Health Care Complaints Commission v Kolos

The Agreed Facts

1. The parties provided to the Tribunal a Statement of Agreed Facts in the following terms: STATEMENT OF AGREED FACTS Background 1. Dr Damute Maria Kolos ("the practitioner") is a 73 year old general practitioner. 2. On 20 December 1967, the practitioner was first registered as a medical practitioner. 3. On 27 February 2013, the practitioner was the subject of a Performance Interview conducted by the Medical Council of NSW ("the Council") following a patient complaint.1 The Panel made recommendations including that she be the subject of a Performance Assessment and undergo neuropsychometric assessment. 2 4. On 20 June 2013, the practitioner underwent a neuropsychological assessment with Dr Pauline Langeluddecke, a neuropsychologist appointed by the Council.3 5. On 30 November 2013, the practitioner attended a Performance Assessment.4 The Assessors made recommendations including that she be referred to a Performance Review Panel and that she limit the number of patients she sees.5 2014 - initial conditions 6. On 2 September 2014, a Performance Review Panel was convened by the Council6 and imposed conditions on the practitioner's registration, including that she complete a clinical communication program, be subject to mentoring, and "treat not more than five patients in any one hour". 7 2016 - stricter conditions 7. On 21 April 2016 and 26 April 2016, the practitioner was the subject of Performance Re-Assessment.8 The Assessors made recommendations including that she be referred to a Performance Review Panel and that consideration be given to a daily maximum number of patients. 9 1 Tab 19 Performance Interview report 2 Tab 19 Performance Interview report p 6 3 Tab 14 Dr Langeluddecke report 4 Tab 18 Performance Assessment report 5 Tab 18 Performance Assessment report p 6 Tab 17 Performance Review Panel report 7 Tab 17 Performance Review Panel report p 16-17 8 Tab 16 Performance Re-assessment report 9 Tab 16 Performance Re-assessment report p 25 8. On 8 September 2016, a further Performance Review Panel was convened.10 The Panel imposed stricter conditions on the practitioner's registration, including group practice, category B supervision, further education and Practice Condition 2: "2. (a) To practise no more than 8 hours per day and no more than 5 days per week. (b) To treat or consult with no more than five patients in any one hour. (c) For the purposes of monitoring this condition the practitioner is to provide the Council with copies of records confirming the number of patients treated or consulted and consultation times on any dates specified by the Council."11 The effect of Practice Condition 2 was that from 8 September 2016 the practitioner was only permitted to treat or consult with a maximum of 40 patients on any day. 2018 - Botany Medical Centre 9. On 12 January 2018, the practitioner commenced working at Botany Medical Centre.12 10. On 24 September 2018, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients.13 11. On 2 October 2018, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 14 12. On 4 October 2018, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 15 13. On 26 October 2018, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 16 14. On 30 October 2018, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 17 15. On 2 November 2018, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 18 16. On 24 December 2018, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 19 17. On 27 December 2018, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 20 18. On 28 December 2018, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 21 10 Tab 15 Performance Review Panel report 11 Tab 15 PRP report p 29 12 Tab 29 Practitioner's cv 13 Tab 4 Medicare table p 2; Tab 32 Annexure A 14 Tab 4 Medicare table p 3; Tab 32 Annexure B 15 Tab 4 Medicare table p 3-4; Tab 32 Annexure C 16 Tab 4 Medicare table p 4-5; Tab 32 Annexure D 17 Tab 4 Medicare table p 5-6; Tab 32 Annexure E 18 Tab 4 Medicare table p 6-7; Tab 32 Annexure F 19 Tab 4 Medicare table p 7-8; Tab 32 Annexure G 20 Tab 4 Medicare table p 8-9; Tab 32 Annexure H 21 Tab 4 Medicare table p 9-10; Tab 32 Annexure I 19. On 2 January 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 22 20. On 3 January 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 23 21. On 4 January 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 24 22. On 7 March 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 25 23. On 11 March 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 26 24. On 13 March 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 27 25. On 14 March 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 28 26. On 18 March 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 29 27. On 19 March 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients. 30 28. On 22 March 2019, Medicare Australia data indicates that the practitioner breached Practice Condition 2 by consulting more than 40 patients.31 29. On 12 June 2019, the Council wrote to the practitioner advising her about alleged breaches of Practice Condition 2 on 19 occasions from 24 September 2018 to 22 March 2019.32 30. On 23 June 2019, the practitioner sent a response to the Council.33 31. On 24 June 2019, the Council requested further information from the practitioner.34 32. On 25 June 2019, the practitioner sent a further response to the Council.35 2019 - Section 150 hearing 22 Tab 4 Medicare table p 10-11; Tab 32 Annexure J 23 Tab 4 Medicare table p 11-12; Tab 32 Annexure K 24 Tab 4 Medicare table p 12-14; Tab 32 Annexure L 25 Tab 4 Medicare table p 14-15; Tab 32 Annexure M 26 Tab 4 Medicare table p 15-16; Tab 32 Annexure N 27 Tab 4 Medicare table p 16-17; Tab 32 Annexure O 28 Tab 4 Medicare table p 17-18; Tab 32 Annexure P 29 Tab 4 Medicare table p 18-19; Tab 32 Annexure Q 30 Tab 4 Medicare table p 19-20; Tab 32 Annexure R 31 Tab 4 Medicare table p 20-21; Tab 32 Annexure S 32 Tab 4 Council letter 33 Tab 5 Practitioner's response to Council 34 Tab 6 Council email 35 Tab 7 Practitioner's further response to Council 33. On 9 August 2019, the Council convened proceedings under section 150 of the National Law.36 The practitioner gave evidence and was assisted by her solicitor during the hearing. 34. On 9 August 2019, a condition was imposed on the practitioner's registration not to practise medicine.37 The delegates also recommended that the practitioner undergo a further neuropsychological assessment.38 2019 - investigation 35. On 27 September 2019, the Health Care Complaints Commission ("the Commission") notified the practitioner that the complaint from the Council had been referred for investigation.39 36. On 4 October 2019, the practitioner underwent a further neuropsychological assessment with Ms Jillian McMillan, a neuropsychologist appointed by the Council.40 37. On 13 October 2020, the practitioner underwent a neurological assessment with Dr Judith Spies, a neurologist appointed by the Council.41 39. On 12 November 2019, the Commission requested the practitioner provide a response and information.42 39. On 16 December 2019, the practitioner's solicitor provided a response to the Commission.43 40. On 30 September 2020, the Commission invited the practitioner to provide submissions.44 41. On 2 July 2021, the Commission again invited the practitioner to provide submissions.45 42. On 1 December 2021, the practitioner underwent a further neuropsychological assessment with Ms Jillian McMillan. 36 Tab 3 Section 150 decision; Tab 8 Section 150 transcript 37 Tab 2 Council referral; Tab 3 Section 150 decision p 14 38 Tab 3 Section 150 decision p 12 39 Tab 22 HCCC letter 40 Tab 12 Dr McMillan report 41 Tab 10 Dr Spies report 42 Tab 23 HCCC letter 43 Tab 24 Practitioner's response to HCCC 44 Tab 27 HCCC letter 45 Tab 28 HCCC letter

