Health Care Complaints Commission v Beckwith

Health Care Complaints Commission v Beckwith - [2020] NSWCATOD 23 - NSWCATOD 2020 case summary — Zoe

[3]

REASONS FOR DECISION

By application filed in this Tribunal on 11 July 2019, the applicant ("HCCC") seeks the following orders: 1. An order pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure of the names of Patients A to K in the attached Complaint dated July 2019. In the event the complaints against the Respondent are proved or admitted: 1. Orders pursuant to section 149A (powers to caution, reprimand, impose conditions on registration, etc); section 149B (power to impose a fine) and/or section 149C (powers to suspend or cancel registration, make a prohibition order, etc) of the Health Practitioner Regulation National Law (NSW) ("the National Law"). 2. Costs.
The grounds for the application are stated as follows: "The Director of Proceedings, HCCC, has determined to prosecute a complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 (NSW) alleging that he has been guilty of unsatisfactory professional conduct within the meaning of section 139(1)(a) and/or section 139(1)(b) and/or professional misconduct within the meaning of section 139E."
The Complaint filed with the application raises 14 alleged failures by the respondent, although one of such complaints ( Complaint 13 ) in essence is not a fresh complaint but rather a combination of the preceding 12 complaints and alleges that any one of them or taking cumulatively in any combination constitutes conduct in breach of section 139E of the National Law. At the commencement of the hearing, the HCCC was granted leave to rely upon an amended application which withdrew certain particulars and withdrew allegation 14 which alleged professional misconduct but substituted conduct allegedly unprofessional. Since the amendments caused no prejudice to the respondent, the amendment was allowed.
Before proceeding to consider each of the complaints in detail, it is convenient to note that the respondent, by letter received by the Tribunal on 15 October 2019 and dated 10 October 2019 states that he admits Complaints 1 to 11 inclusive and also paragraph 14; mostly admits Complaint number 12; and states that Complaint 13 does not constitute a complaint. The respondent has provided in such letter matters which he raises in mitigation of the seriousness of his conduct.

[5]

Particulars of complaint one 1. The practitioner failed to provide appropriate care and treatment for Patient A in that he prescribed Cialis (tadalafil) 5mg, Priligy (dapoxetine) 30mg and Viagra (sildenafil) 100mg for the patient on the dates and in the quantities as set out in Schedule A: Cialis 1. Without conducting an appropriate assessment prior to prescribing Cialis on either 2 December 2014, 15 January 2015 or 28 January 2016; 2. Without conducting an adequate examination and/or ordering appropriate investigations prior to prescribing Cialis on either 2 December 2014, 15 January 2015 or 28 January 2016; 3. Where the quantity prescribed of Cialis on 2 December 2014 was in excess of recognised therapeutic standards; Priligy 1. Without conducting an appropriate assessment prior to prescribing Priligy on either 23 September 2015 or 14 December 2015; 2. Without conducting an adequate examination and/or ordering appropriate investigations prior to prescribing Priligy on either 23 September 2015 or 14 December 2015; 3. Without an appropriate therapeutic purpose on 23 September 2015 or 14 December 2015; Viagra 1. Without conducting an appropriate assessment prior to prescribing Viagra on either 2 October 2015 or 27 November 2015; 2. Without conducting an adequate examination and/or ordering appropriate investigations prior to prescribing Viagra on either 2 October 2015 or 27 November 2015. 1. The practitioner failed to provide appropriate care and treatment for Patient A in that he concurrently prescribed Cialis and Viagra between 23 September 2015 and 28 January 2016. 2. The practitioner failed to provide appropriate care and treatment for Patient A in that he failed to instruct Patient A not to use Cialis and Viagra concurrently. 3. The practitioner failed to provide appropriate care and treatment for Patient A in that he failed to adequately communicate with Patient A's regular treating doctor whilst prescribing Cialis, Priligy and Viagra. 4. The practitioner failed to provide appropriate care and treatment for Patient A in that he failed to adequately monitor and/or follow up with Patient A whilst prescribing Cialis, Priligy and Viagra.

