Health Care Complaints Commission v Sare

Relevant Law

1. These proceedings are brought under s 139B(1)(a) and (l) and s 139E 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 - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (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. Section 139E, which defines professional misconduct, 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. The proceedings are governed by the object and principles found in ss 3 and 3A of the National Law, and where not otherwise in conflict with or repugnant to that law, by the practice and procedure provisions found in Pt 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act).
4. Section 3A of the National Law provides that, in the exercise of a function under a NSW provision of that law, the protection of the health and safety of the public must be the paramount consideration. Accordingly, protective orders made at the conclusion of disciplinary proceedings are not designed to punish the practitioner, but to protect the public.
5. The rules of evidence do not apply in these proceedings. In conducting an inquiry into the complaints, the Tribunal may inform itself of any matter in the way it thinks fit (see cl 2 Sch 5D of the National Law). As with all proceedings in the Tribunal, these proceedings are governed by the well-established principles of procedural fairness. The Tribunal and the parties are under a duty to co-operate with the Tribunal to facilitate the just, quick and cheap resolution of the real issues in proceedings (see s 36 of the NCAT ACT).
6. It is not in doubt that the onus of proof is that of the HCCC. Because of the serious nature of the proceedings, and the consequences to the practitioner and the public, the standard of proof is a civil standard but to the level of satisfaction explained in Briginshaw v Briginshaw (1938) 60 CLR 336 [1938] HCA 34.

Amendments to the Amended Notice of Complaint of 29 May 2018 and the expert evidence

Amendments to the Complaint

1. After hearing the expert's oral evidence, Mr A Britt, counsel for the HCCC sought and was granted leave to further amend the Amended Complaint to delete Particular 16 (relating to Patient D), Mr Britt also sought to withdraw the words set out at the end of Complaint One, namely: Each of the particulars of Complaint One in itself justifies a finding of unsatisfactory professional conduct. In the alternative when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.

The expert evidence

1. The HCCC relies on a report of Dr Delma Mullins (Dr Mullins) dated 2 December 2016 and a supplementary report dated 3 February 2017. Dr Mullins gave oral evidence before us and was extensively cross-examined by counsel for the practitioner, Mr P Griffin SC (Mr Griffin).
2. The practitioner relied on four expert reports of Dr Kenneth Dobler each dated 20 December 2017.
3. The two experts met in conclave as provided in Procedural Direction No 3 (Expert Evidence) of the Tribunal. They produced a statement of matters on which they agreed and matters on which they were in disagreement. That statement is attached as Appendix A to these reasons. However, a further conclave was held during the hearing, and we were advised orally by each expert of some changes in their position regarding certain particulars.
4. We discuss the experts' statement, and their opinions expressed orally when considering the particulars of the complaints.

Was the practitioner's conduct in treating Patient A and her children inappropriate given the nature of his personal relationship with her and her children?

Did the practitioner behave unethically in providing an Affidavit for Patient A's husband to be used in contested proceedings under the Family Law Act 1975 (Cth)?

1. The HCCC relies on four particulars in respect of this complaint. They appear in the Further Amended Complaint as follows: 1. Between January 2008 - October 2009, the practitioner failed to maintain professional boundaries as required by the Medical Board of Australia Code of Conduct ("Code of Conduct") when the practitioner provided medical care and treatment to Patient A in circumstances where the practitioner had a personal relationship with Patient A. 2. On 28 September 2009, the practitioner failed to provide adequate care and treatment to Patient A by telling her she was irresponsible for not considering an abortion. 3. Around 28 September 2009, the practitioner failed to maintain client privacy and confidentiality in breach of Section 3.4 of the Code of Conduct by discussing a consultation that had occurred with Patient A on 28 September 2009 with the practitioner's wife. 4. On 8 February 2010, the practitioner acted unethically in providing an affidavit in Family Court of Australia proceedings in a personal capacity at the request of the ex-partner of Patient A, whilst when he had very recently been was still treating Patient A as her General Practitioner.
2. The practitioner admits particulars 1, and the facts set out in particular 4, although he does not admit that his conduct set out in particular 4 was unethical.
3. In dealing with these particulars, we first consider the meaning of the words "improper" and "unethical" in their context in the National Law.

Improper or unethical conduct

1. The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions.
2. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession".

Patient A's relationship with the practitioner and his family

1. Patient A was a woman who came from a remote island in Indonesia. She was a neighbour of the practitioner and his then wife. She had limited education and was in the process of improving her English language skills.
2. Patient A visited the practitioner's home with her children, including visiting on one Christmas Day. On occasions, the practitioner and his former wife looked after Patient A's children. The practitioner described their role with the children as one of de facto grandparents.
3. Patient A was seen professionally by the practitioner in 2009 in his then medical practice. He does not dispute he had a close personal relationship with Patient A. Patient A ceased attending the practitioner when she was pregnant and the practitioner discussed with her whether that pregnancy should be terminated. The practitioner later acted most responsibly in writing to the patient urging her to attend another practitioner for appropriate ante natal care.
4. The practitioner does not dispute that he breached patient confidentiality by discussing Patient A's pregnancy with his former wife, albeit he says he did so because he thought Patient A might confide in, or seek assistance from his wife.
5. Not long after the practitioner's professional and personal relationship with Patient A was at an end, the practitioner, at the request of Patient A's former partner, swore an affidavit for use in contested proceedings in the Family Court of Australia.

Discussion

1. The Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia", 2014 (the Code) provides a convenient starting point for our discussion. Paragraph 3.4 of the Code notes: Patients have a right to expect that doctors and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations. 3.4.1 Treating information about patients as confidential
2. Paragraph 3.14 of the Code provides as follows: Wherever 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. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues.
3. In this case, we are satisfied that, because of the close personal relationship between him, his family members, and Patient A, the practitioner should have ensured that Patient A was referred to another practitioner to be the general practitioner for her and her children.
4. Patient A provided a statement. She was not required for cross-examination. The complaint about the practitioner's conduct arose from a complaint made by his former wife to the Australian Health Practitioner Regulation Agency. Patient A's unchallenged evidence is that the practitioner advised her that she should seriously consider having an abortion, owing to her age and the resulting risk that the baby may have Down's Syndrome. When Patient A told the practitioner she was not seeking his advice, as she had decided to continue her pregnancy, he said words to the effect "I think you are being irresponsible because you already have two kids". Patient A reports being very upset after her consultation with the practitioner. We accept Patient A's unchallenged evidence. We are satisfied that particular 2 is established to the Briginshaw standard.
5. We are also satisfied that it was inappropriate for the practitioner to provide medical care for Patient A whilst maintaining a close personal relationship with her. Patient A's subsequent attendance at other general practitioners in the local area demonstrates clearly that there were readily available practices to which she could have been referred.
6. We are further satisfied that the practitioner's action, in providing the affidavit for Patient A's ex-partner, was highly inappropriate. He did not tell Patient A that he proposed to swear an affidavit. The affidavit revealed evidence of matters he obtained both in his role as a de-facto grandfather, but also as a practitioner. He was not required by law to disclose confidential information. If his evidence was crucial to the welfare of the children, it could have been obtained by subpoena to give evidence. We are satisfied that this conduct, which breached the Code, was unethical. In reaching this finding we note the wide interpretation, in reported cases, given to the words "relating to" as found in s 139B(1)(l). Some of the information provided in the affidavit arose directly from the practitioner's knowledge gained on a confidential basis from Patient A as her doctor. His unethical conduct is linked directly to his practice of his profession.

