The Medical Council of NSW (the applicant) seeks orders against Dr Paul Joseph Ameisen (the respondent) as set out in the Amended Application for Disciplinary Findings and Orders, filed on 11 December 2020. No objection was made to the applicant being permitted to move on that document. The Application document was marked as Exhibit A1. In support of its case the applicant relied upon the material contained in the documents filed by it and identified as Exhibit A2 in the hearing.
In the Application, the order sought against the respondent is stated as follows:
1. The respondent's registration be cancelled under section 149C(3) of the Health Practitioner Regulation National Law (NSW) (the National Law)
2. The respondent be precluded from applying, under Division 8 of Part 8 of the National Law for a review of order 1 for 6 months.
3. The respondent pay the applicant's costs.
When the hearing commenced, the Tribunal was informed by the respondent that the cancellation of registration order sought by the applicant should be made. It was conceded that the respondent had contravened an order of the Tribunal which was a "critical compliance order or condition" (see s 149A(5) of the National Law). As such it was conceded s 149C(3) applied to this case and consequently it was a mandatory requirement for the respondent's registration to be cancelled.
Counsel for the respondent informed the Tribunal at the outset, that the only issue to be determined by the Tribunal was the length of the period which is to be set, by the Tribunal, pursuant to s 149C(7) of the National Law, during which the respondent would not be permitted to seek a review of the order requiring cancellation of his registration as a medical practitioner. The respondent informed the Tribunal that he was seeking there be no period of time imposed. The applicant agreed the issue had been properly identified by the respondent.
Given the concessions made by the respondent the Tribunal was asked to make the following orders unopposed, leaving only one order the subject of dispute. Orders were made on 30 January 2020 as follows:
"1. The registration of Paul Joseph Amiesen (the respondent) as a medical practitioner is cancelled pursuant to s 149C(3) of the Health Practitioner Regulation National Law (NSW).
2. The respondent is to pay the costs of the applicant in the sum of $5,705, such sum to be paid as a lump sum.
3. Judgment is otherwise reserved in relation to the period of time, if any, which should be imposed pursuant to s 149C(7)."
The background history to this matter is uncontroversial and can be simply stated as follows.
On 28 January 2009 the former NSW Medical Tribunal made orders requiring the respondent's name to be removed from the Register of Medical Practitioners. The respondent was not permitted to apply for the restoration of his name to the Register for a period of 18 months thereafter.
In 2015 the respondent applied to the Tribunal for reinstatement to the Register of Medical Practitioners. On 29 May 2015 the Tribunal granted the respondent's application for reinstatement pursuant to s 163B(1)(c). The Tribunal imposed conditions on the respondent pursuant to s 163B(4) which included the following:
1. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by Poisons and Therapeutic Goods Act 1966 (NSW) or any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). This is a critical compliance condition.
The amended application (Exhibit A1) contains one ground only. No contest is made by the respondent with the particulars set out in the application supporting the ground.
On 7 July 2017 the respondent prescribed Codeine Phosphate Linctus to Patient C. Codeine Phosphate Linctus is a drug of addiction.
The particulars state that the respondent prescribed Codeine Phosphate Linctus on 29 August 2017, 21 March 2018 and 24 October 2018 to different patients.
On 27 August 2019 the applicant convened proceedings under s 150 of the National Law and having made a decision notified the respondent that his registration had been suspended as required by s 150(3)(a) of that Act.
Having concluded there may have been a misstep in the proceeding which made the order under s 150 of the National Law on 27 August 2019 the applicant reconsidered the matter on 3 December 2019 and thereafter, on that date, made a second order suspending the registration of the respondent pursuant to s 150(3)(a).
On 27 August 2019 the respondent was contacted by telephone by an officer/employee of the applicant and told he was to cease practice forthwith and not practice again pending determination of an application to the Tribunal by the applicant. The respondent did cease practice on that day and has not practiced since.
It is common ground that the order made by the Tribunal on 29 May 2015, permitting the re-registration of the respondent, included the condition which is set out above. That condition was a "critical compliance order or condition" as specified in s 149A(4) and (5) of the National Law and that section applies to NSW.