[16]

Particulars of complaint twelve 1. The practitioner self-prescribed Aspirin on the dates and in the quantities as set out in Schedule L: 1. In circumstances where Aspirin was not clinically indicated; 2. Without an appropriate therapeutic purpose. 1. [ Withdrawn by the Amended Complaint ]. 2. The practitioner self-prescribed Testogel on the dates and in the quantities as set out in Schedule L in circumstances where the medications were not clinically indicated and / or were not prescribed for an appropriate therapeutic purpose. 1. In circumstances where Testogel was not clinically indicated; 2. Without an appropriate therapeutic purpose. 1. The practitioner self-prescribed Duromine on the dates and in the quantities as set out in Schedule L in circumstances where: 1. In circumstances where Duromine was not clinically indicated; 2. Without an appropriate therapeutic purpose. 1. The practitioner self-prescribed Aspirin, Ivermectin, Testogel and Duromine on the dates and in the quantities as set out in Schedule L contrary to the Medical Council of NSW, Guideline for self-treatment and treating relatives (version 5 dated 4 October 2011 and version 6 dated 2 December 2014).

Complaint 13 alleges that the respondent is guilty of professional misconduct pursuant to s 139E of the National Law in that the practitioner has engaged in either: 1. unsatisfactory professional conduct of such a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
The particulars in support of Complaint 13 essentially comprise the particulars referred to in paragraphs contained in the particulars to paragraphs 1 to 12 in the Complaint.
Complaint 14, as amended, alleges that the respondent is guilty of unsatisfactory professional conduct under s139B (1) (b) of the National Law.
The particulars to Complaint 14 are stated to be as follows: The practitioner contravened clause 7(1) and Sch 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 in respect of his medical records for Patients A - K in that in that he failed to record information known to the practitioner that is relevant to the practitioner's diagnosis and treatment of the patient, including: 1. Any assessment, examination or investigations; 2. Any relevant communications with the patient's regular treating doctor.

[19]

Expert evidence

The HCCC sought expert opinion on each of the issues relating to the complaints, and briefed an eminent medical practitioner, Dr Stephen Howle to provide a report. Dr Howle has provided a voluminous report dated second of November 2018 concerning the prescribing practices of the respondent which have come to notice.
The issues raised concerning prescribing related to different subject matters. For example the nature of the various drugs prescribed by the respondent to his patients and the information obtained from the patients was the subject of investigation. Dr Howle considered, in summary, that the questionnaires which were apparently submitted by the respondent to the patients before prescribing various drugs were deficient. Whilst the questionnaires were adequate in some respects namely the name of the patient, the date of the consultation, the presentation of the complaint and the reason for making contact and allergies were disclosed, there was no listing of symptoms in the questionnaire, no questions concerning previous similar problems, no past history of treatments, no specific questions with regard to the presenting problem. There was apparently no attempt to contact previous prescribers. Dr Howle considered that the questionnaire was not adequate or appropriate with such information missing.
With respect to the adequacy of clinical records and prescribing record maintained by the respondent, Dr Howle stated: "As set out by the RACGP in the 4th Edition of Standards for General Practices (Vol 1, Tab 15), and emphasised in the Good Medical Practice: A Code of Conduct for Doctors in Australia (Vol 1, Tab 11, page 13, 8.4), the clinical record in the 21st century is expected to contain: An individual record for each patient; A record of all consultations/phone calls/messages in the clinical notes;Identifying demographic data including date of birth, address, and person to be contacted in an emergency;A list of past history with respect to medical and surgical conditions;Documentation of all pathology, imaging, and other investigations;A list of all know drug allergies;An up to date list of current medications;Copies of all referral letters to other health professionals;Copies of all correspondence received from other health professionals, with evidence that the doctor has received and read the documents; Documentation of any other legal or other correspondence such as worker compensation, driving medicals;An overall health summary;Ideally, the file would also contain documentation about family history, alcohol intake, smoking, diet, physical activity, and cultural background. A prescribing record would be expected to be kept in the file. This would include any drug allergies, current acute and chronic medications, with documentation as to dosage, repeats offered, and date of prescribing. It should contain, when applicable, copies of approved authority scripts as well as any NSW Health application approvals."
Dr Howle was requested to provide his professional opinion concerning the respondent's prescribing to individual patients. It is not possible to summarise the detailed nature of the tables prepared by Dr Howle on these subject matters. However, it is sufficient for present purposes to note that Dr Howle considered that there was no record of any follow-up in subsequent consultations with the result that the patient's clinical response to treatment is not recorded. He considered that such conduct fell significantly below the standard expected of a practitioner of the respondent's training and experience and invited strong criticism. Such conclusion was made with respect to the majority of the complaints.
The evidence establishes that the respondent had self-prescribed Duromine, a drug indicated for short term treatment of obesity when other forms of management have failed. There is no evidence that the respondent was suffering from such condition and the respondent stated that he took such drug to reduce his BMI to assist in his competitive cycling pursuits. Dr Howle considered that such conduct invited strong criticism and was significantly below the standard expected of a practitioner of Dr Beckwith's training and experience. Similar observations made by Dr Howle in respect of other medications which the respondent self-prescribed, such as Testogel, which Dr Beckwith submitted at the s 150 hearing was self-prescribed for osteoporosis and low levels of testosterone. There is no evidence that the respondent had low levels of testosterone. Further Dr Howle considered proper assessment of osteoporosis by a specialist endocrinologist was normal practice and that there was no reasonable medical indication for self-prescribing of Testogel. He considered this self-prescribing was inappropriate and that it fell significantly below the standard expected of a practitioner of the respondent's training and experience and invited strong criticism.
Another issue concerned concurrent prescribing of drugs such as Sildenafil and Tadalafil to 3 patients. The respondent admitted during the s 150 proceedings that he did not specifically inform the patients that the two drugs should not be taken simultaneously. The respondent stated during the s 150 proceedings that the patients "expressed that they wanted to try one and may be on another occasion try another". Dr Howle was unable to determine whether any such conversation occurred in the absence of any record or questioning. Dr Howle considered that such conduct fell significantly below the standard expected of a practitioner of the respondents training and experience and invited strong criticism.

