The Medical Council of NSW ("the Medical Council"), having commenced this proceeding by Application for Disciplinary Findings and Orders filed 1 November 2023, amended that application on 15 March 2024. It is the latter document which we hear and determine in this decision.
Dr Paul Joseph Ameisen ("the Respondent") filed a Reply to the Amended Application on 28 March 2024.
The hearing had been allocated to commence on 18 April 2024 before the Tribunal. Upon the joint application of the parties, the matter is now to be determined on the papers.
The Medical Council filed its submission on 11 April 2024. The Respondent filed his submission on 12 April 2024. The Medical Council did not seek to provide a submission in reply, a step which we consider, in this case, most appropriate.
[2]
The Complaint
The Medical Council alleges in Ground 1 to its application, that the Respondent contravened a condition to which his registration is subject. The condition is a critical compliance condition as defined in section 149A(4) and (5) of the Health Practitioner Regulation National Law (NSW) ("the National Law"). The Medical Council seeks an order that the Respondent's registration be cancelled pursuant to s 149C(3) of the National Law, and that he be precluded from making an application for review of order 1 for a period of six (6) months.
The Particulars which support the order sought, state that on 21 November 2022 the Respondent contravened condition 5 of his registration by prescribing 56 Pregabalin 300mg capsules to Patient A. Pregabalin is a substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW).
Further the Particulars state that on 5 June 2023 the Medical Council convened proceedings under s 150 of the National Law and suspended the Respondent's registration pursuant to s 150(3)(a) of the National Law having been satisfied the Respondent had contravened the critical compliance condition "that he not possess, supply, administer or prescribe any drug of addiction or any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW)".
Further the Particulars state that on 12 October 2023, the Medical Council convened a proceeding under s 150 of the National Law and ordered pursuant to s 150(3)(a) that the Respondent's registration be suspended having found the Respondent had contravened the critical compliance condition that he not possess, supply, administer or prescribe any drug of addiction or any substance listed in Schedule 4 Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). (We note the submission of the Medical Council states that the second s 150 proceeding was undertaken because a question arose as to whether there was an effective delegation which applied to the exercise of the Council's powers under s 150(3) of the National Law in relation to the suspension it ordered on 5 June 2023).
In his Reply document filed 28 March 2024, the Respondent admits Ground 1 in the Application and does not oppose the orders sought as 1 and 2. We note that the words "does not oppose" are different to "consents to". In our view, the words "does not oppose", casts an obligation upon the Tribunal to be satisfied the orders sought by the Medical Council are appropriate.
The National Law provides, in s 165H, that the Tribunal need not hold an inquiry into the complaint where the complaint is admitted. Decisions of the Tribunal explain that the role of the Tribunal in such a case is as follows.
In Health Care Complaints Commission v Smith [2016] NSWCATOD 93 at [27], the Tribunal observed that when s 165H is invoked, it is not necessary for there to be an inquiry into the subject matter of the complaint. In that case, the practitioner admitted, in writing on two occasions, the particulars of the complaint, and indicated that he did not intend to contest the allegations against him. The Tribunal observed the following at [29] and [32]:
29 Given the Respondent's response particularised above, it is therefore not necessary for the Tribunal to be independently satisfied, to the requisite standard of proof, that the conduct the subject of the complaints is established. As earlier noted, at the hearing the Respondent participated in a telephone conference. He answered questions from the members of the Tribunal and restated his position that he consented to the making of the proposed orders. He acknowledged he was aware of the extent of the Prohibition Order and did not wish to make any further submissions as he had no intention of continuing to practise in the field of psychology or related areas.
…
32 Although the Tribunal does not need to conduct an inquiry into the allegations in the complaint it nevertheless it remains for the Tribunal to satisfy itself to the requisite civil standard the admitted conduct constituted unsatisfactory professional conduct and/or professional misconduct. The Tribunal also needs to consider what are appropriate protective orders.
The Tribunal ultimately found the matters particularised proved at [55].
