Singh v Medical Council of NSW [2015] NSWCATOD 28 | Case summary

The evidentiary background

The following narration is taken from the evidentiary material which was admitted for the purpose of these proceedings. The appellant was born on 5 November 1946. He graduated in medicine from Glasgow University in 1975 and worked there as a medical practitioner before emigrating to Australia in 1977. After working as a registrar and general practitioner in Queensland he moved to Sydney in 1981 and obtained registration as a medical practitioner in New South Wales. He has worked since then as a general practitioner in New South Wales until his registration was suspended on 30 May 2014.
For present purposes, the appellant first came to the attention of relevant authorities in 2002. The Pharmaceutical Services Branch made allegations to the then Medical Board of NSW concerning inappropriate prescribing of Schedule 8 drugs. An enquiry was convened under section 66 of the former Medical Practice Act. The delegates concluded that the appellant "had grossly over-prescribed a Schedule 8 drug without proper authority and without appropriate clinical justification and had failed to keep a proper drug register." They imposed practice conditions including a prohibition on dealing with Schedule 8 drugs, a requirement to work only in a group practice when another registered medical practitioner was on site, and to undertake level 2 supervision. These conditions were varied following a further review conducted on 25 June 2003. The delegates of the Board noted with concern that the appellant had breached the condition concerning the prescription of Schedule 8 drugs on 15 and September 2002. Nevertheless, in view of very satisfactory compliance with the supervision conditions the delegates determined to allow the appellant to meet with his supervisor on a less regular basis. In all other respects the practice conditions were continued.
Complaints concerning the inappropriate prescription of Schedule 8 drugs were referred to a Medical Tribunal which published reasons for determination on 13 February 2006. In dealing with the circumstances surrounding the treatment of one patient the Tribunal said that the conduct of the appellant "demonstrated a lack of responsible medical judgement and, in the firm opinion of the tribunal, he was acting unethically and in clear breach of his obligations as a medical practitioner. The most charitable description which could be applied to the practitioner is that he proved to be a totally unimpressive witness. He was evasive and persistently avoided answering questions which were capable of a simple and direct response." The Tribunal found accounts of evidentiary matters given by the applicant to be "completely incredible."
The Tribunal found the complaints made out and that the conduct of the appellant constituted professional misconduct. In discussing what orders should be made the Tribunal noted that his "misconduct was blatant. This is not the case of a single fall from grace but of repeated transgressions." The Tribunal said that he had demonstrated a lack of insight in the course of his evidence. The appellant was reprimanded and fined $26,000. Practice conditions were imposed which were in similar terms to those previously existing. The Board was directed to carry out a professional performance assessment of the appellant.
This assessment was conducted on 10 August 2006. Although the assessors noted some matters of inadequacy, the assessors concluded that his performance overall was satisfactory.
In 2009 the appellant made application to the Board to have his practice conditions removed. An enquiry was convened by delegates of the Board which issued a decision on 22 June 2009. In their decision the delegates noted that the Board had received no supervision reports from the appellant's nominated supervisor for 17 months up until October 2007. That supervisor withdrew in the following month. The appellant was then informed that he was in breach of his conditions and nominated a new supervisor who was approved by the Board on 3 March 2008. Reports of that supervisor were not received on time with the effect that the appellant remained in breach. On 8 July 2008 the Board resolved to refer a complaint to the Tribunal if there was further non-compliance. Following this, in May 2009 the appellant nominated another supervisor who provided one report. The appellant told the delegates, when asked about the lack of supervision reports, that he had written to the Board about supervision in September and December 2008 and in January 2009. The Board did not receive that correspondence.
The delegates further noted that in February 2009 the appellant had advised the Board that he had been visiting a nursing home for about three years. This was in breach of a condition that he practice with another practitioner always on site.
The appellant informed the delegates that the condition requiring supervision had created a lot of problems for him because the supervisors were very busy and he did not want to annoy them. He thought that he no longer needed supervision after a period of seven years. The delegates pointed out to him that he had failed to comply with these conditions for a significant period of time and that only a few supervision reports had been received in the last few years.
