Health Care Complaints Commission v Mikhail

Background

1. The facts as set out in the Background below are uncontroversial and we make these findings of fact.
2. Dr Mikhail (the practitioner) is a medical practitioner who currently works as a general practitioner (GP) at a practice in Bondi Junction. She completed a Bachelor of Medicine/Bachelor of Surgery in 1980 in Egypt. She passed the Australian Medical Council examinations in 1995, and she was registered to practise medicine in NSW in 1996. From 2007 to the present, she has worked as a GP in various medical practices and at several aged care homes in the Greater Sydney region. She also treats some patients during home visits, mainly for pregnant patients and elderly patients. She consults in the English and Arabic languages, and occasionally in French.
3. Following a complaint made to the Council by a patient in 2011 that the practitioner failed to undertake an abdominal examination (but recorded that she had) in circumstances where the patient required surgery for a bowel obstruction later that day, the practitioner was required to undergo a performance assessment. A performance review panel concluded that her performance was unsatisfactory in a number of areas, and imposed a condition on her registration requiring mentoring. From 20 August 2014, she was required to take part in an approved mentorship program.
4. In March 2016 the practitioner attended a (second) performance assessment. A (second) performance review panel concluded that her performance remained unsatisfactory, and imposed conditions on her registration, including conditions requiring education and supervision by a supervisor approved by the Council. The 2016 performance assessors were concerned about clinical skills, clinical judgment, patient management skills and prescribing.
5. From 16 November 2016, she was required to practise under "category C supervision in accordance with the Council's Compliance Policy-Supervision". Within the first six months of the supervision the practitioner was to observe her supervisor conducting six consultations with his/her patients and the supervisor was to observe the practitioner conducting six consultations with her own patients. She was also required to undertake certain educational courses within 12 months (focussing on areas where deficiencies in her practice were identified), which she completed satisfactorily.
6. Except for a brief period of suspension from 19 June 2019 to 19 July 2019, the practitioner's registration has remained under category C supervision, with some variations having been made to the conditions imposed during the time she has been required to practise under supervision.
7. Since March 2017, the practitioner has had several approved supervisors. Dr T Triantopoulos supervised her from April to September 2017. His quarterly supervisor's report was submitted nearly two months late, at the end of November 2017. This report noted that he had not met with the practitioner in October or November 2017 and she had not complied with Condition 2(b)(i), that is, to observe her supervisor conducting six patient consultations. Dr Triantopoulos notified the Council at this time he was no longer able to supervise the practitioner due to personal issues.
8. On 19 December 2017, the conditions regarding mentoring and education were removed from her registration. On 21 December 2017, the Council wrote to the practitioner to remind her that she must "strictly adhere" to all conditions on her registration and the Council's Compliance Policy-Supervision (and enclosing a copy of same). This included meeting with her Council-approved supervisor each month, and ensuring that the supervision reports were received on time by the Council, until the Council advised that the condition had been removed from her registration. Noting that Dr Triantopoulos was no longer able to supervise her, she was advised to nominate a new supervisor by 15 January 2018.
9. On 15 February 2018 Dr M Kuczynski was approved by the Council as supervisor. Dr Kuczynski worked as a GP at the same Bondi Junction medical practice as the practitioner. Dr Kuczynski's first supervision report was due at the Council on 7 August 2018 but was not received until 30 August 2018. The second supervision report, due on 7 February 2019, was not submitted. On 11 March 2019 the practitioner informed the Council that Dr Kuczynski was no longer able to act as her supervisor.
10. In May 2019 the Council's Performance Committee resolved to refer the practitioner's conduct to the Council for proceedings pursuant to s 150 of the National Law in relation to a potential breach of registration conditions. The s 150 hearing was held on 19 June 2019 in the absence of the practitioner (who was overseas at the time) and resulted in the suspension of her registration. The practitioner appealed the suspension to this Tribunal. The suspension was stayed (by consent of the parties) on 19 July 2019 pending the hearing and determination of her appeal. On 2 August 2019, the Tribunal set aside the Council's decision to suspend her registration made on 19 June 2019, with the consent of the parties.
11. The Council resolved to hold further s 150 proceedings to address the issues that were presented at the previous s 150 hearing in June 2019 (in the absence of the practitioner). The second s 150 hearing was held on 15 August 2019. The Council imposed conditions on her registration (as of 19 August 2019) involving the practice of medicine under category C supervision (the requirement for 6 monthly supervisory reports was changed to monthly supervisory reports), and not to practise until a supervisor had been approved by the Council. Additional conditions were imposed such that the practitioner was not to treat or prescribe to family members or their partners; and not to prescribe for self-medication. Written reasons for decision were given on 25 September 2019.
12. On 18 September 2019 the Council approved Dr M Kailainathan as the practitioner's category C supervisor.
13. On 11 August 2020 the Council conducted a hearing under s 150A of the National Law. The practitioner had sought a s 150A review of her conditions on registration. The Council decided to continue the existing conditions on her registration, except for Condition 3 which was removed. (Under Condition 3 the practitioner had authorised and consented to any exchange of information between the Council and Medicare Australia for the purpose of monitoring.) The Council imposed a new condition that the practitioner attend for neuropsychometric testing by a Council-appointed practitioner. Written reasons for the s 150A decision were published by the Council on 8 September 2020.
14. On 23 September 2020 the HCCC commenced disciplinary proceedings in this Tribunal.

Issues for determination

1. The issues to be determined in this matter include: whether the practitioner breached a condition on her registration to practise medicine in NSW; whether she engaged in improper or unethical conduct by sending false and/or misleading emails to the Medical Council concerning her category C supervision; whether she engaged in improper or unethical conduct by giving false and/or misleading evidence to the Council and the Tribunal concerning the time spent by her working as a medical practitioner in the second half of 2018; and whether she engaged in improper or unethical conduct by reason of prescribing medications to family members and herself contrary to relevant guidelines and/or code of conduct.
2. If some or all of her conduct is so found, the question then arises whether the conduct in which the practitioner engaged is of a sufficiently serious nature to amount to professional misconduct, and thereby provide a basis on which her registration may be suspended or cancelled.

Statutory framework

1. These proceedings are brought by the HCCC alleging unsatisfactory professional conduct being a breach of condition on registration under s 139B(1)(c) of the National Law. The HCCC also asserts that the practitioner is guilty of improper and unethical conduct under s 139B(1)(l) of the National Law. Those provisions 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 - … (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; … (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. The HCCC also alleges that the practitioner has engaged in professional misconduct within the meaning of s 139E of the National Law, which provides: 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.
3. In determining these and all disciplinary proceedings under the National Law, the Tribunal is guided and informed by the objects in s 3 and s 3A. Those provisions relevantly provide: 3 Objectives and guiding principles (1) The object of this Law is to establish a national registration 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 the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and … (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 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. Note - This section is an additional New South Wales provision.
4. The onus of proof is that of the applicant, the HCCC. The Tribunal is not bound by rules in respect of the admissibility of evidence (see cl 2 of Sch 5D, National Law). Strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 per Leeming JA at [127]; Gleeson JA at [37] agreeing. In Sullivan v Civil Aviation Authority [2014] 226 FCR 555 the Full Federal Court said there is no principle that an administrative tribunal is bound to apply the Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) standard to fact-finding which is material to its reasoning process where those findings are grave or serious. Rather, the Tribunal must inform itself "by reference to the evidence or other materials which properly supports the seriousness of the findings being made and the seriousness of those findings upon a party" (at [106]).
5. While we are not bound to adopt the approach set out in Briginshaw, or in s 140 of the Evidence Act 1995 (NSW), that general approach may be justified. When deciding whether the evidence is sufficient to meet the civil standard of proof, the Tribunal will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding. In the recent decision of Gautam v Health Care Complaints Commission [2021] NSWCA 85, the Court of Appeal specifically referred to the Briginshaw test, and the wording of "comfortably satisfied", in the context of health practitioner disciplinary proceedings and adopted that test as correct (per Payne JA at [89]; Leeming JA at [1] and Simpson AJA at [118] agreeing). We apply this test in making our findings in the disciplinary application before us.

Evidence and submissions

1. The Tribunal has before it the HCCC's application for disciplinary findings and orders dated 23 September 2020 and the practitioner's reply dated 10 February 2021. Each party tendered documentary evidence at the two day hearing in this matter.
2. The HCCC's bundle of documents included certificates of registration from AHPRA and the Medical Council, correspondence and supervision reports in respect of the practitioner for the period October 2017-May 2019, relevant Medicare records, documentation about complaints by the Medical Council, the Council's decision and transcript of proceedings for the (first) s 150 hearing and for the (second) s 150 hearing, relevant orders of NCAT in relation to those s 150 proceedings, correspondence between the HCCC and the practitioner, material relating to the s 150A review she sought (including decision, selected material and transcript of s 150A proceedings), as well as relevant codes of conduct, guidelines and policies of the Medical Council of NSW and the Medical Board of Australia.
3. The practitioner's bundle of documents included her statement dated 10 February 2021 (attached to her reply of the same date), three character references (and related correspondence between the practitioner's solicitor and the referees), copies of supervision reports from April 2017-January 2021, and CPD statement as to training undertaken by the practitioner in 2020.
4. The HCCC also tendered a document headed "Movement Details", which showed the practitioner's movements in and out of Australia between September 2016 and June 2019, without objection. A further document, being a copy of letter from the Council to the practitioner dated 17 August 2020 attaching conditions in place from 11 August 2020 following the s 150A review by the Council, was tendered by consent of the parties.
5. It is noted that the practitioner made (relevant) admissions in the (second) s 150 proceedings referred to above. Because the transcript and written reasons are exhibited before us, the Tribunal can rely on them. There was no objection to the tender of the transcript of the (second) s 150 hearing held by the Council on 19 August 2019 and its written reasons for decision dated 25 September 2019.
6. At the hearing, the HCCC provided a chronology, and at the conclusion of the evidence on the second (and final) day of the hearing, written submissions in which the HCCC outlined (for the first time) the specific disciplinary orders it sought, namely cancellation with a 2 year non-review period.
7. Several witnesses were called for cross-examination, being the practitioner's current approved supervisor Dr M Kailainathan and one of the practitioner's character referees Dr J Balafas (owner and director of the Bondi Junction medical practice which is the practitioner's primary place of work). Dr Balafas also gave evidence as to the supervisory arrangements between the practitioner and Dr Kuczynski as he observed those arrangements at the Bondi Junction practice.

