Health Care Complaints Commission v Tsouroutis
[2012] NSWMT 2
•12 March 2012
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Tsouroutis [2012] NSWMT 2 Hearing dates: 1 February 2012 Decision date: 12 March 2012 Before: Marks J
Dr S Gani
Dr W Jammal
Ms H KielDecision: The Tribunal orders:
1) The respondent, Michael Tsouroutis, be reprimanded.
2) The respondent is to pay the complainant's costs in an amount assessed by the Tribunal in default of agreement.
Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT - failure to comply with registration conditions - failure to communicate with mentor and to attend mentoring sessions - serious breach of conditions - subsequent exemplary participation in mentoring process - breach did not impact on ability to practice medicine - personal circumstances caused anxiety and stress - non-specific personality disorder - conditions imposed on registration not to be disturbed by Tribunal - practitioner reprimanded - order as to costs Legislation Cited: Health Practitioner Regulation National Law (NSW) - s 139B(1)(c), s 139E, s 149A
Poisons and Therapeutic Goods Act 1996 - Schedule 4D, Schedule 8Cases Cited: Health Care Complaints Commission v Dr Ian McHue (NSW Medical Tribunal, 14 December 2007) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant)
Michael Tsouroutis (Respondent)Representation: Mr P Griffin of counsel (Complainant)
Mr M Lynch of counsel (Respondent)
Health Care Complaints Commission (Complainant)
Holman Webb (Respondent)
File Number(s): MT 40009 of 2011
Judgment
Introduction
The complainant, the Health Care Complaints Commission, has instituted complaint proceedings against the respondent, Dr Michael Tsouroutis, alleging unsatisfactory professional conduct within the meaning of s 139B(1)(c) of the Health Practitioner Regulation National Law (NSW) ("the National Law") or alternatively alleging professional misconduct within the meaning of s 139E of that Law.
Relevantly, sections 139B(1)(c) and 139E of the National Law are in the following terms:
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following-
...
(c) Contravention of conditions of registration or undertaking
A contravention by the practitioner (whether by act or omission) of-
(i) a condition to which the practitioner's registration is subject; or
(ii) an undertaking given to a National Board.
and
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconduct of a registered health practitioner means-
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
The particulars of each of the complaints are identical. They are in the following terms:
COMPLAINT ONE
Has been guilty of unsatisfactory professional conduct within the meaning of section 139B(c) of the National Law in that he has contravened a condition to which his registration is subject.
PARTICULARS
1. On 9 June 2005 the Medical Tribunal of New South Wales found Dr Michael Tsouroutis guilty of professional misconduct and conditions were imposed on his registration as a medical practitioner, including the following condition:
"8. To notify the NSW Medical Board of the name and professional address of a medical practitioner who has agreed to act as his professional mentor before 8 July 2005. The nature and frequency of the contact between Dr Tsouroutis and his professional mentor is to be agreed between them. Dr Tsouroutis is to give the professional mentor a copy of the Reasons for Determination and Orders of the Tribunal to authorise the mentor to notify the NSW Medical Board every six months of the fact of their contact."
2. The respondent failed to comply with the provisions of Condition 8 on his registration in that:
a) from 24 December 2008 until 15 July 2010, he failed to adhere to the agreement he made with his professional mentor, Dr Emery Kertesz, to have email contact with him at three month intervals; and
b) from 4 February 2009 until 15 July 2010, he failed to adhere to the agreement he made with his professional mentor, Dr Emery Kertesz, to have face to face meetings with him at six month intervals.
COMPLAINT TWO
Has been guilty of professional misconduct within the meaning of section 139E of the National Law (NSW) in that he has:
(i) Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration; and/or
(ii) Has engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration.
PARTICULARS
1. On 9 June 2005 the Medical Tribunal of New South Wales found Dr Michael Tsouroutis guilty of professional misconduct and conditions were imposed on his registration as a medical practitioner, including the following condition:
"8. To notify the NSW Medical Board of the name and professional address of a medical practitioner who has agreed to act as his professional mentor before 8 July 2005. The nature and frequency of the contact between Dr Tsouroutis and his professional mentor is to be agreed between them. Dr Tsouroutis is to give the professional mentor a copy of the Reasons for Determination and Orders of the Tribunal to authorise the mentor to notify the NSW Medical Board every six months of the fact of their contact."
