The Practitioner was born on 20 August 1959 in Myanmar and is currently 63 years of age. She obtained the degrees of Bachelor of Medicine/Bachelor of Surgery from the Institute of Medicine in Myanmar in 1985 and Master of Public Health in Thailand in 1993. Between 1985 and 1989 the Practitioner worked in Myanmar and Thailand.
In 1998 the Practitioner migrated to Australia with her son and daughter. She passed the Australian Medical Council examination in 2001 and the Australian Medical Council examination (Clinical) in 2003. She was first registered in Australia on 12 January 2004 and became a Fellow of the Royal Australian College of General Practitioners in 2009. In 2006 the Practitioner obtained a Diploma of Child Health in New South Wales. The Practitioner undertook an observership at a hospital in Brisbane between July and November 2002 and then worked at Royal North Shore and Westmead Hospitals until 2005. Between 2005 and 2016 the Practitioner worked at Narromine, Condobolin, Wellington and Dubbo in the Central West of New South Wales. In 2017 she moved to Sydney and began work as an independent contractor at the Rouse Hill Medical Centre.
Between 2009 and 2015 the Practitioner worked at Wellington Corporation Aboriginal Health Service. In November 2013 she was added as a respondent to a complaint by the mother of a 20-year-old man who died by his own hand in October 2011. This complaint resulted in a Performance Interview on 21 November 2014. The Performance Interview Panel held concerns in relation to the management of this young man by the Practitioner and recommended a Performance Assessment.
On 2 November 2015 a Performance Assessment was conducted at Dubbo, where the Practitioner had commenced work in May 2015. Her position in general practice at Wellington had been terminated on account of the investigation by the Medical Council into the suicide in October 2011. The Performance Assessors took into account the short duration of The Respondent's employment at the Dubbo practice, along with computer problems as a result of the absence of the manager on that day.
The Performance Assessors concluded, inter alia:
"…while the Practitioner's basic clinical skills could be disordered, by the end of each consultation Dr Chit Swe had gathered an appropriate history and made an adequate examination. Her management was safe, she was clear in her follow-up plans and she appeared to refer appropriately when she was uncertain regarding her diagnosis"
and
"The records were affected by Dr Chit Swe's limited computer skills, with typing and grammatical errors affecting the clarity of the record. However it was possible for another doctor to understand the reasons for the visit, and management, but the detail of the record was sometimes difficult to understand. This was of a degree that the assessors considered that the records were unsatisfactory."
These Assessors recommended the convening of a Performance Review Panel.
A Performance Review Panel convened on 30 March 2016. This Panel reached the following conclusions, inter alia:
"The problem as we see it is not with Dr Chit Swe's medical knowledge or skill but with her ability to record and adequately communicate that she has taken a full history and developed a clear management plan. Possibly the problem is due to her slow typing skills that were noted during the performance assessment and if she improved these she could write more fulsome notes. Her records have clearly improved between the performance assessment and the Panel's Review. But bearing in mind that these records were self-selected we cannot, on the material before us, be satisfied that her medical records are now satisfactory.
In short, it is our view based on the material before us that Dr Chit Swe's professional performance - medical records (content) - is at present unsatisfactory."
This Panel directed that the professional performance of the Practitioner be re-assessed, as to medical records only, at a future date.
On 24 November 2016 a Performance Reassessment was conducted at Wellington District Hospital and a report was issued on 20 December 2016. This Assessor reached the following conclusions:
"The medical records remain unsatisfactory with regard to content. Although Dr Chit Swe had made efforts to improve her medical records, the records were variably deficient in a variety of areas as detailed in the report above.
The recording of medical, family and social history, allergies, up to date medication lists and relevant clinical examination findings is crucial. Dr Chit Swe is encouraged to develop assistance for structure preventative care as this was not evident in the records reviewed….
Referral letters were poor quality.
The management of results was of concern, with limited evidence of follow up results sighted. Dr Chit Swe was advised that any phone contact with the patient about results needs to be documented in the medical record.
Dr Chit Swe was insightful into the limitations of her medical records that were the subject of this reassessment. She was keen to learn more about how to use Medical Director and how the computer system could be helpful to her patient management."
This Assessor made the following recommendations:
"… Dr Chit Swe
1, undertake further training in the use of Medical Director - Medtech relevant to her ongoing practice.
2. further reassessment be undertaken of her medical records once she has been settled into her new practice for six months.
3. seek appropriate support and care for her own mental health and wellbeing."
This Assessor recommended that a Performance Review Panel be convened to review the professional performance of the Practitioner.
A Performance Review Panel was convened on 6 October 2017 and a report issued on 10 November 2017. The Practitioner had moved from Wellington to Sydney and was due to commence work as a general practitioner at the Rouse Hill Medical Centre on 9 October 2017.
This Review Panel concluded and reported as follows:
"Dr Chit Swe gave evidence at the hearing that her records have improved. She said she now understands what is required and now has the time or makes the time to write adequate medical records. She said she is now more familiar with the MedTech software.
We don't doubt any of these claims. However, the assessor identified significant problems with Dr Chit Swe's medical records. There is no material before us which would allow us to be satisfied that the medical records are now up to the expected standard. The only way that the Medical Council can have some confidence about this is if there is another performance assessment.
Accordingly, it is our view that there should be a reassessment (limited to medical records) in order to see the extent to which Dr Chit Swe's performance has improved.
In our discussions with Dr Chit Swe at the hearing the Panel made a number of suggestions. First, Dr Chit Swe was encouraged to learn more about the MedTech software and the potential short cuts and efficiencies it would allow. Second, Dr Chit Swe was encouraged to improve her typing skills, as obviously this would make note-taking easier. Third, it would be good if Dr Chit Swe found at the new practice some experienced doctors from whom she could seek advice. And fourth, Dr Chit Swe said that she was now fifty eight years old. It was pointed out that working fifty hours a week is challenging, especially as one became older. Dr Chit Swe was encouraged to stay with her plan of only seeing the maximum of thirty patients a day."
This Review Panel concluded that the professional performance of the Respondent was unsatisfactory but decided not to impose conditions on her registration. This Panel directed that the professional performance of the Practitioner, limited to medical records only, be reassessed at a future date.
This Performance Reassessment took place on 20 March 2019 and a report was issued on 28 March 2019. The Practitioner told this Assessor that she saw the reports of 20 December 2016 and 10 November 2017 for the first time on the day prior to this Performance Reassessment.
This Assessor reached the following conclusions:
"Dr Chit Swe is an experienced general practitioner so her performance is assessed against other practitioners of a similar level of experience. Dr Chit Swe has had two previous performance assessments, and she has been considered at both those assessments to have had unsatisfactory medical records. Her statement to the assessor that she was unaware of the outcome of the last Performance Reassessment and Performance Review Panel was not considered as a reason for inaction as she also said she had been advised by Avant that a further assessment of her medical records was highly likely. Despite that, Dr Chit Swe appeared to have undertaken very little training on improving her medical records. She has increased the volume of her progress notes with the admission of templated examination findings, however the assessor felt these added little value to the quality of the records as there was significant doubt raised as to their validity in several instances. The medical record review also raised concerns about appropriate use of investigations and Dr Chit Swe's patient management and prescribing which extend beyond concerns about medical record content."
This Assessor found as follows:
"…the professional performance of Dr Merle Chit Swe is unsatisfactory in that it is below the standard reasonably expected of a practitioner of an equivalent level of training or experience in the areas of
Investigations
Management - Advice - Safety Netting
Prescribing
Medical records (content)."
It was recommended that a Performance Review Panel be reconvened to review the professional performance of the Practitioner.
