Medical Tribunal New South Wales

• Medium Neutral Citation: Health Care Complaints Commission v Dr Carolyn Cooke [2012] NSWMT 12
• Hearing dates: 14,15,16 May 2012
• Decision date: 28 June 2012
• Before: Kavanagh J; Dr Katherine Ilbery; Dr Vasco de Carvalho; Ms Annette Gray

Decision

1.The doctor is reprimanded.

2.The Tribunal finds that Carolyn Giselle Cooke is competent to practice as a registered health practitioner under supervision and with on-going re-training in accordance with the provisions of the Health Practitioner Regulation National Law (NSW).

3.The Tribunal orders that the name of Carolyn Giselle Cooke be reinstated to the Register of Medical Practitioners kept under the Health Practitioner Regulation National Law (NSW) once she notifies the Medical Council of her hospital placement and it receives an acknowledgment from the appointed supervisor.

4.Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), the Tribunal orders Carolyn Giselle Cooke's registration be subject to the conditions set out in Annexure A.

5.The Tribunal orders that Carolyn Giselle Cooke is not to publicly self promote as a medical practitioner with complementary medical skills until her retraining is complete as formalised by the conferring of the Fellowship of the Royal Australian College of General Practitioners (FRACGP) by examination. This must have been preceded by supervision for a minimum of three years in a full time general practice.

6.There shall be a suppression order on the names of patients A and B and the names of family members of Patients A and B. This order covers all documentation including medical reports.

7.The Tribunal orders that the respondent pay the costs of the Health Care Complaints Commission.

• Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT AND PROFESSIONAL MISCONDUCT - Doctor on suspension by NSW Medical Board - complaints laid by the HCCC - competence and suitability implication on medical skill by focus on complementary medicine - ethical behaviour - misbehaviour but suitable to practice with conditions to address re-education in basic medical skills - principles applicable - costs awarded to complainant
• Legislation Cited: Health Care Complaints Act 1993; Health Practitioner Regulation National Law (NSW) No 86a
• Cases Cited: Ex parte Lenehan (1948) 77 CLR 403; HCCC v Holmes [2010] NSWMT 19; HCCC v Hutchins (unreported MT40013 of 2008, 31 July 2009); NSW Bar Association v Cummins [2001] NSWCA 284
• Category: Principal judgment
• Parties: Health Care Complaints Commission (Complainant); Dr Carolyn Cooke (Respondent)
• Representation: C P O'Donnell (Complainant); M Lynch (Respondent); Health Care Complaints Commission (Complainant); Resolve Litigation Lawyers (Respondent)
• File Number(s): MT40018 of 2011; MT40035 of 2011

DECISION

1 The Health Care Complaints Commission ("the Complainant") brings before the Tribunal two complaints following consultation with the Medical Council of NSW ("the Council") in accordance with ss 39(2) and 90B(3) of the Health Care Complaints Act 1993 and s 145A of the Health Practitioner Regulation National Law (NSW) No 86a ("the National Law") against Dr Carolyn Giselle Cooke ("the respondent") being a medical practitioner registered under the Act.

2 In Matter No. MT40018 of 2011, it is alleged that the respondent:

COMPLAINT ONE - RE PATIENT A

Has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law in that she has:

PARTICULARS

(i) demonstrated that the knowledge 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 as follows:

Failure to refer for breast screening

1.1 On 2 August 2005 the practitioner provided an initial consultation to a female patient, Patient A.

1.2 During the initial consultation Patient A advised the practitioner that Patient A's mother had breast cancer at the age of 80 and that Patient A had annual breast mammograms.

1.3 On 28 September 2005 the practitioner provided a second consultation to Patient A.

1.4 During the second consultation Patient A raised the question of having a mammogram with the practitioner. The practitioner told Patient A that she preferred patients to have breast ultrasounds rather than mammograms. However, the practitioner did not provide Patient A with a referral for any form of breast-screening prior to 24 October 2005.

1.5 Between 28 September 2005 and 23 October 2005 the practitioner inappropriately failed to refer Patient A for breast-screening.

(ii) demonstrated that the knowledge 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 as follows:

Failure to order biopsy and mammography

1.6 On 24 October 2005 the practitioner provided Patient A with a referral to Mater Women's Imaging for breast ultrasound only.

1.7 On or about 1 November 2005 Dr. Brett Hines of Mater Women's Imaging provided to the practitioner a written report dated 1 November 2005 of the results of the breast ultrasound performed on Patient A. The report stated: "At the 8 o'clock position in the right breast, 4cm from the nipple there is an ovoid hypoechoic 7 x 6 x 4mm lesion. The appearance is non-specific and fine needle biopsy under ultrasound is recommended for further evaluation. Mammography would also be useful."

1.8 After receiving the report of Dr Hines dated 1 November 2005 the practitioner inappropriately failed to refer Patient A for a fine needle biopsy under ultrasound contrary to the recommendation in the report.

1.9 After receiving the report of Dr Hines dated 1 November 2005 the practitioner inappropriately failed to refer Patient A for mammography contrary to the recommendation in the report.

1.10 After receiving the report of Dr Hines dated 1 November 2005 the practitioner inappropriately failed to perform an examination of Patient A's breasts.

(iii) demonstrated that the judgment possessed 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 as follows; and/or

(iv) contravened the Medical Practice Regulations in force at the relevant time; and/or;

(v)engaged in improper and/or unethical conduct relating to the practice of medicine as follows:

Alteration of clinical records

1.11 On 7 February 2007 Patient A consulted a General Practitioner, Dr Alison Beazley, who performed a breast examination on Patient A and referred her for urgent breast screening and biopsy, which was performed on 8 February 2007. This confirmed the presence of a carcinoma in Patient A's right breast.

1.12 In early 2007, prior to attending the consultation with Dr Beazley, Patient A obtained a photocopy of the clinical records of her treatment by the practitioner from the practitioner's practice.

1.13 On 28 August 2008 Patient A commenced civil proceedings no 3868 of 2008 against the practitioner by filing a Statement of Claim in the District Court of New South Wales ('the proceedings"). The Statement of Claim alleged that the practitioner's treatment of Patient A was professionally negligent.

1.14 The practitioner was notified of the proceedings on 15 September 2008 when the Statement of Claim was served on her. A Notice of Appearance was filed on behalf of the practitioner by her legal representatives on 3 October 2008 and a Defence to the Statement of Claim was filed on 24 December 2008.