In Health Care Complaints Commission v Foster [2022] NSWCATOD 7 the Tribunal observed at [5], that pursuant to s 165H it is unnecessary for the Tribunal to conduct an investigation into each of the complaints and particulars when the respondent makes admissions. However, the Tribunal also observed that it was necessary for the Tribunal to consider the nature and extent of the misconduct of the respondent as admitted by him in order that the Tribunal may consider whether he was guilty of unsatisfactory professional conduct or professional misconduct and make appropriate protective orders: at [6]. It stated at [7]:
7 For completeness, we note that because of the gravity of the allegations made against the respondent the applicant bears an enhanced onus of proof of any factual matter adverse to the interest of the respondent. The onus of proof remains the civil standard, namely on the balance of probabilities, but consistent with the jurisprudence established in this Tribunal in dealing with matters of this kind we approach the determination of the proceedings on the basis that as to any such matter we must be "comfortably satisfied" that it has been established on the balance of probabilities.
Similarly, the Tribunal in Health Care Complaints Commission v David Vuong [2022] NSWCATOD 84 at [18] determined that it was necessary for the Tribunal independently to consider the evidence in that matter in order to determine appropriate protective orders.
However, the Tribunal in Health Care Complaints Commission v GGO [2024] NSWCATOD 50 at [24] observed that as the Tribunal is required under s 165M(5) of the National Law to comply with s 165M(2), it is necessary that the Tribunal be independently satisfied the facts relied on to establish that the particulars in the complaint are proved.
In Health Care Complaints Commission v Cain [2017] NSWCATOD 131 at [12]; Health Care Complaints Commission v Fearon [2018] NSWCATOD 26 at [5]; Health Care Complaints Commission v Murray [2018] NSWCATOD 119 at [25], the Tribunal stated that "Except where conceded in writing, [the Tribunal] must make findings in relation to each particular and then determine whether each is established on the balance of probabilities".
The operation of s 165H was considered also by Boland AM. ADCJ, in Health Care Complaints Commission v Khan [2014] NSWCATOD 83 at [25]-[30] in considering the question whether the Tribunal has the power to dismiss a complaint under that provision. Her Honour observed at [25] that admission of a complaint does not obviate the need for the Tribunal to "independently examine the complaint to determine appropriate protective orders, and to provide reasons for any protective orders flowing from the admitted complaint".
The Tribunal in Health Care Complaints Commission v Mortlock [2015] NSWCATOD 136 at [86], in citing Khan, observed that "it does not follow that where a party admits to the whole of a complaint that the Tribunal must exercise its power not to conduct an inquiry. It simply means the pre-condition to the exercise of that power conferred by s 165H has been satisfied".
The Medical Council in its submission set out in detail the background facts to the Application it brings and the order it seeks. We here incorporate part of that document, which we find accurately and fairly states the relevant facts to assist us with this determination.
"Factual and statutory background
5. The Respondent's name was first removed from the Register of Medical Practitioners by order of the Tribunal's predecessor, the NSW Medical Tribunal, on 28 January 2009 under section 37 of the now repealed Medical Practice Act 1992, subject to a non-review period of 18 months. This order followed a complaint, admitted by the Respondent, that the Respondent had engaged in inappropriate and irresponsible prescription of certain drugs to 18 patients, a failure to keep proper medical records in respect of the prescription of those drugs to those patients and the provision of signed uncompleted prescriptions for Nilstat to a person who was not a medical practitioner for completion and issuing to patients later. The Tribunal found that the Respondent's conduct included a willingness to knowingly dispense drugs of addiction on demand to patients, including drug dependent patients, or to patients who became drug-dependent as a result of the conduct.
6. On 29 May 2015 the Tribunal made a reinstatement order under s 163B(1)(c) of the National Law, with conditions imposed under s 163B(4) that included a critical compliance condition:
(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.
7. The Respondent was subsequently re-registered by the National Board on 12 October 2015.
8. The Respondent's registration was cancelled for a second time on 30 January 2020, with the apparent consent of the Respondent, as a result of breaching the critical compliance condition above, following the prescription of Codeine Phosphate Linctus, a drug of addiction, to different patients on 7 July 2017, 29 August 2017, 21 March 2018 and 24 October 2018. Following argument by the Respondent that he should not be precluded from applying for re-registration for a period of time (the Medical Council on that occasion having asked for a preclusion period of 6 months), the Tribunal ordered on 25 February 2020 that the Respondent be precluded from applying for a review of the cancellation order for a period of 3 calendar months from the date of the Order.
