Solicitors:
Health Care Complaints Commission (Complainant)
Avant Mutual Group Ltd (Respondent)
File Number(s): 1420211
[2]
Introduction
These proceedings are constituted by a Complaint in which the complainant, the Health Care Complaints Commission complains that the respondent Dr John William Follent has engaged in both unsatisfactory professional conduct and professional misconduct within the meaning of the Health Practitioner Regulation National Law (NSW) ("The National Law").
Relevantly, Secs 139B(1)(a) and 139E of the National Law are as follows;
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following -
(a) Conduct significantly below reasonable standardConduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconduct of a registered health practitioner means -
(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 Complaint as pressed in the proceedings is in the following terms;
The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law ("the National Law")
HEREBY COMPLAINS THAT
John William Follent of 13/12 Minjungbai Drive, Tweed Heads South NSW 2486 ("the practitioner"), being a medical practitioner registered under the National Law
COMPLAINT ONE
Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has:
1. engaged in conduct that demonstrates that the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or,
2. ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
PARTICULARS OF COMPLAINT ONE
Patient A
1. The practitioner prescribed Lithium to Patient A during the period October 2009 to September 2011 in consultation with Patient A's psychiatrist and failed to regularly monitor Patient A's lithium levels, thyroid function and renal function.
2. The practitioner prescribed Patient A a Schedule 8 drug of addiction, namely MS Contin, (morphine) 15 mg, 20 tablets at a dose of 1- 2 nocte p.r.n. on 7 March 2008 and MS Contin 30 mg, 20 tablets on 14 March 2008 for shoulder pain. The prescription of MS Contin was inappropriate because:
1. The practitioner did not perform a physical examination, take a proper history of the presenting problems and/or order any tests such as x rays,
2. The second prescription was issued before the initial supply, if taken at the correct dose, had run out, and without recording any reasons for the further prescription.
1. The practitioner prescribed a Schedule 8 drug of addiction, namely oxycodone, to Patient A on the dates and in the quantities set out in the schedule attached and marked A;
1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions;
2. in quantities and/or for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008;
3. when the practitioner knew, or ought to have known, that the drugs so prescribed were being or were likely to be abused.
1. The practitioner failed to conduct a proper physical examination of Patient A to determine the location and extent of his pain before prescribing oxycodone in December 2010.
2. The practitioner failed to conduct a physical examination during any subsequent consultation with Patient A to determine the location and extent of his pain before prescribing oxycodone.
3. Between June 2007 and August 2011 the practitioner prescribed Patient A a Schedule 4D prescribed restricted substance, namely testosterone, on the dates and in the quantities set out in the schedule attached and marked A;
1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions;
2. in quantities and/or for a purpose, that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 33 of the Poisons and Therapeutic Goods Regulation 2008 and/or,
3. without proper and sufficient clinical indications.
1. In June 2007 or at any time thereafter, the practitioner failed to undertake and/or organise and/or record sufficient and appropriate investigations, including a physical examination and ordering of blood tests, for Patient A prior to prescribing testosterone.
2. In June 2007 or at any time thereafter, the practitioner failed to recommend or otherwise arrange any sufficient or appropriate follow-up or review of Patient A including the ordering of tests for the purposes of monitoring Patient A and identifying any complications arising from the treatment prescribed
3. Between January 2009 and December 2010 the practitioner prescribed Patient A a Schedule 4D prescribed restricted substance, namely the anabolic steroid Deca-Durabolin, on the dates and in the quantities set out in the schedule attached and marked A;
1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions;
2. in quantities and/or for a purpose, that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances contrary to clause 33 of the Poisons and Therapeutic Goods Regulation 2008 and/or,
3. without proper and sufficient clinical indications.
1. On January 2009 or at any time thereafter, the practitioner failed to undertake and/or organise and/or record sufficient and appropriate investigations, including a physical examination and the ordering of blood tests, for Patient A, prior to prescribing Deca- Durabolin to Patient A.
2. On January 2009 or at any time thereafter, the practitioner failed to recommend or otherwise arrange sufficient or appropriate follow-up or review of Patient A including the ordering of tests for the purposes of monitoring Patient A and identifying any complications arising from the treatment prescribed.
