunal accepts its submission that Dr Athour is unlikely to pose a risk to the health and safety of his patients if he is permitted to continue to practice with appropriate conditions. 40The Health Care Complaints Commission's proposed Practice Conditions are the following:
Reprimand 41The Tribunal is satisfied that the health and safety of the public would be protected by Dr Athour being reprimanded.
Fine 42The legislation provides that: (2) A fine is not to be imposed unless: (a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and (b)the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest. 43The Tribunal has already, in these Reasons and in our previous Reasons, detailed the risk to the public from Dr Athour's conduct. There were 14 patients placed at risk. In addition Dr Athour did not undertake basic research into the proper methods for and the rules relating to the performance of the procedure and the risks. He kept scant records. 44The Tribunal is of the view that a reprimand and conditions are insufficient to inform Dr Athour and other medical practitioners of the serious breach of medical practice involved. 45The measure of the fine is to be judged against the seriousness of the conduct. The maximum fine that can be imposed is $27,500. The Tribunal takes into account that Dr Athour will pay around $6,000 to attend courses and around $1,000 for each audit as a consequence of the conditions to be imposed on his registration by this Tribunal. While this is a relevant consideration in respect of the quantum of the fine, the courses will also provide a benefit to Dr Athour in providing him with skills. The audits will assist him by identifying any deficiencies in his record keeping. Given this dual purpose, the weight to be placed on this as a factor in determining the quantum of costs is diminished. Capacity to pay can be a relevant consideration in determining the quantum of costs however there is no real evidence before the Tribunal of the capacity of Dr Athour other than a statement as to his annual earnings ($150,000) his bank balance ($10,000) and a tax debt ($5,000). 46Senior counsel for Dr Athour submitted that the Tribunal should take into account that Dr Athour did not benefit financially from the conduct. The Tribunal does not accept this submission in circumstances where Dr Athour charged the patients for each of the procedures. The Tribunal accepts that there is no evidence that his conduct was motivated by turpitude or greed. 47The Tribunal has determined that there is no other order, or combination of orders, that is appropriate in the public interest other than the imposition of a fine of $10,000. The legislation provides that a fine must be paid within the time specified in the Order.
Costs 48Both parties agreed and the Tribunal finds that the appropriate Order is for Dr Athour to pay the costs of the Health Care Complaints Commission.
Orders
Practice Conditions The practitioner is: Not to undertake rapid opiate detoxification. Pursuant to s149A (4) of the Health Practitioner Regulation National Law (NSW), this is a critical compliance condition. Not to conduct home visits, nursing home or hostel visits. To practise only in a group practice approved by the Medical Council of NSW (group is defined as at least 3 medical practitioners), with one other medical practitioner always on site. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. To nominate a supervisor within 21 days of this Decision to be approved by the Medical Council of NSW, to monitor and review his clinical practice and compliance with his Practice Conditions in accordance with Level 3 Supervision as contained in the Council's Supervision Policy. The supervisor is to be provided with a copy of the Council's Policy and a copy of this Decision. The practitioner is to be responsible for all costs associated with the supervision arrangement. The practitioner is to ensure that: a. He and the supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within a fortnight of being advised by the Council that his nominated supervisor has been approved. b. At each meeting they are to address issues highlighted as concerns in this Decision, including: (i) case review, medical record reviews, clinical outcomes, patient follow-up, overall patient care and management, diagnostic and problem solving skills, clinical assertiveness skills, patient management skills, prescribing skills, management of pharmacotherapy patients and charting & record keeping. c. At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Medical Council of NSW. d. The supervisor forwards to the Medical Council of NSW, initially on a monthly basis for the first 12 months and then subsequently on a basis decided by the Council, a Supervision Report in a format prescribed or approved by the Council. e. The supervision is to include direct observation, with both the practitioner observing the supervisor's consultations, and the supervisor observing his consultations. f. The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, or if the supervisor relationship ceases. g. In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship. h. The supervisory arrangement remains in place for 12 months, with the supervision period being extended if upon consideration of the supervision reports received, the Council deems such extension necessary. To satisfactorily complete (without necessarily obtaining a certificate) within 12 months the Addiction Medicine Course conducted by the RACP he is currently undertaking. To complete within 12 months of the date of this Decision and at his own expense the distance education course "Issues in General Practice Prescribing" conducted by the Department of General Practice, Monash University, Victoria. a. Within two weeks of completing the Issues in General Practice Prescribing course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course. To complete within 12 months of the date of this Decision and at his own expense the course on Medical Ethics conducted in distance mode by the Department of General Practice, Monash University, Victoria. a. Within 6 weeks of the date of this Decision, the practitioner must provide evidence to the Medical Council of NSW of enrolment in the Medical Ethics course. b. Within two weeks of completing the Medical Ethics course, the practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course. The practitioner is to submit to an audit, at his premises, of a random selection of his medical records by a person or persons nominated by the Medical Council of NSW to assess his compliance with relevant provisions of the Health Practitioner Regulation (New South Wales) Regulation 2010 and the RACGP's Standards for General Practices (4th Edition), in particular Standard 1.7 "Content of Patient Health Records". The audit is to occur within 6 months of the date of this Decision and subsequently at 6 monthly intervals, or as required by the Council. The practitioner is to authorise the Auditor/s to provide the Council with a report on his/her/their findings. The practitioner is 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 for the purpose of monitoring compliance with these conditions. Dr Athour is to provide his employer/s and supervisor with a copy of these conditions of his registration. The Medical Council of NSW is the appropriate review body for the purpose of any review of these conditions.
