Kolak, Nada - Medical Council of New South Wales

PROFESSIONAL STANDARDS COMMITTEE INQUIRY
CONSTITUTED PURSUANT TO PARTS of
THE HEALTH PRACTITIONER REGULATION NATIONAL LAW(NSW) No 86a
To HOLD AN INQUIRY INTO
A COMPLAINT IN RELATION TO
Dr Nada Kolak
Date/s of Inquiry:
24 September 2012
Committee members:
Mr Robert Kelly, Chairperson
Or Katherine Ilbery
Or Martine Walker
Mr Russell Smith
Legal Officer assisting
Ms Bridget Andersons
Committee:
Appearances for Health Care
Ms Ragni Mathur, Counsel
Complaints Commission:
Ms Lisa Grindlay, Legal Officer
Appearances for Dr Kolak
Mr Tony Quinlivan, Counsel
Mr Andrew Davey, Solicitor, Unsworth Legal
Dale of decision:
IS February 2013
Publication of decision:
Refer to paragraph 135 of this decision for details of nonpublication directions
SUMMARY
The adequacy of Or Kolak’s medical records and clinical care in relation to four
patients was the subject of a Professional Standards Committee inquiry. Dr Kolak
had performed exercise stress testing on three of the patients and examined a skin
lesion in the fourth patient. Dr Kolak substantially admitted the two Complaints made
against her, which alleged that she was guilty of unsatisfactory professional conduct
in demonstrating that her knowledge, skill and judgment and the care she exercised
were significantly below the standard reasonably expected, and in contravening the
Medical Practice Regulations 2003 and 2008. Or Kolak was found guilty of
unsatisfactory professional conduct, reprimanded and conditions were imposed on
her registration.
COMPLAINTS
A complaint dated 8 May 2012 against Dr Nada Kolak MED0001144713 was
referred by the NSW Health Care Complaints Commissioner to be dealt with
by a Professional Standards Committee pursuant to the Health Practitioner
Regulation National Law (NSL49 (the National Law).
2.
The Medical Council of New South Wales (the Council) constituted a
Professional Standards Committee (the Committee) to inquire into the
Complaint. An undated amended complaint was presented to the Committee
at the commencement of the Inquiry on 24 September 2012. The complaint
was prosecuted before this Committee by the Health Care Complaints
Commissions Director of Proceedings acting as nominal complainant.
AMENDED COMPLAINT
3.
The amended complaint alleges
[Complaint One]
Or Nada ICc/ak ... has been guilty of unsatisfactory professional conduct within the
meaning of section 139B of the National Law in that
(i)
she contravened the Medical Practice Regulation 2003 (repealed) and/or
(ii)
she contravened the Medical Practice Regulation 2008
’
Background for Complaint One:
At all relevant times in relation to Patient A, the practitioner was a general practitioner
working at Your Heart Clinic’ in North Parramatta. At all relevant times in relation to
Patient B, the practitioner was a general practitioner working at "Sydney Heart
Medical Centre in Hurstvilla At all relevant times in relation to Patient C, the
practitioner was a general practitioner working at Sydney Heart Check Clinic" in
Paragraph (I) and (ii) reflect section 139B (1) (b) of the National Law. The Medical Practice
Regulation 2003 and Medical Practice Regulation 2008 are concerned with records relating to
patients including the information to be included in records, the general requirements as to content
and the form of records.
Hurstville. At all relevant times in relation to Patient 0, the practitioner was a general
practitioner at Southern Sun Skin Cancer Clinic?.
Patient A consulted the practitioner for the first and only time on 26 April 2007 after
experiencing a recent period of resfrostema! (sic) chest pain associated with a
shortness of breath. The practitioner performed an exercise stress test on Patient A
which the practitioner reported as normal.
Patient C consulted the practitioner for the first and only time on 4 September 2006
because she was concerned about her family history of heart disease. Patient Chad
mobility difficulties as a result of an earlier motor vehicle accident The practitioner
performed an exercise stress test on Patient C which the practitioner described as
borderline".
Patient D consulted the practitioner at Southern Sun Skin Cancer Clinic for the first
and only time on or around 13 January 2010 to seek expert opinion about a lesion on
her calf.
[Particulars of Complaint One]
1. The practitioner contravened the Medical Practice Regulation 2003 (repealed)
in that she failed to keep adequate medical records in relation to Patient A in
that the records did not include:
a)
the clinical reasons for ordering 812 and thyroid blood tests;
b)
the reasons for prescribing aspirin;
c)
an assessment of Patient A’s non insulin dependent diabetes
mellitus.
2. The practitioner contravened the Medical Practice Regulation 2003 (repealed)
in that she failed to keep adequate medical records in relation to Patient C in
that the records did not include:
a)
patient history;
b)
patient assessment;
c)
patient management plan; and/or
d)
risk factors or recommendations.
3. The practitioner failed to keep adequate medical records in relation to Patient
U in contravention of the Medical Practice Regulation 2008 (repealed) in that
she failed to record:
an adequate history;
W.
that she had performed a dermatoscopic examination;
iii.
whether any mnemonic was used to review the lesion (e.g. ABCD,
pattern analysis);
iv.
that another practitioner had suggested the lesion was of concern;
any specific follow-up advice other than to return if there were any new
changes to the lesion.
[Complaint Two]
[Dr Kolak] has been guilty of unsatisfactory professional conduct within the meaning
of section 139B of the National Law in that:
(i)
she has demonstrated that the knowledge, skill or judgment
possessed, or care exercised, by her in the practice of medicine is
significantly below the standard reasonably expected of a practitioner
of an equivalent level of training or experience.
Background of Complaint Two
At all relevant times in relation to Patient A. the practitioner was a general practitioner
working at Your Heart Clinic, in North Pauamatta. At all relevant times in relation to
Patient B, the practitioner was a general practitioner working at "Sydney Heart
Medical Centre" in Hurstville. At all relevant times in relation to Patient C, the
practitioner was a general practitioner working at Sydney Heart Check Clinic" in
Hurstviffe. At all relevant times in relation to Patient D, the practitioner was a general
practitioner at Southern Sun Skin Cancer Clinic’
Patient A consulted the practitioner for the first and only time on 26 April 2007 after
experiencing a recent period of restrosternal (sic) chest pain associated with a
shortness of breath. The practitioner performed an exercise stress test on Patient A
which the practitioner reported as normal
Patient B consulted the practitioner for the first and only time on 26 October 2006
because she wanted to ensure her heart was healthy. On 26 October 2006 she
reported that she had no cardiac signs or symptoms. The practitioner performed an
exercise stress test on Patient B which was recorded as positive.
Patient C consulted the practitioner for the first and only time on 4 September 2006
because she was concerned about her family history of heart disease. Patient Chad
mobility difficulties as a result of an earlier motor vehicle accident. The practitioner
performed an exercise stress test on Patient C which the practitioner described as
borderline".
Patient U consulted the practitioner at Southern Sun Skin Cancer Clinic for the first
and only time on or around 13 January 2010 to seek expert opinion about a lesion on
her calf.
[Particulars of Complaint Two]
1. The practitioner’s clinical care in relation to Patient A was inadequate in that
she:
failed to obtain a sufficient medical history;
failed to refer Patient A to a cardiologist regarding his chest pain;
2
Paragraph (i) reflects section 139B (I) (a) of the National Law.
iii.
failed to follow-up Patient A’s multiple significant risk factors for
ischaemic heart disease including hypertension; dyslipidaemia and
non-insulin dependent diabetes mellitus;
iv.
inappropriately ordered a 312 and Thyroid test; and/or
V.
referred Patient A to a dietitian and exercise physician too early and/or
before further investigation had been conducted.
2. The practitioner’s c/Thical care in relation to Patient B was inadequate in that
she:
i.
performed an exercise stress test on Patient B despite the absence of
clinical indicators for the test;
ii.
failed to ensure that Patient B understood that an urgent cardiac
assessment was required;
N.
failed to take urgent action to ensure cardiac assessment took place
quickly following a positive stress test; and/or
iv-
failed to follow up Patent B between 26 October 2006 and when she
next saw her general practitioner on 12 December 2006.
3. The practitioner’s clinical care in relation to Patient C was inadequate in that
she:
performed an exercise stress test despite Patient C’s contraindications
including:
A.
bra dycardia; and
B.
physical limitations that prevented her from exercising;
W.
failed to ensure Patient C’s stress test results were forwarded to her
GP despite a "borderline" stress test result; and/or
X.
failed to provide Patient C with any treatment or advice despite a
borderline" stress test result.
4. During the consultation on 13 January 2010 with patient 0, the practitioner
failed to:
arrange for a biopsy of the lesion on Patient D’s calf;
B.
provide any specific advice to Patient 0 regarding follow-up other than
to return if she noticed any changes to the lesion.
THE MEANING OF UNSATISFACTORY PROFESSIONAL CONDUCT
4.
Section 1398 of the National Law provides, in part:
Meaning of
generally
unsatisfactory professional conduct" of registered health practitioner
I) 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.
5.
The phrase "significantly below’ is not defined in the National Law. However,
some guidance as to the meaning of the phrase may be found in the Second
Reading speech introducing various amendments to the Medical Practice Act
1992 (the Act) 3 -- the relevant antecedent legislation to the National Law.
These amendments included a similar definition of unsatisfactory professional
conduct to that which is now contained in the National Law.
The first main purpose of the bill is to refocus the Health Care Complaints
Commission (I-ICCC) on investigating serious complaints about health service
providers. To achieve this, Commissioner Walker recommended that
unsatisfactory professional conduct be redefined so that only significant
instances involving lack of skill, judgment, or care will result in an investigation
or disciplinary action ... the reference to significant’ in that context may refer
to a single act or omission that demonstrates a practitioner’s lack of skill,
judgment or care, or it may refer to a pattern of conduct. In any individual
case, that will depend on the seriousness of the circumstances of the case.
6.
The meaning of "significantly below" in the context of the Act was considered
by the Medical Tribunal of NSW in Re A Medical Practitioner and the Medical
Practice Act (40010 of 2007). The Tribunal observed at paragraph 12:
As a general principle, the use of the term significant may/n law be taken to
mean not trivial, of importance, or substantial.
ONUS AND STANDARD OF PROOF
The Health Care Complaint Commission (I-ICCC) as the Complainant bears
the onus of establishing that Dr Kolak has been guilty of unsatisfactory
professional conduct.
8.
For the Complaint to be proved, the Committee must be reasonably satisfied
on the balance of probabilities 4 that Dr Kolak’s conduct satisfies the statutory
definition of unsatisfactory professional conduct. As stated by the Dixon J (as
he then was) in Br/ginshaw, v Briginshaw (1938) 60 CLR 336,361-362:
25 October 2004
The Balance of Probabilities was considered in by the NSW Court of Criminal Appeal in Gianoutsos
v G!ykis [20061 NSWCCA 137 at 1471 - [51] Vi/hat is required is that when loading the scales
appropriate weight is given to the matters to which Dixon J referred" per McClellan CJ at CL (Sully J and Hislop J agreeing); See also In Re Dr Suman Sood [2006] NSWMT 1 at [10]
Reasonable satisfaction is not a state of mind that is attained or established
independently of the nature and consequence of the fact or facts to be proved.
The seriousness of an allegation made, the inherent unlikelihood of an
occurrence of a given description, or the gravity of the consequences flowing
from a particular finding are considerations which must affect the answer to the
question whether the Issue has been proved to the reasonable satisfaction of the
tribunal. In such matters ’reasonable satisfaction’ should not be produced by
inexact proofs, indefinite testimony, or indirect inferences. 5
EXHIBITS
9.
The Committee has considered the following documents which were provided
by the parties prior to the hearing: documents tabbed 1 to 49 from the
Complainant (Exhibit A) and documents tabbed I to 23 (Exhibit 1) from the
Respondent Dr Nada Kolak There were no objections to these documents.
INTERIM NON-PUBLICATION DIRECTION
10.
At the Directions Hearing which took place in this matter on ii September
2012, the Chairperson issued an interim non-publication direction pursuant to
Clause 7 of Schedule SD of National Law (NSW). The Chairperson directed
that the following matters are not to be published by any person:
the names of any patients with whom the Complaint is
concerned and any evidence which may identify them.
ISSUES
11.
The issues to be determined by the Committee are:
a)
Whether the Committee is comfortably satisfied that the Particulars of
the complaint are proved.
b)
In the light of any proven Particulars the Committee must then decide
whether the Complaints against Dr Kolak alleging unsatisfactory
professional conduct are proved. 6
c)
If the Committee determines that one or both the Complaints are
proved the Committee must then decide whether it is appropriate to
exercise any of the disciplinary powers conferred on it pursuant to
Part B Division 3 Subdivision 3 of the National Law.