9. On that occasion, the Medical Council made it clear that it was not arguing that the respondent deliberately or intentionally breached the condition, but that he had a clear, unambiguous obligation to inform himself about the nature of any drug or medication he was considering prescribing for a patient. The Tribunal took into account a number of factors, including the total time the Respondent would be out of practice and the fact that there was no evidence that the Respondent put the safety of any patient at risk, to reach the conclusion that there should be a preclusion period but that in the circumstances 6 months was too long.
10. On 1 October 2021 the Tribunal made a further reinstatement order under s 163B(1)(c) of the National Law, with conditions imposed under s 163B(4) that included a "critical compliance condition" (the "S4D Condition"):
(e) Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by the 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.
11. The Tribunal was empowered to impose a "critical compliance condition" under subsections 149A(4) and (5) of the National Law:
(4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled.
(5) The order or condition concerned is then a critical compliance order or condition.
12. On or about 22 June 2022 the National Board restored the Respondent to the Register of medical practitioners with the S4D Condition included as condition 5.
13. On 30 June 2022 the Medical Council wrote to the Respondent to outline his responsibility to comply with his registration conditions. In particular, this correspondence explained:
Critical compliance
condition Practice
condition 5:
Not to possess, supply, administer or prescribe any 'drug of addiction'
(Schedule 8 drug) as defined by the 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.
This 'critical compliance' condition is especially important because if you breach them, your registration may be suspended immediately. The Council must also refer the breach to the Tribunal for inquiry. If proven, your registration will be cancelled.
14. The annexure to the Medical Council's letter to the Respondent provided details on how to comply with the S4D Condition:
How to comply with this condition
Attached is a list of Schedule 8 drugs and Schedule 4 appendix D drugs which you must not possess, supply, administer or prescribe.
These schedules are subject to change and it is your responsibility to ensure that you keep informed of any changes to the drugs listed in this schedule. These schedules are available at:
https://www.health.nsw.gov.au/pharmaceutical/Pages/drugs-of-addiction-sch8.aspx.
https://www.health.nsw.gov.au/pharmaceutical/Pages/sch4d.aspx
Please read and familiarise yourself with the schedule.
The Tribunal has ordered that, if you do not comply with these conditions/orders, your registration in the health profession will be cancelled. Accordingly, the Council will suspend your registration until the Tribunal deals with the complaint about the matter.
The Council advises you to take all possible steps to comply and to demonstrate your compliance.
15. On 27 January 2023 a delegate of the Chief Executive of Medicare released to the Applicant a Prescriber Detail Report from the Pharmaceutical Benefits Scheme database, which recorded that the Respondent had on 21 November 2022 prescribed 56 Pregabalin 300mg capsules to the person listed as Patient A in the schedule to the complaint. The S4D Condition remained on the Respondent's registration at this time.
16. At all material times, Pregabalin was a prescribed restricted substance under Appendix D of the Poisons and Therapeutic Goods Regulation 2008. It is noted that the reference to drugs "in Schedule 4" in the S4D Condition is not to a schedule of the Regulation (there is no Schedule 4) but to "Schedule 4" drugs within the meaning of the regulation, of which Appendix D drugs are a subset .
17. Consequently, by prescribing Pregabalin to Patient A, the Respondent breached the S4D Condition, which was a critical compliance condition.
18. By letter dated 3 May 2023 the Medical Council gave the Respondent an opportunity to be heard in respect of the breach of the S4D Condition.
19. The Respondent explained by letter dated 26 May 2023 that 21 November 2022 was in fact his first day of work after re-registration, that he was familiarising himself with the computer system, he had been provided with a generic list of Schedule 4 Appendix D items by his supervisor "who informed me that this was the list of medications that I should use to check for prohibited substances", and that Lyrica which he prescribed for Patient A did not appear on the generic S4D list. He said that he had later memorised the commercial names of medications compared with their generic names, so he would not have made the same mistake. He said that at the time his wife had not long passed away (2.5 months before) and he was dealing with her affairs and supporting their 10 year old son (which had followed an emotionally exhausting time for 2 years trying to help his wife with stage 4 cancer). He was also shaken on the first day by discovering that his remuneration would be lower than he expected, when he said he had debts from not working for 3.5 years.
20. On 5 June 2023 the Applicant by its delegates suspended the Respondent's registration, as required by section 150(3)(a) of the National Law. As a question later arose as to whether there was an effective delegation that applied to the exercise of the Council's powers under s 150(3) of the National Law, on 12 October 2023 the Medical Council convened further s 150 proceedings and a further decision was made by the Applicant to suspend the Respondent's registration on 13 October 2023. The Applicant's reasons indicate that the Medical Council was satisfied the Respondent had contravened a critical compliance condition.