[25]

Unsatisfactory Professional Conduct

Conduct which may result in the imposition of a disciplinary sanction may constitute unsatisfactory professional conduct as defined in section 139B of the National Law. That section broadly defined such conduct as conduct "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience". However it is not confined to mere clinical expertise. If the conduct of a respondent is not in conformity with standards of professional conduct and practice, it may be regarded as "improper": see R v Byrne (1995) 193 CLR at [514]-[515]; see also Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [40]-[41]. Improper conduct may include "unethical conduct". In Slezak, Dr Peter [2011] NSWMPSC 10 at [80], [83] and [87], the Tribunal observed that improper or unethical conduct is to be determined by reference to the views of reasonable members of the profession. Generally, conduct which has a tendency to bring into disrepute, or does bring a profession or calling into disrepute, is conduct which, by reasonable standards, is seen as falling below the standard of conduct expected of that class of persons: see Office of Local Government v Toma [2015] NSWCATOD 21. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7, said at [29]: "…[t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason all rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".
In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said at [18]-[20] : "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgement made by the Tribunal."

[26]

Professional Misconduct

Professional misconduct is defined in s 139E of the National Law as meaning: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The definition of professional misconduct has been stated in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. Relevantly, Basten JA said: "Thus, a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice [practise] medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice medicine: s 64(1)."
In Health Care Complaints Commission v Iskander [2015] NSWCATOD 30, the Tribunal said at [174]: "Generally, it is a pre-requisite for the making of an order cancelling a practitioner's registration that there is a finding that the practitioner is probably currently unfit to practice [practise] and is likely to remain so for a significant or indefinite period (see HCCC v Della Bruna [2014) NSWCATOD 31; HCCC v Jamieson [2014] NSWCATOD 56)."
The essential principle was stated by the New South Wales Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 37 at [35] as follows: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
The HCCC bears the onus of persuading the Tribunal that the complaints should be upheld. In FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [33]-[36], Hayne J in the High Court of Australia referred to the misnomer of applying common law standards of evidence to proceedings in a tribunal. The Tribunal has traditionally adopted the standard of proof described in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. See also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66; Rejfek v McElroy (1965) 112 CLR 517 at [521]; Bannister v Walton (1993) 30 NSWLR 699 at [711]-[712]; Lindsay v Health Care Complaints Commission [2005] NSWCA 356.
The standard remains the civil standard of proof: the authorities make it plain that there is no higher standard than the balance of probabilities when considering the gravity of the conduct involved: see Gianoutsos v Glykis (2006) 65 NSWLR 359 at [548]-[549]; Re Sophie [2008] NSWCA 250 at [50] and [67].

