Sutherland v Medical Council of NSW

Legal principles relevant to the stay application

1. Under s 3A of the National Law: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
2. Under s 3(c), one of the guiding principles of the national registration and accreditation scheme is that "restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality." In Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [43] -[68], the Tribunal set out the legal principles relevant to a stay application in this context. The salient principles can be summarised as follows: 1. the power to grant or refuse a stay is discretionary; 2. the onus of establishing a proper basis for the stay is on the applicant for the stay; 3. the Tribunal should assess the strength of the proposed appeal - in particular whether the appellant has an arguable case; 4. a stay may be granted on terms that are fair to all parties - this may involve weighing the balance of convenience and the competing rights of the parties. Relevant factors include: whether the appeal will be rendered nugatory if a stay is not granted, the prejudice to the parties, and whether the hearing can be expedited.
3. At [43] of Segal, the Tribunal mentioned the principle that "a person who has obtained a judgment is entitled to the benefit of that judgment". I agree with Dr Sutherland that that is not a significant factor to be taken into account in stay applications from decisions of the Medical Council under s 150 of the National Law. These are not party/party disputes where one party is entitled to the benefit of a judgment. Rather, the National Law creates a regulatory scheme where the health and safety of the public is the paramount consideration.
4. The evidence on which Dr Sutherland relied was his statement dated 10 July 2020. The Council relied on their written reasons for decision dated 17 June 2020 and Dr Walker's expert report dated 28 July 2020. Neither party applied to cross-examine each other's witnesses in these proceedings.

Issues

1. Broadly speaking, the issues for determination are: 1. Can the Tribunal grant the stay subject to Dr Sutherland's undertaking to consent to certain conditions? 2. Has Dr Sutherland discharged the onus of establishing a proper basis for the stay?

Can the Tribunal grant the stay subject to Dr Sutherland's undertaking?

1. In Segal v Medical Council of New South Wales [2020] NSWCATOD 86 at [67], the Tribunal expressed a preliminary view that the Tribunal does not have power to impose conditions on a person's registration when determining a stay application. We do not have to determine that issue in these proceedings because Dr Sutherland did not apply for the Tribunal to impose conditions on his registration. Rather, he seeks an order granting the stay on the basis that he will give an undertaking to consent to the Council imposing a condition that he not prescribe Schedule 4 App D or Schedule 8 drugs.
2. The Council submitted that the legislative scheme does not allow the Tribunal to grant a stay on that basis. The only way of achieving that outcome is for Dr Sutherland to apply under s 150A of the National Law for a review of the Council's suspension decision. Section 150A(1) provides that: A registered health practitioner or student may apply to a Council for the review of a decision of the Council under section 150 to - (a) suspend the practitioner's or student's registration; or (b) impose conditions on the practitioner's or student's registration or alter conditions imposed on the practitioner's or student's registration
3. According to the Council, the legislative scheme recognises that the Council is best placed to impose conditions on a practitioner's registration pending an appeal. Dr Sutherland submitted that there is no need for a s 150A review before Council can impose conditions with the consent of the practitioner.
4. In these reasons, we are concerned with the Tribunal's power to grant or refuse a stay, not with the Council's powers under s 150A. Under s 165L(2) of the National Law the Tribunal "may, . . . . make an order staying the decision of the Council". The decision of the Council was to suspend Dr Sutherland's registration. It is that decision that the Tribunal has power to stay. The Tribunal does not have power to direct the Council to impose conditions on receiving an undertaking from Dr Sutherland that he consents to the conditions being imposed.
5. The remaining issue is whether we should grant or refuse the stay application.

Has Dr Sutherland discharged the onus of establishing a proper basis for the stay?

Identification of issues

1. The Council reviewed Dr Sutherland's prescribing practices in relation to opiates and benzodiazepines, the state of his medical records and his patient management. Based on those and other factors, the Council concluded that his practice poses a risk to the health and safety of the public. The Council suspended Dr Sutherland's registration with effect from 13 May 2020.
2. The Council identified the issues as being whether Dr Sutherland poses a risk to the safety or health of the public that warrants action being taken. The subsidiary questions were identified as whether Dr Sutherland has the necessary standard of practise, knowledge and understanding to ensure the public's health and safety is protected. If the Council decided that he did not have these attributes, the question for them was whether it is appropriate that Dr Sutherland's registration be suspended.
3. Council had before it a "'Council Based Assessment" of Dr Sutherland's practice conducted by two Assessors on behalf of the Council. That assessment involved reviewing the complaint made on behalf of Patient A and assessing Dr Sutherland's performance in the areas of patient management, medical records and prescribing.
4. The Council's overall conclusion was that Dr Sutherland's current practice poses a risk to the health and safety of the public.

