Health Care Complaints Commission v Dr Leonard Philipiah
[2012] NSWMT 14
•28 June 2012
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr Leonard Philipiah [2012] NSWMT 14 Hearing dates: 28, 29, 30 May 2012 Decision date: 28 June 2012 Before: Kavanagh J; Dr A Holdgate; Dr J Wright; Ms D Robinson Decision: 1.The doctor is reprimanded.
2.The doctor is suspended by the Medical Tribunal.
3.The doctor is to notify the NSW Medical Council three months before he wishes to resume practise in New South Wales. The Medical Council of NSW as the Review Body nominated by the Tribunal should receiving the doctor's application:
(a)obtain a conduct report from the New Zealand Medical Council;
(b)obtain an updated medical report from the doctor's treating psychiatrist confirming his fitness to practise medicine.
4.On satisfying the above conditions, the Medical Council after its consideration of the above reports is authorised to lift the doctor's suspension.
5.The doctor if he resumes medical practice in New South Wales should have conditions placed upon his Practicing Certificate for the protection of the public by the Medical Council under s 150(1)(b). A draft of suggested conditions that may be appropriate for the Medical Council to impose are within Annexure A.
6.The Medical Council, should the doctor be permitted to resume practice in New South Wales, must ensure the doctor's impairment is managed in accordance with its obligation including its consideration under the National notification provisions.
7.The Tribunal has issued a suppression order of the names of Patients A to D and the names of family members of Patients A to D and family members of Dr Philipiah. The order covers all documentation including medical reports.
8.There shall be no order as to costs.
Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT, PROFESSIONAL MISCONDUCT - Doctor's competence to practice medicine challenged - in emergency department failure to properly diagnose patients - failure to properly take history - failure to recognise symptoms - analysis of care of four patients - doctor guilty of unsatisfactory professional conduct and professional misconduct in hospital environment - doctor's practice of medicine suspended - doctor in New Zealand - impaired finding given doctor's medical condition - doctor competent - Medical Council Review Body - suspension lifted when New Zealand clearance obtained - recommend to Medical Council when suspension lifted as to conditions - impairment to be recorded - appointment of a supervisor to monitor future practice - orders - suppression order on names of patients - no order as to costs Legislation Cited: Health Care Complaints Act 1993
Health Practitioner Regulation National Law (NSW) No 86aCases Cited: HCCC v Hasil [2012] NSWMT 1
HCCC v Karasalingham [2007] NSWCA 267
HCCC v Potts [2007] NSWMT 8
Tung v HCCC [2011] NSWCA 219Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Dr Leonard Philipiah (Respondent)Representation: C McDonnell SC (Complainant)
P Griffin of counsel (Respondent)
Health Care Complaints Commission (Complainant)
File Number(s): MT40033 of 2010
DECISION
The Health Care Complaints Commission (the Complainant) brings before the Tribunal two complaints following consultation with the Medical Council of New South Wales (the Council) in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law NSW
The first complaint alleges, in the following terms, that the respondent:
COMPLAINT ONE
Has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law and/or professional misconduct within the meaning of section 139E of the National Law in that he has:
(i) Demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a medical practitioner of an equivalent level of training or experience;
(ii) Contravened clause 4 of the Medical Practice Regulation 2008.
Particulars of Complaint
At all material times the practitioner was a Career Medical Officer at Moruya District Hospital and Batemans Bay District Hospital, having been contracted by Greater Southern Area Health Service between 2 March 2009 and 2 June 2009.
Patient A:
On 3 May 2009, at Moruya District Hospital Emergency Department, the practitioner:
1.Failed to obtain an adequate history of Patient A and/or failed to adequately record the history of Patient A in contravention of clause 4 of the Medical Practice Regulation 2008;
2.Failed to conduct an adequate examination of Patient A and/or failed to adequately record the examination of Patient A in contravention of clause 4 of the Medical Practice Regulation 2008;
3.Failed to develop and implement an appropriate management plan for Patient A including:
3.1Failure to prescribe an antibiotic for urine infection for Patient A or, alternatively, failure to document the prescription of antibiotics for Patient A in contravention of clause 4 of the Medical Practice Regulation 2008;
4.Failed to provide adequate follow-up review or advice in respect of Patient A and/or failed to adequately record follow up advice or review of Patient A in contravention of clause 4 of the Medical Practice Regulation 2008;
5.Failed to provide adequate information or advice as to the management of Patient A's discharge and post-discharge management and/or failed to adequately record information or advice in respect of Patient A's discharge and post-discharge management in contravention of clause 4 of the Medical Practice Regulation 2008;
Patient B:
On 4 March 2009, at Batemans Bay District Hospital Emergency Department, the practitioner:
6.Failed to obtain an adequate history of Patient B and/or failed to adequately record the history of Patient B in contravention of clause 4 of the Medical Practice Regulation 2008;
7.Failed to conduct an adequate examination of Patient B and/or, alternatively, failed to adequately record the examination of Patient B in contravention of clause 4 of the Medical Practice Regulation 2008;
8.Failed to consider a possible diagnosis of pulmonary embolus for Patient B;
9.Failed to develop and implement an appropriate management plan for Patient B including:
9.1Inappropriately prescribing antibiotics usually prescribed for a chest infection without any recorded evidence of such chest infection and/or failing to document the reasons for the prescription of antibiotics in contravention of clause 4 of the Medical Practice Regulation 2008; and/or
9.2 Inappropriately prescribing Flixotide which is a treatment for long - term management of asthma and/or failing to document the reasons for the prescription of Flixotide in contravention of clause 4 of the Medical Practice Regulation 2008.