Was the practitioner's involvement in the sale of Patient B's car to his daughter unethical?

1. In 2013, Patient B was aged 81 years. He had five admissions to the hospital between September 2012 and March 2013 and was directly cared for by the practitioner during these admissions. At the time of this complaint it is asserted that Patient B was in the process of moving from his home into an aged care facility.
2. The HCCC asserts that the practitioner, by providing a "gate pass" for this elderly patient, did not act in the patient's best interests, and that he breached the Code by driving Patient B from the hospital to his home in order that his daughter could "test drive" Patient B's car, which was for sale. It is also asserted that he acted unethically in facilitating the sale of Patient B's car to his daughter where Patient B was a vulnerable patient. While the practitioner admits he drove the patient to his home on 22 March 2013, he denies that facilitating the sale was unethical in the circumstances.
3. Patient B's medical records disclose that the practitioner recorded a provisional diagnosis on 17 March 2013 of "anxiety and front lobe dementia", and that on 21 March and 22 March 2013 he prescribed Risperidone for the patient. It is asserted this drug could have affected the patient's mental state.
4. Particulars 5, 6 and 7 are set out in the Further Amended Complaint as follows: 5. On 22 March 2013, the practitioner did not act in Patient B's best interests when he arranged for a "gate pass" for Patient B to leave Ballina District Hospital so that the practitioner's daughter could inspect Patient B's car which was for sale in circumstances where: a. The practitioner noted that Patient B was suffering from "anxiety & frontal lobe dementia" on 17 March 2013; b. Patient B was noted as agitated as restless on 21 March 2013; c. The practitioner prescribed Patient B Risperidone on 21 March 2013 and 22 March 2013, which could affect his mental state. 6. On 22 March 2013, the practitioner failed to maintain professional boundaries as required by the Code of Conduct when the practitioner personally drove Patient B to his home, in order to facilitate the test drive of Patient B's car by the practitioner's daughter. 7. On 22 March 2013, the practitioner acted unethically in facilitating the sale of Patient B's car to the practitioner's daughter in circumstances where Patient B was an admitted patient, was vulnerable and was transitioning from independent living to an aged care facility.
5. The practitioner admits particular 5. He also admits that he drove his daughter and Patient B from the hospital to Patient B's home to facilitate the sale of Patient B's car but denies his conduct was unethical. He does not admit particular 7. At the hearing, the practitioner maintained his conduct was acceptable because he was merely facilitating an "arm's length sale between a willing buyer and willing seller". We do not agree that the practitioner's conduct should be categorised in that manner for the reasons that follow.

Discussion and conclusions - Patient B

1. During the hearing the practitioner was questioned about his diagnosis and prescribing for Patient B. The practitioner described Patient B as a difficult patient who was rude to the nursing staff. He explained that he had talked to the nursing staff about how they would treat Patient B if he had frontal lobe dementia in order to remind them of their duty of care. The following exchange occurred between Dr Fogarty and the practitioner: Q. But it strikes me as more than a little unusual to write in the medical notes a provisional diagnosis you know in fact, quite an important provisional diagnosis-- A. Indeed and I reflect on that and it created some embarrassment in these circumstances but he was an exceptionally and unusual challenge for the ward staff. Q. But I'm taking it that your evidence to me is that you did that to some extent to ameliorate the concerns of the nursing staff? A. The dislike of the nursing staff for him that had arisen personally through conflict and his rude manner. I just should've stuck with the term excessive grumpiness perhaps but I'm mindful that one doesn't write disparaging opinions in patient notes that are not objective. (transcript 12 July 2018 p 28).
2. The practitioner was also questioned about his prescribing of Risperidone for Patient B. The following exchange occurred: Q. I accept that but I suppose in trying to step out of this and come to a sort of position of where I find myself on it you know I am confronted with this issue of written in the notes the diagnosis of query frontal lobe dementia which is written apparently to assist the nurses in their behaviour but it doesn't reflect your clinical judgement of his true diagnosis? A. It is unusual then. Q. That he's then prescribed an antipsychotic medication which is you know, which has some pretty clear guidelines around it you know for its indication which includes things like schizophrenia and Alzheimer's disease. You can perhaps see why the perception of boundary-crossing is not a difficult perception to come to? A. I accept those issues and I hope that my explanations why I'd come to that considered position are adequate, (transcript 12 July 2018 p 29).
3. It is not in dispute that the practitioner arranged for his daughter to come to the hospital, that he drove Patient B and his daughter to Patient B's home, and that he sat in the car when his daughter undertook a test drive with Patient B to ensure her safety. Although the practitioner referred to consulting the patient's carer, the evidence revealed the "carer" was a next-door neighbour.
4. At par 49 of his submissions counsel for the practitioner submits: The existence of a conflict of interest, or a potential conflict of interest does not automatically amount to conduct below the relevant standard. If the conflict, or potential conflict, is disclosed and acknowledged by both parties they are entitled to proceed with a relationship or transaction. In this case Patient B was aware that the purchaser of his motor vehicle was the daughter of the Respondent. He made an informed decision to conclude the transaction. The conduct of the Respondent does not, on any reasonable analysis, amount to unsatisfactory professional conduct. The Tribunal should find accordingly in relation to particulars 5 to 7.
5. We are unable to accept the practitioner's submissions for the following reasons. First, we are satisfied that Patient B, whatever his diagnosis, was a vulnerable aged patient. There was, whether recognised by the practitioner or not, a power imbalance between them. The practitioner, in pursuing the sale of the car for his daughter, regardless of the purchase price, was in a potential conflict of interest. We accept that para 8.11 of the Code is relevant in circumstances such as occurred in this sale. It is useful that we set out the first paragraph of 8.11. It relevantly states: Patients rely on the independence and trustworthiness of doctors for any advice or treatment offered. A conflict of interest in medical practice arises when a doctor, entrusted with acting in the interests of the patient, also has financial professional or personal interests, or relationships with third parties, which may affect the care of their patient. Multiple interests are common. They require careful consideration, appropriate disclosure and accountability. When these interests compromise, or might reasonably be perceived by an independent observer to compromise, the doctor's primary duty to the patient, doctors must recognise and resolve this conflict in the best interests of the patient. (our emphasis).
6. Secondly, we found the practitioner's explanation that he recorded a significant inaccurate or false provisional diagnosis in medical records, which would be relied on by other practitioners, to remind nurses of their duty of care to the patient, to be extraordinary. Likewise, we found that the practitioner endeavoured to minimise the fact he had prescribed Risperidone, a drug which could affect the patient's mental state, both on the day of the gate pass and negotiations for the car sale, and on the previous day. He said he had prescribed this drug because the patient requested it. He attempted to legitimise the sale of the car by suggesting that the patient had a carer, a person who would protect the patient's interests. That person was simply the next-door neighbour. The circumstances of the sale were carefully pre-planned, with arrangements being made, in advance of the patient's gate pass, for the practitioner's daughter to come to the hospital to travel with the practitioner and the patient to his home. The practitioner had more than ample time to reflect on his compromised position.
7. We are satisfied that the practitioner's conduct was in breach of the Code. It was improper and unethical conduct in the practice of his profession.