This Performance Review Panel was convened on 24 July 2019 and issued a report dated 21 August 2019. The Practitioner admitted that her medical records were "poor" and said that she "accept[ed] completely the criticisms set out in the Performance Review Assessment. This Review Panel concluded as follows:
"As discussed above, Dr Chit Swe has not substantially taken on board the suggestions of the previous PRP panel. We note that Dr Chit Swe fully agrees that her medical records are below an acceptable standard, yet she appears to have taken little action to address this, since completing an online medical records course in January 2016. Specifically, Dr Chit Swe has not taken the advice of the PRP to maintain her patient load at a maximum of thirty per day and to consider reducing her hours in order to allow herself more time to write notes. To the contrary, Dr Chit Swe's patient load has substantially increased and she has not considered any strategies to reduce her numbers, other than to unsuccessfully request additional doctors be employed. She does not appear to have seriously considered reducing her hours and continues to work what we believe are unrealistic hours incompatible with improvement. Dr Chit Swe acknowledges the hours that she works contribute to her only making minimal effort to improve her typing skills, and to engage in CPD activity."
This Review Panel expressed the following concerns:
"Further, the source of our concerns about Dr Chit Swe's clinical performance is not only the summary of the medical records in the report but also arises from our discussions with her about those patients and related clinical matters. In particular, Dr Chit Swe's responses to questions about her management of hay fever and croup in children, her routine use of extensive screening investigations contrary to guidelines and excessive use of the imaging of patients with pain were particularly worrying…"
This Review Panel opined as follows:
"It was difficult to determine the reason for the apparent deterioration in Dr Chit Swe's clinical reasoning, judgment and management. We query whether her lack of maintenance of skills and knowledge due to minimal and untargeted CPD, increased patient numbers, and lack of time and attention to individual patient issues may be contributing factors, or potentially whether there may be some underlying difficulties with clinical reasoning and problem solving. Similarly, it remains unresolved whether Dr Chit Swe's failure to adequately improve her clinical records is because of an unwillingness, or an inability, to take appropriate action. During Dr Chit Swe's presentation at this hearing, she demonstrated concrete thinking, poor insight and her answers were at times tangential, long winded and hard to follow. She has a limited capacity to monitor or restrict her own practice despite repeated opportunities and encouragement to do so. There have been clear negative consequences of this behaviour. These factors trigger concerns about possible cognitive impairment."
This Review Panel determined that the Practitioner's professional performance was unsatisfactory and that it was appropriate that conditions be imposed upon her registration. The Panel determined to impose conditions which included the following:
"…2. To practise no more than 35 hours per week with no more than 8 hours in any 24 hour period. Working no later than 7pm on any day.
3. To treat no more than 30 patients in any one day.
4. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision…"
This Review Panel set out its reasoning in relation to these conditions as follows:
"First, we will impose a condition that limits the number of patients Dr Chit Swe can see to 30 per day. This was a recommendation to Dr Chit Swe at the last PRP, but it would appear that she has not been able to achieve this through self-regulation. We also note that [the practitioner's legal representative] submitted that such a condition would be warranted.
Second, we will also impose further conditions which limit the number of hours Dr Chit Swe can work, and at what time of day. Dr Chit Swe's existing work arrangements and her sense of obligation to see all patients, limits the time available to her to make careful assessments and write comprehensive medical notes. Accordingly, we will restrict Dr Chit Swe to working a maximum of 35 hours per week and no more than 8 hours a day, and to not work after 7pm. Dr Chit Swe herself identified the difficulties that arose from seeing patients in the evening when there were no other medical or allied health practitioners present.
Third, we believe it would be of benefit to Dr Chit Swe, and would provide protection to the public, for her to practise under supervision. We will impose conditions that require Dr Chit Swe to be subject to Level B supervision. This will require her to have regular medical meetings with an approved supervisor to review and discuss her practice with a particular focus on the identified areas of deficiencies and to assist her in ways to remediate. To assist in this process, we will require that the supervision sessions incorporate periods of observation, both being observed during consultations as well as observing her supervisor's consultations. We note that Level B supervision requires that the supervisor be on site. In addition to ensuring Dr Chit Swe does not work on her own, we would encourage her to approach her supervisor and other colleagues for advice and support.
Finally, there should be a re-assessment in order to see the extent to which Dr Chit Swe's performance had improved. This should be a full re-assessment, not limited to medical records."
On 21 August 2019 this Review Panel imposed further conditions upon the registration of the Respondent which required her to be observed by and hold regular meetings with her supervisor. Additionally, her registration was conditional upon her observing patient consultations by the supervisor. There was some doubt as to whether the Practitioner fulfilled these conditions but that matter was not the subject of any complaint in these proceedings.
On 3 September 2019 Medical Council Monitoring Officer Mr Himanshi (Mack) Kaira contacted the Practitioner for the first time. In an email, he explained in some detail the conditions which had been imposed on her registration on 21 August 2019. This communication provided detailed advice as to the responsibilities of the Practitioner, in terms of compliance with these conditions. This email stated clearly:
"It is your responsibility to ensure that you comply with the conditions on your registration."
On 8 October 2019 a different Monitoring Officer wrote to Dr Neyamil Bashir, the nominated supervisor of the practitioner. This letter explained in some detail the responsibilities of Dr Bashir as nominated supervisor. Dr Bashir is a colleague of the Respondent at the Rouse Hill Medical Centre.
On 20 September 2019 the Practitioner attended an assessment by Ms Jillian McMillan, a Council-appointed neuropsychologist. We will refer below to the report of Ms McMillan, whose methodology and opinions were the subject of challenge and criticism by counsel for the practitioner. Ms McMillan assessed that the practitioner "does not suffer from impairment according to the Health Practitioner Regulation National Law (NSW) on cognitive grounds". Ms McMillan recommended that the practitioner "undergo a psychiatric review by a CAP psychiatrist to investigate any underlying personality or psychiatric issues that may be impairing her practice of medicine".
On 4 November 2019 the Practitioner attended a psychiatric assessment with Dr Murray Wright, who provided a report on 13 November 2019. Dr Wright found no evidence to support a psychiatric diagnosis and noted that Ms McMillan had excluded a cognitive impairment. Dr Wright noted that concerns had been expressed in relation to the documentational skills of the Practitioner over several years and by a number of persons, yet she had not rectified these matters. Accordingly, he concluded that it was unlikely that this apparent failure to rectify defects could be attributed to limited language skills.
Dr Wright opined as follows:
"Having excluded cognitive impairment as a possible cause or factor and finding no evidence to support psychiatric impairment, I think it more likely that the continuing failure to address these concerns is a reflection of Dr Chit Swe's passive resistance and a degree of ambivalence on her part regarding the merit of the concerns.
In my opinion this rather passively dismissive attitude is not a reflection of an impairment, but it is a matter for concern, and in my view the performance pathway is the more appropriate mechanism for management."
On 11 June 2020 a hearing was convened pursuant to Section 150 of the National Law. The Medical Council set out the basis for this hearing as follows in its written Reasons for Decision:
"On 28 February 2020 the Medical Council of New South Wales became aware that Dr Chit Swe was practising, at times, without her approved supervisor on site. Further concerns were identified by the Medical Council's monitoring officer, including that Dr Chit Swe had not had the required supervision in a timely nor complete manner, as specified by the conditions, and nor had she been complying with the requirements for her to observe the supervisor's consultations, prior to the supervisor then observing her consultations….
On review of the information submitted by Dr Chit Swe, further concerns were identified. Since being advised on the issues on 28 February 2020, Dr Chit Swe appeared to have worked hours beyond those when her supervisor was also rostered to work on 14 occasions and without her supervisor being rostered to be present at the practice on three separate occasions. Further ongoing issues were also identified in relation to incomplete supervision reports and apparent non-compliance with the requirements for the observation sessions, as specified by the conditions."