Patient C:
On 5 May 2009, at Moruya District Hospital Emergency Department, the practitioner:
10.Failed to obtain an adequate history of Patient C and/or failed to adequately record the history of Patient C in contravention of clause 4 of the Medical Practice Regulation 2008;
11.Failed to conduct an adequate examination of Patient C and/or failed to adequately record the examination of Patient C in contravention of clause 4 of the Medical Practice Regulation 2008;
12.Failed to develop and implement an appropriate management plan for Patient C including:
12.1Inappropriately applying a below knee cast two weeks after a 'sprained ankle' injury; and/or
12.2 Failure to provide appropriate advice as to the management of the injury;
13.Failed to provide adequate follow-up review or advice in respect of Patient C and/or failed to adequately record follow up advice or review of Patient C in contravention of clause 4 of the Medical Practice Regulation 2008;
14.Failed to provide adequate information or advice as to the management of Patient C's discharge and post-discharge management and/or, failed to adequately record information or advice in respect Patient C's discharge and post-discharge management in contravention of clause 4 of the Medical Practice Regulation 2008;
Patient D:
On 2 May 2009, at Moruya District Hospital Emergency Department, the practitioner:
15.Failed to keep appropriate and/or adequate records for Patient D in contravention of clause 4 of the Medical Practice Regulation 2008.
COMPLAINT TWO
The practitioner has an impairment within the meaning of section 5 of the National Law, being a mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of medicine.
Particulars of Complaint
1.The practitioner suffers from bipolar affective disorder.
There are two complaints brought against Dr Philipiah. The first complaint of unsatisfactory professional conduct and/or professional misconduct arises out of the respondent's treatment of Patient B at Batemans Bay District Hospital Emergency Department on 4 March 2009 and his treatment of Patient A, Patient C and Patient D at Moruya District Hospital Emergency Department between 2 and 5 May 2009. The second complaint of impairment arises out of the diagnosis that the doctor is suffering from bipolar affective disorder.
At all material times the doctor was a Career Medical Officer at Moruya District Hospital and Batemans Bay District Hospital, having been contracted by Greater Southern Area Health Service between 2 March 2009 and 2 June 2009.
The complaints arose out of a referral to the NSW Medical Board dated 20 May 2009 by the Greater Southern Area Health Service (GSAHS) of its concern with the care given by the respondent to a number of patients while he was contracted to work at Batemans Bay Hospital between 2 and 4 March 2009 and at Moruya Hospital between 2 and 5 May 2009. The referral attached a summary of the results of a file review of patients treated by the respondent at both hospitals during the relevant periods.
The analysis of the doctor's treatment of Patient A, Patient B and Patient D in the summary was as follows:
Patient A:(Moruya 3 May 2009) "?appropriateness of Diagnosis and Treatment." [Exhibit 1 tab 3 p 9]
Patient B:(Batemens Bay 4 March 2009) "Nil past history documented of asthma or significant signs of chest infection (not febrile, no cough) to support rationale for aggressive treatment prescribed in pregnancy. No documentation regarding the possibility of Pulmonary Embolus." [Exhibit 1 tab 3 p 11]
Patient D:(Moruya 2 May 2009) "Incorrect diagnosis and management" [Exhibit 1 tab 3 pp 4-5]
The complaint by Patient C is as to her treatment by the respondent at Moruya Hospital on 5 May 2009. Patient C's letter of complaint dated 25 May 2009 was also referred to the Medical Council. The Medical Council after inquiry as to these complaints, suspended the doctor's practicing certificate.
The doctor generally admitted there was a failure by him with regard to fully recording the history taken, the investigations he conducted and the follow up he recommended to each of these patients. However, he contends he did much more than he recorded in relation to each patient.
Complaint 1
Background evidence
Dr Philipiah explained the complaints were sent to him shortly after the review was conducted into his care at the hospital. His records were also sent to him. He was able to concede the records he kept were not adequate but because of the short time span, the doctor opined he could remember each patient and could recollect other conduct by him in treating each patient which steps were not recorded in the clinical notes.
Further, the doctor stated between March and May 2009, at the time of the impugned conduct, his marriage was deteriorating and on 30 April 2009 he and his wife separated; he was experiencing significant stress; during the first week of May 2009 he was physically unwell with the flu; he felt obliged to continue working at Moruya Hospital despite being unwell because of low morale at the hospital and he was required to work for five days at Moruya Hospital despite requesting only four days.
Patient A was a 31 year old woman who was three months post partum with grabbing waves of pain in the right inguinal fossa at a level 4-9/10. The doctor diagnosed her "?bowel spasm secondary to urinary tract infection". Both his diagnosis and failure to treat were challenged.
During its investigation of the complaints, the HCCC obtained a report from an expert peer reviewer, Dr Kenneth Mackey. Dr Mackey reached the following conclusions about the respondent's treatment of Patient A:
Patient A
The history obtained by the doctor was inadequate and detailed nothing beyond that obtained initially by a nurse. There was a significant lack of details with regards to complications possible after childbirth;
A diagnosis was made of bowel spasm which was proposed to be a secondary effect of a urine infection. However, other serious problems should have been considered but there was no mention of alternative diagnoses;
Although there was evidence of a urine infection which the doctor was aware of and which should have been managed through the prescription of an antibiotic no such medication was prescribed or recorded as having been prescribed, and no other medication or treatment seems to have been given or recorded;
No follow-up was provided or documented by the Respondent;
A plan of management was missing.
