HCCC v Karanalu Vinatheya Prakash

[2004] NSWMT 10

New South Wales

Medical Tribunal

CITATION:	HCCC v Karanalu Vinatheya Prakash [2004] NSWMT 10
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Karanalu Vinatheya Prakash
FILE NUMBER(S):	40004 of 2004
CORAM:	Ainslie-Wallace, DCJ - Pasfield, Dr M - Kok, Dr E - Deveson, AO Ms A
CATCHWORDS:	Practitioner's name removed from the Register - Professional misconduct - Breach of condition of registration
LEGISLATION CITED:	Medical Practice Act 1992 (NSW) Poisons and Therapeutic Goods Regulations 1994 Health Insurance Act 1973 Poisons Act (NSW) 1966
CASES CITED:	Re Dr Than LE, NSWMT, 20 Sept 2001
DATES OF HEARING:	10.11.2004, 11.11.2004
DATE OF JUDGMENT:	17 December 2004
LEGAL REPRESENTATIVES:	M Lynch of counsel S Wetmore of counsel
ORDERS:	Pursuant to Clause 6 of Schedule 2 of the Medical Practice Act 1992 the Tribunal has made a Non Publication Order in respect of the name of the patient referred to in the proceedings.; 1. The respondent’s name be removed from the Register of Medical Practitioners; 2. The respondent not be at liberty to apply for his name to be restored to the Register of Medical Practitioners until 17th December 2006; 3. That in relation to the conduct to which particulars 2, 3, 4 and 5 of the Complaint refer, the respondent be cautioned

JUDGMENT:

Medidal Tribunal of New South Wales 17th December 2004

No. 40004 of 2004

BETWEEN

Health Care Complaints Commission

Complainant

Karanalu Vinatheya Prakash

Responden t

Deputy Chair : Judge A M Ainslie-Wallace

Members: Dr M Pasfield

Dr E Kok

Ms A Deveson

Determination

Order: Pursuant to Clause 6 of Schedule 2 of the Medical Practice Act 1992 the Tribunal has made a

NonPublication Order in respect of the name of the patient referred to in the proceedings.

Introduction

This is an application brought by the Health Care Complaints Commission against the respondent, a medical practitioner. The basis of the application is an allegation that the respondent is guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of sections 36 and 37 of the Medical Practice Act, 1992 .

There are six particulars which make up the complaint against the respondent. The respondent did not contest the facts that make up the particulars of the complaint, nor did he contest that each was capable of amounting to unsatisfactory professional conduct. The issue before the Tribunal was whether two of the particulars comprising the complaint amounted to professional misconduct.

The Complaint

1. The practitioner treated Patient A between 5 December 1999 and 10 January 2000 when

the respondent was not suervised in medical practice by a supervisor approved by the

Medical Board, in breach of a condition of his registration which required that he “must be

supervised in medical practice by a supervisor approved by the NSW Medical Board”.

2. On certain dates and in certain quantities (which are specified in a schedule to the

complaint) the practitioner issued prescriptions to patient A which carried the address of the

Balmoral Street Medical Centre which was an address at which the practitioner was not

then practising, in breach of the provisions of clause 37(1)(h) or clause 82(1)(h) of the

Poisons and Therapeutic Goods Regulations 1994.

3. On certain dates and in certain quantities (which are specified in a schedule to the

complaint) the practitioner issued prescriptions to patient A which carried the address of the

Warringah Mall 24hr Medical Centre which was an address at which he was not then

practising in breach of the provisions of clause 37(1)(h) or clause 82(1)(h) of the Poisons

and Therapeutic Goods Regulations 1994.

4. On certain dates and in certain quantities (which are specified in a schedule to the

complaint) the practitioner issued prescriptions to patient A which carried the address of the

Hurlstone Park Medical Centre which was an address at which he was not then practising in

breach of the provisions of clause 37(1)(h) or clause 82(1)(h) of the Poisons and Therapeutic

Goods Regulations 1994.

5. On certain dates and in certain quantities (which are specified in a schedule to the complaint)

the practitioner issued prescriptions to patient A which carried the address of the Medical

Centre Morisset which was an address at which he was not then practising in breach of the

provisions of clause 37(1)(h) or clause 82(1)(h) of the Poisons and Therapeutic Goods

Regulations 1994.

