Thomas v Medical Council of New South Wales - [2021] NSWCATOD 211 - NSWCATOD 2021 case summary — Zoe

NSWNSWCATOD

Thomas v Medical Council of New South Wales

[2021] NSWCATOD 211

NCAT Occupational|2021-11-12|Before: Dr J, Associate Prof P

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2021-11-12

Before

Dr J, Associate Prof P

Source

Original judgment source is linked above.

Judgment (25 paragraphs)

[1]

cal record reviews; appropriate prescribing practices; patient follow-up; clinical outcomes; and recent developments in clinical practice. (ii) Within 1 month of the completion of the observation sessions the practitioner is to provide a report to the Medical Council of NSW detailing the dates of attendance, what he learnt and how this will affect his practice. (iii) Once the practitioner's report is written and before it is returned to the Medical Council of NSW, he is to ensure that the supervisor reviews the report and that the supervisor provides his or her own report to the Medical Council of NSW in which he or she comments on the content and authenticity of the practitioner's report, confirming the dates of attendance and setting out any concerns or other observations. The supervisor's report is to be provided to the Medical Council of NSW within 2 months of the completion of the observation period. (iv) The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports. (j) To forward evidence to the Medical Council of NSW within 14 days of recommencing practice, that he has provided a copy of the decision upon which these conditions are based to the principal of the practice. (k) Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of the decision upon which these conditions are based to the principal of the practice. (l) To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. (m) To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. (n) To complete within 1 month of the date of this decision chapter one, two and three of the e-learning course 'Medical records' organised by AVANT Mutual Group. (i) Within seven (7) days of completing the abovementioned course, the practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course. (ii) To bear responsibility for any costs incurred in meeting this condition. (iii) In the event that the course is unavailable, the practitioner must propose to the Medical Council of NSW for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 1 month from the date of this decision. (o) To complete within 1 month of the date of this decision chapter one and two of the e-learning course 'Prescribing principles' organised by AVANT Mutual Group. (i) Within seven (7) days of completing the abovementioned course, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the course. (ii) To bear responsibility for any costs incurred in meeting this condition. (iii) In the event that the course is unavailable, the practitioner must propose to the Medical Council of NSW for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 1 month from the date of this decision. (p) To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: (i) The audit is to be held within 6 months from the date he recommences medical practice and subsequently as required by the Medical Council of NSW. (ii) The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements, and compliance with conditions. (iii) To authorise the auditor(s) to provide the Medical Council of NSW with a report on their findings. (iv) To meet all costs associated with the audit(s) and any subsequent reports. (q) The practitioner is to provide his employer(s) and supervisor with a copy of these conditions of his registration. Health Conditions (r) To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: (i) is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: (A) Failure to attend for treatment; (B) Termination of treatment; or (C) A significant change in health status (including a significant temporary change). (ii) Must provide the Medical Council of NSW with the professional details of the treating practitioner. (iii) To authorise the Medical Council of NSW to forward copies of the decision upon which these conditions are based and any other information relevant to his health and treatment to his treating psychologist. (3) The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). (4) Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. (5) Mr Thomas is to pay the Medical Council of NSW's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW). Catchwords: HEALTH - Professional registration and discipline - Registration - medical practitioner's application for reinstatement to register Legislation Cited: Health Practitioner Regulation National Law (NSW) Poisons and Therapeutic Goods Act 1966 (NSW) Poisons and Therapeutic Goods Regulation 2008 (NSW) Cases Cited: Health Care Complaints Commission v Thomas [2015] NSWCATOD 60 Jan v Health Care Complaints Commission [2021] NSWSC 350 Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Category: Principal judgment Parties: Jawahar Thomas (Applicant) Medical Council of New South Wales (Respondent) Representation: Counsel: R Mathur (Applicant) A Petrie (Respondent)

[3]

Overview

Until 24 June 2015, Mr Thomas was a registered medical practitioner. On that date, the Tribunal cancelled his registration and prevented him from re-applying for registration for 12 months: Health Care Complaints Commission v Thomas [2015] NSWCATOD 60 (the Tribunal's 2015 decision). He now applies for the Tribunal to re-instate his registration: Health Practitioner Regulation National Law (NSW) (National Law), s 163B. In the 2015 decision, the Tribunal found that Mr Thomas had prescribed various so-called Schedule 8 and Schedule 4D drugs, including oxycodone, fentanyl and morphine, to seven patients who were, or had been, drug dependent. One was an employee and a second was a patient who Mr Thomas also employed as a casual gardener. Another patient was a doctor and personal friend. The Tribunal also found that Mr Thomas had failed to keep proper medical records.
When the Tribunal cancels a medical practitioner's registration, that person cannot apply to the relevant National Board for re-registration unless the Tribunal makes a reinstatement order: National Law, s 149E. In July 2016, just over a year after the Tribunal's 2015 decision, Mr Thomas applied for a reinstatement order. That hearing did not go ahead, but some of the evidence on which he relied in the previous application was also filed in support of the current application.
The issue, expressed broadly, is whether the Tribunal's decision to cancel Mr Thomas's registration is still appropriate as at the date of the hearing: National Law, s 163B and s 163C. Whether he is currently a fit and proper person to practice is relevant to the question of "appropriateness". Mr Thomas must prove that he can be trusted to practise in a way that conforms to the professional standards expected of medical practitioners.
Mr Thomas says he has sufficiently addressed the issues identified in the Tribunal's 2015 decision. Since then, Mr Thomas says he has had time to consider the significance of the mistakes he made and to understand why he made them. He has divided his mistakes into three categories: prescribing practices; boundary violations; and record keeping. Mr Thomas says he has addressed the deficiencies identified by the Tribunal through various means including professional education and policy changes. Despite some health issues and not having practised for over five years, Mr Thomas wants to practise again.
The Medical Council of NSW (the Council), neither consents to nor opposes Mr Thomas's reinstatement application. If the application is granted, the Council has put forward several conditions that it says should be attached to his registration if the National Board re-registers him. Mr Thomas consents to those conditions.
We are satisfied that, as at the dates of the hearing on 11-12 November 2021, the Tribunal's 2015 cancellation order is no longer appropriate. We make a reinstatement order and impose conditions to which Mr Thomas's registration is to be subject. With the exception of the number of hours Mr Thomas may work, the number of patients he may treat in a day and the kinds of practices in which he may work, we agree that the conditions proposed by the Council are appropriate.