The doctor stated he recalled explaining to Patient A that her abdominal pain was most likely from a urinary infection and she would need a course of antibiotics. He maintained the diagnosed bowel spasm secondary to a urinary infection was appropriate. He regrets he did not notate other possible diagnoses but maintains the other diagnoses were less likely. In addition to the prescription of Buscopan, he prescribed an antibiotic to manage the urinary infection. Unfortunately, he failed to make a record of this and acknowledged that he should have.
Patient B
Patient B, on 4 March 2009, presented at Batemans Bay District Hospital Emergency Department. The doctor's notes have been examined. The patient presented with a severe sudden onset of chest pain. She had coughed up a small amount of blood. There was pain in the left calf and she reported (and it was recorded in the nurse's notes) a previous concern of pulmonary embolus in 2006.
The doctor diagnosed "asthma with costochondritis". He ordered Prednisone, Flixotide Puffer, Panedine, Ventolin and Maxolon. The criticism of both the reviewer and the Tribunal is this was aggressive treatment for a person with no history of asthma, no symptoms cough or shortness of breath, a normal peak expiratory flow rate, a clear chest on auscultation and who was pregnant. The doctor, given the symptoms, failed to consider a pulmonary embolus.
Doctor Mackey opined:
Patient B
The history documentation was brief and inadequate with a significant symptom mentioned in the nursing notes ignored by the respondent as a pointer to the cause of Patient B's presentation;
The examination of Patient B was brief and inadequate with a significant symptom mentioned in the nursing notes ignored by the respondent as a pointer to the cause of Patient B's presentation;
The doctor ignored as a pointer to the cause of Patient B's presentation the symptom of pulmonary embolus mentioned in the nursing notes;
A plan of management was provided in a simple way which seems adequate but there was no evidence as to the diagnosis that is being acted upon.
The doctor did not admit that he inappropriately prescribed Flixotide to Patient B. He admitted that he failed to document the reasons for the prescription of Flixotide. After it was put to the doctor that he inappropriately prescribed Flixotide, which is a treatment for long-term management of asthma, and failed to document the reasons for the prescription of Flixotide in contravention of cl 4 of the Medical Practice Regulation 2008, the doctor, with some reluctance, conceded this treatment was inappropriate.
The doctor agreed that if Patient B presented today with the same symptoms he would treat her differently. Rather than diagnosing asthma immediately and prescribing Flixotide, he would plan measured peak flow readings for a two week period and then assess the results of that before deciding on the next treatment.
The doctor in evidence stated that he did consider the diagnosis of pulmonary embolus very unlikely as Patient B had no leg swelling and her heart rate was not over 100. He suggested he did discuss it but did not record the possibility of an embolism. He was unaware that the patient had coughed up blood and erroneously believed that the patient had a negative D-dimer which was a test which had been performed two years earlier. He stated that on the basis of Wells criteria she fell into the 'low risk' category but was unaware that Wells criteria are not validated in pregnant patients. He remained unwilling to accept that he had made a serious diagnostic error. He stated he did recommend she return to a general practitioner. He opined that the prescription of Prednisone and a trial of antibiotics was appropriate in the context of her presentation. In relation to the antibiotics, at the time of the consultation, he could not exclude an underlying bronchitis with the asthma component. He considered it prudent to give a trial of medications and to do twice-daily peak flow readings and see whether the patient was having a more common alternative diagnosis that was being missed. He gave Patient B a peak flow meter with a chart to do her own peak flow readings. He admitted he failed to record why he prescribed the medication.
Patient C
On 5 May 2009, at Moruya District Hospital Emergency Department, Patient C presented with an injured ankle. She report she was able to continue at work but the pain was getting worse and she was unable to weight-bear for long hours. She had taken analgesics and anti-inflammatories with little effect. Additionally, the patient was on medication for bi-polar disorder and was taking Tramadol for back pain. Dr Philipiah, in his records, acknowledged the nursing notes recorded pain over the left lateral malleolus and lateral foot. There were no examination details otherwise recorded by Dr Philipiah. An x-ray was ordered by the doctor. Other routine ward investigations of blood pressure, temperature and heart rate were normal. The radiologist did not see a fracture that would need treatment by an immobilisation cast. They reported normal. Dr Philipiah apparently read the x-ray of the ankle himself and diagnosed a fracture of distal fibula. He ordered the provision of split cast some two weeks after a "sprained ankle".
Dr Mackey expressed the view:
Patient C
The brief history of Patient C recorded was inadequate. Patient C had complex social and psychiatric issues that needed to be acknowledged in their effects upon her presentation and management of the injury;
The examination of Patient C was inadequate and lacking;
The doctor failed to develop an appropriate management plan for Patient C, including his inappropriately recommending a below knee cast two weeks after the ankle injury and failing to provide adequate advice about the management of the injury;
His failure to provide and/or record adequate follow-up advice on care of the cast and warnings on complications including problems that could arise from ischaemia;
Patient C's discharge occurred without any obvious or recorded information provided to Patient C for herself and/or her GP in follow-up.
The doctor stated he recalled but did not record he recommended a follow up with her General Practitioner.