2. The respondent failed to comply with the provisions of Condition 8 on his registration in that:
a) from 24 December 2008 until 15 July 2010, he failed to adhere to the agreement he made with his professional mentor, Dr Emery Kertesz, to have email contact with him at three month intervals; and
b) from 4 February 2009 until 15 July 2010, he failed to adhere to the agreement he made with his professional mentor, Dr Emery Kertesz, to have face to face meetings with him at six month intervals.
The particulars of each of the complaints focus attention on an alleged breach by the respondent of a condition imposed upon his registration by the Medical Tribunal of New South Wales on 9 June 2005.
The factual background
The evidence in the proceedings before the Tribunal was principally documentary, supplemented by oral evidence from the respondent and from Dr Emery Kertesz. We detail hereunder those factual matters that are relevant to the decision of the Tribunal.
The respondent was first registered in New South Wales as a medical practitioner in general practice on 3 March 1982. Apart from the period between 31 October 2011 and 22 November 2011, when the respondent's registration lapsed due to his failure to renew within the appropriate renewal period, the respondent has been continually registered and remains registered until 30 September 2012.
The respondent was the subject of an earlier complaint brought by the complainant, which was heard by the Medical Tribunal of New South Wales constituted by her Honour Judge A Ainslie-Wallace (as her Honour then was), Drs S Spring and K Ilbery and Ms A Deveson in Matter No 40012 of 2004. The Tribunal found that in connection with eight patients the respondent had prescribed drugs to which Schedule 8 and Schedule 4D of the Poisons and Therapeutic Goods Act 1996 applied, without exercising responsible judgment as to whether it was appropriate to issue such prescriptions, in quantities in excess of recognised therapeutic standards of what was appropriate in the circumstances, in quantities likely to cause dependence, for a purpose that did not accord with recognised therapeutic standards of what was appropriate in the circumstances when the respondent knew or ought to have known that the drugs so prescribed were being, or were likely to be, abused. Furthermore, the respondent had failed to keep adequate records of patient consultations and treatments and had failed to maintain a Drug Register detailing the use of pethidine, as required by law. In the course of those proceedings, the respondent admitted the conduct alleged against him and conceded that each amounted to professional misconduct. The Tribunal so found and imposed a number of conditions. One of those conditions is Condition 8. The complainant alleges and the respondent concedes that he breached that condition. Furthermore, for the purpose of these proceedings, the respondent conceded that he had breached Condition 8 as alleged in Particular 2(b), but denied that he had breached Particular 2(a).
Condition 8 as imposed by the Tribunal required the respondent to notify the New South Wales Medical Board of the name of a medical practitioner who had agreed to act as his professional mentor before 8 July 2005. Notwithstanding the respondent's best efforts and the assistance of the New South Wales Medical Board, the respondent was unable to obtain the services of a medical practitioner who would act as his mentor in compliance with Condition 8 until January 2008. At that time, Dr Emery Kertesz, a general practitioner practising principally at Nelson Bay, agreed to a request from the Medical Board of New South Wales to become the respondent's professional mentor. We would add that the respondent's practice is conducted at Noraville. We understand from the evidence given in the proceedings that the time taken to drive from Noraville to Nelson Bay would not normally exceed two hours.
On 6 February 2008, the respondent met with Dr Kertesz who gave him a copy of the reasons for determination and orders made by the Medical Tribunal. Dr Kertesz said that he discussed a management plan with the respondent "and agreed to have three-monthly email contact and six-monthly face-to-face meetings." These arrangements were not reduced to writing but it was the impression of Dr Kertesz that the understanding that he had with the respondent was that there would be three-monthly contact in the manner described. This was denied by the respondent who, in evidence, said that whilst he agreed that there would be a mandatory six-monthly face-to-face meeting, the three-monthly email contact was discretionary only.