& See also Rejfek v McElroy (1995) 112 CLR 517 at 521 and Bannister v Walton (1993)30 WSWLR
699 where it was held that the requirement for the NSW Medical Tribunal is that the Tribunal be
comfortably satisfied on the balance of probabilities.
6
The Committee can look at all the conduct found proven either separately or cumulatively when
making a determination as to whether the conduct amounts to unsatisfactory professional conduct
(Duncan v Medical Disciplinary Committee [1986] 1 NZLR 513 at 545, 546 and 547).
BACKGROUND
Or Kolak - Professional Training and Experience’
12.
Dr Kolak graduated MBBS from the University of New South Wales in 1989She undertook intern training at the Royal Newcastle and District Hospitals in
1989. She then took maternity leave. In 1991 she worked as a resident
medical officer at Mount Druitt and Fairfield Hospitals. She subsequently
moved overseas and did not practise medicine for three years. From 19951997 she was enrolled in the general practice training program and practised
in Wagga Wagga. She obtained her Fellowship of the Royal Australian
College of General Practitioners (RACGP) in 1997.
13.
In 1998 Or Kolak moved to Bowral and purchased a solo general medical
practice (the Bowral Family Medical Practice). She continued in solo
practice, conducted a methadone clinic; provided medical care and home
visits to several nursing homes; had visiting rights at a local private hospital
and also practised at the Bowral Skin Cancer Clinic. She closed the Bowral
Family Medical Practice in 2005 and relocated to Sydney. From 2005 - 2006
Dr Kolak worked as a general practitioner on a part-time basis at ’Your Health
Clinic" in Edgecliff. For several months after relocating to Sydney she also
continued to conduct the Bowral Skin Clinic’ and provided weekly clinics at a
private hospital in Bowral.
14.
In 2006 Dr Kolak established and commenced working in Your Heart Clinic’
(YHC). The YHC practice was first conducted in Parramatta and Liverpool
and subsequently at Broadway and Dee Why. 8 In the early part of 2006 Dr
In
Kolak also worked on a part-time basis for the Sydney Heart Clinic’.
August 2007 Dr Kolak sold VHC to the Independent Practitioners Network
(IPN) and commenced working at Liverpool Family Medical Centre which was
owned by IPNJ. In 2008 after leaving IPN Dr Kolak worked in a locum
capacity, primarily in general practice but also in cosmetic medicine at the
Blue Cross Medical Centre, Kingsgrove. In 2009 she worked as a locum
general practitioner at the Blue Cross Medical Centre and the Multicare
Medical Centre at Ashfield. In addition she worked as a part-time surgical
assistant at the Bigge Street Private Hospital and continued to practise
cosmetic medicine in a locum capacity at the Southern Sun Skin Cancer Clinic
in North Ryde.
15.
In 2010 Or Kolak commenced working at the Bondi Junction Medical and
Dental Centre. She also worked as a locum general practitioner at a general
practice in Hunters Hill. She continued to work part-time at both the Multicare
Medical Centre and the Southern Sun Skin Cancer Clinic. Since 2011 Dr
Kolak has worked at the Multicare Medical Centre and until recently she also
worked at a cosmetic medicine clinic in Wollongong for one full day per
fortnight".
More extensive details of Dr Kolaks professional training and experience are set out in Dr Kolaks
written statement dated 6 September 2012, Exhibit 1 tabi.
8 The Broadway and Dee Why rooms were supported by a general practice owned by the General
Practice Support Services Group.
See Or Kolaks oral evidence.
Registration Status
16.
Dr Kolak was first registered as a medical practitioner in New South Wales on
19 December 1988. As at the date of these proceedings. Dr Kolak was
registered nationally in the General and Specialist categories and her
registration was subject to the following conditions imposed pursuant to
section 150 of the National Law: 1
Completed/Removed/Expired)’
To nominate a supervisor (who is independent of any current/future practice/s
the practitioner is employed at) within the next 21 days, to be approved by the
Council, to monitor and review her clinical practice and compliance with
Conditions in accordance with Level 3 Supervision as contained in the
Councils Supervision Policy (PCH 7.5). The supervisor is to be provided with
a copy of the Councils Policy. The practitioner is to be responsible for all
costs associated with the supervision arrangement. The practitioner is to
ensure that:
3.
10
a)
She and the supervisor meet on a fortnightly basis for at least
one hour, the first meeting to occur within one fortnight of being
advised by the Council that her nominated supervisor has been
approved.
b)
At each meeting they address case and medical records
reviews, basic clinical judgment and skills, formulation of care
management plans, history taking, diagnostic process and
decision making, interaction and communication skills, overall
patient care and management. clinical outcomes, appropriate
prescribing practices, patient follow-up, appropriate referral and
supervision of patients and the recall system for follow-up of
patient test results.
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, initially 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, compliance with
other conditions of registration, clinical performance, or if the
supervisor relationship ceases.
I)
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.
Not to undertake any clinical exercise stress testing.
With effect from 31 August 2010.
Condition 1 was removed by the Council on 10 July 2012.
4.
To provide the Council with a copy of her Practice Conditions signed by or on
behalf of her current employer/s within 7 days of the date of receipt of this
Decision, and/or prior to commencing any new employment.
5.
To obtain Council approval prior to changing the nature or place of her
practice.
S.
The practitioner authorises the Council to notify her current and future
employer/s of any issues arising in relation to compliance with these
Conditions.
7.
The practitioner authorises and consents to any exchange of information
between the Council and Medicare Australia where such exchange is
necessary to facilitate the monitoring of compliance with these conditions.
CIRCUMSTANCES SURROUNDING THE COMPLAINT
17.
At the commencement of the hearing the parties provided the Committee with
an Agreed Statement of Facts dated 21 September 2012, which states as
follows:
[Agreed Statement of Facts]
1. At all relevant times (and between 4 September 2006 and 26 April 2007) Dr Node
kolak was a general practitioner working at Your Heart Clinic’ (YHC), Sydney Heart
Medical Centre also known as Sydney Heart Clinic’ and Sydney Heart Check Clinic’
(SHMC) and "Southern Sun Skin Cancer Clinics (Southern Sun) (on 13 January
2010).
2. On 26 April 2007 Patient A consulted with Dr Kolak at YHC. He presented with a
history of non-insulin dependent diabetes mellitus, hypertension, obesity and recent
chest pain and shortness of breath. Dr Kolak performed an exercise stress test (the
results of which were sent to Patient A’s treating G.P), ordered blood tests for B12
and thyroid, commenced the patient on aspirin and referred him to the exercise
physiologist and dietician.
3. Dr Icc/ak’s records do not contain an assessment of the patient’s diabetes, the
clinical reasons for ordering the blood tests, or for prescribing aspirin. She did not
obtain a sufficient medical history, refer Patient A to a cardiologist, and/or follow-up
various risk factors.
4. Patient C saw Dr Kolak at SHMC on 4 September 2006. She presented with a family
history of cardiac disease, controlled hypertension, sleep apnoea, two episodes of
chest pain and a limited ability to exercise. Dr Kolak conducted a stress test which
she described as borderline but she did not send a copy of the results to the
patient’s longterm G.P.
5. Dr Kolak’s records do not contain a patient history, assessment, management plan
and any risk factors or recommendations. Despite the contraindications of
bradycardia and physical limitations. Dr Kolak performed a stress test on this patient.
She did not forward the test results to the patient’s regular G.P and did not give the
patient any treatment or advice.
6. On 26 October 2007 Patient B consulted with Dr Kolak at SHMC for the purpose of
ascertaining the health of her heart. The patient was asymptomatic, advised Dr Kolak
that she exercised daily, and was taking J’z a Soliprin tablet daily. Dr Kolak carried out
10
a stress test and recorded a positive result with no symptoms. She advised the
patient to return to her G.P and discuss a referral to a cardiologist
7. Notwithstanding the absence of clinical indicators Or l(olak performed a stress test
on this patient and despite the positive result she felled to convey to the patient the
urgent need for a cardiac assessment and did not take steps to arrange such an
assessment Dr Kolak did not follow up with this patient.
S. On 13 January 2010 Patient D consulted with Dr Kolak at Southern Sun for a general
skin check and in relation to a lesion on her calf Dr Kolak’s records do not contain an
indication that she performed a dermatoscopic examination; whether mnemonic was
used to review the lesion; an adequate history, and any specific follow-up advice
other than to return if the patient noticed any changes to the lesion. Dr kolak did not
arrange for a biopsy of the lesion.
9. Since 31 August 2010 Dr Kolak has worked under practice conditions including
audits of her medical records, Level 3 supervision, and a ban on stress testing. On
10 July 2012 the practice condition requiring audit was removed by the Council.
[Facts in Dispute]
10. In relation to Patient D, Dr Kolak does not agree that the patient told her that another
practitioner suggested the lesion was of concern.
II. Dr lCoIak does not agree that she inappropriately ordered a 812 and Thyroid test for
Patient A-or that her referral of this patient to an exercise physician and dietician was
pre-mature.
FORMAL ADMISSIONS
18.
Or Kolak’s legal representatives provided the Committee with the following
formal admissions dated 21 September 2012:1 2
1. The respondent practitioner, Dr Nada Kolak admits the Particulars to each of the two
Complaints made by the Health Care Complaints Commission and dated 29 March
2012 save as for the following which she does not admit.
a- Complaint One, Particular 3 (iv);
b. Complaint Two, Particular I (Wand v.
Z The respondent practitioner concedes that the admissions made by her above permit
the Professional Standards Committee to make a finding of Unsatisfactory
Professional Conduct in the matter. ’
EVIDENCE
19.
The Committee heard evidence from Patient D, Or Harry Nespolon the
HCCC’& Expert Peer and Dr Kolak.
Patient D
20.
The Exhibits included a written statement dated 12 May 2011 made by Patient
12
Exhibit 2
Whilst the admissions refer to the Complaint dated 29 March 2012 they have direct application to the same Particulars in the Amended Complaint.
13
11
D 14 in the context of the HCCC’s investigation following her complaint to the
NSW Medical Board about Dr Kolaks conduct. Patient D also gave oral
evidence at the Inquiry. Patient D presented as a candid and credible
witness. Patient Os written statement reads, in part:
4.
My complaint relates to my one and only visit to Dr Kolak on the 4th January
2010.
5.
Around Christmas in 2009 I was at a social event where I saw my friend Dr Rick
Thambyah. He noticed the sun spot on my right calf. Rick had a look at it
and said he didn’t like the look of it He said I should see someone about
it.
6 The sun spot on my right calf was darker in colour than the rest of my
skin. It was browny-black in colour and probably about the size of a
woman’s little finger nail.
7.
I made an appointment at Southern Sun Skin Cancer Clinic because I thought
it would be best to go to a specialist in skin problems and sun spots. Monday
the 1h January was the first appointment / could get after the Christmas break.
8. I wont to the clinic sometime in the mid morning. I think it was about 11 am. I
saw a female doctor who introduced herself as Dr Kolak. (told Dr Kolak I wanted
her to check me all over for sun spots to see whether any of them might be
cancer- I also told her that a physician friend of mine had seen the spot on my
right calf and told me I should come and get it looked at
9.
1 undressed down to my bra and knickers. Dr I<olak used a small scope to
check my skin. (think it was a magnifying glass with a light inside. At different
times I laid on the bed and other times I stood. She went over my body, both
arms and both legs.
10. Dr Kolak checked both my legs. She looked at the spot on my right calf and
said it was ’nothing sinister and that it was the same as the ones on the front of
my legs. She told me I should cover the sun spot on my calf with a sock or a
band-aid whenever I went out in the sun.
11. Dr Kolak then burnt off somewhere between six and 10 sun spots from my
arms. I don’t remember how many sun spots she removed altogether, but I
remember she said she didn’t need to charge me because I had less than a
certain number of them removed.
12. I was probably in the consulting room with Dr Kolak for about 15 or 20
minutes.
13. The rest of the events are described in my complaint. The sun spot which was
a skin cancer, was removed in March 2010 by Or John De Launey. I now
have to have regular skin checks done.
14.1 made my complaint to the Medical Board because I don’t want Dr Kolak to
do the same thing to anyone else.
14
Exhibit A tab 28
12
Patient D’s Oral Evidence
21.
Patient 0 gave oral evidence to the following effect
22.