Prescribing

1. The main complaint related to excessive prescribing of opiates and benzodiazepines to a woman we will call Patient A. Except for a brief time, Dr Sutherland prescribed Endone for Patient A from 2015 until March 2019. He initially prescribed 5 mg three times a day for pain. By late 2018, Dr Sutherland was prescribing 10 tablets of Endone with 5 tables of Serapax (oxycodone) 30 mg and 5 tablets of Mogodon (mitrazepam) 5 mg every day. Despite attempting to reduce the amount of Endone Patient A was being prescribed, her anxiety increased. The Council concluded that, based on information she provided at a visit on 4 March 2019, Dr Sutherland should have realised that Patient A had taken at least 16 tablets of Endone and 13 tablets of Serapax in the previous 48 hours.
2. The Council found that Dr Sutherland inappropriately prescribed opiates and benzodiazepines and failed to call the Prescription Shoppers line or refer Patient A to a pain specialist. Council concluded that Dr Sutherland's prescribing to Patient A falls below the standard expected of a practitioner of Dr Sutherland's training and experience. They added that they considered Dr Sutherland's prescribing for Patient A to have been "reckless".
3. Dr Sutherland was remorseful and accepted that his prescribing and management of Patient A was not appropriate. Dr Sutherland told the Assessors that it did not occur to him that Patient A may be drug dependent or a doctor shopper.
4. The Assessors also reviewed Dr Sutherland's prescribing for ten patients between 26 April 2019 and 30 October 2019. Dr Sutherland prescribed high levels of Schedule 4 Appendix D and Schedule 8 drugs, even to patients who were not on an OTP. The Assessors concluded that Dr Sutherland's prescribing practices put many patients at significant risk of dependence and overdose. He had no clear plan to reduce doses or refer patients to a pain specialist. The Assessors described Dr Sutherland's overall patient management, which included his prescribing practices, as unsatisfactory. A review of his medical records written after the complaint demonstrated that he had continued to prescribe inappropriately. The Council agreed with that assessment and expressed serious concern for the welfare of Dr Sutherland's OTP and other patients.
5. Dr Sutherland accepted the Council's criticism of his prescribing. He felt at the time that he had put in place sufficient mechanisms to limit harm and risk. He said he has successfully completed an education course in relation to prescribing provided by his insurer, Avant, and had been integrating those learnings into his practice.

Medical record keeping

1. The Assessors reviewed ten medical records. All lacked significant clinical assessment, did not contain appropriate health summaries and had little information about social, family and drug and alcohol history. The Council concluded that Dr Sutherland's records did not contain sufficient information to allow another medical practitioner to continue to care for those patients. His performance in the area of medical records was unsatisfactory.
2. Dr Sutherland accepted 'unreservedly' that his records are too brief and do not contain the required information. He also accepted the Council's criticism that his notes do not include social and family history. He said he has successfully completed an education course in medical record keeping provided by his insurer, Avant. He claims to have applied those principles to his practice. He acknowledges that 'longer and more detailed medical records are essential for patient care'.

Opioid treatment program authority

1. The Council found it difficult to understand why Dr Sutherland did not apply for an Authority from NSW Health to treat his OTP patients until after he received the complaint from Patient A. Dr Sutherland submitted that the Council's comments reveal a misunderstanding of his practice. He had applied for an OTP authority in respect of two patients who were on long term opioids. No OTP patients were prescribed opioids until the authority had been obtained.

Management of patients

1. Council recorded that Dr Sutherland told them that there had been no changes in his practice since the complaint. He says that is not correct. Following the complaint, he reviewed his files and looked critically at his prescribing. In some cases, he reduced dosing of Valium to less frequent dosing and ceased prescribing Valium. His current practice is to 'most likely refuse' a request from a patient to prescribe benzodiazepines or opioids.