Complaint One (the admitted Complaint) - breach of registration condition

1. The practitioner admitted the Background to Complaint One and each of the Particulars of that complaint in her reply. Through her Counsel, the practitioner conceded at the hearing that the conduct alleged in Complaint One was a breach of s 139B(1)(c) of the National Law and that the conduct amounted to unsatisfactory professional conduct.
2. Complaint One is set out as follows: "The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that the practitioner has contravened condition/s to which the practitioner's registration was subject. BACKGROUND TO COMPLAINT ONE In 1980, the practitioner completed a Bachelor of Medicine / Bachelor of Surgery in Egypt. In 1995, the practitioner obtained the Australian medical Council certificate. In 1995, the practitioner was first registered as a medical practitioner in NSW. On 16 November 2016, conditions were imposed on the practitioner's registration under the National Law including: Condition 2: "To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as determined by the appropriate review body. a) At each supervision meeting the practitioner is to review and discuss her practice with her approved supervisor with particular focus on the unsatisfactory areas identified by the assessors: • Basic Clinical Skills (interviewing / examination) • Clinical Judgment • Patient Management Skills (treatment / advice) • Prescribing Skills b) Within the first 6 months of supervision: (i) The practitioner is to observe the supervisor conducting six consultations with the supervisor's patients, and (ii) The supervisor is to observe the practitioner conducting six consultations with the practitioner's patients. c) The practitioner is to authorise the Medical Council of NSW to provide approved supervisors with a copy of the report of the proceedings that imposed this condition." PARTICULARS OF COMPLAINT ONE 1. Between about 1 October 2017 and 14 February 2018, the practitioner contravened condition 2 in that she failed to attend monthly supervision meetings and continued to provide medical services to patients. 2. Between about 14 August 2018 and 17 September 2019, the practitioner contravened condition 2 in that she failed to attend monthly supervision meetings and continued to provide medical services to patients. The conduct in any of the particulars of Complaint One is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct."

Legal principles

1. It is well-established in the case law that registration conditions must be scrupulously observed: see e.g. Prakash v Health Care Complaints Commission [2006] NSWCA 153 (Prakash) at [74], citing the then Medical Tribunal of NSW in Re Dr Tan Thanh Le [2001] NSWMT, 20 September 2001, at [95]: "Conditions are imposed on the registration of medical practitioners in the public interest. As with disciplinary proceedings generally, such conditions are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession: cf. Health Care Complaints Commission v. Litchfield (1997) 41 NSWLR 630 @ 637. The effect of such conditions may be to prohibit or regulate the conduct of a practitioner in various ways, commonly in relation to areas of practice, the prescription of certain types of drugs, the forms of permissible employment as a practitioner, requirements for supervision, training or notification, or by providing for the monitoring of aspects of a practitioner's life, such as conditions concerning the use of alcohol or drugs. Invariably they superimpose on the usual collection of responsibilities expected of all practitioners added burdens or restrictions. Moreover, those burdens or restrictions are imposed for reasons peculiar to the individual practitioner and create burdens or restrictions particular to that practitioner. Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly."
2. It is "essential" to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration: see Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23, Health Care Complaints Commission v Reid [2018] NSWCATOD 162. As observed by the former Medical Tribunal of NSW in Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [121], in addition to satisfying the required theoretical and clinical acumen thresholds as necessary preconditions for the grant of a licence to practise medicine, practitioners so licensed are required to conduct themselves with the high standards of personal and professional probity expected of members of an honourable profession. Those expectations must necessarily be seen as extending to the requirement of scrupulously observing conditions of practice: s 139B(1).

Consideration of the admitted Complaint

1. Condition 2 of the practitioner's conditions on registration must be read together with the Council's Compliance-Supervision Policy (the Policy). "Category C" supervision involves indirect supervision of the practitioner although the supervisor must be contactable by phone for emergencies. The frequency of review meetings with the supervisor is stated to be monthly (which frequency may be varied by the review body). Reports are to be provided to the Council every six months (again, the frequency may be varied by the review body). The nature and duration of a review meeting "is to be determined by the approved supervisor as guided by the supervision condition and other relevant information. A review meeting may address the following: Discussion of conditions and compliance; Observed practice; Case presentations; Case and record reviews".
2. The purpose of the Policy is "to set out the Council's expectation of practitioners who have supervisions imposed on their registration". The Policy makes clear that a practitioner who is subject to supervision conditions must comply with both the Policy and the individual's particular conditions (and that if a condition is inconsistent with any part of the Policy, the condition prevails). Under the heading "Requirements for Complying with a Supervision Condition", it is stated that practitioners who are subject of a supervision condition must: "1. Practise in a manner that complies with the category of supervision required by their condition. 2. Nominate proposed supervisors to the Council in accordance with the requirements of their category of supervision. The Council will not automatically approve nominated supervisors and approval cannot be assumed. Practitioners must have received confirmation of approval of any supervisor to ensure compliance with their condition. 3. Participate in review meetings with the Council-approved supervisor as required. 4. Authorise the supervisor to forward supervision reports (in a Council-approved format) to the Council at the frequency required by their conditions and ensure that the supervisor does in fact provide those reports. 5. Authorise the supervisor to immediately inform the Council of any concerns regarding the performance of the practitioner and their compliance with any conditions on their registration, or if the supervisory relationship ends. 6. Meet all costs associated with supervision. 7. Ensure continuity of supervision by nominating a suitable substitute supervisor for approval by the Council to cover any planned period of absence by the Council-approved supervisor. Any such nomination must be made with adequate time to allow consideration and approval by the Council. 8. Immediately nominate a proposed replacement supervisor to be approved by the Council when the current approved supervisory relationship ends or is unexpectantly suspended."
3. The Policy specifically states that the failure to comply with the policy constitutes a breach of conditions and that any breach of conditions may be referred to the HCCC for investigation as a complaint, and that the Council may also consider taking interim action under s 150 of the National Law. It is further stated that: "Practitioners should know that the definition of unsatisfactory professional conduct (see s 139B(1)(c) of the National Law) includes contravention of a condition to which a practitioner's registration is subject."

Particular 1

1. Particular 1 alleges that, from 1 October 2017 to 14 February 2018, the practitioner failed to attend monthly supervision meetings, while continuing to providing medical services to patients.
2. Dr Triantopoulos was approved by the Council as her supervisor in March 2017. He supervised her from April to September 2017. On 1 December 2017 Dr Triantopoulos provided the Council with the supervision report covering the period April to September 2017. In that report he noted that he had not met with the practitioner in October or November 2017, and that she had not complied with Condition 2(b)(i), that is, to observe her supervisor conducting 6 patient consultations.
3. During the (second) s 150 hearing in August 2019, the practitioner said that no-one supervised her from September 2017. Her evidence in these proceedings is that she failed to attend monthly supervisory meetings from September 2017 and continued to provide medical services. Medicare data for the period 1 October 2017 to 14 February 2018 indicates that the practitioner billed approximately 1,177 separate Medicare items during the period.
4. She gave evidence in these proceedings, which was not challenged by the HCCC, that she did not meet with Dr Triantopoulos during October 2017 and November 2017 as she believed she was only required to complete six months of supervision. On 21 December 2017, the Council advised the practitioner that she was required to strictly adhere to the supervision conditions, to continue to meet with her supervisor until the condition had been removed, and ensure that the supervision reports were received by the Council on time. The letter from the Council also advised the practitioner to nominate a new supervisor by 15 January 2018.
5. We note the practitioner's admissions in relation to Complaint One, and we find that the practitioner engaged in the practice of medicine, without an approved category C supervisor, for the period 1 October 2017 to 14 February 2018. During this period, she did not attend monthly supervision meetings with an approved supervisor, as required by Condition 2 of the conditions on registration then in place. She continued to provide medical services to patients, and to prescribe medications, on a number of occasions during this period.

Particular 2

1. Particular 2 alleges that, from 14 August 2018 to 17 September 2019, the practitioner failed to attend monthly supervision meetings and continued to provide medical services to patients.
2. Dr Kuczynski was approved by the Council as the practitioner's supervisor on 15 February 2018. He provided the Council with a supervision report, on 30 August 2018, for the period covering 20 February 2018 to 13 August 2018. The Council did not receive any further supervision reports from him, in particular the reports due on 7 February 2019 and 7 August 2019.
3. Council records indicate that Dr Kuczynski advised the Council (by phone) on 26 April 2019 that while he could not recall the date he stopped supervising the practitioner, he thought that he supervised her for six months. From Dr Kuczynski's meeting records and supervisory report, it appears that the last supervisory meeting was held on 31 July 2018. The practitioner's own evidence is that she did not meet with Dr Kuczynski for monthly meetings from August 2018. She gave this evidence during the (second) s 150 proceedings, and she has made this admission in these proceedings.
4. The practitioner says that she thought that Dr Kuczynski was still supervising her, and it was not until after Christmas 2018 but before March 2019 (she cannot recall the precise date) that it became clear to her that Dr Kuczynski would not continue as her supervisor. Dr Balafas (owner and director of the medical practice where both the practitioner and Dr Kuczynski worked at the relevant time) gave evidence that, in his view and in hindsight, Dr Kuczynski's health was declining significantly from mid 2018 (he subsequently passed away in May 2020). Both the practitioner and Dr Balafas tried unsuccessfully to persuade Dr Kuczynski to resume supervision.
5. Medicare data for the relevant period indicates that the practitioner billed approximately 5,184 separate items during the period 14 August 2018 to 14 August 2019. The practitioner did not claim for any medical services during the period 15 August 2019 to 17 September 2019, but she wrote approximately 86 original prescriptions during this period.
6. Noting her admissions in relation to Complaint One, the Tribunal finds that the practitioner engaged in the practice of medicine, without an approved category C supervisor, for the period between 14 August 2018 and 17 September 2019. She failed to attend monthly supervision meetings with her then supervisor Dr Kuczynski as required by Condition 2 of the conditions on registration, while continuing to provide medical services to patients, and to prescribe medications, on a number of occasions during the period, as is confirmed by Medicare records.

Conclusion on the admitted Complaint

1. As particularised in Complaint One, the two periods of time during which the practitioner failed to comply with the supervision condition, while she continued to provide medical services and/or write prescriptions, amounts to a total period of approximately 17.5 months. Her evidence before the Tribunal was that she mistakenly formed the view that the (initial) period of supervision was only to last for six months because of the terms of the condition which required that both she and the supervisor, in the six month period, observe six consultations being conducted by the other of them. That explanation was not challenged and we accept her evidence as to the opinion she held at that time, while observing that her opinion was mistakenly held. We also accept her evidence that it was in late December 2017 when she became aware that she still required ongoing supervision when she received a letter from the Council. She has nonetheless admitted the conduct involving the breach of condition set out in Particular 1, and the second period of breach (Particular 2) for an extended period of 13 months. During the entirety of the second period of breach, she was aware of her obligations to attend monthly supervisory meetings in order to comply with the supervision condition on her registration.
2. On the material before us, we are satisfied to the required standard of proof that the Particulars have been established and that Complaint One is made out, such that the practitioner has engaged in unsatisfactory professional conduct in breach of s 139B(1)(c) of the National Law.