Patient D confirmed that she had made the appointment at the Southern Skin
Cancer Clinic as a result of her concerns arising out of comments made by a
medical practitioner friend at a lunchtime barbeque at his home. She recalled
that he had told her that he did not like the look of the sun spot on her right
calf - she had been wearing shorts at the time. She said she was "positive
she had informed Dr Kolak that a "doctor mend" had advised her to have the
lesion looked at and this was the reason why she had made the appointment.
She confirmed that she had not noticed the "SUP spot" until her attention was
drawn to it by her medical practitioner friend.
23.
In cross-examination Patient D described her experience as "a pretty horrific
ordeal". She adhered to the facts as outlined in her written statement and her
letter of Complaint to the NSW Medical Board dated 23 April 2010. Patient D
recalled that at the time of her consultation with Dr Kolak her friend Dr
Thambyah had been on holidays and following the consultation she had sent
him a text message "to say that the sun spot was OK’ She had next seen
him several weeks later in a social context and he was sufficiently concerned
to take a biopsy of the sun spot. The biopsy result indicated a melanoma and
he referred her to the Skin & Cancer Foundation and the lesion was
subsequently surgically removed.
Dr Harry Nespolon
24.
Dr Nespolon was retained by the HCCC to provide a peer report during the
course of the HCCCs investigation regarding two complaints made about Dr
Kolak’s clinical care. The first complaint dated 13 July 2010 arose out of a
referral to the Council pursuant to section 106XA (2) (d) of the
Health
Insurance Act 1973 (Cth) by Dr Tony Webber, the Director of the Professional
Services Review. The referral related to concerns raised by Medicare
Australia associated with Dr Kolak’s rendering of services of enhanced
primary care and chronic disease management in relation to four patients
including Patient A, Patient B and Patient C. The second complaint was that
made by Patient D. By way of background information for the purposes of his
review the HCCC provided Or Nespolon with extensive documentation
including copies of the complaints, patient records and correspondence
between the HCCC and Dr Kolak.
25.
Dr Nespolon is a general practitioner. He practises in the Sydney CBD and in
Neutral Bay. Dr Nespolori’s report dated April 2011 indicates that his medical
qualifications include MOBS, DipRACOG, FRACGP and FACLM.
There
was no objection to Dr Nespolon’s standing as an appropriate peer reviewer.
26.
In his report Dr Nespolon provided background commentary on cardiac stress
testing together with observations on aspects of Dr Kolak’s treatment of the
relevant patients. He also responded to specific questions put to him by the
F-ICCC and opined on Dr Kolaks competency. Dr Nespolon’s report included
the following observations, responses and opinions relevant to matters raised
IS
Exhibit A tab 34.
13
by the Amended Complaint: 16
Patient A
5.1 Background
This is a 53 year aid man who presents with significant cardiac risk factors
which include hypertension, dyslipidaemia and non-insulin dependent
diabetes mellitus. He has a high risk of heart disease.
This patient presented to Dr Kolak after experience (sic) a short history of
’retrosternal chest pain" associated with shortness of breath, which
lasted for 10 minutes and occurred while "moving home’. Dr Kolak
proceeded to perform an exercise stress test on this patient which she
reported as normalThe patient was on Lipitor 80mg, Glucovance’ 7 50012.5, Isoptin 240mg and
Atacand 16mg.
She then started him on Aspirin and ordered blood test for 812 and thyroid
and then review.
5.2 Review
This patient was at very high risk of ischemic heart disease, a Framingham
Cardiac Risk Score of about 37% risk over 10 years. [Patient A] had
undertaken exercise (moving house) and developed retrosternal chest pain
and shortness of breath. Despite the negative stress test it was clear that
this patient required further evaluation to exclude ischemic heart disease. It
is likely that if he had been referred to a Cardiologist he would have
undergone further evaluation and probably a coronary angiograrn.
This patient was being cared for by another practitioner. Given that Dr Kolak
was going to review and that she had written a GP Management plan for this
patient it seems that she was going to take over the care of this patient Given
his history, as a minimum, Dr kolak should have sought some past history
about this patient - such as previous blood tests etc. There is no record of
this occurring.
Dr Kolak ordered B12 and Thyroid tests. It is difficult to understand why these
two tests were ordered. There is no history or examination to suggest that the
patient had symptoms of B12 deficiency. While thyroid testing would be
initially appropriate in a patient like [Patient A], unless Dr Kolak had some
contradictory history, it is likely that this would have been performed in the
past. If [Patient A] had not been seeing another doctor, HbAIC and other
cardiac screening tests would seem to have been a (sic) more relevant.
She went on to prescribe low dose aspirin, there is no indications in the
notes whether this was due to the patient being diabetic or she felt that he
was at risk of heart disease.
In Summary:
This patient should have been referred to a cardiologist regarding his chest
pain despite the negative stress test.
Given that this patient was to be a regular patient of Dr Kolak there should
have been much more done to follow up this patient’s multiple risk factors.
’ References have been omitted.
’ Glibenc!amide; metformin hydrochloride.
14
5.3 Response to HCCC questions
i. The decision to undertake cardiac stress testing?
This was an acceptable decision in all the circumstances
2. The management of the negative stress test in the circumstances of
this patient
As discussed above, this was poor clinical decision making, Dr Kolak
should have continued to entertain the diagnosis of isahemic heart
disease despite the negative stress test.
.y. The management plan which included a referral to a dietician and an
exercise physiologist, commencing him on aspirin and carrying out
212 and thyroid blood tests?
As discussed above, the referrals were far too early, the patient needed
further investigations, and the selection of blood tests was difficult to
understand. There was also a failure to obtain sufficient past history
to adequately manage this patient.
4. The standard of the medical records?
It would be very difficult for a doctor to take over the care of this patient
given the standard of the medical records. It is not indicated why aspirin
was started. There is no useful assessment of this patient’s NIDDM,
nor if Dr Kolak was going to seek further information.
Competency Assessment
The standard of clinical care fell below the standard reasonably expected of a
practitioner of an equivalent level of training or experience, applicable at the
time of the conduct and that this departure was significantly below the
standard and that this invites strong criticism.
Patient B
7.1 Background and Review
[Patient B] was 71 years of age when she presented to Dr ICe/ak in
response to a recommendation from a friend and an advertisement to have
her heart checked.
She underwent the stress test and was told it was positive. Or kolak then
referred the patient back to her OP for referral without any treatment. The
stress test was ultimately reviewed by a cardiologist, as reported by the
referring GP, as a negative test.
7.2 Response to MCCC questions
1. Was Dr Kolak’s decision to perform a stress test reasonable under
the circumstances?
She was asymptomatic. Given her age and her risk factors there was no
indication for her to have a screening exercise stress test. See
American Heart Association view on asymptomatic testing.
2. Dr Kolak provided the stress test results to [Patient A’s] OP and
recommended assessment by a cardiologist. While not providing any
interim care given that the stress test was positive a review by a
cardiologist was reasonable however the time between the stress test
26 October and seeing her OP on the 12 December is unacceptable.
There is no history that the patient was told about the urgency of
seeing a cardiologist.
3. The only notes available are the ones that were generated by the
patient. There is neither indication that they were reviewed by Dr
15
Kolak nor any indication of when the patient should be reviewed.
Further, there is no evidence of any follow up of this patient.
7.3 Competency assessment
The standard of clinical care fell below the standard reasonably expected
of a practitioner of an equivalent level of training or experience,
applicable at the time of the conduct and that this departure was
significantly below the standard and that this invites strong criticism.
Patient C
This patient was 60 years of age when she had a stress test which was
described as borderline. [Patient C] had two relative contraindications to having
a stress test:
Bradycardia
1.
Physical
impairment that prevented her exercising
2.
Despite her family history she was asymptomatic at the time of stress test.
8.2 Response to HCCC questions
[Patient C] contacted ’Sydney Heart Check Clinic’ and made an
appointment of cardiac stress testing. Taking into account [Patient
Cs] medical history, her current medication (Noten and Ditropan)
and her resting pulse rate of 42 bpm. was Dr kolack’s (sic) decision
to conduct stress testing reasonable?
As indicated above, [Patient Cl had a number of relative
contraindications to having a stress test and she had a physical
impairment that prevented her from adequately participating in the
stress test. See comments on performing stress tests in physically
impaired individuals.
2. Dr kolak ceased stress testing after 8 mins 20 seconds at 75%
maximal head rate due to [Patient Cs] reported hip pain. Dr Kolak
determines that the test was borderline. Dr Kolak stated that she
advised [Patient C] to follow up with her GP as soon as possible.
There is no evidence to support that Dr Kolak provided stress test
results to any other GP. Please comment on Dr Kolak’s clinical
management of [Patient C].
The stress test was not provided to her local GP nor was any
treatment or advised (sic) offered despite having a stress test
reported as borderline.
3. Based on the available records, were her patient notes of an
acceptable standard?
The records include a standard Sydney Heart Check Clinic cover
sheet, a report of the stress test. Given that the patient had a
number of risk factors associated with having the stress test the
notes are inadequate.
1.
8.3 Competency assessment
The standard of clinical care fell below the standard reasonably expected
of a practitioner of an equivalent level of training or experience,
applicable at the time of the conduct and that this departure was
significantly below the standard and that this invites strong criticism.
Patient 0
[Patient D] was reviewed by Dr l<olak at the Southern Sun Cancer clinic
16
where Southern Doctors are highly trained and experienced in skin cancer
diagnosis and management..’ She presented because of conversation she
had with Dr Thambyah a friend and a general practitioner prior to New
Year in 2009 who advised her to have a lesion on her calf assessed[Patient D) presented on January 13, when she presented she stated that
there was a lesion on her right calf which had been present for "about 2
years which had become darker over the preceding two weeks’ She was
reassured that there was "nothing sinister". This was confirmed by Dr Kolak
in her letter of the 23 July 2010. Approximately 8 weeks after being
reassured the same general practitioner friend organised a biopsy of the
lesion which showed that it was a malignant melanoma. She was referred
to Dr John De Launey who reported that the ’lesion was large, and after
the addition of an appropriate margin, closure by primary suture was
impossible."
It is likely that the lesion was a melanoma at the time that it was examined by
Dr !Colak
There is photocopied picture of the lesion presented in the documentation. It is
too faded to make any independent assessment of the lesion.
Dr Kolak states that states that (sic) she has been working in skin cancer
clinics and completed a diploma in skin cancer and has attended
conferences to ensure that her skills are kept up to date.
S.
Dr Kolak in her medical notes of the 131112010:
There is no history that another practitioner had suggested that the
lesion was of concern. [Patient DJ in her letter does not state that
she had informed Dr Kolak as this was one of the motivators for her
to present.
Dr Kolak did record that the lesion had changed over the previous 2
weeks
There is no specific advice regarding follow up this lesion, other
than to return if there were any new changes to the lesion
The dermatoscopic examination which was apparently
performed was not recorded
9-1 Review
Dr Kolak did not record a dermatoscopic examination, either that it was
performed at all or that any of the mnemonic used in reviewing a lesion
(e.g. ABCD, pattern analysis). It is not stated whether it was her routine to
examine all skin lesions, suspicious or otherwise, with a dermatoscope.
Dr Kolak states that she has undergone further training and even
completed a diploma.
If [Patient 0] had stated to Dr Kolak that another doctor was concerned
about the lesion in question this should have put Dr Kolak on notice that
the lesion was of concern and it should have resulted in a more careful
review of the lesion. Further, the lesion to the doctor who does not regularly
examine skin was of sufficient concern, without a dermatoscopy, to have
that doctor ultimately biopsy the lesion.
If Dr Kolak had used a systematic approach to her dermatoscopy a recorded
[sic] those findings in the notes then it either would have altered (sic) her to
the nature of the lesion or she would be better able to defend the
allegation of [Patient D].
The diagnosis of skin lesions is still not an exacting science and even the
most experienced practitioners will still in the best circumstances "miss"
17
lesions. However, in these circumstances, with an adequate history and
examination, the lesion should have warranted as a minimum a skin
biopsy.
9.2 Response to HCC (sic) Questions
Or Kolak diagnosed a solar lentigo on her calf in a lesion which 2 months
later it (sic) was diagnosed malignant melanoma. Comment on the overall
care of [Patient 0].
See review.
9.3 Competency Assessment
Dr kolak should be held to the standard expected of a practitioner who has
completed Skin Cancer Diploma Course and holds herself out to be expert
in the diagnosis of skin cancers. There was a clear departure from the
standard and was significantly below the standard, and does invite strong
criticism.
Dr Nespolon’s Oral Evidence
27.
Dr Nespolon gave oral evidence to the following effect.
28.
Dr Nespolon confirmed that he continued to adhere to the views set out in his
report of April 2011.
29.
