HCCC v Nemeth - [2012] NSWMT 4

Medical Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Health Care Complaints Commission v Dr Nemeth [2012] NSWMT 4
Hearing dates: 20-23 February 2012
Decision date: 05 April 2012
Before: Kavanagh J; Dr Victoria Sutton; Dr George Abouyanni; Ms Annette Gray
Decision:
(Protective Orders entered 7 May 2012 at [70])
1It is our recommendation the practitioner change the nature of her practice. The Medical Council of NSW must approve the recommended arrangements.
2The doctor, with the assistance of the HCCC, is required to put in place arrangements reflecting suggested conditions on her medical practice. The arrangements shall be reflected in Draft Orders to be filed within 28 days. The Tribunal will then formally enter Orders.
3The Tribunal orders the suppression of the names of all patients referred to in the Schedules and within any documentary materials including the medical reports and assessments.
4The respondent shall pay the complainant's costs.

Catchwords: Doctor charged inappropriate prescribing Schedule 4D and Schedule 8 drugs; failure to keep proper medical records; doctor's compliance with Impaired Doctor's Programme - doctor guilty of unsatisfactory professional conduct and professional misconduct - limitation placed doctor's practice - nature of practice to change - limitation on hours of work - supervision required - limitation on doctor's number of patients to be seen - limitation placed on doctor's power to prescribe Schedule 8 and Schedule 4D drugs - appointment of an independent supervisor - orders accordingly - costs
Legislation Cited: Health Care Complaints Act 1993
Health Practitioner Regulation National Law (NSW) No 86a
Medical Practice Act 1992
Poisons and Therapeutic Goods Act 1966
Cases Cited: Health Care Complaints Commission v Dr Perroux [2011] NSWDC 99
NSW Bar Association v Meakes [2006] NSWCA 340
Pillai v Messiter (No. 2) (1989) 16 NSWLR 197
Spicer v NSW Medical Council (unreported CA No.3 of 1981, 19 February 1981)
Category: Principal judgment
Parties: Health Care Complaints Commission (Complainant)
Dr Katherine Nemeth (Respondent)
Representation: Ms K L Eastman of counsel with Ms J Seymour of counsel - Complainant
Mr G Butler of counsel - Respondent
Health Care Complaints Commission (Complainant)
Browns, Legal & Consulting (Respondent)

File Number(s): MT40001 of 2011

DECISION

The Health Care Complaints Commission ("the Complainant") brings before the Tribunal two complaints following consultation with the Medical Council of NSW ("the Council") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 145A of the Health Practitioner Regulation National Law (NSW) No 86a ("the Act") against Dr Katherine Nemeth ("the respondent") being a registered medical practitioner.

The first complaint alleges, in the following terms, that the respondent:

Has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that she has:

(i)demonstrated that the knowledge, skill or judgment possessed, or care exercised, by her in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;

(ii)has contravened the Medical Practice Regulation 2003 now repealed;

(iii)engaged in improper conduct…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HCCC v Nemeth

Details

AGLC: HCCC v Dr Nemeth [2012] NSWMT 4
Case: [2012] NSWMT 4
Decision Date: 05 April 2012

CaseChat Overview and Summary

In this case, the Health Care Complaints Commission brought proceedings against Dr Nemeth for alleged unsatisfactory professional conduct and professional misconduct, pertaining to her prescribing habits and record-keeping. The tribunal was tasked with determining whether the doctor's conduct warranted such charges and what sanctions, if any, should be imposed. The court had to consider whether the doctor's actions amounted to unsatisfactory professional conduct and professional misconduct under the Health Practitioner Regulation National Law (NSW). This involved examining the doctor's conduct in prescribing Schedule 4D and Schedule 8 drugs, and her failure to maintain proper medical records. The tribunal also had to assess the doctor's compliance with the Impaired Doctor's Programme.