[5]

Statutory provisions

Section 163A of the National Law sets out a person's right of review. Mr Thomas may apply to the Tribunal for a review of the Tribunal's 2015 decision as it is a decision that his registration be cancelled: National Law, s 163A(4). 163A Right of review [NSW] (1) A person may apply to the appropriate review body for a review of - (a) a prohibition order made in relation to the person; or (b) a relevant order made in relation to the person. (2) A person may also apply to the appropriate review body for a review of an order made under this Division. (3) An application for review of an order may not be made - (a) while the terms of the order provide that an application for review may not be made; or (b) while an appeal to the Tribunal or the Supreme Court in respect of the same matter is pending. (4) In this section - decision-making entity means the following - (a) a Committee; (b) a Performance Review Panel; (b1) a Council, but only in relation to orders made under this Division, Subdivision 5 of Division 3 or section 155C (1) (f); (c) an existing health practitioner tribunal (within the meaning of Part 2 of Schedule 1 to the Civil and Administrative Tribunal Act 2013) or the Chairperson or Deputy Chairperson of such a tribunal; (d) the Tribunal or the Tribunal List Manager; (e) the Supreme Court; (f) a review body in New South Wales, when deciding a matter under section 127A. relevant order, in relation to a person, means any of the following orders made by a decision-making entity - (a) an order that the person's registration as a registered health practitioner or student is suspended; or (b) an order that the person's registration be cancelled or that the person is disqualified from being registered in a particular health profession; or (c) an order that conditions be imposed on the person's registration in a health profession.
The powers of the Tribunal on review are listed in s 163B. Mr Thomas is applying for the Tribunal to make a reinstatement order under s 163B(1)(c). 163B Powers on review [NSW] (1) The appropriate review body must conduct an inquiry into an application for review and may then do any of the following - (a) dismiss the application; (b) make an order ending or shortening the period of the suspension concerned; (c) make a reinstatement order; (d) make an order altering or removing the conditions to which the person's registration is subject, including by imposing new conditions; (e) make an order - (i) ending or shortening the period of a prohibition order; or (ii) altering or removing the conditions to which the person is subject under a prohibition order, including by imposing new conditions. (2) If the appropriate review body makes an order altering a critical compliance condition, or removing a critical compliance condition and imposing a new condition, the altered condition or new condition is a critical compliance condition unless the body orders otherwise. (3) A reinstatement order is an order that the person may be registered in accordance with Part 7 if - (a) the person makes an application for registration to the National Board; and (b) the relevant National Board decides to register the person. (3A) Any condition imposed on a person's registration by the National Board under Part 7 applies but only to the extent that it is not inconsistent with conditions imposed or altered by the appropriate review body under subsection (4). (4) The appropriate review body may also impose conditions on the person's registration or alter the conditions to which the person's registration is to be subject under the reinstatement order. (5) The order on a review under this section may also provide that the order is not to be reviewed under this Division until after a specified time.
Section 163C sets out the nature of the Tribunal's inquiry. The review is not a review of the decision to make the order, or any findings the Tribunal made: National Law, s 163C(2). The Tribunal's powers on review include dismissing the application or making a reinstatement order. A reinstatement order is an order that the person may be registered if the person applies to the National Board and the National Board decides to register the person: National Law, s 163B(3). Such an order may be made subject to conditions: National Law, s 163B(4) and Jan v Health Care Complaints Commission [2021] NSWSC 350 at [64] . 163C Inquiry into review application [NSW] (1) A review under this Division is a review to determine the appropriateness, at the time of the review, of the order concerned. (2) The review is not to review the decision to make the order, or any findings made in connection with the making of that decision. (3) In addition to any other matter the review may take into account, the review must take into account any complaint made or notified to a Council or a National Board, or a former Board under a repealed Act, about the person, whether the complaint was made or notified before or after the making of the order that is the subject of the review and whether or not the complaint was referred under Subdivision 2 of Division 3 or any other action was taken on the complaint. (4) A Council and the Commission are entitled to appear at any inquiry conducted by the Tribunal under this Division.