6. On March 1999 the practitioner made a false statement to the Health Insurance Commission

by answering “no” to the following questions when requesting a provider number:

a. has your registration or license to practise as a medical practitioner been restricted

or limited in any Australian State or Territory, and

b. has your name been removed from a register of medical practitioners in any

Australian State or Territory following an inquiry into your conduct.

Background
1 The respondent was born on 26 June 1945 in Bangalore India and he graduated in medicine from the Bangalore Medical College, Bangalore University in 1968. He migrated to Australia in 1972 and was registered as a medical practitioner in New South Wales in that year. Thereafter, the respondent practised in hospitals and in country towns in NSW. In 1975 he began a general practice in Cronulla.

2 Between 12 April and 3 May 1976 the respondent committed three offences of falsely claiming money under the Health Insurance Act 1973 (referred to as “Medifraud” in the proceedings before the Tribunal). On 15 April 1976 the respondent committed an offence under the Poisons Act (NSW) 1966 by not keeping a drug register. He was charged with these four offences in June 1976 and after being charged, he committed a further thirty-six frauds under the Health Insurance Act.

3 On 4 December 1978 the respondent was convicted of the first three Medifraud offences and for not keeping a drug register. On these convictions he was fined, placed on a good behaviour bond and ordered to make financial reparation.

4 On 12 December 1978 the respondent was convicted of the other Medifrauds and received various penalties including reparation and imprisonment to the “rising of the court”.

5 On 17 December 1979 the convictions were considered by the Medical Disciplinary Tribunal which determined that the respondent was unfit to practise medicine and ordered that his name be removed from the Register of Medical Practitioners. The respondent did not appear at this hearing. He appealed the decision of the Tribunal to the Court of Appeal and that appeal was dismissed in October 1980. The respondent thereafter ceased practice in NSW. In 1984 the South Australian Medical Practitioners Conduct Tribunal found the respondent guilty of professional misconduct in relation to the NSW convictions but imposed no penalty on the respondent.

6 Between 1981 and 1986 the respondent practised medicine in South Australia both in the country and in Adelaide. In 1986 the respondent went to India where he practised medicine and on his return to Australia in 1988 he practised in South Australia until 1990.

7 On 23 March 1990 the respondent applied for his name to be restored to the roll of practitioners in NSW. The Medical Tribunal, after hearing the application, rejected it. The respondent made another application for re-registration in July 1992 which was rejected.

8 In 1993 the respondent moved to Saudi Arabia and from 1994 until May 1997 he practised medicine in Saudi Arabia and in India.

9 In March 1994 the South Australian Medical Tribunal had before it a complaint that the respondent had been guilty of unethical conduct. However, on the respondent’s undertaking not to practise in South Australia, the complaint was adjourned and has not been determined.

10 On 30 May 1997 the respondent made a further application to be re-registered which was successful but subject to the following conditions:

a) That Dr Prakash, for a period of one year six months, or for such other period of time as the
NSW Medical Board may determine, be supervised in medical practice by either Dr Brian
Palmer of Morisset, NSW or Dr Ram Pratap of Lightning Ridge, NSW. If either Dr Palmer or
Dr Ram Pratap be unable or unwilling to supervise Dr Prakash in practice, then Dr Prakash is
to be supervised by a registered medical practitioner nominated by Dr Prakash and approved
by the Board;
b) That each six months during the period of supervision, the supervising doctor provide to the
NSW Medical Board a report setting out an assessment as to Dr Prakash’s ability to practise
medicine;
c) That, following the satisfactory completion of the period of supervision, Dr Prakash for a
period of three years, provide the NSW Medical Board with details of his place of practice.

11 In compliance with the conditions imposed, the respondent entered into practice and was supervised by Dr Harris from 12 June – 12 July 1997 after which the respondent was supervised by Dr Bateman. Thereafter the respondent was supervised from time to time by practitioners approved by the Medical Board.

12 In March 1998, the respondent was interviewed by a committee of the Medical Board and was advised that the supervision period may be extended and on 16 February 1999 the period of supervision was extended. On 16 March the respondent applied to the Medical Board to have the supervision requirement lifted – that was refused. On 21 September 1999 the Medical Board extended the period of supervision. The respondent continues to be supervised in practice.

13 Before turning to the individual matters which make up the complaint, it is important to make some observations about the credit of the respondent as a witness.