At this hearing, the Practitioner was represented by a solicitor and counsel. She took part in the hearing by video link at a different location from her legal representatives. A transcript of this hearing was tendered in evidence in these proceedings.
The Council concluded that the Practitioner "has been in breach of multiple aspects of condition 4 of her registration, on multiple occasions, since at least December 2019 until May 2020". The Council considered that there were no "mitigating circumstances" and that there was "little, if any, reason for confidence in 'the veracity of her evidence that she was 'unaware' of the requirements of her conditions, that she has taken adequate steps to now be compliant, that the rosters supplied were both incorrect' or that she had never received important correspondence from the Medical Council on several occasions."
The Council concluded that the registration of the Practitioner should be suspended, "given that her non-compliance with Medical Council imposed conditions present a serious ongoing risk to the public". The registration of the Practitioner was suspended, with effect from 11 June 2020.
On Friday 28 February 2020 Council Monitoring Officer Mr Kalra called Rouse Hill Medical Centre to speak to Dr Bashir. He was informed that Dr Bashir did not work on Fridays and that the Practitioner was scheduled to commence on that day from 1pm until 7pm. The Monitoring Officer spoke to the Practitioner that afternoon and advised her that she should work only when Dr Bashir was present in the practice, other than in exceptional circumstances. The Officer's file note recorded that the Practitioner was "surprised" and that she was of the view that she was able to work even if Dr Bashir was not present, provided that he was part of the same medical practice.
On 11 April 2020 Monitoring Officer Mr Kalra wrote to Dr Bashir, in relation to compliance with the condition for the Practitioner to observe his consultations. He identified deficiencies in compliance with these conditions, and requested that he receive supervision reports as a matter of urgency.
On 15 April 2020 Mr Kalra wrote to the Practitioner and requested an explanation in relation to her working while Dr Bashir was absent from the practice. Further, he requested provision of overdue supervision reports within a short timeframe. On the same date, Mr Kalra wrote to Dr Bashir and requested supervision reports by 20 April 2020. He stated again to Dr Bashir that the Practitioner should work only when he was present in the practice, other than in exceptional circumstances.
On 7 May 2020 the solicitor for the Practitioner wrote to Mr Kalra and enclosed letters from the Respondent and Dr Bashir, together with copies of their rosters. Inter alia, the Practitioner stated:
"I would like to first start by apologising for any confusion and complications my actions have cause. My understanding of Category B supervision was that 'yes, the supervisor is to practise at the same location' which meant that Dr Bashir had to work in the same location as me and not necessarily do the same hours. Ever since I was notified of this on the 28th of February 2020, I have made changes to my schedule to ensure that I followed the condition set up."
On 31 July 2020 an officer of the HCCC wrote to the Practitioner and advised her that a decision had been made for an investigation of apparent breaches of her supervision conditions. On 5 November 2020 an officer of the HCCC advised the Practitioner that two Complaints would be referred for investigation pursuant to section 39(1)(a) of the National Law. These two Complaints were expressed in the following terms:
"1. You breached conditions imposed on your registration by the Council on 21 August 2019; and
2. You are not competent to practise as a medical practitioner in that you do not have the sufficient knowledge or skill to practice the profession."
On 3 December 2020 the solicitor for the Practitioner provided to the HCCC written submissions in relation to the Complaints. On her behalf, the solicitors acknowledged that she had worked on occasions between 18 December 2019 and 27 February 2020, when Dr Bashir was absent from the practice. This submission offered her apologies and stated that she and Dr Bashir understood that he was required to be on site "usually but not always". This submission maintained that "the letter outlining the requirements of 'level B' supervision is ambiguous because the letter itself states that the supervisor 'must usually be available in person to advise or assist you".
The submissions of the solicitors for the Practitioner stated further that she complied with the requirements that Dr Bashir be on site at all times while she worked, once she had received this clarification from the Council. The solicitors stated that the Practitioner could not recall whether Dr Bashir was present when she worked on 3 and 4 April 2020.
In their submissions of 3 December 2020, the solicitors for the Practitioner identified a number of matters of personal difficulty for her during the relevant time. It was indicated that she consults a general practitioner as necessary and that she has attended upon a psychiatrist. The solicitors pointed to the Practitioner's participation in continuing professional development programs, prior to her suspension in June 2020.
The solicitors enclosed a copy of a report from the Practitioner's treating psychiatrist, Dr Ben Hooi-Beng Teoh, dated 16 October 2020. Dr Teoh consulted with the Practitioner on 11 August 2020 and 12 October 2020.
Dr Teoh reported that he had read the Reasons for Decision of the Medical Council on 3 July 2020 and discussed the suspension with the Practitioner. He opined as follows:
"Dr Chit Swe has been anxious about the suspension of her medical registration. She had time to review the problems raised by the Medical Council and her reaction to the assessment. She realised that she had personality traits that had contributed to the lack of compliance of the conditions of registrations. She is motivated to change and return to work as a general practitioner."
Dr Teoh assessed that the Practitioner "can benefit from brief psychological therapy to address her personality issues" and noted that she had made an appointment with him for "supportive psycho-therapy". Dr Teoh agreed with the opinion of Dr Wright that the Practitioner has no history or evidence of psychiatric illness. He considered it likely that her "passive resistance and degree of ambivalence could have been related to her anxiety, communication difficulties and personality traits as outlined".
[2]
The Applicable Law
Section 139B(1)(C)(i) of the National Law prescribes:
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following:
"…(c) A contravention by the practitioner (whether by act or omission) of (i) a condition to which the practitioner's registration is subject; …
Section 139E of the National Law defines professional misconduct as:
(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.
Section 139 of the National Law prescribes as follows:
"139 Competence to Practice Health Profession [NSW] a person is competent to practise a health profession only if the person -
(a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and
(b) has sufficient communication skills for the practice of the profession, including an adequate command of the English language."
Section 3 of the National Law sets out its objectives and guiding principles. This section relevantly provides as follows:
1 The object of this Law is to establish a national regulation and accreditation scheme for - (a) the regulation of health practitioners; …
2 The objectives of the National Registration and Accreditation Scheme are - (a) to provide for protection of the public by assuring that only health practitioners who are suitably trained and qualified to practice in a confident and ethical manner are registered; …
3 The guiding principles of that National Registration and Accreditation Scheme are as follows - …
(c) restrictions on the practice of the health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3A of the National Law provides - "the objective and guiding principles [NSW]; In the exercise of functions under a New South Wales provision, the protection of the health and safety of the public must be the paramount consideration."
The Applicant bears the onus of proof of each element of its Complaints on the balance of probabilities. Having regard to the seriousness of the Complaints and the consequences; it is appropriate that the Tribunal apply the well-known standard of proof adopted by the High Court of Australia in Briginshaw v Briginshaw [1938] CLR 336. That standard requires that the Tribunal must be "comfortably satisfied" or "must feel an actual persuasion" that the allegations are made out on the balance of probabilities.
[3]
The Evidence and Witnesses
The Applicant relied upon a substantial volume of written material (Exhibit 1), which consisted of 70 tabs and dated back to the complaint of 17 February 2012, in relation to the death by suicide of a young man on 19 October 2011. In her opening address, counsel for the Applicant indicated that the material contained in tabs 28 and 64 was not relied upon as evidence in these proceedings.
The Applicant tendered a letter dated 1 September 2021 to the Practitioner, which requested that she undertake a test in accordance with the AHPRA English language skills registration standard assessment for medical practitioners (Exhibit 3). As noted, the Practitioner did not accede to this request.