Proof

1. Where the facts alleged to be the basis for the complaints are contested, the HCCC bears the onus of proof, and the burden of proof is proof on the balance of probabilities (see Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 at [126]-[135]).

Complaint One

1. Complaint One relies upon that part of the definition of unsatisfactory professional conduct which is provided for in s 139B(1)(c)(i) of the National Law: 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 - … (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; …
2. It is an agreed fact that the data collected by Medicare shows that Dr Kolos consulted with more than 40 patients per day on each of the 19 days alleged in Complaint One.
3. The Medicare data records the following number of consultations by Dr Kolos on the days the subject of Complaint One: 1. 24 September 2018 - 41 2. 2 October 2018 - 43 3. 4 October 2018 - 43 4. 26 October 2018 - 44 5. 30 October 2018 - 42 6. 2 November 2018 - 41 7. 24 December 2018 - 53 8. 27 December 2018 - 46 9. 28 December 2018 - 46 10. 2 January 2019 - 54 11. 3 January 2019 - 47 12. 4 January 2019 - 50 13. 7 March 2019 - 49 14. 11 March 2019 - 54 15. 13 March 2019 - 52 16. 14 March 2019 - 45 17. 18 March 2019 - 56 18. 19 March 2019 - 45 19. 22 March 2019 - 60
4. On 13 of the 19 dates set out in [14], Dr Kolos typed a medical record for the same number of patients as the number shown in the Medicare records, or a greater number of patients. We have no reason to think that the Medicare records are not accurate. The allegation in Complaint One has clearly been proven with respect to those 13 dates.
5. On 24 December 2018, the Medicare records show that Dr Kolos charged for 53 patients, but typed a medical record for 48 patients. On 27 December 2018, Dr Kolos charged for 46 patients, but typed a medical record for 45 patients. On 4 January 2019, Dr Kolos charged for 50 patients but typed a medical record for 48 patients. On 7 March 2019, Dr Kolos charged for 49 patients but typed a medical record for 47 patients. On 13 March 2019, Dr Kolos charged for 52 patients but typed a medical record for 51 patients. On 19 March 2019, Dr Kolos charged for 45 patients, but typed a medical record for 43 patients.
6. On each of the dates set out in [16], Dr Kolos typed a medical record for more than 40 patients, even though there were fewer typed medical records than patients charged for. The allegation in Complaint One has been proven with respect to all 6 of the dates in [16], and therefore all of the 19 dates alleged.