1.15 In a letter dated 5 May 2009 the legal representatives of Patient A requested from the practitioner's legal representatives a full copy of the practitioner's clinical records of her treatment of Patient A.

1.16 The practitioner's legal representatives provided documents described as the practitioner's clinical records of her treatment of Patient A under cover of a letter dated 6 May 2009 to Patient A's legal representatives.

1.17These documents included clinical records of Patient A's treatment by the practitioner on the following dates - 2 November 2005, 30 November 2005 and 29 June 2006 - which were different from the clinical records for the same dates obtained by Patient A from the practitioner's practice in early 2007.

1.18 Between early 2007 and 6 May 2009 the practitioner made alterations to the clinical records of her treatment of Patient A with respect to the following dates - 2 November 2005, 30 November 2005 and 29 June 2006, resulting in the differences referred to at 1.16 above.

1.19 The alterations to the clinical records made by the practitioner were as follows:

1.19.1 In the records for the consultation dated 2 November 2005 the practitioner added "Fibroadenoma?" after "increased fibrocystic change in breast" and "Needs to decrease oestrogen and re-evaluate breast lump". The practitioner also added "? Refer breast surgeon" after "Review 1/12";

1.19.2 In the records for the consultation dated 30 November 2005 the practitioner added "Repeat Salivary hormones after 12/12";

1.19.3 In the records for the consultation dated 29 June 2006 the practitioner re-wrote the whole entry and added the words "needs a repeat breast ultrasound and ? biopsy" and the words "lesion is still present Right breast (11/05)" and the words "Next visit + repeat ... breast examination".

1.20 The practitioner failed to make and keep the clinical records of her treatment of Patient A on 2 November 2005, 30 November 2005 and 29 June 2006 in accordance with the requirements of clause 5 and Schedule 2 of the Medical Practice Regulation 2003 and/or the Medical Practice Regulation 2008, whichever applied at the time.

1.21 The practitioner altered the clinical records of Patient A for the consultations on 2 November 2005, 30 November 2005 and 29 June 2006 knowing that they would be, or were likely to be, produced and relied upon in the civil proceedings.

(vi) engaged in improper and/or unethical conduct relating to the practice of medicine as follows:

False statement in Answer to Interrogatories

1.22 On 1 June 2009 the legal representatives of Patient A served a Notice to Answer Interrogatories in the proceedings on the practitioner's legal representatives.

1.23 On 9 June 2009 His Honour, Judge Elkhaim of the District Court of New South Wales ordered the practitioner to provide verified answer's to Patient A's Notice to Answer Interrogatories by 1 July 2009.

1.24 On 14 July 2009 the practitioner's legal representatives provided a Statement in Answer to Interrogatories in the proceedings to the legal representatives of Patient A.

1.25 The Statement in Answer to Interrogatories was accompanied by an undated Affidavit sworn by the practitioner at some time between 1 June 2009 and 14 July 2009 in the presence of Kylie Agland, Solicitor, in which the practitioner said on oath: "I believe that the answers given to the interrogatories in this document are true".

1.26 This statement was false as the practitioner was aware at the time she made the statement that the Statement in Answer to Interrogatories contained three answers given to the interrogatories which were false.

1.27 The three false answers were:

1.27.1 answer 6A(e) with respect to the entry recorded with the date 2 November 2005 on page 000008 in Annexure "A" to the Notice to Answer Interrogatories that "I cannot now recall whether this entire entry was written during the consultation of [sic] whether anything was added to this entry immediately after the consultation. The entire [sic] was written during, or immediately, after the consultation, in accordance with my usual practice as set out in answer 2A".

1.27.2 answer 7A(e) with respect to the entry recorded with the date 30 November 2005 on page 000009 in Annexure "A" to the Notice to Answer Interrogatories that "I cannot now recall whether this entire entry was written during the consultation of [sic] whether anything was added to this entry immediately after the consultation. The entire entry was written during, or immediately, after the consultation, in accordance with my usual practice as set out in answer 2A".

1.27.3 answer 8A(e) with respect to the entry recorded with the date 29 June 2006 on page 000010 in Annexure "A" to the Notice to Answer Interrogatories that "I cannot now recall whether this entire entry was written during the consultation of [sic] whether anything was added to this entry immediately after the consultation. The entire entry was written during, or immediately, after the consultation, in accordance with my usual practice as set out in answer 2A".

COMPLAINT TWO - RE PATIENT A

Has been guilty of professional misconduct within the meaning of section 139E of the National Law (NSW) in that she has:

PARTICULARS

(i) with respect to particulars 2.11 to 2.27, engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration; and/or

(ii) with respect to particulars 2.1 to 2.27, engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration.

Failure to refer for breast screening

2.1 On 2 August 2005 the practitioner provided an initial consultation to a female patient, Patient A.

2.2 During the initial consultation Patient A advised the practitioner that Patient A's mother had breast cancer at the age of 80 and that Patient A had annual breast mammograms.

2.3 On 28 September 2005 the practitioner provided a second consultation to Patient A.

2.4 During the second consultation Patient A raised the question of having a mammogram with the practitioner. The practitioner told Patient A that she preferred patients to have breast ultrasounds rather than mammograms. However, the practitioner did not provide Patient A with a referral for any form of breast-screening prior to 24 October 2005.

2.5 Between 28 September 2005 and 23 October 2005 the practitioner inappropriately failed to refer Patient A for breast-screening.

Failure to order biopsy and mammography

2.6 On 24 October 2005 the practitioner provided Patient A with a referral to Mater Women's Imaging for breast ultrasound only.

2.7 On or about 1 November 2005 Dr. Brett Hines of Mater Women's Imaging provided to the practitioner a written report dated 1 November 2005 of the results of the breast ultrasound performed on Patient A. The report stated: "At the 8 o'clock position in the right breast, 4cm from the nipple there is an ovoid hypoechoic 7 x 6 x 4mm lesion. The appearance is non-specific and fine needle biopsy under ultrasound is recommended for further evaluation. Mammography would also be useful."

2.8 After receiving the report of Dr Hines dated 1 November 2005 the practitioner inappropriately failed to refer Patient A for a fine needle biopsy under ultrasound contrary to the recommendation in the report.