Complaint Two - false/misleading communications; prescribing to self and family members

1. Complaint Two is set out as follows: "The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
2. The essence of Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) because she engaged in improper or unethical conduct, by making false/misleading statements to the Council about an outstanding supervision report, giving false/misleading evidence, in affidavit and oral form, about the extent to which she had worked, and prescribing medications to herself and family members in breach of a Council Guideline, as set out in Particulars 1-5. The conduct in any of the Particulars of Complaint One is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct.

Legal principles

1. The Tribunal has previously considered the meaning of improper or unethical conduct: see e.g. Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 (Shrimpton) at [67]-[69]. Whether the conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 (Liu) at [51]-[60].
2. "Improper conduct" and "unethical conduct" are not defined in the National Law. The terms "improper" and "unethical" conduct overlap. The Macquarie Dictionary defines improper as follows: "1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular." "Unethical" is defined as follows: "1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct."
3. The word "improper" was the subject of discussion by French CJ in Parker v Comptroller of Customs [2009] HCA 7 at [29], where his Honour said: "…[t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong". The High Court has noted that "improper" is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 (Byrnes) at 514, citing Grove v Flavel (1986) 43 SASR 410 at 420. In Byrnes at 514-515, Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows: "Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case."
4. This approach to determining whether conduct is "improper" has been adopted in a disciplinary context in numerous cases, including in Liu at [54]-[55] and the cases there cited.
5. It is also noted that cl 8.1 of the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia" (2014) (Code of Conduct) states that "in professional life, doctors must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct". Section 41 of the National Law provides that a code or guideline issued by a "National Board" is admissible in disciplinary proceedings against a health practitioner under the Law as evidence of what constitutes appropriate professional conduct or practice. The Medical Board of Australia is a national board for the purposes of s 41.

Particulars 1 and 2

1. Particulars 1 and 2 concern two emails sent by the practitioner to the Council in response to Council requests for outstanding supervision reports for August 2018-January 2019. These particulars are as follows: "1. On 20 February 2019, the practitioner sent an email to a Monitoring Program Officer at the Council which contained the words "I am sorry for the late report, but Dr Kuczynski is waiting for the paper work to be sent to him to write his report as he is my supervisor" which was false and/or misleading in that the practitioner had last attended a supervision meeting with Dr Kuczynski on 31 July 2018. 2. On 6 March 2019 the practitioner sent an email to a Monitoring Program Officer at the Council which contained the words "I am sorry again for the late report but now Dr Kuczynski found the forms and hopefully he is going to finish it as soon as possible" which was false and/or misleading in that the practitioner had last attended a supervision meeting with Dr Kuczynski on 31 July 2018."
2. The practitioner admits sending both of the emails to the Council, but denies the emails were "knowingly false and/or misleading".

The evidence in support of the complaint

1. The supervision condition imposed on the practitioner's registration, read together with the Council's Compliance Policy-Supervision, imposed a requirement on the practitioner that she meet with her approved supervisor monthly. In addition, the supervisor was required to provide 6 monthly supervision reports to the Council. The practitioner does not contend that she was unaware of her obligations and those of her supervisor, certainly from late December 2017.
2. On 11 February 2019, the Council had emailed the practitioner and her indemnity insurer requesting the outstanding supervision report for the period August 2018-January 2019. On 4 March 2019, the Council emailed the practitioner again requesting the outstanding supervision report. When sending her emails in reply to the Council on 20 February and 6 March 2019 respectively, the practitioner had not had a monthly supervision meeting for about 7 months. Dr Kuczynski could not provide a supervision report for that period because he had not had any meetings with the practitioner during that period. The practitioner had not informed the Council of any difficulties complying with her supervision condition during that period. Medicare data confirms that the practitioner continued to practise medicine during that period, and the practitioner has made admissions in this respect.
3. There is evidence before the Tribunal that the practitioner was experiencing some difficulties with Dr Kuczynski as her supervisor. The practitioner said that from August to December 2018 she asked him to sit down for monthly meetings with her and he would "put her off" or say he was not well, although she would still approach him to seek advice on how to manage a difficult patient. From December 2018 he was frequently away (from the medical practice where they both worked) and his health was deteriorating. She tried to persuade him to remain as her supervisor and enlisted the help of Dr Balafas to do the same, to no avail. Dr Balafas also said that Dr Kuczynski was affected by ill-health (and cognitive decline) at this time. Dr Balafas said he had become aware that there was an issue with Dr Kuczynski not submitting supervision reports for the practitioner, although it was not clear from his evidence when that was. Dr Balafas also gave evidence that, in his view, looking back at Dr Kuczynski's behaviour at the practice, and especially the situation with the practitioner where he agreed to be her supervisor and then did not submit any reports after August 2018, Dr Kuczynski had left her in a very vulnerable position with the Council.
4. The practitioner was not able to recall the precise date on which it became clear to her that Dr Kuczynski would no longer supervise her, but it was likely January or February 2019. By early March 2019 she had sought approval from the Council for another doctor to be her supervisor, which request was declined. She thereafter experienced difficulty obtaining a supervisor and the Council declined other requests she made. It was not until 18 September 2019 that Dr Kailainathan was approved by the Council as supervisor.
5. We accept that the practitioner had some difficulties with the supervisory arrangements with Dr Kuczynski from August 2018, and in finding an alternative supervisor. Nonetheless, it is clear from the evidence before us that she had not met with Dr Kuczynski for monthly meetings (as contemplated by the Policy) for some 7 months at the time she wrote the two emails in question to the Council. Dr Kuczynski could not provide a supervision report for the period August 2018-January 2019 that would meet the Council's requirements as she had not had monthly supervision meetings through the relevant period. The Council's requirements included that the 6 monthly supervisor's report list the dates of the monthly meetings held for the reporting period, and that the meeting record reports for each monthly session be attached. The supervisor was required to provide details as to the practitioner's clinical performance and progress, and to state (and describe) any instances of non-compliance with the conditions.
6. The practitioner said that she had a discussion with Dr Kuczynski between 11 and 20 February 2019 indicating that they spoke about the "paperwork". She conceded in cross-examination that the suggestions in the emails she was putting to the Council were an attempt to buy some time to find another supervisor. She agreed also that she was attempting to avoid detection of the fact that she had been practising without a supervisor. This was until March 2019, when she told the Council that she was trying to get approval for another supervisor. The following exchange took place during cross-examination of the practitioner: "Q. When you received this email from the Council on 11 February, you knew that you needed to say something to explain the delay; is that right? A. Yes. Q. You hadn't had a meeting with Dr Kuczynski for about seven months? A. Yes. Q. You knew that Dr Kuczynski couldn't write a report because he hadn't met you for seven months? A Yes. Q. You were hoping you could find a new supervisor? A. Yes. Q. And so when you sent this email back to the Council, you were trying to explain the delay and give yourself a bit more time to find a new supervisor? A. Yes. Q. And by sending this email you were attempting to avoid detection for practising without supervision? A. You can say yes."
7. A similar exchange followed in relation to the practitioner's email of 6 March 2019 to the Council: "Q. You've said there, doctor, "Hopefully he is going to finish it as soon as possible". So by finishing it, you meant the outstanding supervision report? A. Yes. Q. But you knew Dr Kuczynski couldn't do a report for that period because he hadn't seen you for supervision meetings during that period? A. Yes. Q. You were just trying to explain the delay? A. Yes. Q. Trying to give yourself a bit more time? A. Yes. Q. Trying to keep looking for another supervisor? A. Yes."

Submissions of the parties

1. The HCCC submits that it was false and/or misleading for the practitioner to say that Dr Kuczynski was waiting for the paperwork to be sent because the Council had already sent him the templates on 20 February 2018 and he had previously used the templates when writing his supervision report and supervision meeting records. Moreover, it was false and/or misleading to say that Dr Kuczynski was her supervisor because her last meeting with him was on 31 July 2018. It was also false and/or misleading to say that Dr Kuczynski had found the forms and would finish the supervision report as soon as possible because, regardless of the forms, Dr Kuczynski had not had any meetings with the practitioner during the period August 2018-January 2019 so he would be incapable of writing the report.
2. The HCCC submits that sending those two emails on those two separate occasions is improper or unethical conduct because she knew that she had continued to practise during that period, she knew that she should have been going to those supervision meetings once a month, she had not told the Council what was going on, and she was attempting to avoid detection for practising without supervision, and that was put to her directly. The Council was trying to follow up the outstanding supervision report for a period between August 2018 and January 2019, when the Council was not aware that there had not been any supervision meetings during that period in respect of the practitioner.
3. The practitioner says that the issues in Particulars 1-2 stemmed from the difficulties that she experienced in trying to obtain an approved supervisor of which the Council, certainly by March 2019, was aware. She submits that she was not practising in contumelious disregard of the supervision condition. She was hoping that Dr Kuczynski would resume supervision but he did not. The practitioner acknowledged, through Counsel, that her conduct was improper, and probably unethical, and that there is no doubt that a practitioner should not try to mislead a professional body such as the Medical Council, particularly in circumstances where there are ongoing proceedings about a medical practitioner's conduct that requires the practitioner to be cooperative and responsible in his or her dealings with the Council.