[6]

Interpretation of statutory provisions

In Zepinic v Health Care Complaints Commission [2020] NSWSC 13 at [85], Adams J cited the Tribunal's decision Zepinic v Health Care Complaints Commission (No 2) [2018] NSWCATOD 16 at [7] and [8] with approval. We set out those passages in full below. In summary, among the most significant principles are that: the paramount consideration is the protection of the health and safety of the public; the Tribunal's opinion as to whether an individual is a fit and proper person will inform its consideration of the current "appropriateness" of the Tribunal's cancellation orders; and the person must affirmatively prove that he or she can be trusted to perform in a way that conforms to the professional standards expected of health practitioners. "85. The relevant principles guiding an application for reinstatement at [7]-[8] were correctly stated in the decision of NCAT as follows: '[7] The approach to be adopted in considering an application for a reinstatement order under the National Law has been set out in several decisions of this Tribunal and the former Tribunals. In Haber v Health Care Complaints Commission [2018] NSWCATOD 16 the Tribunal stated the principles in the following terms: 12. We accept as correct the Commission's submissions as to the relevant principles to be applied. These include: (1) The Tribunal must have regard to the objectives and guiding principles of the National Law (see s 3). These include the objective of the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (s 3(2)(a)); (2) The paramount consideration is the protection of the health and safety of the public: see s 3A; (3) The onus lies on the applicant for reinstatement to demonstrate that he or she can be trusted to practise in a way that conforms to the professional standards expected of a health practitioner, and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]; (4) The purpose of the jurisdiction is to protect the public, and is not for the punishment of the former practitioner: s 3A of the National Law; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]: Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. (5) There is no public interest in denying forever the chance of redemption and rehabilitation to former practitioner. On the contrary, the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved they are reformed, are afforded a second chance. Dawson v Law Society of NSW [1989] NSWCA 58; Coe v Health Care Complaints Commission [2013] NSWNMT 12 at [23]. (6) "Clear proof" is required to establish that there has been a reformation of character: Ex parte Tziniolis; Re Medical Practitioners' Act (1966) 67 SR (NSW) 448 at 461. In this respect, the applicant is "in a more disadvantageous position than an original applicant. He or she must in effect displace the decision for deregistration that has been made": Amieson at [24]. (7) It is not "a question of what an applicant has suffered in the past. It is a question of his [her] worthiness and his [her] reliability for the future". The decision in any particular case is to a greater or lesser extent dependent upon the Tribunal's assessment of the applicant: In Re Jason Martin [2010] NSWMT 13; Shah v Health Care Complaints Commission [2014] NSWCATOD 94 at [34]. [8] In Ng v Health Care Complaints Commission [2018] NSWCATOD 105 the Tribunal stated: 30. In Re Mansoor Haider Zaidi [2006] NSWMT 6 (at [42]) the Medical Tribunal made the obvious point that: [A]n applicant for reinstatement … is in a more disadvantageous position than an original applicant. He must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage him, precisely because of the removal of his name from the Register on the basis of unfitness. 31. In that case, the Medical Tribunal also stated at [42]: [T]he ultimate issue … is a question of [the applicant's] worthiness and his reliability for the future. What in this respect the Tribunal must determine is whether it is satisfied that for the future the applicant will act in accordance with the high standards and responsibilities of the profession.'"
In the recent decision of Jan v Health Care Complaints Commission [2021] NSWSC 350, the Supreme Court clarified that the Tribunal's opinion as to whether the applicant is a fit and proper person will inform its consideration of "appropriateness". Leeming JA explained the Tribunal's role at [21]: "…the question for NCAT was to determine the 'appropriateness', at the time of the review, of the cancellation order: s 163C(1). Sections 163, 163A, 163B and 163C were 'NSW provisions' (meaning that they were modifications to the Health Practitioner Regulation National Law made applicable by s 4 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) effected by Sch 1 to that Act), and thus in accordance with s 3A, the protection of the health and safety of the public was the paramount consideration in the exercise of functions under those provisions. Ultimately, if and when a reinstatement order was made, it was for the National Board to effect the registration, which turned on its opinion of suitability, a concept which incorporates whether an individual is a fit and proper person: ss 52(1)(c) and 55(1)(h). Nevertheless, NCAT's opinion as to whether an individual is a fit and proper person will inform its consideration of 'appropriateness'." (Emphasis added.)

[7]

Mr Thomas's background

Mr Thomas is 57 years old. In 1988, he graduated with a MBBS from Osmania College in Hyderabad, India. In March 2000, he was first registered as a medical practitioner in Australia. For various periods from April 2000 to February 2007, he worked in medical practices and in hospitals in New South Wales, South Australia and the Northern Territory. In February 2007, he became a Fellow of the Royal Australian College of General Practitioners (FRACGP).
In 2007, Mr Thomas started working at Windsor Family Practice and on 14 March 2007 he purchased that practice. From 2007 to 2012, he worked full time at the Windsor practice. In 2012, he opened a new practice in The Ponds and from 2012 to 2014 he mainly worked at The Ponds practice. On 16 November 2014, he opened the Galston Family Medical Practice. From November 2014 to July 2015, he largely practiced from the Galston practice as the sole General Practitioner (GP).
Currently, Mr Thomas's wife is the sole director, and she and Mr Thomas are equal shareholders, of three practices - the Windsor practice, the Ponds practice and the Galston practice. Mr Thomas's wife is a psychiatrist and works in private practice at McKenzie House Specialist Centre which they also own. Until Mr Thomas's registration was cancelled in 2015, he estimates that he spent approximately 10 hours a week managing the practices. From 2016 until now, he estimates that he spends between two and six hours a week managing the practices, including troubleshooting and liaising with recruitment companies.
On 23 November 2012, following an investigation by the Pharmaceutical Services Unit (PSU), Mr Thomas relinquished his prescribing authority for Schedule 8 and Schedule 4D medications effective from 10 January 2013. Schedule 8 drugs are drugs of addiction listed under Schedule 8 to the Poisons List, which is proclaimed under s 8 of the Poisons and Therapeutic Goods Act 1966 (NSW). Schedule 4D drugs are "restricted substances" listed in Appendix D to the Poisons and Therapeutic Goods Regulation 2008 (NSW). On 31 January 2013, Mr Thomas consented to the Council imposing conditions on his registration, including not to possess, prescribe, supply, dispense or administer any Schedule 8 or Schedule 4D medication.