14 In relation to the first particular of the complaint, the respondent assured the Tribunal that he would never again act in breach of any condition imposed on his right to practice. The respondent gave apologies and assurances to the Tribunal in similar terms in relation to all of the particulars of complaint. He said that he was committed to being a doctor and to helping people through that profession. He said that he was chastened by the events which have brought him before the Tribunal.

15 There was much in the respondent’s evidence that troubled the Tribunal. His apology appeared glib and rehearsed as did his assurances that he understood the seriousness of the complaint that brought him before the Tribunal. Often he deflected questions by repeating his apologies.

16 Of particular concern to the Tribunal were the apparent inconsistencies in his evidence. For example, in relation to his treatment of Patient A, when it was suggested to him that he did not have to treat Patient A in breach of the conditions, the respondent said that Patient A was not a new patient and all he was doing was continuing his treatment (transcript page 50.25). Later he said that he begged Patient A to go to another doctor but he refused (page 51.35) and then said that Patient A had no time to explain to another doctor all about his back problem (page 51.50). Most troubling from the Tribunal’s point of view was the evidence that the respondent gave concerning the 6th particular of the complaint, the false statement to the Health Insurance Commission (the “HIC”). In his statement, Exhibit 1 page 5, the respondent said of his response to the questions on the form requesting a provider number:

“…my blunder to assume, as I did, that filling in a form of application for a new provider Number,
where I expected that my record would be on computer and well-known, as was necessary, each time
I sought to commence employment as a supervised practitioner … I did so providing completely
wrong answers about my history of practice…”

17 Later at page 8 the respondent said “I cannot say I misread the questions”. However, in his evidence about this matter, the respondent said at page 57 line 25,

“I thought any state means any other state excluding NSW. I misunderstood the question. I thought any

other state like any other state in Australia. I took it for granted that they knew what was happening –

what’s happened to me in NSW. It was misunderstood, grossly misunderstood and I answered it and it

could be interpreted as a lie.”

18 When taxed with this clear inconsistency, the respondent said that both answers were correct. Further, when the respondent was asked to explain why he answered “ no ” to the second question as to whether his name had been removed from the register in NSW, was unable to give an answer other than to say that it was wrong.

19 These answers together with the Tribunal Members’ observation of the respondent’s demeanour during his evidence in the witness box causes the Tribunal to have doubts that the respondent was giving honest and accurate evidence. In the result, the Tribunal has decided that it cannot accept the respondent as a credible witness and has no confidence in the assurances and apologies for his actions offered to the Tribunal for his actions.

Complaint – 1;

“ The practitioner treated Patient A between 5 December 1999 and 10 January 2000 during a period when the practitioner was not supervised in medical practice by a supervisor approved by the Medical Board, in breach of a condition of his registration which required that he ‘must be supervised in medical practice by a supervisor approved by the NSW Medical Board’”

Facts

20 On 8 March 1999 the respondent began employment at the Balmoral Street Medical Centre under the supervision of Dr O. He ceased to practise there on 3 December 1999.

21 During his period of practice at the Balmoral Street Medical Centre, the respondent treated Patient A who had been a patient of the practice since 1995. According to the patient notes from the Balmoral Street Medical Centre, Patient A suffered from chronic back pain and had from time to time been prescribed Endone, an opiate, by various doctors at the Medical Centre. For some time before 3 December 1999, Patient A had been treated by the respondent and as part of the treatment, the respondent had obtained an authority to prescribe Endone for him.

22 After the respondent left the Balmoral Street practice and from 5 December 1999 until 10 January 2000 he continued to treat Patient A and to prescribe Endone and other drugs for him. The respondent did not dispute that he continued to treat Patient A in breach of the condition of his registration.

23 The respondent made a lengthy statement which was before the Tribunal, he gave evidence and was cross-examined. In relation to this particular he said that while he knew that he was in breach of the condition of his registration, he believed that he had to treat Patient A because of his pain and that he was concerned that over the Christmas period, Patient A would be without pain relief. The respondent said that he believed that his actions were morally correct. He said that he was greatly remorseful and found himself acceding to Patient A’s very persuasive arguments that he continue to treat him.

Complaints 2, 3, 4 and 5:

That the practitioner issued prescriptions to Patient A which carried the address of a medical

practice at which he was not then practising in breach of the provision of clause 37(1)(h) or clause

82(1)(h) of the Poisons and Therapeutic Goods Regulations 1994.

