Health Care Complaints Commission v Bronstein

NCAT Occupational|2021-11-03

monitoring compliance with these conditions (3) The respondent is to pay the applicant's costs of the proceedings pursuant to Schedule 5D, clause 13 of the Health Practitioner Regulation National Law (NSW). Catchwords: HEALTH - medical practitioner - protective orders following findings of unsatisfactory professional conduct and professional misconduct. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 HCCC v Dinaker [2009] NSWMT 8 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Iskander [2015] NSWCATOD 30 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Philipiah [2013] NSWCA 342 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Arkadi Bronstein (Respondent) Representation: Counsel: R Donnelly (Applicant) S Beckett (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Mutual (Respondent) File Number(s): 2020/00323860 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of any patient referred to in these proceedings is prohibited.

Legal Principles

Section 3A of the Health Practitioner Regulation National Law (NSW) (National Law) requires that "the protection of the health and safety of the public must be the paramount consideration" when considering the conduct of a practitioner. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA said at [35]: "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."
In Health Care Complaints Commission v Brush [2015] NSWCATOD 120, the following observations were made at [72]: "… In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3 (1) and 3 (2) (a) of the National Law."
The Tribunal must also consider whether the conduct of the respondent is sufficiently serious to justify an order that his registration be suspended or cancelled. The principles warranting suspension or cancellation are referred to in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]-[21]. The purpose of protective orders is entirely to protect members of the community from future harm which might otherwise be caused to them if a practitioner is not competent to practise.
The Tribunal has found that the conduct of the respondent in relation to his treatment of patient A and patient B constitutes unsatisfactory professional conduct and in respect to patient A, professional misconduct. Accordingly there is the need for protective orders. For examples of orders having been made to protect the public see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Health Care Complaints Commission v Iskander [2015] NSWCATOD 30.

Protective Orders Sought

On 3 November 2021 the Tribunal heard submissions from each party concerning proposed protective orders. The applicant seeks that the respondent be reprimanded and suspended from practice for a period of six months, and that conditions be imposed upon his future practice. One such condition includes an order that the respondent not undertake any Visiting Medical Officer (VMO) positions in a hospital.

Respondent's Reply

The respondent submits that it is questionable whether a reprimand is necessary but the respondent acknowledges that such a sanction may follow from the Tribunal's findings.
As to the submission by the applicant that a suspension is required, the respondent emphasises that he has already been suspended for a period of seven months following the section 150A hearing on 19 February 2019. The suspension was later revoked after a second section 150A hearing on 12 September 2019.
As to the imposition of further conditions, the respondent refers to the supervision reports and references from a recent employer. The respondent also states that he has now been subject to supervision for 2 ½ years without incident and accordingly the conditions of supervision have served their purpose and that there is no utility in imposing further conditions.
The respondent has now a position available to him in a medical practice commencing in January 2022. He has recently passed an entrance examination for the Practice Experience Program operated by the RACGP. The respondent wishes to continue his profession in the foreseeable future.

Observations

The fact that the respondent did not appear before the Tribunal has placed it at a distinct disadvantage. The Tribunal has not had the benefit of obtaining, first hand, the respondent's explanation for certain matters pertaining to his conduct; whether he accepts that his conduct falls short of the requisite standards; and whether he has any insight into such conduct; or more importantly whether he has an awareness that such conduct is unacceptable. Nor is there any evidence of remorse. Instead, the Tribunal has been required to rely upon expert opinions and submissions from the respondent's legal representatives.
The Tribunal has taken into consideration the opinions of the respondent's expert, Dr Golding, but without any evidence from the respondent.
Dr Golding was emphatic in his conclusion that the respondent should never have been appointed to the emergency Department of Maclean District Hospital ("MDH"). Dr Golding was highly critical of the fact that the respondent had been engaged at the MDH where he was required to be the sole medical officer in charge of the Emergency Department.
The Tribunal found that such criticisms do not assist the Tribunal in determining whether the standard of conduct of the respondent as a medical practitioner does not meet the requisite standards. Such criticism also fails to give due consideration of the fact that the respondent applied for the position and provided his resume.
The resume of the respondent included his previous appointments, as set out hereunder.
The respondent achieved his Doctorate in Medicine at Milan, Italy in 1983; thereafter in 1984 he worked in a hospital as a medical intern at San Raffaelle, Milan. The respondent became a junior lecturer at Witwatersrand Medical School, Johannesburg South Africa in 1987 and in 1989 was the medical officer at obstetrics and gynaecology at Baragwanath Hospital, Soweto South Africa. Between 1987 and 1989 he was a medical officer - paediatrics at the University of Johannesburg, Coronation Hospital, Johannesburg South Africa then in 1990 was appointed medical officer - cardiology/intensive care at the University of Pretoria - HF Verwoerd Hospital, Pretoria. From 1989 to 1995 he was a medical officer - paediatrics at the University of Johannesburg in neurosurgery, adult emergency medicine, casualty, psychiatry, intensive care, & paediatrics. In 1996 he was a medical officer - anaesthesia at the University of Pretoria, Tembisa Hospital Gauteng, South Africa; in 1997 Chief Medical Officer, radiotherapy at the University of Johannesburg. The respondent then relocated to Canada and became a physician/emergency room supervisor at Prince Rupert General Hospital, British Columbia between 1998 and May 1999.
From April 2001 to March 2005 he was a general practitioner locum in the Northern Rivers Division of General Practice in the NSW Northern Rivers. Between April 2005 to April 2016 he was a general practitioner locum in the Murrumbidgee District Division of General Practice at Hillston, NSW. From April 2006 the respondent was engaged as a general practitioner at Hillston Medical Centre.