[27]

Findings

The Tribunal would have benefitted had the respondent attended the hearing. The respondent elected not to do so. In the circumstances, the Tribunal has only the respondent's statement which he sent to the Tribunal, which incorporates the voluminous character references and testamurs of attendances to further his medical knowledge. The respondent's statement does not address the specific complaints raised for consideration, nor has any Reply been filed to challenge the particulars relied upon by the HCCC.
The statement expresses criticism of the Medical Council and of the applicant for failing to provide adequate guidance to the respondent. The respondent refers to a "discontinuation of a complaint" and further states: "Discontinuation of a complaint therefore communicates to the medical practitioner that the complaint does not meet the standard required for investigation. This impression is even greater when four complaints appear (until December 2016) to have been discontinued without any comment or feedback. This means it was reasonable for me to infer that the conduct that continued for years was acceptable to both the HCCC and the Medical Council of NSW. Until further action was taken against me, I was pleased that several complaints had come to nothing as a I felt that a certain test had been passed, effectively validating my process of online prescribing".
The respondent stated he ceased the unprofessional conduct immediately when the matter was referred to the Pharmaceutical Regulatory Unit of NSW Health. He also states that he would have ceased much sooner, or modified his practice to an acceptable standard, had the HCCC or Medical Council of NSW provided "any cautionary advice at an earlier stage. At all times I have co-operated fully and willingly with the investigation processes".
The Tribunal finds, based on the expert evidence of Dr Howle, and taking into consideration the expertise of the Professional Members of the Tribunal, that the complaints of unsatisfactory professional conduct are established. The respondent did not seek to challenge the allegations, except in relation to a portion of Complaint 12. The Tribunal refers hereunder to the matters contained in the complaints considered by Dr Howle.
The Tribunal agrees with the assessment made by Dr Howle that the individual complaints constituting unsatisfactory professional conduct fall below, or significantly below, the standard expected of a medical practitioner. The Tribunal also considers that, taken individually, none of the specific complaints is sufficient to justify a finding of professional misconduct. However, taken cumulatively, the Tribunal is satisfied that the breaches do constitute professional misconduct. The critical issue is that the respondent prescribed medication to numerous patients without adequate clinical assessment including the obtaining of a thorough history, making physical examination and ordering of relevant investigations, and also failing to obtain an appropriate history from previous medical practitioners of the patient. Also, there were no arrangements for follow up and review or the reporting of side effects or adverse reactions.
The respondent also neglected other aspects of management, such as performing a comprehensive screening for sexually transmitted infections, contact tracing in the case of sexually transmitted infection, provision of safe sex advice, and follow-up. This is particularly pertinent to patient H who appears to be a high risk patient from both an individual and public health perspective. This patient was at significant risk from having co-morbid sexually transmitted infections that would not be successfully treated by Azithromycin and which could expose both himself and other sexual partners to ongoing risk. The Tribunal considers that the respondent's approach was cavalier with disregard to the health of the patient and public health more broadly. There was also no consideration given to other differential diagnoses in this patient with recurrent requests for treatment of a presumed urethritis.
With respect to Patient D (Complaint 4), Dr Beckwith prescribed Nexium HP7, a medication indicated for the eradication of a bacterium, Helicobacter Pylori (H Pylori) , associated with the formation of peptic ulcers. The respondent failed to clinically assess the patient, establish the diagnosis and exclude other potentially serious diagnoses. This was particularly inadequate and fell significantly below the standard expected of a medical practitioner. In addition, the respondent failed to liaise with the patient's general practitioner who may have had relevant information concerning the patient's condition. Online prescribing in these circumstances represents a potentially serious risk to the patient. Further, there was no follow-up by the respondent concerning the patient's condition to check for successful eradication of the H Pylori. The respondent merely relied upon the patient's online statement that the patient was suffering from "helicobacter pylori".
Complaints 9 and 10 (Patient I and Patient J) relate to the prescription of antihypertensive medication, which is in large quantities and beyond the usually prescribed quantities by a general practitioner. The tribunal is not aware of any evidence to suggest that the practitioner conducted a necessary comprehensive assessment to determine factors such as, whether there was an underlying cause for the hypertension, whether there were any associated cardio-vascular risk factors, such as high cholesterol and diabetes, whether the patient had any complications of hypertension such as heart disease, kidney disease, and no ability to determine whether the hypertension was successfully controlled by the medication he prescribed. The respondent's care of the chronic medical condition of the patients was well below the standard expected of a general practitioner. In particular, the prescribing for an extended duration of a year during which the patient had no need to attend for a physical examination, or for a follow-up blood pressure check-up.
The Tribunal agrees with the observations of Dr Howle that the record-keeping by the respondent of each of his patients referred to in the complaint is severely lacking in appropriate clinical detail and is significantly below the standard expected of a practitioner of the respondent's training and experience. The record-keeping does not accord with the standards required by the Health Practitioner Regulation (NSW) 2010, and standard 1.7 of the Royal Australian College of General Practitioners standards for general practitioners, 4th edition.
As self-prescribing, the actions of the respondent are not in keeping with good medical practice, especially where the self-prescribing of a potentially performance enhancing drug in the context of the respondent being a competitive cyclist is concerned. No evidence exists that the respondent was low in testosterone. There is no evidence before the Tribunal that the respondent sought advice for assessment of, and alternative and more appropriate and likely more effective treatment for his alleged osteoporosis.
The respondent also self-administered Duromine on a regular basis without clear indication, or any indication that such treatment was required. Further, this drug is a stimulant medication with a capacity for dependence. It is listed on Australian Sports Anti-Doping Authority's (ASADA's) list of banned substances. It is very unlikely that, had the respondent sought advice from another medical practitioner, that such practitioner would have recommended either of the treatments which the respondent self-prescribed.
The Tribunal notes the remorse and contrition expressed in the respondent's statement. The Tribunal also notes the content of the character references supplied in support of the respondent's expertise and contribution to the practice of medicine. The Tribunal is not, on the evidence available, able to determine whether any psychological factors were responsible for, and led to, the respondent's failures to observe the appropriate standards.