3. In September 2011 the practitioner consulted with Patient A on 7 September, 9 September, 14 September and 16 September. Patient A was unwell and his symptoms included shortness of breath, cough, sweatiness, possible Mallory Weiss vomiting and laryngitis. The practitioner:
1. Failed to take a proper history of the patient's presenting problems on each of those dates,
2. Failed to take the patient's pulse and/or blood pressure on each of those dates (except on 7 September when he recorded a pulse rate of 84),
3. Failed to take appropriate action after reviewing a chest x ray report on 16 September 2011 which noted the patient's heart was enlarged, including referral to a cardiac specialist or hospital, further examinations and diagnostic tests and/or advice to the patient about what to do if his symptoms got worse.
Patient B
1. The practitioner prescribed Patient B a Schedule 8 drug of addiction, namely Ordine (morphine oral solution), on the dates and in the quantities set out in the schedule attached and marked B in circumstances where the practitioner had formed or ought reasonably to have formed the opinion that Patient B was a drug dependent person (within the meaning of section 27 of the Poisons & Therapeutic Goods Act 1966) and without a proper authority to prescribe under sections 28A and 29 of the PTG Act.
2. The practitioner prescribed Patient B a Schedule 8 drug of addiction, namely Ordine:
1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions;
2. in quantities and/or for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008;
3. when the practitioner knew, or ought to have known, that the drugs so prescribed were being or were likely to be abused.
1. The practitioner inappropriately prescribed Patient B Ordine in circumstances where he knew or ought to have known the patient had a history of abusing analgesic medication and the clinical condition of the patient did not necessitate a change to an oral form of morphine.
2. The practitioner failed to conduct a proper physical examination of Patient B to determine the location and extent of his pain before prescribing Ordine in September 2009.
3. The practitioner failed to conduct a proper physical examination of Patient B during any subsequent consultation with Patient B.
4. The practitioner failed to make inquiries with Medicare's Prescription Shopping Program to ascertain if Patient B was obtaining supplies of morphine and or other drugs of addiction from other practitioners.
5. The practitioner inappropriately prescribed Patient B a prescribed restricted substance, namely Valium (diazepam), on the dates and in the quantities set out in the schedule attached and marked B for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances contrary to clause 34 of the Poisons and Therapeutic Goods Regulation 2008.
6. The practitioner inappropriately provided a prescription for Valium to Patient B on 18 February 2010 in circumstances where the practitioner was aware that Patient B intended to divert the medication to another person.
Patient C
1. The practitioner inappropriately prescribed Patient C a Schedule 8 drug of addiction namely morphine, at a dosage of 90mg a day in September 2010 for back pain in circumstances where x rays performed on 13 September 2010 showed degenerative changes and a likely long standing wedge fracture, and where other non opoid treatments including paracetamol, non-steroidal anti- inflammatory agents had not been trialled.
2. The practitioner inappropriately prescribed Patient C morphine at a dosage of 60mg a day in December 2010 without recording the clinical indications for the prescription.
3. The practitioner failed to conduct a proper physical examination of Patient C to determine the location and extent of his pain before prescribing morphine in September and December 2010.
4. Between September 2010 and December 2010 the practitioner inappropriately prescribed Patient C a Schedule 8 drug of addiction namely, oxycodone,
1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions;
2. without proper and sufficient clinical indications;
3. in quantities and/or for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulation 2008.
1. The practitioner failed to conduct a proper physical examination of Patient C to determine the location and extent of his pain before prescribing oxycodone in September 2010.
2. The practitioner failed to conduct a physical examination during any subsequent consultation with Patient C to determine the location and extent of his pain before prescribing oxycodone.
3. (a) The practitioner failed to consider and/or investigate whether Patient C suffered from osteoporosis, having regard to his advanced degenerative disc disease with possible wedge facture and/or,
(b) The practitioner failed to provide to Patient C appropriate advice about osteoporosis.
1. The practitioner failed to consider and discuss with Patient C non opiate treatments for his chronic back pain.
2. The practitioner inappropriately prescribed Patient C a prescribed restricted substance, namely Alprazolam, at a dose of 6mg a day which is above the recommended maximum dose between May 2010 and December 2010 and without proper and sufficient clinical indications for the high dose.
Patient D
1. On 3 May 2011 the practitioner;
1. failed to take an adequate history of Patient D's presenting problems including her reported fall and injury to her back;
2. failed to conduct a proper physical examination of Patient D including an examination of her back to identify the location and severity of her back pain and tenderness.
1. On 6 May 2011 the practitioner;
1. failed to take an adequate history of Patient D's presenting problems including her reported fall and injury to her back.
2. failed to conduct a proper physical examination of Patient D including an examination of her back to identify the location and severity of her back pain and tenderness.
