Knowles v Medical Council of New South Wales - [2019] NSWCATOD 46 - NSWCATOD 2018 case summary — Zoe

NSWNSWCATOD

Knowles v Medical Council of New South Wales

[2019] NSWCATOD 46

NCAT Occupational|2018-02-18

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Source facts

Court

NCAT Occupational

Decision date

2018-02-18

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

rsons or organisations at locations where he works as a medical practitioners in Australia or any issues arising in relation to compliance with these conditions. Health Conditions 12. Not to prescribe for self-medication. 13. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: failure to attend for treatment, termination of treatment, or a significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner. 14. To take any medication as prescribed by his treating practitioners. Costs 15. Each party is to pay the costs of its application, unless an application is made by either party for a different order within 21 days of the date of publication of this decision. Catchwords: PROFESSIONS AND TRADES - health care professionals - medical practitioners - disciplinary proceedings - application for a stay pursuant to section 159C of the National Law in respect of suspension imposed by Medical Council of New South Wales following hearing pursuant to section 150 of the National Law Legislation Cited: Health Practitioner Regulation National Law 2009 (NSW) Poison and Therapeutic Goods Act 1996 (NSW) Cases Cited: Berger v Council of the Law Society of NSW [2013] NSWSC 1080 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 HCCC v Philipiah [2013] NSWCA 342 I v Medical Board of Australia [2011] SAHPT 18 Kozanglou v Pharmacy Board of Australia [2012] VSCA 295 Lee v Medical Council of NSW [2017] NSWCA 282 Lindsay v New South Wales Medical Board [2008] NSWSC 40 R and Medical Board of Australia [2013] WASAT 28 Category: Principal judgment Parties: Dr Knowles (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: S Barnes (Applicant) R Bhalla (Respondent)

[4]

Facts

An urgent hearing was convened by the Council delegates on 16 October 2018 following concerns relating to the appellant's practise of medicine, specifically in relation to alleged inappropriate prescribing practices that pose a significant risk to public health and safety and the alleged poor maintenance of inadequate clinical records, such that the records fell below the standard expected of a general practitioner.
The appellant has had extensive experience in the practice of medicine. Following his graduation from the University of Sydney in 1971, the appellant was engaged as a resident and then senior resident medical officer at Royal North Shore Hospital. Thereafter he trained as a general practitioner, such training being carried out through a program offered by Hornsby Hospital and as general practitioner training in Moss Vale.
Thereafter the appellant practised as a general practitioner in Moss Vale between 1975 and 2000 when he moved to a solo practice in Bundanoon. He remained there until 2003 when he left to join a practice at Wagga Wagga. He remained in a practice for 18 months then moved to another practice in Wagga Wagga for 12 months. Thereafter he established his own practice in Wagga Wagga, working with five other doctors between 2006 and 2012. He joined a medical centre in 2013 but was required to leave such practice so that a radiologist could be engaged in his place. He joined another group practice in Wagga Wagga but the other practitioners retired or moved on and he became a sole practitioner by 2015. In March 2018 he joined the Wagga Wagga Medical Centre.
Due to family reasons, the appellant and his wife moved to be with other family members near Newcastle. Accordingly the appellant obtained employment at a medical centre in Port Macquarie conducted by Primary Health Care. Such appointment was due to commence in the week following the section 150 hearing.
The appellant informed the delegates that his particular areas of interest were chronic pain and chronic disease, particularly autoimmune disease and diabetes. He informed the delegates that he had completed courses in osteopathic and pain management and had been an active member of the Australian Medical Association.
The appellant is married and has children and grandchildren. He has an active interest in the community, engaging with both the Rotary organisation and with his church.