[28]

Disciplinary sanction

The applicant seeks that the registration of the respondent as a medical practitioner be suspended for a period of 6 months. The purpose of imposing any sanction is to express public condemnation of any conduct which falls below the requisite standards and primarily, to protect the public from medical practice which does not accord with the requisite standards. Sanctions also act as a deterrent to future conduct by the respondent and by other practitioners.
The respondent does not oppose a suspension of his registration for a period of six months, and he would also agree to a condition that he would not engage in online prescribing.
The Tribunal is mindful that the matters relied upon by the applicant occurred between 2013 and 2016. The conditions imposed upon his practice of medicine date from 4 May 2017. The Tribunal notes that the conditions (set out in paragraph 12 above) do not appear to be onerous in nature.
Had these proceedings been held at a time relatively approximate to the date of the conduct complained of, the Tribunal would almost certainly have imposed the suspension which is now sought. However, the practitioner has been permitted to continue practice subject to the conditions referred to above. There is no evidence of any similar conduct which could have placed the public at risk. Nor is there any evidence of any other conduct which might have placed the public at risk. A Performance Assessment of the respondent was conducted on 9 November 2018 which made one unsatisfactory finding in respect of physical examination. However, the Assessor stated: "Given the relatively minor deficiencies noted in the standard of care provided by Dr Beckwith, it is recommended that he be counselled, in writing, in regard to: • conducting a relevant physical examination, particularly in cases where the diagnosis is not otherwise clear; • in complex or non-specific presentations, formulating and documenting a systematic differential diagnosis and basing the management plan on this formulation. In addition, it is strongly recommended that Dr Beckwith seek support and assistance from his MII in relation to his dealings with the Medical Council and HCCC."
The respondent subsequently underwent a review before a Performance Review Panel on 4 July 2019 which found that whilst his performance had been unsatisfactory on the date of the performance assessment, it was now satisfactory.
The Tribunal draws the inference from these facts that the public was not at risk by the continued practice of the respondent. Accordingly, the Tribunal sees no utility in now imposing a suspension of practice to protect the public.
Nevertheless, the Tribunal is satisfied that the conduct of the respondent warrants a reprimand and the imposition of conditions upon his future practice, as is detailed in the orders hereunder.