1. On 6 May 2011 when reviewing the x ray films of Patient D's spine, the practitioner failed to detect the presence of a compression fracture of the L1.
2. The practitioner failed to review the x ray report sent to him on 9 May 2011 relating to the x ray of Patient D's spine or if he did review it, failed to follow up with the patient.
3. On 17 May 2011 the practitioner;
1. failed to take an adequate history of Patient D's presenting problems,
2. failed to conduct a proper physical examination of Patient D,
3. failed to take appropriate action including referral to an appropriate specialist or hospital, further examinations and diagnostic tests and/or advice to the patient and her carer about what to do if her symptoms got worse.
1. On 24 May 2011 the practitioner;
1. failed to take an adequate history of Patient D's presenting problems.
2. failed to conduct a proper physical examination of Patient D.
Patient E
1. The practitioner failed to conduct a complete physical examination of Patient E in February 2011 to determine the location and extent of his pain before prescribing a Schedule 8 drug of addiction, namely oxycodone.
2. The practitioner failed to conduct a physical examination during any subsequent consultation with Patient E.
3. The practitioner failed to make inquiries with the Prescription Shopping Program to ascertain if the patient was obtaining supplies of oxycodone or other drugs of addiction from other practitioners before commencing or continuing to prescribe him oxycodone.
4. The practitioner prescribed Patient E a schedule 8 drug of addiction, namely oxycodone on the dates and quantities set out in the schedule attached and marked E;
1. without exercising responsible medical judgment as to whether it was appropriate to issue such prescriptions;
2. in quantities or for a purpose that does not accord with the recognised therapeutic standard of what is appropriate in the circumstances, contrary to clause 79 of the Poisons and Therapeutic Goods Regulations 2008;
3. when the practitioner knew, or ought to have known, that the drugs so prescribed were being or were likely to be abused.
1. The practitioner continued to prescribe oxycodone on 3 occasions during May and June 2011 after receiving a letter from the Queensland Government Drugs of Dependence Unit dated 25 May 2011 informing him that Patient E was registered for opiods treatment in Queensland and he should not be prescribed any narcotics.
COMPLAINT TWO
Is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has contravened clause 7(1) and Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010 ("the HPR Regulation").
[3]
PARTICULARS OF COMPLAINT TWO
1. The practitioner failed to maintain adequate medical records for each of patients A to E in that he failed to record:
1. information relevant to his diagnosis and treatment of the patients;
2. the patients' medical history;
3. the results of physical examinations performed;
4. plan of treatment for the patients; and/or
5. advice given to the patients.
COMPLAINT THREE
is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or
2. engaged in 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.
PARTICULARS OF COMPLAINT THREE
Particulars of Complaints One and Two above are relied upon and repeated, both individually and cumulatively.
[4]
Suppression order
A suppression order was made at the commencement of the hearing under clause 7 of Schedule 5D of the National Law restricting the publication of the names and addresses or any details tending to identify the names and addresses of any patients or former patients of the respondent.
[5]
The evidentiary matrix
There was tendered into evidence by both parties certain documentation, and the respondent gave oral evidence, upon which he was cross-examined. Included within the documentation was a statement by the respondent that he accepted that he was guilty of the conduct asserted against him, including the particulars within the Complaint. The respondent further conceded in writing that his conduct constituted, presumably in the aggregate, unsatisfactory professional conduct and professional misconduct.
By Sec 149 of the National Law it becomes unnecessary to conduct an inquiry where the complaints made against a medical practitioner are admitted in writing. Accordingly, it was not necessary to pursue each of the allegations of misconduct in any great detail.
[6]
Formal findings
Having regard to the written concessions made by the respondent, and taking into account the nature and extent of the particulars of complaint admitted by him we are comfortably satisfied to the requisite standard that the complainant has established that the respondent's conduct constitutes both unsatisfactory professional conduct and professional misconduct and we so find.
[7]
The course of the proceedings
Proceedings before this Tribunal alleging unsatisfactory professional conduct and professional misconduct are conducted in a two-stage process. The first stage comprises the inquiry into whether unsatisfactory professional conduct and professional misconduct have been established to the requisite standard. If so, the Tribunal then embarks upon the second stage, being a consideration of what consequential orders are appropriate. The range of orders is set out in general terms in Sec 149 A. Sec 149C empowers this Tribunal to suspend or cancel the registration of the respondent upon finding him guilty of professional misconduct.