Registration history of the respondent

The respondent was first registered in New South Wales on 6 November 2000 (registered no. MED0001189858). Conditions were imposed on the respondent on 7 August 2018 by the Medical Council of NSW (Medical Council). Such conditions included a condition that the respondent was to practise only as a trainee in Emergency Medicine at an accredited teaching hospital approved by the Medical Council. On 1 February 2019, the Medical Council removed the conditions previously imposed and imposed a new condition which included that he should not practise medicine. On 17 September 2019, the Medical Council removed the existing conditions and imposed new conditions on his registration.
In connection with his application for an appointment at MDH, a handwritten note in a referee's report records that the respondent was studying an advanced cardiovascular life skills course. Further, the NSW Health Referee Check - Clinical Skills Assessment - Nonspecialist dated 21 May 2018 prepared by the consultant, emergency medicine, includes an affirmative tick in respect of the respondent's use of BiPAP.
On 15 June 2018 the NSW Health Northern NSW Local Health District offered the position of locum Career Medical Officer - Emergency Department to the respondent. The appointment was the Locum Medical Officer Contracted to Work in the Emergency Department as the sole medical officer (MO) on shifts at the MDH. Prior to this appointment the respondent had previously worked 13 shifts in the Grafton Base Hospital (GBH) Emergency Department (7 May to 13 June 2018) as the "fast-track" MO, seeing triage category 4 and category 5 patients.
It should be noted that MDH is a C 2 health facility with referral patterns to GBH located 54 km or an approximate 48 minutes by road, and/or Lismore Base Hospital which is 84 km and 72 minutes by road. Included in the stated duties in the letter of appointment were, inter alia, "Provision of primary medical services to the Emergency Department".