Complaint Two

1. Complaint Two relies upon that part of the definition of unsatisfactory professional conduct which is provided for in s 139B(1)(l) of the National Law: 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 - (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. Complaint Two alleges that the explanations that Dr Kolos gave at the s 150 hearing as to why the records show that she exceeded, on 19 days, the quota of patients she was permitted, by the conditions on her registration, to see in a day, was false and misleading, and therefore improper and unethical and thus unsatisfactory professional conduct under the National Law.
3. The transcript of the s 150 hearing was before us as Tab 8 of Volume 1 of the documents tendered by the HCCC. The following exchanges in that transcript are relevant to Complaint Two: P 54 - 55 DR EDWARDS: Could you explain to us how it is that on 19 occasions in that six-month waiting period you saw more than what your conditions allow you to see? Including on one particular day, 60 patients, on 22 March 2019. DR KOLOS: I saw that, yes. DR EDWARDS: What's your explanation of you seeing more than your conditions allow you to see? What's your explanation for that? DR KOLOS: I didn't actually see that many, you see, that's the whole thing. They have been billed under my name, but I didn't actually see all those. I didn't actually have a 10-minute consultation, you know, a usual 10-minute consultation with them. These people were billed in my name, but some of them I had not actually even seen, they'd been seen by the nurses on my behalf and they were billed on my behalf. But I didn't know that they were billing on my behalf. I was billing my own patients, and they were billing in the treatment room on my behalf as well. I didn't know that, you see. It's only when I saw the increased numbers that I realised that this had been happening. DR EDWARDS: Are you able to indicate which ones of those were the patients that the nurses saw and you didn't see? DR KOLOS: I did try to. I looked at the page where all the appointments were. A lot of them are actually just the first letter of the first name, abbreviations, first letter of the surname. Sometimes in a 10-minute slot there'd be three, and I wasn't able to pick up which of the patients had actually been billed but not seen by me. I tried to do that, but I found it very impossible, really. I know I did - 78 pap smears were done in my name where I write a form, give it to the patient, the patient make an appointment, and the nurse does the pap smear. That's being billed under me as well. None of those pap smears had I seen when they came back to have their pap smear done. So, that would be at least 79 somewhere in all this that a pap smear had been done and billed in my name, but I hadn't seen the patient. It was done on my behalf. I wouldn't know which ones because they're alphabetically listed first letter and surname. I wasn't able to follow up in the notes to see whether I'd actually written any notes about it or not, that's why I'm a bit frustrated, actually. P 58 - 59 DR HAIKAL-MUKHTAR: I understand, but my question to you is - did you see, sometimes, patients because they were distressed waiting in the waiting room even though you had reached your quota of patients. DR KOLOS: If that person is sick, yes, I would see them, and I have done that. When there's a patient who's sick and the nurses - I've got a well-trained nurse out the front who sort of keeps an eye on the place. If she thinks that a patient is sick, then she'll ask me to see that person even though I've already got my 40 patients lined up. DR HAIKAL-MUKHTAR: Why would you see them in breach of your conditions? DR KOLOS: Because I don't want somebody to have serious consequences as a result of their illness because I feel sympathy, I feel compassion for that person. DR HAIKAL-MUKHTAR: Okay. So you're saying you would see then only because they were an emergency. Is that what you're saying? DR KOLOS: That's right, because the nurse out front thinks it's an emergency, that they are very sick, and usually she's right. She's usually right. P 60 - 62 DR EDWARDS: Dr Kolos, if we look at page 76 to 77, which is the consultations you had on 23 March - sorry, 22 March, I beg your pardon. By my counting, there were 60 patients on that day that had billings in your name. DR KOLOS: They have these immunisation days, you see, where people come. They know which are the immunisation days, you see, and people bring their children in for immunisations. There are some days that I would have had more, for example, immunisation billings than other days because I just got a concentrated flow of immunisations. DR EDWARDS: You're saying on that day, there were 20 immunisations. DR KOLOS: No, I don't know whether there were 20 immunisations, but there would've been more immunisations. On those days there were more immunisations. Then of course there's other things, there's wound care, and there's pap smears. They've got the nurse that comes in and does the pap smears, so I might have four or five pap smears on that particular day. DR EDWARDS: On that particular day, there were 20, half of what you were supposed to be limited to, consultations that you're saying were billed under your name that you did not see but were seen by the nurse. DR KOLOS: That's right, yes. They would've been immunisations, maybe pap smears, maybe wound checks. A very common one is travel vaccinations, that's another common one. Not just children, but travel vaccinations. DR EDWARDS: You're saying that if the Council were to ask you to pull the notes of those 60 patients on that day, you would be very confident that you had seen 40 or fewer of those patients, that 20 of those patients would've only been seen - - - DR KOLOS: Maybe even more, it could've been even more. DR EDWARDS: Could've been even more, just seen by the practice nurse and billed in your name. DR KOLOS: Practice nurses, there's three of them that do that. But you see the problem is I looked up this and a lot of the billings are actually just the initials of the person, so I don't really know how to find that particular patient because they're just initials. DR EDWARDS: Sorry, on here we actually have the patient names. DR KOLOS: If there's names, I'd be able to check up. If there's names, yes. DR EDWARDS: Essentially, that's your explanation as to why - - - DR KOLOS: That's one of the explanations, yes. DR EDWARDS: One explanation, what's the other explanation? DR KOLOS: The other explanation is I sometimes have to see emergency patients as assessed by our triage nurse, so I need to see them because I'm the only one that has the spots available, you see. Sometimes I even haven't got spots available and I'm asked to see them because the other doctors are over full, their lists are full and over full more than they can see. So sometimes, I'm asked to see other people as well, particularly at the end of the day because that's when sick people come in.
4. The medical records provided to the Tribunal in Volume 2 of the HCCC's documents and forming exhibits to the statement of Ms Michelle Tran, the practice manager of the practice at which Dr Kolos was working for the time period relevant to the application, were downloaded by Ms Tran from Dr Kolos' practice records. In other words, Dr Kolos typed the records. In those records, in instances where a patient requests an immunisation, other information is also recorded. Clearly, Dr Kolos consulted with the patient on the day of the record. The explanations given by Dr Kolos as to why the Medicare records say that she saw more than 40 patients on the 19 days alleged in Count 1 are contradicted by the medical records typed by Dr Kolos on the days in question. Dr Kolos' evidence was inconsistent on this point, but ultimately she agreed that she saw all of the patients, including those who then went on to have some treatment by the nurses. She said that the nurses would not treat the patient unless "the doctor first came and saw the patient" (see transcript p 44 line 26).
5. We accept that Dr Kolos may, from time to time, have agreed to see patients after she had already filled her quota of 40 in an emergency situation. We also accept that the practice nurses may have used Dr Kolos' provider number to bill patients requiring pap smears, immunisations and wound care. However, neither of those circumstances explains the number of patients over 40 seen on the 19 days the subject of Complaint One. The explanation for the records, quite simply, is that Dr Kolos exceeded her quota of patients on each of those days, to the extent recorded in the records, in breach of the condition imposed upon her registration.
6. Dr Kolos said that she did not have access to her practice records at the time that she made the statements to the s 150 hearing. However, it is clear from the materials before us that the allegation in Complaint One was put to Dr Kolos by letter of 12 June 2019 from the Medical Council. At that time, Dr Kolos was working at the practice in question and had access to her medical notes. However, in her response the Medical Council's letter, Dr Kolos, in an email dated 23 June 2019, said that it was 'impossible' for her to 'go through all of the consultations I have performed in the last 12/12'. Dr Kolos said 'In this new software I do not know how to count the number of patients that have been billed for me per day and I have to rely on staff'. Dr Kolos also referred to the process, in the medical practice, of practice nurses performing certain tasks and billing in the name of a doctor, saying 'I do not have facilities to check for this'.
7. We do not consider that Dr Kolos' protests, either with respect to a lack of access to records, or, at the earlier date, with respect to her apparent inability to obtain information from the system, constitutes a satisfactory response to the allegation in Complaint One. It was Dr Kolos' responsibility to comply with the condition imposed upon her registration, and she cannot cede responsibility for that to the practice staff, the practice nurses or to anyone else. It would have been a simple matter for her to keep track of the number of patients she was seeing in a day herself. It was incumbent upon Dr Kolos to ensure that any exculpatory explanation she proffered at the s 150 hearing was truthful. We note that she had the benefit of legal representation at the s 150 hearing.
8. We find that Dr Kolos' statements at the s 150 hearing, set out above, were false and misleading in that Dr Kolos explained the patients seen by her over the quota set by the condition, on the 19 days in issue, as either having been seen by her because they presented as a health emergency for the patient, or as having been seen by a practice nurse rather than by Dr Kolos. Dr Kolos' own typed medical records show that this was not the case.
9. Making false and misleading statements to a s 150 hearing is improper and unethical conduct, and constitutes unsatisfactory professional conduct. Complaint Two has been proven on the balance of probabilities.