Notwithstanding the respondent's evidence, he did, on 30 May 2008, about three months after his initial meeting with Dr Kertesz, send him an email which said in part: "I am sending you this email to let you know how I am as part of the mentorship requirements." Dr Kertesz understood this as confirming his understanding of the arrangement with the respondent. The respondent conceded in evidence that the use of the word "requirement" would signify a mandatory obligation, although he repeated that he did not himself have this understanding.
Based on the evidence of Dr Kertesz concerning the discussion that he had with the respondent on 6 February 2008, and having regard to the content of the respondent's email of 30 May 2008, we are comfortably satisfied, as required to the requisite standard, that there was a requirement on the part of the respondent to communicate at three-monthly intervals in between the six-monthly face-to-face meetings with Dr Kertesz. The respondent's evidence given about this matter was expressed in terms that indicated that he no longer had a clear recollection as to what was discussed at the meeting of 6 February 2008.
There was a further face-to-face meeting between the respondent and Dr Kertesz on 24 September 2008 but no other contact with him for some considerable time after that date. Neither of them made any diary notes or undertook any other process to facilitate continued contact.
On 31 August 2009, Dr Kertesz forwarded an email to the respondent saying that he had not heard from him for some time and asking him to arrange an urgent meeting so that the registration conditions could be complied with.
On 6 March 2009, the New South Wales Medical Board wrote to the respondent advising that it had not received a mentor report from Dr Kertesz for the period ending August 2008. This was subsequently forwarded by Dr Kertesz. Further letters were sent by the Board to the respondent on 7 July 2009, 27 August 2009, 25 September 2009 and 24 November 2009, none of which appear to have been responded to by the respondent. These letters all referred to the requirements of Condition 8 and expressed concern that they had not been complied with. The letter of 24 November 2009 said that if the respondent had not provided any explanation to the Board by 8 December 2009, the Board would forward a complaint to the Health Care Complaints Commission regarding a breach of the Condition.
As at that date, the only communications received regularly by the Board concerning the respondent were reports of Dr John Roberts, a consultant psychiatrist from whom the respondent had sought treatment and who reported regularly to the Board. We shall refer later to the opinion of Dr Roberts. The respondent subsequently resumed contact with Dr Kertesz. By email dated 16 July 2010, the respondent asked Dr Kertesz whether he would be willing to act as his mentor again. Dr Kertesz agreed to do so on the basis that there was enhanced formality in their meetings. He suggested that the respondent provide written reports prior to three-monthly face-to-face meetings, such reports to contain certain practice details and further requesting that the respondent keep an up-to-date and accurate diary of any S4D and S8 drugs prescribed by him. Finally, Dr Kertesz indicated that he would require the assent of the HCCC and the Medical Board. The first mentoring meeting occurred on 1 September 2010 and further meetings have occurred at three-monthly intervals since then.
Dr Kertesz gave oral evidence in the proceedings. We shall refer only to that part of the evidence that we consider relevant to our determination of these proceedings.
Dr Kertesz was asked whether he had any discussion with the respondent upon the recommencement of the mentoring process. His evidence was as follows:
Q. (Griffin) When it recommenced did you have any discussion with Dr Tsouroutis about what had happened up until that point?
A. I did. We met I think we met I'm not exactly sure, I would have to have a look when we re met and I did ask him what had happened in that period of time, but having had contact with him for, well, three odd years, I found him to be a very quiet person and a very sort of shy persona in a way and he just sort of said that he, I think, almost quote, fell off the rails, and wasn't in a position to continue his obligations as far as that was concerned. I found it interesting that he wouldn't have actually contacted me and said: Look, I can't do this. Or contacted the Health Care Complaints Commission or the Medical Council, but I didn't pursue that, no.
Dr Kertesz said that he was "more than satisfied" with the respondent's attitude to the mentoring process since it recommenced and described the respondent's approach as being "exemplary". Furthermore, the respondent had satisfied his expectations of "conscientiously participating in the mentoring arrangement."