Dr Nespolon was taken to paragraph 62 of Or Kolak’s written statement dated
6 September 2012 which reads as follows:
.1 can indicate that the reason that I did not document the fact that another
practitioner had suggested that the lesion was of concern in Patient 0
(Particular iv of Complaint One) was because the patient did not indicate that
18
to
30.
Dr Nespolon commented that whether Or Kolak was or was not told about
another medical practitioners concerns regarding Patient D’s lesion ’does not
have a huge bearing on the outcome" but if she was so informed, this should
raise awareness even higher. He said that he would want to be sure and
would spend extra time examining a patient but this did not lower the
standard. He explained that he would undertake a careful examination to
check for any chance of malignancy and would note why he concluded the
lesion was benign. He said that he usually asks patients why they are having
a skin check and whether there are any spots of concern to them. He said
that he would be more alert if a patient raised an issue.
31.
Dr Nespolon was next asked to comment on paragraph
written statement: 19
60 of Dr Kolak’s
in relation to the Particulars of Complaint Two, I can indicate that I do not
accept that it was inappropriate to order a B12 and Thyroid Function test for
Patient A. He was taking Metformin, a medication which is of course known to
reduce B12 levels.
Exhibit I tab 1.9
These comments relate to Patient A-
18
32.
Dr Nespolon noted that the tests were ordered in the context of a 53 year old
patient presenting with angina and, whilst not inappropriate, this was an acute
cardiac presentation and these tests were not a major priority at this time. He
questioned why these two tests were ordered and further noted that Dr Kolak
"could have done a raft of other testC Dr Nespolon agreed that correct
prioritisation was an important factor in the exercise or skill and judgment by a
medical practitioner. He considered that Patient A was suffering from an
acute condition and this should be addressed first. He said that there was a
need to demonstrate correct "prioritisation" in any care plan and clinical
judgment involved ’the right test on the right patient at the right time".
33.
Dr Nespolon considered that referring Patient A to a dietician and exercise
physician would be relevant in the long term but the first priority was to
stabilise Patient A’s angina. Dr Nespolon opined that if the subject matter of
the complaints represented Dr Kolak’s outcomes "she probably should not do
stress tests".
34.
Dr Nespolon was asked to comment on the adequacy of Dr Kolak’s training in
relation to stress tests. He noted that in her written statement Dr Kolak had
indicated that she had spent some time with a cardiologist, 20 however, the
nature of the training was unclear. He further noted that observing stress
testing may not be adequate to enable interpretation of results.
35.
In cross-examination Dr Nespolon conceded that "it was not completely
wrong" to order the B12 and Thyroid Function tests but in his view it was a
timing issue, in a situation of multiple medical problems. He said "it’s about
clinical judgment - he needed to have his angina sorted out not his B12’l
36. In responding to further questions Dr Nespolon acknowledged there was a
school of thought with regard to Metforrnin causing vitamin B12 deficiency;
that vitamin B12 was important for the production of red blood cells and there
was a recognised association of hypothyroidism with peripheral neuropathy.
Dr Nespolon agreed that the B12 and Thyroid Function tests were ’not
inappropriate". He also agreed that in circumstances where the lead time to
secure appointments with the dietician and exercise physician was four weeks
that it was appropriate for Dr Kolak to write referrals.
37.
In re-examination Dr Nespolon said the most urgent test or referral required
was "getting the patient to a cardiologist who would have done an angiogram".
Dr Nespolon considered that Dr Kolak’s failure to do this demonstrated poor
judgment in that Dr Kolak had failed to recognise the significance of the
symptoms. He said that he’stood by" the opinion expressed in his report that
Dr Kolak fell significantly below the requisite standard.
38.
In responding to questions from the Committee Dr Nespolon explained that in
establishing a Care Plan Dr Kolak should have contacted other members of
the care team including the cardiologist. He noted that preparing a Care Plan
"take quite a bit of time and effort". He noted that ’it is important that you are
the principal general practitioner if you are writing up Care Plans".
He
questioned Dr Kolak’s approach in writing the Care Plan, in that she wrote a
plan involving an exercise physician and a dietician and sent the stress lest
20
Exhibit I tab 1, p 3 at paragraph 23.
19
results to another general practitioner for referral to a cardiologist. He said
.that’s not right - the whole idea is you are assuming general care of the
patient’
39.
Dr Nespolon was not asked to give evidence about the care which Dr Kolak
provided to Patients B and C.
Dr Kolak - The Respondent
40.
As previously noted Exhibit 1 included a written statement by Dr Kolak dated 6
September 2012. Dr Kolak’s statement addressed several issues including:
her Background, Education and History of Practice as a Medical Practitioner;
Your Health Clinic and Exercise Stress Testing: Professional Services Review
Committee No 560: The Section 150 Inquiry and the Present Complaints. Dr
Kolak’s statement in relation to the Present Complaint reads as follows:
The Present Complaints
The Complaints as they relate to the care of patients and my clinica’ judgment
49. 1 have carefully considered the opinions of Dr Nespolon. I believe Those
opinions are justified where they are critical of my clinical judgment and
patient management I am very sorry that these failings occurred at the time
they did.
so. I can indicate to the Committee that in the course of my legal representatives
attending to my interests with respect to the present proceedings I have,
on their recommendation, received the benefit of independent advice and
guidance from Dr Walid Jammal. He has helped me to accept without
reservation that the opinions of Dr Nespolon are reasonable. He has
also assisted me to appreciate that my conduct and evaluation of exercise
stress testing, particularly in the cases of the relevant patients in these
proceedings, was inadequate albeit well intentioned at the time.
The Complaints as they relate to my record-keeping
51, 1 accept the validity of the complaints that have been made about the
inadequate standard of my medical record-keeping.
53. I continue to have reservations about the fact that my medical records are not as
complete as they were at the time they were made. I believe that my medical
records as they exist now have let me down as they do not fully reflect precisely
what occurred during the consultations in question. That comment however, is not
intended to detract from my concession that my medical records were deficient,
54. As a consequence of the section 150 Inquiry a Condition in relation to my medical
records was imposed upon my Registration. That required a person approved by the
Council to conduct an Audit of my records. My records have now been the subject
of two such Audits. Both were conducted by Dr Esther Kok. The first took place at my
practice in April2011. The second audit occurred on 5 May 2012,
55 Dr Kok’s reports will be seen to confirm that I was making a genuine attempt to keep
more comprehensive records and she concluded that in her view, I have complied
with the provisions of the Health Practitioner Regulation (New South Wales)
Regulation 2010 in respect of my medical record keeping. Further, following Dr
Koks audit conducted in May 2012, the Councils Conduct Committee determined to
20
remove Practice Condition I from my Registration. As a result of that, I was
fortified of the view that my genuine attempts to improve had been successful55, Following the section 150 Inquiry, one of the Conditions imposed upon my
Registration required me to meet with a Supervisor on a fortnightly basis. During
those meetings my supervisor and! discuss issues which have arisen at work. We
also discuss various general issues regarding general practice including case
vignettes, treatment and management of common general practice conditions,
management guidelines, communication with patients, prescribing and care planning.
57 I have found the meetings with my supervisors to be very beneficial. They allow me
to discuss and express and clarify any concerns! may have. They also allow me to
have informative meaningful professional discussions with a colleague which I
have not only found of great benefit, but I have enjoyed. My supervisors have
provided monthly reports to the Council. I think that all reports have been positive
and I am very pleased about that. I feel that observance of the Conditions,
together with my own efforts, have resulted in significant improvements in my
general medical practice over the past two years.
sa I have learnt a great deal from the experience of having my medical records audited
and from engaging in regular discussions with my Supervisor. I believe those
requirements have helped me to improve my skills as a general practitioner, especially
in relation to my keeping of medical records and in relation to my communication
skills.
59.
%?IIXSt I do not propose to respond in this statement to each of the Pa,liajlars to the
Comp/an beyond a general adm
of them as indicated a&ve namely, that I accept the
opiAions of & Nespolan, I do wish to indicate the following in relation to three minor
matters
613. First, in relation to the Particulars of Complaint Two, I can Indicate that I do not accept
that it was inappropriate to order a 812 and Thyroid Function test for Patient A. 14e was
taking Meffbnnin, a medition which is of course known to reduce B12 levels
61. Secondly, I do not accept that I referred Patient A to a dietitian and exercise physician
too early. I arranged the refesral to each of those allied health professionals knowing that
the lead-lime would be at least 4 weeks and by the time the appointment was available,
the patient would have seen the cardiologist and! would have had a dearer picture as
to the appropriateness of the refwrals or otherwise. Unfortunately, my records do not
evidence my thinking or plan at the time. If confronted with such an issue now, ! would
carefully document that train of thought so that any practitioner referring to my records
would be able to understand my treatment plan.
62 Finally, I can Indicate that the reason that I did not document the fact that another
practitioner had suggested the lesion was of concern in Patient D (Particular iv of
Complaint One) was because the patient did not indicate that tome.
Dr Kolak’s Oral Evidence
41.
Or Koak gave oral evidence to the following effect.
42.
In examination-in-chief Dr Kolak confirmed that she was satisfied that the
contents of her written statement were true and where she had expressed an
opinion in her written statement that opinion was genuinely held and offered
by her.
43.
Dr Kolak recalled the consultation with Patient D. She was ’fairly certain"that
21
there was no history given alerting her to any concerns expressed by Patient
D’s general practitioner friend. She said that her examination commenced
with Patient D’s head and face, however, if a patient presented with a lesion
she would normally deal with that lesion first. She had found keratoses on
Patient D’s arms. Dr Kolak said that she treats minor lesions "as! go - so that
things are not forgotten keratoses are treated with liquid nitrogen. She
explained that as appointments were booked for 15 minutes only, if a patient
presented with a particular complaint she would deal with that complaint at the
consultation and not examine the patient’s whole body.
44.
Dr kolak also explained that if a patient informed her that another medical
practitioner had concerns about a lesion she would consider this to be
significant and, if in doubt, she would seek a second opinion. She said that
even if she considered the lesion was normal she would be more likely to
seek a second opinion in such circumstances. Dr Kolak noted that in this area
of medicine any changes in shape or colour are significant and form part of
the presenting history. Accordingly, even if a non-medical third party such as
a relative recognised any changes this would affect where she commenced
her examination. She said that in examining the patient she would go straight
to the particular area of the body that is of concern. She said it would be
"inconceivable" for her to ignore the presenting complaint. She described this
as a "very important sign - something to home in on" and observed "the
presenting complaint takes priority".
45.
Dr Kolak confirmed that she intended to undertake the Advanced Diploma in
Skin Cancer Medicine conducted by the University of Queensland and the
Skin Cancer College Australasia in 2013. She explained that the 24 week
course includes weekly internet sessions, reading, workshops (lx 5 days and
lx 2days), keeping a log book and a final exam. The course is designed to
"upskili" general practitioners in skin cancer medicine and surgery. Dr Kolak
noted that she presently holds a certificate in Skin Cancer Medicine. Dr Kolak
said that she had enrolled for the Advanced Diploma in February 2012,
however, she discontinued for health reasons.
46.
In cross-examination Dr Kolak was first referred to her general admission in
paragraph 59 of her written statement. She acknowledged that a finding of
unsatisfactory professional conduct was open to the Committee.
47.
Dr Kolak confirmed that she is presently working at the Multicare Medical
Centre at Ashfield. The Total Body Clinic at Wollongong where she also
previously worked part-time in a locum capacity in cosmetic medicine has now
closed. At Multicare Dr Kolak works 10 sessions per week which she
estimated as being equivalent to 51,4 days. She sees approximately 40
patients per day - in total about 200 patients per week.
48.
Dr Kolak confirmed that when working at the Your Heart Clinic in 2006 she
worked 7’/2 hours per day for 3 days per week. Patients were booked for 30
minute appointments and she saw up to a maximum of 20 patients per day.
49.
Dr Kolak confirmed that during 2009 she was also working in a locum capacity
2 days per week in cosmetic medicine at the Southern Skin Cancer Clinic.
Although not sure, she said that "it could have been all 2009". She recalled
that she ceased practising there in about August 2010 "just prior to the section
22
150 proceedings". Dr Kolak estimated that she had worked at the Southern
Skin Cancer Clinic for 18 months or less. Whilst working there she worked 7
hours per day with appointments every 15 minutes and saw approximately 50
patients over the 2 days.
50.
Dr Kolak agreed that she would have seen hundreds of patients during that
time. In the light of her evidence that she recalled the consultation with
Patient 0, Dr Kolak was asked what it was about that consultation that made
her have such a clear recollection. She responded the main reason was that
she had received correspondence about the matter from her colleagues and
from the Melanoma Unit and the letter of complaint which "would have jolted
my memory and therefore stuck our.