Complaint Three

1. Complaint Three relies upon the definition of professional misconduct in s139E of the National Law: 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 practitioner's registration.
2. Complaint Three is an allegation of professional misconduct on the basis that either of the instances of unsatisfactory professional conduct alleged in Complaint One or Complaint Two is sufficiently serious to constitute professional misconduct, or, in addition or alternatively, both of those instances of unsatisfactory professional conduct, taken together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Dr Kolos' registration.
3. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19]-[20], Basten JA said: 19. The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. [14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, [15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, [16] overservicing [17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. [18] 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
4. The context within which the condition limiting the number of patients Dr Kolos could see in a day, and the purpose of that condition, are relevant to the assessment of whether the breach of the condition is sufficiently serious to justify the suspension or cancellation of Dr Kolos' registration.
5. Dr Kolos was first registered to practise medicine in NSW on 20 December 1967. She was awarded a Bachelor of Medicine/Bachelor of Surgery by the University of Sydney in 1967. Dr Kolos has worked as a general practitioner since 1978. She worked in her own practice for many years. In 2014 she moved to a group practice. In 2016, she moved to another group practice and then, in 2018, she moved to a further group practice where the events the subject of Complaint One occurred.
6. In December 2011, a patient made a complaint about Dr Kolos which triggered a performance interview, which took place in February 2013. The recommendation following the performance interview was that Dr Kolos undergo a performance assessment and a neuropsychological assessment.
7. The processes which followed that recommendation are set out in the Statement of Agreed Facts, in [10], above. Those processes led to the imposition of the condition upon Dr Kolos' registration which is the subject of Complaint One.
8. It is clear from the material before us that concern about Dr Kolos' cognitive capacity has been a factor in the regulatory processes to which Dr Kolos has been subject since 2013.
9. That concern arose from a patient complaint, followed by the observations of the three PRPs, which are summarised in the report of the PRP of 8 September 2016 (see Tab 15 of Exhibit A1). The concerns of the final PRP, based upon the report of a panel of assessors, included breaches of the condition requiring Dr Kolos to see no more than 5 patients per hour, inadequate hand hygiene on the part of Dr Kolos, poor history taking skills, some deficiencies in clinical knowledge, and inadequate record-keeping, including an idiosyncratic way of keeping records so that a less than comprehensive disclosure could be made in the event that an insurance company were to seek the disclosure of medical records. The PRP noted that there were discrepancies between the account of the assessor's interactions with Dr Kolos at the practice, and Dr Kolos' account of those interactions. The PRP was inclined to believe the assessors' account.
10. The PRP acknowledged, in its report dated 8 September 2016, that Dr Kolos is a very experienced general practitioner who had a following of loyal, long-standing patients. The PRP acknowledged that Dr Kolos demonstrated strengths in the consultations in which she was assessed, those strengths being her broad clinical experience, her ability in relation to problem solving and her ability to give practical management advice.
11. The condition imposed upon Dr Kolos on 8 September 2016, which is the subject of Complaint One, and which is set out in [10] above, limits the number of patients Dr Kolos may see in an hour, and the number of hours that she may work in a day. The purpose of the condition is to protect the patients who may come to see Dr Kolos for medical care. The PRP found that Dr Kolos' performance as a general practitioner was below the appropriate standard in a number of areas, and, to assist her to address these deficits, and thus give a more appropriate standard of care to her patients, it was considered appropriate that her workload be maximised at the level specified in the condition.
12. Dr Kolos has disregarded condition 2, imposed on 8 September 2016, on at least 19 days.
13. This conduct is particularly serious because Dr Kolos was subject to an earlier condition limiting the number of patients she was permitted to see in an hour, and the PRP found, on 8 September 2016, that she had breached that condition. The PRP commented in its report that this was a serious matter. Despite that, Dr Kolos has continued to breach the stricter version of that condition, imposed by the PRP, in the same way.
14. We determine that Dr Kolos' breach of condition 2, as alleged in Complaint One, in all of the circumstances, is sufficiently serious to justify the suspension or cancellation of her registration. It is very important that health practitioners comply strictly with conditions imposed on their registration under the National Law.
15. It follows that Dr Kolos' conduct, as alleged in Complaint One and Complaint Two together, is of a sufficiently serious nature to justify the suspension or cancellation of Dr Kolos' registration.
16. Complaint Three has been established.