[5]

Prescribing Opioids

By letter ("the letter") dated 13 September 2018, the Director of the Professional Services Review (PSR) wrote to the Medical Board of Australia stating: "On review of Dr Knowles' clinical records, it became apparent that he prescribed very high doses of opioids in combination. In many cases, it was unclear from the records why patients were commenced on medications, or maintained on them. It appeared that many patients had polypharmacy issues and there was little, if any, evidence that Dr Knowles had discussed the risks of dependency with the patient, attempted non-pharmacological therapies or sought specialist input into their management."
The appellant denied that there was any problem with his prescribing. In respect of certain cases, he referred to the fact that those patients had complex, chronic spinal problems, that he had taken advice from colleagues and that he had correspondence with neurosurgeons and orthopaedic surgeons. The appellant also stated that he worked with the drug and alcohol unit at Wagga and had referred patients to pain management specialists.
The letter also raised concern about the appellant prescribing high volumes of opioids and benzodiazepines with minimal history being taken, limited examination of the patient and in many cases no clear reason for such prescriptions has been recorded.
Dr Knowles was able to provide an explanation to the delegates for specific patients. With respect to one patient, a 37 year old female patient, he stated that the high-volume of Valium was required for severe anxiety and that he had a letter from the local drug and alcohol unit which endorsed his prescribing for the patient. Such letter was not produced to the delegates. The appellant stated that the patient had been referred to the drug and alcohol unit for examination by a community psychiatrist. The appellant stated he tried to reduce the dose but the patient became panicked.
It was stated in the letter that the conduct of the appellant failed to comply with the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia". References were made to Part 2, 3 and 5 of the Code. The letter claimed that the appellant had failed to formulate and implement suitable management plans, had failed to effectively communicate with patients and to ensure that he provided necessary treatment.
The delegates noted that the letter indicated that from 1 February 2016 and 31 January 2017, the appellant's prescribing of Oxycodone and Tramadol was in the 99th percentile as compared to his peers, and his prescribing of Diazepam was in the 98th percentile.
The delegates considered that the appellant displayed: "….no insight into or recognition of his aberrant prescribing patterns. He did not identify methods to safeguard patients with opioid dependence from abrupt withdrawal but simply stated he would stop prescribing. In response to concerns about his high rate of prescribing Oxycodone he said he would simply stop it or prescribe Tramadol in its place. He did not explain how changing the form of Tramadol he prescribed would impact on his current prescribing practices".

[6]