2.9 After receiving the report of Dr Hines dated 1 November 2005 the practitioner inappropriately failed to refer Patient A for mammography contrary to the recommendation in the report.

2.10 After receiving the report of Dr Hines dated 1 November 2005 the practitioner inappropriately failed to perform an examination of Patient A's breasts.

Alteration of clinical records

2.11 On 7 February 2007 Patient A consulted a General Practitioner, Dr Alison Beazley, who performed a breast examination on Patient A and referred her for urgent breast screening and biopsy, which was performed on 8 February 2007. This confirmed the presence of a carcinoma in Patient A's right breast.

2.12 In early 2007, prior to attending the consultation with Dr Beazley, Patient A obtained a photocopy of the clinical records of her treatment by the practitioner from the practitioner's practice.

2.13 On 28 August 2008 Patient A commenced civil proceedings no 3868 of 2008 against the practitioner by filing a Statement of Claim in the District Court of New South Wales ('the proceedings"). The Statement of Claim alleged that the practitioner's treatment of Patient A was professionally negligent.

2.14 The practitioner was notified of the proceedings on 15 September 2008 when the Statement of Claim was served on her. A Notice of Appearance was filed on behalf of the practitioner by her legal representatives on 3 October 2008 and a Defence to the Statement of Claim was filed on 24 December 2008.

2.15 In a letter dated 5 May 2009 the legal representatives of Patient A requested from the practitioner's legal representatives a full copy of the practitioner's clinical records of her treatment of Patient A.

2.16 The practitioner's legal representatives provided documents described as the practitioner's clinical records of her treatment of Patient A under cover of a letter dated 6 May 2009 to Patient A's legal representatives.

2.17 These documents included clinical records of Patient A's treatment by the practitioner on the following dates - 2 November 2005, 30 November 2005 and 29 June 2006 - which were different from the clinical records for the same dates obtained by Patient A from the practitioner's practice in early 2007.

2.18 Between early 2007 and 6 May 2009 the practitioner made alterations to the clinical records of her treatment of Patient A with respect to the following dates - 2 November 2005, 30 November 2005 and 29 June 2006, resulting in the differences referred to at 1.16 above.

2.19 The alterations to the clinical records made by the practitioner were as follows:

2.19.1 In the records for the consultation dated 2 November 2005 the practitioner added "Fibroadenoma?" after "increased fibrocystic change in breast" and "Needs to decrease oestrogen and re-evaluate breast lump". The practitioner also added "? Refer breast surgeon" after "Review 1/12";

2.19.2 In the records for the consultation dated 30 November 2005 the practitioner added "Repeat Salivary hormones after 12/12";

2.19.3 In the records for the consultation dated 29 June 2006 the practitioner re-wrote the whole entry and added the words "needs a repeat breast ultrasound and ? biopsy" and the words "lesion is still present Right breast (11/05)" and the words "Next visit + repeat ... breast examination".

2.20 The practitioner failed to make and keep the clinical records of her treatment of Patient A on 2 November 2005, 30 November 2005 and 29 June 2006 in accordance with the requirements of clause 5 and Schedule 2 of the Medical Practice Regulation 2003 and/or the Medical Practice Regulation 2008, whichever applied at the time.

2.21 The practitioner altered the clinical records of Patient A for the consultations on 2 November 2005, 30 November 2005 and 29 June 2006 knowing that they would be, or were likely to be, produced and relied upon in the civil proceedings.

False statement in Answer to Interrogatories

2.22 On 1 June 2009 the legal representatives of Patient A served a Notice to Answer Interrogatories in the proceedings on the practitioner's legal representatives.

2.23 On 9 June 2009 His Honour, Judge Elkhaim of the District Court of New South Wales ordered the practitioner to provide verified answer's to Patient A's Notice to Answer Interrogatories by 1 July 2009.

2.24 On 14 July 2009 the practitioner's legal representatives provided a Statement in Answer to Interrogatories in the proceedings to the legal representatives of Patient A.

2.25 The Statement in Answer to Interrogatories was accompanied by an undated Affidavit sworn by the practitioner at some time between 1 June 2009 and 14 July 2009 in the presence of Kylie Agland, Solicitor, in which the practitioner said on oath: "I believe that the answers given to the interrogatories in this document are true".

2.26 This statement was false as the practitioner was aware at the time she made the statement that the Statement in Answer to Interrogatories contained three answers given to the interrogatories which were false.

2.27 The three false answers were:

2.27.1 answer 6A(e) with respect to the entry recorded with the date 2 November 2005 on page 000008 in Annexure "A" to the Notice to Answer Interrogatories that "I cannot now recall whether this entire entry was written during the consultation of [sic] whether anything was added to this entry immediately after the consultation. The entire [sic] was written during, or immediately, after the consultation, in accordance with my usual practice as set out in answer 2A".

2.27.2 answer 7A(e) with respect to the entry recorded with the date 30 November 2005 on page 000009 in Annexure "A" to the Notice to Answer Interrogatories that "I cannot now recall whether this entire entry was written during the consultation of [sic] whether anything was added to this entry immediately after the consultation. The entire entry was written during, or immediately, after the consultation, in accordance with my usual practice as set out in answer 2A".

2.27.3 answer 8A(e) with respect to the entry recorded with the date 29 June 2006 on page 000010 in Annexure "A" to the Notice to Answer Interrogatories that "I cannot now recall whether this entire entry was written during the consultation of [sic] whether anything was added to this entry immediately after the consultation. The entire entry was written during, or immediately, after the consultation, in accordance with my usual practice as set out in answer 2A".

COMPLAINT THREE - RE PATIENT A

Is not a suitable person to hold registration in the practise of medicine.

PARTICULARS

Alteration of clinical records

3.1 On 7 February 2007 Patient A consulted a General Practitioner, Dr Alison Beazley, who performed a breast examination on Patient A and referred her for urgent breast screening and biopsy, which was performed on 8 February 2007. This confirmed the presence of a carcinoma in Patient A's right breast.

3.2 In early 2007, prior to attending the consultation with Dr Beazley, Patient A obtained a photocopy of the clinical records of her treatment by the practitioner from the practitioner's practice.

3.3 On 28 August 2008 Patient A commenced civil proceedings no 3868 of 2008 against the practitioner by filing a Statement of Claim in the District Court of New South Wales ('the proceedings"). The Statement of Claim alleged that the practitioner's treatment of Patient A was professionally negligent.