Consideration Particulars 1 and 2

1. We earlier referred to case law relating to improper and unethical conduct, and to the Medical Board's Code of Conduct which states that doctors must practise the principles of ethical conduct. It can hardly be acceptable conduct for a medical practitioner to provide false or misleading information to a regulatory body about her compliance with registration conditions. As the then Medical Tribunal said in In Re Dr Ian McHue [2007] NSWMT 11 at [45]: "Concern for the protection of the public includes consideration of the need to ensure that practitioners whose practice of medicine has been constrained by conditions, comply with those conditions are honest with panel, expert assessors and others whose task it is to make an assessment of the practitioner's compliance. The conditions and the monitoring are imposed in order to ensure that the public are protected whilst allowing practitioners whose conduct has come under scrutiny to continue in practice. Without honest dealing by such practitioners, the entire system developed to benefit both public and practitioner will be imperilled. Practitioners whose conduct of medicine is called into question must appreciate that this Tribunal may treat dishonest statements and explanations to the Board, to Panels and to experts appointed by the Board and to this Tribunal as justifying suspension or deregistration even where the original conduct may well not have, of itself, lead to such a result."
2. While the practitioner denies that the emails were knowingly false and/or misleading, the particulars do not allege that the emails were "knowingly" false or misleading, simply that the emails were false and/or misleading. We earlier found that the practitioner was having some difficulties with Dr Kuczynski as supervisor, and in finding a new supervisor. The precise time at which he ceased to be her supervisor is unclear (sometime between Christmas 2018 and early March 2019). Nonetheless, the evidence supports the view that the practitioner's emails were misleading, if not also false.
3. The practitioner was aware of her conditions and she knew that she needed to meet her supervisor monthly. Her email of 20 February 2019 suggested that Dr Kuczynski was in a position to write a supervisor report. Even if he had lost the template forms and needed new forms, he could not have completed the 6 monthly supervisor report (and the monthly meeting notes required to be attached to the 6 monthly report) as there had been no monthly supervision meetings for the reporting period. In relation to the email to the Council on 6 March 2019, regardless of whether or not he had the correct forms, again Dr Kuczynski would have been incapable of writing the 6 monthly supervisor's report (and the monthly meeting notes required to be attached to the 6 monthly report), as there had been no monthly supervision meetings. Whether or not the practitioner still looked to Dr Kuczynski as her "supervisor", he was no longer her supervisor for the purposes of compliance with the supervision condition on her registration and the Council's supervision policy. We do not understand her to contend that she misunderstood the Council's requirements that she attend monthly meetings and that her supervisor provide 6 monthly reports. We consider that her emails to the Council were misleading, if not also false.
4. We are satisfied that her conduct in sending the two emails to the Medical Council the subject of Particulars 1 and 2 was not in conformity with expected and appropriate standards of professional conduct, and that it was improper. We are also satisfied that her conduct was unethical (either because it was immoral conduct or a contravention of the Medical Board's Code of Conduct which requires her to act professionally and ethically, or both). We find Particulars 1 and 2 are made out, and in each instance the practitioner engaged in unsatisfactory professional conduct with the meaning of s 139B(1)(l) of the National Law.

Particular 3

1. Particular 3 concerns an affidavit affirmed on 15 July 2019 and the practitioner's claim that between August and December 2018 she only practised on an isolated occasion as a medical practitioner. Particular 3 is set out in the following terms: "3. On 15 July 2019, the practitioner affirmed an affidavit which contained the words at paragraph 24, "Between about August 2018 and December 2018 other than on an isolated occasion I did not practice as a medical practitioner. I had a fractured shoulder in July 2018 and I did not work for a few months" which was false and/or misleading in that the practitioner practiced as a medical practitioner on multiple dates between August and December 2018, as set out in Schedule A."
2. Schedule A to the HCCC's complaint sets out the dates on which the practitioner is alleged to have provided medical services, based on Medicare records, in the months of July, August, September, October, November and December 2018.
3. The practitioner admits "swearing" the affidavit but denies that she intended to mislead the Tribunal or the Council.

The evidence in support of the complaint

1. The practitioner's registration had been suspended by the Council on 19 June 2019, and she became aware of the suspension when she returned from overseas on 26 June 2019. The affidavit was filed in this Tribunal in support of her application to have the suspension decision set aside by NCAT.
2. After having fractured a bone in early July 2018, the practitioner did not work at the Bondi Junction medical practice (her primary place of work) from 4 to 24 July 2018. During that time, she says her husband would drive her to Ark Nursing Home if there were any patients requiring urgent attention. On 25 July 2018, she returned to work at the Bondi Junction practice at her usual hours. From 23 August to 16 September 2018, she was overseas. On 19 September 2018, she returned to work at the Bondi Junction practice. Medicare data establishes that the practitioner provided medical services and prescribed medicines on multiple dates between August and December 2018 as set out in Schedule A to the Complaint.
3. When shown the Medicare data at the Council's (second) s 150 hearing, the practitioner admitted that she was working during the relevant period. She said at the time she affirmed the affidavit, she "was very stressed out and anxious" about why the suspension was happening. She said that she conferred with her then solicitor, who later sent the affidavit to her to swear, and that she swore the affidavit without carefully reviewing it for which she is "deeply remorseful". She agreed there were errors contained in that paragraph of the affidavit. She acknowledged to the s 150 Council delegates that she knew when she gave the information it was not correct information. She also accepted that she gave incorrect information because that would justify why she had not had supervision for that period. She said to the delegates that "I was trying to impress you that I wasn't working that much".
4. In these proceedings, she denies that she intended to mislead the Tribunal or the Council, saying that she was "very stressed" at the time. She said in her statement to the Tribunal that, "with the benefit of hindsight, I understand that my use of words 'isolated occasion' was incorrect. I was very stressed at the time. What I intended to say was that I was not working full-time because of my injury." She agreed in cross-examination that she knew, when she signed the affidavit, that it was not correct to say that she had only worked on an isolated occasion during that period; she said she did not mean "isolated" in the sense a lawyer would use that term, what she meant was that she wasn't seeing "60 patients every day as doctors can do". She agreed that the point of par 24 of the affidavit was to tell the Tribunal she was not working that much so that she had a better chance of setting aside her suspension, or that she had been trying to minimise her practice. She agreed that she wrote scripts and provided medical services from August through to December 2018 on a number of days during that time.

Submissions of the parties

1. The HCCC submits that, given the frequency of services and prescriptions, the practitioner must have known that the information was incorrect; that the information was designed to minimise the extent of her practice and thereby to increase her prospects of setting aside the suspension. It is a serious matter, and extremely poor judgment, to sign an affidavit which contains information which is false, to sign every page of that affidavit in the presence of a solicitor, to put that affidavit forward to this Tribunal in support of her application to set aside the suspension, to try and increase her chance of setting aside the suspension by conveying to the Tribunal that she was not working that much.
2. The practitioner, through Counsel, acknowledged that her conduct as set out in Particular 3 was improper and probably unethical, and that this finding would be open to the Tribunal.

Consideration Particular 3

1. We earlier referred to case law in which the Tribunal has considered the scope of the terms "improper or unethical conduct", and noted that the terms "improper" and "unethical" conduct overlap. It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities: see e.g. Shrimpton at [72]. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: Health Care Complaints Commission v Chowdhury [2015] NSWCATOD 65 at [81].
2. The practitioner's affidavit at par 24 suggests that her practise was minimal during the relevant period. However the Medicare records show that the practitioner provided services, and wrote prescriptions, on a significant number of days in that same period. It was the duty of the practitioner to be candid and honest with the Council and with the Tribunal. She has acknowledged, in the (second) s 150 Council hearing and in these disciplinary proceedings, that the information she gave was incorrect, that she knew it was incorrect when she signed the affidavit, and that she was trying to minimise the extent of her medical practice.
3. We are satisfied that her conduct the subject of Particular 3 was not in conformity with expected and appropriate standards of professional conduct, and that it was improper. We are also satisfied that her conduct was unethical (either because it was immoral conduct or a contravention of the Medical Board's Code of Conduct, or both). In our view, the practitioner engaged in unsatisfactory professional conduct with the meaning of s 139B(1)(l) of the National Law.

Particular 4

1. Particular 4 concerns oral evidence given by the practitioner in the (second) s 150 Council hearing held on 15 August 2019. Particular 4 is set out in the following terms: "4. On 15 August 2019, the practitioner gave oral evidence to the delegates at the hearing under section 150 of the National Law regarding the extent to which she worked as a medical practitioner between July and September 2018 including words to the effect of "during July, all July, I was sitting in every day at home" and "I worked a little bit in August, before I left, and then September I was away" which was false and/or misleading in that the practitioner practiced as a medical practitioner on multiple dates between July and September 2018, as set out in Schedule A."
2. The practitioner admits giving evidence to the Council's delegates as set out above. She accepts that the evidence was incorrect but denies that she intended to mislead the Council.

The evidence in support of the complaint

1. The (second) s 150 hearing was convened by the Council to discuss the allegations about the practitioner's compliance with her supervision condition, as well as the assertion in her affidavit about the extent of her work between August and December 2018 and the discrepancies with Medicare data. The Council delegates were considering whether to take any action against her.
2. From a perusal of the transcript of the (second) s 150 Council proceedings, she said to the delegates that "I was sick with my arm and I couldn't do anything since of the whole of July and August. I was sitting, staying at home, bedridden"; "I couldn't go anywhere in these two months"; "during July [2018], all July, I was sitting in every day at home"; "I worked a little bit in August, before I left, and then September I was away". Her evidence suggested that her practise was minimal because she was bedridden (after having fractured her shoulder in early July), overseas for some of the period, and that she was working limited hours and days. Before this Tribunal, the practitioner agrees (as set out in her statement to NCAT) is that she gave evidence to the delegates at the s 150 proceedings to the effect that "during July, all July, I was sitting in every day at home" and "I worked a little bit in August, before I left, and then September I was away". As already found, the Medicare data establishes that the practitioner practised as a medical practitioner on multiple dates between July and September 2018.

Submissions of the parties

1. The HCCC submits that the practitioner would be well aware that the members of the s 150 panel included fellow medical practitioners. She was legally represented. She had the opportunity to seek legal advice before attending the hearing. The point of giving the oral evidence was to tell her fellow medical practitioners, delegates appointed by the Council for the purpose of the s 150 hearing, how much she had worked, knowing that those delegates had the power to take action against her, and also knowing that she had not met with Dr Kuczynski since 31 July 2018 and knowing that she had continued to practise as a medical practitioner on multiple dates between July and September 2018. She has admitted the oral evidence given was incorrect, and given the frequency of services and the frequency of prescriptions, the practitioner must have known that the information she was giving delegates was incorrect. The HCCC submits that she was minimising the extent of her practice to decrease the prospect of the s 150 delegates taking action against her, and that her conduct was improper or unethical conduct.
2. The practitioner has admitted that her evidence to the Council delegates was incorrect. While she denies an intention to mislead, she nevertheless agreed in cross-examination that she was trying to minimise any action that the delegates might take against her. As she did in relation to Particulars 1, 2 and 3 of Complaint Two, the practitioner acknowledged that her conduct as set out in Particular 4 was improper and probably unethical.

Consideration Particular 4

1. We referred earlier to case law as to improper and unethical conduct. The giving of false or misleading evidence before a regulatory body such as the Council is a serious matter. Clause 8.8 of the Medical Board's Code of Conduct applies specifically in the giving of evidence, and indicates that good medical practice involves being honest and not misleading; and cl 8.10.1 states that good medical practice involves "co-operating with any legitimate inquiry into the treatment of a patient and with any complaints procedure that applies to your work".
2. We are satisfied that the practitioner gave oral evidence to the Council delegates that was misleading, and probably also false, and that her conduct in doing so failed to meet the professional and ethical standards expected for a medical practitioner. As we observed earlier, it is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities. We are satisfied that she engaged in improper conduct, as well as unethical conduct, in the giving of her evidence to the s 150 Council delegates in August 2019, and that her conduct amounts to unsatisfactory professional conduct under s 139B(1)(l). We find that Particular 4 is established.