21. Subsection 150(3) required the Applicant to refer the Respondent to the Tribunal as a complaint (without any discretion to decline to do so) if it was satisfied that the practitioner has contravened a critical compliance order or condition:
(3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must -
(a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and
(b) refer the matter to the Tribunal as a complaint.
22. "Tribunal" for the purpose of Part 8, which includes section 150, is defined in section 138(1) to mean this Tribunal. A referral to the Tribunal of a complaint is a matter in the Tribunal's general jurisdiction under s 29 of the Civil and Administrative Tribunal Act 2013 (CAT Act), assigned to the Occupational Division under Item 4 of Schedule 5 to that Act."
[3]
The Respondent's Case
The Respondent in his submission confirmed that there was only a single breach of the critical compliance condition between 21 November 2022 to 5 June 2023. He set out the circumstances in which the breach of the condition occurred in a letter to the Medical Council dated 26 May 2023. He stated that he had commenced working at Poet's Corner Medical Centre on Monday 21 November 2022. It was his first day of work following reinstatement of his registration. On that day, he wrote a script for Pregabalin 300mg capsules. (We note that was the prescription which led to the action taken by the Medical Council and the application now before the Tribunal). The Respondent explained that he had not used a practice computer for 3.5 years. He was given instruction on the use of the computer and the medical practice program "Medical Director" on that day. The program had changed in a number of ways over the period of his absence from practice.
On 21 November 2022 he was provided with a hard copy of the generic list for Schedule 4 Appendix D and Schedule 8 drugs. The Respondent then had that documentation with him as he saw patients. On that day a patient presented and requested a prescription for Lyrica for relief of nerve pain. The Respondent checked the medical records for this patient, who had been a patient of the practice since June 2016. He concluded it was appropriate to prescribe the drug. Before doing so he checked the documents which named all the Schedule 4 Appendix D and Schedule 8 drugs and could not find Lyrica on those lists. He later learned that the generic name for drugs containing Lyrica is Pregabalin.
The Respondent was shocked to receive a communication from the Medical Council on 3 May 2023 (some 5½ months after the offending prescription) advising he had prescribed a Schedule 4 Appendix D drug. He checked the patient's records to verify the allegation and confirmed he had prescribed the drug.
The Respondent set out the circumstances he was facing at a personal level as he returned to work. He had suffered significantly during his period of de-registration leading up to 21 November 2022. He was also surprised that his registration was given non-vocational status which meant he could not charge the same rates he had previously been able to charge. That had a confronting consequence of the Respondent acknowledging he would not be able to pay off debts he had accumulated during his period of de-registration.
The Respondent concluded his letter with the following prayer: "I, so sincerely, apologise for this unbelievable and unfortunate error in the first few hours of my first day back. I checked for Lyrica on the list before prescribing, however after only a few hours back I had not hit the ground running yet with commercial names verses generic names. I am very much holding hope that you will please consider all of the abovementioned physical and emotional stressors that were going on prior to and on my first day back, and that you will take into account my ongoing diligence in being careful and consistently checking and doublechecking the list, and being up-to-date with newly added items to the list."
In his submission which the Respondent filed in the Tribunal, his lawyer stated: "There was a single breach of a critical compliance condition over an almost 7 month period of practice (from 21 November 2022 to 5 June 2023). There is no evidence before the Tribunal of non-compliance on any other occasion during that time. The Responded returned to work in difficult personal circumstances. His wife had died 2½ months earlier following a lengthy battle with cancer; he was concerned for his 10-year-old son and was experiencing financial difficulties."
The Respondent's lawyer submitted that the Tribunal can accept that the failure to comply with the critical compliance condition was unintentional. Although the Respondent accepts that his responsibility was to ensure he complied with the critical compliance condition, the Medical Council suspended his registration 12 months ago.
The Respondent has agreed to the cancellation of his registration with a period of six months before he can again apply for registration. As the Medical Council will not have to pay the cost of a hearing before the Tribunal, and no doubt other considerations, it has agreed not to seek a costs order against the Respondent.