51.
Dr Kolak confirmed that at the time she examined Patient D she had
concluded that there was "nothing suspicious’
She described the
consultation as ’unremarkable" and a "fairly standard examination".
52.
Dr Kolak was next asked about her normal practice with regard to medical
records at that time. She responded that her usual practice in 2010, as it is
now, was to record notes by typing directly into the computer. She said that it
was "likely" Patient D gave a history which she noted and then examined her.
Dr Kolak acknowledged that she had heard Patient D’s evidence that when
Patient D presented at the consultation she had informed Dr Kolak of a
suspicious lesion. She said that she could not recall Patient D giving a history
of her general practitioner friend’s concerns.
53.
Dr Kolak acknowledged that it had been a changed lesion and there were
some failings on her part but maintained that she does not ignore presenting
concerns. Dr Kolak explained that when a patient comes to see her and says
they have a lesion, she looks at that lesion and she did so then and does so
now. She said that she could not rely entirely on her memory but from the
medical records the fact she undertook a total body examination indicates that
it is most likely that Patient D did not have a history of presenting with a
concern.
54.
In further questioning it was noted that in paragraph 62 of her written
statement Dr Kolak had positively asserted that the reason she did not
document any reference to a concern by another practitioner was because
this was not indicated to her by Patient D. However, in her oral evidence she
appeared to be saying that she did not recall being informed by Patient D.
When asked to clarify her position, Dr Kolak responded: "for me, it’s one and
the same. If I can’t recall! don’t have a memory of it being said".
55.
Dr Kolak was asked if a patient presented with a lesion of concern whether
she would or would not undertake a total body examination. She explained
that her usual practice was to deal with the presenting complaint first. She
said that she would undertake a total body examination, if time permitted, and
the suspicious lesion had been dealt with. She noted that in a 15 minute
consultation it was not usually possible to deal with a suspicious lesion and
undertake a skin check because the presenting complaint needs assessing for
biopsy, discussion and referral. She again stated that in Patient D’s case
there had been a total body examination.
23
56.
It was put to Dr Kolak that the first 5 lines of her medical notes concerning
Patient D deal with a specific lesion and include the notation
FH MM",
meaning no family history of melanoma. It was further put to Dr Kolak that the
earlier evidence indicated that a history had been taken which suggested that
Patient D presented with a specific problem as opposed to a general body
check. Dr Kolak said that she did not agree with this because she had written
a diagnosis in her notes following the examination once she had seen the
lesion. Dr Kolak agreed that in doing so that day she had not followed her
usual practice.
57.
Dr Kolak was then asked whether she was saying that Patient D did not bring
the lesion to her attention. Dr Kolak responded that Patient 0 did but it was
discussed as part of the whole examination when she examined the back of
Patient D’s legs. When asked whether she could recall what Patient D had
said Dr Kolak said that Patient 0 had said that she had been sunburnt on
holidays and during many walks. Dr Kolak did not recall the lesion being
mentioned at the beginning of the consultation.
58.
Dr Kolak explained that, in hindsight, because the lesion was changing she
should have sent Patient D to a specialist immediately. Dr Kolak said that if
she had been aware of the history that the lesion was changing it would have
been more prudent to have it examined by Professor Thompson at the
Melanoma Unit at Royal Prince Alfred Hospital.
59.
Dr Kolak confirmed that she was aware of Patient D’s complaint at the time of
the section 150 proceedings in August 2010. She confirmed that whilst she
had received advanced training in cosmetic medicine she was not a specialist
in skin cancer. Dr Kolak was asked whether there was any reason why she
had not undertaken further training in skin cancer medicine between August
2010 and the present proceedings. Or Kolak informed the Committee of
specific personal health reasons as to why she had withdrawn from the
Diploma of Skin Cancer Medicine and Surgery in March 2012. She confirmed
that she could provide the Committee with proof of her enrolment in the
.2
Diploma ’ Dr Kolak said that she would "like" to commence the Diploma
again in 2013 and was "happy’ to participate in further education on skin
cancer.
60.
Dr Kolak was next asked a number of questions relating to cardiac stress
testing. She confirmed that she had not performed any cardiac stress testing
since the section 150 proceedings in August 2010-
61.
62.
Dr Kolak confirmed that none of her supervisors 22 had reviewed any of her
patient files dealing with cardiac stress testing or skin cancer. She said that
she had had discussions with her supervisors which involved various aspects
of managing heart disease, skin cancer assessment and management.
Dr Kolak was questioned about paragraph 23 of her written statement where
she stated that in 2007 with a view to improving her
"knowledge of
cardiovascular and lifestyle medicine" she had undertaken certain training"
21
Relevant documentary evidence was annexed to the Respondent’s Submissions in Reply.
The orders imposed by the Council’s delegates at the section 150 proceedings convened on 19
August 2010 included a Condition on Dr Kolak’s registration requiring Dr Kolak to meet with a
supervisor approved by the Council to monitor and review her clinical practice.
22
24
with a specialist cardiologist, Dr Ronald Biggs. Dr Kolak confirmed that the
training took place over one full day and one half day. She estimated that the
training involved 3-4 patients per day. She was unable to recall when the
training took place in 2007. She confirmed that this was the first post
graduate training she had received dealing with cardiovascular and lifestyle
medicine.
63.
Dr Kolak was next asked whether she had received similar training in 2006
when working at the Sydney Heart Clinic. She explained that she had
received training from one of the medical directors at the Sydney Heart Clinic
whilst working there. She noted that her work there had involved stress
testing and not echo-cardiograms or other testing. She could not recall the
relevant medical director’s surname. She said that she had access to him on
a daily basis if she had any concerns. Dr Kolak recalled that this training
initially involved one session but became ongoing and resulted in "several
dozen" face to face interactions concerning patients. She said it was a "team
thing", they consulted regularly and the medical director was "always
available". Dr Kolak said that she was "a novice and relatively inexperienced
and rolled on him when I had problems, questions or concerns’
64.
Dr Kolak was referred to paragraph 47 of her written statement which reads
as follows:
47.
As I acknowledge my professional limitations, lsay that I have come to realise two
particular matters with respect to my former practice of exercise stress testing.
Although as indicated, / undertook certain further education and training in the
area, / now understand and accept that it was inappropriate for me to have
undertaken exercise stress testing without a stronger base in education and
training. In retrospect I believe I should have undertaken further studies in the
area, sought advice or, sought to work with specialists in a cardiac clinic for
example, prior to making changes which took me outside my usual general
practice. In the process of taking advice with respect to these present
proceedings, I have become aware of recent literature concerning exercise stress
testing. Although I have no present interest in working in the area, the recent
literature has caused me to appreciate that 1 could and should have been better
informed, particularly when I was conducting ’(I -IC.
65.
She explained
Dr Kolak said that she "stands by" her statement.
"retrospectiveV she can see that she should have been better trained and
that "a couple of days" training with Dr Biggs was not adequate. She said that
it would have been ’Wiser to receive clinical supervision of stress testing by a
cardiologist. Dr Kolak opined that if she had consulted with a cardiologist she
would have been advised to get more training under the direct supervision of
a cardiologist, then ongoing supervision.
66.
Dr Kolak was referred to paragraph 19 of her written statement which reads
as follows:
19.
67.
’(I-IC had specialist support from the Sydney Cardiology Group and a local
Cardiologist, Dr Kiyingi. Importantly, I was able to fax an ECG to, or telephone
one of the Cardiologists about any concerns relating to a patient’s cardiovascular
management
Dr Kolak agreed that she had not sought any advice in relation to the cardiac
25
stress test results for Patient A. In responding to further questions Dr Kolak
acknowledged that she was not adequately clinically skilled to undertake
stress testing. She said that she was not currently doing cardiac stress
testing and had no intention to do stress testing.
68.
Dr Kolak acknowledged that she had heard and understood the evidence of
Dr Nespolon indicating she had the wrong priorities with regard to the
treatment plan for Patient A. She accepted that if a patient presented with
chest pain this should be treated first and the patient sent to hospital. lithe
presentation was not acute and the patient has a stress test the patient should
be referred to a cardiologist. Dr Kolak maintained that was her practice in
2006 and 2007. She accepted that she did not refer Patient A to a
cardiologist. She said the notes for Patient A recorded that he had a history of
chest pain. Dr Kolak explained that "retrospectively" she agreed that if a
patient presented with chest pain the patient should be sent to the local
Emergency Department rather than referred to a cardiologist.
69.
Dr Kolak was referred to paragraph 17 of her written statement which reads,
in part, as follows:
17.
In November 2005, 1 established and commenced working at ’Your Heart
Clinic’ (YHC). The ’fl-IC practice at Pauamatta and at Liverpool was a general
practice concentrating on lifestyle medicine and cardiovascular and chronic
disease management The practice employed 2 part- time exercise physiologists,
a part- time practice manager and 2 reception staff. Twice a week a dietitian
attended the clinic...
70.
Dr Kolak confirmed that she was the only doctor working at the Your Heart
Clinic. She further confirmed that the 2 exercise physiologists were salaried
employees and she did not take a percentage of their earnings.
71.
Dr Kolak accepted Dr Nespolons opinion that a referral to allied health
practitioners was not the priority in the case of Patient A.
72.
Dr Kolak confirmed that she stands by’ the benefits she had gained from
supervision as described in paragraphs 57 and 58 of her written statement.
She said that reviews with her supervisors have been in accordance with the
Council’s instructions and included discussions on history taking and
examinations including skin cancers and involved looking at specific patients
with particular issues.
73.
Dr Kolak responded to questions from the Committee. She said that the
Multicare Practice at Ashfield had been operating for more than 20 years.
She had worked there as a locum for several months in 2009 and resumed
working there in November 2010. There are 3 other general practitioners
working full-time and 2-3 undertaking sessional work. There are 4-5 general
practitioners at the practice at any one time. Dr Kolak said that she works
Mondays. Tuesdays and Wednesdays until 800pm and on Sundays from
900pm until 100pm or when other general practitioners are unable to work
on weekends or after-hours. The practice uses an on-call service.
74.
Dr Kolak confirmed that she does not undertake house calls but does look
after warfarin patients after-hours. If necessary she will contact patients with
urgent results and make arrangements with them by phone or book an
26
appointment or arrange a referral letter. If the results are urgent the pathology
service will contact the practice who will then telephone her. The Multicare
practice has a full-time registered nurse. 2 physiotherapists and a
psychologist. Dr Kolak confirmed that as from the Thursday prior to the
Inquiry she only worked at the Multicare practice.
75.
Dr kolak responded to questions about the General Practice Management
Plan she had written for Patient A. It was noted that these Plans are usually
prepared for a general practitioners own patients. Dr Kolak was asked
whether she had sent any documents to Patient As previous general
practitioner. Dr Kolak responded that her medical records do not indicate that
She described her memory
she "sent anything back to the original GP’
regarding this issue as "unreliable". Dr Kolak explained that "a for of patients
came to see her for the first time to get an opinion about their heart condition
and she offered them continuing care. She noted that it was open to patients
to choose their doctor. She said that Plans were written with the agreement of
the patients that she would take over their care and she understood the
principles and reasoning behind Plans. She further noted that in her current
practice it was common for patients to have 2 or 3 general practitioners and
patients will ask her for assistance with the management of chronic
conditions. She said that she had sent ECG results to other general
practitioners because this had been requested by patients.
76.
Dr Kolak was asked about her future plans. She responded that her situation
had been unsettled and stressful for several years due to personal
circumstances and she had worked in number of practices in a locum
capacity. However, she planned to return to the country as a general
practitioner working primarily with skin. Dr Kolak explained that cosmetic
medicine was not "her main thing" but she does sessional work in cosmetic
medicine. Dr Kolak said that her work in cosmetic medicine whilst working at
the Total Body Clinic in Wollongong included the use of botox injections and
dermal fillers but not IPL (Intense Pulsed Light) or laser procedures. Dr Kolak
described this work as being "all the things medical indemnity will approve for
use by a GP".
77.
She
Dr Kolak observed: "the days of solo general practice are over".
explained that she would prefer to work in a group general practice in the
country ’managed by experts’ She envisaged that her work in the country
would include skin cancer medicine and some ’cosmetic work" but as part of
Dr Kolak also referred to the need to understand
general practice.
complementary medicine in general practice and noted that whilst living in
Bowral she undertaken a Diploma course over 2 years at the Dorothy Hall
College of Herbal Medicine. She described the course as covering herbal
medicine in a sensible and holistic manner".
78.