Did the practitioner fail to exercise appropriate clinical judgment and provide appropriate care for Patient C? This issue requires us to determine:

(a) was it mandatory for the patient to be assessed using the Chest Pain Pathway protocol published by NSW Health?

(b) did the practitioner fail to review the patient in a timely way when his chest pain continued?

(c) did the practitioner take adequate steps to obtain specialist advice about appropriate treatment for Patient C?

(d) should Patient C have been transferred to the Gold Coast University Hospital in circumstances where no Percutaneous Coronary Care Intervention was available on the weekend at Lismore Base Hospital?

1. The proceedings focussed strongly on the practitioner's clinical care of Patient C.
2. Patient C was aged 79 years at the date of his admission on 6 August 2015. He presented with a closed head injury after falling off a ladder. While under the care of the practitioner on the general ward, Patient C suffered severe chest pain at 15.15 hours. An ECG conducted at 16.10 hours disclosed a myocardial infarction (STEMl).
3. Complaint One asserts that the clinical care provided to Patient C was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience as the practitioner. The practitioner is criticised for failing to contact a cardiologist in a timely manner, a failure to make adequate enquires about the patient's urgent transfer and a failure to discuss treatment options with the patient. Patient C died on 8 August 2015 at about the time of his arrival at Lismore Base Hospital on transfer from the hospital.
4. The following particulars are asserted in the Further Amended Complaint: 8. From 15:15 hours onwards on 7 August 2015, the practitioner failed to: a. Place Patient C on the Chest Pain Pathway in accordance with NSW Health Policy "Chest Pain Evaluation (NSW Chest Pathway)" in circumstances where Patient C had reported ongoing chest pain from 15.15 hours; b. Document the reason for not adhering to the policy 9. On 7 August 2015, the practitioner failed to order thrombolysis for Patient C for the management of his ST segment elevation myocardial infarction ("STEMI") . 10. On 7 August 2015, the practitioner failed to contact the on call Cardiologist at Lismore Base Hospital until 20:00 hours in circumstances where Patient C had reported ongoing chest pain since 15:15 hours and an ECG at 16:10 hours confirmed a STEMI. 11. On 7 August 2015, the practitioner failed to make adequate enquiries with Lismore Base Hospital or Gold Coast University Hospital regarding the urgent transfer of Patient C for a cardiac intervention. 12. On 7 August 2015, the practitioner: a. Failed to review Patient C's repeat ECG of 19:22 hours or, in the alternative; b. If the practitioner did review the ECG of 19:22 hours, the practitioner failed to document his review and instructions as regards to management. 13. On 7 August 2015, the practitioner: a. Failed to provide adequate care and treatment to Patient C by failing to review Patient C after 16:15 hours or, in the alternative; b. If the practitioner did review Patient C after 16:15 hours, failed to document that review. 14. On 7 August 2015, the practitioner failed to arrange for a transfer of Patient C as a priority to a Hospital with coronary care facilities, namely Gold Coast University Hospital, and instead arranged for a transfer at 23:00 hours to Lismore Base Hospital where the practitioner knew that Percutaneous Coronary Intervention ("per) was not available. 15. On 7 August 2015, the practitioner failed to discuss any treatment options with Patient C, including transfer.
5. The practitioner admits particular 8, but asserts compliance with the Chest Pain Pathway (the Pathway) is not mandatory. We pause to note that each of the experts agreed that although the pathway is described as mandatory in emergency departments, compliance is not mandatory in other circumstances. However, both experts agreed that following the pathway represents best practice. We agree with and accept the experts' opinion on this particular.
6. The practitioner also admits particular 9 but says he did not order thrombolysis because it was contraindicated by reason of the patient's head injury. We note that in their statement, supplemented by their oral evidence, the experts both agreed that although thrombolysis would be standard therapy in the situation of most STEMl, in Patient C's case there were some contraindications.
7. Particular 10 is admitted by the practitioner. At para 56 of the practitioner's counsel's submissions it is noted Both peer experts agreed that given the ECG changes and the clinical presentation it would have been prudent for the Respondent to contact a cardiologist to advise on management prior to 20:00 hours.
8. The practitioner has conceded that he should have called the cardiologist earlier than he did. Both experts agreed in their oral evidence that "earlier involvement of the cardiologist would have been indicated" (transcript 12 July 2018 p 54). Dr Dobler later confirmed he had changed his opinion from that expressed in his report, after he became aware of the time of the ECG report. He said "having found that new timeline, it reinforced my view that a reasonable practitioner would've made an earlier contact with a cardiologist".
9. Particular 11 is not admitted by the practitioner but, in his counsel's submissions, it is noted that the practitioner admits he did not make enquiries of the Gold Coast University Hospital because he was unaware of any arrangement for the transfer of public patients to the Gold Coast University Hospital.
10. Again, the experts were in agreement about this particular. They opined that the practitioner failed to make timely enquiries and that a cardiologist should have been contacted sooner. Dr Dobler explained: WITNESS DOBLER: Paragraph 11, the practitioner failed to make adequate enquiries with Lismore Base Hospital or Gold Coast Hospital regarding transfer. We both agreed that Dr Sare failed to make adequate enquiry that a cardiologist should have been contacted earlier. We note that Dr Sare relied on the advice from a fellow of the Australian College of Emergency Medicine in the initial stages and subsequently a cardiologist. It was my view that the advice given by both of these practitioners was incorrect and steered Dr Sare and the patient to Lismore Hospital rather than to the Gold Coast.
11. The experts' opinions do not directly focus on the words of the particular. The particular places an onus on the practitioner to have contacted the relevant hospitals about an urgent transfer. The practitioner acknowledged that he was not aware of relevant transfer protocols. We accept however that, when he did speak to the relevant emergency specialist at Lismore Base Hospital, it is likely he was given incorrect advice.
12. Particular 12 is not admitted by the practitioner. There is no dispute the practitioner did not record in his notes a review of Patient C after 16.15 hours. The experts agree that the practitioner either failed to review the patient, or, if he did review the patient, he did not document his review.
13. Particular 13 also covers the topic of the failure to review in that it asserts a provision of inadequate care by failing to review. Both experts agreed that there was no recording in the notes so no firm conclusion about the practitioner's treatment could be drawn (transcript 12 July 2018 page 55).
14. The practitioner admits particular 14, in that he accepts he did not arrange a transfer of the patient to the Gold Coast University Hospital, but did arrange the transfer to Lismore Base Hospital, and further admits that he knew that Lismore Base Hospital did not have Percutaneous Coronary Intervention (PCI) available.
15. Both experts agreed, as a matter of fact, that the practitioner did not arrange transfer to the Gold Coast University Hospital. However, they found the practitioner had accepted guidance from the cardiologist.
16. The practitioner did not dispute that he did not discuss treatment options with Patient C but says the patient was on morphine and that he was unable to rouse him, and that the patient appeared to roll over when he approached. Both experts agree that there was no notation of any discussion of treatment options with Patient C.