In their written decision the delegates pointed out that the problems that the appellant had had in securing supervisors and in ensuring the regularity of their reports did not absolve him from his responsibilities under the conditions and that he was in breach of those conditions. They were concerned not only about the breach but that the appellant seemed to lack insight into the need to comply. They were even more concerned by the admission of the appellant that he had breached his condition by attending the nursing home. The appellant had argued that attendance at the nursing home had been arranged through the practice at which he worked, and he thought that this arrangement complied with his conditions. The delegates commented that even though the appellant may have been well-intentioned in attending to patients at the nursing home, his conduct had also demonstrated "a lack of insight and understanding of what the condition actually means."
Even though the delegates were impressed by a number of references and one glowing report from the current supervisor, they determined to retain the current conditions.
A reading of the decision of these delegates would have left the appellant in no doubt concerning the necessity to strictly comply with the practice conditions imposed upon him, and particularly in terms of supervision, and as to the manner in which those conditions operated.
A further performance assessment was carried out on 10 November 2009 following a complaint made to the Board concerning the treatment by the appellant of a patient. The assessors published a report of their findings on 12 February 2010. The assessors observed consultations conducted by the appellant with eight patients. They noted that whilst the appellant was pleasant, all his consultations were rushed and extremely brief, with patients given little opportunity to present their symptoms and discuss their concerns. They thought that the appellant's listening skills were poor and at times he talked over his patients. His history taking "was consistently inadequate and examinations incomplete." Furthermore the appellant had failed to address associated features of a straightforward presenting problem and to explore deeper clinical issues. The assessors thought that this might cause him to overlook underlying pathology. The appellant "was not observed to practice preventative medicine." Overall the assessors said that the appellant spent too little time with each patient and failed to engage them in the management of their health. They also noted that the appellant did not wash his hands after examining any of the patients. In oral evidence before us the appellant said that he only washed his hands after examining the abdomen of a patient. It was pointed out to him that he had conducted an abdominal examination on one of the eight patients. He then said that one of the assessors was sitting in a position between him and the wash basin and he did not feel that he could move past the assessor to wash his hands. We do not find his evidence convincing.
The assessors selected 10 of his clinical records on a random basis. They noted that front sheets were not completed, only two had past history and family history recorded, allergies were recorded in 7 out of 10, immunisations were not recorded in 9 out of 10, and although current medications were obvious there were no noted management plans. Furthermore the history of presenting illness was scant and there was little evidence of physical examination. In one selected record, there was no record of the visit of the patient. Overall in one half of the records "it was felt the records lacked sufficient information for another doctor to take over the care of the patient."
The assessors took the appellant through four clinical practice scenarios. After considering the appellant's explanation, the assessors concluded that he "may have just enough knowledge to provide episodic care. However his "quick fix" attitude could result in poor outcomes and he is not systematic or thorough enough to provide holistic care for patients who rely on him as their primary care doctor."
The assessors concluded that the professional performance of the appellant was unsatisfactory and below the standard reasonably expected of a practitioner of an equivalent level of training or experience in the areas of basic clinical skills, patient management skills, interaction and communication with patients, and in his medical records. They recommended that a Performance Review Panel be convened to review his professional performance.
That review was delayed when the appellant suffered a stroke in May 2010. The appellant returned to work part-time in August 2010, and commenced full-time work the following month. However he cut back his working hours. The Board received a monthly supervision report from a supervisor on 22 September 2010 indicating that the appellant was a very compassionate and a caring doctor. However that supervisor withdrew on 13 October 2010. The appellant telephoned the Medical Council of NSW on 21 October 2010 asking whether he still needed supervision. A letter was forwarded to him requiring, inter-alia, supervision in accordance with his conditions.
The Performance Review Panel conducted proceedings on 30 November 2010 and issued a report on 17 December 2010. Notwithstanding claims by the appellant that he had modified his practice in response to the criticisms of the assessors, the Panel determined that the professional performance of the appellant was at that time unsatisfactory and imposed practice conditions designed to address this. These conditions, in summary, modified the supervision of the appellant, by requiring that he spend a total of six sessions as an observer with an experienced general practitioner and to provide certain reports consequent thereon. This became known as condition 10. After completing the observership the appellant was required to meet for at least three hours on a monthly basis at his own practice premises with a supervisor under level 3 supervision. This was to enable the supervisor to observe the appellant's patient consultations. Certain reports were to be prepared covering a number of nominated subjects. This became known as condition 11.