Particular 5

1. That part of Complaint Two in Particular 5 relates to the practitioner's treatment of family members and of herself, and is set out in the following terms: "5. On multiple occasions between 1 September 2017 and 12 November 2019, the practitioner prescribed medications for herself and her family members contrary to the Council Guideline for self-treatment and treating family members."
2. The practitioner admits Particular 5.

Relevant Guideline and Code of Conduct

1. The Council has issued a guideline (dated 2 December 2014) entitled Guideline for self-treatment and treating family members (the Guideline). In the Background section to the Guideline, reference is made to the Medical Board's Code of Conduct which is described as setting out "the expectations of medical practitioners with regards to treating themselves and those with whom they have a close personal relationship". Clause 9.2.2 of the Code of Conduct states that good medical practice involves "seeking independent, objective advice when you need medical care, and being aware of the risks of self-diagnosis and self-treatment". The Code of Conduct further states at cl 3.14: "Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient."
2. The Guideline provides relevantly as follows: "The Council endorses the Medical Board's Code of Conduct's guidance in relation to self-treatment and treating family members. In addition the Council endorses the following general principles: 1. All medical practitioners should have their own, independent General Practitioner. 2. Medical practitioners should not initiate treatment (including prescribing) for themselves or members of their family. 3. In emergency situations or isolated settings where there is no help available, medical practitioners may treat themselves or members of their family until another medical practitioner becomes available. 4. Medical practitioners should not serve as primary or regular care providers for members of their family, although there are circumstances in which they may work together with an independent medical practitioner to maintain established treatment.…".
3. The Guideline also provides that: "Wherever possible, medical practitioners should not treat themselves and members of their family, because in these circumstances: • Professional objectivity may be compromised and their judgment may be influenced by the nature of their relationship with the patient; • Medical practitioners may fail to explore sensitive areas when taking a medical history or may fail to perform an appropriate physical examination; • The patient may feel uncomfortable disclosing sensitive information or undergoing a physical examination when the medical practitioner is a family member; • Patient autonomy may be compromised when a medical practitioner treats a member of their family; • The principles of informed consent may not be adhered to when a medical practitioner treats a member of their family."
4. While they do not have the force of law, the Council's Guideline and Board's Code of Conduct should be considered persuasive and, at minimum, represent the profession's view of good practice. Medical practitioners are expected to follow the guidance provided by these codes issued by the regulatory bodies at State and national level. Further, and as noted earlier, the Code of Conduct is admissible in disciplinary proceedings against a health practitioner under the Law as evidence of what constitutes appropriate professional conduct or practice: National Law, s 41.

Evidence in support of the complaint

1. The practitioner admits the Particular that, between 1 September 2017 and 12 November 2019, she prescribed medications for herself and family members contrary to the Council's Guideline. Both the Guideline and the Code of Conduct set out relevant professional (and ethical) standards with respect to self-treatment and treatment of family members, to which we have already referred. The Medicare data confirms that she wrote prescriptions for herself and her family members on multiple occasions between 1 September 2017 and 12 November 2019.
2. During the (second) s 150 proceedings held on 15 August 2019, and in these proceedings, the practitioner admitted that she had treated and/or prescribed medication to her brother, husband, son, three nephews and a wife of one of her nephews. She says that on the occasions she prescribed to her family (other than to her brother) it was because they were disorganised and required a script on the weekend or it was a repeat script. She believes that they each had their own independent GPs (other than her brother) and recalls telling her family they had to be better at planning ahead.
3. In respect of her 71 year old brother (a retired medical practitioner), she was his GP for a number of years. The practitioner says that, between 2000 and 2017, her brother was the primary carer for their mother (who died in 2017) and he developed chronic back pain from caring for her. Between 23 September 2017 and 3 June 2019, the practitioner has admitted to prescribing medications to her brother, including oxycodone, Panadeine Forte and nitrazepam to manage his back pain. From 6 June 2019, she says she mostly prescribed Panadeine Forte. She says she has not prescribed for him since 15 August 2019. Her evidence in these proceedings, and in oral evidence to the Council delegates at the (second) s 150 hearing, is that she knew it was "not right" to prescribe these types of medicines to her brother and that she told him this, and that she was trying to reduce the medications. In cross-examination in these proceedings, she said she knew before she arrived in Australia that "it wasn't 100% right to prescribe to family members".
4. In evidence before the Tribunal in these proceedings, and in oral evidence to the Council delegates in the s 150 hearing, she admitted that that she self-prescribed medication. She indicated that her usual GP was a doctor working at the Bondi Junction practice, but that she at times wrote her own prescriptions. The practitioner's self-prescribing occurred on 21 occasions during the relevant period for a range of medications, as confirmed by Medicare records.

Submissions of the parties

1. The HCCC submits that Particular 5 constitutes improper and/or unethical conduct on the part of the practitioner. Her family members were unaware that she had conditions on her registration, and they did not know that there was any requirement for her to meet with a supervisor monthly. In circumstances where her husband is a former doctor and her son is also a current GP, the HCCC says the practitioner could have told them about her difficulties with the Council, and she could have declined to prescribe to her family members. As to prescribing to her brother, she knew that it was wrong. She had known already about the ethical issues about prescribing even before she arrived in Australia, and there are examples in her evidence where she told her brother "I don't think this is right" and then prescribed for him anyway.
2. Counsel for the practitioner says that she has accepted the philosophy behind the Guideline, that it is not a good idea to treat family members or yourself in that way given that a far more objective approach should be applied in the treatment of any person receiving medical treatment.

Consideration Particular 5

1. It is evident that the practitioner prescribed and treated family members and herself in contravention of the Guideline and the Code of Conduct. The Code of Conduct and the Guideline are relevant to whether the conduct is to be judged unethical and/or improper. The Guideline and Code set out the expectations of the standard to be expected of medical practitioners, and she failed to meet that standard. There is no evidence before the Tribunal that the medications she prescribed for family members were only for "emergency situations or isolated settings where there is no help available" (in the words of the Guideline), and we do not understand this to be her contention.
2. We think that the prescribing to family members is of particular concern in relation to her brother. She admitted to prescribing him Schedule 8 and Schedule 4 medications (being medications listed in those respective schedules to the Poison Standard made pursuant to s 52D(2)(b) of the Therapeutic Goods Act 1989 (Cth)). Her own evidence is that she was her brother's GP over a number of years, and on multiple occasions during the relevant period prescribed him Schedule 8 and Schedule 4 medications in situations where there was no emergency. Her actions put herself and her brother in a situation where he was not provided with independent, objective medical advice. The Code of Conduct warns of a "lack of objectivity" and the Guideline states that professional objectivity of medical practitioners may be compromised and their judgment may be influenced by the nature of their relationship with the patient. This would appear to be borne out by the practitioner's own evidence that she told her brother "it was not right" but still prescribed Schedule 8, Schedule 4 and other medications for him on multiple occasions.
3. We are satisfied, to the required standard, that the practitioner's prescribing on multiple occasions in breach of the Code of Conduct and the Guideline amounts to unethical conduct, and that Particular 5 is established. We note in this regard that the dictionary meaning of "unethical" includes contravention of codes of conduct. While not necessary to decide, we think her conduct is probably also improper conduct because the prescribing (on multiple occasions, repeat prescriptions, and some Schedule 8 medications) falls short of appropriate standards expected of medical practitioners. Such conduct is "improper or unethical conduct relating to the practice… of the practitioner's profession" within the meaning of s 139B(1)(l) of the National Law, and amounts to unsatisfactory professional conduct.
4. The Tribunal finds, with regard to each particular alleged in Complaint Two, that the conduct referred to is established. The Tribunal finds that the practitioner's conduct, with regard to each particular alleged in Complaint Two considered individually, and considered collectively (or cumulatively), constitutes unsatisfactory professional conduct under s 139B(1)(l) of the National Law.

Complaint Three - instances of unsatisfactory professional conduct, individually, or collectively, amount to professional misconduct

1. Complaint Three is as set out as follows: "The practitioner is guilty of professional conduct under s 139E of the National Law in that the practitioner has: (i) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of cancellation of the practitioner's registration, and/or (ii) 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 the suspension or cancellation of the practitioner's registration."
2. The Particular of Complaint Three is as follows: "Each particular of Complaint One and Complaint Two justifies a finding of professional misconduct. In the alternative, when two or more of the particulars are taken together, a finding of professional misconduct is justified."

Legal principles

1. We referred earlier in these reasons to the statutory definition of professional misconduct in s 139E. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20], Basten JA explained: "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."

Submissions of the parties

1. The HCCC submits that her conduct is sufficiently serious to amount to professional misconduct, and that each instance of unsatisfactory professional misconduct is sufficient to amount to professional misconduct, whether considered individually or collectively.
2. The practitioner denies that she engaged in professional misconduct. She submits that, in relation to the admitted Complaint involving breach of her supervision condition, she did not act in contumelious breach of the condition. She says her conduct (except for prescribing for family members and herself) stemmed from the difficulties she experienced in finding a supervisor who was acceptable to the Council following the imposition of the supervision condition on her registration. She accepts that she should have kept the Council informed as to what was happening in relation to the supervision arrangements, and that is particularly so in relation to the supervision by Dr Kuczynski. As to the provision of false or misleading information to the Council and the Tribunal (Complaint Two, Particulars 1-4), she admitted the information was incorrect, and that she was required to be cooperative and responsible in dealings with the Council and other regulatory bodies. She agreed in cross-examination that she was attempting to "buy some time" to find another supervisor, and to avoid detection of the fact that she had been practising without a supervisor. She submits that she did not act in contumelious disregard of supervision requirements.