Dr Kertesz expressed the opinion that he thought it would be useful for the respondent to prescribe S4D and S8 drugs to palliative care patients. Currently the respondent refers the prescription of these drugs to his brother-in-law, Dr Fermanis, who is the owner of the practice in which he works.
Dr Kertesz also volunteered the opinion that "in the last couple of meetings we haven't really gone over any new issues and I think if mentorship were to continue I think six-monthly would be more than adequate and I really question whether the mentorship is necessary at this stage for Dr Tsouroutis."
The respondent gave evidence in the proceedings. Written statements made by him were tendered into evidence and this was supplemented by oral evidence.
In his written statement, the respondent provided a number of explanations as to why he had failed to comply with Practice Condition 8. These included the following:
1) The only day suitable to Dr Kertesz upon which he could have a face-to-face meeting was a Wednesday. That was a day when the respondent normally worked alone in the practice, because Dr Fermanis did not work that day. It was necessary for the respondent to drive approximately 2 hours from Noraville to Nelson Bay to attend on Dr Kertesz.
2) The respondent had a busy practice. He said that he saw patients in the surgery from 8.30am to 6pm Monday to Thursday and on Fridays he did not work in the surgery but undertook house calls and paperwork. He also did house calls after hours during the week, as required. He also maintained and updated the computer system used in the practice which, he said, resulted in him working at the practice until late at night, often until after 10pm, every second day.
3) In addition to his practice commitments, his interest in acupuncture led him to become a member of the Australian Medical Acupuncture College and membership of the New South Wales Branch Committee. He was required to attend regular meetings in Sydney and assisted in its educational activities. In July 2008, he became the treasurer, which imposed an additional burden upon him.
4) He said that "Over time I started to find all these commitments difficult to cope with. I tried to meet them as a priority and started to neglect my personal needs. This included organising my personal finances and paying bills, for example."
5) In addition to the above matters, he developed a basal cell carcinoma on his left cheek in late 2008. This caused him increasing anxiety and he eventually sought treatment. He underwent surgery to remove the lesion and subsequently required plastic surgery, which occurred at the end of 2009.
6) Initially, the respondent overlooked his face-to-face appointment with Dr Kertesz in 2009. This created anxiety for him. He said:
In 2009 I found myself in what I felt was an irretrievable situation. I knew that I had not met my obligation to keep contact with the mentor and I thought that he would most likely not be willing to restart in the mentoring role. I felt hopeless and helpless about this situation and could not see that there was a way of rectifying the problem.
He continued to perform his work in the surgery and his work as treasurer for the Acupuncture College but failed to deal with his personal obligations, including undertaking the mentoring process.
7) In July 2009, the respondent retired as treasurer and committee member of the Acupuncture College.
In oral evidence, the respondent said that the matters referred to above in the aggregate caused him to become anxious and his anxiety
"[M]ade it difficult for me to approach the situation as I should have. So I ended up in the situation - in a situation where I was avoiding it rather than dealing with it."
The respondent appreciated that his failure to deal with the situation and cope with his anxiety, which he likened to developing "a phobia to the situation" would jeopardise his further registration as a medical practitioner.
In cross-examination, the respondent elaborated on his perception of his circumstances as they prevailed in 2008 and 2009. He said,
"My difficulty at that time was understanding what was happening to me. As I spoke about my avoidance and anxiety and I don't think I was fully aware at that time or understood the impact of all these factors. My description is more in retrospect since then."
The respondent further said that he had removed those matters that were creating stress for him. He now realised that
"Delaying actions which cause anxiety actually leads to more anxiety rather than easing anxiety so I make a point of not putting things off like that to a later date and deal with them as soon as I can."
The respondent agreed with the summation of Dr Kertesz that he did not think that any further mentoring by Dr Kertesz would assist him in dealing with the restriction in prescribing the prohibited medication, or, generally, in dealing with any particular personal issues. The respondent's opinion about the value of ongoing mentoring needs to be understood in the context of his relationship with Dr Roberts, to which we have previously referred. The respondent first attended on Dr Roberts on 29 July 2005, having been referred by Dr Fermanis. The respondent said that he had derived a great deal of assistance in dealing with his difficulties as a result of his ongoing and continuing treatment by Dr Roberts and informed the Tribunal that he intended to continue to attend on him.