Discussion and conclusions - Patient C

1. We have already noted that we agree with and accept the experts' opinion that compliance with the Chest Pain Pathway was not mandatory in the general ward. However, it provided a guide to best practice outside the emergency department setting.
2. We accept that the practitioner did not order thrombolysis for Patient C, but that his failure to do so was not significantly below the standard. It is clear that there was conflict between the practitioner and senior nurses about Patient C's management. The lack of effective communication between the professionals was far from ideal in circumstances of a busy general ward. However, that is not part of the complaint about the practitioner.
3. We agree with the experts and are critical of the practitioner for his failure to make earlier contact with the on call cardiologist. The after-hours nurse manager for the site gave evidence before us, and was extensively cross-examined. She was not shaken in her evidence. We found her to be a credible and accurate witness. The nurse manager explained that she had engaged in a discussion with the practitioner about transferring Patient C. She explained that she had requested the practitioner to contact Lismore Base Hospital and speak to the FACEM (Fellow of the Australian College of Emergency Medicine), and that the practitioner said to her that he did not feel it was necessary and that Patient C could be managed at the hospital. She denied the practitioner telling her there was a transport block making transfer impossible at that time.
4. She went on to report a "heated discussion" with the practitioner about why she felt they should contact cardiology or the FACEM at Lismore Base Hospital, and that, at that point, she had given the practitioner a print out of the Chest Pain Pathway and told him that if he did not ring Lismore Base Hospital that she would do so herself. The nurse manager said it was after this conversation that the practitioner advised her that he had contacted Lismore Base Hospital. The nurse manager said she did not look at Patient C's notes because they were with the practitioner.
5. The nurse manager also gave evidence in response to a question from Dr Fogarty about the patient's ability to contribute to decision making about his treatment, including being transferred or remaining at the hospital. She explained that the nurses were conversing with him in a manner that indicated he did not have "any deficiets [sic] of his alertness or DCS [sic] (?)" (Glascow Coma Score) (transcript 9 July 2018 p 27).
6. We also heard from a registered nurse (Nurse AB) who was present during part of Patient C's admission. She described the shift on 7 August 2015 as stressful because she was caring for Patient C, who was deteriorating. Nurse AB freely admitted that she had not completed clinical notes for Patient C that day. She asserted that the practitioner had the notes and would not give them to her. Nurse AB was critical of the practitioner for failing to respond to her request that he come to Patient C's bedside when he complained of chest pain.
7. Nurse AB states that she was constantly with Patient C, or the same room as him, attending to one of the other three patients in that room, except for when she had a half hour meal break.
8. We also heard further evidence from another registered nurse (Nurse BC). This nurse worked from 7am to 3.30pm on 7 March 2015. She asserts that, immediately after the ECG was administered, the practitioner had said the patient was having angina "and we're to do nothing". She said she was upset when the patient suffered further pain and did not have IV access to administer IV morphine because the practitioner had said "do nothing".
9. We are satisfied that the practitioner did not contact the on call cardiologist in a timely manner. We accept that he was prompted by Nurse AB to do so. We also find that the practitioner did not know the relevant transfer policies. We accept that he was working on a busy ward, and that his induction did not provide guidance on the relevant policies of the area health service. However, he had an obligation as part of his contract to familiarise himself with the transfer policy. We accept that he did, albeit belatedly, rely on advice from the on call cardiologist. It appears there was a fundamental failure to have Patient C transferred to the facility that could provide him optimal care in a timely way. That failure is attributable partly, but not completely, to the practitioner's lack of knowledge of transfer policies and his unreasonable delay in seeking specialist advice.
10. Although the practitioner asserts that he did review Patient C's repeat ECG of 19.22 hours, no review was documented. We accept the evidence of both the nurse manager and Nurse AB that the practitioner had the patient's notes. We accept as truthful Nurse AB's evidence that, because she did not have access to the patient's notes, she wrote up her notes the following morning at home, and these notes formed the basis of her statement. We find it is inherently improbable that the practitioner reviewed Patient C but failed to document the review. While he may have felt overwhelmed, hopeless and stressed at the situation at the hospital, he must have been acutely aware the nursing staff were critical of his care of Patient C. In these circumstances, it is highly improbable that he would have failed to record a critical review and document ongoing care if that review had occurred.
11. We also found the practitioner's failure to discuss treatment options with Patient C, or to contact a relative or person responsible, is established. We accept and prefer the evidence of Nurse AB about her and other nurses' ability to converse with Patient C shortly after his first ECG. All of the practitioner's actions corroborate a decision not to transfer Patient C, or to consider PCI, and how it could be implemented.
12. The practitioner had many years' experience as a general practitioner attending a cottage hospital in Millicent, SA, and number of years as a part-time member of the emergency department at Ballina Hospital and as a GP VMO prior to his full time appointment to the general ward. We are satisfied that the practitioner's care of Patient C was significantly below the standard reasonably expected of a practitioner of his level of expertise and experience.