[4]
Conclusion
The statutory provisions:
1. Pursuant to Section 163B(4) the Tribunal imposed a critical compliance condition on the Respondent's registration (when granted). That condition was imposed by order made 1 October 2021 and provided that the Respondent: "Not to possess, supply, administer or prescribe any 'drug of addiction' (Schedule 8 drug) as defined by the 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."
2. Section 149C(3) provides: "The Tribunal must cancel a registered health practitioners… registration if the Tribunal is satisfied the practitioner… has contravened a critical compliance order or condition."
3. Section 149(C)(7) provides that in addition to any order for cancellation of registration the Tribunal may also provide that an application for review of the order made under Division 8 (in this case section 149(C)(3)) may not be made until after a specified time.
We have considered the evidence and submissions of the parties in this case. We are satisfied that the Respondent did on 21 November 2022 contravene the critical condition 5 imposed on his registration by prescribing 56 Pregabalin 300mg capsules to Patient A. As such the action taken by the Medical Council to suspend the registration of the Respondent was appropriate and he remains suspended at the date of this hearing.
The Medical Council proposes that the registration of the Respondent be cancelled and that he be precluded from making an application for review for a period of six months from the date of the order.
The case was listed for determination on 18 April 2024. All of the evidence and submission to be relied upon by the parties were filed with the Tribunal by that date. For reasons beyond the control of the parties this determination has been delayed. As a consequence, we propose to implement that which the parties clearly anticipated, namely, that the preclusion period would come into effect upon the cancellation of the Respondent's registration, which must reasonably have been anticipated to be the subject of the Tribunal order within a short period of time following 18 April 2024. We propose therefore to order that the preclusion period will expire on 1 November 2024.
We recently caused a request to be made to the Medical Council to ask if it would wish to be heard in opposition to the Tribunal making the orders as anticipated above. The Medical Council has responded advising that it would not wish to be heard in opposition to such a proposal of the Tribunal.
In many respects this is a most unfortunate outcome for the Respondent. The Tribunal has a great deal of sympathy for the circumstances in which he finds himself. The failure to comply with a critical compliance condition has a mandatory consequence (see s 149C(3) of the National Law). As the Medical Council stated in its submission: "The cancellation Order is mandatory, and the Tribunal has no discretion to decline to make that Order because the Respondent has admitted breaching a critical compliance condition that precluded him from (among other matters) prescribing Schedule 4 Appendix D drugs to patients. However, the Tribunal has discretion as to whether it should impose a non-review period (during which time the Respondent is precluded from applying for a reinstatement order) and discretion as to the duration of any such order".
Noting that the parties have agreed that a non-review period of six months is to be applied (as permitted by section 149C(7) of the National Law) we conclude that such a period, although it casts hardship on the Respondent, is, in all the circumstances, appropriate.
The Respondent had a clear obligation to the public, upon his return to practice as a medical practitioner, to ensure he complied with the conditions of his registration. In this case that condition was a "critical compliance condition" which carried a mandatory requirement that the Tribunal cancel the registration where there is a contravention of that condition. Clearly the National Law spells out the seriousness of the contravention of a critical compliance condition and the Tribunal needs to incorporate the seriousness of such provision into the order it makes pursuant to section 149C(7) in setting when a practitioner is permitted to apply for a review of that cancellation.
We note the Respondent was, at the time he contravened the critical compliance condition, the subject also of a condition attached to his registration that he practise under the supervision of an approved supervisor, and that the category of supervision was "Category B". He was also required to have established a relationship with a mentor. The Respondent did not seek to clarify with either his supervisor or his mentor whether the drug he was proposing to prescribe on 21 November 2022, the very first day of his re-entry to practice, was a Schedule 4 Appendix D drug. Given the circumstances, we find that a surprising omission on the Respondent's part.
Having regard to all those matters we conclude it is appropriate to make the orders as sought by the parties.
[5]
Orders
The order of the Tribunal will be as follows:
1. The registration of Paul Joseph Ameisen as a medical practitioner is cancelled pursuant to s 149C(3) of the Health Practitioner Regulation National Law (NSW).
2. The Respondent is precluded from making application for review of Order 1 until after 1 November 2024.
3. There be no order as to costs.
4. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of Patient A listed in the Schedule to the Complaint annexed to the Amended Application for disciplinary findings and orders in this matter is prohibited.
[6]
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: 27 June 2024