Dr Neyamil Bashir and Ms Jillian McMillan gave oral evidence in the case of the Applicant. They were both cross-examined by counsel for the Respondent and also answered questions from Members of the Tribunal.
The Respondent relied on a volume of written material, consisting of 10 tabs, (Exhibit 2), together with her Updated Statement of 18 August 2022 (Exhibit 4). The Respondent gave oral evidence and was cross-examined by Counsel for the Applicant, as well as responding to questions put by Members of the Tribunal.
[4]
Complaint One
By Complaint One, the Applicant alleged that:
"1. The Practitioner contravened Condition 4 of her registration in circumstances where she worked when her approved supervisor was not on site on the following dates…" The Particulars of Complaint 1 alleged that the Practitioner "contravened Condition 4 on her registration in circumstances where she worked when her approved supervisor was not on site" on 34 specified occasions between December 2019 and April 2020."
By her Amended Reply, the Practitioner admitted that she worked when her supervisor was not on site on 31 occasions between December 2019 and April 2020. She admitted that she worked on 10, 11 & 12 April 2020 but did not concede that Dr Bashir was absent from the practice premises on those occasions.
As indicated above, the Respondent contended that Condition 4 imposed upon her registration is "ambiguous" and "should be construed narrowly". It was submitted that any ambiguity in a condition should be resolved in favour of the Practitioner. This argument was spelled out in the written submissions on behalf of the Practitioner in the following terms:
"6. Relevantly Order 4 requires Dr Chit Swe to practice under Level B Supervision, in accordance with the Council's compliance policy (the variations to that policy which follow are not relevant to this complaint.
7. The Compliance Policy is at Tab 62 of the HCCC's document. It is ambiguous. Most significantly, the heading to Column 2 is headed Supervisor Required to Practice at the Same Location as the Practitioner?", to which the answer is "yes", followed by reference to a suggestion that they may "in exceptional circumstances, be off-site" but contactable.
8. When this is combined with the fact that the supervised practitioner may independently do on-call work, after-hours work, nursing home visits, and home visits, it is strongly arguable that what is meant is that what may happen 'in exceptional circumstances' is that the Supervisor may practise at another location, ie, the Council may approve an off-site supervisor.
9. The conditions impact upon a practitioner's imposed restrictions on a practitioner's ability or practice medicine, and breaching the conditions is unsatisfactory professional conduct (and thus exposes a practitioner to disciplinary action). They therefore should be construed narrowly, and ambiguity should be resolved in favour of a practitioner.
10. How particular officers of the Council interpret these conditions, and what they tell practitioners they mean cannot expand the operation of those conditions.
11. Thus, if the Respondent's submission about how Level B Condition should be interpreted is accepted, that is the end of the matter, and Complaint 1 is not made out.
12. On the other hand, what particular officers of the Council tell practitioners could help explain non-compliance, if a restricted view of the conditions is taken by the Tribunal."
The Compliance Policy - Supervision of the Medical Council of New South Wales was set out in full in Tab 62 of the material relied upon by the Applicant. The document reads, inter alia, as follows:
"Summary This policy sets out the requirements of a practitioner subject to a supervision condition whose principal place of practice is in New South Wales.
Purpose…A practitioner who is subject to supervision conditions must comply with both this policy and the conditions. If the condition is inconsistent with any part of this policy, the condition prevails…
Consequences of Failure to Comply with this Policy. Failure to comply with this Policy constitutes a breach of conditions. Any breach of conditions may be referred to the Health Care Complaints Commission for investigation as a complaint. The Council may also consider taking interim action under Section 150 of the Health Practitioner Regulation Act Regulation National Law (NSW)(National Law). Practitioners should know that the definition of unsatisfactory professional conduct (CS139B(1)(c) of the National Law) includes contravention of a condition to which a practitioner's registration is subject.
The Policy document then sets out in tabulated form the requirements for each of Categories A,B & C supervision. Relevantly for present purposes, this table reads as follows:
"Category B. Type of Supervision Required. The supervisor is to monitor and provide indirect supervision and be readily available to provide advice, assistance or direct supervision as required.
Supervisor Required to Practice at the Same Practice Location as the Practitioner? Yes, the supervisor is to practise at the same location.
The supervisor may, in exceptional circumstances, be off-site but must be contactable by phone to provide advice or assistance as required.
Independent Practice Such as On-Call, After-Hours Work, Nursing Home and Home Visits Permitted? Yes, unless restricted by their practice conditions."
"Independent Practice" seems clearly to entail work performed by the supervised practitioner outside the physical confines of the practise or beyond its normal hours of operation. In such situations, the supervisor could be expected to be at a different location to the practitioner whose registration is subject to conditions. In contrast, this kind of work is expressly prohibited in the case of Category A supervision.
With respect to the Practitioner and those who advise her, we disagree that there is any ambiguity in relation to the conditions imposed upon her registration on 21 August 2019. Condition 4 provided that the Respondent practice "under Category B supervision in accordance with the Medical Council of New South Wales Compliance Policy - Supervision (as varied from time to time)." In our view, there is no room for confusion as to the Medical Council document to which this condition referred, nor that its terms applied to the conditions under which the Respondent was entitled to practice from 21 August 2019.
The Respondent pointed to no inconsistency in the advice which she received on several occasions from representatives of the Medical Council as to the requirements of her conditions of practice. Viewed objectively, this advice to the Respondent was given in clear and consistent terms on a number of occasions as set out above in these reasons.
It may have been the case that both the Respondent and Dr Bashir were under a misapprehension initially as to whether he was required to be on site at all times when she worked, other than in exceptional circumstances. Dr Bashir said in his statement that his initial understanding was that he was required to be available on site or by telephone to provide assistance or advice to the Practitioner. In his oral evidence he said that this information came from the Respondent. He said also, however, that he was informed at a later time by a representative of the Medical Council that he was required to be on site when the Practitioner undertook work.
Dr Bashir referred in his statement to the Easter weekend in 2020, when the Practitioner worked for three days while he was absent from the practice. He said that he was unaware that she proposed to work on these three days and that she was "very worried" that she had done so, in terms of her conditions of registration. Dr Bashir stated that the Practitioner had asked him a question to the effect "what should I say?" and that he replied that she must explain her actions to the Council herself. Dr Bashir said further that he told her that she should have worked only on days when he was present at the practice.
Dr Bashir stated also that the Respondent told him that she was asked to work on these days by the practice manager, Ms Allyson Welsh. He said that the Practitioner told him that she "had received permission from Ms Welsh to work on these days".
Ms Welsh gave a statement dated 22 November 2021, in which she indicated that she was unaware of any conditions on the registration of the Practitioner until she received a call from a Medical Council representative in April 2020. She said that she then received an email dated 30 April 2020 from this same person, after she asked for "something in writing" in relation to the conditions on the registration of the Practitioner.
Ms Welsh stated that she was "in no position to dictate to medical practitioners when they must attend the clinic or for what hours they must be rostered". She referred to "the contractual nature" of the arrangements between the medical practitioners and the owners of the clinic. Ms Welsh made a clear and unequivocal statement that she "never instructed [the Respondent] to work on certain days without the supervision of Dr Bashir". She stressed that she "has no right to direct medical practitioners to attend for work at the clinic". There was no challenge to this evidence of Ms Welsh.
Dr Praveen Devenini, the Regional Clinical Director of the company which owns and operates the Rouse Hill Medical Centre, provided a statement dated 24 November 2021. Inter alia, Dr Devenini stated that the Practitioner asked him for a letter to the Medical Council in early March 2020. He said that this request followed the Practitioner informing him and Ms Welsh, on approximately 3 March 2020, that she had been told by a representative of the Council that she was in breach of her registration conditions.