Ground of legal unreasonableness

1. Dr Sutherland's appeal with respect to a point of law is the so-called legal unreasonableness ground. In BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94 at [129] - [138] Bromwich J (White J agreeing), summarised the relevant principles relying in particular on the High Court authorities of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [26] - [30] and Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [11], [52], [135]. In formulating the legal unreasonableness ground of appeal, Dr Sutherland did not identify a specific jurisdictional error. Rather, he focused on what Bromwich J called an "outcome focused" conclusion. As I understand it, his appeal on a point of law is on the ground that the decision to suspend his registration is outside the range of lawful outcomes.
2. As Bromwich J stated at [134], there is an area of "decisional freedom" where "reasonable minds might differ as to the correct decision or outcome". It is only if the outcome falls outside the area of decisional freedom that it can be said to be legally unreasonable. Bromwich J went on to state that "in order to identify or define the width and boundaries of this area of decisional freedom and the bounds of legal reasonableness, it is necessary to construe the provisions of the statute which confer the relevant power." In this case, that provision is s 150 of the National Law.

Construing the statute

1. Under s 150 of the National Law, Council must either suspend a practitioner's registration or impose conditions of the practitioner's registration in certain circumstances. Those circumstances are if the Council "is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest".
2. In his ground of appeal on a point of law, Dr Sutherland emphasised the power to impose conditions. At page 10 of the reasons, the Council stated that: In his submissions, Dr Sutherland proposed conditions that could be placed on his registration. We formed the view those conditions would not satisfy the Council public health and safety would be protected.
3. According to Dr Sutherland, this passage does not disclose any reasons for concluding that removing Dr Sutherland's ability to prescribe Sch 8 and Sch 4D medications would not protect the public. It was irrational of the Council to conclude that the conditions Dr Sutherland was proposing would not overcome any risk to public safety. Put another way, the Council asked the wrong question. It should have considered whether, if the non-prescribing conditions were imposed, and considering the insight Dr Sutherland showed and the further education he had undertaken, the health and safety of the public could be protected. Furthermore, the Council did not consider the possibility of a supervision condition. The fact that Dr Sutherland did not agree to such a condition should not have prevented the Council from considering whether, if those conditions were imposed, the health and safety of the public could be protected.
4. The way Bromwich J explained the legal unreasonableness ground at [136] captures Dr Sutherland's submission: . . . an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the Court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.

Consideration

1. It is not my role in the context of these proceedings to determine whether Dr Sutherland would succeed on appeal. Rather, it is to assess the strength of the legal unreasonableness ground and, in particular, whether the appellant has an arguable case.
2. One of the guiding principles of the national registration and accreditation scheme is that "restrictions on the practice of a health provision are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.": National Law, s 3(c). Section 150 reflects that principle by giving the Council two options when it "is satisfied it is appropriate . . . for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest". The Council may suspend the practitioner's registration or impose conditions.
3. The following passage at p 9 of the Council's reasons provides some justification for deciding not to impose conditions on Dr Sutherland's registration: Although Dr Sutherland submits he would accept a medical records audit condition and would surrender his Schedule 4D and Schedule 8 prescribing rights, his submission that supervision is neither warranted or necessary reveals his insight into and understanding of his failures is alarmingly limited. The assessment of Dr Sutherland's practice has exposed unsatisfactory performance in every domain.
4. I consider it unlikely that a Tribunal hearing the appeal would conclude that the Council's decision is outside the area of decisional freedom or outside the range of possible lawful outcomes. While the Council has arguably not given comprehensive reasons for rejecting Dr Sutherland's proposal about conditions on his registration, the Council did address that issue. It is likely that a Tribunal hearing the appeal would be able to comprehend from the reasons how the decision was arrived at.
5. Dr Sutherland criticised the Council's decision on several other bases, which are less persuasive. First, Dr Sutherland referred to the following passage: The Medical Council Case Management committee considered the Performance Assessment report on 28 April 2020 and resolved to hold s 150 proceedings on papers to suspend his registrations via a show cause process due to Dr Sutherland's unsatisfactory performance and concerns regarding Dr Sutherland's truthfulness. (My emphasis.)
6. The way this sentence is phrased suggests that the Council had already decided to suspend Dr Sutherland's registration before the s 150 hearing. But that interpretation is not consistent with the fact that Council's written reasons engage with the issue as to whether Dr Sutherland should be suspended. While the phrasing is unfortunate, it does not support the ground of legal unreasonableness.
7. Secondly, the Council referred to previous complaints saying that it rejected the submission that Dr Sutherland's complaint history is not relevant. The Council then referred to two prior complaints one of which alleged that his prescribing was inaccurate and the other that it was inappropriate. Dr Sutherland submitted that the Council did not identify the significance of these complaints. The Council did not mention those complaints anywhere else in the reasons. In our view, while the Council did consider these complaints, it gave them little weight when deciding whether to suspend Dr Sutherland's registration. This submission does not support the ground of legal unreasonableness.
8. having found that the appeal on the ground of legal unreasonableness is weak, we go on to consider the balance of convenience.