3.4 The practitioner was notified of the proceedings on 15 September 2008 when the Statement of Claim was served on her. A Notice of Appearance was filed on behalf of the practitioner by her legal representatives on 3 October 2008 and a Defence to the Statement of Claim was filed on 24 December 2008.

3.5 In a letter dated 5 May 2009 the legal representatives of Patient A requested from the practitioner's legal representatives a full copy of the practitioner's clinical records of her treatment of Patient A.

3.6 The practitioner's legal representatives provided documents described as the practitioner's clinical records of her treatment of Patient A under cover of a letter dated 6 May 2009 to Patient A's legal representatives.

3.7 These documents included clinical records of Patient A's treatment by the practitioner on the following dates - 2 November 2005, 30 November 2005 and 29 June 2006 - which were different from the clinical records for the same dates obtained by Patient A from the practitioner's practice in early 2007.

3.8 Between early 2007 and 6 May 2009 the practitioner made alterations to the clinical records of her treatment of Patient A with respect to the following dates - 2 November 2005, 30 November 2005 and 29 June 2006, resulting in the differences referred to at 1.16 above.

3.9 The alterations to the clinical records made by the practitioner were as follows:

3.9.1 In the records for the consultation dated 2 November 2005 the practitioner added "Fibroadenoma?" after "increased fibrocystic change in breast" and "Needs to decrease oestrogen and re-evaluate breast lump". The practitioner also added "? Refer breast surgeon" after "Review 1/12";

3.9.2 In the records for the consultation dated 30 November 2005 the practitioner added "Repeat Salivary hormones after 12/12";

3.9.3 In the records for the consultation dated 29 June 2006 the practitioner re-wrote the whole entry and added the words "needs a repeat breast ultrasound and ? biopsy" and the words "lesion is still present Right breast (11/05)" and the words "Next visit + repeat ... breast examination".

3.10 The practitioner failed to make and keep the clinical records of her treatment of Patient A on 2 November 2005, 30 November 2005 and 29 June 2006 in accordance with the requirements of clause 5 and Schedule 2 of the Medical Practice Regulation 2003 and/or the Medical Practice Regulation 2008, whichever applied at the time.

3.11 The practitioner altered the clinical records of Patient A for the consultations on 2 November 2005, 30 November 2005 and 29 June 2006 knowing that they would be, or were likely to be, produced and relied upon in the civil proceedings.

False statement in Answer to Interrogatories

3.12 On 1 June 2009 the legal representatives of Patient A served a Notice to Answer Interrogatories in the proceedings on the practitioner's legal representatives.

3.13 On 9 June 2009 His Honour, Judge Elkhaim of the District Court of New South Wales ordered the practitioner to provide verified answer's to Patient A's Notice to Answer Interrogatories by 1 July 2009.

3.14 On 14 July 2009 the practitioner's legal representatives provided a Statement in Answer to Interrogatories in the proceedings to the legal representatives of Patient A.

3.15 The Statement in Answer to Interrogatories was accompanied by an undated Affidavit sworn by the practitioner at some time between 1 June 2009 and 14 July 2009 in the presence of Kylie Agland, Solicitor, in which the practitioner said on oath: "I believe that the answers given to the interrogatories in this document are true".

3.16 This statement was false as the practitioner was aware at the time she made the statement that the Statement in Answer to Interrogatories contained three answers given to the interrogatories which were false.

3.17 The three false answers were:

3.17.1 answer 6A(e) with respect to the entry recorded with the date 2 November 2005 on page 000008 in Annexure "A" to the Notice to Answer Interrogatories that "I cannot now recall whether this entire entry was written during the consultation of [sic] whether anything was added to this entry immediately after the consultation. The entire [sic] was written during, or immediately, after the consultation, in accordance with my usual practice as set out in answer 2A".

3.17.2 answer 7A(e) with respect to the entry recorded with the date 30 November 2005 on page 000009 in Annexure "A" to the Notice to Answer Interrogatories that "I cannot now recall whether this entire entry was written during the consultation of [sic] whether anything was added to this entry immediately after the consultation. The entire entry was written during, or immediately, after the consultation, in accordance with my usual practice as set out in answer 2A".

3.17.3 answer 8A(e) with respect to the entry recorded with the date 29 June 2006 on page 000010 in Annexure "A" to the Notice to Answer Interrogatories that "I cannot now recall whether this entire entry was written during the consultation of [sic] whether anything was added to this entry immediately after the consultation. The entire entry was written during, or immediately, after the consultation, in accordance with my usual practice as set out in answer 2A".

3 The second lot of complaints are filed in Matter No. MT40035 of 2011, it is alleged the respondent:

COMPLAINT ONE - RE PATIENT B

Is guilty of unsatisfactory professional conduct within the meaning of section 139B(a) & (b) of the National Law In that she has:

(i) engaged in conduct that demonstrates 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,

(ii) contravened the Medical Practice Regulation 2008 (repealed).

PARTICULARS

In March 2006 the practitioner began to provide consultations to a female patient, Patient B. Patient B sought consultations with the practitioner because of the practitioner's reputation of providing medical care from a wholistic perspective and for the purpose of preparing for a thyroidectomy. Patient B's thyroidectomy was carried out at North Shore Private Hospital on 7 April 2006. After undergoing the thyroidectomy, Patient B continued to see the practitioner every two or three months until December 2009,

Between June and August 2009 Patient B consulted an osteopath. During a consultation on about 3 July 2009, Patient B's osteopath noticed hardness on the left side of Patient B's abdomen and recommended that Patient B see a doctor to have this hardness Investigated.

In June 2010 Patient B underwent a hysterectomy to remove a large fibroid which encompassed most of her uterus.

Failure to record the provision of a medical service in June 2009

1.1 On 16 June 2009 the practitioner ordered blood pathology tests for Patient B. The results of these tests were collected and reported on 8 September 2009.

1.2 The practitioner inappropriately failed to record the provision of the medical service referred to in paragraph 1.1 above, contrary to regulation 4(1) of the Medical Practice Regulation 2008 (now repealed).