Patient D
On 2 May 2009, at Moruya District Hospital Emergency Department, the patient stated she had flu-like symptoms for 10 days. She had shakes, night sweats, aching joints and was feeling weak. Her temperature was 39.3. The patient was 62 years old with a mixed connective tissue disorder, rheumatoid arthritis, Lupus and a diabetic. On examination, the doctor noted chest decreased air entry, some neck glands and abnormal urine analysis. The doctor diagnosed "mixed infection" and ordered Panadol, Rulide, Cephalexin and Panadine. In evidence, doctor stated that the patient had a minor viral infection despite a clear history of a prolonged febrile illness associated with rigors in a patient was had a least three immunosuppressant factors. The doctor was unaware of the seriousness of this clinical presentation in an immunosuppressed patient.
Patient D's general practitioner, on whom she next attended, wrote:
(Patient D) was seen in the ED over the weekend with a temperature of >39 degrees, on immunosuppressives and a suppressed marrow. She was monitored in the ED, no bloods were done and she was discharged on oral antibiotics. She was told she had lots of pus in her urine, yet no MSU was collected. She was also informed that she was extremely fortunate to have met with the said NZ doctor, as he was 20 years ahead of the Australian medical fraternity in prescribing broad spectrum antibiotics.
She presented to our surgery on Monday with no clinical information, looking septic and shut down in urgent need of admission. She probably required a stress dose of prednisone. I have just admitted (Patient D) with sepsis. Her interaction in the ED was incorrect and dangerous.
The patient was admitted to Moruya Hospital for Pyrexia of unknown origin. She was commenced on IV antibiotics. A number of laboratory abnormalities were suggestive of primary bone marrow disorder.
The view of the review and that of the Tribunal was the doctor made an incorrect diagnosis and, therefore, his management was clinically in error.
The doctor opined:
When she came in, she did not bring all her medications with her and told me where there were gaps. She mentioned her methotrexate but not her prednisone. I was aware that sepsis/infection is a risk with either medication but I did not alter my immediate management in the context of her illness as she was feeling better in the ED and wanted to go home. She reassured me that she was going to follow up with her GP the next day. This included doing blood tests.
Dr Mackey concluded that the patient history recorded by the respondent was:
minimal and basic for a lady with a long history of complex medical problems including diabetes ... a patient with such significant complex medical history should have further details of provided in her history including medication. Additionally, the documentation on examination is brief and insufficient. There is no documentation indicating a plan for further care beyond this initial episode. Such an omission is a deficiency in care but not below a standard expected.
Conclusions as to Complaint 1
Generally the doctor agreed that some of his assessments could have been done better. When asked whether he could have missed a diagnosis he replied with words to the effect: "You can always make a better diagnosis".
If the records are accepted to outline the extent of the respondent's diagnosis and treatment, it is the Tribunal's view the doctor did not give proper consideration to the possibility of pulmonary embolus in Patient B and incorrectly diagnosed a fractured leg for Patient C and failed to give any proper diagnostic consideration to the multiple difficulties suffered by Patient D.
Despite the deficiencies in his records with respect to Patients A, B and C, the respondent asked this Tribunal to accept that his recollection of examination, diagnosis, prescription of and management and follow-up of Patients A, B and C was as set out in his statement and was not limited to what was recorded in the medical records for those patients.
Mr Griffin, for the doctor, submitted during the short period at Moruya, over five days, the doctor saw 105 patients. All 105 patients were reviewed. It was decided to conduct a further review in relation to 24 of those patients. Only three of those patients have become the subject of complaint. Mr Griffin submitted the Tribunal can infer from the above that the doctor was doing a number of things adequately. He was not "out of control". The Tribunal must take into account the evidence of the peer doctor, Dr Mackey. If the Tribunal accepts Dr Mackey, it would find that there was unsatisfactory professional misconduct but not professional misconduct.
Dr Mackey concluded that the conduct demonstrated by the doctor in the care of each of Patient A and Patient C departed from the standard and was significantly below that standard expected of a doctor of an equivalent level of training and/or experience applicable at the time of those treatments, but did not invite his strong criticism. The clinical care provided to the patients was unsatisfactory professional conduct. Dr Mackey did not make such a finding with respect to the respondent's care of Patient D.
However, the Tribunal is of the view that the doctor's treatment of Patients B and D was such to attract a finding of professional misconduct and therefore the cumulative effect of the doctor's conduct - isolated to an assessment of his clinical care was professional misconduct.
Complaint 2
The second complaint is based upon the following particulars:
The practitioner has an impairment within the meaning of section 5 of the National Law, being a mental impairment, disability, condition or disorder that detrimentally affects or is likely to detrimentally affect the practitioner's capacity to practise the profession of medicine.
The doctor conceded he suffers from bipolar affective disorder.
The doctor's evidence is he is suffering from Bipolar Disorder and Depression which was diagnosed on 2003. He is currently taking lithium for the management of this condition as well as continuing to consult his medical practitioners in New Zealand.
His treating Psychiatrist, Dr Sara Week's, report dated 8 July 2009, included the following statements:
I first met [the doctor] in November 2003 when he self referred with symptoms of a major depressive disorder which had not responded to treatment with tricyclic antidepressants ...
When I saw [the doctor] in September 2007 he described having special healing powers ... I was satisfied that he was practising safely at that time ... It was my opinion that his grandiosity was related more to narcissistic personality structure than to psychotic illness or mood elevation.