Balance of convenience

1. The appeal will not be pointless if a stay is not granted. If he is successful on appeal, Dr Sutherland may be able to resume practice. However, we accept that if a stay is not granted, Dr Sutherland will continue to suffer emotionally and financially. He no longer has an income and is in the process of selling his house. He said that he has found the whole process of dealing with the complaint as 'quite devastating' and has started seeing a psychologist.
2. As to the effect on his patients, Dr Sutherland gave evidence that he is concerned that if he is not able to work, some of his existing patients on opioid treatment programs will have to attend a clinic for dosing rather than a pharmacy. He also says that some patients will be distressed by having to access and adjust to new doctors.
3. Against these factors is the evidence of Dr Martine Walker, a general practitioner with experience and expertise in assessing the actions of a general practitioner against that of similarly trained and experienced peers. Dr Walker's report of 28 July 2020 assessed Dr Sutherland's medical records and prescribing practices using the same information about 10 of his patients as was before the Assessors appointed by the Council. Based on NSW Therapeutic Advisory Group Guidelines published in 2015, Dr Walker had concerns about: the amount of oral morphine equivalent daily dose (OMEDD) Dr Sutherland was prescribing; the length of time opiates had been prescribed; the lack of management within a multi-disciplinary management model and the fact that all opiate patients were also being prescribed benzodiazepines or antipsychotic medications. In summary, she was critical of Dr Sutherland's prescribing and management for the following reasons: 1. 6/10 patients were being prescribed greater than or equal to an OMEDD of 60 mg/day (or in the case of elderly patients greater than or equal to 30 md/day) with only one patient (RC) having been referred for specialist advice and this only after the complaint that triggered Dr Sutherland's PA. 2. All patients prescribed opiates had been prescribed them for more than 90 days. 3. No patients appeared to be being managed within a multidisciplinary management model. 4. All opiate patients were also being prescribed benzodiazepines or antipsychotic medications which exacerbate side effects and risk of dependence.
4. Dr Walker concluded that, as a long term Opiate Treatment Program prescriber, Dr Sutherland should be expected to have superior skills in the recognition and management of drug dependent and drug seeking patients.
5. We appreciate that Dr Walker did not have Dr Sutherland's statement of 10 July 2020 when she prepared her report. In that statement, Dr Sutherland accepts the criticisms made by the Council in their reasons. Specifically, he accepts the criticism of his prescribing but felt, at the time, that he had put in place sufficient mechanisms to limit harm and risk. He goes on to state what those mechanisms were. He added that he has successfully completed an education course in relation to prescribing and integrated those learnings into his practice. He says he knows that he should make more detailed medical records by spending more time with patients in a longer consultation.

Consideration

1. Dr Walker has significant concerns about Dr Sutherland's prescribing, record keeping and patient management practices. Dr Sutherland accepts similar criticisms made by the Council in its reasons for decision and says he has undertaken further education in some of those areas. While he consents to a condition that he not prescribe Sch 8 or 4D drugs, that is not an order we have power to make on the stay application. Balancing Dr Sutherland's financial and emotional distress and the effect on his patients against the evidence of Dr Walker about his past prescribing and other practices, the protection of the health and safety of the public requires that the stay be refused. I have taken into account the principle that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
2. As the legal unreasonableness ground of appeal is weak and the balance of convenience lies with the Council, Dr Sutherland has not established a proper basis for granting the stay.

Costs

1. The Council has been successful in these proceedings and has applied for Dr Sutherland to pay its costs. Clause 13 of Schedule 5D of the National Law gives the Tribunal power to award costs. 13 Tribunal may award costs [NSW] (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 ( Costs ) of the Civil and Administrative Tribunal Act 2013.
2. As the Council has been successful, and there was no disentitling conduct, Dr Sutherland should bear the Council's costs of these proceedings as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Act 2014 (NSW).

Orders 1. The application for a stay of the decision by the Medical Council of NSW to suspend Dr Sutherland's registration as a registered health practitioner is refused. 2. Dr Sutherland is to pay the costs of the Medical Council of NSW as agreed or, failing agreement, as assessed under the Legal Profession Uniform Law Act 2014 (NSW). 3. Pursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW), publication or disclosure of the name or address of any patient of Dr Sutherland is prohibited. Note: A reference to the name of any person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

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: 28 August 2020