[8]

Tribunal's 2015 decision

The most serious finding against Mr Thomas was that he prescribed Schedule 8 or Schedule 4D drugs including various benzodiazepines to seven patients who were, or had been, drug dependent. At [40], the Tribunal summarised the view of the expert witness, Dr Patterson, in relation to that prescribing: "He considered that he should have sought specialist assistance from staff of a mental health care unit, or from a practitioner who specialises in the treatment of drug addictions, before prescribing oxycodone, morphine, temazapam, diazepam, and codeine. He said that Dr Thomas's 'repeated failure to seek appropriate specialist advice to confirm the correctness of the prescribing of these drugs demonstrates a profound lack of care for the safety of the patient'."
The Tribunal criticised Mr Thomas for his ignorance of the fact that he needed permission from the PSU to prescribe Schedule 8 and Schedule 4D medications to drug dependent patients. At [100], the Tribunal made this finding about Mr Thomas's insight into his prescribing practices: "While Dr Thomas stated that he had accepted the errors revealed by his past conduct, we were not satisfied that he truly understood the significance of those errors, the risk they presented to the health and welfare of his patients, and their implications for public safety, and public confidence in the practice of medicine. As we perceived him, he saw the continuation of the conditions preventing him from prescribing S8 and S4D drugs as sufficient to meet the problems that had arisen in his case."
At [101], the Tribunal said that it was unconvinced by Mr Thomas's stated motivation for prescribing Schedule 8 and Schedule 4D drugs: "The power to prescribe drugs of addiction and restricted substances is heavily limited by law. Dr Thomas had little knowledge of the limits that applied to him. We found his explanation that he was moved by a sense of empathy and concern to alleviate the distress of his patients unconvincing, and in, any case, not acceptable."
At [104], the Tribunal attributed Mr Thomas's "uncritical approach" as being motivated "by a desire to build a practice, generate income, and move patients through quickly with a minimum of fuss". At [105], the Tribunal criticised Mr Thomas's level of knowledge: "We are not satisfied that he has any greater professional knowledge today than he did during that period as to the special matters relevant to the prescribing of S8 and S4D drugs, matters such as dealing with manipulative patients, obtaining proper histories, liaising with OTPs, specific understanding of relevant contraindications, the dangers of combining certain medications, adherence to dosage restrictions, an acceptance of the principle that dosage starting points should usually be at the lower end of the range and movement to the top of the dosage range should only occur if there is a very sound justification, and the risks of prescribing large quantities in a single prescription."
At [106], the Tribunal stated that it was not satisfied that Mr Thomas had taken any significant steps to improve his professional understanding: "In our opinion, all that he has done is read relevant Council publications, engage in some unstructured on-line research, and undertake an apparently self-devised dummy patient scenario about which we had no corroborating detail."
At [109], the following comment was made about Mr Thomas's attempts to improve his record keeping: "Dr Thomas also provided no credible evidence as to attempts made to improve the record keeping practices and the co-ordination of records between different practices."
The Tribunal had this to say at [110] about the so-called boundary issues: "In our view, he also had an unclear understanding of ethical practice boundaries, in particular around treating persons with whom he had significant personal or work relationships that went beyond that of practitioner-patient (i.e. Patients A, B and G). He needs some retraining in this area. We acknowledge in that regard that he has developed a practice standard for his practices that seeks to address that issue. But we were left with concerns as to the depth of his personal understanding of the problem of conflict of interest, and his personal ability to avoid situations of this kind in future."

[9]

Knowledge of regulations and principles of pain management

Mr Thomas has completed a course in prescribing opiates. As to his knowledge of prescribing Schedule 8 and Schedule 4D drugs, Mr Thomas understands that there are regulations about prescribing for people on an Opioid Treatment Program (OTP). A GP should refuse to write a prescription for Schedule 8 and Schedule 4D medications in certain circumstances unless he or she has an authority to do so.
Mr Thomas told us that, after practising for 15 years, he should have known that in most circumstances he needed an authority to prescribe for Schedule 8 and Schedule 4D drugs. When asked to identify the circumstances where an authority was needed, Mr Thomas said that an authority is needed for chronic non-cancer pain if the medication is initiated by a specialist and the period of prescribing is more than two months. We questioned Mr Thomas in more detail about his knowledge of the regulations. He has not undertaken any training on those requirements, but ultimately added that the authority was for patients who were "drug dependent".
When questioned about what he would do now if a patient asked for opiates, he said he would intervene early by checking if the patient was doctor shopping or seeing multiple doctors. He would take a history and if the person had been taking opioids for over six months, that would be a 'red flag'. He would then look at the prescription history to see if there had been any increase in the dose. If so, he would explain that the patient was becoming more tolerant and that could lead to addiction. Mr Thomas says that he would tell the patient that the best way to deal with the issue is to see a specialist.
Mr Thomas has observed Professor Sundaraj, Pain Medicine Specialist and Consultant at Nepean Hospital, in July and August 2015 and in November 2015. He also observed Dr Winston Kardell at the Nepean Hospital Drug and Alcohol Unit in July and August 2015 and in November 2015, including seeing him with at least two of his patients. On 4 June 2016, Mr Thomas attended a Pain Management Master Class by Sirius Education. Since his registration was cancelled, he has undertaken significant Continuing Professional Development (CPD).