... It is my understanding from [the doctor] that the matters before the Board are related to the first week in May. By his description he was physically unwell during that time and in retrospect does not feel that he should have been working, but did not want to let people down.
[The doctor's] diagnosis is of Bipolar Affective Disorder type II and cluster B personality traits, primarily narcissistic and histrionic ...
By [the doctor's] description, the main impact on his practice has been with regard to colleague relationships and related to his personality structure, rather than the bipolar disorder.
Dr Leigh Bennie opined on 9 July 2009:
[The doctor] consulted me early this year as a patient for the first time ...He related a history of depression and variable mood that had some relationship to his work stressors and home environment ...
He was compliant with medical management, including an antidepressant, and mood stabilizer, and in fact his primary motivation for attending the consult appeared to be for the purpose of renewing prescriptions.
Mr Louis Niekerk, Clinical Psychologist, reported in July 2009:
"When I saw [the doctor] last on 11.05.09 he was only on Efexor 225mg, and Lithium Carbonate 1000mg ...
Diagnosis at this Stage
I feel the previous diagnosis is still relevant:
Axis I 1. Major Depressive Disorder - unipolar
2. Bipolar II Disorder [recurrent Major Depressive episodes with Hypomanic episodes]
Axis II Cluster B Personality Traits
Axis III Hypertension, past history of Prostatitis and Kidney stones;
Axis IV Issues with wife, work issues, potential financial/ Tax issues
On 20 August 2009, Dr Anthony Samuels, a psychiatrist, saw the respondent for the purposes of providing a psychiatric report in relation to his impairment issues which report was for the Medical Council. Dr Samuels' opinion was that Dr Philipiah was suffering at that time from "a relapsing Bipolar Affective Disorder with lability of mood, slight grandiosity and the suggestion of a degree of insightlessness". The doctor opined the doctor's beliefs in possessing healing abilities were in keeping with overvalued ideas rather than delusions.
Dr Samuels stated that he "had some concerns about [the doctor's] current fitness to practice medicine". He, however, recommended that the doctor, if he returned to practice in New South Wales, not practice in an isolated rural setting but base himself "in a place in which he has easy and unrestricted access to treating health professionals." Dr Samuels recommended, therefore, that Dr Philipiah:
(a)Should not be working in many different places in which it is difficult to maintain any oversight in regard to his professional abilities and competence; and
(b)Should work in a well supervised general hospital type setting in which there is the capacity to provide monitoring and oversight of his work performance.
The Medical Council, however, suspended the doctor's practicing certificate as the evidence was the doctor had returned to New Zealand. He has remained in New Zealand.
Dr Philipiah has continued under the care of Dr Weeks. It appears for two years after his return to New Zealand he did not seek to practice medicine. He has lost over 20 kilos in weight and after admitting to foolishly adjusting his own medication has now appropriately conceded he must comply with his treating doctor's expert advice. There is evidence he has since early 2012 not interfered with the professional advice as to his medication.
After two years, the doctor sought re-admission to medical practice in New Zealand. He properly declared his condition. He has a conditional practicing certificate to work under supervision in a group practice in New Zealand. The New Zealand Medical Council sought the guidance of Dr David Codyre who formed the opinion that the doctor was free of any symptoms of mood disorder and was, therefore, currently fit to practice medicine from a psychiatric perspective.
However, Dr Codyre's conclusion of current fitness was tempered by Dr Codyre's expressed concerns as to the level of the doctor's "insight" and his vulnerability to stress. Dr Codyre expressed this concern in the following way:
It is my opinion that [the Respondent] is, from a psychiatric perspective, currently fit to practice medicine. He has been free of any significant symptoms of mood disorder for 2 years. There are no concerns about the safety or standards of his current practice, and in my opinion the complaints which lead to his referral to the HCCC all arose In the context of persisting mood disturbance through the period of 2005-2009. However, he does remain with incomplete insight into the full nature and extent of his condition, and of concern had recently been reducing his mood stabilizer medication dose (though did accept strong advice to increase it again). He will remain vulnerable to stress precipitating recurrence of his severe mood disorder in the future. On this basis I have strongly advised the following steps to ensure his continued well-being, which he accepts but which could usefully reflected in a voluntary undertaking.
The steps recommended by Dr Codyre were, in summary, as follows:
i. The Respondent should remain on at minimum the dose of mood stabilizing medication which leaves him with no appreciable side effects (Lithium 750mg daily);
ii. Remain in regular (monthly at least) contact with his treating psychiatrist and accept and adhere to her treatment advice including frequency of appointments and advice regarding time off work on sick leave in the event of any recurrence of mood disorder;
iii. Any change in medication should be undertaken only following review by his psychiatrist;
iv. He and his psychiatrist should develop a clear plan (to be shared with the Respondent's GP and family) for identification of early signs of any possible future recurrence, following that up with action to prevent further mood disorder;
v. The Respondent should engage in a period of at least 6-12 months of regular (at least twice weekly) psychological intervention to improve his insight;
vi. The Respondent should remain practising within a supported group context for at least the intermediate term; and
vii. The Respondent should remain engaged with a consulting GP and consult this GP regarding evolving health matters; and the practitioner be reviewed in 12 months.
The Tribunal, having seen and heard the doctor and while noting the concessions the doctor made in evidence as to his conduct (which concessions had not before been made) and in the context of hearing Dr Codyre and Dr Week's evidence, also questioned the doctor's lack of insight and queried whether some of the doctor's attitudes arose more from a personality disorder, namely, narcissism.