Before referring to the evidence of Dr Roberts, which consisted of a number of reports, there is one additional matter to which we need to make reference. Whilst attending upon Dr Roberts, the respondent informed him that he was continuing to undertake mentoring with Dr Kertesz, notwithstanding that this information was conveyed during the hiatus period when the respondent failed to comply with the mentoring condition. This caused Dr Roberts, inadvertently, to inform the New South Wales Medical Board that the mentoring arrangements were continuing, notwithstanding that this was not the case. In cross-examination, the respondent said that he regretted conveying this inaccurate information to Dr Roberts because he had breached the trust necessary in communicating truthfully to a treating psychiatrist.
Without in any way attempting to do disservice to the comprehensive reports of Dr Roberts, we may summarise his opinion as being that the respondent suffers from a non-specific personality disorder which would require continuing attention by way of counselling to ensure that he adhered to any conditions imposed upon him. No specific treatment other than counselling was warranted and there was no indication of the need for any other intervention, including medication. In a report of 16 January 2012, addressed to the New South Wales Medical Board, Dr Roberts expressed the opinion that there was no indication that the respondent's practice was "potentially a risk to others."
There was tendered into evidence on behalf of the respondent a number of character references. The totality of the evidence is to the effect that the respondent undertakes the practice of medicine in a competent and conscientious fashion.
Unsatisfactory professional conduct or professional misconduct?
The complainant asserted that the respondent was, in all the circumstances, guilty of unsatisfactory professional conduct as set out in s 139B(1)(c) of the National Law. The respondent denied that he was guilty of professional misconduct but agreed that he was guilty of unsatisfactory professional conduct as defined in s 139B of that Act. Section 139B, already partially set out at [2] above, is in the following terms:
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following-
(a) Conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
(b) Contravention of this Law or regulations
A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
(c) Contravention of conditions of registration or undertaking
A contravention by the practitioner (whether by act or omission) of-
(i) a condition to which the practitioner's registration is subject; or
(ii) an undertaking given to a National Board.
(d ) Failure to comply with decision or order of Committee or Tribunal
A contravention by the practitioner (whether by act or omission) of a decision or order made by a Committee or Tribunal in relation to the practitioner.
(e) Contravention of requirement under Health Care Complaints Act 1993
A contravention by the practitioner of section 34A(4) of the Health Care Complaints Act 1993.
(f) Accepting benefit for referral or recommendation to health service provider
Accepting from a health service provider (or from another person on behalf of the health service provider) a benefit as inducement, consideration or reward for-
(i) referring another person to the health service provider; or
(ii) recommending another person use any health service provided by the health service provider or consult with the health service provider in relation to a health matter.
(g) Accepting benefit for recommendation of health product
Accepting from a person who supplies a health product (or from another person on behalf of the supplier) a benefit as inducement, consideration or reward for recommending that another person use the health product, but does not include accepting a benefit that consists of ordinary retail conduct.
(h) Offering a benefit for a referral or recommendation
Offering or giving a person a benefit as inducement, consideration or reward for the person-
(i) referring another person to the registered health practitioner; or
(ii) recommending to another person that the person use a health service provided by the practitioner or consult the practitioner in relation to a health matter.
(i) Failure to disclose pecuniary interest in giving referral or recommendation
Referring a person to, or recommending that a person use or consult-
(i) another health service provider; or
(ii) a health service; or
(iii) a health product;
if the practitioner has a pecuniary interest in giving that referral or recommendation, unless the practitioner discloses the nature of the interest to the person before or at the time of giving the referral or recommendation.
(j) Engaging in overservicing
Engaging in overservicing.
(k) Supervision of assistants
Permitting an assistant employed by the practitioner (in connection with the practitioner's professional practice) who is not a registered health practitioner to attend, treat or perform operations on patients in respect of matters requiring professional discretion or skill.