[10]

Insight into seriousness of conduct

The Council highlighted Mr Thomas's treatment of Patient B as being among the most serious. The Tribunal described Patient B's circumstances at [34] of the Tribunal's 2015 Decision: "As noted earlier, the greatest number of consultations of concern to the HCCC were those with Patient B (man, born 1954). They cover the period 7 May 2009 to 30 October 2012. Patient B was a drug dependent patient with a history of depression, peripheral vascular diseases (femoral popliteal bypass in February 2011), colorectal cancer with multiple metastases (diagnosed in mid-2011) and CVA (i.e. stroke) (February 2012), and is now deceased."
Mr Thomas gave evidence that he was following instructions given by a palliative care specialist in prescribing medication to Patient B. The specialist would write a letter and the team would "call ahead' and tell him the scripts required for Patient B. Mr Thomas gave the scripts to Patient B's partner. He acknowledged that he was writing these prescriptions without a physical consultation with Patient B. While he was comfortable doing that at the time, he now understands that he should not do so because Patient B's partner could have been misusing the drugs. He now realises that he should also have been examining Patient B in person.
In November 2014, Mr Thomas describes receiving the expert's report of Dr Andrew Patterson. He gives evidence that reading that report made him realise that he had "wronged" his patients. He acknowledges that he did not take appropriate steps to improve his knowledge and approach to prescribing. He said that not to have heeded the expert's advice was a "big failing and a regret".
In 2015, the Tribunal was not satisfied that Mr Thomas truly understood the level of risk his conduct presented to the health and safety of those patients. In the Tribunal's view, he saw the continuation of the conditions preventing him from prescribing Schedule 8 and Schedule 4D drugs as sufficient to meet the problems that had arisen.
In 2016, Mr Thomas completed the Monash University course in medical ethics. He said that course helped him understand that the sympathy he felt for his drug dependent patients was misplaced and that "justice for all" takes precedence over patient autonomy. Mr Thomas also completed the Monash University course on "Issues in General Practice Prescribing". He has also participated in RACGP education sessions.
While he has not been practising for the last five years, Mr Thomas says he has had the opportunity to reflect specifically on the seven patients who were the subject of the complaint. Mr Thomas provided a document with the title "Retrospective Review of Treatment of Patient A to Patient G". In that document, Mr Thomas outlined the patients' histories, "yellow flags" that he should have identified and, in retrospect, how he should have managed the patients. Undertaking that exercise demonstrates that Mr Thomas has thought deeply about the issues leading to the disciplinary proceedings.
Dr Short, a psychiatrist, prepared a report dated 10 August 2016 expressing opinions about the causes of Mr Thomas's past behaviour and his level of insight. Dr Short was not of the view that Mr Thomas attracted a formal psychiatric diagnosis to be found in either DSM-V or lCD-b. In his opinion, features of his personality style led to the difficulties he faced. Those features were identified as "distinctly obsessional and driven qualities". Dr Short described how this trait manifested itself in the lead up to the Tribunal's 2015 hearing: "He has taken on too great a workload, attempting to run four practices and employ a number of doctors as well as practise as a family physician himself. The part of Sydney in which his practices are based would have a well-established culture of bulk billing and thus any new practice would be obliged to follow this pattern. This in turn requires servicing a high number of patients, limiting the time to question what people say and obliging an excessive reliance on medication as the solution for all ills. Once it became known that Mr Thomas was willing to prescribe desirable medication, inevitably the drug abusing population would be attracted to his practice and he would be increasingly tempted to move them through by prescribing. Again the obsessional element in his nature would tend to pressure him to move on now and think about the problem later. Thus it would seem likely the desire to build his practice and the need for remuneration were contributing factors and the time pressure of these may have led to insufficient time being allocated for record-keeping in its various forms."
The Tribunal made the following observation about Mr Thomas's workload at [72] of the Tribunal's 2015 decision: "He is operating four medical practices of some scale. The statistics he gave as to his time commitments to the practices, coupled with the spread of distance between the four practices, suggested to us that Dr Thomas is carrying a very heavy work load."
In the current hearing, the Council questioned Mr Thomas about his ability to practise as a GP and manage the four medical practices he owns with his wife. Mr Thomas said his wife has taken on more responsibilities. He has delegated authority to team leaders at each of the respective practices and appointed an overall manager. Mr Thomas says that, if he is permitted to practise again, this extra layer of management will ensure that his time is focused on clinical care and not on administrative tasks required to run a practice. He describes his role in those practices currently as "very minimal". He has no plans to open more practices.
As to his level of insight, Dr Short's opinion in 2016 was that he "wants approval". Dr Short believed that the fact that the Tribunal has disciplined him would have "a profound effect in containing and directing his future prescribing". Mr Thomas accepts that he did have a strong need to please at the time. He refers to having a "misplaced empathy" for his patients. He says he has addressed that by understanding that it is his responsibility not to prescribe opioids to drug dependent patients. He has distanced himself emotionally from his patients.
In 2016, Dr Short supported Mr Thomas's application for reinstatement, subject to the imposition of appropriate conditions. He did not say what those conditions should be. Dr Short also recommended that Mr Thomas attend psychotherapy sessions, for six months or so, to address certain personality factors that he observed from his two interviews. Based on that recommendation, Mr Thomas saw clinical psychologist, Ms Suparna Karpe, in 2016 and again in 2020. According to Mr Thomas, he did not continue with the appointments in 2016 because Ms Karpe felt that he understood where he had gone wrong. He started seeing her again in August 2020 because of "a couple of issues with my wife and the loss of my mother".
Mr Thomas is currently seeing Ms Karpe every fortnight to gain insight into and address the personality traits which have impacted on his former prescribing practices. Ms Karpe provided reports dated 2 January 2017 and 10 September 2021. In the latest report, she stated that: "Dr Thomas initiated therapy sessions with me in October 2016. I have had about 4 sessions with him since and then 2 sessions in 2020. These sessions were subsequently discontinued and I saw Dr. Thomas again in August 2021. I have had 3 sessions with him since. … There was no evidence of perceptual disorder. His level of personal insight appeared to be good, as evidenced by ability to state his current problems and by his ability to identify specific stressors."
On 17 October 2016, Mr Thomas saw Dr Jeff Bertucen, a psychiatrist, for a medicolegal examination. Dr Bertucen's opinion was that Mr Thomas did not display any features of grandiose, narcissistic or exculpatory or paranoid behaviour. He supported his return to practice with appropriate conditions and to be seen for review by a psychiatrist every six months.
The Council requested a report from Dr Murray Wright, a psychiatrist, which is dated 14 October 2021. Like Dr Short, he could find no evidence to support a diagnosis of any mental illness or personality disorder. Nor did Dr Wright think that Mr Thomas has any "significant personality traits influencing his presentation and behaviours". If he did return to practice, Dr Wright suggested various conditions which we discuss further below.