Failure to perform an abdominal examination in September 2009

1.3 On 24 September 2009 Patient B attended a consultation with the practitioner. During this consultation Patient B reported the hardness in the left side of her abdomen to the practitioner. Patient B told the practitioner that her osteopath had suggested that Patient B inform the practitioner about the hardness in Patient B's abdomen. Patient B also reported a number of symptoms to the practitioner including weight gain and a protruding stomach. Patient B told the practitioner that she had not changed her eating or drinking habits.

1.4 The practitioner did not perform an abdominal examination of Patient B during the consultation on 24 September 2009. The practitioner placed Patient B on a liver detoxification program for two weeks.

1.5 The practitioner inappropriately failed to perform an abdominal examination of Patient B during her consultation with Patient B on 24 September 2009.

Failure to perform an abdominal examination in November 2009

1.6 Patient B attended three subsequent consultations with the practitioner on 8 October 2009, 22 October 2009 and 5 November 2009. The practitioner did not perform an abdominal examination of Patient B during any of these consultations. During the consultation on 22 October 2009 the practitioner recommended "lipotrene" treatment for Patient B.

1.7 On 26 November 2009 Patient B attended another consultation with the practitioner. Patient B complained of a number of symptoms, including fluid retention, swollen ankles, rhinitis and a sore throat. During this consultation the practitioner said that there might be an issue with Patient B's lymphatic system, and referred Patient B to a lymphatic drainage specialist.

1.8 The practitioner did not perform an abdominal examination of Patient B during the consultation on 26 November 2009.

1.9 The practitioner did not measure Patient B's pulse or blood pressure and did not perform any other physical examination of Patient B during the consultation on 26 November 2009.

1.10 The practitioner inappropriately failed to perform an abdominal examination of Patient B during her consultation with Patient B on 26 November 2009.

COMPLAINT TWO - RE PATIENT B

Is guilty of professional misconduct within the meaning of section 139E of the National Law (NSW) in that she has:

(i) Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration; and/or

(ii) Has engaged in unsatisfactory professional conduct on a number of occasions which, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of her registration.

PARTICULARS

The Particulars of Complaint One (re Patient B) are repeated and relied on.

COMPLAINT THREE - RE PATIENT B

Is not competent to practise medicine within the meaning of section 139 of the National Law in that she does not have sufficient knowledge and/or skill to practise medicine.

PARTICULARS

The Particulars of Complaints One and Two are repeated and relied on.

The Particulars of Complaints One and Two of the Notice of Complaint signed and dated 3 June 2011 are repeated and relied on.

Background

4 This is a complicated matter. The pleadings are most unusual. There are two files to be heard together. In Matter No. MT40018 of 2011, the HCCC brings three complaints, two related to the doctor's care of Patient A and her admitted unethical behaviour and the third alleges, because of admitted alteration of clinical records and that she swore an associated false statement (the unethical behaviour), she is not suitable to be a medical practitioner.

5 In Matter No. MT40035 of 2011, the HCCC brings three complaints two related to her treatment of Patient B but the third complaint encompasses the conduct of the doctor in her treatment of both Patients A and B, including her unethical conduct, to support an allegation that she lacks the competency to be a medical practitioner.

6 The complaints require an analysis as to how Dr Cooke conducted her medical practice. Dr Cooke is a 56 year old woman. She attended the University of New South Wales and graduated in 1979 with a MBBS. After graduating in 1979, she completed a one year after internship at the Royal Prince Alfred Hospital. During this time she trained under Plastic Surgeon, Dr Rosemary Smith. The majority of work was breast surgery. As part of her training, she completed a four month internship in plastic surgery in Toronto, Canada, under Dr John Taylor.

7 After working in England for two years as a Paediatric House Officer at several hospitals, she returned to Sydney in 1981 and worked as a General Practice trainee in Toukley. She started her own integrated medical practice at Wahroonga, NSW, with a Herbalist, Denis Stewart. In 1984 she moved into a practice in Crows Nest, where one doctor operated as the practice's conventional GP while she trained in alternative medicine subjects at the Nature Care College and provided integrated treatment. Upon completion of a nutritional medicine course she moved her practice to the Nature Care College's clinic. In addition to running her practice she also lectured the students at this college in a number of conventional medical subjects.

8 In 1989, she established her own integrated health clinic called Pymble Grove Health Centre ("Pymble Grove") which provided comprehensive health care. At any one time there were between six to 19 practitioners working out of the centre including a General Practitioner, Physiotherapist, Nurse and Paediatrician.

9 During this period she also lectured at Macquarie University's School of Chiropractic, the Australasian College of Nutritional and Environmental Medicine and to various medical, nursing and other colleges on wholistic medicine. She delivered public lectures throughout Australia and Malaysia and presented papers at numerous functional and complementary medicine conferences in Australia, New Zealand and the United States.

10 In 1996 she relocated the Pymble Grove practice to Gordon with four practitioners, including a Physiotherapist, an Osteopath, a Naturopath and a wholistic Dentist. Between 1999 and 2001 she was also employed as a lecturer at Macquarie University's School of Chiropractic.

11 In 2003 she established a herbal dispensary and teahouse called Modern Apothecary ("MA") and her practice was next door. The purpose of MA was to grant her patients easy access to medicines which were not freely available elsewhere.

12 Between 2007 and 2010 she appeared on a monthly basis on Nightlife on ABC Radio. On this program she was introduced as a General Practitioner and a Naturopath.

13 Dr Cooke for the last 30 years, therefore, has practiced as a wholistic Medical Practitioner. During this time she functioned as a Medical Practitioner with a particular interest in nutritional medicine, environmental medicine, herbal medicine, Chinese medicine, Ayurvedic medicine and mind/body medicine.

14 Her standard practice for new patients was to construct what she described as "an extensive medical history". She opined:

I follow principles of conventional medical practice, with the additional assistance of tools from complementary medicine, to make a medical diagnosis. I then seek to instigate a comprehensive treatment protocol for my patient, using dietary intervention, nutritional and herbal supplementation, lifestyle modification and stress management. Between 2000 and 2010, I saw an average of around 75 patients per week.

The Complaints: Patient A

15 Dr Cooke faces two complaints in relation to her treatment of Patient A. The doctor failed to refer Patient A for a breast-screening examination between 28 September 2005 and 23 October 2005 and failed to refer Patient A for fine needle biopsy under ultrasound as recommended on 1 November 2005 by the Radiologist who had detected a lesion in the patient's right breast.