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
(2) For the purposes of subsection (1)(i), a registered health practitioner has a pecuniary interest in giving a referral or recommendation-
(a) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a public company and the practitioner holds 5% or more of the issued share capital of the company; or
(b) if the health service provider, or the supplier of the health product, to which the referral or recommendation relates is a private company and the practitioner has any interest in the company; or
(c) if the health service provider, or the supplier of the health product, to whom the referral or recommendation relates is a natural person who is a partner of the practitioner; or
(d) in any circumstances prescribed by the NSW regulations.
(3) For avoidance of doubt, a reference in this section to a referral or recommendation that is given to a person includes a referral or recommendation that is given to more than one person or to persons of a particular class.
(4) In this section-
benefit means money, property or anything else of value.
recommend a health product includes supply or prescribe the health product.
supply includes sell.
As is obvious, professional misconduct is of a much more serious kind than unsatisfactory professional conduct. It is necessary, for the purposes of these proceedings, that the conduct justifies suspension or cancellation of registration. The complainant did not submit that cancellation was appropriate in all the circumstances. The only question, then, is whether or not the respondent's conduct would justify suspension of his registration.
In his submissions, counsel for the complainant, Mr P Griffin, helpfully assisted the Tribunal in examining the rationale that would apply to a consideration of the suspension of registration of the respondent. Mr Griffin said that suspension could be justified on a number of grounds, or combination of those grounds. He said:
Firstly, it would be to protect the public from the conduct. Secondly, it could be to provide a circuit breaker to enable them to reflect on something which brought them before the Tribunal. Thirdly, in broad terms, would be to put things in order that were otherwise not in order. You need time out of practice to sort things out.
In determining whether suspension is appropriate, it is necessary to review the conduct of the respondent, to the extent that this was candidly admitted by him. There was no doubt that he had failed over an extensive period of time to attend upon Dr Kertesz for the agreed face-to-face mentoring meetings. We do not accept the respondent's argument that the arrangement with Dr Kertesz did not include a requirement for the respondent to be in email communication with Dr Kertesz in the intervening three-monthly periods. As we have said, we are comfortably satisfied to the requisite standard that the arrangement made included this requirement. In any event, whether or not the respondent understood that he was obliged to undertake three-monthly email communication with Dr Kertesz, he failed, as he conceded, for a period of about 17 months to have any contact at all with Dr Kertesz. This is a clear breach of the condition imposed by the Medical Tribunal upon the respondent's registration, as he conceded. It is a serious matter, as was also conceded by the respondent through his counsel.
In considering the overall seriousness of the respondent's conduct, we also take into account that the respondent failed over a period of time to respond to a great deal of correspondence which had been forwarded to him by the New South Wales Medical Board and, tangentially, that he had misled Dr Roberts.
The necessity to comply with conditions imposed upon registration was referred to by the New South Wales Medical Tribunal in proceedings no: 40007/07 in Health Care Complaints Commission v Dr Ian McHue . The Tribunal, members of which were his Honour Judge NG Rein SC (as his Honour then was), Drs J Warden and M Diamond and Ms A Collier, said, at [29] and [45]:
[29] We note that in Re Dr Than Le NSW Medical Tribunal 20 September 2001 cited in Prakash v HCCC [2006] NSWCA 153, the Tribunal expressed the view that restrictions which are imposed (particularly in a disciplinary context) are not lightly imposed and 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", and amounted to professional misconduct because the conduct was of a sufficiently serious nature to justify suspension or removal: see [96], a view with which the Court of Appeal in Prakash appeared to agree.
...