Dr Wright asked Dr Samuels:
Q. But in relation to the issue that arises, commenting on insight, and I'm just interested in your views on the relevance of those comments of Dr Codyre and Dr Weeks in relation to insight in more recent reports?
A. Well, I think, yes. I mean, I think at the time I saw Dr Philipiah, he probably was still quite unwell, and I guess that his insight was probably limited by his condition at the time, and I guess my view would have been that his level of insight might fluctuate or improve, had his mood state settled. It does arise from the reports of Dr Codyre and Dr Weeks that there's still some residual issue in relation to insight. He perhaps doesn't have a full appreciation of how unwell he gets at times or the effect that his mood disorder might have on his judgment and clinical practice.
Q. Dr Weeks also mentioned that Dr Philipiah sometimes has difficulties with painful selfreflection, and this was one of the motivators for ongoing psychotherapy?
A. Yes.
Q. How would you anticipate that might translate into a clinical setting?
A. I have to think about that. I guess, I mean, I guess one of the concerns might be that if a patient or staff members in that particular setting were critical of something that he said or did, he might have some difficulty taking on board that feedback or modifying his practice or reviewing his particular stance in relation to a proposed procedure diagnosis treatment. So I guess my concern would be, that he might not have the flexibility to take cues from other people or to adapt to the kinds of things patients were saying to him. It also might prevent him from perhaps seeking a second opinion from someone else in the practice, or asking someone else what to do, and I think that would be one of the important reasons why he hasn't got a supervisor close at hand. A mentor to help him navigate from a more difficult clinical interaction would be imperative.
and, in relation to the issue of personality:
Q. In Dr Weeks' report in 2009, she made a diagnosis of Bipolar Affective Disorder and narcissistic personality traits?
A. Yes.
Q. In your report, you commented that in light of the fact that he was probably hypomanic at the time you saw him?
A. Yeah.
Q. You didn't like to commit yourself to whether or not those traits were there?
A. Yes.
Q. Is it possible for someone to have both diagnoses?
A. Absolutely, absolutely.
Q. And how would you, over time, pick the difference?
A. Well, I guess once the patient has been complied with medications for a reasonable amount of time, once the medication has been optimised, and it seems that any depressive or manic or hypomanic symptoms are in remission, if you're still left with, I guess, symptoms of grandiosity or a sense of belief in your abilities that perhaps succeeds the reality or feedback from others, those would be marked that some of these elements or the presentation are more personality based, rather than being part of an illness that fluctuates, or whether symptoms come and go.
Q. As a last question, would you like to comment on how stress, whether it be personal or work related, might impact on personality traits?
A. Well, I think under stress, personality traits often become more accentuated and more prominent, and of course, under stress, it's also more likely that Dr Philipiah could become depressed or hypomanic, so I think it might be difficult in times of stress to once again tease out what his personality, or the beginnings of a relapse of a mood disorder, but certainly, stress would be a very important factor in accentuating personality traits.
We accept Dr Samuel's opinion and take guidance from it.
The HCCC opines in a circumstance where there is both professional misconduct and evidence of an impairment, the appropriate order is de-registration.
A finding of professional misconduct is not necessarily incompatible with a concurrent finding of impairment where both are made out: HCCC v Karasalingham [2007] NSWCA 267 per Basten JA at [28]; HCCC v Potts [2007] NSWMT 8 at [123]- [125]. No question of wilfulness of conduct is raised by the definitions of either category of misconduct and there is no inconsistency in this approach.
While a finding of impairment does not, of itself ground deregistration, it may bear upon a practitioner's competence to practice medicine. This was held to be the position under the legislation that preceded the National Law and the position is relevantly identical under the National Law. Authority for this proposition under the previous law can be found in Tung v HCCC [2011] NSWCA 219, where Giles JA stated (Campbell JA and Tobias AJA agreeing) at [23]:
A finding that a complaint of impairment had been proved could enliven referral to an Impaired Registrants Panel and eventually action of various kinds under Pt 5 of the Act. It could not of itself bring about a deregistration order pursuant to s 64(1). It could nonetheless bear upon competence to practice medicine: see Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168] per Sackville AJA, with whom Giles and Young JJA relevantly agreed -
"A person is 'competent to practise medicine' only if he or she has, relevantly, sufficient mental capacity to practise medicine and has sufficient communication skills to do so (cl 2). There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act."
In Tung, Giles JA went on to state at [56]:
"There is some overlap between the two grounds for complaint in s 39 of the Act, being lack of competence on the one hand and impairment on the other. The definitions of these terms have been set out at [20] above. A physical or mental impairment, disability, condition or disorder which detrimentally affects the person's physical or mental capacity to practice medicine may mean that the person does not have sufficient physical capacity, mental capacity or skill to practice medicine. But that is not necessarily so, and particularly it is not necessarily so in the case of a physical or mental impairment, disability, condition or disorder which is likely to detrimentally affect the person's physical or mental capacity to practice medicine. Thus in Lindsay v Health Care Complaints Commission Sackville AJA observed at [169] that the Tribunal "merely asserted, without further reasons, that by reason of his impairment, the appellant was not competent to practise medicine", and continued -
"[170] The absence of further reasons supporting the finding of lack of competence perhaps suggests that the Tribunal assumed that the existence of an impairment, at least of the kind attributed to the appellant, necessarily meant that he lacked the mental capacity or communication skills to practise medicine. Such an assumption would be incorrect. Even a serious psychiatric condition does not necessarily lead to the conclusion that the medical practitioner concerned lacks competence in the relevant sense. Whether it does or not will depend on such considerations as the nature and likely duration of the impairment, the kind of practice carried on by the medical practitioner, the extent to which the impairment interferes with the practitioner's judgment, communication skills and clinical ability, and other relevant circumstances."