16 Some particulars relied upon by the HCCC in relation to the doctor's treatment of Patient A were challenged by the doctor. The doctor disputes that during the initial consultation she was advised that the patient's mother had breast cancer at the age of 80 and that the patient had annual breast mammograms (Particular 1.2). She, however, concedes that Patient A advised through her Patient information sheet that her mother had breast cancer. However, Dr Cooke opined that it is unlikely that the patient informed her at the initial consultation that she was having annual breast mammograms as it was neither listed in the Patient Information Sheet nor in her original clinical notes.

17 Further, the doctor does not recall whether Patient A raised the question of having a mammogram. She relies upon her original clinical notes which do not record this. However, the doctor stated that she does "not advise patients to undergo mammography" but instead advises them "to undergo an ultrasound, thermogram (where appropriate) and MRI (where appropriate) including where the lesion is suspicious".

18 The doctor did not think it was inappropriate not to refer Patient A for a mammogram. In her Response to the Complaint the practitioner stated:

I took Dr Hines' view on-board, however, decided to refer [Patient A] for a thermogram. I did this on the basis that it was a further investigation into the lesion on the ultrasound. Thermography is a functional assessment which can identify growth in the lesion by identifying the level of vascularity and heat in the breast. If the results of the thermogram had come back positive, I would have immediately referred [Patient A] for an excision biopsy of the lump. (Particular 1.9).

19 As to her failure to perform an examination on Patient A's breasts, Dr Cooke stated:

Following the ultrasound, I would not have been able to obtain any additional information from a physical examination of Patient A's breasts.

20 The doctor admits that she did not provide Patient A with a referral for any form of breast-screening prior to 24 October 2005. The doctor asserts that the clinical records show she did not receive any requests from Patient A for a breast-screening referral. Patient A, however, requested a referral over the phone to her receptionist and the practitioner provided Patient A with the referral on 24 October 2005 (Particular 1.5).

21 Given the challenge by the doctor to these particulars, the Tribunal is satisfied the doctor should have been aware of the patient's family history (per the information sheet). Further, the Tribunal is of the view in the context of the Radiologist report, the appropriate clinical standard required the doctor to order a mammogram or a biopsy of the lesion and the same standard required her to perform a breast examination.

22 As to the willful alteration of her clinical records of 29 June 2006, the practitioner firstly rewrote the whole entry and added the words "need a repeat breast ultrasound and ? biopsy" and the words "lesion is still present Right breast (11/05)" and the words "Next visit + repeat ... breast examination".

23 She admits the entire facts stated in the particular with the exception of stating that she wrote "lesion if present" not "lesion is present" (Particulars 1.19.3). We accept this reading of the notes.

24 Further, between 2007 and 6 May 2009, the doctor made alterations to the clinical records of her treatment of Patient A for the dates 2 November 2005, 30 November 2005 and 29 June 2006 and then she swore an affidavit in "Answer to Interrogatories" between about 1 June 2009 and 14 July 2009 which answers were false. Her explanation as to this significant failure is "she panicked" on being notified of civil litigation brought against her.

25 Doctor Walid Jammal, the peer doctor, as to Dr Cooke's clinical care of Patient A, opined:

Although technically Dr Cooke did not have to simply comply with Patient A's request for a mammogram, her reasons not to order a mammogram may have been misguided. Nevertheless, eventually ordering an ultrasound was reasonable.

I am also concerned about whether Dr Cooke was acting as a female health physician, a GP, an alternative therapist, or all these things combined. I am concerned about the perception that she imparts onto patients who come to see her. If she acts a GP, notwithstanding her special interest in alternative therapies, 'wholistic therapy' and 'bio-identical hormones', patients who come to see her need to have a clear understanding of the duty and extent of care that Dr Cooke owes to them, and whether they need to continue to actively seek medical attention (preventative or otherwise) from their previous GP.

Finally, the failure to investigate a breast lesion (demonstrated on ultrasound), as well as the alteration of medical records, are simply unacceptable. It appears that Dr Cooke's interest in alternative medical theories obscured what should have been standard medical knowledge and judgement.

26 The Tribunal is satisfied Dr Jammal rightly recognised Dr Cooke's interest and the practice in alternative medical therapies obscured her judgment in treating Patient A. Standard care of a patient with an identified lesion was to have a biopsy if a mammogram were not to be ordered. The treatment, once there is a diagnosis, may well then require the patient be given a range of informed options.

27 The doctor, at times during her evidence, seemed often to defend her clinical care, for example, arguing before the Tribunal as to the value of the thermogram. The Tribunal, in hearing and seeing the doctor give evidence, began to be concerned as to her insight, that is, understanding that her judgement was under challenge and that her treatment was being considered in the context as to whether she was competent as a medical practitioner.

28 The doctor concedes her failure to refer Patient A for breast-screening and for fine needle biopsy, the alteration of the clinical records and the false swearing of the affidavit in support of a Statement in Answer to Interrogatories is unsatisfactory professional conduct that, when considered together, that is, the cumulative effect is the conduct, amounted to unsatisfactory professional conduct of a sufficiently serious nature to be considered professional misconduct.

29 The third complaint as to her treatment of Patient A, as pleaded, calls for a finding that because of her alteration of her clinical records and the admitted false statement she made, the doctor should be found to be "not a suitable person" to hold registration in the practice of medicine.

30 We will consider this complaint as to the doctor's competency re her treatment of Patient A and her unethical conduct (the latter pleadings challenged as not relevant to competency) after consideration of the conduct of Dr Cooke in her treatment of Patient B and in the context as pleaded that she is unsuitable to be a medical practitioner because of her treatment of both Patient A and Patient B and her unethical conduct.

The Complaints: Patient B

31 In Matter No. MT 40035 of 2011, there are again two complaints pressed against Dr Cooke in her treatment of Patient B and the third complaint encompasses her treatment of both Patients A and B to establish an allegation of incompetency.

32 The patient presented in September 2009. She had been the doctor's patient before and was returning. Patient B complained, according to the doctor's notes, of weight gain without dietary change. Patient B gave evidence and confirmed those were her complaints but she asserts she also complained of a hard abdomen. The doctor denies this latter complaint was made.