[45] Concern for the protection of the public includes consideration of the need to ensure that practitioners whose practice of medicine has been constrained by conditions, comply with those conditions and are honest with the panel, expert assessors and others whose task it is to make an assessment of the practitioner's compliance. The conditions and the monitoring are imposed in order to ensure that the public are protected whilst allowing practitioners whose conduct has come under scrutiny to continue in practice. Without honest dealing by such practitioners, the entire system developed to benefit both public and practitioner will be imperilled. Practitioners whose conduct of medicine is called into question must appreciate that this Tribunal may treat dishonest statements and explanations to the Board, to Panels and to experts appointed by the Board and to this Tribunal as justifying suspension or deregistration even where the original conduct may well not have, of itself, lead to such a result. (References omitted)
We agree with those observations and adopt them for the purpose of these proceedings.
Although we regard the respondent's breach of the condition imposed upon him as being of a most serious kind, it does not, in our opinion, justify suspension of his registration. The conduct of the respondent did not impact in any way on his ability to practice medicine and to attend to his patients. Indeed, his failure to comply could only have an adverse impact upon him personally because it put in jeopardy his continuing registration. In addition, we are comfortably satisfied that, for so long as the respondent maintains the insight into his behaviour that he currently exhibits and for so long as he continues to seek assistance and counselling from Dr Roberts as he requires, there is little likelihood of him engaging in any conduct that would create difficulties in his practice of medicine. There is no suggestion that he has breached the condition imposed upon his registration that precludes him from prescribing certain medication.
To some extent it might be said that the respondent's conduct in failing to adhere to the mentoring arrangements was undertaken by him in a wilful or conscious manner. However, in our opinion, the respondent's conduct needs to be assessed in the context of the totality of the personal problems that beset him at the time. They, in the aggregate, created circumstances that inhibited his ability to face up to and deal with the stressors that then prevailed, including his realisation that he had initially forgotten to attend upon Dr Kertesz. The mentoring arrangements should also be seen in the context that the respondent was required to drive a considerable distance taking approximately two hours each way, and in circumstances where there did not exist any formal documentation that reflected the mentoring arrangement.
On balance, we are of the opinion that the respondent did not engage in professional misconduct as defined in the National Law.
As the respondent conceded, we do find that he was guilty of unsatisfactory professional conduct as referred to in s 139B(1)(c)(i). There was a clear and repeated contravention of a condition to which the respondent's registration was subject, as we have found.
The action that may be taken by this Tribunal consequent upon the finding that we have made is to be found predominantly in s 149A of the National Law. Subsection 1 is in the following terms:
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.
There is a general power also to impose a fine under s 149B, however a fine is not to be imposed unless, in general terms, the Tribunal is satisfied that there is no other order or combination of orders that is appropriate in the public interest.
Because we have determined that in all the circumstances it is appropriate to issue a reprimand, it is not necessary that we consider the imposition of a fine, although this was a course that the complainant submitted was available to the Tribunal.
Other conditions
A number of conditions in addition to Condition 8, the subject of these proceedings, apply to the registration of the respondent. It was the agreed position of the complainant and the respondent that these conditions should not be disturbed by the Tribunal. If the respondent wished to have any of the conditions varied, then he was entitled to make application to the Medical Council of New South Wales. The respondent indicated during the course of the proceedings that he proposed making application to vary the condition that precluded him from prescribing certain prohibited drugs, so as to be able to use them for the purposes of affording palliative care to patients. This will be a matter for him and for determination by the Medical Council of New South Wales. The respondent and Dr Kertesz both raised concerns about the utility of continuing their formal mentoring process. Again, this will be a matter for the Medical Council of New South Wales. However, in order to provide some assistance in this regard we would observe that, based on the evidence given in these proceedings, there must be some concern about the utility of any further formal mentoring between the respondent and Dr Kertesz, given that the principal reason for such mentoring was to facilitate conditions imposed in connection with the prescription of Schedule 8 and Schedule 4D drugs.
In all the circumstances, we do not propose to make any order that would impact in any way upon the continuation of all of the conditions that currently apply to the respondent's registration.
Costs
The complainant sought an order for costs, which was not opposed. We propose making an order accordingly.
Orders
The Tribunal orders:
1) The respondent, Michael Tsouroutis, be reprimanded.
2) The respondent is to pay the complainant's costs in an amount assessed by the Tribunal in default of agreement.
Decision last updated: 12 March 2012
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