Section 149C(3) of the National Law is a mandatory provision and provides the Tribunal "must cancel a registered health practitioner's registration if the Tribunal is satisfied the practitioner has contravened a critical compliance order or condition". Section 149C applies to NSW.
Section 149C(7) provides that "An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time." That provision requires the exercise of discretion by the Tribunal and it is the manner in which that discretion might be exercised that each party addressed in the hearing.
The respondent is 71 years of age. He obtained a Bachelor of Medicine from the University of NSW in 1977. With the exception of the period of disqualification above set out, the respondent has practiced as a General Practitioner for many years. He informed the Tribunal he would like to continue to practice should he be permitted to be re-registered in the future.
[2]
The Submissions
The applicant seeks an order pursuant to s 149C(7) which would prevent the respondent from applying for a re-registration until the expiration of six months from the date of the hearing.
In support of its case the applicant submits the paramount consideration for the Tribunal is the health and safety of the public. It is submitted that s 3A of the National Law requires this paramount consideration in relation to "the exercise of functions under a NSW provision".
The applicant submitted that in determining the length of any period of time to be imposed pursuant to s 149C(7) the Tribunal would have regard to a requirement for general and specific deterrents. In relation to "general deterrents" the applicant says that medical practitioners must take all requisite steps themselves to ensure they comply with conditions which attach to their registration. The applicant submits that this case illustrates that "checks and balances" which may be imposed by the Tribunal, even the requirement for supervision, cannot ensure that a particular medical practitioner can or will comply with carefully worded conditions. The imposition of the six month period sought by the applicant will, the applicant submits, meet the requirement for a general deterrent.
In relation to a specific deterrent for the respondent, the applicant submits it is most important that the respondent understands the imperative of compliance with a condition attached to his registration. He must understand that the onus is absolutely upon him to be sure he is not breaching a condition. If he has any doubt about whether a procedure or action or treatment, proposed by him, will breach a condition, then he must not take such action or undertake such treatment until he is absolutely certain he is not in breach.
By way of concession (properly given) the applicant informed the Tribunal that it is not the applicant's case that the respondent deliberately and/or intentionally breached the condition. However, it is the applicant's case that the respondent had a clear, unambiguous obligation, to inform himself about the nature of any drug or medication he was considering prescribing for a patient.
There are aspects of the default which the applicant points to which it says places the default in the more serious category of breach if there can be said to be "shades of difference" in the nature of a breach of a condition of registration. Those matters are:
1. The respondent had available to him a printed list of Schedule 8 Drugs. He annexed a copy of his list to his statement contained in Exhibit R1.
2. The respondent's own list of Schedule 8 Drugs lists Codeine and Codeine Linctus. Codeine is subject to an exemption as specified in Note (2) to the Schedule. The respondent in his statement in Exhibit R1 conceded he did not read the exemption page carefully enough. He stated he "should have contacted the PSU, spoken to his supervisor or colleagues, or the local pharmacist to check."
3. The evidence shows that the respondent was contacted by the chemist supplying the prescribed drug to the patient, to check that Codeine Linctus had been prescribed. The respondent confirmed that was the case and the chemist noted that on the script. Such an event should have alerted the respondent about the nature of the drug and the restrictions upon its prescription. (see page 151 of Exhibit A2).
4. When the applicant wrote to the respondent about the prescribing of Codeine Linctus breaching a condition of his registration, the respondent argued that he was not in breach of the condition. (Tab 21 page 153 and Tab 22 page 161 of Exhibit A2)
5. The oral evidence of the respondent during the hearing was that he did not check the nature of Codeine Linctus again and was then unable to understand the complaint of the applicant until after he had been advised the applicant had suspended his registration on 27 August 2019.
It was submitted by the applicant that the evidence in this case was suggestive of a dismissive attitude of the respondent to the seriousness of the requirement to comply with the conditions attached to his registration.