Once the respondent had made the concessions outlined above, and we were comfortably satisfied that we could find each of the particulars proven and that the conduct of the respondent in the aggregate constituted both unsatisfactory professional conduct and professional misconduct, the parties were content to move straight into the second stage of the proceedings. It was for this purpose that the respondent gave evidence, and certain supporting documentation had been included in the material filed on his behalf. The parties then proceeded into submissions. The complainant submitted, in general terms, that the respondent should be subject to a period of suspension of 6 months, followed by the imposition of certain practice conditions on his registration upon him resuming practice. The respondent in evidence had asserted that at the time that the conduct complained of occurred he was practising as a solo general practitioner. He has now joined a corporatized group practice which operates under a number of established systems. He said in evidence that he now realises that his practice of medicine was then inadequate, and since joining the group practice he no longer conducts himself in any way that could give rise to complaint. In these circumstances it was submitted on his behalf that the Tribunal could be confident that the respondent could now continue to practice medicine safely. On this basis it was suggested that the imposition of a reprimand would be appropriate, together with certain practice conditions, when formulating our consequential orders.
We then engaged in dialogue, principally with counsel for the respondent, about whether and to what extent it was appropriate for us to accept the respondent's assertion that he was now capable of practising medicine safely, and whether the suspension of his registration was not necessary in order to protect the public. We had serious concerns whether we should proceed to make consequential orders relying principally on assertions made by the respondent that he had insight into his prior misconduct and had changed his practice of medicine.
In our opinion, it is necessary for a medical practitioner in the position of the respondent to demonstrate to the satisfaction of the Tribunal that, notwithstanding his prior admitted misconduct, he was not only capable of, but was indeed actually practising safe medicine and was unlikely to transgress again. This was resisted by the respondent, relying on a number of observations in the New South Wales Court of Appeal to the effect that de-registration should not occur unless there is a finding of probable permanent unfitness to practice medicine. (There is a succint and helpful review of the authorities in Health Care Complaints Commission V Dr Della Bruna [2014] NSWCATOD 31). Of course, these comments apply to deregistration rather than suspension. However, we should add that in the course of hearing submissions, we indicated that it was arguable that suspension of the respondent was likely to serve no good purpose and that the appropriate alternatives may be either de-registration or the imposition of some alternative order coupled with practice conditions. We should add for completeness that there is some tension in determining to cancel the registration of a medical practitioner on the basis of probable permanent unfitness to practice and then fixing a minimum period after which he or she may reapply for registration. This tension has seemingly been recognised by the New South Wales Court of Appeal. (See HCCC v Abou Hatoun & Anor [2004] NSWCA 30 at [42]).
It is not necessary that we discuss this matter in greater detail at this stage of the proceedings. It is relevant only because the respondent submitted that we had to be satisfied that he was probably permanently unfit to practice before cancelling his registration. It was asserted that this was something that the complainant had to demonstrate, and there was no evidence adduced by the complainant to substantiate this. With respect, this assertion is incorrect. The respondent has conceded that he is guilty of professional misconduct, a serious matter, based on serious deficiencies in his practice of medicine during the period June 2007 to August 2011. He now asserts that these deficiencies no longer exist. The burden of demonstrating that a particular situation exists falls on the party asserting it. Accordingly, in assembling and considering the factual matrix against which the appropriate orders are to be determined, it is necessary for the respondent to demonstrate such matters in his favour that he wishes to put forward.
We should make it clear that where a medical practitioner has been found guilty of professional misconduct the burden of demonstrating that there are matters which support his or her right to continue to practice medicine, albeit with restrictions by way of practice conditions and the like, will fall on the medical practitioner. It is not the responsibility of the HCCC to demonstrate that the medical practitioner is not able to practice medicine safely even on a qualified basis outside the proven area of misconduct. This would require the HCCC to establish a negative proposition. It would require it to make extensive enquiries about all of the circumstances pertaining to the practice of the medical practitioner in addition to the matters the subject of the finding of professional misconduct. It would impose an unreasonable and inappropriate burden on the HCCC. We rejected the submission made on behalf of the respondent to this effect during the course of the proceedings. The circumstances pertaining to the practice of the medical practitioner are particularly within his or her knowledge and the burden should fall on him or her accordingly.
