Re A Practitioner

[2010] NSWMT 18

New South Wales

Medical Tribunal

CITATION:	Re A Practitioner [2010] NSWMT 18 revised - 10/08/2011
TRIBUNAL:	Medical Tribunal
PARTIES:	A Practitioner NSW Medical Council
FILE NUMBER(S):	40007 of 2010
CORAM:	Murrell, SC DCJ - Kendrick, Dr J - Abouyanni, Dr G - Ettinger, Ms G
CATCHWORDS:	Appeal against refusal of general registration - Appeal against conditions imposed on general registration - Role of Medical Council to provide assistance and support to practitioners - Duty of Medical Council to protect public health and safety
LEGISLATION CITED:	Medical Practice Act 1992
CASES CITED:
DATES OF HEARING:	18.10.2010-19.10.2010
EX TEMPORE JUDGMENT DATE :	19 October 2010
LEGAL REPRESENTATIVES:	Mr M. Lynch Holman Webb Lawyers Ms G Furness SC NSW Medical Council
ORDERS:	The respondent is to pay the appellant's costs of each appeal.; NON-PUBLICATION ORDER

JUDGMENT:

1 There is an application for costs in relation to:

(a) Appeal 40039 of 2009, an appeal against a refusal of general registration that was abandoned when the respondent was granted a Schedule 1 inquiry into the question of registration.

(b) An appeal against the conditions imposed on general registration following the Schedule 1 inquiry. The appeal was resolved this morning (The second of the two days set aside for hearing of the appeal) by the tender of Exhibit X, being revised agreed conditions. The Tribunal considered that those conditions were appropriate.

2 The practitioner was first registered in January 1980. Following a period as an intern and resident medical officer, she worked as a general practitioner until 1995. She left general practice in order to care for a child who required intensive attention.

3 From 1997 to 2000, the practitioner worked part-time as a project officer and general practice support services officer. Until 2002, she was a member of various committees.

4 Until November 2002, she held a general registration. Between 2002 and 2004, she had non-practicing registration under section 9. Between 2004 and November 2008, she had general registration. In November 2008, she decided to take limited prescribing registration for financial reasons. She was planning to study full-time and didn't want the expense of professional indemnity insurance. Only a month later, in December 2008, a former employer invited her back to his general practice. In early 2009, she underwent the GP Synergy Re-Entry Program to equip herself to return to general practice. In May 2009, she applied to transfer from limited registration to general registration.

5 Correspondence in relation to the application can be found in Exhibit A (tab 2) and Exhibit 1 (tab 3). The question of general registration was referred to a delegate. On 29 May 2009, the delegate posed questions to the practitioner. She responded on 3 June 2009. The delegate sought clarification on 10 June 2009, and the practitioner responded on the same day. On 19 June 2009, the practitioner asked the Medical Board to identify any deficiencies in her application. No deficiencies were identified. The delegate referred the question to the Registration Committee.

6 On 21 July 2009, the Committee met and determined that the practitioner's application for general registration should be declined. The minutes of that meeting refer to the period for which the practitioner had been out of general practice and the "apparent" lack of a structured plan for return to work. Belatedly, on 7 August 2009, an email was sent to the practitioner advising of the determination and stating:

"The key factors in the committee's decision related
to the length of time since you have been in medical
practice, the scope of your direct involvement in
clinical care of patients, the absence of a specific job
offer, and limited indications of a suitably structured
plan for re-entry into medical practice."

While the question of the period away from direct involvement in clinical care of patients had been raised with the practitioner, the issues of absence of a specific job offer and "limited indications of a suitably structured plan for re-entry into medical practice," had not been raised clearly with the practitioner.

7 In September 2009, the practitioner lodged an appeal to the Tribunal. On 14 October 2009, her solicitor furnished the Board with a letter that provided significant further information. On 20 October 2009, the Registration Committee met and considered the further information. The Committee resolved to hold a Schedule 1 inquiry. The Schedule 1 inquiry was fixed for 8 December 2009.

8 On 7 December 2009, the Board sent a letter to Dr B, an experienced practitioner whom the practitioner had nominated to fulfil the role of supervisor should she be granted conditional registration. The Board stated:

"It is presumed that (the practitioner) will be required
to work under level 2 supervision, meaning that the
supervisor should be working at the same location and
preferably during the same hours as the subject doctor."