33 As to her treatment of Patient B, the doctor, in answering questions, revealed while in practice as a General Practitioner with patients who sought her care through complementary medicine, she addressed their concerns and complaints often without a physical examination. This admission was a matter of grave concern to the Tribunal. Patient B had complained of weight gain without dietary change. The doctor says she examined her lower limbs for fluid retention and measured her weight. Her medical records failed to record any type of physical examination was conducted in September 2009. The notes simply confirm weight gain and fluid retention of which Patient B confirms she complained.

34 The Tribunal noted that a patient such as patient B who complains of fluid retention requires, as a basic clinical skill, to be given a physical examination to assist with determining a provisional diagnosis. A further factual dispute was the allegation of the HCCC that the doctor failed to record in her clinical records that she had ordered pathology tests for Patient B.

35 The doctor explained as follows:

A request was made by [Patient B] by email on 16 June 2009.

On 17 June 2009, a response was sent by way of email to the Patient by my receptionist at the time, Sarah Tilley. Ms Tilley followed up the 17 June email by posting the request form to the Patient. These events are recorded in my notes under the emails section at the back of the Patient's file. Accordingly, I do not understand how I have contravened regulation 4(1) of the Medical Practice Regulation as alleged.

The Tribunal accepts this explanation.

36 As to Patient B, Dr Jammal opined on 26 April 2011:

... it is important to note that the patient did attend Dr Cooke with the clear expectation that she receive alternative therapies. This can only lead me to assume that Dr Cooke probably complied with the policy in at least meeting the patient's expectation. In contrast, and for reasons already stated above, it is my opinion that on 26 November 2009 Dr Cooke did not comply with the policy, particularly policy 2. In my opinion, this was a significant departure from the standard expected of a practitioner of equivalent level of training and experience. This departure does not attract my strong criticism.

In summary, as stated by (Patient B), it is my opinion that perhaps the main reason that the patient complained was that she felt that she was not listened to. Somehow the patient's expectations were not met by Dr Cooke. In itself, human nature dictates that this divergence of expectations is not uncommon. However it would seem that Dr Cooke's clinical judgement, particularly on 26 November 2009, was clouded by the complementary health approach. In this regard, it is my opinion that on that day, Dr Cooke departed significantly from the standard expected of a practitioner of equivalent level of training and experience. This departure does not attract my strong criticism.

37 The Tribunal has considered the evidence of the doctor and the oral evidence of Patient B and has examined the notes of the doctor. Further, it takes into account the action taken later by the doctor when she received a request for a further referral. The Tribunal is satisfied the HCCC have, in this set of facts, established unsatisfactory professional conduct

38 The Tribunal, however, expressed its concern given her descriptive evidence as to how she conducted her medical practice, she appeared to not understand that through that description she revealed she had lost the discipline and skill required of a General Practitioner. Basic skills like conducting physical examinations of patients, properly keeping and fully recording all complaints and symptoms in her clinical notes; her failure to rely on basic medical support services (for example, the range of radiology skills) to assist her in her clinical diagnosis before recommending treatments and options; were all failures she revealed in describing her conduct in clinically assessing a patient.

39 Areas of concern that had emerged from her evidence were, namely: the clouding of clinical judgement in conventional evidence-based medical practice by her complementary 'wholistic' medical approach; the failure to keep up to date with conventional medical practice and knowledge; the lack of any real insight on her part into the reasons and causes of the failures in her treatments of Patients A and B; the uncertainty, in her testimony, about whether she really regards herself as a conventional medical practitioner and has ever so regarded herself; the uncertainty that she will commit to the import of her reeducation given how much she has strayed from the rigors of conventional medicine.

40 Dr Jonathan Phillips, Psychiatrist, gave evidence before the Tribunal. These concerns were clearly put to the doctor who opined:

Somewhere along the line she was drawn to wholistic medicine and as she went there she went to the fringes of conventional medicine. Now, I have a problem with that. I am a totally conventional doctor. I believe that the medical system we have is far from perfect but it is not too bad. And I think she just got lost. And I think she lost contact with the colleagues she should have been involved with, came into contact with others. She was undoubtedly articulate and was swept into some sort of media thing. Which can happen, but I think that perhaps reenforced her position in what I would feel is a fairly peripheral branch of health and, in that position, she deskilled, and I think she probably substantially deskilled.

On the other hand, I think she can be reskilled and certainly my paramount concern is not Ms Cooke, it is the community. I think she is capable of reskilling but the reskilling program has to be in depth, and I don't have any ambiguity about that at all. I think that she, at this point in time, if the Tribunal were to go there would need to accept that she has lost a great number of the skills.

The point made for instance about not carrying out a full physical examination and recording the full physical examination is contrary to my understanding of general practice. I think we have to go back to basics which means, and as I have said before in other Tribunals, because of the particular past position I held, I have got some familiarity with the retraining programs, I think that there are really two alternatives only. One is the hospital option which is to go back into a hospital for a period of time. I am thinking not a major sort of teaching hospital which is highly specialised but a more general hospital in the community but with teaching affiliations where she is going to get broad based experience in general medicine where she is going up to supervised, where she is going to be mentored, where she is going to be watched. And then to move forward into I assume the general practitioner training program which is an forgive me if I am wrong but my understanding, it is an onthejob program from a general practitioner base and I believe that would appropriate.

That would be I suppose my preferred option, keeping in mind the security of a patients and the population generally. The other option would be to say, right, well you could go, if the Tribunal was to go that way, would be to go to a general practice, a multi person general practice, to have the appropriate supervision and mentorship locked in and for her to commence her general practitioner training program in that setting. I think both are viable. One is perhaps tougher but more fail safe than the other, but your Honour if I could go one step further?

Q. Yes, please?

A. I think Mr Cooke has to make a decision. Is she going to be a doctor or is she going to be a person who is practising wholistic medicine or complementary medicine or whatever you want to call it. I think if Ms Cooke wishes to be a doctor she is going to have to accept that nine tenths of her life is conventional evidence based medicine. There is nothing short. There is no short cuts. It is onerous, it is night work, there is all the bits and pieces that go with it but that is where she has to be. If she wishes as an add on to use some complementary medical techniques which complementary techniques of treatment which she feels to be appropriate, then that needs to be discussed with the patient ...