[12]

Record keeping

At [10] of the Tribunal's 2015 decision, the Tribunal summarised those parts of the complaint about Mr Thomas's failure to keep proper medical records: "The particulars also alleged failures to keep proper medical records (all patients) and to link records as between the two practices he worked at (Windsor, The Ponds) (Patients A, D, E, F, G, and mentioned by the expert in respect of Patient B). The records were said to be deficient in relation to such matters as recording the patient's medical history, results of examinations conducted by the practitioner, investigations undertaken by the practitioner, and diagnoses, future plans and adequacy for use by a practitioner who might take over the care of the patient."
At [69] of the Tribunal's 2015 decision, the following comment was made about Mr Thomas's attempts to share patient data among the four practices: "He had changed the practice software from 'Medical Director' to 'Best Practice'. But that 'despite his best efforts' the patient record cannot be shared between the four practices."
The Tribunal concluded, at [109], that Mr Thomas had "provided no credible evidence as to attempts made to improve the record keeping practices and the co-ordination of records between different practices". Mr Thomas told us that "an IT person" had said that it was possible to communicate between the practices but he did not know how to do that. He says he now knows how to log in and save the file to see if there are recent scripts from one of the other practices.
Mr Thomas says he is currently engaged in developing a digital platform for use by students of general practice, which he has named MEKSI (Medical Knowledge Simulator). The Australian Government has granted him a patent in relation to this product. It enables students to engage in role plays about clinical scenarios on a computer. Mr Thomas says he has reflected on the Tribunal's criticism of his record keeping and addressed it, to some extent, by creating the educational software called MEKSI. That product assists with note taking because it allows red and yellow flags of particular conditions to be captured. He believes the MEKSI module on record keeping meets the standards of the RACGP.
If Mr Thomas practises in a group practice under supervision, where he is not the owner, he will be responsible for his own record keeping. The Council has proposed that, as a condition of registration, Mr Thomas should complete chapters one, two and three of the e-learning course 'Medical records' organised by AVANT Mutual Group.

[14]