Record keeping

The letter provided to the delegates stated, inter alia: "… For some services, Medicare data showed Dr Knowles had rendered a service to a patient on a particular date, however there is no progress note or record of the service maintained on the patient's file and for other services, where there was a record,… the record was inadequate in that the entry is very brief, often consisting of only one or two words, such as "surgery consultation" or "cough", and otherwise noting a description was written. There was often no recorded history, examination, investigation, management information and preventative advice and no clinical indication for the prescription recorded."
The letter continued that the appellant's record keeping: "…represents a significant failure to comply with professional standards in that he fails to make contemporaneous records."
The appellant stated that when examining a patient he made a provisional diagnosis and management plan, but admitted that his records were deficient. The appellant informed the delegates that often because of his busy patient load, he did not have time to record the necessary detail. He described his surgery as being "like an Emergency Department".
The information provided to the PSR indicated that the appellant had an average patient load. During the review period (1 February 2016 to 31 January 2017), he provided services in the 97 percentile to a number of patients in the 46 percentile. He stated that his patients were more complex than other practitioners, many of whom suffered from chronic illnesses and who required time to discuss their family and personal circumstances. The appellant also informed the delegates that his typing skills were poor and that his note taking was interrupted by phone calls and examinations. The appellant informed the delegates that he had now adopted the use of "Best Practice" software and had previously used software known as "Medical Director".
The PSR complained to the delegates that the practitioner did not co-operate with it. On 8 December 2017 the PSR sent the appellant a notice to produce records, requiring such records by 2 January 2018. In fact the records were not produced until 25 January 2018. The PSR found that many records said to be for services provided between 1 February 2016 and 31 January 2017 had been created or altered between 13 December 2017 and 23 January 2018. The PSR estimated that more than 300 non-contemporaneous records were made in that period.
The PSR alleged that the records were provided with the intention of misleading the PSR review. The PSR was also concerned that some records were made two years after the date of service and the content of such records may have been false or inaccurate.
The PSR wrote to the appellant in April 2018 requesting an explanation. No response was received. In July 2018 the Director of the PSR met with the appellant to discuss the review but the appellant did not offer an explanation.
Before the delegates, and before this Tribunal, the appellant provided his explanation. He said to the delegates that, when he received the notice to produce his records, he was "horrified" and "mortified" that he had neglected to maintain full records. For this reason he sought to amplify the notes he had previously written. He said that he had no intent to deceive the PSR Director. He also said that the requirement to produce the clinical notes constituted a "self-education exercise", and a way to discipline himself in relation to record keeping. The appellant acknowledged that his record keeping was inadequate to both the delegates and to this Tribunal. Despite assurances that he would rectify his record keeping, the delegates were concerned that although the appellant was supported by Avant (a medical defence organisation) he had not undertaken any record keeping courses. He had also not fulfilled his assurances and undertakings to remedy his record keeping in the past. The delegates said that they had difficulty in accepting the appellant's assurances that he would in the future maintain clinical notes in accordance with professional standards, stating: "The delegates remain concerned that his medical records are insufficient to facilitate continuity of care for his patients and as such represent a risk to the health and safety of the public."
The delegates were concerned that the appellant did not act in good faith or co-operate. They commented: "He denies any intention to deceive the PSR, but again his evidence is difficult to accept as the information for the delegates shows that he altered only the records required by the PSR and in the period immediately prior to producing them. He asserts he did so as a self-education exercise, but this is difficult to accept given his otherwise cavalier attitude to professional record keeping. He admits he changed the records, but provides a self-serving excuse in relation to the "passing off" allegation, which the delegates consider lacks credibility."

[8]

Delegate's decision

The delegates considered whether, for the protection of the health and safety of the public, and the public interest, immediate action should be taken to suspend the appellant. The delegates stated that they gave "serious consideration" to the issue whether conditions could be imposed to alleviate public health and safety concerns related to his prescribing practices. The delegates also addressed the question whether his medical records could be audited to ensure his previous practices had changed and that he now adhered to appropriate professional standards in record keeping. Supervision was also considered. The delegates concluded: "However, taking into account all the circumstances, including public interest considerations, the delegates concluded that conditions alone would not be sufficient in Dr Knowles' situation. Integrity, trustworthiness and appropriate ethical values are integral to the practice of medicine, as is compliance with regulatory requirements and codes of practice promulgated by bodies responsible for the administration and regulation of the medical profession. The public have the right to expect medical practitioners to be responsible and reliable professionals who act with honesty and integrity. Maintaining public confidence in the profession is an important public interest consideration. To maintain that confidence it is essential that the public can be sure that the profession is properly regulated. The allegations made about Dr Knowles' practice of medicine is serious. Not only are concerns raised about his prescribing and record keeping, which give rise to issues of public health and safety, it appears his conduct demonstrates a lack of honesty and integrity, inconsistent with proper professional practice. Having carefully reviewed all the available evidence, the delegates consider it is appropriate to suspend Dr Knowles from practice of medicine. It is in the public interest that Dr Knowles be suspended for an interim period, pending further consideration of the complaints and particularly the allegations of dishonesty, made against him. The suspension will also protect the health and safety of the public by addressing the risks that arise from Dr Knowles' prescribing practices and inadequate record keeping."