Annexure "A" Practice Conditions Not to undertake Rapid Opiate Detoxification. To practise only in a Council approved group practice (group is defined as at least 3 practitioners), with one other practitioner always on site. To obtain Council approval prior to changing the nature or place of his practice. To nominate a supervisor within the next 21 days to be approved by the Council, to monitor and review his clinical practice and compliance with his Practice Conditions in accordance with Level 3 Supervision as contained in the Council's Guidelines for Supervision. The supervisor is to be provided with a copy of the Council's Policy and a copy of this Decision. The practitioner is to be responsible for all costs associated with the supervision arrangement. The practitioner is to ensure that: He and the supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within a fortnight of being advised by the Council that his nominated supervisor has been approved. At each meeting they are to address issues highlighted as concerns during the Proceedings: case reviews, medical record reviews, pathology result reviews, clinical outcomes, patient follow-up, boundary issues, assertiveness skills, overall patient care and management, substance abuse, basic clinical skills; diagnostic and problem solving skills, patient management skills, prescribing skills, interaction and communication with patients, management of psychosocial aspects of illness and charting & record keeping; etc At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council. The supervisor forwards to the Council, initially on a monthly basis for the first 6 months and then subsequently on a basis decided by the Council, a Supervision Report in a format prescribed or approved by the Council. The supervision is to include direct observation, both he observing the supervisor's consultations, and the supervisor observing his consultations. The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, or if the supervisor relationship ceases. In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship, (h) The supervisory arrangement remains in place for 12 months, with the supervision period being extended if upon consideration of the supervision reports received, the Council deems such extension necessary. Within 21 days of the date of receipt of this Decision he is to provide for approval by the Council the name and professional address of a registered medical practitioner who has agreed to act as his professional mentor. The nature and frequency of contact with the mentor is to be determined by the mentor in accordance with the Council's Guidelines for Mentors. The mentor is to be provided with a copy of the guidelines and a copy of this Decision. He is to authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct or personal wellbeing. He is to authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate. He will meet with the mentor for an initial period of 12 months from the date of the first consultation and thereafter for such period as the Council may determine that professional mentoring is no longer required. In the event that the approved mentor is no longer willing or able to continue as mentor, he is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship. To be responsible for any costs associated with the mentoring process. The meetings should include discussion of his personal and professional development as a registered medical practitioner/personal and/or medical practice issues as they arise/initially the issues highlighted in these Proceedings and then any personal and/or medical practice issues that may arise. To undertake relevant CME activities through the Royal Australian College of General Practitioners (RACGP) Quality Assurance & Continuing Professional Development (QA & CPD) Program with such CME to consist of 80 category 1 points annually. Activities must include, but not be limited to, courses in Appropriate Communication, General Practice Prescribing, Geriatric Medicine, Family Planning and Sexual Reproductive Medicine, Paediatric Medicine, etc. To attend all sessions of the Annual Revision Seminar conducted each year by the NSW Faculty of the Royal Australian College of General Practitioners (RACGP) and, within 2 months of the Seminar, provide the Council with proof of his attendance. He is to be responsible for any costs incurred.
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: 04 April 2014
Health Care Complaints Commission
Athour