Dr Devinini stated that the Practitioner requested a letter to the Council which set out that staff at the clinic had asked her to work additional hours due to the COVID outbreak. Dr Devenini stated that he declined to provide such a letter because he did not request that the Practitioner work additional hours due to the COVID pandemic. He said that he told her that, if any other person had made such a request, she should approach him or her for a letter.
The evidence of Dr Bashir, Ms Welsh and Dr Devenini is not easily reconciled with that of the Practitioner. In her statement dated 29 July 2022 she said, inter alia, "on 28 March 2020 I was advised by the Medical Centre that I was required to work to assist with the COVID 19 response, as one doctor at the Centre was pregnant and could not work and another doctor was in isolation, resulting in a shortage of doctor [sic]" The Practitioner maintained that she "told the Medical Centre" that she was unable to work unless Dr Bashir was present. She stated that Ms Welsh told her that Dr Devenini had received advice from the Council to the effect that Dr Bashir need not necessarily be at the same location when she worked, provided that they both practiced at the Medical Centre.
In response to questions from Dr Aitken, the Practitioner said that she "felt pressured to work by the Practice Manager" and that she was told that "they had checked it out and it was okay". She said "I did not check it out for myself, that was my mistake".
In her Statement of 29 July 2022 the Practitioner said:
"Between 18 December 2019 and 22 February 2020 both Dr Bashir and I thought the conditions on my registration meant that Dr Bashir had to work at the same medical centre as me, but he was not required to be on site at the exact same times I was working. This was a mistake and I am sorry."
In his Statement Dr Bashir said:
"My initial understanding of what my role as Dr Chit Swe's supervisor would involve was that I was to be available on site or by telephone should she require any advice or assistance in her practice."
Dr Bashir indicated that he has provided supervision to overseas trained doctors, a role which requires that he is available to provide advice by telephone. He said that he assumed the same process would apply to supervision of the Practitioner.
Dr Bashir stated that a representative of the Council told him in early March 2020 that he had been informed in an email of the specifics of the conditions of the Practitioner's registration. He said that he did not receive such an email and that he relied upon information provided by the Practitioner as to what was required of him as her supervisor.
We have no reason to doubt any of the evidence of Dr Bashir. We accept that he assumed the role of supervisor to assist the Practitioner and that he was not familiar with the email to which the Council representative referred in early March 2020.
In our view, it is difficult to accept that the Practitioner was mistaken as to the terms and requirements of the supervision imposed upon her by the orders of 28 August 2019. A review of the occasions upon which she received advice from representatives of the Council appears to demonstrate that she had ample opportunity to acquaint herself fully with the requirements of supervision. We will now set out a summary of the advice conveyed to the Practitioner by various representatives of the Council.
At the hearing conducted by the Performance Review Panel on 24 July 2019 the Practitioner was represented by a solicitor, from the firm which acted for her in these proceedings. We refer above to the reasoning by which this panel determined to impose conditions on the registration of the practitioner. This Panel stated: "We note that Level B supervision requires the supervisor to be on site." The orders of the Panel of 21 August 2019 included provision for publication of the reasons to the Practitioner and her solicitor.
On 3 September 2019 Mr Kalra emailed the Practitioner on behalf of the Medical Council. He enclosed "an Initial Monitoring Letter", which "explains what you must do in order to comply with the conditions imposed on your registration…" Mr Kalra invited the Practitioner to contact him, if she required any additional information as to compliance with these conditions [Tab 44].
The letter attached to this email was dated 3 September 2019. This letter stated clearly: "It is your responsibility to ensure that you comply with the conditions on your registration." Mr Kalra informed the Practitioner that she was required to contact him immediately, if she was unable to fulfil a condition or complete an action by a required date. This letter again invited the Practitioner to contact Mr Kalra, if she required any further explanation or assistance with compliance. This email and attached letter were copied to the solicitor for the Practitioner. The letter annexed a copy of the conditions, which included information and explanations as to how she should comply with these requirements.
On 20 September 2019 the Practitioner sent to Mr Kaira by fax a Supervisor Nomination form. It seems there was an error on the part of the Council representative in relation to the correct template for this nomination but that problem was rectified, however, and Dr Bashir was appointed supervisor
On 8 October 2019 a different Council representative emailed Dr Bashir in relation to the terms of supervision of the Practitioner. This email stated that Dr Bashir was "required to work at the same facility" and enclosed a copy of the conditions imposed upon registration. This email stated inter alia: "Category B Supervision requires you to work at the same facility when Dr Chit Swe is practicing. The purpose of this type of supervision is to:
Monitor and provide indirect supervision,
Be readily available to provide advice, assistance or direct supervision as required. It follows that you should be close enough to do this.
In exceptional circumstances you may be off-site, for example, to attend a meeting. If this occurs you must be contactable by phone at all times to provide advice or assistance as required."
Dr Bashir said in his oral evidence that he "misplaced" this email. As noted above, we accept that he was unfamiliar with the contents of this email and harboured a genuine belief as to his role as supervisor, based on his experience with overseas medical graduates. In any event, responsibility for compliance rested upon the Practitioner and not Dr Bashir.
On 18 December 2019 another representative of the Council emailed the Practitioner and informed her that Dr Bashir had been approved as her Category B Supervisor. This email attached a letter of the same date, which stated inter alia: "It is your responsibility to comply with all conditions on your registration…please remember that you may not practice unless your supervisor is present at Rouse Hill Town Medical Centre."
On 28 February 2020 Mr Kalra made a file note, after he called the medical centre. He asked to speak to Dr Bashir and was advised that he did not work on Fridays, however the Practitioner was due to commence seeing patients that afternoon. Mr Kaira noted: "Dr Chit Swe was advised that she was not supposed to work when Dr Bashir was not present at the practice. She was surprised and said that she was not aware of this, she thought the supervisor has to be from the practice but she could work even if he is not there." He noted that he told the Practitioner that she should modify her roster so as to ensure she worked only when Dr Bashir was present at the practice.
On 18 April 2020 Mr Kaira emailed the Practitioner and requested an explanation as to why she had worked on 28 February 2020, in the absence of Dr Bashir. Subsequently, the Practitioner sent an undated email to the Council. She stated that she understood that Category B Supervision required that Dr Bashir must work at the same location but not necessarily be present during her hours of work. She indicated that she had made changes to her roster to ensure that she worked only when Dr Bashir was present at the practice.
At the hearing pursuant to Section 150 of the National Law on 11 June 2020, the Practitioner was asked by the Chair about the document which set out the conditions of her registration. She said "I receive this on the last week only. I receive it's a very basic one like that, you must be under Category B supervision. I did not receive this one…"
After an adjournment, during which the Practitioner spoke with her lawyers, her counsel reported to the Council in the following terms:
"And the first is she said before we got your email from the Council, thank you, she said to us that she had found that email from September, the first one…Yes, and she said this refreshed her memory and she did remember getting it…She did remember getting it, so she just wanted to apologise to the Council for suggesting that she hadn't and that was not true. She just did not remember getting it…" This exchange indicates clearly that the email in question was that dated 3 September 2019, which annexed the letter setting out the conditions of supervision.
The duties and responsibilities of a practitioner who is the subject of conditions on registration were spelled out in very clear terms by the Court of Appeal of New South Wales in Prakash v Health Care Complaints Commission [2006] NSWCA 153. Their Honours said: "Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed".
[5]
Complaint Two
By this complaint, the Applicant alleged that the Practitioner is guilty of professional misconduct within the meaning of Section 139E of the National Law, in that she has engaged in unsatisfactory professional conduct of a sufficiently serious nature and/or more than one instance of unsatisfactory professional conduct such that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of registration. The particulars relied upon by the Applicant in support of Complaint Two were identical to those set out in the Amended Complaint in respect of Complaint One.