Did the practitioner provide adequate care including ordering appropriate tests and medication for Patient D?

1. On 11 August 2015, Patient D was aged 89 years. He was admitted for cardiac monitoring due to rapid Atrial Fibrillation.
2. Particular 16 was abandoned in the Further Amended Complaint. Accordingly, four particulars are relied on in support of the complaint about this patient's clinical care: 17. On 11 August 2015, the practitioner failed to document a CHADS score (congestive heart failure, hypertension, age 75 years, diabetes, stroke) when reviewing Patient D. 18. On 11 August 2015, the practitioner failed to commence Patient D on anticoagulation. 19. On the morning of 12 August 2015, the practitioner failed to review Patient D when he commenced his shift in circumstances where: a. Nursing staff had requested a review of Patient D in the Communication Book; b. Patient D was deteriorating at 03:15 hours and was febrile, systolic BP lower at 102mmhg and had been commenced on the septic pathway by nursing staff who were awaiting further instructions; c. Nursing staff had requested a clinical review by putting a 'Clinical Review' sticker in Patient D's progress notes at 03:15 hours on 12 August 2015. 20. In the alternative to Particular 20,[semble 19] on 12 August 2015, if the practitioner did review Patient D, he failed to make any changes to Patient D's treatment plan in light of his deterioration overnight and reports of confusion and ongoing fevers.
3. The practitioner admits Particulars 17, 18 and 20. However, he states that review on 12 August 2018 was unnecessary because the patient was assessed as stable by the A & E doctor, and that he relied on the oral handover from that doctor. However, both experts are critical of the practitioner for failing to document this patient's CHADS score (congestive heart failure, hypertension, age greater than 75 years, diabetes, stroke).
4. We are satisfied that the practitioner's admissions are properly made. We accept the opinion of the experts that the failure to record the CHADS score attracts criticism. We are satisfied that particular 17 is established.
5. Both experts agree, as a matter of fact, that the practitioner failed to commence Patient D on anticoagulation. Dr Dobler accepted that the practitioner had obtained advice from the patient's general practitioner about his previous use of anticoagulation and had been informed that the patient had declined anticoagulation. He also explained that, while anticoagulation would be required in a day or two, it was not required as an urgent procedure.
6. Dr Mullins noted that when she had reviewed the patient records there was mention of the fact that the patient needed a beta blocker to slow the heart rate down, but there was "no mention in that notation about any discussion about anticoagulation at all".
7. We are not satisfied that this particular is established. We accept the practitioner's evidence that he discussed anti-coagulation with the patient's general practitioner and subsequently the patient. It is regrettable that both discussion with the general practitioner and the patient was not recorded in the notes. Further, we accept Dr Dobler's evidence that commencement of anticoagulation was not required on an urgent basis on 11 August 2015.
8. The practitioner denies particular 19. Dr Dobler opined that, if the patient was not seen by the practitioner, this constituted a significant departure from acceptable standards. Dr Mullins was critical of the practitioner's conduct because of the lack of clinical records indicating he was reviewed, and because of the practitioner's failure to change the patient's treatment to IV antibiotics.
9. The practitioner asserts that he did review the patient with Dr Pita Lealaiauloto (Dr Lealaiauloto). He asserts that although the patient was mildly confused his condition was satisfactory. The practitioner further asserts he expected that Dr Lealaiauloto, an international medical graduate who was under his supervision, would complete the clinical notes. The practitioner also says that he formed the clinical judgment that the patient's condition did not necessitate a change to IV antibiotics on the morning of 12 August 2015.
10. Dr Lealaiauloto gave evidence that frequently patients' clinical records could not be located, and that they may be with nursing staff. He explained that in those circumstances contemporaneous notes were made using the printed notes of care used at handover in the morning and later transcribed into the notes.
11. In his statement, the practitioner notes at para 89 that the book used to request a clinical review recorded a request to himself and Dr Lealaiauloto, and also disclosed the initials of Dr Lealaiauloto. This, he said, indicated the review had taken place.
12. We agree with and accept the opinion of both experts that, if the practitioner had failed to review Patient D on the morning of 12 August, that failure would be a significant departure from the standard. However, we accept the practitioner's explanation about the review. His evidence is corroborated by the entry of Dr Lealaiauloto's initials in the treatment book. We are not satisfied this particular is established.
13. The practitioner admits he did not make any changes to Patient D's treatment plan on 12 August 2015 as set out in particular 20. However, he gives a detailed explanation in his amended Reply. In summary, he says although the patient was mildly confused his condition was satisfactory. The practitioner further says the clinical review requested at 3.15 hours on 12 August had been attended to by the after-hours nurse manager and subsequently the overnight duty doctor. He also noted the patient had returned to a normal sinus rhythm and his breathing was satisfactory.
14. Dr Mullins was critical of the practitioner's failure to change the treatment plan for this patient. Dr Dobler however considered that the practitioner's clinical decision making in respect of the patient was reasonable.
15. We accept and prefer Dr Dobler's evidence in respect of particular 20. Again, it is regrettable that the practitioner failed to document his ongoing treatment plan or to ensure that the records were completed by Dr Lealaiauloto, who was working under his direct supervision. We note that Patient D's care was taken over by Dr Jeremy Webber (Dr Webber), the other full-time doctor on the general ward on 13 August 2015.

Did the practitioner provide adequate care for Patient E?