While entering a finding of impairment, as conceded by the doctor, having regard to that impairment and the medical evidence as to his mental condition, we find it nonetheless results in the conclusion that he is currently competent to practice medicine: HCCC v Hasil [2012] NSWMT 1 at [188].
Further, in considering all the evidence as to the misconduct and impairment but balancing that with: the medical evidence from treating Psychiatrists; his attempts over two years to put his life in order; his attempts to search for insight into the affect of his condition and personality on his past medical practice and his present competency in delivering professional medical care, we do not find that the seriousness of the misconduct along with the impairment should lead to deregistration.
Having determined that the doctor is not to be deregistered, it is necessary to deal with the fact that the doctor has had his registration suspended given his clinical treatment as recited above. The Tribunal has found that the doctor has been guilty of professional misconduct in that clinical treatment and also it found he suffers an "impairment". The appropriate order is to place another suspension on the doctor's registration.
However, there are some difficulties in how the Tribunal fashions its Orders. Dr Philipiah is at present practicing medicine in New Zealand. The effect of his suspension under s 176D (Effect of suspension) of the National Law. The National Law provides:
If a person's registration as a health practitioner or student is suspended under this Law the person is taken during the period of suspension not to be registered under this Law, other than for the purposes of this Part.
The doctor gave evidence of working successfully in a group practice in New Zealand. He is under the care of a psychiatrist in New Zealand and on medication for his impairment. The Tribunal is of the view the doctor should obtain the appropriate clearances before resuming any work in Australia. The doctor has given no indication given his present circumstance as to when he has an intention to return to practise medicine in New South Wales. We take all the above into our consideration in fashioning the orders below.
The Tribunal in its consideration may do one or more of the following in relation to a registered health practitioner:
149A General powers to caution, reprimand, counsel etc [NSW]
(1) The Tribunal may do any one or more of the following in relation to the registered health practitioner-
(a) caution or reprimand the practitioner;
(b) impose the conditions it considers appropriate on the practitioner's registration;
(c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling;
(d) order the practitioner to complete an educational course specified by the Tribunal;
(e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal;
(f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
. . .
The Tribunal, therefore, suspends the practitioner for the period of time until the Medical Council of New South Wales as the Tribunal's nominated Review Body lifts the suspension.
When the doctor notifies the Medical Council of his intention to practise in New South Wales, the Tribunal would expect the Medical Council should consider obtaining a conduct report from the New Zealand Medical Council. The Medical Council should also obtain an updated medical report from his treating psychiatrist confirming the doctor's fitness to practise medicine.
On satisfying the above conditions, the doctor's suspension by the Tribunal can be lifted by the Medical Council, conditional upon the conditions imposed by the Medical Council for the purpose of protecting the public (see Annexure A).
The Tribunal is of the view conditions should then be placed on the doctor's registration after the Medical Council lifts the suspension. The supervision and mentoring conditions are to ensure the doctor is given full professional support. The health related conditions are to ensure the doctor continues to gain the support provided by a treating Psychiatrist.
Further, the doctor's registration should record if the suspension is lifted, the Tribunal's finding the doctor suffers an impairment. The Medical Council will manage the doctor's impairment in accordance with Division 8 of Part 8 of the Health Practitioner Regulation National Law (NSW).
Given the circumstances recited above and notwithstanding that it is usual for costs to follow the cause, this is a discretionary matter. The doctor is only just beginning to get his life in order. He has limited means and a wife and children to support. He has no insurance cover in New South Wales. In the use of the discretion held by the Tribunal, we determine that there shall be no order as to costs.
Orders
The Tribunal, therefore, orders:
1.The doctor is reprimanded.
2.The doctor is suspended by the Medical Tribunal.
3.The doctor is to notify the NSW Medical Council three months before he wishes to resume practise in New South Wales. The Medical Council of NSW as the Review Body nominated by the Tribunal should on receiving the doctor's application:
(a)obtain a conduct report from the New Zealand Medical Council;
(b)obtain an updated medical report from the doctor's treating psychiatrist confirming his fitness to practise medicine.
4.On satisfying the above conditions, the Medical Council after its consideration of the above reports is authorised to lift the doctor's suspension.
5.The doctor if he resumes medical practice in New South Wales should have conditions placed upon his Practicing Certificate for the protection of the public by the Medical Council under s 150(1)(b). A draft of suggested conditions that may be appropriate for the Medical Council to impose are within Annexure A.
6.The Medical Council, should the doctor be permitted to resume practice in New South Wales, must ensure the doctor's impairment is managed in accordance with its obligation including its consideration under the National notification provisions.
7.The Tribunal has issued a suppression order of the names of Patients A to D and the names of family members of Patients A to D and family members of Dr Philipiah. The order covers all documentation including medical reports.
8.There shall be no order as to costs.
