These were proceedings commenced by a complaint and application to the Tribunal alleging that the respondent medical practitioner breached a critical compliance condition of his registration.
The condition was imposed on the practitioner's registration by order of the Tribunal of 8 February 2016. It required the practitioner to "attend at least one (1) Continuing Medical Education Course each month whilst registered to practice".
The complaint alleged that the practitioner failed to attend any Continuing Medical Education Course in each of the months of December 2016 and January 2017. The practitioner admitted that allegation.
The applicant, in the application filed 18 August 2017, seeks an order for the respondent's registration as a medical practitioner to be cancelled. The Tribunal acceded to that application and these are the reasons.
Relevant Law
Section 149A of the Health Practitioner Regulation National Law (NSW) ("the National Law") (1)(b) gives the Tribunal power to impose conditions it considers appropriate on a practitioner's registration. Sub section 149A(4) provide that if the Tribunal makes an order or imposes a condition on a practitioner's registration, it may order that a contravention of the order or condition will result in the practitioner's registration being cancelled. Sub section 149A(5) provides that such an order or condition is then a "critical compliance order or condition".
The relevant condition imposed by the orders of 8 February 2016 is in order No.3 imposing conditions on the practitioner's registration and the precise sub-paragraph is 3.5(iii) providing that he must "attend at least one Continuing Medical Education Course each month whilst registered to practice".
Order (7) of the orders of 8 February 2016 provides that the conditions specified in various provisions of the orders, including 3.5(iii), are "critical compliance conditions, contravention of which will result in the respondent's registration being cancelled."
Ten (10) months after the orders of 8 February, the practitioner contravened the condition by failing to attend any Continuing Medical Education Course in December 2016. He again contravened the critical compliance condition in January 2017 by failing to attend any Continuing Medical Education Course that month.
Sub section 150(3) of the National Law provides:-
"If a Council for a health profession is satisfied a health practitioner or a 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."
Delegates of the Council conducted a hearing on 11 July 2017 into the issue of whether the practitioner had contravened the condition of his registration requiring him to attend at least one Continuing Medical Education Course each month whilst registered to practice. The Council, by its delegates, decided that the practitioner had breached the critical compliance condition in December 2016 and January 2017. Pursuant to sub section 150(3) of the National Law, the Council therefore suspended the practitioner's registration and referred the matter to the Tribunal as a complaint, these steps by the Council of suspending the practitioner's registration and referring the matter to the Tribunal as a complaint were as required by the National Law.
The powers of the Tribunal dealing with the complaint are specified in sub section 149C(3) of the National Law which provides:-
"(iii) The Tribunal must cancel a registered health practitioner's or student's registration of the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition."
[2]
The Evidence
The evidence before the Tribunal comprised: -
1. A bundle of documents submitted by the applicant including Application for Disciplinary Findings and Orders;
2. Bundle of documents submitted by the applicant in support of the application indexed and tabulated, with 13 tabs and filed on 6 November 2017.
3. Exhibit 1 tendered by the respondent practitioner at the hearing on 4 December 2017 including a letter by him to the Tribunal filed 4 December 2017 and certificates in relation to Continuing Medical Education Courses attended by him in October and November 2017 and also on 3 December 2017.
4. Accreditation Certificate for the practitioner through to 18 July 2019.
5. Certificate of Attendance by the practitioner at continuing medical education courses on 16 November 2016, 26 November 2016, 1 February 2017, 15 February 2017, 21 March 2017, 19 April 2017, 7 May 2017, 23 May 2017 and 15 June 2017, 19 July 2016, 23 August 2016,12 October 2017, and 23 October 2017.
6. Letter of practitioner to the Council dated 29 June 2017 with attachment of calendar of available courses in November and December 2016 and January and February 2017.
7. Exhibit R1 comprising Certificates of Attendance by the practitioner at continuing medical education courses on 11 October 2017, 13 October 2017, 17 October 2017, 28 November 2017, and 3 December 2017 (two courses).