Dr Kolak was asked to outline any sgnificant changes in her practice over the
previous 2 years. She said the main improvement was a realisation that if she
undertakes anything outside general practice she needs closer discussion
with her colleagues and should also consider how it may affect patient care
and her reputation. Dr Kolak explained she now appreciates that a mentor is
very useful for someone who has been a solo general practitioner. She said
that she also enjoys the collegiality. She confirmed that she had found
supervision to be positive.
27
79.
Dr Kolak described herself as being very intimidated" and feeling attacked"
at the time of the section 150 proceedings in August 2010. She considers that
she is now a better practitioner. She referred to various aspect of general
practice where she had benefited from discussions and sharing mutual
experiences with her supervisors. These discussions have included INS
monitoring and preparation of General Practice Management Plans to ensure
legislative compliance. Dr Kolak noted that her documentation in relation to
these Plans is now much more detailed. She said that she ensures that all
.13
team members are included and agree with the Plan
REASONS FOR DECISION
80.
The Committee has considered the documentary and oral evidence in the
context of the legislative framework established by the National Law. The
meaning of unsatisfactory professional conduct and the onus of proof have
been previously noted. The Committee must be comfortably satisfied in
relation to any findings that it makes. In reaching its conclusions the
Committee has taken into account the seriousness of the matters, the inherent
likelihood of an occurrence of a given description and the gravity of the
consequences flowing from a particular finding.
81.
The Committee has had regard to the Complainant’s written submissions and
the written submissions made on behalf of Dr Kolak.
The Particulars
The Admitted Particulars
82.
The Committee must determine whether the Particulars of the Amended
Complaint have been proved to the requisite standard. Or Kolak has made
formal admissions in relation to the Particulars save for sub-particular 3 iv in
Complaint One and sub-particulars I iv and I v in Complaint Two.
Finding
83.
Having regard to Dr Kolak’s admissions and the documentary and oral
evidence adduced at the Inquiry including the medical records relevant to
Complaint One the Committee is comfortably satisfied that those Particulars
which are not in dispute have been proven to the requisite standard and finds
accordingly.
The Disputed Sub-Particulars
84.
The written submissions made on behalf of Or Kolak concede that the
Committee’s findings with regard to the disputed sub-particulars will not affect
the Committee’s ultimate determination in the Inquiry. Notwithstanding this
concession it remains necessary for the Committee to consider the disputed
sub-particulars.
It was suggested to Dr Kolak by one of the medically qualified members of the Committee that she
may also benefit from the mentoring associated with small group learning.
28
(Particulars of Complaint One]
3.
The practitioner failed to keep adequate medical records in
relation to Patient D in contravention of the Medical Practice
Regulation 2008 (repealed) in that she failed to record:
iv.
85-
that another practitioner had suggested the lesion was of
concern;
Or Kolak’s evidence is that she was not given a history by patient D indicating
that another practitioner had concerns regarding the lesion. The fact that
concerns had been expressed is not in dispute, rather whether there was
communication of any concerns to Or Kolak is the matter in dispute. The
Complainant’s submissions on this issue contend that the Committee could
find that the concerns had been reported by Patient D to Dr Kolak on the basis
24
of the following evidence:
a) The evidence of Patient D - both oral and written; Exhibit A: Tab 4A & Tab 28.
Patient D presented as a truthful and honest witness and was unshaken during
cross-examination. Poignantly, Patient 0 said that the impetus for seeking a skin
cancer check was because another practitioner - namely Or Tharnbyah - and
(sic) had observed and raised concerns about the lesion on her calf.
b) Dr Thamnbyah’s email corroborates Patient D’s evidence with respect to
seeing him socially on two occasions, the first being "just prior to New Year in
2009’ and the fact that he ’advised her to get [the lesion] checked by a doctor in
a professional capacity"-"Exhibit A Tab 30.
c)
The unreliability of the respondent practitioners memory of events given the
hundreds (if not thousands) of patients she has seen since Patient 0, and her
own admission that, at the time, the consultation with Patient 0 was
unremarkable as no malignant lesion was noted by her-
d) The first 5 lines of the respondents clinical record for Patient 0 deal with the calf
lesion: Exhibit A, Tab 4C. In oral evidence the respondent stated that her normal
practice, at the relevant time in April 2010, was to take a patient’s history first
whilst simultaneously noting/recording it and thereafter to examine the patient.
When shown Tab 40 the respondent asserted that she deviated from her
normal practice in this instance, recording her clinical notes after examination.
She gave no explanation as to why she deviated from her normal practice
regarding these clinical notes nor what made her recall the certainty of this
deviation with respect to Patient D. It is submitted the respondents evidence in
this regard lacks credibility.
86.
The submissions made on behalf of Or Kolak with regard to sub-particular 1
of Complaint One respond as follows:
V
6. The patient gave evidence to the PSC and she maintained that she did advise Dr
Kolak of the other practitioner’s concern about a lesion on her calf. It became
apparent from Dr Kolaks evidence that the true basis of Dr Kolak’s dispute was
argumentative. That is, Dr l<olak could not positively assert that the relevant
history was not given. Rather, Dr Kolaks position was that she could not agree
with the patient ’s relevant history because Or Kolak considered that, had it been
gwen, she would have commenced her examination of the patient by initially
24
Complainant’s written submissions at paragraph 9.
29
examining the calf lesion that had been brought to her attention - and that was not
the way the examination proceeded. Argumentative or reconstructive as such
evidence may be, it is submitted that the PSC would accept as a matter of high
probability that Dr Kolak’s examination indeed would have commenced with
going straight to the calf lesion, had it been mentioned at the outset as a particular
issue already having concerned another doctor. Further, Dr Ko/ak’s evidence was
that, had the disputed history been gwen 1 she would have refe,red the patient for
specialist examination; she said that certainly would have been one of her
responses to a history of another doctor having expressed concern, It is submitted
that the PSC would regard such a referral as a general practitioner’s typical
response to such a history
-
7. A copy of Dr Kolak’s patient record is found at Tab 4C of Exhibit A. It was Dr
Kolak’s acceptable evidence that this record was written after the examination of
the patient, as indicated by what must have been the post-examination diagnostic
note of ’solar lentigo The patient record otherwise indicates that a whole-of-body
skin check was undertaken. This caused Dr Kolak to provide evidence that the
calf lesion was her incidental finding during the course of a whole-of-body skin
check.
B. The patient’s evidence during her cross-examination was that, probably, her
examination by Dr Kolak commenced with examination of her head and face.
The terms of the patient’s statement of May 2011 (Tab 28, Exhibit A) are
consistent with Dr Kolak’s examination having been conducted, first, upon the
upper body, and subsequently, upon the lower body. Again, it is submitted that
this is evidence against the likelihood of a particular calf lesion having been
brought to the attention of Dr Kolak at the beginning of the consultation.
9. During part of the cross-examination of Patient D, she was taken to the terms
of her initial written complaint of April 2010 (Tab 4A, Exhibit A). Conspicuously
absent from that complaint, made much closer to the time of consultation than
was her said statement of May 2011, was the alleged history to Dr l(olak of
another doctor’s earlier concern about the calf lesion. It is submitted that the
patient’s explanation for her failure to refer to the disputed history in her letter of
April2010 - lam not a lawyer’ did not do her any credit
ia It is submitted that the patient’s evidence of Dr Kolak’s head-to-foot examination
and, when she wrote her 2010 complaint, her then failure to advert to her
supposed advice to Dr Kolak about the other doctor’s concern, taken with the
form and content of Dr Ko/ak’s patient records and Dr Kolak’s evidence of what
she would have done by way of referral and by way of order of examination had
the disputed history been given, all militate against accepting the accuracy of the
patient’s disputed history.
87.
On balance the Committee is persuaded by the Complainant’s submissions
and accepts Patient Ds evidence regarding her recollection of the
consultation.
Finding
88.
The Committee is comfortably satisfied that sub-particular 3
One is proven to the requisite standard.
iv of Complaint
[Particulars of Complaint Two]
5. The practitioner’s clinical care in relation to Patient A was inadequate in
that she:
30
iv.
inappropriately ordered a 812 and Thyroid test; and/or
V.
referred Patient A to a dietician and exercise physician too early
and/or before further investigation had been conducted.
89.
The Complainant notes Dr Nespolon’s oral evidence that he acknowledged
the ordering of Vitamin 312 and Thyroid function tests for Patient A was not
inappropriate’ The Complainants submissions on this sub-particular also
refer to Dr Nespolons criticism of Dr Kolak regarding her failure to prioritise
the tests and referrals for Patient A. The Complainant submits that each of
disputed sub-particulars in Complaint Two has been proven.
90.
By way of response the submissions made on behalf of Dr Kolak contend
the concession in Dr Nespolon’s oral evidence that ordering the B12 and
Thyroid tests for Patient A was not inappropriate is sufficient to dispose of the
dispute about particular lOv) of Complaint Two in favour of Dr Kolak". 25 It is
further contended that the Complainant’s submission that sub-particular 1 iv
has been demonstrated against Dr Kolak is "not available to the HCCC in the
circumstance of its expert witness having expressly denied the allegations
made by particular I (iv)...
Finding Complaint Two Sub-Particular 1 i
91.
In the light of Dr Nespolon’s oral evidence that the ordering of the tests for
Patient A was not inappropriate the Committee is not comfortably satisfied
that sub-particular 1 iv has been proven.
92.
With regard to sub-particular I v the Complainant’s submissions refer to Dr
FColak’s acceptance of Dr Nespolons oral evidence
as to the wrong
prioritisation of these referrals". 2’ The submissions continue:
Dr Nespolon again maintained that the referrals to a dietician and exercise
physician, in circumstances where no referral had been made to a cardiologist,
reflected adversely on the respondent’s skill and judgment in her treatment of
Patient A. Dr Nespolon maintained the opinion expressed in his written report
regarding the conduct falling significantly below the standard expected. 28
93.
On behalf of Dr Kolak it is noted that the basis for Dr Kolak disputing subparticular 1 v is set out in paragraph 61 of her written statement. It is further
noted that Dr Kolak "is quick to concede that her records for Patient A do not
sufficiently expose her thinking with respect to her treatment plan for the
patient Nevertheless, it is submitted that upon the PSC accepting what Dr
Kolak has said in paragraph 61 of her Statement, then the PSC would
recognise that Dr Kolak was reasonably justified in arranging the relevant
referrals when she did. ’
94.
The submissions made on behalf of Dr Kolak on this issue conclude:
25
Respondents Written Submissions at paragraph 16.
ibid at paragraph 18.
27
Complainants Written Submissions at paragraph 17.
28
ibid.
Respondents Written Submissions at paragraph 19.
26
31
21. It is submitted that the dispute concerning Patient A is not a significant
dispute. Dr Kotak admits the substantial complaints relating to her
management of patient A. It is submitted that, should particular 1(v) in
Complaint Two be resolved against Dr Kolak, or not, either finding,
together with the PSC’s finding concerning the disputed history of
patient D, would not materially affect the PSC’s overall view of the
appropriateness of the concessions made by Or Kolak before the PSC
hearing, the reasonableness of the issues maintained by Dr Kolak and the
proper consequences of Or kolak’s admissions, together with the findings
of the PSC with respect to (hose issues requiting its resolution.
Finding Complaint Two Sub-Particular I
95.
V
The Committee is persuaded by Dr Nespolon’s opinion that there should have
been a referral to a cardiologist. It follows that Dr Kolaks clinical care was
inadequate in not referring Patient A for further investigation prior to referral to
a dietician and exercise physician. On balance the Committee considers that
sub-particular 1 (v) has been proven to the requisite standard.
FINDINGS - Section 139B (1) (b) and Section 139B (1) (a) of the National Law 3
96.
The next issue to be addressed by the Committee is whether the proven
Particulars support findings of unsatisfactory professional conduct in terms of
.31
section 139B (1) of the National Law
Section 1396 (1) (b)32
97.
The Committee has found that Dr Kolak failed to comply with the relevant
provisions of Medical Practice Regulation 2003 and Medical Practice
33
Regulation 2008.
The strict operation of section 139 B (1) (b) of the National
Law provides that a contravention of such regulations constitutes
unsatisfactory professional conduct on the part of Dr Kolak.
of unsatisfactory professional conduct’ of registered health practitioner
generally [NSW]
30 1398 Meaning
(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 practitioners 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.
31
Unsatisfactory professional conduct may be found by considering the particulars separately or
cumulatively. in Re A Medical Practitioner and the Medical Practice Act (40010 of 2007)3 September
2007 Freeman DCJ at paragraph 16].
As alleged in Complaint One.
Medical Practice Regulation 2003 in particular Part 3 Clause 5 and Schedule 2. Medical Practice
Regulation 2008 in particular Part 2 Clause 4 and Schedule 1.