The letter went on to provide further details about what would or may be required of the supervisor. According to the affidavit of Dr Alison Reed, the Medical Director of the Medical Council of New South Wales:

"This was a draft letter and should not have been sent and
it was an administrative error that caused it to be sent at
that time. Such letters are only sent after a decision has
been made to impose a supervision condition."

Regardless of whether the letter constituted an "administrative error", it is plain that, as at 7 December 2009, someone at the Medical Board was of the view that the Schedule 1 inquiry would result in the practitioner receiving general registration subject to “level 2 supervision”.

9 The inquiry resulted in the imposition of “level 2 supervision” conditions and other conditions, notably a condition that required a period of observation (condition 2) and a condition requiring that the practitioner practise in a group of three physicians (condition 1). The conditions were, to say the least, onerous in relation to the extent of supervision that the practitioner was required to undertake, onerous to the supervisor as much as to the practitioner. Under the conditions, the supervisor was required to report fortnightly for a period of six months. For the remainder of the 12 month supervision period, he or she was required to report as determined by the Council.

10 The onerous nature of the supervision conditions created a problem for the practitioner. Dr B expressed disquiet about acting as supervisor. Had he declined to act as supervisor, it may well have been very difficult for the practitioner to find an alternative supervisor. In any event, on 9 February 2010, the practitioner lodged an appeal against the conditions. The appeal letter stated:

"(The practitioner) appeals from: That part of the decision
which determines that conditions be imposed on registration
for a period of time on the basis that she should be granted
general registration without conditions, and in the alternative,
that part of the decision setting out the "practice conditions",
on the basis that substantially different conditions should be
imposed."

11 The appeal was fixed for hearing for two days commencing yesterday, Monday, 18 October. Prior to the hearing of the appeal, the practitioner satisfied condition 2, the observation condition. At 6.30pm last Friday, 15 October, the Council notified the practitioner's legal representative that the Council's position had changed in relation to the imposition of conditions. When the hearing commenced yesterday morning, Ms Furness SC advised the Tribunal that the Council did not oppose the removal of condition 1, the condition requiring the practitioner to practise in a group of three other practitioners, provided there was a supervision condition. That supervision condition would require the supervisor to report monthly for the first three months, i.e. at the end of months 1, 2, and 3, and then to provide a fourth report at the end of a further three months, i.e. at six months. The total period of supervision would be six months, although the Council would have the discretion to extend the period if it deemed an extension appropriate.

12 In principle, the practitioner was not in principle opposed to those conditions but, in light of the history of interaction with the Board, she was concerned at the level of discretion maintained by the Council in relation to the supervision requirement.

13 By consent, this morning the parties provided the Tribunal with Exhibit X. On one view, Exhibit X contains minor amendments. However, from the perspective of the practitioner, they are significant amendments. In effect, they make the supervisor (not the Council) the person who will decide whether there is a need to extend the supervision period and the reporting requirements. Exhibit X also reduces the number of reports from the four reports proposed by the Council yesterday to three reports; a report at the end of one month, at the end of three months, and at the end of six months.

14 The Council’s position is that the appellant has not won her appeal, in that she has not obtained condition-free registration. The Council maintains that it acted appropriately in relation to the July 2009 determination of the application. It opposes the practitioner's application for the costs of both appeals.

15 One of the matters that received attention in the course of submissions on costs was the question of whether the Board was entitled to determine the application for general registration adversely to the practitioner without granting her a Schedule 1 inquiry. Submissions were received in relation to the meaning of clauses 9 and 10 of Sch 1 to the Medical Practice Act 1992. Those clauses read as follows:

"9(1) The Board may hold an inquiry, in such cases as it considers
appropriate, into the eligibility of an applicant to be registered as
a medical practitioner.
(2) An inquiry may include an inquiry into the applicant's competence
to practise medicine.
(3) In this clause, a reference to the eligibility of an applicant to be
registered as a medical practitioner includes the following:
(a) the eligibility of an applicant who has been granted registration of
a kind referred to in section 5 (conditional registration for interns), or
section 9 (non-practising registration) to be granted registration of a
kind referred to in section (general registration)."
(b) the eligibility of an applicant whose name has been removed from the
Register, and whose application for registration is not required to be
rejected under section 14, to be re-registered as a medical practitioner.

10 Board must hold inquiry in certain cases.
If the Board is not satisfied as to the eligibility of an applicant to be
registered after considering the application for registration, the Board is
to hold an inquiry under this Part for the purpose of satisfying itself as to
eligibility ."