The applicant directed the Tribunal's attention to the Tribunal's decision reported in Medical Council of NSW v. Ghannoum [2018] NSWCATOD 6. Paragraph 18 of that decision was relied upon although the applicant conceded that the breach dealt with in that case was more serious than the breach by the respondent. In paragraph 18 of that decision, sub-paragraph (6) states as follows:
"The Tribunal is satisfied that the practitioner being excluded from practicing as a medical practitioner for a period of six (6) months is sufficient deterrent for him and for other medical practitioners in relation to critical compliance conditions of the type in these proceedings and adequate for the purpose of protection of the public.."
The Applicant referred the Tribunal to the decisions of Dental Council of NSW v Stewart [2018] NSWCATOD 135 and a decision of the Medical Tribunal of NSW decided in 2009. The judgment is numbered 40030 of 2009 and the parties are Medical Board of NSW and Dr Jason Martin. The following paragraphs of that decision were specifically referred to:
"53. The Tribunal is satisfied that the respondent has been doing well on his current treatment and therapeutic regimes and is continuing to improve.
54. In determining what period of de-registration should be imposed, the Tribunal while acknowledging the seriousness of the breach of the condition, takes into account the continued improvements in the respondent's health and fitness. The Tribunal will order that the respondent not apply to be re-registered for a period of 4 months from the date of this order."
The applicant agreed that the respondent has not practiced since 27 August 2019, the date upon which he was informed by the applicant that his registration had been suspended.
The respondent made submissions through his senior counsel.
It is the respondent's case that he should be immediately able to apply to the Tribunal for re-instatement of his registration. The respondent says that he has already served a period of five months not practicing as a medical practitioner. The respondent says that no further period of time is required in order to act as a general and specific deterrent as identified by the applicant in its case.
In relation to the purpose of imposing a period of preclusion (s 149C(7)) the respondent referred the Tribunal to the decision of Health Care Complaints Commission v Thomas [2015] NSWCATOD 60. Paragraph 97 was specifically referred to.
"97. Too great an emphasis on probable permanent unfitness may in the circumstances of a particular case distract the Tribunal from the appropriate exercise of its discretion. It may inhibit the salutary practice seen frequently in professional discipline cases of imposing a relatively short time restriction on the right to reapply for restoration to the register. Such an order admits of the possibility that a deregistered practitioner may, in a relatively short period of time, be able to undertake the rehabilitative steps that address the failures of competence, integrity or character that have led to deregistration. If a deregistered practitioner is able to do this, then the other problem that faces a reregistering authority - the loss of current understanding and knowledge that flows from non-involvement in practice - is less likely to be a significant consideration."
The respondent agrees that deterrence does have a role in the exercise of the discretion set out in s 149C(7). However, in relation to specific deterrence directed to the respondent is concerned, it is submitted that the five month period already undertaken is sufficient. Further, the respondent says that there is a concession by the applicant that there will probably be a period of six months between the date the respondent files an application for re-registration and the date upon which the Tribunal will be able to hear that application. That delay is attributed to the pressure of work the Tribunal has to deal with.
The respondent submits that the predicted period of time the respondent would be out of practice is a period of 11 months. The respondent submits the deprivation of income from his medical practice for that period of time is a very significant deterrent both personally for the respondent and will be seen as significant by the profession as a whole.
The respondent further says that the profession, as a whole, will see the automatic cancellation of registration of the practitioner, arising from the breach of a "critical compliance condition", as a very significant deterrent.
[3]
Determination
The seriousness of a breach of a critical compliance condition is realised by the legislature requiring immediate cancellation of registration as a mandatory requirement (s 149C(3)). The period of time to be imposed pursuant to s 149C(7) is discretionary. That discretion is informed by an unspecified number of facts and circumstances including the important provision in s 3A of the National Law, which section is headed "Objective and guiding principle [NSW]".
It is in our view important to draw a distinction between the role of the Tribunal in this case (setting a period of time during which the respondent would not be able to apply for re-registration) and the role of the Tribunal which will hear the respondents' application for re-registration.