We have found that the Practitioner worked on numerous occasions when Dr Bashir was absent from the practice. As indicated above, we reject the submission on behalf of the Practitioner to the effect that the conditions imposed on her registration were ambiguous and, accordingly, she is entitled to the benefit of any such confusion.
As noted, we accept that it may be that part of the motivation of the Practitioner was to assist patients, especially in circumstances of the pregnancy of a female colleague and the demands of the COVID pandemic. We have found, however, that the Practitioner had ample opportunity to familiarise herself fully with the requirements of her supervision order. As indicated above in these reasons, that onus fell squarely upon the Practitioner.
The question then arises as to whether the Practitioner is guilty of professional misconduct within the meaning of Section 139E of the National Law. In this context, we are concerned in particular with her election to work in the absence of Dr Bashir on 28 March 2020, 10 April 2020, 11 April 2020 and 18 April 2020. As set out above, Medical Council Officer Kalra advised her in clear terms, during a telephone call on 28 February 2020, that she should not work when Dr Bashir was absent from the practice. In her Statement dated 29 July 2022 the Practitioner conceded that Mr Kalra told her on 28 February 2020 that she could work only when Dr Bashir was present at the practice premises.
Dr Bashir described the Practitioner as "very worried" that she had worked in his absence during the Easter break in 2020. He gave uncontradicted evidence that she said to him "what should I say?" to the Council in relation to her working on those dates. For these reasons we conclude that the Practitioner was fully aware that she would breach her supervision conditions by working on these dates but, nevertheless, she elected to do so.
In our view, the evidence does not establish that pressure was applied to the Practitioner by "the medical centre" to work in the absence of Dr Bashir. Both Ms Welsh and Dr Devenini gave convincing evidence to the effect that individual contractors determine their own hours of work in the practice. In any event, the Practitioner stated: "I know that complying with my registration conditions is my responsibility".
Conditions are imposed upon registration of a practitioner, inter alia, for the protection of the public. It is obvious that the affected practitioner must treat these conditions very seriously and do all things necessary to ensure conscientious and meticulous compliance. We are comfortably satisfied that the Respondent's conduct fell well short of her responsibilities and duties as a practitioner who is subject to a supervision order.
In our view, these multiple occasions of unsatisfactory professional conduct by the Respondent collectively warrant a suspension or cancellation of her registration. Accordingly, we find that the Practitioner is guilty of professional misconduct.
[6]
Complaint Three
By this complaint, the Applicant alleged that the Practitioner is not competent within the meaning of Section 139 of the National Law in that she;
"(a) lacks the knowledge and skills to practice as a medical practitioner and/or; (b) does not have sufficient communication skills for the practice of the profession, including an adequate command of the English language."
The particulars of this Complaint may be summarised as follows:
1. The Practitioner's professional practice was found to be unsatisfactory within the meaning of Section 153A of the National Law in relation to the contents of her medical records on six occasions between November 2015 and July 2019.
2. On 20 March 2019 and 24 July 2019 the Practitioner's professional practice was found to be unsatisfactory within the meaning of Section 153A of the National Law in relation to investigations; prescribing and patient management/advice/safety netting.
3. On 20 September 2019 Ms Jillian McMillan assessed that the Practitioner's performance on English language tests was consistently poor, with borderline impaired grammar reception, misnamed medications and misunderstood questions if simple syntax was not used during a clinical interview.
We have set out above the outcomes of the performance reviews conducted in relation to the Practitioner in 2015, 2016, 2017 and 2019. We will now summarise these outcomes as follows:
2 November 2015
The problem is not with the Practitioner's medical knowledge or skill but with her ability to record and adequately communicate that she has taken a full history and developed a clear management plan
Basic clinical skills could be disordered but an appropriate history gathered and an adequate examination conducted by the end of each consultation
Safe management, clear follow-up plans and appropriate referrals
Typing and grammatical errors affected the clarity of medical records and detail was at times difficult to understand, to a degree that rendered the records unsatisfactory
30 March 2016
Records have improved but cannot be considered to be satisfactory, thus a reassessment is warranted at a future date.
24 November 2016
Efforts made to improve medical records, which however remained unsatisfactory with regard to content
Poor quality referral letters
Concerning management of results, with limited evidence of follow-up
Practitioner keen to learn more about use of a computer system to assist her patient management
6 October 2017
Significant problems identified with medical records, despite practitioner's claims of a greater understanding of requirements and more familiarity with computer software
Practitioner encouraged by panel members to become more familiar with computer software and to improve her typing skills
Practitioner encouraged to see a limit of 30 patients per day
The professional performance of the practitioner is found to be unsatisfactory in that the knowledge, skill or judgment possessed and applied in the practice of the profession of medicine is below the standard reasonably expected of a practitioner of an equivalent level of training or experience
20 March 2019
Practitioner appeared to have undertaken very little training to improve her medical records, despite an increase in the volume of her progress notes
Concerns raised about the practitioner's patient management and prescribing, which extended beyond concerns about medical record content
The professional performance of the practitioner was found to be unsatisfactory, being below the standard reasonably expected of a practitioner of an equivalent level of training or experience in areas of investigations; management/advice/safety netting; prescribing and medical records (content).
24 July 2019
The practitioner admitted that her medical records were "poor" and that she accept[ed] completely the criticism set out in the performance review assessment, yet she appeared to have taken little action to address these difficulties
The practitioner did not heed the advice of the previous Review Panel to limit her patient load to thirty per day, rather, her workload had increased to a level which the panel considered to be unrealistic and incompatible with improvement
Concerns were raised as to the practitioner's patient management and routine use of extensive screening investigations
The practitioner presented to the Panel with concrete thinking, poor insight and gave tangential, long-winded responses to questions
Concerns were expressed as to possible cognitive impairment in the practitioner
It should be stressed that the Applicant made no allegation that the Practitioner suffers from an "an impairment" for the purposes of Section 144 of the National Law. Counsel for the Applicant confirmed, in final submissions, that the issue of impairment has no role in these proceedings.
In his oral evidence the Practitioner's supervisor, Dr Bashir, said words to the following effect: "I never had any doubt. A few things I told her to catch up in. I was not worried about her." Dr Bashir also said words to the following effect: "English is not her first language but she communicated well with patients. Patients seemed to understand the advice she was giving them."
Supervision reports prepared by Dr Bashir were in evidence. These reports contained positive observations and also suggestions for the Practitioner as to how she might improve her performance.
Some supervision reports contained comments as to the inadequacy of her medical records. For example, in January 2020 Dr Bashir reported: "History writing not complete but improved in last visit.". In May 2020 Dr Bashir reported: "She has to learn to ask more specific questions regarding patient's medical condition". In January 2020 Dr Bashir reported: "Overall poor documentation of patient's note. History not written properly and not adequate. Few patients no proper examination record".
Since 2014, the Practitioner has been subject to the attention of the Medical Council on several occasions. Four performance assessments, conducted in 2015, 2016 and 2017 resulted in findings that the professional performance of the Respondent was unsatisfactory, being below the standard reasonably expected of a practitioner of an equivalent level of training or experience in the area of medical records.
As noted above, Dr Bashir made unfavourable observations concerning the medical records of the Practitioner while he acted as her supervisor. The last adverse observation was noted in January 2020 but, of course, the Respondent has not practised since June 2020.
Two performance reviews conducted in 2019 raised concerns in addition to the adequacy of medical records of the Practitioner. These concerns expanded to include prescribing, patient management and extensive use of screening investigations.
In our view, this history gives some basis for concern in relation to the capacity of the Practitioner, within the meaning of section 144 of the National Law. On the other hand she has not practised for more than two years.