Clause 11 requires that an applicant be notified of an inquiry. Clause 12 refers to the powers of the board in an inquiry. Clause 13 refers to the practitioner's entitlement to attend. The following clauses deal with the conduct of the inquiry.

16 In relation to the first appeal, the Council submitted that, where a practitioner is already registered but seeks to change registration to general registration, it is not incumbent on the Board to hold an inquiry if the Board is not satisfied as to the eligibility of the applicant to receive general registration.

17 Mr Lynch for the practitioner pointed out that this interpretation appeared to fly in the face of the Board's policy in Exhibit A (tab 2) commencing at page 131, in particular at page 136 entitled, “Registration of Unregistered Medical Graduates.” At page 136, the policy appears to make correct statements about the statutory provisions and the import of Part 3 of Schedule 1.

18 The Council's view of the meaning of clauses 9 and 10 is wrong. Clause 9 encompasses a situation where an applicant who is a non-practising registrant seeks to be granted general registration. Under cl 9, the Board may elect to hold an inquiry or not. However, pursuant to cl 10, if the Board is not satisfied of an applicant’s eligibility for registration, then the Board "is to hold an inquiry under this Part for the purpose of satisfying itself as to eligibility." In other words, there is no basis for limiting the entitlement to an inquiry to those persons who have been unregistered or are considered to be ineligible for registration. Such an interpretation accords both with the terms of the provision and with common sense.

19 In the case of a person such as this practitioner who has non-practising registration but is considered ineligible for general registration, why would that person not be entitled to an inquiry so that all the circumstances could be explored? General registration is a valuable financial and personal status. A person who holds non-practising registration has some standing in the eyes of the Board. It is only reasonable that such a person be entitled to put their point of view before being refused admission to the next level of registration. In any event, cl 9(3)(a) makes it clear that a non-practising registrant who seeks general registration is entitled to an inquiry where the Board is not otherwise satisfied, as to the eligibility of that applicant to be registered. The practitioner was therefore entitled to an inquiry before the Registration Committee made its determination on 21 July 2009.

20 Ms Furness SC submitted that it was only because the practitioner finally elected to provide full information in her solicitor's letter of 14 October 2009 that the Council or the Registration Committee was under any obligation to proceed to further consider the matter and, having been provided with that information on 20 October 2009, the Registration Committee promptly considered the information.

21 That submission is misguided. The decision of 21 July 2009 was based not only on issues that had been raised with the practitioner - the length of her absence from clinical work - but also on matters that had not been raised clearly with the practitioner. That much is clear from the email from the Board on 7 August 2009. Further, in her email of 19 June 2009, the practitioner had asked the Board to identify any deficiencies in her application.

22 As far as the second appeal is concerned, the Council maintained that the practitioner "had not won her appeal" because the practitioner's primary concern was to achieve unconditional general registration. The Tribunal does not agree with that interpretation of the notice of appeal. In the Tribunal's view, from the outset the practitioner made it plain that, as an alternative to unconditional general registration, she was seeking conditional registration "on the basis that substantially different conditions should be imposed." The conditions that were ultimately agreed are "substantially different conditions," not only because of the period of supervision, but also because of the reduction in reporting. As stated above, the frequency of reporting required by the original conditions was such that Dr B, the supervisor identified by the practitioner, was reluctant to undertake the onerous responsibility, and the practitioner would likely have had a great deal of difficulty in finding another experienced practitioner who was prepared to undertake the responsibility. Consequently, both at a literal level and at a practical level, the conditions that were agreed were substantially different. Further, yesterday morning the Council agreed to removal of the three practitioner requirement. That was a matter of substance because, at a practical level, it provided a major impediment to the practitioner, for example, in relation to a training course that she wished to pursue. In the Tribunal's view, the practitioner has succeeded on her appeal.

23 The Tribunal wishes to note its view that the Board (now the Council), has a role of providing assistance and support to practitioners, subject always to its overriding duty to protect the health and safety of the public. Consistent with its role of providing assistance and support to practitioners, it is desirable that the Council provide adequate guidance to practitioners who are seeking to obtain registration or change the nature of their registration. It would, for example, be appropriate, that guidelines be published by the Council so that practitioners could be informed about what is expected when they seek registration or seek to change the nature of their registration. Unfortunately, over the past 18 months, the Board (now the Council) failed to provide this practitioner with the guidance to which she was, in a sense, entitled and which she had expressly sought.

24 The respondent is to pay the appellant's costs of each appeal.