Complaint Four and Complaint Five

1. Complaint Four alleges that Dr Kolos has an impairment, namely progressive cognitive decline, which detrimentally affects, or is likely to detrimentally affect, her in the practice of medicine (see s 144(d) of the National Law). Complaint Five alleges that Dr Kolos is not competent to practise as a medical practitioner.
2. The National Law provides, in s 5: impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - (a) for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or (b) for a student, the student's capacity to undertake clinical training - (i) as part of the approved program of study in which the student is enrolled; or (ii) arranged by an education provider.
3. In the application, the following background to Complaints Four and Five is set out: On 20 June 2013, the practitioner underwent a neuropsychological assessment with Dr Pauline Langeluddecke, a neuropsychologist appointed by the Council. Dr Langeluddecke's opinion was that it was unlikely that the practitioner had cognitive changes in excess of those associated with normal ageing processes. On 4 October 2019, the practitioner underwent a further neuropsychological assessment with Ms Jillian McMillan, a neuropsychologist appointed by the Council. Ms McMillan's opinion was that the practitioner has a progressive decline in cognitive function far below the expected level. On 13 October 2020, the practitioner underwent a neurological assessment with Dr Judith Spies, a neurologist appointed by the Council. Dr Spies' opinion was that the practitioner has early cognitive impairment.
4. The National Law provides, in s 144(d): 144 Grounds for complaint about registered health practitioner [NSW] The following complaints may be made about a registered health practitioner - … (d) Impairment A complaint the practitioner has an impairment.
5. The Tribunal must decide whether Dr Kolos is currently impaired (see Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362 at [11]).
6. Ultimately, in her amended Reply filed on 25 February 2022, which was foreshadowed at the hearing of the matter, Dr Kolos did not admit that she has an impairment as alleged.
7. The Tribunal was provided with reports of Mr Michael McMahon, clinical psychologist, dated 5 June 2013 and 30 September 2019, a report of Dr Pauline Langeluddecke, clinical psychologist, dated 21 June 2013, reports of Ms Jillian McMillan, clinical neuropsychologist, dated 17 October 2019 and 15 December 2021 and a report of Dr Spies, neurologist, dated 30 October 2020.
8. Dr Kolos referred herself to Mr McMahon in 2013 and again in 2019. She did not inform him of the complaint against her when she saw him in 2013 and she did not inform him of the hearing under s 150 of the National Law when she saw him in 2019. She did not, at any time, tell him that she had seen Dr Langeluddecke in 2013, and she did not tell him in 2019 that she was to see Ms McMillan shortly after seeing him.
9. Mr McMahon gave evidence at the hearing, in Dr Kolos' case. He explained that it was a recommendation that 6 months should elapse between the occasions of a patient taking tests in neuropsychology, on account of the 'practice effect'. Mr McMahon explained that the practice effect referred to the fact that a patient may do very much better on neuropsychology tests on the second occasion, if the tests are administered too close together, because that patient is familiar with the tests. For that reason, Mr McMahon was concerned that the results obtained by Dr Langeluddecke in 2013, and those obtained by Ms McMillan in 2019, are likely to overstate Dr Kolos' ability.
10. Ms McMillan also gave evidence at the hearing. Ms McMillan was also concerned that the practice effect may well have resulted in the results obtained by Dr Langueluddecke in 2013, and those she herself obtained in 2019, being overstated on account of the practice effect.
11. Mr McMahon, in 2013, was asked to address some issues that Dr Kolos was having, with word finding. In 2019, as we understand it, he was asked to give her a checkup. He gave evidence before the Tribunal on one day's notice.
12. Dr Langueluddecke, in 2013, and Ms McMillan, in 2019, on the other hand, were asked by the Medical Council of NSW to undertake comprehensive testing and report to the Council for the purposes of the Act, which they did. In 2021, Ms McMillan administered further tests to Dr Kolos and provided a comprehensive report in response to a request from the HCCC.
13. We have considered the psychological and neuropsychological evidence in detail. It is not necessary to set it out in full in this decision.
14. In 2013, with Mr McMahon, Dr Kolos' performance on the tests was generally very good, and Mr McMahon assessed her intelligence as 'Above Average'. However, there were some notable exceptions, and in his report of 14 June 2013, Mr McMahon said: Combined with good performances on tests of executive functioning, and very good performances on tests of verbal and visual memory, it is unlikely that Dr Kolos has a primary degenerative dementia of the Alzheimer-type or one involving frontal lobe decline. Nevertheless, lower than expected performances on tests of basic 'working' memory, single-trial verbal and visual learning, and complex psychomotor speed suggest that mild information-processing deficits are present and raise the possibility of early-stage vascular-based subcortical changes. Although Dr Kolos reports significant family-related stressors in her life, very good performances on many cognitive tests suggest that non-organic factors are not contributing to any lowered performances.
15. In her report of 15 December 2021, Ms McMillan summarised the results of the testing undergone by Dr Kolos between Mr McMahon's tests in 2013 and the tests administered by Ms McMillan in 2021. Ms McMillan said: 38 Neuropsychological assessment has revealed evidence of progressive decline in Dr Kolos' attention and working memory, processing speed, visual memory and executive functioning, when compared with her previous test results from assessments conducted by Medical Council CAP neuropsychologists in 2019 and 2013. Most striking was her executive dysfunction, which was characterised by impaired planning and organisation, impaired inhibitory control, and notable reductions from her high (Superior) premorbid level in abstract reasoning and mental flexibility. Her verbal memory is generally intact and stable, as is her visuospatial functioning. Her general intelligence, and verbal language skills have also either remained stable or improved from her assessment in 2019, however there remains a general dampening down in these domains compared with her high premorbid level of functioning and her abilities in 2013. The current results lie in the context of extremely severe symptoms of anxiety and moderately severe symptoms of depression and stress.