We are not persuaded that the evidence established that the Practitioner is not "competent to practise" for the purposes of section 139 of the National Law. The evidence established that she had been subject to the attention of the Medical Council since 2014 and that adverse findings have been made on a number of occasions.
On the other hand, various Performance Reviewers have made favourable observations. Some examples are as follows:
21 November 2014
"It is apparent that she tries to meet all the demands of her patients and mentioned that she is happy to drive them home if necessary"
This Interview Panel noted the "challenging clinical environment" in which the Practitioner worked at the Wellington Aboriginal Health Service.
10 December 2015
"While her basic clinical skills could be disordered, by the end of each consultation Dr Chit Swe had gather appropriate history and made an adequate examination. Her management was safe, she was clear in her follow-up plans and she appeared to refer appropriately when she was uncertain regarding her diagnosis".
6 April 2016
"The problem as we see it is not with Dr Chit Swe's medical knowledge or skill…"
[7]
Conclusion
The Applicant sought an order for cancellation of the registration of the Respondent, pursuant to section 149C(1)(b) of the National Law, with a non-review period of 12 months. This subsection provides that the Tribunal may suspend for a specified period or cancel registration if a health practitioner is guilty of professional misconduct.
Section 149C empowers the Tribunal to "suspend or cancel" 'registration of a health practitioner. In Chen v Health Care Complaints Commission [2017] 95 NSWLR 334 the Court of Appeal said, (per Basten JA):
"21…in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it."
The Practitioner pointed to a number of personal difficulties which she experienced in 2018, 2019 and 2020. In her supplementary statement of 18 August 2020, she stressed that "I do not provide this information as an excuse for any mistakes on my part but I hope to provide some backstory for my circumstances during this time".
In her oral evidence, the Practitioner referred to the terminal illness of her father and his death on 25 November 2019. She indicated that she had no support from her siblings during this period and found that these experiences had a considerable emotional impact on her. She said that her mother suffered a stroke in late 2019 and that she became her sole carer in 2020.
The Practitioner referred also to a bushfire evacuation from her home in December 2019, which involved moving 100 chickens, seven cats and seven dogs. She indicated that her home was flooded three times in 2020 and that she and her husband were isolated for periods of approximately three days and then two weeks.
The Practitioner stated also that her husband suffered a heart attack in March 2020. She said that she then became responsible for his care and also for their small rural holding.
As the Practitioner acknowledged, these considerations do not "excuse" her conduct. On the other hand, her personal situation at the time of the offending behaviour may be relevant to an assessment of her stated intention to learn from her misdemeanours and to "provide excellent patient care and be a well-rounded doctor". To her credit, the Practitioner has completed a number of on-line training courses since her suspension. For example, in 2022 she undertook courses in medical record keeping, managing boundary issues with mental health patients and effective communication.
Dr Teoh addressed directly the question of the impact of her suspension on the Practitioner. He opined as follows:
"Dr Chit Swe has been anxious about the suspension of her medical registration. She had time to review the problems raised by the medical council and her reaction to the assessment. She realised that she has personality traits that had contributed to the lack of compliance with the conditions of registration. She is motivated to change and, return to work as a general practitioner."
Dr Teoh assessed that the Practitioner "has gained insight into her personality traits and she has made further appointment to see me for supportive psychotherapy". He considered that "she has insight into the conduct and issues raised by the Council…" and that "she has accepted that she had made a mistake in her lack of compliance with the conditions imposed on her".
There was no challenge to this evidence of Dr Teoh. The Practitioner gave evidence that she has learned from her offending conduct. The Respondent has been unable to practise for a period in excess of two years and has had ample time to reflect upon the consequences of her offending behaviour. We are prepared to accept that Dr Teoh made a valid assessment of her willingness to modify her conduct and address some personality issues. For these reasons, we are inclined to accept that she has a genuine motivation to return to medical practice and to conform with all conditions which may be imposed upon her registration.
We have had regard to the two character references tendered on behalf of the Practitioner. Ms Colleen Wykes, a nurse practitioner, worked with her between 2009 and 2015 at the Wellington Corporation Aboriginal Health Service. Ms Wykes noted the dedication of the Practitioner to patients and her compassion. Dr Neamat Ibrahim, a medical practitioner, worked with her at Wellington Hospital approximately 13 years ago. Dr Ibrahim opined that the Practitioner is a "hardworking, compassionate doctor who is an asset to the community".
In all of the circumstances, we conclude that a suspension of registration for a period of nine (9) months will achieve the dual purposes of protection of the health and safety of the public and the promulgation of a strong message to health practitioners that conditions imposed upon registration should be treated with great seriousness. As indicated, we consider that the Practitioner should undertake an accredited English language test and our orders will include a condition to that effect.
We are of the view that it would be in the interests of the health and safety of the public if the Respondent resumes practice subject to the conditions imposed upon her registration on 21 August 2019. These conditions would limit her patient numbers and work hours, as well as providing professional support to the Practitioner.
[8]
Costs
The Applicant sought an order that the Respondent pay its costs of the proceedings. The Respondent elected to remain silent on the issue of costs.
Schedule 5D clause 13 of the National Law empowers the Tribunal to order, inter alia, that a practitioner pay the costs of the complainant. In Qasm v Health Care Complaints Commission [2015] NSWCA 82 Meagher JA (McColl and Ward JJA agreeing) said:
"85 In Lucire v Health Care Complaints Commission (2[2011]] NSWCA 182 at [46 to 48] this Court (Baston 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 s60 of the CAT Act which provides by subsection (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')".
There was no suggestion that the Applicant acted other than properly in the prosecution of the Complaints in these proceedings. We have concluded that the imposition of a period of suspension of and conditions imposed upon the registration of the Practitioner is the appropriate outcome in all of the circumstances. The Practitioner elected to remain silent on the issue of costs. For these reasons, we will order that the Respondent pay the Applicant's costs of these proceedings.
[9]
Orders
1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct.
2. The Tribunal finds the Respondent guilty of professional misconduct.
3. The Tribunal dismisses the Complaint that the Respondent is not competent to practise a health profession.
4. The registration of the Respondent is suspended for a period of nine (9) months from the date of these orders.
5. The registration of Respondent is subject to the following conditions:
1. To undertake and pass a recognised English language skills test in accordance with the AHPRA English language skills registration standard for medical practitioners.
2. To practise no more than35 hours per week with no more than 8 hours in any 24 hour period and to work no later than 7.00pm on any day.
3. To treat no more than 30 patients in any one day.
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.
5. The terms of the Council's Compliance Policy are varied to require the practitioner to:
1. meet with the approved supervisor on a fortnightly basis for the first 3 months , thereafter on a monthly basis for a minimum period of 1 hour
2. authorise the Council-approved supervisor to forward reports to the Council (in a Council-approved format) every month
3. at each supervision meeting the practitioner is to review and discuss her practice with her approved supervisor with focus on:
Investigations
Management/Advice/Safety Netting
Prescribing
Medical records (content)
1. The practitioner is to complete a total of 8 observation sessions with the Council-approved supervisor within the first 2 months of supervision. A session is a period of one hour. The sessions must be undertaken in addition to the supervision meetings and include:
1. Initially, the practitioner is to spend 4 sessions observing the supervisor conduct consultations with his/her patients. The supervisor is to then spend 4 sessions observing the practitioner conduct patient consultations with her patients. Details regarding the observations are to be recorded in the supervision reports
1. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision that imposed these conditions.
2. 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. These conditions may be altered, varied or removed by the Medical Council of NSW and the Medical Council is the appropriate review body for the purposes of Division 8 of the Health Practitioner Regulation National Law (NSW).
2. However, sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the Respondent's principal place of residence is anywhere in Australia other than in New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.