[29]

Costs

The application seeks an order that the practitioner pay the applicant's costs. The respondent seeks an order that each party pay its own costs.
The usual rule is that, where adverse findings have been made against a practitioner, of unprofessional conduct or professional misconduct, the unsuccessful party should bear the costs: see Health Care Complaints Commission v Philipiah [2013] NSWCA 342, at [42]-[44]. An award of costs is intended to compensate the successful party: an award is not intended to penalise the unsuccessful party: see Latoudis v Casey (1990) 170 CLR 534 especially at 543 (per Mason CJ). Such principle has been extended to Tribunals: see Ohn v Walton (1905) 36 NSWLR 77; Health Care Complaints Commission v Dr Mazzaferro [2011] NSWMT 9 at [67]; NSW Medical Board v Dinakar [2009] NSWMT 8.
Usually the Tribunal follows the practice that costs should follow the event. Where proceedings have been taken and have incurred unnecessary costs or expense, such costs will not be awarded: see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. An award of costs is discretionary: see Williams v Lewer [1974] 2 NSWLR 91 at 95. See also the observations contained in Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [85] where the court said: "In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings 'only if it is satisfied that there are special circumstances warranting an award of costs'."
The power to award costs is provided in clause 13 of Schedule 5D of the National Law. The Tribunal will make an order that the respondent pay the cost of the applicant of these proceedings, but will allow either party 21 days in which to apply for a different order for costs.
The Tribunal observes that the institution of these proceedings and the prosecution was necessary. Although a suspension has not been achieved, the Tribunal has made adverse findings concerning the conduct of the respondent and will be imposing conditions upon his future practice. Accordingly, despite the respondent's submission that each party should pay its own costs, the Tribunal is satisfied that the respondent should, in accordance with the principles, pay the costs of the applicant.
The Tribunal finds that by reason of the undisputed facts contained in the particulars to the complaints: 1. The respondent has engaged in conduct which constitutes professional misconduct within s 139E of the National Law. 2. The respondent has engaged in conduct which constitutes unsatisfactory professional conduct pursuant to s 139B of the National Law.

[30]

Orders

The Tribunals orders that: 1. Pursuant to s 149A(1)(a) of the National Law, the respondent be reprimanded. 2. Under s 149A (1)(b) of the National Law, the respondent be subject to mentoring in accordance with the Medical Council of NSW Mentor Guidelines for a period of 12 months commencing on 1 May 2020. 3. Within 12 months the date of publication of these orders the respondent undergo an educational course as approved by the Medical Council of NSW relating to diagnosis and management of sexually transmitted infections. 4. The following conditions are imposed upon the conduct of the respondent in his practice of medicine: 1. To practise in accordance with the current Medical Council of NSW's Guideline for self-treatment and treating family members as notified and varied from time to time. 2. To submit to an audit of his medical practice, by a random 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 from 1 April 2020 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 and legislative requirements (including the Poisons and Therapeutic Goods Regulation 2008) 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 authorise and consent to any exchange of information between the Medical Council of NSW, Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 1. Pursuant to Clause 13 of Schedule 5D of the National Law, the respondent pay the costs of the applicant of these proceedings. Any application for a different order for costs is to be made to the Tribunal within 21 days of the publication of these orders. 2. Order 7 made on 30 August 2019 relating to the non-publication of the identity of patients referred to in the Schedule to the Complaint be continued unless the Tribunal otherwise orders.

At a glance

Court

Decision date

Source

Judgment (31 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (25)