‘Misstep’ leads to battle over suspension length


tribunal hearing legal case

A call from a pharmacist should have alerted a GP that he was in breach of a “critical compliance condition” imposed on his registration, a Tribunal has heard

At a hearing in February 2020, the Civil and Administrative Tribunal of NSW heard the case of a doctor who had been practising with conditions imposed upon his registration, including that he not prescribe S8s – which he did.

The Medical Council had sought orders to prevent the doctor for applying for a review of the cancellation of his registration for six months from the date of a January 2020 hearing.

In January 2009 the then NSW Medical Tribunal made orders requiring the doctor’s name to be removed from the Register of Medical Practitioners, and he was not permitted to apply for his name to be restored for 18 months after that.

He eventually applied for registration in 2015, and a Tribunal agreed that this could take place, on the condition that the GP not possess, supply, administer or prescribe any “drug of addiction” (S8).

This was a “critical compliance condition”.

However, in July 2017, the doctor prescribed codeine phosphate linctus to one patient; and in August 2017, March 2018 and October 2018 he also prescribed the drug to different patients.

There was no evidence to show that prescribing the drug was inappropriate, the Tribunal noted.

By August 2019, the Medical Council convened proceedings and notified the doctor that his registration had been suspended.

However, the Council believed there had been a “misstep” in the proceeding making the order to suspend the GP, so it reconsidered the matter in December 2019, making a second order suspending the GP for six months.

It was this second order which sparked a disagreement over when the period in which the GP could not apply for re-registration should end.

Orders were made in January 2020 to cancel the doctor’s registration and to order him to pay the Medical Council of NSW’s costs of $5,705, after he was suspended in August 2019.

In August 2019 the doctor was phoned and told to cease practice forthwith, and not practice again pending determination of an application to the Tribunal by the Council; the GP stopped practice on that day.

While he has not practiced since, he has informed the Council that he would like to do so were he permitted to be registered again in the future.

The Council submitted that “in relation to a specific deterrent for the respondent, the applicant submits it is most important that the respondent understands the imperative of compliance with a condition attached to his registration”.

“He must understand that the onus is absolutely upon him to be sure he is not breaching a condition,” the Tribunal noted in summarising the Council’s submission. “If he has any doubt about whether a procedure or action or treatment, proposed by him, will breach a condition, then he must not take such action or undertake such treatment until he is absolutely certain he is not in breach.”

The Council said it was the GP’s “clear, unambiguous” obligation to be aware of the nature of any drug he was considering prescribing, and that the GP had a printed list of S8 drugs.

The GP’s own list includes codeine and codeine linctus, though codeine was subject to an exemption.

He said that he had not read the exemption page carefully enough, and that he should have gotten in touch with contacts such as his supervisor or colleagues, or the local pharmacist, to check.

“The evidence shows that the respondent was contacted by the chemist supplying the prescribed drug to the patient, to check that codeine linctus had been prescribed,” the Tribunal noted.

“The respondent confirmed that was the case and the chemist noted that on the script. Such an event should have alerted the respondent about the nature of the drug and the restrictions upon its prescription.”

When the Council wrote to the GP about the fact that prescribing codeine linctus was a breach of conditions, the GP argued that he was not in breach of the condition.

He said he was unable to understand the Council’s complaint until after he had been suspended in August 2019, which the Council said was “suggestive of a dismissive attitude of the respondent to the seriousness of the requirement to comply with the conditions attached to his registration”.

The GP said that he had already served five months of being unable to practice as a GP, and that no further period of time in suspension was required as a deterrent.

The Tribunal’s decision was midway between the two suggestions made by the Council and the GP: it precluded the GP from applying for a review for three months from the date of the hearing.

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