8. Letter of 23 October 2017 from GP Synergy addressed "To Whom It May Concern".
9. Letter from Wetherill Park Medical Centre to the Tribunal filed on 26 October 2017.
[3]
Conclusion and Outcome - Breach of Critical Compliance Condition
The Tribunal has therefore concluded that the practitioner in December 2016 and January 2017 breached the critical compliance condition of his registration requiring him to attend at least one Continuing Medical Education Course each month whilst registered to practice. Accordingly, as is required by para 149A(1) sub section 149C(3) the Tribunal cancelled the practitioner's registration.
The Council sought in its application and at the hearing that the Tribunal specify under sub section 149C(7) the period during which the practitioner is not able to apply for re-registration.
The Council proposed that the period be a period of four (4) months from 4 December 2017.
The Tribunal did not agree with that proposal and instead made an order that the period during which the practitioner could not apply for re-registration would continue only until 11 January 2018.
The reasons for this are:-
1. The practitioner has made extraordinary efforts to rectify any deficit in his medical education arising from his failures to comply with the condition in December 2016 and January 2017. He has, albeit recently, attended three such courses in October 2017, one in November and two on 3 December 2017, the day before the hearing. It was not submitted to the Tribunal that he has failed to attend a course in any of the months in the period February 2017 to September 2017.
2. The period during which his registration is suspended or cancelled will total six (6) months and even if he lodges an application for review seeking registration on 12 January 2018, it will probably be several months before the application is determined.
3. The suspension and cancellation will have had serious adverse effects on him over a considerable period. It has had serious financial consequences. At the hearing although it was difficult to obtain detail from him, he told the Tribunal that he is not employed and has no income.
4. Counsel for the Council relied in submissions on the decision of the former Medical Tribunal of New South Wales in Medical Board of NSW -v- JJ Martin Medical Tribunal of NSW No. 40030 of 2009 (Unreported).
5. But that decision has little relevance as the critical compliance conditions that were breached were conditions concerning the practitioner's use and handling of addictive drugs, attendance for thrice weekly urine drug tests UDT and non-prescribing for himself. In addition, it appears from the decision that there had been no suspension prior to the decision to exclude him from applying for re-registration for another four (4) months after the decision.
6. 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.
[4]
Relevance/Irrelevance
The practitioner was not legally represented in these proceedings or in the preparation for the hearing. At the hearing he raised some particular arguments that were irrelevant, but he did not appear to understand why that was so. Among other things, he submitted to the Tribunal that the decision of the section 150 delegates of the Medical Council to suspend him was "unfair" because he had, apart from the months of December 2016 and January 2017, complied with the requirement for attendance at Continuing Medical Education. And there was a "delay" of 7 months between his contravention in December 2016 and the decision to suspend him in July 2017
He also argued that he did not attend courses in those months because there were none available. However, his own evidence established that there were other courses available and evidence from the Council also established that there were courses available in those months.
Given the provisions of the legislation, these submissions were not relevant to the issue of whether his registration would be cancelled.
But in making the decision as to the period during which he cannot apply for re-registration, the Tribunal took into account issues of prejudice to the practitioner in relation to recency of practice provisions and the need to ensure that the outcome also reflected the seriousness of contraventions of critical compliance conditions.
[5]
Costs
The applicant Council has been wholly successful in its application for disqualification. The practitioner's opposition to the application had no merit given that he admitted that he had breached a critical compliance condition in two months.
Accordingly the application of the Council that the practitioner pay the Council's costs of these proceedings was granted.
[6]
Orders
1. The respondent practitioner's registration as a medical practitioner is cancelled.
2. The respondent may not apply for review of the decision until after 11 January 2018.
3. The respondent must pay the costs of the Medical Council of or incidental to these proceedings as agreed or assessed.
[7]
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
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Decision last updated: 05 January 2018