3. The Respondent will pay the Applicant's costs of these proceedings as agreed or taxed.
[10]
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: 22 December 2022
Parties
Applicant/Plaintiff:
Health Care Complaints Commission
Respondent/Defendant:
Chit Swe
Cases Cited (4)
apply whilst the Respondent's principal place of residence is anywhere in Australia other than in New South Wales, so that a review of these conditions may be conducted by the Medical Board of Australia.
8.The Respondent will pay the Applicant's costs of these proceedings as agreed or taxed.
Catchwords: HEALTH - unsatisfactory professional conduct - professional misconduct - where practitioner breached conditions on registration - competence to practise a health profession
Legislation Cited: Health Practitioner Regulation National Law (NSW)
Cases Cited: Chen v Health Care Complaints Commission [2017] 95 NSWLR 334
Qasm v Health Care Complaints Commission [2015] NSWCA 82
Texts Cited: Nil
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Merle Chit Swe (Respondent)
Representation: Counsel:
N Evans (Applicant)
C Jackson (Respondent)
It may well be that the Practitioner was motivated in part by a desire to assist patients and colleagues on some or all occasions when she worked in the absence of Dr Bashir. Any such altruistic intention, however, does not absolve her from the duties and responsibilities of a supervised practitioner as set out in clear terms in Prakash v HCCC.
We are comfortably satisfied, and we find, that the practitioner knew or should have known of the conditions of her supervision in light of the history set out above in these reasons. We find that she worked while her supervisor was not on site on all of the nominated dates listed in the Particulars to Complaint 1, with the exception of 12 April 2020. This date was withdrawn by counsel for the Applicant in the course of the hearing.
For the reasons set out above we reject the argument on behalf of the Practitioner, to the effect that the conditions imposed on her registration were ambiguous" and that she is entitled to the benefit of any resultant doubt. We are comfortably satisfied, and we find, that the Practitioner breached Condition 4 imposed upon her registration on 21 August 2019. We are comfortably satisfied, and we find, that the Practitioner is guilty of unsatisfactory professional conduct for the purposes of section 139B(1) of the National Law.
In our view it would be unsafe and unfair to the Practitioner that she is found to be not "competent" on the basis of material, which is historical, to a significant extent. We note that there is no evidence of any complaint as to her treatment of patients during her practice period at the Rouse Hill Medical Centre. The present proceedings were triggered by her failure to ensure that she worked only while Dr Bashir was on site, other than in exceptional circumstances.
For these reasons we find that the Applicant failed to establish, to the requisite standard, that the Respondent is not "competent" within the meaning of section 139 of the National Law, in that she lacks the knowledge and skill to practise as a medical practitioner. We will dismiss Complaint 3(a).
Both Dr Wright and Ms McMillan expressed concerns in relation to the English language skills of the Practitioner. We had the opportunity to observe the Practitioner while she gave evidence in these proceedings. In terms of formulating our own observations, we take into account that the Practitioner attended the hearing by video link and that she was in a situation which must have been uncomfortable and stressful for her.
Dr Wright gave unchallenged evidence by way of his report dated 13 November 2019. He offered these observations and opinions arising from his interview with the practitioner: "…Dr Chit Swe appeared somewhat hampered by her limited English language skills such that I needed to repeat and at times simplify my questions, as her answers indicated that she did not fully understand the question the first time. It is noteworthy that she did not ask me to repeat the questions but rather answered what she thought she understood then provided a response which could have been misleading if not clarified. Her pattern of speech was at times overinclusive, excessively detailed and tangential, and there was an element of perseveration such that she repeated what appeared to be 'stock phrases'."
Dr Teoh, the treating psychiatrist of the Practitioner, observed that "she was able to communicate adequately in English". He made no further comment as to her English language capacity.
Ms McMillan provided a report dated 9 October 2019, which was relied upon by the Applicant only in relation to the English language capacity of the Practitioner. Ms McMillan observed and opined as follows, inter alia:
"Dr Chit Swe consistently performed below the expected level on verbal tests. As noted, her Verbal Comprehension Index score on the WAIS-IV was in the low/average range. In terms of her expressive English language skills, her performance on tests measuring vocabulary and irregular word reading (WAIS-IV vocabulary, TOPF) was in the Low/Average and Borderline impaired ranges respectively. Dr Chit Swe performed in the impaired range on a confrontation naming task (BNT), however she could demonstrate semantic knowledge of the items she could not name in English. She was unable to write two complete sentences in English on the ACT-III. Her receptive English language skills were also poor. Dr Chit Swe's performance on a measure of English grammar comprehension, requiring her to correctly identify pictures from a verbal description (eg 'the cow is chased by the girl' TROG-2) was in the Borderline Impaired range and at the level expected of a seven year old child. On tests measuring general knowledge and comprehension skills (WAIS-IV Information Comprehension), she performed in the Average range. She performed in the Average range for her age on a test of abstract verbal thinking/concept formation skills (WAIS-IV Similarities).
Ms McMillan took into account the fact that English is the second language of the Practitioner. In this regard, she noted as follows:
"English is her second language, which did affect her performance on high level language tasks. Accordingly, her performance on language based tasks has been conservatively (sic). Some test instructions were simplified to ensure she understood what was required of her if she did not fully comprehend the standardised instructions..."
Counsel for the Practitioner submitted that Ms McMillan "was prone to exaggeration", "was reluctant to concede the obvious" and that she did not volunteer information which was favourable in relation to the "two story examples". Counsel for the Practitioner submitted further that Ms McMillan "took it upon herself to do a lot of things that she was not qualified to do".
We do not accept these criticisms of the expertise and objectivity of Ms McMillan. To our observation, her report and her oral evidence were delivered in a professional and balanced manner. We stress that the Applicant relied upon the evidence of Ms McMillan only in respect of the English language capacity of the Practitioner. We take into account and give weight to the evidence of Ms McMillan only in relation to that issue.
On 1 September 2021 an officer of the HCCC wrote to the Practitioner and requested that she undertake an English language skills test in accordance with the AHPRA registration standard for medical practitioners. This letter nominated six approved English language skills tests providers. The Practitioner did not undertake an assessment of her English language capacity. In cross-examination she said words to the effect: "I think I don't need that exam because I passed that exam".
In August 2000 the Practitioner passed the Occupational English Test conducted by Language Australia. This 22 year old assessment of the English Language capacity of the Practitioner is at odds with the observations of both Dr Wright and Ms McMillan. In our view, the antiquity of the Occupational English Test detracts from its weight for the purposes of these proceedings.
The transcript of the hearing pursuant to section 150 of the National Law indicates that the Practitioner gave her oral evidence in a manner which was confusing to the members of the Council and the legal representatives. Her own counsel described her evidence as "very, very difficult to follow", "not very consistent" and featuring "a degree of incoherence". Our reading of the transcript leads us to agree with these observations, while making due allowance for technological difficulties and emotional stress experienced by the Practitioner on the day of this hearing.
Our observations of the Practitioner, as she gave her evidence, were similar to those made by her legal representative at the section 150 hearing conducted on 11 June 2020. During these proceedings, the Practitioner was physically present with her solicitor and counsel although the proceedings were conducted by video link. Accordingly she was not burdened with technological difficulties, as had been the case at the section 150 hearing.
We are left in no doubt that the evidence raises questions as to the English language capacity of the Practitioner. In our view, however, the evidence failed to establish that she is not "competent" for the purposes of section 139 of the National Law in that she "does not have sufficient communication skills for the practice of the profession, including an adequate command of the English language". The issue of the protection of the public, however, indicates strongly that these doubts be allayed by way of a requirement that the Practitioner pass an appropriate English language test as a condition of registration.