32
Finding
98.
The Committee finds that Dr Kolak is guilty of unsatisfactory professional
conduct in terms of section 139B (1) (b) of the National Law.
Section 1398 (1) (a)
99.
The Complainant’s submissions note the following:
14----Dr l’Iespolon in his report of Apr!) 2011 found that the standard of
clinical care received by Patients A, B, C and D was significantly below the
standard expected of a practitioner of an equivalent level of freThing and
experience as the respondent and invited his strong criticism. The
respondent has been a general practitioner since 1997. At the relevant
times she was working at Your Heart Clinic and Southern Skin
Cancer Clinic, clinics which - from their names - suggest to the
public the provision of specialised services.
100.
For the purposes of section 139B (1) (a) of the National Law it is necessary for
the Committee to have regard to the relevant "equivalent level of training and
experience" in order to determine the standard expected of the practitioner.
The Committee considers that Dr Kolak’s conduct should be assessed in
accordance with the standards expected of an experienced general
practitioner with knowledge of exercise stress testing and the diagnosis and
treatment of skin cancer.
101.
More generally the Complainant contends: "The respondent in the admission
document concedes that her admission of the Complaint permits the PSC to
make a finding of unsatisfactory professional conduct. Irrespective of This
concession by the respondent, the undisputed evidence of Dr Nespolon could
satisfy the Committee that the Complaint has been pro
102.
The submissions on behalf of Or Kolak acknowledge the consequences of her
admissions.
103.
The Committee notes that Dr Nespolons evidence with regard to the relevant
standard of conduct expected of Or Kolak is substantially unchallenged. Dr
Nespolon was strongly critical of a number of aspects of Dr Kolak’s
competency in relation to the respective patients.
Finding
104.
The Committee finds that Dr Kolak is guilty of unsatisfactory professional
conduct in terms of the provisions of section 139 B (1) (a) of the National Law.
The Appropriate Orders - Submissions
105.
The Complainant submits that Dr Kolak should be reprimanded and the
following protective orders imposed in the form of conditions on Dr Kolak’s
registration.
That the respondent is not to undertake any clinical exercise stress
As alleged in Complaint Two.
op. cit. at paragraph 18.
33
testing. Or alternatively, that the respondent only conduct stress testing
under the direct supervision of a cardiologist
2
That the respondent is to undertake further training and education in a skin
cancer course approved by the CounciL
3.
The respondent is to comply with Level supervision, of monthly or quarterly
meetings for a minimum period of 12 months and thereafter as deemed
necessary by the Council.
4
The respondent is to:
a.
remain a member of and regularly attend meetings of the local
Division of Genera) Practice for a period of 2 years, - and,
b.
to inform the Council in writing within 7 days of each such
attendance
5.
The respondent authorises the Council to notify her current and future
employers of any issues arising in relation to compliance with these
conditions.
6.
The respondent is to advise her employer and clinical supervisor of all the
conditions of her registration.
7.
That the respondent is to obtain Council approval prior to changing the nature
or place of her practice.
8.
The respondent is to be restricted to working in a group practice.
9.
The respondent is to authorise and consent to any exchange of information
between the Council and Medicare Australia where such exchange is
necessary to facilitate the monitoring of compliance with these conditions.
106. The Complainant contends that these
following reasons:
conditions are necessary for the
a) Three out of the four patients subject of the Complaint were patients on whom
the respondent performed an exercise stress test. The respondent’s written
evidence is: "I now understand and accept that it was inappropriate for me
to have undertaken exercise stress testing without a stronger base in
education and training": [427 The respondent has to date not undertaken any
further education and training. Her oral evidence was that she attended with
Dr Biggs for a period of one and half days, observing possibly 3-4 patients
per day. She did a single session with a "Michael", the Medical Director.
She admitted, in her oral evidence, the need for increased training under
the direct supervision and guidance of a cardiologist and that other GP friends
of hers were doing that Based on the evidence and noting the nature of the 3
patient complaints before the PSC, the Committee could not be satisfied that
the respondent currently has sufficient expertise to perform exercise stress
tests.
b) At the time the respondent saw Patient D, she was employed at the
"Southern Sun Skin Cancer Clinic". The name alone confirms the specialist
nature of this practise. Her oral evidence was that she saw roughly 50
patients per week and worked at the clinic for roughly 18 months,
commencing sometime in early 2009. That is to say, at the time the
34
respondent saw Patient D in April 2010 she had examined hundreds of
patients for skin cancers. Her omission in detecting Patient D’s malignant
lesion in such circumstances bespeaks of a need for further training. It is
noted that the respondent gave evidence of her desire - and indeed
previous enrolment in - an Advanced Skin Surgery Workshop. Given the
respondents oral evidence of her continuing desire to work in this area,
further training is necessary.
C)
The respondent’s evidence is that she has found compliance with her
supervision condition to be of great benefit to her practice: [57-56]. Her
intention is to move back to the country in the near future and the nature of
the practice she would join is unclear. Her work history shows she has
worked at 5 different practices over the last 5 years. The s150 findings are
evidence before the PSC: Exhibit A: Tab 5. A finding was made by the
delegates that the respondent at that time lacked insight into her patient
care (p16), showed a rigidity in thinking (p 15) and demonstrated a disconnect
between her clinical knowledge and patient management: (plo). It is not
submitted that the PSC would come to the same findings as the delegates of
the s150, given the more recent evidence of the respondent - both oral and
written. However, it is submitted that what the slSO findings reveal, is that
the previous 18 months of supervision is insufficient to address those
deficiencies in the respondents practice proved in the current Complaint. A
further period under supervision and attendance at meetings with the local
Division of General Practice is necessary to secure proper patient care and
treatment in the future.
d) The respondent’s frequent changes in her employment raise the issue of
professional isolation and her expressed wish of moving to the country to
practice increases the risk of professional isolation. Although the
respondents supervision to date has improved those areas of her practice
warranting criticism in the s150 proceedings, ills submitted that the evidence
in this inquiry falls short of a complete remediation of those clinical issues.
Restricting the respondent to a group practice would potentially serve to limit
her professional isolation and mean that she could benefit from
discussing cases and clinical decisions with her peers The Commission
submits that such a restriction could be imposed in isolation, or in conjunction
with a supervision condition.
107.
The Committee notes that the Complainant seeks no orders in relation to Dr
Kolaks medical record keeping. This issue has been addressed as a
consequence of the section 150 proceedings. It is submitted on behalf of Dr
Kolak that no action at all should be taken by the PSC with respect to
Complaint One and the admitted unsatisfactory professional conduct that
arises from it". 6
108.
The submissions made on behalf of Dr Kolak raise two additional
considerations not addressed by the Complainants submissions. First,
consideration of the evidence of Dr Kolaks rehabilitation since the time of the
conduct relevant to the Complaints. Reference is made to the decision of the
Medical Tribunal of NSW in HCCC v Dr Semen (40018/2007) at page 12:
The orders to be made must protect the public and the profession rather than
punish the doctor.. The question of fitness to practice is to be determined as at
the date of the hearing not as at the date of the conduct.
3 Respondents submissions at paragraph 30.
Secondly, consideration of evidence of Or Kolak’s present competence as a
medical practitioner. Reference is made to the decision of the Medical
Tribunal NSW in HCCC v Dr Ly (40009/2010) at page 20:
The Tribunal exercises a protective jurisdiction... The outcome should be the
least serious outcome that is reasonably necessary to protect the health and
safety of the public.
109.
The submissions of behalf of Or Kolak concede that Patient D did not receive
adequate medical care from Or Kolak. It is submitted that ’flIt was clear from
Or Kolak’s evidence that she was sorry and remorseful for her inadequate,
imprudent care of Patient 0". The submissions then refer to the "very large
number of patients" Or Kolak has treated in the context of skin cancer clinics,
her membership of the Australasian College of Skin Cancer Medicine and her
endeavours, interrupted by a personal medical issue, to pursue further
education in this area. It is further submitted that the Committee Would be
satisfied that it is a certainty that Or Kolak will continue her practice and
further learning in the field of skin can cer’ 37
110.
The submissions on behalf of Or Kolak continue
34 The HCCC has submitted that the error made in the treatment of
Patient D, against this background of Dr Kolak’s extensive interest and
practice of skin cancer medicine, shows there is a need for a protective
order requiring Dr Kolak to undertake some approved further education
in skin cancer medicine- It is submitted that such a submission betrays an
alarmist and unwarranted view. It is submitted that the reasonable view to
take is that Dr Kolak’s error in her management of Patient D was an
aberration. The error does not bespeak an incompetence such that the
public requires a protective order. It denotes a one- off error in the
course of assumedly appropriate treatment of numerous patients seen in
skin cancer clinics over the past fourteen years.
35. Or Kolak offers to the PSC her undertaking that, within twelve months, she
will complete the course for an Advanced Diploma in Skin Cancer
Medicine, referred to in paragraph 34 of her said Statement. However, it
is respectfully submitted that it would be inappropriate to impose a
requirement that such course, or any like course, be undertaken by Dr
Kolak as a condition of her medical registration. In that regard, the PSC
would also take into account the evidence of Dr Kolak’s general
competence as a medical practitioner. That evidence will be the subject
of further submission, below, but it is submitted that the body of
evidence comprised by Or Kolak’s references and her supervision
reports, which two bundles of documents comprise most of Exhibit 1,
provide ample basis for the PSC resisting all of the submissions
advanced by the HCCC in paragraphs 20 and 21 of its submission
document.
111 The submissions on behalf of Or Kolak next address the Complaint’s
proposed registration conditions concerning stress testing.
36. The three patients seen in the context of Or Kolak conducting exercise
stress testing were seen in 2006 and 2007. The inadequacy of these
’ Respondent’s submissions at paragraph 33.
36
patients’ medical management was significantly if not wholly due to Dr
kolak’s failure to heed positive and borderline test results, or alternatively,
over-reliance on negative testing. There was otherwise a failure pay proper
regard to clinical symptoms and signs, regardless of the outcomes of the
stress testing.
37. During the Section 150" matter in 2010, much of the proceedings was
concerned with patients upon whom Dr kolak undertook exercise stress
testing up to 2010. One of the results of those proceedings was that Dr
ko/ak was prohibited from undertaking any clinical exercise stress testing
see Tab 5, Exhibit I p. 18. That condition remains current. Dr Kolak has
never sought a variation of that condition. In her evidence to the PSC, Dr
(Co/ak said that she no longer had any interest in such testing or screening.
See also, paragraph 47 of Dr ICc/ak’s said Statement. The PSC would
note (from paragraphs 47 and 51 of the said Statement) that Dr Kolak
has taken recent medical counsel, and considered recent literature about
exercise stress testing. This has not occurred out of any interest in revisiting
clinical exercise stress testing. Rather, it has served to reinforce Dr
Kolak’s position that she was never appropriately trained in the area. That
is, Dr Kolak clearly regrets that time, now some years ago, when she was
involved with exercise stress testing.
38. The 1-10CC has submitted for the PSC making protective orders by way
of imposing further conditions relating to exercise stress testing. It is
submitted that would be a vacuous exercise where Dr kolak is presently
prohibited from undertaking exercise stress testing, and has no intention of
undertaking exercise stress testing. It is submitted that there would not be
any utility in making any form of protective order in relation to exercise
stress testing and indeed, it is responsibly arguable that the maintenance
of the current Condition serves no ongoing purpose.
112.
The submissions on behalf of Dr Kolak contend that there is no evidence to
support a further period of supervision. Reference is made to Dr Kolaks
supervision for some two years since the section 150 proceedings and the
"exemplary" reports from her supervisors.
113.
The Complainant’s proposal that Dr Kolak only work in a group practice is
characterised as "imaginative" and "unsupported by any evidence".
114.
The following submission is also made on behalf of Dr Kolak:
42 Near the conclusion of the hearing on 24 September 2012, Committee
members took the opportunity to engage Dr Kolak in discussions about
what she had learned from heeding her practice conditions over the past two
years how she was functioning within her present employment, particularly
with respect to patient management plans, patient follow-up, and
communicating urgent information, and what are Dr (Co/ak’s aspirations
for her future medical practice. The impression conveyed by Dr I<olak is,
of course, for the Committee to decide. But it is respectfully submitted that
Or (Co/ak’s presentation was not that of the prevaricating, disconnected,
defensive individual lacking insight and who attracted considerable
personal and professional criticism in August 2010. Rather, as was
indicated by paragraph 48 of Dr Kolaks said Statement, it appeared that Dr
Kolak has responded very positively to that criticism, to the point where Dr
Kolak does not now attract any denunciation for the publics benefit, or her
profession’s, or her own.