[9]

Appellant's evidence

The appellant provided evidence to the Tribunal in support of his appeal. The appellant, through his counsel, acknowledged that his record keeping was inadequate, and that he had retrospectively altered his clinical notes which had been provided to the PSR Director. He testified that he had no intention of deceiving the Director. Rather, he altered his clinical notes because he realised that his clinical notes were inadequate and needed expansion. He testified, as he did before the delegates, that the inadequacy arose because the patients concerned were complicated patients, requiring much time to be spent with them discussing their personal and family issues. Because the appellant knew such patients well, he did not consider it necessary to record in detail, on each consultation, matters that were discussed with the patients. In respect of other patients, he stated that he was working under a heavy patient load, with the result that he did not have sufficient time to record the notes properly and was often interrupted.
The appellant stated that he had undertaken an Avant course on record keeping. He claimed that since 2018 as a result of working in a group practice, he had more support and has maintained better records. Whilst he was a sole practitioner, he found it too costly to attempt to alter his existing practice of note keeping. Accordingly, in summary, the applicant's excuse for not maintaining records in accordance with the requisite standard was the fact of his complicated patients, lack of time, and the fact that he was not skilled at computer record keeping.
With respect to his prescribing practices, the appellant stated that all of his patients had done well; none had been the subject of any Pharmaceutical Regulatory Unit review and that he had never been subjected to any disciplinary penalty. He was aware that two of his patients had hoarded opioids for their pain management. When questioned about his high centile of prescribing opioids, he stated that the patients who received the greater proportion either suffer from chronic pain or were elderly and required such treatment. The appellant stated that, had his alleged prescribing been examined by a real person (rather than computer statistics) it would be established that there was no concern with his prescribing.
In respect of the 2001 allegation that he used the same syringe, he stated that it was alleged against him that he had used the same syringe on six patients. This was untrue, and in fact he had used the same syringe, but with different needles on two patients who he considered could not have been at risk of HIV or other blood borne diseases.

[10]

Appellant's submissions

The appellant submits that in view of the acknowledgement that his record keeping was inaccurate, and of his denial that his prescribing of opioids was excessive, a suspension from practice is unwarranted. Rather, conditions could be imposed which would allow the appellant to remain in practice which would operate to safeguard the public. The appellant proposes that the suspension be set aside and in lieu he be allowed to continue the practice of medicine with conditions that he does not prescribe any opioids until further order and that clinical notes be made available for audit on a regular basis.
The appellant submits that if the suspension remains, grave consequences will result. Firstly, the appellant will be deprived of his livelihood; secondly, the community will be deprived of the use of his professional skills. The appellant submits that the power provided under section 150 is "Draconian" in nature, such that its exercise must be carefully considered. Further, it is submitted that the consideration of whether the appellant might be found guilty of unsatisfactory professional conduct or professional misconduct on the basis of some complaint is quite separate from the current consideration before the Tribunal.
The appellant submits that the Medical Council's proceedings were initiated solely in response to a complaint by the Director of the PSR who raised three issues concerning the practice of the appellant.
With regard to prescribing of Schedule 8 and of Schedule 4(D) medications, the letter referred to three patients who, the appellant states, were well known to him, and in respect of whom he gave evidence before the Tribunal, were either elderly or otherwise in need of the opiates. No other records of alleged overprescribing to any patient were relied upon. The appellant submits that such consideration would be inadequate to support a suspension.
With regard to record keeping, the appellant has acknowledged that his records were deficient, that he has successfully completed the Avant course entitled "On the Record" record keeping course and that such deficiency would not of itself be adequate to warrant a suspension.
The appellant disputes that he ever had any intention to deceive the Director of the PSR when he submitted his clinical notes for examination. The appellant maintained at all times, the amendments he made to the notes resulted in his desire to provide a more comprehensive history which he realised he failed to include. However, suspicion of the Director is insufficient to found the basis for a suspension.
With regard to the early complaints made against him concerning prescribing of opioids, and the use of the same syringe, the appellant states that no adverse finding was made against him arising out of any complaint. The alleged prosecution by Medicare is apparently continuing.