1. Patient E was aged 63 years at the date of his admission to the hospital on 29 July 2015. His previous history included a diagnosis of cerebral palsy. He was admitted on this occasion for treatment of hyperglycaemia. He was subsequently transferred to Lismore Base Hospital. The particulars of the complaint focus on the patient's care on 18 and 19 August 2015.
2. The particulars in the Further Amended Complaint in respect of this patient are as follows: 21. On 18 August 2015, the practitioner failed to adequately examine, assess and treat Patient E in light of his ongoing fevers; tachycardia; worsening cough; complaints of headache and latest blood results . 22. On 19 August 2015, the practitioner failed to take appropriate action after reviewing Patient E's CT Pulmonary Angiogram ("CTPA") of 16:17 hours which showed a "prominent pericardial effusion" and "small emboli and peripheral branches of the right lower lobe" by failing to: a. Commence Patient E on IV antibiotics; b. Commence Patient E on an anticoagulant; c. Arrange for an urgent echocardiogram for Patient E; d. Contact the consultant Cardiologist at Lismore Base Hospital to discuss treatment options for Patient E. 23. On 19 August 2015, the practitioner failed to consult with Consultant Physician Dr Lucas regarding Patient Es CTPA findings. 24. On 19 August 2015, after reviewing the findings of the CTPA of 16:17 hours, the practitioner failed to urgently contact consultant Cardiologist Dr Mumford at Lismore Base Hospital until 07:10 hours on 20 August 2017, thereby delaying treatment and arrangements for transfer of Patient E.
3. Particular 21 is not admitted by the practitioner in his amended Reply. He denies particular 22, and sets out his clinical decision making and steps taken to arrange for a transesophageal echocardiogram, and his consultation with Dr Mumford, a cardiologist.
4. The practitioner admits that he did not consult with Dr Lucas as asserted in particular 23, but says he assumed that Dr Lealaiauloto had done so.
5. In answering particular 24, the practitioner acknowledges speaking to Dr Mumford at 7.10 hours on 20 August 2017 and provides an explanation that the urgency in respect of the patient's transfer arose from logistical reasons, rather than clinical reasons. He also states that Dr Lealaiauloto tried to call the cardiologist without success, and that he tried to telephone the cardiologist three times that evening without success. However, in his oral evidence in answer to questions in cross-examination, the practitioner said: Q. When do you say you contacted the cardiologist? A. It is recorded in the notes that I made effective contact with him at 7.05 the next morning, I'm not sure if it was between or just after he got out of the shower, but I managed to contact him them. Q. Did you try to call him before 7.05 in the morning? A. My recollection is that I tried to call from the ward after Dr Pita L left. I didn't record it in the notes, I didn't think it was of great clinical importance, it was but a courtesy call for a booking and to advise him. I expected his approval, there were other matters of priority on the ward so I did not record my unsuccessful attempts to contact him. (transcript 12 July 2018 p 8).
6. We find that the practitioner's oral evidence accurately reflects his attempts to contact the cardiologist, rather than the material set out in his Reply. Both experts agree that the practitioner did not record his examination or proposed treatment for Patient F on 18 August 2015. Dr Dobler explained that, if the practitioner was responsible for supervising Dr Lealaiauloto, then his conduct fell below the standard.
7. Dr Mullins was critical of the practitioner's clinical management of the patient, noting that, in her opinion, each of the sub-particulars flowed from one another (transcript 12 July 2018 p 62). However, she acknowledged that her view was formed retrospectively, in assessing the clinical notes, which gave her a greater advantage. By contrast, Dr Dobler explained that the patient had been unwell for some time and that, despite broad spectrum antibiotics and multiple investigations, "no localizing cause of infection had been found". He went on to opine that, in the absence of the patient deteriorating, he "could see no merit in further muddying the waters by blanket use of, of empiric therapy" (transcript 12 July 2018 p 63). Following questioning by Dr Fogarty, the experts generally agreed that the clinical decisions reached had been nuanced and that there should not be a general criticism of the practitioner in respect of particular 22, although Dr Mullins expressed some concern about the timeframe for actions.
8. The practitioner admits particular 23. He did not consult the consultant physician, Dr Lucas, but rather had assumed that Dr Lealaiauloto had discussed the CTPA report with him. The practitioner admits, with hindsight, that he should have checked that the consultation had in fact occurred. The experts agreed, as a matter of fact, that no consultation had occurred. However, Dr Dobler pointed out that the practitioner had been in contact with Dr Lucas on the previous day, and that he had developed a plan to transfer when he could speak to the cardiologist.
9. Both experts agree, as set out in particular 24, that the practitioner, after reviewing the CTPA, failed to urgently contact the cardiologist at Lismore Base Hospital and had only done so on the following day. Dr Dobler opined that the delay was not unreasonable given the patient's sub-acute presentation. By contrast, Dr Mullins was extremely critical of the practitioner's failure and opined that the findings of the CTPAE should have prompted urgent treatment or specialist consultant advice. She also opined that "there was no contraindication for use of anticoagulant, which was commenced when [Patient E] was transferred to Lismore as were the antibiotics".

Discussion and conclusions - Patient E

1. The evidence discloses that the practitioner was responsible for the supervision of Dr Lealaiauloto. It was his responsibility, if recording the clinical notes had been delegated to Dr Lealaiauloto, to ensure the recordings had been made.
2. We accept and prefer the evidence of Dr Mullins that there should have been earlier contact with the cardiologist, and that the need to contact him was not a "courtesy call for a booking".
3. We note the appropriate concession made by Dr Mullins that her opinions are based on a retrospective evaluation of the clinical notes. Her opinion was no doubt influenced by the fact that IV antibiotics and anticoagulant medication were commenced once the patient was transferred to Lismore Base Hospital. However, we agree with both experts that, while the practitioner's clinical care of this patient was sub-optimal, it was not significantly below the standard expected of a practitioner of the practitioner's level of training and expertise.

Did the practitioner provide adequate care for Patient F?

Was the prescribing of Meloxicam for this patient contra-indicated?