16. Ms McMillan was asked, in 2021, a series of questions by the HCCC, which she answered in her report of 15 December 2021 in the following way: 1 Whether Dr Kolos currently suffers from impairment as defined in Section 5 of the Health Practitioner Regulation National Law; With the history together with Dr Kolos' presentation and cognitive profile in mind, I am of the opinion that she currently suffers from an impairment as defined in Section 5 of the Health Practitioner Regulation National Law. 2. If Dr Kolos does suffer from such an impairment, please provide an opinion about the manner and extent to which the impairment detrimentally affects or is likely to detrimentally affect Dr Kolos' ability to practise medicine safely; I anticipate that Dr Kolos' impairment will likely detrimentally affect her capacity to practise medicine safely. Most concerning are her executive dysfunction, poor insight and grandiose ideas. In light of the pattern of her executive dysfunction, I anticipate that Dr Kolos would likely be rigid and inflexible in her thinking, which may reduce her capacity to comply with any restrictions placed on her registration and narrow her skills in differential diagnosis (eg, she may quickly form an opinion regarding a diagnosis and management for a patient and have difficulty thinking more openly about alternative aetiology and treatment options). She is impulsive and her ability to inhibit automatic responses is impaired; she may jump to conclusions and have difficulty being appropriately reflective in her medical practice. She is likely to be disorganised and have difficulty planning and managing patient care. Dr Kolos' insight is impaired and she has grandiose ideas about herself; she is likely to be over confident in her medical skills and have difficulty recognising and compensating for any errors she made in her medical practice. For example, she has fixed and unusual ideas about the side-effects of the COVID-19 vaccines (eg, the Pfizer vaccine causing widespread impairment in the community) and has been sharing her views to friends and acquaintances and recommending they delay getting immunised against the virus. Her level of insight and grandiosity also likely underpins her non-compliance with the conditions which have previously been placed on her medical practice by the Medical Council. I was particularly concerned to hear her report of having participated in job interviews at medical centres in recent months despite her medical registration being suspended. Even more concerning was that in the face of legal proceedings and an upcoming court case, Dr Kolos reported that she would "do it all again", suggesting that she does not appreciate the gravity of her situation and will unlikely be able to adjust her practice of medicine to ensure that she can practice safely. 3 Dr Kolos' prognosis Neuropsychological assessment has revealed objective evidence of progressive cognitive decline over time. On this basis I anticipate that Dr Kolos' cognitive impairments and reductions will continue to progressively decline; I do not expect her cognition to improve. 4. Please provide an opinion on Dr Kolos' current competence to practise medicine in terms of whether she has sufficient capacity to safely practise medicine. Based on the reasons outlined in the response to question two, I do not consider Dr Kolos currently has sufficient capacity to safely practise medicine. 5. If you are of the opinion that Dr Kolos may be able to practise safely pursuant to conditions on her registration, please identify those conditions which you deem would be necessary. There is a well-documented history of Dr Kolos not complying with conditions on her registration and, as noted, she reported that she would "do it all again". Coupled with my opinions on her ability to safely practise medicine outlined above, I do not consider any further conditions on her registration will make her sufficiently safe to practise medicine.
17. Mr McMahon was only made aware shortly before the hearing in this matter of the testing administered to Dr Kolos in 2013 by Dr Langeluddecke, and, in 2019 and 2021, by Ms McMillan. Mr McMahon was not given the opportunity to read Dr Langeluddecke's report prior to giving evidence. His only source of information about Dr Langeluddecke's testing of Dr Kolos was Ms McMillan's reports.
18. Having read Ms McMillan's reports, Mr McMahon commented that Ms McMillan had done very thorough testing. Mr McMahon said, in re-examination, that Ms McMillan had administered a much wider range of tests to Dr Kolos than he had done. As we have said, the purpose and context of Mr McMahon's testing of Dr Kolos was different from Ms McMillan's purpose and context, and Dr Kolos did not provide Mr McMahon with all of the relevant information. Mr McMahon said that, based upon the results of Ms McMillan's testing in 2021, he now shared Ms McMillan's concerns about Dr Kolos' ability to continue to practise as a general practitioner. Mr McMahon commented that being a general practitioner was a highly responsible job, and that any sign of a frontal lobe deficit is of concern. Mr McMahon rejected the suggestion that a reduced workload for Dr Kolos could address the issues raised, pointing out that the impulsivity which is present could not be adequately addressed in that way. We accept Mr McMahon's oral evidence.
19. Ms McMillan was a very impressive witness. We accept Ms McMillan's evidence, both oral and written, in its entirety.
20. We note that the MRI scan undertaken in November 2019, and reported upon by Dr Spies, showed no age-inappropriate changes to Dr Kolos' brain, but this does not rule out vascular dysfunction underlying the decline in Dr Kolos' frontal lobe. We note that it was Dr Spies' opinion in 2020 that Dr Kolos was suffering from early cognitive impairment and that Dr Kolos was displaying a lack of insight in managing her own health.
21. We find that Dr Kolos presently has an impairment, within the meaning of the National Law, being a mental impairment comprising a decline in working memory, processing speed, visual memory and executive functioning arising from a change in the functioning of the frontal lobe of her brain. The impairment presently has a detrimental effect on Dr Kolos' capacity to practise medicine to the extent that it would not be safe for her to resume practising.
22. Complaints Four and Five have been made out.