Facts

24 Regulation 37(1)(h) and Regulation 82(1)(h) are both in the following terms:

“A prescription for a restricted substance must include the following details:

(h) if the prescription is issued elsewhere that at a hospital, the name and

designation of the person by whom it is issued and the address and telephone
number of the premises at which it is issued”

25 These particulars of the complaint all concern the period of time after the respondent left the practice at the Balmoral Street Medical Centre and before he recommenced supervised practice with Dr Costa and, while the respondent was treating Patient A.

26 It was conceded before the Tribunal that the rationale for the regulation which requires a prescription to bear the name and practice address of the doctor issuing it is to enable the pharmacist who is called on to fill the prescription to contact the prescribing doctor to query or to challenge the correctness of the drugs prescribed. It was also agreed that in some cases this could prevent, perhaps, a fatal error being made by the prescribing doctor.

27 Once again the respondent said that these breaches of the regulations occurred when he was, in effect, compelled by the refusal of patient A to consult another doctor, to continue to prescribe these drugs for him during a period when the respondent was not supervised in his practise. He said that should the pharmacist who was to fill the prescription have had any problems, he would have been able to contact the centre who could contact him at home. It was not suggested that there were any problems with the prescriptions written during this period which called for the pharmacist to contact the respondent.

Complaint – 6

That the practitioner made a false statement to the Health Insurance Commission when completing

the application for a provider number on 9th March 1999.

Facts

28 On 8th March 1999, before commencing work at the Balmoral Street Medical Centre, the respondent applied to the Health Insurance Commission for a Provider Number. The respondent has completed application forms of this type many times before. Once a Provider Number is allocated, it allows the practitioner to receive money from Medicare for patient services. There was no dispute that question 4 on the form is directed to the registration details of the applicant and is in the following form:

“Has your registration or license to practice as a medical practitioner been restricted or limited in

ANY Australian State or Territory. If YES attach details. Has your name been removed from a

register of medical or other practitioners in ANY Australian State or Territory following an

inquiry into your conduct ?”

29 The respondent answered “ no ” to each of those questions. As has already been noted in these reasons, his answers were far from compelling or indeed convincing. In one of his answers in cross-examination about why he answered “ no ” he said that he was concerned to get a provider number as soon as possible so he could practise. (transcript page 58.15). In cross-examination the respondent would not concede that he had lied on the form but said that he had been wrong to make that answer and that it was a mistake.

Discussion

30 In relation to particulars 1 and 6, counsel for the applicant submitted that it was conduct which amounted to professional misconduct. Sections 36 and 37 of the Medical Practice Act 1992 are as follows:

Section 36
For the purposes of this Act, “unsatisfactory professional conduct” of a registered medical practitioner includes each of the following:

(a) Any conduct that demonstrates a lack of adequate knowledge, skill, judgment or

care, by the practitioner in the practice of medicine

(b) Any contravention by the practitioner (whether by act or omission) of a provision

of this Act or the regulation

(c) Any contravention by the practitioner (whether by act or omission) of a condition

to which his or her registration is subject…..”

Section 37:
“For the purposes of this Act, “professional misconduct” of a registered medical
practitioner means unsatisfactory professional conduct of a sufficiently serious nature to
justify suspension of the practitioner from practising medicine or the removal of the
practitioner’s name from the Register.”

31 In relation to both Complaint 1 and 6, the Tribunal is of the opinion that the conduct is sufficiently serious to be professional misconduct.

32 In relation to Complaint 1, the Tribunal was concerned that, despite the conditions imposed on the respondent, he chose to act in contravention of them because he believed that the patient, who had been a patient of the practice before he commenced working there, would not see another doctor. Although various suggestions were made to the respondent both in cross-examination and questions asked by the Tribunal, he rejected each as being impossible in the circumstances in which he said he found himself. The Tribunal was unpersuaded that there was no other reasonable course open to the respondent but to continue to treat Patient A in breach of his conditions and has come to the view that the respondent was quite prepared to disregard the conditions on his right to practice when it did not suit his convenience.

33 In coming to this view the Tribunal was conscious of the events which led the respondent to having conditions imposed on his right to practice, that he had been de-registered and that he made several unsuccessful attempts to be restored to the register before finally succeeding in 1997 after almost 20 years of being de-registered in NSW. As part of the right to practice as a doctor, conditions were imposed on the respondent. It was only a very short time after the respondent resumed practice as a doctor in NSW that the first of these complaints arose.