There then followed correspondence and communications between the Council and the appellant and a number of practitioners nominated by him from time to time as supervisors. As at June 2012 no person had agreed to become and had been appointed as supervisor. This culminated in the institution of proceedings under section 150 of the National Law conducted by delegates of the Council to determine whether the appellant should be suspended from practice because of the failure to comply with practice conditions, essentially concerning supervision. The delegates issued a decision on 30 August 2012 following a hearing on 31 July 2012.
A great deal of time was taken in those proceedings dealing with the inability of the appellant to find a suitable medical practitioner to act as a supervisor. It seemed that he had approached many practitioners to fulfil this role, but with no success. Furthermore, the appellant asserted that there was now no need for supervision, especially as he had made changes to his method of practice. The delegates were concerned that the appellant had been practising for some 21 months without supervision. They gave "very serious consideration" as to whether he should be suspended but "determined instead that he should cease practising until he is compliant with his conditions." Additional practice conditions were imposed in effect, precluding the appellant from practising until condition 10 had been complied with and requiring thereafter the nomination of a supervisor, and precluding the appellant from practising until condition 11 had been complied with.
By letter dated 22 September 2012 the appellant informed the Council that he had complied with condition 10 by observing Dr H Pope in his practice. Following receipt of confirmatory information from Dr Pope, the Council removed condition 10 from the appellant's registration on 12 April 2013. Thereafter the appellant underwent a total knee replacement and was incapacitated for practice from some time.
There is in evidence further correspondence and communications between the Council and the appellant and Dr Pope concerning supervision purportedly undertaken by Dr Pope in accordance with condition 11. The substance of the information available to us is to the following effect. The appellant said that on many occasions he attended the surgery following on an understanding with Dr Pope, who was working in the same practice, that he would make contact with him so that Dr Pope could observe consultations that the appellant conducted with his patients. However, invariably the appellant was unable to make contact with Dr Pope, even using the services of the receptionist. This was notwithstanding that the appellant could tell from the internal computer system that Dr Pope had logged in and was with patients of his own. Brief information made available to the Council by Dr Pope by way of supervisor's reports and oral communications to the Council was to the effect that the appellant had not made any contact with him, although this was modified in some communications to concede that Dr Pope may have been busy at the time with his own patients. There is conflicting advice from Dr Pope as to whether he actually observed the appellant consulting with patients on two or three occasions. Supervision reports to this effect do not reflect in substance any observation of any physical consultation. The appellant maintained that Dr Pope did in fact physically observe consultations with patients on three occasions.
We find the evidence about the supervision of the appellant by Dr Pope unsatisfactory. In undertaking to become a supervisor, the medical practitioner concerned assumes obligations to the Council which must be taken seriously. We should stress that Dr Pope was not called to give evidence in the proceedings and we do not have any concluded view about whether he has discharged his obligations in a satisfactory manner. Suffice to say that prima facie there are inconsistencies within the documentation prepared by Dr Pope, and inconsistencies between the information furnished by Dr Pope and the evidence of the appellant.
The upshot, however, is that the appellant has been unable to comply with practice condition 11 and has been non-compliant for a very long time.
On 14 March 2014 Dr Pope advised the Council and the appellant that he would no longer continue to supervise the appellant. At that stage he forwarded a number of reports which he had failed to send previously. On 22 April 2014 the Council resolved to convene further section 150 proceedings. Delegates of the Council met with the appellant on 30 May 2014 and published reasons for decision on 15 July 2014. It is from that decision that this appeal is brought. The appellant confirmed that he had been practising without any supervision since 2 December 2013. The delegates determined to suspend the appellant's registration with effect that date.
On 4 December,2014, whilst the appellant remained suspended, Dr Hussain Ahmed wrote to the Council informing it that he had read the appellant's supervision conditions, the Council's supervision policy and was willing to be the appellant's supervisor. Of course, the continuing suspension of the appellant's registration has frustrated this process.
Before setting out our reasons for dismissing the appeal we make the following observations concerning the legislative framework which informs our decision.