Statements and References

Supervision reports concerning the applicant had been provided by his supervisor, Dr Tatiana Pavlovskaya, dated 28 May 2021, 8 March 2021, 3 February 2021, 11 December 2020, 3 November 2020, 30 September 2020, 3 September 2020, 31 July 2020, 26 June 2020 and 29 May 2020. The reports refer to certain difficulties experienced with the respondent using the computerised records and the computer skills are stated to remain poor but improving. The reports refer to a very high standard of patient care; that the respondent has a good rapport with patients, good examination skills, good understanding of most presentations and appropriate management.
Two references from the Leeton Family Clinic, signed by Dr Tatiana Pavlovskaya, have been provided dated 13 July 2021 and 16 August 2021. The last mentioned suggests that the respondent's failures in the emergency Department occurred "due to the fact, it was not his area of expertise". The record states that as a general practitioner, the respondent presented as an experienced doctor full of empathy to his patients; that in the past 30 months there were nil cases of inappropriate prescribing, one case of misdiagnosis in his practice. The reference continues: "His downfall remained in the area of computer skills, which we continued to work on, when reviewing his notes daily."
Certificates have been provided relating to courses undertaken by the respondent in or since 2018. They include RACGP CPD and the point score in the seven courses undertaken; certificates of completion throughout 2019 including Understanding Diagnostic Errors: On the Record: Medical records and documentation; Basic life support for healthcare providers; Advanced cardiovascular life support; advanced medical life support; Rural emergency skills training course; Record-keeping; Communication strategies for challenging patient behaviour; Prescribing: principles and practices, when patients complain: a urology; Gathering diagnostic information and a Triennium summary.
The Tribunal acknowledges that staff at GBH, where the respondent had been engaged prior to his appointment to MDH, had expressed grave concerns concerning his ability to conduct an Emergency Department practice. In correspondence, prior to his appointment, the respondent had been referred to as a "train wreck waiting to happen". Opinions to the same effect were expressed by others in the medical practice.
Irrespective of the fact that the respondent was not a suitable appointment, the fact is that he willingly assumed the responsibilities of such a role. Where he felt inadequate, it was always open to the respondent to seek advice and to assist his patients. In the matter before this Tribunal, he failed to do so.
The Tribunal found that some of the submissions made for the respondent were surprising. It was submitted that by failing to assist the nurses in respect of the treatment of patient A, that he was "empowering them". Such submission displays a fundamental lack of comprehension of his role as a medical officer in charge of the Emergency Department.
The Tribunal is also most concerned by the fact that the respondent deliberately failed to make clinical notes of his treatment of patient A. The respondent stated at the section 150 hearing why he did not transfer his personal notes into clinical notes. The respondent said: "I can tell you. I wrote notes and I wanted to transfer them. I was so upset about everything that I told to myself, 'Come on. I don't want to get associated with this fiasco. I am not writing notes in here.'"
Indeed, such facts only emphasise that the respondent has demonstrated that he is not suitable for appointment as a medical officer in charge of an Emergency Department at a hospital. Such finding is consistent with the observation of Dr Golding.

Protective orders

The Tribunal considers that a reprimand as sought by the applicant is appropriate.
The applicant has sought a suspension. However the Tribunal considers that a suspension would serve little purpose and would be potentially punitive in nature.
The Tribunal will also impose conditions as sought by the applicant and include three existing conditions which it considers necessary and which were imposed by the Medical Council.

Costs

The applicant has applied for an order that the respondent pay its costs of the proceedings as provided by Schedule 5D, clause 13 of the National Law. The respondent does not oppose such an order. The Tribunal, in accordance with authority (see for example, Health Care Complaints Commission v Philipiah [2013] NSWCA 342; HCCC v Dinaker [2009] NSWMT 8), will order that the costs of the applicant be paid by the respondent.

Orders

The Tribunal makes the following protective orders: Reprimand 1. Under section 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the practitioner be reprimanded. Practice conditions 1. Under section 149A(1) of the Health Practitioner Regulation National Law (NSW), the following Conditions be imposed on the respondent's registration: 1. To practise only in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the subject practitioner): 1. where the patients and patient records are shared between the medical practitioners; 2. where there is always one other registered medical practitioner on site; and 3. which is an accredited practice approved for post graduate training. 1. To practise no more than 32 hours per week. 2. To treat no more than 24 patients in any one day. 3. Not to undertake any Visiting Medical Officer (VMO) positions in a hospital, nor to be employed in any Emergency Department or critical care setting in any hospital. 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. At each supervision meeting the practitioner is to review and discuss his practise with his approved supervisor with a particular focus on: 1. Clinical decision making 2. Appropriate prescribing practices 3. Medical records 4. Continuing education 5. Communication with patients and colleagues 6. Patient management 1. The Practitioner is to ensure his Council-approved Category B supervisor is present at any home or nursing home visits he undertakes. 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 within six [6] months. 1. The audit is to be held within 6 months from recommencement of medical practice and subsequently as required by the Medical Council of NSW. 2. The auditor(s) to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions and should pay particular attention to: 1. Appropriate patient diagnosis and treatment 2. Prescribing 3. Clinical decision making 1. to authorise the auditor(s) to provide the Medical Council of NSW with a report on their findings. 2. 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 and Medicare Australia for the purpose of monitoring compliance with these conditions 1. The respondent is to pay the applicant's costs of the proceedings pursuant to Schedule 5D, clause 13 of the Health Practitioner Regulation National Law (NSW).

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

Amendments 24 November 2021 - Date of Orders and Date of Decision in the Coversheet corrected. 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: 24 November 2021

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)