Breach of registration condition (Complaint One)

1. We turn first to whether her unsatisfactory professional conduct involving breach of registration conditions amounts to professional misconduct. This depends whether the unsatisfactory professional conduct in which she engaged is of sufficiently serious nature to justify suspension or cancellation of her registration. We approach the matter by comparing the conduct of the practitioner in question with that which we understand would be expected of a medical practitioner.
2. We referred earlier to s 3A of the National Law. A failure to adhere to the provisions of registration conditions should be regarded as a serious matter, the nature of which needs to be considered in all the circumstances. Prima facie, therefore, the admitted failure by the practitioner to comply with her supervision condition is a serious matter, and a failure to comply with a registration condition may arguably be of a sufficiently serious nature to justify suspension or cancellation, because it constitutes a breach of the statutory regime established to regulate health practitioners in this State. In order to determine whether this prima facie failure is of a kind which would justify suspension or cancellation it is necessary to have regard to all of the circumstances surrounding the imposition of the registration condition and its admitted breach. (We acknowledge that it is not appropriate for this Tribunal to re-examine or question the reasoning of the Council in imposing the supervision condition, or the particular type or form of supervision condition imposed.)
3. The supervision condition was imposed to protect the public and in response to a patient complaint about poor clinical care and two performance assessments in which her clinical performance was judged to be unsatisfactory. The supervision condition, read in conjunction with the Council's Compliance-Supervision Policy, required the practitioner to practise in a manner that complied with her category of supervision (Category C monthly meetings, participate in meetings with her approved supervisor, ensure that the supervisor provides reports to Council (within the specified time periods), ensure continuity of supervision, and immediately nominate a proposed replacement supervisor to be approved by the Council when the current approved supervisory relationship ends). The Policy warns practitioners about the consequences of failure to comply with conditions.
4. The practitioner submits that, for the period 1 October 2017 to 14 February 2018, the Tribunal should not regard the (admitted) breach of the supervision condition in her circumstances as something that would require serious sanction in itself. This is because she had been supervised by Dr Triantopoulos for about six months up to that time of October 2017, and she was not aware that she still required ongoing supervision until she received the letter from the Council dated 21 December 2017. She then struggled to find a new supervisor over the Christmas/New Year period and finally Dr Kuczynski was approved in February 2017.
5. In relation to the second period of breach from 14 August 2018 and 17 September 2019, both she and Dr Balafas have given evidence to indicate Dr Kuczynski's health was declining significantly from mid 2018 and neither she nor Dr Balafas could persuade him to resume monthly supervision meetings, and that once it became clear to the practitioner that Dr Kuczynski would no longer supervise her, she sought to find another doctor who was suitable as a supervisor and that took some time. By early March 2019 the practitioner had sought approval for a doctor to be her supervisor, who was declined. Thereafter, the Council declined others. It was not until September 2019 that Dr Kailainathan was approved.
6. We found that the practitioner failed over a significant period of time (for 2 periods, totalling 17.5 months) to meet supervision requirements, including attending monthly meetings with her approved category C supervisor, and that each instance amounts to unsatisfactory professional conduct. The obligation to attend monthly supervision sessions was clearly outlined in relevant documentation. Where a practitioner experiences difficulties with compliance, including for reasons outside the practitioner's control such as illness of the supervisor, he or she must promptly notify the Council. The practitioner must cease practising until the situation is rectified to avoid breach of condition (see Requirement 1 of the Policy which states that practitioners subject to a supervision condition must "1. Practise in a manner that complies with the category of supervision required by their condition", reproduced earlier).
7. We earlier found that the practitioner had some difficulties with Dr Kuczynski continuing as supervisor from August 2018. However, even taking into account the difficulties, this (second) breach of condition is serious because it demonstrates a lack of insight into the need to act scrupulously with regard to her obligations under conditions of registration, and therefore professional obligations. At no stage did the practitioner notify the Council of any problems with her then supervisor, despite the clear guidance in the Policy to do so. The practical effect of breaching the supervision condition for the second time was that the practitioner continued to provide medical services and write prescriptions for a number of patients for a period of over 13 months without a supervisor meeting her monthly to discuss her practice, provide input regarding any clinical issues, and notify the Council of any concerns.
8. Supervision conditions are imposed to protect the public and cannot be treated lightly, or in some way as "optional". Such conditions and their monitoring allow practitioners whose conduct has come under scrutiny to continue in practice; this is a privilege the importance of which should not be underestimated by the practitioner in question. Case law earlier cited emphasises the importance of complying with registration conditions, as well as the need for practitioners to ensure they act at all times with transparency and honesty with those persons and bodies whose task it is to make an assessment of a doctor's compliance with registration conditions. The Court of Appeal in Prakash approved the statement of the former NSW Medical Tribunal in Re Dr Tan Thanh Le at [95]: "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. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, "containing as it does a grave criticism of the standard of the practitioner's conduct" [citation omitted]."
9. Having regard to all of the circumstances, we consider that the first period of breach is not, of itself, sufficiently serious to amount to professional misconduct. We consider that the second period of breach is more serious, for reasons discussed above, and that it is unsatisfactory professional conduct that amounts to professional misconduct. Further, considering the two periods of breach together, we are of the opinion that the breach by the practitioner of the supervision condition which constitutes unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of her registration for the purpose of s 139E, and is therefore professional misconduct.

Other improper or unethical conduct (Complaint Two)

1. We now turn to whether the instances of unsatisfactory professional conduct involving false or misleading communications (considered individually, or collectively) amount to professional misconduct within the meaning of s 139E. Again, we approach the matter by comparing the conduct of the practitioner in question with that which we understand would be expected of a medical practitioner.
2. It is obvious that the provision of false or misleading information to the Council and to this Tribunal is of the utmost seriousness and reflects poorly on the practitioner in question. Such conduct falls far short of expected professional and ethical standards. This is even more so when the false or misleading information pertains to the monitoring of practice restrictions, which were originally imposed due to concerns about unsatisfactory professional performance.
3. As to Particulars 1 and 2 of Complaint Two, we find that the two instances of unsatisfactory professional conduct, considered together, amount to unsatisfactory professional conduct of sufficient seriousness to amount to professional misconduct. She provided false or misleading information to the Council, while it sought to monitor the practitioner's compliance with her supervision condition. She knew that she had not met with Dr Kuczynski for monthly meetings for about 7 months; she had had ample experience (having been registered in NSW since 1996 and having worked at several medical centres) so she must have known her obligation to be both candid and honest with the Council; and the practitioner was attempting to avoid detection for practising without supervision.
4. As to Particulars 3 and 4 of Complaint Two, she affirmed an affidavit, in connection with Tribunal proceedings to have her suspension from medical practice set aside, which contained misleading information. The affidavit was signed in the presence of her solicitor, so she could have sought advice about her obligations. She was legally represented when she gave misleading evidence to Council delegates at a s 150 hearing so could have sought advice about her obligations. In both instances, and on her own evidence, the practitioner was minimising the extent of her practice to decrease the prospect of action being taken against her in relation to her registration as a medical practitioner. We find that these instances of unsatisfactory professional conduct, considered individually and collectively, are of sufficient seriousness to amount to professional misconduct.
5. As to Particular 5, Complaint Two, the practitioner's self-prescribing and her family-prescribing contrary to the Council's Guideline and the Board's Code of Conduct occurred over a lengthy period; to several family members for a range of medications, including some repeat prescriptions and some Schedule 8 medications; the practitioner's family members were unaware that the practitioner had any conditions on her registration; the Council's Guideline explains that self-prescribing and family-prescribing may compromise professional objectivity and influence judgment, and practitioners may fail to conduct an appropriate history/examination, the family member may feel uncomfortable, patient autonomy may be compromised and the principles of informed consent may not be adhered to. As stated in cl 3.14 of the Code of Conduct, in most cases self-prescribing and family-prescribing is "inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient".
6. While we think that her conduct the subject of Particular 5 is serious, it is not necessary for us to decide whether the practitioner's conduct in prescribing to family members and self-prescribing falls so far short of appropriate professional and ethical standards that the conduct, considered alone, amounts to professional misconduct. Considered together with the other instances of unsatisfactory professional conduct we have found proven in Complaint Two, we consider that her conduct falls far short of the standards expected of a medical practitioner and we are satisfied to the requisite standard that her conduct amounts to professional misconduct for the purposes of s 139E of the National Law.
7. Further, considered collectively, we conclude that the instances of unsatisfactory professional conduct in which the practitioner engaged, as particularised in Complaint One and Compliant Two, are sufficiently serious to amount to professional misconduct. In considering the overall seriousness of the practitioner's conduct, we have had regard to the significant periods of time she was in breach of her supervision condition, the misleading communications to the Council and the Tribunal, and the prescribing of medications contrary to professional codes/guidelines. We have also taken into account that the practitioner has shown some insight, including by the making of admissions prior to hearing, and various concessions during the hearing, which have shortened the hearing in this matter.
8. The Tribunal finds that the conduct of the practitioner, as particularised in Complaints One and Two, constitutes professional misconduct under s 139E of the National Law, as alleged in Complaint Three.

Protective orders

1. As the Tribunal has found that the practitioner is guilty of professional misconduct, it may (but is not required to) suspend or cancel her registration under s 149C(1) of the National Law. Under s 149C(7), the Tribunal may order the cancellation of the practitioner's registration and impose a period before she may again apply for registration. Alternatively or in addition, as the Tribunal has found the practitioner guilty of unsatisfactory professional conduct, the Tribunal may make any of the protective orders set out in s 149A of the National Law. These include giving of a caution or reprimand, and imposing conditions on the practitioner's registration.

Legal principles

1. The jurisdiction of the Tribunal is (generally) not punitive, but is protective. An objective of the national registration and accreditation scheme (for the regulation of health professionals) is "to provide for the protection of the public is achieved by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered": National Law, ss 3(1)(a), 3(2)(a). In accordance with s 3A of the National Law, the protection of public safety and health is paramount. In exercising its jurisdiction to determine appropriate protective orders, the Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community: Prakash at [91].
2. Whether the professional misconduct is sufficiently serious to warrant cancellation or suspension is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82]. This requires an assessment of the gravity of the professional misconduct found proved. The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [638]. It is not necessary to make a finding that the practitioner is permanently unfit to practise before registration can be cancelled: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [14] and [20] per Basten JA; [67]-[69] per Payne JA.
3. Cancellation may, in serious cases, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the medical profession (see e.g. Prakash at [64] per Santow J; [101] per Basten JA). Deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession (see e.g. Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] per Meagher JA).