1. Patient F was aged 82 years at the date of his admission to the emergency department of the hospital on 4 August 2015. At that time he was suffering chest pain on a background of anticoagulation for aortic valve replacement. The patient was transferred to Lismore Base Hospital on 5 August 2015. At that time his diagnosis was acute coronary syndrome, brachycardia and pulmonary embolism. He was transferred back to the hospital on 14 August 2018. The complaint focuses on the practitioner's treatment of Patient F on and from 18 August 2015.
2. The practitioner, in his statement, explains that the patient was emotionally fragile, that he was visiting from Adelaide, did not wish to be a burden on his daughter, and was anxious to return home. He explained that the patient had a history of costochondritis. He also explained that the patient had gout in his chest wall, and the drug Meloxicam was only prescribed for the patient on a short term basis.
3. The following particulars are relied on by the HCCC to support a finding of unsatisfactory professional conduct under s 139B(1)(a) of the National Law: 25. On 18 and 19 August 2015, the practitioner failed to review Patient F. 26. On 20 August 2015, the practitioner failed to review Patient F in a timely manner and before 10:20 hours when nursing staff requested a review of Patient F at 08:30 hours and reported that he had been experiencing chest pain from 07:00 hours. 27. On 20 August 2015, the practitioner inappropriately prescribed anti-inflammatory medication Meloxicam for Patient F when this was contraindicated as Patient F was on Warfarin, which has a known interaction.
4. In his Reply to the amended complaint, the practitioner denies particular 25. In his statement, the practitioner says he recalls reviewing the patient.
5. In the submissions filed on behalf of the practitioner, it is noted at para 95 that both experts agree that the failure to review was significantly below standard.
6. In their joint statement, both experts agree that there is no record in the clinical notes, which discloses that the practitioner reviewed the patient. However, Dr Dobler in his oral evidence explained that he had looked at the notes of the allied health professionals and the nursing staff and these notes did not indicate any need for urgent review. Dr Mullins, however, disagreed and said the patient should have been reviewed (transcript 12 July 2018 p 65).
7. In his Reply to the amended complaint, the practitioner admits he did not review Patient F until 10.20 hours, as set out in particular 126, and explains that he had first attended other patients on the ward who, in his view, were in greater need of care. He says that when he did review the patient, he determined that his chest pain was due to his costochondritis and not a heart condition.
8. Both experts found that, if the practitioner did not review Patient F until 10.20 hours, his conduct was below standard, and that we should find this particular established.
9. The final particular set out in respect of the practitioner's care of Patient F relates to the prescribing of Meloxicam in circumstances where the patient was on Warfarin. It is asserted that prescribing Meloxicam was contraindicated because of the known interaction between these drugs.
10. Dr Mullins is critical of the prescription of Meloxicam. In his oral evidence, Dr Dobler was also critical of the prescribing of this drug, and described it as a significant error.

Conclusions - Patient F

1. It is hard to accept that, if Patient F was reviewed at some time on either the 18 or 19 August 2018, that the practitioner would not have made some record of the review, notwithstanding his poor note keeping. Even taking into account the evidence that patients' notes were misplaced from time to time, it is unlikely the notes were missing for 48 hours. Further, we think given the practitioner's evidence of his stress at the relevant time, and his assertions of work overload, it is inherently unlikely that he would be able to remember reviewing a patient on a particular day or days some three years ago. We are satisfied that particular 25 is established.
2. We accept the evidence of both experts that the patient should have been reviewed earlier than 10.20 hours on 20 August. Again, we agree with and accept the experts' evidence for their conclusion that the practitioner's conduct was significantly below standard.
3. Having regard to the known interaction between Meloxicam and Warfarin we are satisfied that particular 27 is established.
4. Overall, we are satisfied that the practitioner's clinical care for this patient was significantly below the expected standard.

Complaint Two - record keeping complaint

1. The practitioner does not dispute the particulars in Complaint Two, which asserts that his record keeping for patients C, D, E and F was not in accordance with the regulation. It is not in dispute that, on a number of occasions, when the practitioner saw Patient C and Patient D he failed to make any record in the patients' notes.
2. The difficulties caused by the practitioner's failure to keep proper clinical records was highlighted in evidence given by Dr Webber, the other full time practitioner working on the general ward. He gave evidence as follows: A. I felt that the recording of review and often examination was minimal and didn't give me the opportunity as a clinician taking over care to evaluate patient change appropriately. Q. And did that have the effect of putting you in a position where you almost had to speculate as to what further things Dr Sare may or may not have done? A. I wouldn't say I speculated, I would essentially start from scratch and make my own judgment about my evaluation of a patient. (transcript 10 July 2018 p 54)
3. We are satisfied that the concessions made by the practitioner in respect of the particulars of this complaint are appropriate. We accept the practitioner's evidence that patient notes were, from time to time, not available at the patient's bedside or nursing station. This evidence was corroborated in part by the nursing manager, who gave evidence before us. She explained that patient records would be taken by a nurse to the drug room when drawing up drugs. She also explained that nurses from time to time had difficulty in locating notes when the practitioner retained them rather than placing the notes back in the slot on the wall in the patient's room.
4. Notwithstanding the difficulties that occurred from time to time with the location of patient notes, the failure to document important information was in breach of the regulation. It clearly had the potential to compromise patient care and necessitated Dr Webber in effect "starting from scratch" when taking over the care of a patient. The practitioner's failure to document important information, or to ensure the international medical graduates he was supervising did so, was negligent, and his behaviour provided a poor role model for those graduates. We find the practitioner's concession that his lack of proper record keeping constitutes unsatisfactory professional conduct is appropriately made.

Professional misconduct

1. We have already set out the definition of professional misconduct. How a tribunal arrives at a decision about a practitioner's conduct, and whether that conduct constitutes professional misconduct is helpfully discussed by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [18]-[21]. His Honour explains: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1) Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it.[footnotes omitted].
2. It is also appropriate that we note that the gravity of the conduct found to have been proved is not to be measured by reference to the worst case, but by the extent to which the conduct departs from proper or reasonable expected standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264).
3. We have regard to the particulars of Complaint One, which we have found to be established. If the conduct in this matter was limited to the practitioner's conduct in respect of Patient A, we would not be satisfied that it reached the threshold required to establish professional misconduct. We regard the practitioner's conduct in respect of Patient B to have been a serious error of judgment on behalf of the practitioner. We found that he demonstrated little insight into the inappropriateness of his recording of dementia in the patient's clinical notes.
4. We have made significant adverse findings against the practitioner based, in part, on the experts' assessment of failures in respect of the practitioner's clinical skill and judgment exercised in his care of Patient C and also on our independent assessment of the evidence.
5. When we consider the conduct in respect of Patient B, together with the established particulars in respect of Patient C, we are satisfied in respect of those two patients alone that the conduct is of such a serious nature that it could lead to the suspension or cancellation of the practitioner's registration.
6. While the care, or lack of clinical acumen afforded to Patients D and F by the practitioner was significantly below standard we do not consider, except for the prescribing of Meloxicam for Patient F, that the individual particulars of themselves established professional misconduct. However, when considered with the other established particulars, including the admitted record keeping complaint, we are satisfied that Complaint Three is established.