The tribunal found that Dr Nemeth's conduct was indeed unsatisfactory professional conduct and professional misconduct. The tribunal concluded that the doctor had prescribed drugs inappropriately, including Schedule 4D and Schedule 8 substances, and failed to maintain adequate medical records. Although the doctor had participated in the Impaired Doctor's Programme, the tribunal determined that this did not absolve her of responsibility for her actions. The tribunal was also required to consider the appropriate sanctions to impose on the doctor. The tribunal decided that the doctor's practice should change its nature, with the Medical Council of NSW approving the recommended arrangements. Additionally, the doctor was required to implement conditions on her medical practice, including limitations on her hours of work, supervision, the number of patients she could see, and her ability to prescribe certain drugs. An independent supervisor was also to be appointed.

The tribunal made several orders to address the findings of unsatisfactory professional conduct and professional misconduct. Firstly, it recommended that the doctor change the nature of her practice, subject to approval by the Medical Council of NSW. Secondly, the doctor, with assistance from the HCCC, was required to put in place arrangements reflecting the suggested conditions on her medical practice, which were to be reflected in Draft Orders to be filed within 28 days. Thirdly, the tribunal ordered the suppression of the names of all patients referred to in the schedules and within any documentary materials, including the medical reports and assessments. Lastly, the doctor was ordered to pay the complainant's costs. The tribunal's decision aimed to protect the public and ensure that the doctor's practice complied with the necessary standards.

Orders

Orders of the court

(Protective Orders entered 7 May 2012 at [70])

1It is our recommendation the practitioner change the nature of her practice. The Medical Council of NSW must approve the recommended arrangements.

2The doctor, with the assistance of the HCCC, is required to put in place arrangements reflecting suggested conditions on her medical practice. The arrangements shall be reflected in Draft Orders to be filed within 28 days. The Tribunal will then formally enter Orders.

3The Tribunal orders the suppression of the names of all patients referred to in the Schedules and within any documentary materials including the medical reports and assessments.

4The respondent shall pay the complainant's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Health Care Complaints Commission v Dr Nemeth [2012] NSWMT 4
Hearing dates:	20-23 February 2012
Decision date:	05 April 2012
Before:	Kavanagh J; Dr Victoria Sutton; Dr George Abouyanni; Ms Annette Gray
Decision:	(Protective Orders entered 7 May 2012 at [70]) 1It is our recommendation the practitioner change the nature of her practice. The Medical Council of NSW must approve the recommended arrangements. 2The doctor, with the assistance of the HCCC, is required to put in place arrangements reflecting suggested conditions on her medical practice. The arrangements shall be reflected in Draft Orders to be filed within 28 days. The Tribunal will then formally enter Orders. 3The Tribunal orders the suppression of the names of all patients referred to in the Schedules and within any documentary materials including the medical reports and assessments. 4The respondent shall pay the complainant's costs.
Catchwords:	Doctor charged inappropriate prescribing Schedule 4D and Schedule 8 drugs; failure to keep proper medical records; doctor's compliance with Impaired Doctor's Programme - doctor guilty of unsatisfactory professional conduct and professional misconduct - limitation placed doctor's practice - nature of practice to change - limitation on hours of work - supervision required - limitation on doctor's number of patients to be seen - limitation placed on doctor's power to prescribe Schedule 8 and Schedule 4D drugs - appointment of an independent supervisor - orders accordingly - costs
Legislation Cited:	Health Care Complaints Act 1993 Health Practitioner Regulation National Law (NSW) No 86a Medical Practice Act 1992 Poisons and Therapeutic Goods Act 1966
Cases Cited:	Health Care Complaints Commission v Dr Perroux [2011] NSWDC 99 NSW Bar Association v Meakes [2006] NSWCA 340 Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 Spicer v NSW Medical Council (unreported CA No.3 of 1981, 19 February 1981)
Category:	Principal judgment
Parties:	Health Care Complaints Commission (Complainant) Dr Katherine Nemeth (Respondent)
Representation:	Ms K L Eastman of counsel with Ms J Seymour of counsel - Complainant Mr G Butler of counsel - Respondent Health Care Complaints Commission (Complainant) Browns, Legal & Consulting (Respondent)
File Number(s):	MT40001 of 2011