Protective Orders

1. The National Law provides, in s 3A: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
2. The provisions relevant to the application before us are NSW provisions in Part 8 of the National Law.
3. In Lee v Health Care Complaints Commission [2012] NSWCA 80 at [31], Barrett JA, with whom Macfarlan JA and Tobias AJA agreed, said: 31 There is also the point that the purpose of orders in cases of professional misconduct differs significantly from the purpose of sentencing in the criminal field. As was explained in Director-General, Department of Ageing, Disability and Home Care v Lambert (above) at [83], the overwhelming emphasis in the present type of case is on the protection of the public, with notions of punishment relevant only incidentally if and when material to the achievement of the protective purpose. While protection of the public plays a significant part in the sentencing of criminal offenders, considerations of punishment, individual deterrence and general deterrence have a very prominent role that is, generally speaking, subsidiary in the exercise of a protective jurisdiction.
4. Dr Kolos has been a dedicated and talented general practitioner. She has made every effort, during the last two or more years, to ameliorate her symptoms by studying, doing puzzles and completing Luminosity exercises. She has not, however, been able to halt or reverse her decline in the critical areas identified by Ms McMillan and set out above at [59]. In our opinion, it is likely that Dr Kolos' non-compliance with the condition on her registration, which was the subject of Complaint One, and her misleading of the s 150 hearing, which was the subject of Complaint Two was, to some degree, contributed to by her progressive decline. The finding of professional misconduct in relation to Complaint Three was, therefore, affected to the same degree by her impairment.
5. The protection of patients and potential patients dictates the necessity of cancelling Dr Kolos' registration as a medical practitioner on account of her impairment.
6. The HCCC has asked that an order be made under s 149C(7) of the National Law that Dr Kolos may not make an application for review of the cancellation order until one year has elapsed. This order was not opposed. We will make this order, though we note that the evidence before us presently indicates that there is no prospect that Dr Kolos' condition will improve and it is therefore not likely that re-registration will be possible. We are not to be taken to be indicating that we consider that it is likely that re-registration may occur after one year. If a review of the order is to be sought in the future with any prospect of success, Dr Kolos would have to adduce persuasive medical evidence that she had become fit to practise once more.
7. The HCCC has sought an order prohibiting Dr Kolos from providing health services by way of health advice or counselling. Dr Kolos has asked that she be permitted to continue undertaking paid tutorial work with anatomy students. It seems to us that this work would not pose any risk to the public, so we will not include it in the prohibition order. We will make a prohibition order, however, for the protection of the public.
8. The HCCC has sought an order for costs. The HCCC has been entirely successful, and is therefore entitled to an award of costs. Dr Kolos has resisted the making of an order for costs on the basis that she offered to surrender her registration and retire, but the HCCC declined to vacate these proceedings. We do not accept that the HCCC should be denied its costs on the basis advanced. The cancellation of a practitioner's registration can have different consequences from the surrender by a practitioner of her registration. The HCCC was entitled to maintain its application. There will be an order for costs.

Orders

1. We make the following orders: 1. Dr Kolos' registration as a medical practitioner is cancelled pursuant to s 149C of the Health Practitioner Regulation National Law (NSW). 2. Dr Kolos may not apply for the review of Order 1 until after one year from the date of this order. 3. Dr Kolos is prohibited from providing health services in the form of health advice and counselling unless she is re-registered as a medical practitioner, provided that this order does not prevent her from undertaking the tutoring of students of anatomy. This order is made under s 149C of the Health Practitioner Regulation National Law (NSW). 4. Dr Kolos is to pay the costs of the Health Care Commission as agreed or assessed. This order is made pursuant to clause 13, Schedule 5D of the Health Practitioner Regulation National Law (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 02 May 2022