We would add that there are a number of matters arising out of the evidence of the respondent which may arguably give some cause for concern about whether he is, in fact, practising safe medicine which we do not need to discuss at this stage, and about which we have no concluded view. Furthermore, he has a very heavy workload and sees a large number of patients, which must give rise to some concern as to whether or not he is spending adequate time with each patient. Also, the misconduct which he has admitted extends to matters such as diagnosis, appropriate treatment regimes, record keeping, patient management and patient care. There is more involved than merely being a "soft touch" for the administration of drugs of addiction.
In rejecting the approach contended for by the respondent, we also have regard to observations in the NSW Court of Appeal in Health Care Complaints Commission v Litchfield Matter No Ca 40748/96 [1997] NSWSC 297 (8 August 1997). The Court was dealing with circumstances where the Medical Tribunal had suspended the registration of a medical practitioner relying in part on a lapse of time between the commission of certain inappropriate sexual acts and the time when the proceedings came on for hearing. The circumstances applying to these proceedings are somewhat different, but there are comments made by the Court which are appropriate to repeat for the purpose of these proceedings. The Court (Gleeson CJ, Meagher and Handley JJA) said;
"In cases such as this, the Tribunal and this Court should not assume that the doctor has become a reformed person. As Walsh JA said in Ex Parte Tziniolis (1966) 67 SR (NSW) 448 at 461:
"Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man".
Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.
Lapse of time since the events giving rise to a complaint will be relevant in determining whether disciplinary proceedings can be fairly determined or should be stayed as an abuse of process. It may also be relevant in determining whether the doctor has undergone a reformation of character and behaviour, or whether the incidents can be viewed as isolated or passing departures from proper professional standards or attributed to youth or inexperience. Lapse of time appears to have no other relevance and the Tribunal erred in relying on it as they did.
We rely on the above extract as reinforcing the need for a medical practitioner in the position of the respondent in these proceedings to bear a burden of proving that he is capable of practising, and has been practising safe medicine since the time when the misconduct occurred.
Adjournment application
When our views concerning the burden of proof became clear to the respondent, his counsel sought an adjournment to give him an opportunity to adduce further evidence concerning his current practice of medicine. This was resisted by the complainant, relying in part on the need for the Tribunal to act expeditiously and the fact that the respondent had had an adequate opportunity to prepare his case.
We determined to grant the adjournment because on balance, equity considerations dictated that this was an appropriate result. There seems to have developed an approach by the principal insurers assisting respondents before this Tribunal that is consistent with the view proposed by the respondent that overall it is for the HCCC to demonstrate that a medical practitioner is probably permanently unfit to practice, without the necessity for the practitioner to bear the burden of establishing any matters asserted by him or her to rebut the alleged unfitness. For reasons which we have earlier advanced, we have rejected this approach. In appropriate cases, the burden of pursuing such rebuttal would be assisted by evidence such as independent peer reviews of practice performance, independent random audits, voluntary subjection to appropriate practice conditions, character references and convincing proof of insight, contrition and remorse. Evidence about matters of this kind may, in general, assist the Tribunal in discharging its statutory function.
Furthermore, considering the time lapse between the last alleged course of misconduct in 2011, coupled with the fact that the respondent has been in unrestricted practice since then, a further delay of a few months coupled with some appropriate conditions imposed by way of interim orders would not unduly prejudice anyone, and would not unnecessarily expose the public to any undue risk of harm.
We determined to grant the adjournment application for these reasons.
Interim orders
We had indicated to the parties during submissions that we would only grant an adjournment if we made interim orders imposing practice conditions. After discussion between the parties, they reached agreement on the content of interim orders which reflected these conditions. We set out below the Interim Decision which we announced at the conclusion of the second day of the hearing on 31 March, 2015:
"HIS HONOUR: Having regard to the nature and extent of the particulars of each of the complaints set out in the notice of complaint and the admissions made by the respondent, we are comfortably satisfied for present purposes that in the aggregate they constitute professional misconduct. The respondent conceded that they did constitute professional misconduct. We shall publish written reasons as soon as possible setting out our conclusion.
We note that the proceedings are stood over for stage 2 hearing on 13 August 2015. We have decided that we should impose certain practice conditions on an interim basis pursuant to s 165L of the Health Practitioner Regulation National Law. We are minded to impose practice conditions because of the nature and extent of the particulars of the complaints made against the respondent which he has admitted. They indicate serious short-comings in his practice of medicine.
We acknowledge that there will be produced at the stage 2 hearing evidence which will go to the current ability of the respondent to safely practise medicine. In the interim we are anxious to ensure the protection of the public by imposing practice conditions and making orders which will achieve this purpose.