Cognitive capacity

Mr Thomas had a stroke (acute cerebral infarction) on 19 December 2016. He was admitted to Blacktown Hospital under the care of Dr Babu, consultant neurologist. Dr Babu said he required clearance from a neuropsychiatrist to make sure there were no executive deficits before returning to work. Dr Ilchef, a consulting psychiatrist, assessed Mr Thomas on 28 February 2017. He found that Mr Thomas did not have any psychiatric disorder. He recommended ongoing psychological therapy and periodic review by a psychiatrist.
Mr Thomas was referred to Dr Reid, a clinical neuropsychologist, for neuropsychological assessment. Dr Reid prepared a report dated 20 March 2017 in which he said: "On neuropsychological assessment three months post his stroke he was found to be alert, fully oriented and able to give a detailed and lucid account of his history. Examination of his intellectual and cognitive functioning revealed a significant decline in his intellectual abilities from his premorbid estimate where he currently functions in the average range. His attention and information processing speed was also in the average to low average range and below that expected. His working memory was in the average range and he showed no impairment in his auditory verbal memory. By contrast, significant deficits were evident in his visual memory, visual organisational skills, visuospatial and visual problem solving. Further examination of his executive skills revealed his reasoning to be mildly impaired relative to his premorbid estimate and he showed particular difficulties with planning and organising in the visuospatial modality, difficulties with conceptual skill, ability to adapt and regulate his behaviour given feedback, speed of response inhibition and capacity to think quickly and flexibly…"
Dr Reid came to the following conclusions: "I am of the opinion based on the brain MRI scan and history, the deficits Mr Thomas displays on neuropsychological assessment (visuospatial, visual problem solving, visual organisational and visual memory) are all consistent with sequelae from his right non-dominant posterior cerebral artery infarction."
Dr Reid added that it was too early to determine whether these deficits are permanent. He recommended that Mr Thomas be reassessed in 12 months as he anticipated that further significant improvement in cognitive function was likely to occur.
Two months later, on 24 May 2017, the Council referred Mr Thomas to Professor Dominic Rowe, a neurologist. In concluding that Mr Thomas did not have an "impairment" as defined in the National Law, Professor Rowe made the following comment about Dr Reid's opinion: "I note the interpretation of Dr Reid on his psychometric testing of Dr Thomas. I am not so sure that the interpretation is consistent with Dr Thomas' ability on clinical and physical examination today. Indeed sometimes in testing, psychometric deficits can be over emphasised. I can find no evidence of significant cognitive consequences from his minor ischaemic event last December."
Dr Wright, a psychiatrist, noted that Dr Reid's opinion is now four years old and there is no current evidence of any deficits from the stroke. Although Professor Rowe did not conduct a neuropsychological assessment of the kind made by Dr Reid, it was Dr Wright's view that Professor Rowe did reassess Mr Thomas and drew a different conclusion as to his cognitive functioning.
There is no up to date comprehensive neuropsychological assessment of Mr Thomas's cognitive functioning. Such an assessment would have clarified whether or not the deficits identified by Dr Reid are permanent. However, on the evidence before us, we are not satisfied that those deficits remain. Dr Reid anticipated that further significant improvement was likely to occur and both Professor Rowe's limited testing and Dr Wright's opinion support a finding that any cognitive deficits are not significant.

[15]

Credibility

The Council pointed to four examples of Mr Thomas making inaccurate or inconsistent statements. First, on 31 July 2020, he provided a statement in state revenue proceedings before the Tribunal on behalf of his and his wife's company, Thomas and Naaz Pty Limited. At par 1 of his statement, Mr Thomas described himself as a "medical practitioner". He did not disclose that his registration had been cancelled. Mr Thomas's response when questioned about this matter was that he wrote "Dr Thomas" because the proceedings related to the period when he was registered. His lawyers knew he was not registered and he was referring to himself as "Dr" because that was his training.
The second example is that in a statement prepared for the coronial inquest into Patient B's death, dated 10 June 2015, Mr Thomas said that: "On the date of 3rd October 2012 I observed that [Patient B] had a bad case of conjunctivitis and was in urgent need of medical/nutrient care as he was off his food, being in the late stages of cancer."
Mr Thomas agrees that he did not "observe" Patient B on 3 October 2012. There was no face to face consultation on that day. In evidence before the Tribunal, Mr Thomas said he corrected that statement during the inquest in October 2017. However, when questioned again later, Mr Thomas said that he became aware of the mistake in September 2020 when he was asked by the Director of Public Prosecutions to be a witness in criminal proceedings in relation to Patient B's death.
The third example relates to Mr Thomas's billing practices. Mr Thomas dropped off prescriptions at the front gate of Patient B's house on 4 September 2012 and charged him for a home visit. Mr Thomas agreed that that does not qualify as a home visit. He then attempted to avoid responsibility for that mistake by saying that the staff at his practice do the billing. After further questioning, Mr Thomas said that he has made changes at the practices he owns so that each doctor does their own billing on the system.
Finally, Mr Thomas gave inaccurate information to Dr Wright. In his 14 October 2021 report, Dr Wright said: "He told me that he saw the psychologist 15 or 16 times after his registration was cancelled and began seeing her again recently, and that he found the therapy very helpful in helping to understand some of his own responses to patients in need, which may have contributed to his inappropriate prescribing."
Mr Thomas agreed that had not seen the psychologist 15 or 16 times. Mr Thomas said he was not sure but could check his records. In submissions, Mr Thomas's lawyer clarified that he had seen Ms Karpe on nine occasions. It was submitted that the difference between 9 and "15 or 16" is not significant given that some of the consultations took place 5 years ago.
These are all examples of Mr Thomas giving self-serving evidence or information which was inaccurate. The most concerning are the instances where Mr Thomas gave false information in relation to observing a consultation and where Mr Thomas billed for a home visit. While concerning, Mr Thomas has acknowledged his errors. These instances are not significant enough to make him unsuitable or unfit to practise.