37
115.
The Complainant’s proposal requiring Dr Kolak to attend meetings of her
Medicare Local (formerly the local Division of General Practice in her area) is
met with a submission that there is "absolutely no evidence" before the
Committee to justify such a condition. It is also noted that had this issue been
agitated by the Complainant during the Inquiry Dr Kolak would have given
evidence on the issue. In any event various documents are attached to the
submissions including statement dated 11 October 2012 recording Or Kolak’s
progress in the RACGP’s Quality Improvement and Continuing Professional
Development Program for the 2011 2013 Triennium.
116.
The submissions made on behalf of Dr Kolak conclude as follows
44 It is respectfully submitted that in all of the relevant circumstances the
PSC would take no action pursuant to Section 149A of the National
Law (NSW) in relation to the two complaints against Dr Kolak.
Although it may be unusual for unsatisfactory professional conduct,
admitted, to pass without even a caution, the circumstances of the
extant conditions which have been to such good effect would be
found to render any form of protective order quite unnecessary.
The Appropriate Orders - Conclusions
117.
The Disciplinary Powers of Professional Standards Committees are set out in
Part 8 Division 3 Subdivision 3 of the National Law (NSW). The Committee
may exercise any powers conferred on it by Subdivision 338 In determining
orders the Committee has been mindful that the jurisdiction of the Committee
in disciplinary matters of the present nature involves protection of the public
and the maintenance of the highest possible ethical and clinical standards of
the medical profession. Protection of the public includes consideration of the
likelihood of the relevant conduct being repeated and the necessity of
deterring both the practitioner and others from failing to adhere to the
standards expected of them. 39
118.
The Committee has found that Dr Kolak is guilty of unsatisfactory professional
conduct. Compliance with the regulatory requirements relating to medical
records is an important aspect of medical practice. Furthermore, the evidence
before the Inquiry indicates serious deficiencies in important aspects of Dr
Kolak’s medical practice in relation to the knowledge, skill and judgment and
the care she exercised with regard to the four patients. The Committee is
Section 1466(1) provides a Committee may do one or more of the following:
(a) caution or reprimand the practitioner;
(b) direct that the conditions, relating Co the practitioner’s practising of the practitioner’s profession, it
considers appmpæae be imposed on the practitioner’s registration;
(c) order that the practitioner seek and undergo medical or psychiatric treacment or counselling;
(d) order that the practitioner complete an educational come specified by the Committee;
(e) order that the practitioner report on the practitioner’s practice at the times, in the way and Co the persons
specified by the conminee;
(t) order that the practitioner seek and take advice, in relation to the management of the practitioner’s
practice, from the persons specified by the Committee.
Section 146 C provides that the Committee has the power to fine in certain cases.
as Health Care Complaints Commission v Lilchlield (1997) 41 NSWLR 630 at 637. See also Prakash
v Health Care Complaints Commission (2006] NSWCA 153 at paragraph 91 Basten JA ...There is
also an element of deterrence or, to put it more positively, encouragement to other practitioners to
recognise The importance of complying with professional standards and the risks of failing to do so..
as
38
comfortably satisfied that Or Kolak should be reprimanded for her
unsatisfactory professional conduct.
119. There appear to have been a number of positive changes to Or Kolak’s
approach to practising medicine since she was the subject of the section 150
proceedings in August of 2010. In her written statement Or Kolak describes
the concerns expressed by the delegates at the proceedings as being
communication skills, clinical management of the patients, medical records
generally and her "apparent lack of insight and tendency to prevaricate".
Relevant progress since the section 150 proceedings include the following:
the decision by the Council that it was no longer necessary to
audit Or Kolak’s medical records; 41
Dr Kolak describes a constructive engagement with her
supervisors;
the reports of Or Kolak’s supervisor are consistently positive;
Or Kolak has engaged in ongoing Continuing Professional
Development (CPD) activities;
Or Kolak has accepted the criticisms expressed by the delegates
at the section 150 proceedings;
Or Kolak has accepted Or Nespolon’s criticisms;
Dr Kolak has engaged with her medical indemnity insurer Avant
Insurance Limited to reduce risk and improve practice systems
of recall of results and patient follow-up;
Or Kolak has sought independent advice from Or Walid Jarnrnal;
Or Kolak now acknowledges her professional limitations with
regard to exercise stress testing.
-120.
The Complainant seeks protective orders by way of conditions being imposed
on Or Kolaks registration. The substantive issues relevant to the proposed
conditions are considered below.
Exercise Stress Testing
121.
Or Kolak is currently prohibited from undertaking any clinical exercise stress
testing" 12 The submissions made on behalf of Or Kolak acknowledge her lack
of training and experience in relation to exercise stress testing and record her
regret at her involvement in this aspect of medical practice. The submissions
also refer to Or Kolak having taken
counsel" and state that Or Kolak
has no intention of undertaking exercise stress testing. It is further submitted
that there would be ’’o utiii&"in continuing the current prohibition.
122.
Or Kolak’s decision to practise in this area of medicine demonstrated a
profound Jack of insight on her part. Put simply, Dr Kolak should not engage
in this activity in the future without appropriate training and supervision. The
Committee is especially mindful of section 3A of the National Law which
states: " .- the protection of the health and safety of the public must be the
paramount consideration".’ The Committee is persuaded by the Complaint’s
Dr Kolaks written statement at paragraph 44.
See also Dr Kolak’s written statement at paragraphs 52 - 58.
42
Condition 3 imposed pursuant to the section 150 proceedings.
41
3A Objective and guiding principle INSW]
39
submissions on this issue and considers that an appropriate condition should
be imposed on Dr Kolak’s registration
Training and Education in Skin Cancer Medicine
123.
The Complainant seeks the imposition of a registration condition requiring Dr
Kolak to undertake further training and education in a skin cancer course
approved by the Count/P. Dr Nespolon considered ". ..with an adequate
history and examination the lesion should have warranted as a minimum a
skin biopsy’ Although he also observed: "fr]he diagnosis of skin lesions is
still not an exacting science and oven the most experienced practitioners will
still in the best circumstances ’miss’ lesions".
124.
It is contended on behalf of Dr Kolak that the imposition of a condition is
unwarranted and more particularly that Dr Kolaks management of Patient D
was an "aberration’. Reference is also made to Dr Koiak’s extensive interest
and experience in skin cancer medicine. Through her submissions Dr Kolak
has also offered her undertaking to complete the Advanced Diploma in Skin
Cancer Medicine.
125, The Committee is of the view that this undertaking should be formalised as a
condition to be imposed on Dr Kolaks registration. The condition will require
Dr Kolak to complete the Diploma of Skin Cancer Medicine & Surgery of the
Skin Cancer College of Australasia or an equivalent course as approved by
the Medical Council of NSW within two years. The Committee considers that
such a condition is appropriate given Dr Kolaks evidence that she intends to
continue practising in skin cancer medicine, the inadequacy of her
assessment and management of Patient D’s lesion and Dr Kolaks past
tendency to work in areas in which she did not have sufficient training, whilst
lacking the insight to appreciate this and the inappropriateness of undertaking
such work without propertraining.
Supervision
126.
The Complainant submits that the supervision undertaken by Dr Kolak since
the section 150 proceedings has been insufficient to address the concerns
identified by the delegates at the proceedings. The evidence clearly indicates
that Dr Kolak has found supervision to be beneficial. A number of the monthly
reports provided to the Council by the Council approved supervisors are in
evidence. 44 These reports are uniformly positive. The Committee considers
that the evidence before the Inquiry does not support the continuation of a
supervision condition.
Attendance at Local Division of General Practice Meeting for 2 Years
127.
The Committee notes Dr Kolaks ongoing engagement with the RACGP’s
Quality Improvement and Continuing Professional Development Program.
The Committee considers that the proposed condition is not supported by the
In the exercise of functions under a NSW provision, the protection of the health and safety of the public
must be the paramount consideration.
44
Exhibit I tab 4 includes Supervisors Report from March 2011 - January 2012 and March 2012
August 2012.
40
evidence.
Restriction to Working in a Group Practice
128.
The Complainants submissions in this regard are substantially based on the
underlying contention that Dr Kolak’s unsatisfactory professional conduct was
related to her alleged professional isolation. The Committee is aware that
there may be many benefits associated with group practice. Indeed, when
asked about her future plans Dr Kolak expressed a desire to work in a group
practice in the country. Nevertheless no probative evidence was adduced
before the Inquiry to establish a nexus between solo practice and Dr Kolaks
unsatisfactory professional conduct. This issue is not addressed in Dr
Nespoion’s evidence. The Committee is not persuaded by the Complainant’s
submissions regarding the proposed registration condition.
ORDERS
129.
The Committee exercises its powers in accordance with section 146B (1) (a)
of the National Law (NSW) to reprimand Dr Kolak.
130.
The Committee directs that in accordance with 146 B (1) (b) of the National
Law (NSW) the following conditions are imposed on Dr Kolaks registration:
Practice Conditions
1. Not to undertake any clinical exercise stress testing except under the direct
supervision of a specialist cardiologist approved by the Council.
2. To complete within 2 years of the date of this Decision and at her own
expense the course Diploma of Skin Cancer Medicine & Surgery’ conducted
by the Skin Cancer College of Australasia.
a. By close of business on 4 March 2013 she must provide evidence to
the Medical Council of NSW of enrolment in this course.
b. Within 2 weeks of completing this course, she is to provide
documentary evidence to the Council that she has satisfactorily
completed the course.
3. To provide the Council within 7 days of the date of this Decision a copy of her
registration conditions signed by or on behalf of her current employer/s,
including any locum agencies and any hospital in which she works. In the
case of any future employer, this must be provided within 7 days of the date
of commencing work.
4. The practitioner authorises the Council to notify her current and future
employer/s of any issues arising in relation to compliance with these
Conditions.
5. The practitioner authorises and consents to any exchange of information
between the Council and Medicare Australia where such exchange is
necessary to facilitate the monitoring of compliance with these conditions.
These conditions may be altered, varied or removed by the Medical Council of
New South Wales and the Medical Council is the appropriate review body for
41
the purposes of Division 8 of Part 8 of the Health Practitioner Regulation
National Law (NSW).
However, should the practitioner seek to change or remove any of the
conditions imposed as a result of this Committee’s orders when her principal
place of practice is anywhere in Australia other than in New South Wales,
sections 125 to 127 inclusive of the Health Practitioner Regulation National
Law are to apply, so that a review of these conditions can be conducted by
the Medical Board of Australia.
PUBLICATION OF DECISION
131.
Pursuant to section 171E (1) of the National Law the Committee provides a
copy of this written statement of decision to Dr Kolak, the Health Care
Complaints Commission and the Medical Council of New South Wales.
132.
Pursuant to section 171E (3) of the National Law the Committee provides a
copy of this written statement of decision to Patient D, the Medical Board of
Australia, Dr Kolak’s legal representative Mr Andrew Davey of Unsworth Legal
and Dr Nespolon.
NON-PUBLICATION DIRECTION
133.
Clause 7 of Schedule 5D of the National Law (NSW) provides that the person
presiding at proceedings before the Committee may make directions in
relation to the release of information if that person "thinks it appropriate in the
particular circumstances of the case (and whether or not on the request of the
complainant, the registered practitioner or any other person)".
134.
The Chairperson considers that in the circumstances of this case there are no
reasons relating to the public interest which warrant the publication of the
patients’ names or any evidence which might lead to the identification of any
the patients.
135.
In this matter, the Chairperson made a direction at the Directions Hearing on
11 September 2012 that the names of any patients with whom the complaint
is concerned and any information which may identify them are not to be
published.
This direction remains in effect. ’Publication’ may include
communicating either in writing or verbally to any person.
136.
This direction does not operate to exclude any provision of the National Law
(NSW) and does not preclude the Medical Council of New South Wales from
undertaking its statutory functions.
APPEAL and REVIEW
137.
An appeal to the Medical Tribunal against this Decision is available under
section 158 of the National Law or section 158A of the National Law if the
appeal is with respect to a point of law. Such an appeal is to be made within
28 days of handing down of the decision (or such longer period as the
Executive Officer of the Medical Council may allow in any particular case).
42
138. The Committees order to impose conditions may be reviewed at anytime by
the Medical Council of New South Wales by lodging an application with the
Executive Officer of the Council. Should Dr Kolaks principal place of practice
be anywhere other than NSW at the time of seeking a review, an application
may be lodged with the Medical Board of Australia in accordance with
sections 125-127 of the National Law.
Mr Robert Kelly
Chairperson
Date
43