Submissions of the parties

1. The HCCC seeks cancellation of the practitioner's registration on the basis of the seriousness of the practitioner's conduct; the risk to the public of alternative (i.e. "less serious") protective orders; the practitioner's "limited insight"; and the need to protect the public from similar misconduct of others and uphold public confidence in the standards of the medical profession. A two year non-review period is said to be appropriate because the practitioner will need a lengthy period to gain genuine insight into the rationale for the conditions, the importance of compliance and the seriousness of her breaches, and time to engage in meaningful rehabilitation and demonstrate genuine reformation of character. The HCCC submits that protective orders which allow the practitioner to continue to practise medicine subject to a supervision condition on her registration are not sufficient to mark the seriousness of relevant conduct and to protect the public.
2. The HCCC did not make any submissions to the Tribunal on the appropriate type or form of registration conditions, should the practitioner be permitted to practise medicine, except for submissions as to why a category C supervision condition would not be suitable as a critical compliance condition (see later below).
3. The practitioner opposes cancellation or suspension of her registration. She says that the public would be adequately protected by a reprimand and by ongoing registration conditions. However, if the Tribunal believes it necessary for the purpose of deterrence, or because of a view it takes about the significance of the practitioner's conduct as a whole, that a more serious protective order be made, the practitioner argues that suspension of her registration for up to 6 months, coupled with ongoing registration conditions that would operate when she recommences practice, would be sufficient to protect the public. The practitioner submits it would be disproportionate to cancel her registration in circumstances where she did not act in contumelious disregard of the condition that she have a supervisor, but instead faced difficulties finding a supervisor.
4. If the practitioner is permitted to practise, we understand the practitioner to contend that the registration conditions currently imposed on the practitioner's registration are suitable to remain as ongoing conditions (whether or not the Tribunal imposes a supervision condition as a critical compliance condition).
5. During the hearing in this matter the Tribunal raised the possibility of a supervision condition being made a critical compliance condition or order under ss 149A(4) and (5) of the National Law, and asked parties to make oral submissions in this regard. The HCCC submits that a category C supervision condition, which requires both the practitioner and the supervisor to do certain things, is not as suitable to being a critical compliance condition, which has more drastic consequences, than a type of condition which requires a practitioner, by way of example, to undertake drug testing at particular intervals. It is argued that making a supervision condition a critical compliance condition would be difficult to monitor as, one, there would be many triggers for breach (e.g. where the practitioner attends the appointment but does not attend on time), and two, it would not be easy to say with certainty whether things have been done or not (e.g. where the practitioner attends a supervision meeting but is not fully engaged with that process). The practitioner, through Counsel, submits that a supervision condition imposed as a critical compliance condition would be workable.

Seriousness of conduct

1. We have addressed the seriousness of the practitioner's conduct in our earlier discussion of Complaints One and Two and, in particular, Complaint Three.

Risk to public

1. The HCCC opposes any protective order that permits practice with conditions, arguing that supervision is not adequate to protect the public because the practitioner poses a risk. The supervision condition was originally put in place to reduce risks to the public following performance assessments in which her clinical performance was judged unsatisfactory. However, it is important to recognise that there is no complaint before the Tribunal involving her clinical performance or treatment of any patient. If what the HCCC contends is that the Tribunal should draw an inference or make a finding in these proceedings that, by reason of the practitioner's clinical performance, she poses a risk to the public, we do not think that there is a proper basis on which to do so.
2. The Tribunal's confidence in the practitioner's compliance with future orders is relevant to the evaluation of appropriate protective orders. The HCCC submits that the Tribunal should have regard to the practitioner's poor judgment in assessing whether she would comply with future Tribunal orders. The HCCC points to her poor judgment as shown, for example, in the conduct the subject of the particularised complaints before the Tribunal, and because on some previous occasions (and on her own evidence) she had been afraid to open correspondence from the Council. On the latter point, we agree with the practitioner's submission that there is no evidence she has ignored or failed to respond to Council correspondence, or otherwise failed to engage with the Council, recently.
3. The HCCC also points to the practitioner's poor judgment in writing prescriptions during a previous one month period of suspension. The HCCC acknowledges that there is no complaint particularised as to prescribing while suspended, but argues that the evidence before the Tribunal, including answers given by the practitioner during cross-examination, is nonetheless relevant to the Tribunal's evaluation of appropriate protective orders. When questioned by the HCCC, the practitioner said, during cross-examination, that she was aware she could not see patients, nor write prescriptions, while suspended. She conceded that she wrote some prescriptions during the period of suspension. She did not indicate that she thought it was acceptable for her to do so.
4. As noted, there is no particularised complaint before the Tribunal that the practitioner prescribed while suspended and she did not come to the Tribunal to meet such a complaint. Accordingly, we must exercise caution before drawing any adverse inference about her conduct during a previous period of suspension. The circumstances surrounding any such prescribing during the period of suspension have not been the subject of detailed evidence, and there has been no reasonable opportunity for the practitioner to prepare a response to a particularised complaint and to summons copies of material such as original prescriptions. The HCCC contended in oral submissions that, on the practitioner's own oral evidence, "she thought it was okay to continue prescribing after she thought she was suspended", and that goes to stage 2 considerations, not a separate stage 1 finding. However, we do not think that the HCCC's submission accurately describes the oral evidence given by the practitioner at the hearing. She did not indicate that she thought it "okay" to prescribe while suspended. On the evidence before us, we are not satisfied, to the required standard, that we can draw an inference, or make a finding, that the practitioner would not comply, or would be unlikely to comply, with future Tribunal orders by reason of her prior conduct during a one month period of suspension.
5. The HCCC also submits that there are significant problems with the practitioner's current supervisory arrangements, such as might lead the Tribunal to favour cancellation of the practitioner's registration. It is argued that the Tribunal should give little weight to the supervisor reports signed by Dr Kailainathan (included in the documentary evidence tendered by the practitioner) for reasons which include the following: commentary in the reports was handwritten by the practitioner as opposed to the supervisor; the reports did not canvass ethical issues; the reports did not include a review of the practitioner's medical records; and there were signed reports for June and July 2020 despite no meetings having taken place in those months. Dr Kailainathan was cross-examined at the hearing about her supervisory reports.
6. We do not think it is material as to who handwrote commentary in the reports; both parties agreed that the practitioner wrote the commentary in the supervisory reports and Dr Kailainathan signed the reports. Further, there is no requirement for the reports to canvass what the HCCC referred to in its oral submissions as "ethical issues"; neither the terms of the supervision condition, the Council's supervision policy, nor the letter sent by the Council to Dr Kailainathan when approved by the Council as supervisor in September 2019 refer to any such requirement. The Council's requirement is that supervision sessions for the practitioner in question cover the following topics: basic clinical skills (interviewing/examination); clinical judgment; patient management skills (treatment/advice); prescribing skills; and appropriate billing. From the evidence before us, the practitioner and the supervisor discussed these topics through case studies, based both on real cases (some proposed by the supervisor from her own patient cases, with other case studies proposed by the practitioner based on her own cases or those of the general practice where she works), as well as hypothetical cases. Where there is no supervisory requirement to canvass ethical issues, we cannot conclude that the absence of discussion or reporting on such issues erodes the value of the supervisory reports, or the supervision sessions more generally.
7. As to the supervisor failing to comment on the practitioner's medical records in the supervisory reports, Dr Kailainathan said in cross-examination that she did not see any of the practitioner's medical records, because she does not consider that it is appropriate for her to view medical records from other medical centres. We note however that the Council's policy requires the supervisor to "attend [the practice location] on occasion to review records and files". It would therefore seem that there is some lack of understanding on the supervisor's part as to her responsibilities in this respect.
8. The evidence also indicates that there had been some misunderstanding (on the part of both the practitioner and the supervisor) as to the length of the supervision (specifically, whether Dr Kailainathan's supervision (which began in September 2019) was to continue beyond 6 months). On 11 August 2020, the Council delegates during the s 150A hearing informed the practitioner that she must continue her monthly meetings. In the period after that hearing, it seems that supervisory reports were prepared for June and July 2020, and signed by Dr Kailainathan in August 2020. The supervisor in oral evidence could not recall whether the reports were prepared retrospectively in August for the June and July dates. If that was the case, we do not know whether that was based on a misunderstanding of the Council's requirements. The supervisor's oral evidence did not provide clarity as to whether she was familiar with, or understood, all of the responsibilities (or expectations) of a supervisor's role.
9. Considering the evidence as a whole, we are not satisfied that the HCCC's strident submissions about the lack of efficacy in the current supervisory arrangements are warranted. To the extent that there have been failings, or the supervisory arrangements are not working as contemplated, in our assessment this cannot be laid entirely at the feet of the practitioner. One of the Council's stated expectations of an "approved supervisor" is that the supervision provided is "a valuable tool for assisting a practitioner to improve his/her practice to accepted standards". As the Council "approves" the supervisor, as part of the approval, the Council has some responsibility to ensure that the approved medical practitioner providing supervision clearly understands, and has the capacity to perform, the required supervision.

Insight

1. We said earlier that the practitioner has shown some insight. She made a number of formal admissions prior to the hearing, as well as concessions in the presentation of her case at the hearing. She has acknowledged wrongdoing. She recognises that she should have kept the Council informed of problems she was experiencing in her supervision arrangements, that it was wrong to mislead the Council and the Tribunal (charged with the responsibility of ensuring compliance with the registration scheme for health practitioners, and upholding appropriate standards), and that it was not right to prescribe to family members and to herself contrary to relevant codes.
2. The HCCC submits that the practitioner has limited insight, pointing to her oral evidence that she does not think that she needs supervision. It is argued that this raises the question whether she genuinely appreciates the value of supervision, and gives rise to doubt about whether she would comply with any future supervision condition.
3. When put to her directly in cross-examination, the practitioner said she thinks she is safe to practise without a supervisor (and that this is why she sought a review of her conditions on registration under s 150A of the National Law in mid 2020). It was also put to her that she now has a history of not complying with her category C supervision, and how can the Tribunal be confident she will comply if there is "tighter supervision". She gave frank answers about the difficulties of finding a suitable supervisor (being one acceptable to the Council), and indicated that if the Council had any suggestions she would approach those doctors straight away. In terms of future supervision, she indicated she would meet supervision dates. She said "I would listen to anything, I would do anything". Contrary to the HCCC's contention, we do not consider that an inference can properly be drawn from her oral evidence that she would not comply, or would be unlikely to comply, with supervisory requirements in the future.
4. From the totality of evidence before us, we also do not think that an inference can be drawn that the practitioner has no appreciation of the value of supervision. In these proceedings, and in previous Council proceedings (during the s 150A hearing in August 2020), the practitioner gave oral evidence about what she had learned as a medical practitioner from supervision sessions with Dr Kailainathan. At the s 150A hearing, the practitioner was questioned about her supervision sessions from September 2019. The practitioner indicated that the supervisor would give her a case scenario and they will work through that together, discussing history, examination, investigation and management. The practitioner said she learnt (from her supervisor) that her standards were not "up to top notch", that she did not take the time to communicate properly, she needed to be more accurate in her examinations and more opportunistic, that is, extending the consultation to include discussion of other things such as taking blood pressure readings. She has learnt to take a more holistic approach to patients, and has also learnt some strategies for managing patients who may be drug seeking, amongst other things. The practitioner indicated that, from her supervision sessions with Dr Kailainathan, she has improved as a medical practitioner.
5. When considering her evidence taken as a whole, we are not satisfied that there is a sufficient basis on which to conclude that, because of a lack of insight, the practitioner would not follow, or would be unlikely to follow, future supervision requirements if the Tribunal permitted her to practise under supervision.