[20]

Planned work arrangements

The Council proposes that Mr Thomas practise no more than 32 hours per week with no more than 8 hours in any 24 hour period. As well, he is not to treat more than 4 patients in one hour and 32 in a day. Mr Thomas agrees to these conditions partly because of his health. He had a stroke in 2016 and he also has diabetes. He says that 32 hours is the limit of his "physical and mental ability". He then said that he did not feel comfortable even seeing four patients an hour at this stage. He said he would start slowly. It is unlikely that he will need much time to run the practices he owns with his wife. If he needs to spend time managing those practices he would work fewer hours as a GP. His work on the MEKSI is only taking up a couple of hours a week.
When asked about his long-term plans, Mr Thomas said that he wants to remain in general practice because he enjoys it so much. Mr Thomas submits that his business interests will not distract him from performing his role as a GP. Both the arrangements he has made for others to manage that business and the restrictions on his workload will ensure that is the case.
Dr Wright's view was that there should be limits on Mr Thomas's workload given the Tribunal's concern that his workload may have contributed to his poor clinical decision making. He suggested no more than 32 hours per week and no more than 40 patients per day initially.
The Council's proposal still gives Mr Thomas the potential for a relatively heavy workload. As Mr Thomas has not been practising for almost five years, and given the issues which contributed to the disciplinary proceedings, we consider that a more gradual return to practice would help ensure the health and safety of his patients. In our view, Mr Thomas should work no more than 28 hours a week. The number of patients he sees per day should also be adjusted. Seeing up to 32 patients a day is a heavy workload. Mr Thomas should be restricted to seeing a maximum of 25 patients a day.

[24]

Orders 1. The Tribunal makes a reinstatement order. 2. The following practice and health conditions are attached to Mr Thomas's registration: Practice Conditions 1. 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). 2. Not to possess, supply, administer or prescribe any substance listed in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW). 3. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 4. To practise only in a group practice approved by the Medical Council of NSW where there are at least 3 registered medical practitioners (excluding the subject practitioner): 1. Where the patients and patient records are shared between the medical practitioners. 2. Where there is always one other registered medical practitioner on site. 1. Not to practice in a group practice in which he and/or his wife has a direct or indirect financial interest. 2. To practise no more than 28 hours per week with no more than 8 hours in any 24 hour period. 3. To treat no more than 4 patients in any one hour and no more than 25 patients in any one day. 1. The practitioner is to provide the Medical Council of NSW with copies of records confirming the number of patients treated, their consultation times and hours worked on any dates as specified by the Council. 1. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: substance abuse; workload; clinical performance; medical record reviews; appropriate prescribing practices; patient follow-up; clinical outcomes; and recent developments in clinical practice. 2. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the decision upon which these conditions are based and all other documents the Medical Council of NSW deems appropriate. 3. Not to practise until a supervisor has been approved by the Medical Council of NSW. 1. Within 3 months of the supervisor being approved by the Medical Council of NSW, the practitioner is to spend a total of 10 observation sessions with the approved supervisor. A session is a period of at least 1 hour. These sessions are to include: 5 sessions where the practitioner directly observes the supervisor conduct patient consultations. 5 sessions where the supervisor directly observes the practitioner conduct patient consultations. 1. When observing these consultations, the practitioner and the supervisor are to pay particular attention to: workload; clinical performance; medical record reviews; appropriate prescribing practices; patient follow-up; clinical outcomes; and recent developments in clinical practice. 2. Within 1 month of the completion of the observation sessions the practitioner is to provide a report to the Medical Council of NSW detailing the dates of attendance, what he learnt and how this will affect his practice. 3. Once the practitioner's report is written and before it is returned to the Medical Council of NSW, he is to ensure that the supervisor reviews the report and that the supervisor provides his or her own report to the Medical Council of NSW in which he or she comments on the content and authenticity of the practitioner's report, confirming the dates of attendance and setting out any concerns or other observations. The supervisor's report is to be provided to the Medical Council of NSW within 2 months of the completion of the observation period. 4. The practitioner is responsible for any costs incurred in relation to the period of observation and any subsequent reports. 1. To forward evidence to the Medical Council of NSW within 14 days of recommencing practice, that he has provided a copy of the decision upon which these conditions are based to the principal of the practice. 2. Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of the decision upon which these conditions are based to the principal of the practice. 3. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 4. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia and Pharmaceutical Services for the purpose of monitoring compliance with these conditions. 5. To complete within 1 month of the date of this decision chapter one, two and three of the e-learning course 'Medical records' organised by AVANT Mutual Group. 1. Within seven (7) days of completing the abovementioned course, the practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course. 2. To bear responsibility for any costs incurred in meeting this condition. 3. In the event that the course is unavailable, the practitioner must propose to the Medical Council of NSW for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 1 month from the date of this decision. 1. To complete within 1 month of the date of this decision chapter one and two of the e-learning course 'Prescribing principles' organised by AVANT Mutual Group. 1. Within seven (7) days of completing the abovementioned course, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the course. 2. To bear responsibility for any costs incurred in meeting this condition. 3. In the event that the course is unavailable, the practitioner must propose to the Medical Council of NSW for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 1 month from the date of this decision. 1. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: 1. The audit is to be held within 6 months from the date he recommences medical practice and subsequently as required by the Medical Council of NSW. 2. The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements, and compliance with conditions. 3. To authorise the auditor(s) to provide the Medical Council of NSW with a report on their findings. 4. To meet all costs associated with the audit(s) and any subsequent reports. 1. The practitioner is to provide his employer(s) and supervisor with a copy of these conditions of his registration. Health Conditions 1. To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. Must provide the Medical Council of NSW with the professional details of the treating practitioner. 2. To authorise the Medical Council of NSW to forward copies of the decision upon which these conditions are based and any other information relevant to his health and treatment to his treating psychologist. 1. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 2. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 3. Mr Thomas is to pay the Medical Council of NSW's costs as agreed. If agreement is not reached, costs are to be assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).