ANNEXURE A
PRACTICE RELATED CONDITIONS:
1. On gaining re-registration in NSW, the Practitioner is to work only in a position approved by the Medical Council of NSW ("the Council").
2. The Practitioner is to advise and to obtain approval of the Council prior to changing his place of practice for a period of two years or for any further period deemed appropriate by the Council.
3. To practice only in a supervised group practice (a group is defined as at least 3 other practitioners) or hospital position with at least one other practitioner (and/or senior support staff) always on site and a senior practitioner always available at least by telephone; or in a group practice with one other practitioner (supervisor) always on site.
4. The practitioner is not to work in locum positions and/or short term contract positions.
5. The practitioner is not to undertake solo general practice work for two years or for such period as the practitioner is required to undertake supervised medical practice in accordance with Supervision clauses i-v below.
SUPERVISION
1. To nominate a supervisor within 28 days of the date of this Decision, if the doctor returns within three months to New South Wales or 28 days after he returns following the lifting of his suspension, to be approved by the Medical Council of NSW ('the Council'), to monitor and review his clinical practice in accordance with Level 2 Supervision as contained in the Council's Policy on Supervision (PCH7.5) The approved supervisor is to be provided with a copy of the Councils Supervision Policy and a copy of this Decision. The practitioner is to be responsible for all costs associated with the supervision arrangement.
The practitioner is to ensure that:
a. He and the supervisor meet on a fortnightly basis for at least one hour, the first meeting to occur within one month of being advised by the Council that the nominated supervisor has been approved.
b. Each meeting includes (but is not limited to): an inspection of records kept in the course of his practice, discussion of the various legislative and regulatory requirements re medical record-keeping standards and attendant on proper medical practice; a review of work progress over the previous month with a focus on the various concerns raised by this Decision
c. At each meeting, the supervisor completes a record of matters discussed at the meeting in a format prescribed or approved by the Council.
d. The supervisor forwards to the Council, on a monthly basis a Supervision Report in a format prescribed or approved by the Council.
e. The supervisor is authorised to inform the Council immediately if there is any concern in relation to the practitioner's compliance with the supervision requirements, clinical performance, health, or if the supervisor relationship ceases.
f. In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are forwarded for approval by the Council within 21 days of the cessation of the original supervisory relationship.
g. That the supervisory arrangement remains in place for 2 months or for any further period deemed appropriate by the Council.
MENTORING
1. Within 28 days of the date of receipt of the lifting of his suspension, he is to notify and provide for approval by the Council the name and professional address of a general practitioner in a senior position who has agreed to act as his professional mentor. The mentor is to be provided with a copy of "Guidelines for Mentors" as provided by the Council and a copy of this Decision.
The practitioner is to ensure that:
He and the mentor meet on a monthly basis for at least two hours, the first meeting to occur within one fortnight of being advised that his nominated mentor has been approved.
a. He is to authorise the mentor to report, in an approved format, to the Council every 2 months about the fact of contact, and to inform the Council if there is any concern about his professional conduct, health or personal wellbeing.
b. He is to authorise the mentor to notify the Council of any failure to attend, termination of the mentoring relationship against the advice of the mentor, or any other matter the mentor considers appropriate.
c. He will meet with the mentor for an initial period of 24 months from the date of the first consultation and thereafter for such period as the Council may determine.
d. In the event that the approved mentor is no longer willing or able to continue as mentor, he is to nominate another mentor for approval by the Council within 28 days of the cessation of the original mentor relationship.
e. He is to be responsible for any costs associated with the mentoring process.
HEALTH RELATED CONDITIONS:
1.To attend for treatment by a general practitioner of his choice, at a frequency to be determined by him and the treating practitioner. He is to notify the Medical Council of NSW of the name of his treating general practitioner within 2 weeks and is to authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status. He is to be responsible for any costs associated with consulting the general practitioner.
2.Attend for treatment by a psychiatrist of his choice, once a month or at a frequency to be determined by the treating psychiatrist. Dr Philipiah is to notify the Council of the name of his treating psychiatrist within eight weeks of registration in NSW and is to authorise the treating psychiatrist to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status. He is to be responsible for any costs associated with consulting a psychiatrist.
3.To attend for treatment by a psychologist of his choice, fortnightly. The sessions with the psychologist is to deal with issues relating to improving his insight to matters raised in the Tribunal hearing including resolving past trauma and dealing with stress management. To authorise the treating practitioner to inform the Council of failure to attend for treatment, termination of treatment or if there is a significant change in health status. He is to be responsible for any costs associated with consulting a psychologist.
4.To continue taking any medication prescribed by his treating psychiatrist including mood stabilising medications. Any change to medication should be at the psychiatrist's request.
5. On obtaining re-registration in NSW to attend for review by the Board-nominated psychiatrist as directed by the Council, at the Council's expense.
6.To authorise the Council to forward copies of this Decision and any subsequent Board Review Interview or other reports and any other information relevant to his health and treatment, to the Council-nominated practitioners and his treating practitioners, supervisor and mentor.
7.The practitioner is to notify the Council immediately of any change in treating practitioner so that copies of the decision may be provide to them.
However, should Dr Philipiah seek to change or remove any of the conditions imposed as a result of this Tribunal's orders when his principal place of practice is anywhere in Australia other than in New South Wales, s 125 to s 127 inclusive of the Health Practitioner National Law are to apply, so that a review of these conditions can be conducted by the Medical Board of Australia.
Decision last updated: 13 July 2012
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