34 The conduct in breach of the condition was deliberate and repeated over a period of five weeks. The Tribunal adopts the statement concerning breach of conditions and restrictions placed on a right to practise made in Re Dr Than LE by a Medical Tribunal on 20th September 2001 at page 46, paragraph 95:

“Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, ‘containing as it does a grave criticism of the standard of the practitioner’s conduct’”

35 Complaint 6 is a very serious matter indeed in the view of the Tribunal. In reaching the decision that this conduct falls within the type of conduct comprehended by section 37 , the Tribunal is of the view that the respondent was under a duty to deal honestly with the HIC as part of his practice as a doctor and this duty is part of the standard of conduct expected of a medical practitioner.

36 There was no issue that the actions which make up complaints 2, 3, 4 and 5 amount to unsatisfactory professional conduct. The applicant did not submit that these complaints amounted to professional misconduct.

37 Counsel for the applicant submitted that, having regard to the history of the respondent’s registration and the nature and circumstances of the conduct which formed the complaint, nothing short of an order to remove his name from the Register of Medical Practitioners would be sufficient. For the respondent, it was argued that the appropriate order would be for the respondent to be permitted to continue practising but with conditions which would be reviewed in six months time.

38 Counsel for the respondent argued that the respondent has been receiving favourable reports from the supervising doctors. The Tribunal had before it the reports which the supervising doctors were obliged to send to the Medical Board after each month of supervision. The respondent is presently being supervised by Dr Mahajan of the Bella Vista Medical Centre of Baulkham Hills and has been since September 2004. Dr Mahajan is willing to continue to supervise the respondent in medical practice. His reports are overall favourable of the standard of the respondent’s work. There have been supervisors whose reports have been less favourable, for example Dr Karen Oswald of the Balmoral Street Medical Centre; although in her report (Exhibit L) she said that during the time that she supervised the respondent she has noticed an improvement in his consulting style and in his medical skills. Dr Bateman, who supervised the respondent from July 1998 to April 1999, recommended that the respondent have a further period of supervision.

39 The applicant called Dr Tsung who had supervised the respondent between March and June 2004. She wrote a letter to the Medical Board in which she complained about the respondent and in which she terminated her supervision of him. In her letter she said that the respondent appeared to her to be unable to accept that he needed supervision and that he was reluctant to allow her to review his files with him. The monthly reports on the respondent submitted by Dr Tsung were sparse but did not contain any complaint about him. It was suggested to her in cross-examination that she was unwilling to comply with the detailed work which supervision required and so wrote in those terms to the Medical the Board in order to justify her termination of supervision. Dr Tsung defended her monthly reports and said that the respondent asked to see what she had written before they were sent to the Medical Board.

40 The Tribunal accepts that, to a degree, Dr Tsung felt constrained about what she wrote in the reports while supervising the respondent. However, notwithstanding her evidence, the Tribunal was prepared to accept the overall good reports from other supervisors and the submission of counsel for the respondent that “ on most accounts he is a good practitioner ”.

41 The Tribunal also accepts the submission that the complaints are old, arising from conduct which took place in 1999 with the complaint not being made until April 2003. The Tribunal notes that the respondent conceded the facts which comprise the complaints in May 2003 and has conceded the section 36 aspect of them. However, the fact that the complaints are old does not diminish their seriousness.

42 It was submitted for the respondent that he had “ learned his lesson ” and that the acts were not committed for greed. The Tribunal is unconvinced that the respondent has learned any lesson at all despite his frequent concessions that what he did was wrong and amounted to a misjudgement. The Tribunal finds that having finally secured that which he wished, that is, re-registration the respondent acted in complete disregard for the conditions on his registration in regard to Complaint 1.

43 The false statement to the HIC may not have been committed for “ greed ” but it shows a want of honesty and proper regard for the obligation of doctors who participate in the Medicare Scheme.

44 As to whether the respondent should be permitted to practise conditionally, the Tribunal is of the view that his conduct in relation to Patient A in both treating and prescribing for him leave it with no confidence that he would comply with any further conditions placed on his right to practice. The Tribunal acknowledges that it is a grave step to deprive a person of his living, however, in this case there is no course which is appropriate having regard to the seriousness of complaints 1 and 6 but to order that the respondent’s name be removed from the Register of Medical Practitioners and to direct that he may not apply for re-registration until the expiration of a period of two years. In relation to complaints 2-5, the Tribunal orders that the respondent receive a caution.