Furthermore the results of the procedures which have been put in place by way of these practice conditions will assist the parties and more importantly the Tribunal in making a determination as to the appropriate outcome of the stage 2 hearing.
In the event that anything arises of an untoward or unanticipated nature the Tribunal grants liberty to apply which may be exercised by either party upon short notice and any matter can by way of delegation of all members of the Tribunal come back initially before Acting Judge Marks.
The Practice Conditions imposed on the registration of Dr John W Follent with effect 31 March, 2015 are:
1. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 and to provide written evidence to the Medical Council of New South Wales (the Council) that he has attended the offices of the Pharmaceutical Services and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug within ten days of this date being 31 March 2015.
2. Not to possess, supply, administer or prescribe any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 and to provide written evidence to the Council that he has attended the offices of the Pharmaceutical Services and consented to an Order being made under the Poisons and Therapeutic Goods Act 1966 to prohibit him from possessing, supplying, administering or prescribing 0any Schedule 4 Appendix D drug within ten days of this date being 31 March 2015.
3. To practise only in a group practice approved by the Council where there are at least three medical practitioners (excluding the respondent).
4. The respondent is to consult not more than 40 patients per day including nursing home patients except in the case of emergencies.
5. To practise only at the Tweed Heads/Bannora Medical Centre at Tweed Heads South.
6. To practise under category B supervision in accordance with the Medical Council of New South Wales Compliance Policy - Supervision (as varied from time to time) for a minimum period of 18 months and as subsequently determined by the appropriate review body.
7. At each meeting the practitioner is to review and discuss his practice with his Council-approved supervisor with particular focus on
-. taking patient's histories
-.patient examinations, investigations, clinical assessments,-. prescribing, treating plans and follow-up
- record keeping
8. To authorise the Medical Council of New South Wales to provide proposed and approved supervisors with a copy of the interim decision of the Medical Tribunal of NSW of 31 March, 2015 and any other relevant documents
9. To authorise the supervisor to provide a supervision report to the Council no later than 15 July 2015
10. To authorise the Council to provide a copy of the supervision report to the Healthcare Complaints Commission
11. The reporting requirements in (b),(c) and (d) are in addition to any reporting requirement as per the Compliance Policy - Supervision.
12. To forward evidence to the Medical Council of New South Wales by 15 April 2015 that he has provided a copy of these conditions to the principal of the practice and other responsible senior officer at the Tweed Heads/Bannora Medical Centre
13. 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 New South Wales and
a)the audit is to be held by 15 July 2015
b)the auditor(s) is to assess 20 individual patient files in relation to treatment provided by the practitioner at the Tweed Heads South practice and a further 20 individual patient files in relation to treatment provided by the practitioner at the Raffles Nursing Home during the previous 12 months. The patient files are to be selected at random by the auditor(s) and assessed for his compliance with good medical record keeping standards and legislative requirements. The auditors should pay particular attention to, and report on, recording of history taking, findings on examination, clinical assessment and diagnosis, prescribing, management plan, follow-up and whether they are in a form to allow continuity of patient care by another health professional.
c) to authorise the auditors to provide the Council with a report on their findings which report is to be furnished to the Council no later than 31 July 2015.
d)To authorise the Council to provide a copy of the report to the Healthcare Complaints Commission.
14. To meet all costs associated with the implementation of these conditions
15. To complete within six months of 31 March 2015 the Issues in General Practice Prescribing Course organised by Monash University and
a) within four weeks of this decision the respondent must provide evidence to the Council of his enrolment in the abovementioned course
b) within four weeks of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course
c) to bear responsibility for any costs incurred in meeting this condition.
16. The respondent is to forward to the Council within seven days of 31 March 2015 a copy of these practice conditions signed by his current employer or practice principal and authorise such persons to notify the Council of any issues arising in relation to compliance with these conditions or his practice of medicine in general. In the case of any future employer or place of work, this must be provided to the Council within seven days of commencing employment.
17. The respondent is to forward to the Council within seven days of 31 March 2015 a copy of these practice conditions signed by the medical director and nursing unit manager of any nursing homes which he visits for the purpose of providing health services to patients and authorise such persons to notify the Council of any issues arising in relation to compliance with these conditions or his practice of medicine in general. In the case of any future nursing homes visited by the respondent, this must be provided to the Council within seven days of commencing visits.
18. The respondent is to authorise and consent to any exchange of information between the Council and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions."
The above represent our reasons for the interlocutory rulings and interim decision made during the course of the hearing.
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: 20 April 2015