As discussed with counsel for the respondent during submission, there are practical aspects relevant to any application the respondent might make to the Tribunal for re-registration. The obtaining of evidence which, if accepted by the Tribunal, would lead to a conclusion that the respondent is ready to take up practice again, as a medical practitioner, was conceded as one such matter. Additionally, the respondent will have to convince the Tribunal that he is able to practice medicine in a manner which does not put at risk the health and safety of the public. There are other matters which the respondent will have to turn his mind to which will no doubt be important for that application.
The respondent agreed there would be a necessity to prepare for any application for re-registration and that will take some time.
The exercise of the discretion contained in s 149C(7) is informed, in part, by the decision of the Tribunal in Stewart. At paragraphs 55 and 56 the Tribunal said:
"55. In determining whether to make a period of preclusion, and if so, for how long, the Tribunal acknowledges that it is appropriate to take into account the circumstances of the breach, the nature and extent of the breach, whether the breach was such that it was remedied or capable of being remedied, the period of time since the breach and the period of time that the practitioner has already been suspended."
56. However, the objective and guiding principle for the Tribunal in the exercise of its functions, is that the paramount consideration is the protection of the health and safety of the public: see s.3A of the National Law."
Clearly the considerations set out above are not restricted to that list alone. Each case will need to be considered on its own facts applying the matters referred to in Stewart together with any other relevant fact/circumstance peculiar to the case. An example of that can be seen in the Stewart decision where the Tribunal had regard to the "serious financial consequences on the practitioner" arising from the period during which the practitioner had been suspended in the lead up to the hearing in the Tribunal.
In this case the public have been protected from the respondent's medical practice since 27 August 2019 as he has been unable to practice as a medical practitioner since that date. Further, the public will remain protected from the respondent until such time as the Tribunal might favourably determine an application made by the respondent for re-registration. The determination of that application favourably to the respondent will depend upon the Tribunal being satisfied that he will not place the health or safety of the public at risk were he able to resume practice.
One of the matters which this Tribunal will take into account in the exercise of its discretion is that there is no evidence that the respondent placed the safety of any patient treated by him at risk. Here the complaint is that the respondent prescribed a drug which he was not permitted to prescribe because of a condition placed upon his registration. There is no evidence to show that the prescription of the drug was inappropriate for the treatment of the illness/condition which the patient presented with to the respondent.
The respondent has not practised as a medical practitioner since 27 August 2019. Even if he was permitted to file an Application with the Tribunal seeking an order be made permitting him to be re-registered as a medical practitioner, he would anticipate a wait of six months before that application would be able to be heard by the Tribunal.
There is no evidence before the Tribunal as to the financial hardship the respondent might have suffered as a result of the cancellation of his registration. The Tribunal does know that he will be required to pay the costs of the Applicant in the sum of $5,705.
As set out herein, the applicant argues it is necessary to impose a period of preclusion which would delay the respondent's capacity to file an application in the Tribunal for re-registration. The applicant submits a general deterrent is necessary to illustrate to medical practitioners the serious consequence of breaching a condition imposed by the Tribunal when permitting the re-registration of a formerly disqualified practitioner. Further it is submitted that there is a public interest in the Tribunal imposing a preclusion period, in that it would continue to uphold the public's confidence in the standard of care which registered medical practitioners will be expected to deliver.
The respondent submits that the suspension time already completed by the respondent, coupled with the agreed time delay he will endure in applying to the Tribunal for re-registration, sufficiently meets the concerns and obligations which we have set out above.
Having considered all those matters and carefully weighed them, we conclude a preclusion period is required. We consider the six month period is too long in the circumstance of this case. We propose to stipulate a period of three months from the date of the order we will make, before the respondent can again apply to the Tribunal for re-registration as a medical practitioner.
[4]
Orders
1. The respondent Paul Joseph Ameisen, is precluded from applying, under Division 8 of Part 8 of the Health Practitioner Regulation National Law (NSW) for a review of Order 1 made in this proceeding on 30 January 2020, for a period of three (3) calendar months from the date hereof.
[5]
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: 25 February 2020