[12]

Findings

In Medical Council of New South Wales v Lee [2017] NSWCA 282, the Tribunal reviewed the requirements and obligations arising under section 150 of the National Law. The Tribunal reproduces paragraphs 39 to 42 of that decision as follows: 39. The power exercised by the Tribunal to s.150 of the National Law is essentially protective: to protect: "… the health and safety of any person or persons, or the public generally. Where the conduct of a medical practitioner whether by act or omission adversely affects the health and safety of those protected by the legislation, then the ability to suspend under the legislation enlivened." (See Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [48].) 40. However, the protective division is not solely confined to the protection of the interests of a patient: s 150 also authorises the Tribunal to take suspension action or other action if it is "satisfied the action is otherwise in the public interest: see s150(1). As was stated in Crickitt at [48]: "Of course, the public interest may accommodate other matters which impact on the honour and integrity of the profession generally. These would include conviction for a serious crime, or failing to lodge taxation returns for an inordinate period." 41. Since the concept is one of protection, it is sufficient "if it can be demonstrated that there is a potential for harm": no actual harm to any person need be shown: see Crickitt at [48]. 42. Once it has been established that the health or safety or public interest ground is made out, "then it is mandatory that the Council either suspend or impose practice conditions, subject to the Council being satisfied that it is appropriate to do so for the stated reason", see Crickitt at [55], adopting the observations of Beech-Jones J in Berger v Council of the Law Society of NSW [2013] NSWSC 1080.
Section 159C currently provides: … 159C Tribunal's powers on appeal [NSW] (1) On an appeal against a decision of a Council, the Tribunal may by order - (a) confirm the decision; or (b) set aside the decision; or (c) set aside the decision and make a new decision (being a decision that the Council could have made). (2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of. …
The Tribunal's task is not to be making findings of fact: the proceedings are essentially interlocutory in nature in the protection of the public interest, which extends not only to the practice of medicine, but the reputation of the medical profession. The Medical Practice Amendment Bill 2008 Second Reading Speech, which is relevant to the history of s 159C, refers to powers provided to the Medical Board "to take urgent action to protect the public under s.66 of the Medical Practice Act". It is clear from such speech that the purpose of those amendments was to clarify the actions which can be taken to protect the public interest and refers to the need for the Medical Board (now Medical Council) to ensure the protection of the public whilst the Health Care Complaints Commission carries out its investigations.
At this stage of the proceedings, the Tribunal is merely to determine whether a prima facie case exists against Dr Knowles. If so, whether suspension is required in the public interest. In Lindsay v New South Wales Medical Board [2008] NSWSC 40 (proceedings pursuant to s 66 of the Medical Practice Act 1992 (NSW), the "predecessor" to s 159C of the National Law), at [77] Hall J observed that the process under s 66: "…may necessarily not involve the Board or its delegates in a detailed examination of factual matters subjacent to a complaint or complaints."
It has also been confirmed in other proceedings of this kind that the Tribunal is not engaging in a detailed inquiry: see I v Medical Board of Australia [2011] SAHPT 18.

[13]