References

1. The practitioner relied on three character references: two from GPs from the medical practice where she works (the practice owner, Dr Balafas, and a colleague, Dr Davis) and one from the senior receptionist at that practice (Ms Shabshay). In writing their references, each of the referees was aware of the conditions on the practitioner's registration, the HCCC's complaint against her and her reply statement. Only Dr Balafas was called for cross-examination.
2. Dr Balafas gave a very positive written reference for the practitioner, commenting that she has been his employee since 2012, and throughout that time, she has been extremely reliable "and performed exceptionally as a doctor at the practice". He gave evidence that she is extremely well liked by her patients and her fellow staff, and has gathered a following of regular patients who are very happy with her. Dr Balafas said a number of patients have commented to him how good a doctor the practitioner is. He also says she has a very valuable place in the medical centre for several reasons: one, that she has worked there reliably for such a long period of time, and has formed a close bond with many of her long-term patients; and, second, that she has a strong following of female patients and plays a crucial role in the practice in providing women's health services.
3. Dr Davis wrote positively as to the practitioner's character, professional manner and relationship with her clients. However, by reason of Dr Davis' personal circumstances, we do not give as much weight to the reference as we might otherwise do. Ms Shabshay, the senior receptionist, wrote of the practitioner's "professionalism, team spirit and caring attitude", and comments that there had not been any adverse feedback from the practitioner's patients, and says the opposite is true. Both those referees noted that the practitioner is one of two female health practitioners at the Bondi practice, and stated that this is of "critical" importance to the practice. Ms Shabshay explained in her reference that while there is another female doctor at the practice, that doctor caters only for a specific ethnic group, whereas the practitioner is available to provide services to the broad range of patients who wish to consult with a female GP.
4. We accept that the views of the referees are genuinely held, and we give some weight to their views.
5. In addition to the evidence of Dr Balafas, Dr Davis and Ms Shabshay about the important role the practitioner plays in the Bondi Junction practice, particularly in relation to women's health, there is other evidence before the Tribunal that the practitioner provides consultations in Arabic as well as in English. We recognise the value to the medical profession of having Arabic-speaking doctors, particularly female doctors, available to provide health services to women in the Greater Sydney region. There is also evidence that the practitioner cares for elderly patients and patients with disabilities and/or restricted mobility through visits to aged care facilities and home consultations. In evaluating appropriate protective offers, we may have regard to the types of GP services she provides to the community, while recognising the primacy of the protective purpose set out in s 3A of the National Law.

Conclusion on protective orders

1. Consequent on our findings of unsatisfactory professional conduct and professional misconduct, and taking into account the seriousness of the practitioner's conduct and the protective purpose of the jurisdiction, we consider the appropriate orders to be that she be reprimanded, her registration be suspended for a 9 month period, and on expiry of the suspension period, her registration be subject to conditions (discussed further below). In reaching our determination, we have carefully considered the concessions made by the practitioner, the views of her referees, her expressed willingness to engage with a supervisor, and the effect of a loss to the community of a practitioner who services women's health, particularly one from an Arabic speaking background.
2. We reprimand the practitioner as a mark of our strong disapproval of the practitioner's offending conduct. The reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and acts as a deterrent to other medical practitioners; and further, upholds and reinforces the standards of the medical profession. The fact of the reprimand will be recorded on AHPRA's register of practitioners.
3. In addition, we think that, in the circumstances of this case, a suspension of the practitioner's registration for a period for 9 months further marks the gravity of the practitioner's conduct. The period of the suspension should provide an appropriate length of time for the practitioner to reflect on her offending conduct. There is no doubt that a period of suspension from practice will deal a serious blow to the practitioner, in a professional, financial and social sense. The object of the orders is not for punitive purposes, but, rather protective. It is inescapable however, that a protective order may feel like punishment to the practitioner. There is the need to maintain public confidence in the profession and in the operation and management of the health system and associated regulatory bodies. We consider that the stipulated period of suspension will provide a deterrent to other practitioners in the profession of medicine from engaging in the same or similar type of conduct. We are conscious that orders of this kind are given wide publicity through the internet.
4. It is apparent from what we said above that we do not consider that the evidence before us, considered in its totality, requires us to cancel her registration in order to promote the protective objectives of the National Law. In determining appropriate protective orders, we agree with the observations by Rein DCJ (as he then was) in In Re Dr Ian McHue [2007] NSWMT 11 at [39] that no order should be made that has more serious consequences for the practitioner than is reasonably necessary to promote the protective purpose but that is not to say that only the aim of deterring the particular practitioner is to be considered. There is no one formula to determining what orders are appropriate, and in considering the facts of this case, we have had regard to the detriment to the practitioner and the damage to her professional career should her registration be cancelled, as urged by the HCCC. It is appropriate for us to consider whether a lesser penalty may address the risks to the public and the need for deterrence (both specific and general): to similar effect, see e.g. Jan v Health Care Complaints Commission [2021] NSWSC 350.
5. The practical consequence of a suspension order, as opposed to a cancellation order, is that the practitioner's registration revives after the expiration of the stipulated period. She is not required to return to the Tribunal for a review of any cancellation order as part of the procedural pathway to returning to registered status. The practitioner is spared from having to jump the not insignificant hurdle of presenting evidence at a fresh Tribunal hearing as to fitness to resume registration. We have opted for this course of action, together with the other orders and conditions, in promoting the protective purpose while recognising that the practitioner's clinical performance is not the subject of any complaint before the Tribunal.
6. We have allowed a period of 21 days from the date of these orders before the commencement of the period of suspension. This is to allow a reasonable period of time for referral of patients and to attend to patients who already have appointments booked with the practitioner, and for the medical practice where she currently works (as well as the aged care facilities she visits, and patients who have home consultations) to make alternative arrangements. This period of grace is afforded in order that inconvenience to existing patients might be minimised and managed.

Form of conditions

1. On resuming practice, the practitioner's registration will be subject to conditions, including a category C supervision condition. The conditions on the practitioner's registration will be those identified in the schedule below, and are based on the conditions imposed by the Council at the s 150A hearing held in August 2020. The Council will be the appropriate review body for the purposes of Div 8 of Pt 8 of the National Law.
2. After careful consideration, we have determined that it would not be practicable to impose a category C supervision condition as a critical compliance condition or order under s 149A(4) and (5) of the National Law. The supervision regime requires a meeting at a particular frequency as specified by the Council, with the preparation of a report and its submission to the Council within a specific timeframe. The actions of the supervisor are, to a material extent, outside the control of the practitioner. There is considerable scope for the supervisor not to comply with the terms of the supervision condition, such as failing to provide the supervisor report to the Council within the required timeframe, including for unavoidable reasons such as illness.
3. As observed by the Tribunal in Dental Council of NSW v Stewart [2018] NSWCATOD 135 at [61], the imposition of a critical compliance condition is by its nature a very serious condition. If contravened the Council must suspend the practitioner and refer the matter to the Tribunal: National Law, s 150(3). If the Tribunal is satisfied that the condition has been contravened it must cancel the practitioner's registration: National Law, s 149C(3). There is no discretion and the circumstances surrounding the breach, no matter how compelling, cannot lead to a different outcome. The only discretion which exists relates to the length of time in which the cancelled practitioner may not apply for reinstatement. It is the mandatory nature of these provisions which makes any contravention so far-reaching and grave. Bearing this in mind, we think that, overall, there would be some practical difficulties if a category C supervision condition were to be imposed as a critical compliance condition.
4. We have considered whether the conditions currently imposed on the practitioner's registration should be varied. The HCCC referred to the option of the Tribunal imposing "tighter supervision" when questioning the practitioner during cross-examination. However, the HCCC did not make any submissions to the Tribunal about whether, in the event that the Tribunal permits the practitioner to practise, the current supervision condition should be varied. On balance, and on the material before us, we do not consider that it is necessary, or appropriate, for us to vary the supervision condition (or other conditions as imposed at the present time on the practitioner's registration). As stated, the Council will be the appropriate review body for the purposes of Div 8 of Pt 8, and the Council will therefore be empowered to make changes to registration conditions in the event that a review under that Division is conducted.

Costs

1. The HCCC seeks an order that the practitioner pay its costs of the proceedings. Such application is not opposed. There is no dispute that the Tribunal is empowered to make a costs order in these proceedings. This is clear from cl 13 of Sch 5D to the National Law: 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
2. In accordance with the principles established by the Court of Appeal in Health Care Complaints Commission v Philipiah [2013] NSWCA 342, costs will be awarded in favour of the applicant. The HCCC has been successful in its disciplinary application and the Tribunal considers there is no basis to depart from the provisions of cl 13 of Sch 5D to the National Law. We are satisfied that the practitioner should pay the HCCC's costs of the proceedings as agreed, and failing agreement as assessed under the Legal Profession Application Act 2014 (NSW).

Orders

1. The Tribunal makes the following orders, consequent upon its findings of unsatisfactory professional conduct and professional misconduct: 1. Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), Dr Evette Mikhail is reprimanded. 2. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW), the registration of Dr Evette Mikhail as a medical practitioner is suspended for a period of 9 months commencing 21 days after the date of these orders. 3. Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), on the expiration of Dr Evette Mikhail's suspension, her registration shall be subject to the conditions set out in the Schedule headed "Health Care Complaints Commission v Dr Mikhail - Conditions". 4. The Council is the appropriate review body for the purposes of Division 8 of Part 8 of the Health Practitioner Regulation National Law (NSW). 5. Dr Evette Mikhail is to pay the costs of the Health Care Complaints Commission as agreed, or if not agreed, as assessed under the Legal Profession Uniform Law Application Act 2014 (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

Health Care Complaints Commission v Dr Evette Mikhail - Conditions

Practice Conditions

1. To practise under category C 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. a. The terms of the Council's Compliance Policy-Supervision are varied so that: (i) The practitioner authorises the supervisor to provide reports to the Council (in a Council approved format) on a monthly basis. b. At each supervision meeting the practitioner is to review and discuss her practice with her approved supervisor with particular focus on: • Basic Clinical Skills (interviewing/examination) • Clinical Judgment • Patient Management Skills (treatment/advice) • Prescribing Skills • Appropriate Billing c. To authorise the Medical Council of NSW to provide approved supervisors with a copy of the Tribunal's decision which led to these conditions. d. Not to practise medicine unless a Supervisor has been approved by the Medical Council and that Supervisor is performing supervision duties as set out in the Council's Compliance Policy-Supervision and in this condition 1.
2. Not to treat or prescribe to family members or their partners. a. In the event of a medical emergency where there are no other medical services available she may provide treatment to the above. A medical emergency is an event where it is not possible or reasonable to have a patient with a life threatening or urgent condition, seen by another medical practitioner or transferred to the nearest hospital. The practitioner must notify the Council in writing within 48 hours of the event occurring.
3. 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.

Health Conditions 4. Not to prescribe for self-medication. 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: 29 July 2021