Consideration

The documentary material which we have considered, and which we have summarised above is voluminous. The appellant gave oral evidence and was cross-examined. Most of his evidence was directed to his difficulties in securing an appropriate person to act as a supervisor, and his consequent frustration. However, an important and significant portion of the appellant's evidence confirms that for a long period he has continued to practice knowing that in doing so he was in breach of his practice conditions because he had not secured appropriate supervision.
The essence of the submissions made on behalf of the appellant in support of the appeal was directed to the now impossibility of the appellant complying with the requirements of condition 11. This is because he is unable to practice under supervision whilst the suspension remains in place. It was said that the decision to suspend was punitive in the circumstances and there was no question of the protection of the public. Furthermore, it was asserted that it could not otherwise be in the public interest to suspend the appellant, this seemingly being the basis upon which his current suspension had been ordered. It was submitted that in the circumstances the appellant should be given an opportunity to comply with condition 11 under the supervision of Dr Hussain Ahmed. This would allow him to continue to practice until such time as any formal proceedings were taken before the Tribunal based on the failure to comply with condition 11.
In our opinion it is necessary to start from the premise that the practice conditions were initially imposed in 2006 by a decision of the Medical Tribunal for reasons which we are required to accept, but which in any event are on their face unassailable. The appellant has subsequently been subject to practice conditions including supervision for a long time. Those conditions must have been imposed for the protection of the public and in the public interest. They have been continued as varied from time to time pursuant to statutory provisions, and, again, the reasons for their continuation and variation are unassailable and are accepted by us. The nature and extent of such supervision as has occurred is minuscule when viewed in the context of the overall period of time during which supervision has been required.
On one view, it might be said that the appellant was naive and, partly, ignorant in continuing to practice in breach of his conditions. We accept that the appellant lacked insight from time to time about the basis for and the extent of the various allegations which have been levelled against him arising out of his practice of medicine. However, it must be clear from all of the occasions in which written reasons for decision have been published, and oral communications have been made to him that the appellant could have been in no doubt concerning the nature and effect of the conditions which had been imposed on him. He has contumeliously disregarded his obligations.
It is prima facie for the protection of the public that a medical practitioner upon whom practice conditions have been imposed should practice medicine in compliance with those conditions. This is especially so where a condition is directed to supervision to ensure that previous shortcomings and failures in the appellant's practice of medicine which are serious in nature can be avoided. They extend to his competency to practice medicine safely. Likewise, it is in the public interest that a medical practitioner observe lawful requirements imposed upon him concerning his practice of medicine. The totality of the practice of medicine has a statutory basis, and there are many legislative provisions which impact upon such practice. The regime dealing with certain drugs is an obvious example.
Described in the most basic and simplest form, our task is to determine whether the appellant should have been given one last chance to undertake supervision first imposed upon him in 2002. As was submitted on behalf of the respondent, the appellant has been given a number of lifelines over the years to permit him to continue in practice. Our impression of all of the evidence available to us, including the evidence of the appellant, is that he has been extended a great deal of leniency over many years whilst failing to comply with practice conditions lawfully imposed upon him for good reason. To allow him to continue to practice, albeit under supervision, in all the circumstances would be contrary to the necessary protection of the public and would not be in the public interest. Furthermore, it would create a blatant example, of which any medical practitioner could take advantage, of a situation where this appellant has basically continued to practice thumbing his nose at the relevant authorities. Such a situation is not inimical to the appropriate regulation of medical practitioners in accordance with the statutory regime established by the legislature and is not in the public interest. It is for these reasons that we determined to dismiss the appeal.

Singh v Medical Council of NSW

At a glance

Court

Decision date

Source

Judgment (5 paragraphs)

Parties

Cited By (2)