Application of principles

It is apparent from the decision under review that the delegates concluded that, although conditions relating to the prescribing of opioids, and relating to the auditing of clinical notes could be imposed as a temporary measure pending the hearing of the allegations against the appellant, this alone would not be adequate. It would not be adequate because the delegates formed the view that the integrity and trustworthiness of the applicant which it described as "integral to the practice of medicine" warranted the suspension which the Council imposed.
As was observed in Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 at [56]: "(4) Nevertheless, the "Draconian" nature of the power is such a great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination and consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach [R and Medical Board of Australia [2013] WASAT 28 at [28]]."
The evidentiary test required to be satisfied is that referred to in Briginshaw v Briginshaw (1983) 6 CLR 336. Such test requires it to be a high degree of satisfaction, on the civil standard, prior to the making of any conclusion as to the alleged conduct.
It is apparent that the delegates viewed with suspicion the conduct of the appellant in respect of his explanation for altering his clinical notes. Their suspicion rested partly on previous complaints that never resulted in an adverse finding against the appellant. It is also apparent that the delegates could not be not satisfied, on the evidence before them that the prescribing of opioids by the appellant was appropriate. It is no doubt for this reason that the delegates considered that these matters could not be addressed, for the protection of the public, by the imposition of conditions relating to prescribing and record keeping by the appellant pending the determination of any complaint.
So considered, it left open the question of the integrity of the appellant as the only remaining reason for the imposition of the suspension. It seems that the delegates formed an adverse view of the appellant's honesty in respect of his dealings with the PSR Director and for this reason alone the suspension was warranted. However, to impose such a suspension, and to activate the "draconian power", it would require a very strong case against the appellant, even at this preliminary stage, that he engaged in deceptive conduct.
The appellant has denied such allegation, and it has not been tested in a hearing. The Tribunal notes the observations of Beech-Jones J in Berger v Council of the Law Society of NSW [2013] NSWSC 1080, where his Honour considered that a suspension, under different legislation, was justified when it was "necessary" in the public interest. Necessary, in this context, implies that, unless an order of suspension be made, there will be detrimental consequences, to the public. The Tribunal is not satisfied that a suspicion of dishonesty, without more and with contrary evidence, could justify a suspension.
The Tribunal is of the opinion that, where an allegation is disputed, and there is no objective evidence to support the allegation, other than suspicion, and the allegation has not been the subject of proper forensic examination, to rely upon suspicion alone is insufficient to warrant the suspension provided the public can be properly protected. It may be that when proceedings are ultimately heard against the practitioner for unsatisfactory professional conduct, or even professional misconduct, the complaints against him may be dismissed. Even if the charges be established, the protection of the public may be achieved in the interim by the imposition of conditions. It must be borne in mind that the purpose of disciplinary proceedings under the National Law is protective rather than punitive. To suspend the appellant on a suspicion would result in the community being deprived of medical services by the appellant, and would result in the termination of his livelihood. Such consequences would be punitive, in circumstances where no trial of the issues has taken place. These are serious penalties indeed, especially when the success or failure of any future complaint, which might not be brought to the Tribunal for up to two years is unknown.

[16]

Schedule 1. To practise only in a group practice approved by the Medical Council of NSW where there are at least 2 other registered medical practitioners (excluding the subject practitioner): 1. Where the patients and patient records are shared between the medical practitioners. 2. Where there is always at least one other registered medical practitioner on site. 1. To practice no more than 35 hours a week and on no more than 5 days per week. 2. To treat no more than 35 patients in any one day. 3. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1996 (NSW). 1. To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Regulation 2008 (NSW) to prohibit him from possessing, supplying, administering or prescribing any Schedule 8 drug by 15 April 2019. 1. Not to possess, supply, administer or prescribe any substance listed in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 1. To provide written evidence to the Medical Council of NSW that he has attended the offices of the Pharmaceutical Regulatory Unit and consented to an Order being made under the Poisons and Therapeutic Goods Act 1996 (NSW) to prohibit him from possessing, supplying, administering or prescribing any Schedule 4 drug listed in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW) by 15 April 2019. 1. The appellant is to submit to the supervision by another medical practitioner as determined by the respondent; to practice under category B supervision in accordance with the Medical Council of NSW Compliance Policy Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 2. To forward evidence to the Medical Council of NSW within 7 days of recommencing practice that he has provided a copy of the decision to: the Principal/owner of practice and/or the responsible senior officer in any place that he works (including any locum agencies and hospitals). 3. Within 7 days of change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of this decision to: the Principal/owner of practice and/or the responsible senior officer in any place that he works (including any locum agencies and hospitals). 4. 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. 5. To authorise and consent to any exchange of information between the Medical Council of NSW and future relevant persons or organisations at locations where he works as a medical practitioners in Australia or any issues arising in relation to compliance with these conditions.

Knowles v Medical Council of New South Wales

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Judgment (19 paragraphs)

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