Appropriate protective orders

1. At the commencement of our reasons we noted that the HCCC asked that we make orders cancelling the practitioner's registration and imposing a period of time before he could apply for a re-instatement order.
2. In this case, we have not found cancellation to be an appropriate order. First, as we have earlier explained, the matter relating to Patient A arose only because of a complaint by the practitioner's former wife. We found the practitioner showed some insight into this matter, explaining that, in a similar situation, he would not provide an affidavit in legal proceedings without consulting his insurer. Further, as we noted, the practitioner acted most appropriately by causing a letter to be sent to Patient A, urging her to receive appropriate antenatal care when their doctor/patient relationship ceased.
3. While we have found the particulars of the complaint in respect of Patient B established, we think it highly unlikely that the practitioner would, after these proceedings and considering our findings, engage in like conduct. We accept that his position in these proceedings was affected, to a degree, by the result of the investigation of the area health authority, which did not make adverse findings about his behaviour.
4. We have found the practitioner's clinical care, and the judgment he exercised in the care of Patient C, was significantly below standard. It attracted the criticism of both experts. We also found that his clinical failures, in respect of Patients D, E and F, and his inappropriate prescribing for Patient F, were of concern. This conduct occurred in the context of a busy ward with poor communication between the practitioner and senior nursing staff and trainee doctors. To his credit, the practitioner conceded that his communication style did not facilitate patient care. We also take into account that the practitioner conceded a number of particulars in the complaints relating to the patients. Further, we are conscious that the conduct occurred in a discrete period in a hospital setting.
5. The evidence before us, in particular the evidence of Dr C Gardiner, the former head of emergency at Lismore Base Hospital, convinced us that by reason of his lack of appropriate skills the practitioner should not be permitted to practice in a VMO position in the foreseeable future. Dr Gardiner very fairly conceded that, when the practitioner had been sent to Lismore Base Hospital to work in the emergency department for three months, he had been provided with very scanty instructions of what was expected of both the practitioner and his supervisors. However, he did not depart from his view that the practitioner is not well suited to work in the care of acute medical patients. We accept this evidence and find that the practitioner should not be permitted to work in a hospital environment unless on review the Council otherwise determines.
6. That practitioner provided us with references from a number of his peers (Dr Ulla Gerich-McGregor, Dr Anne Stoughton, Dr Chris Greenway and Dr John Norris). No referee was required for cross-examination. Dr Greenway explains in his letter dated 3 July 2018 that he has been a colleague of the practitioner since 2007, and that the practitioner joined his practice in 2016. That practice presently consists of four full time practitioners, two of whom are due to retire shortly. He explains the role that the practitioner carries out in planning and improving services at the medical centre. He also opines: I have at all times found Dr Sare to have very sound medical knowledge and is able to implement the most appropriate treatment for our patients. I am confident that Dr Sare has an excellent knowledge of medicine, and is able to ensure the best outcome for our patients in many differing situations, covering all aspects of medical care. Dr Sare has an extremely good relationship with his patients who I frequently hear, complimenting him on his care and understanding of their medical concerns. Dr Sare has an excellent and respect relationship with the other three doctors in our practice, whilst he similarly has a respected relationship with our nursing and reception staff.
7. Dr Greenway is a very experienced practitioner who has engaged in general practice since 1983. We accept his opinion of the practitioner's present skills and situation at the medical practice.
8. We have also given some weight to the courses undertaken by the practitioner since the institution of these proceedings.
9. Having evaluated all our findings we are satisfied that the appropriate orders in this matter are that the practitioner be reprimanded. That reprimand reflects our condemnation of the practitioner's conduct as found by us. Further, we find that the conditions imposed by the Council on the practitioner's registration should remain in place, except for the condition permitting him to practice under Level B supervision in a hospital. That condition will be replaced by a condition precluding the practitioner from working in a public or private hospital unless and until reviewed by the Council.
10. We are also satisfied that it would be appropriate for the practitioner to engage in a mentoring arrangement with a senior colleague with an emphasis on boundary and other ethical issues arising in general practice. We find that this is necessary and appropriate given the practitioner's attitude towards his actions with Patient B.

Costs-

1. Clause 13 of Sch 5D of the National Law empowers the Tribunal to make an order for costs. That provision overrides s 60 of the NCAT Act. The clause also makes provision for costs to be assessed under the provisions of the Legal Profession Uniform Law Application Act 2014 (NSW), if agreement cannot be reached as to the quantum of costs.
2. The principles relevant to awarding costs are discussed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342. In that matter Meagher JA explained: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made.
3. We find no matters which would cause us to depart from the usual order. Accordingly, we will order that the practitioner pay the costs of the HCCC, of and incidental to these proceedings, as agreed, or, failing agreement, as assessed under the Legal Practitioner Uniform Law (Application) Act.

ORDERS.

1. Dr David George Sare (the practitioner) is reprimanded.
2. The practitioner's registration is subject to the following conditions: (a) The practitioner is not to practise in a public or private hospital for a period of two years from the date of these orders unless the Medical Council of NSW (the Council) on a review of these conditions otherwise determines. (b) The practitioner must advise the Council in writing at least seven days prior to changing his place of employment. (c) If practising in general practice, the practitioner is to practise only in an accredited group practice where there are at least 2 vocationally registered general practitioners (excluding the subject practitioner), and: (i) where there is always one other registered medical practitioner on site; and (ii) where patients and patient records are shared between the medical practitioners. (d) The practitioner is to authorise and consent to any exchange of information between the Council and current and any future persons or organisation at any place where the practitioner works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. (e) within fourteen days of a change in the nature or place of his practice, the practitioner is to forward evidence to the Council that he has provided a copy of his full conditions to the Principal of the practice. (f) the practitioner is, within 21 days of the date of the Tribunal's decision, to nominate to the Council an experienced registered general practitioner to act as his professional mentor for approval by the Council in accordance with the Council's Compliance Policy - Mentoring (as varied from time to time). (i) the practitioner is to meet face to face with the mentor on not less than a three monthly basis, commencing no later than February 2019. (ii) each meeting of the practitioner and the mentor is to include discussion of boundary crossing issues and ethical issues arising in general practice. (iii) the practitioner is to authorise the Council to provide proposed and approved mentors with a copy of the Tribunal's reasons for decision published 28 November 2018. (iv) the practitioner is to be mentored for a minimum period of one year and as subsequently determined by the Council.
3. The conditions set out in Order 2 of these orders may be altered, varied or removed at the discretion of the Council, and the Council is the appropriate review body for the purposes of Division 8 of Part 8 of the Health Practitioner Regulation National Law (NSW) (the National Law).
4. Sections 125 and 127 of the National Law are to apply if the practitioner's principal place of residence is anywhere in Australia other than New South Wales and a review of the conditions set out in Order 2 of these orders can be conducted by the Medical Board of Australia.
5. The practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to these proceedings as agreed, or, failing agreement, as assessed under the provisions of the Legal Profession Uniform Law Application Act (NSW) 2014.

APPENDIX 'A' JOINT EXPERT STATEMENT Appendix A (458 KB, pdf)

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: 28 November 2018