Further, the doctor in his report opined:

Ms Cooke has the cognitive and professional credentials to return to medical practice. However, it would be sensible for her to practise in the company of conventional general practitioners, and it will be necessary for her to pursue and complete the regular cycle of continuing medical education (CME) as determined by the Royal Australian College of General Practitioners (RACGP). Additionally, she should attend a mentor/supervisor on a regular basis to discuss clinical cases, and attend a peer review group on a regular basis (assuming that RACGP adopts this practice as part of its programme of continuing education).

41 In considering Complaint Three's allegation the doctor lacks competence, the Tribunal is confined to a consideration as to whether the particulars in Complaints One and Two re treatment of Patient A and the particulars of treatment, as outlined in Complaints One and Two re Patient B, demonstrates that the respondent "does not have sufficient knowledge and/or skill to practice medicine".

42 It is contended by Counsel for the doctor, the other particulars 1.11 - 1.27 related to Patient A regarding the altering of clinical records and lying on oath, are incapable as a matter of both law and logic of demonstrating a lack of competence to practice. They cannot relate to the charge of "insufficient knowledge and/or skill to practice". The doctor concedes those particulars can and do relate to the question of character, that is, her "suitability" to practice medicine as pleaded in Matter No MT40018 of 2011. We accept this submission.

43 The lack of competence complaint, the doctor's counsel contends, therefore should be assessed by having regard only to particulars 1.1 to 1.10 re complaints of the treatment of Patient A and Patient B. The suitability complaint however, it is conceded, can encompass a consideration of her ethical standards as well as the finding of professional misconduct arising from both her treatments.

44 The HCCC presses for a finding Dr Cooke is incompetent and unsuitable to be a medical practitioner and should, therefore, be deregistered. The HCCC submits:

On the basis of the admissions made by the practitioner, and having regard to her evidence before the Tribunal, the [HCCC] submits that the practitioner poses a substantial risk to the health of members of the public even in the alternative health care setting.

and:

[The] Tribunal would hold grave concerns regarding the practitioner's ability to provide alternative health care to patients in a safe and effective manner, given the evidence regarding her unethical conduct and the glaring deficiencies in her examination, assessment and treatment of Patient A and Patient B. The harm or potential harm to Patients A and B arose out of the practitioner's application of an alternative health treatment approach to their management. Given her lack of insight, there is a substantial risk of repetition of similar conduct in the future. There is, therefore, a substantial risk to the health of members of the public in the sense that there is more than a bare risk, although the risk need not be special, exceptional or unusual to be substantial: (HCCC v Moore [2008] NSWPST 2 at [19] - [23].

45 We reject the proposition pressed by the HCCC that the Tribunal should make findings, because of the breach of ethics together with her clinical errors, as to the doctor's competence in alternative health care. That is not the question before us. The Tribunal is examining her knowledge and care of two patients to determine her competence as a medical practitioner and her unethical conduct along with her failure to properly treat Patients A and B to consider her suitability.

46 However, Dr Phillips opined:

... Ms Cooke is an intelligent woman and has learnt a hard lesson. I do not believe she would ever act in a non-professional and unethical manner again.

47 After the matter was before the Medical Council the doctor has had her practice certificate suspended. She sees approximately five patients a day now in her capacity as a natural therapist and not a registered medical practitioner and therefore has a very limited income. She has the care of two university aged children. She stated her practice has been dramatically affected since her registration has been suspended and she no longer carries the title "Dr". In her various, sometimes failed, financial endeavors to support her commitment to complementary treatments she has lost her home.

48 Before the Tribunal can de-register a practitioner, it needs to be satisfied that she is probably permanently unfit to practice medicine: Ex parte Lenehan (1948) 77 CLR 403 (at 424 - 425); NSW Bar Association v Cummins [2001] NSWCA 284 at [26]; HCCC v Hutchins (unreported MT40013 of 2008, 31 July 2009) at [63]; HCCC v Holmes [2010] NSWMT 19 at [69].

49 The Tribunal is not satisfied that Dr Cooke is permanently unfit, notwithstanding her need for "retraining". She has engaged in some introspection about her misconduct and has reached the stage of a somewhat begrudging acceptance of her guilt. The process has clearly been very difficult for her. She has a persuasive personality. She has been selling the concept of complementary medicine with great success. Her treatment of these patients has brought about an analysis not only of her limited medical skills but her attitude to the practice of medicine. Even in the context of substantial evidence to the contrary before the Tribunal she maintained her self view was she was a "good doctor". That attitude has been found wanting, as has her medical knowledge and practice.

50 Dr Cooke has revealed habits in practice of medicine that are deeply ingrained over 30 years. These will only be modifiable gradually over the course of her retraining. Until her retraining is complete, the Tribunal is of the view she will not be able to weigh up judiciously the appropriate role of conventional and complementary medicines in the individual management of her patients. The Tribunal is concerned the doctor's personality and persuasive skills could derail the benefits of retraining if she continues to blur the boundaries between conventional medicine and complementary medicine as she seems to have done throughout her 30 year practice. That would put the public at risk. There must be attitudinal change accompanying the retraining.

51 However, she leaves Dr Phillips, in the context of her unethical conduct feeling confident she will not re-offend in future. The doctor's evidence further persuades that if given the opportunity, with further supervision and training, the doctor could, in future, provide valuable medical services to the community. However once before, some years ago, she was forewarned by a Professional Standard Committee as to the dangers of giving accent to the complementary aspect of her practice. She does not appear to have re-assessed her practice given the present complaints. This is one of the reasons why the Tribunal sets conditions on any future medical practice the doctor undertakes. Nonetheless no part of the purpose of protective orders is punitive.

52 The doctor has been suspended from practice for two and a half years by the Medical Council. From the evidence, we are satisfied re-training in the basic skills required of a medical practitioner have been recommended by Dr Phillips and Dr Jammal and we understand that the doctor now, following some introspection, to be amenable to that re-training. We are persuaded the doctor now has begun to develop an "insight" into the way her commitment to the complementary medical aspect of her practice absorbed her interest. She thereby did not practise with the basic disciplines, skill and knowledge necessary for a general practitioner. Evidence before the Tribunal has certainly reiterated to her this circumstance.

53 While the Tribunal notes the unethical conduct of the doctor in her dealings with Patient A, it appears there has been litigation and settlement of that litigation. Dr Cooke expressed her shame and regret for her conduct. Her suspension from practice reflects the seriousness not only of her failure to properly treat Patients A and B but also her highly unethical conduct through the litigation. However, we do not accept that conduct should tip the balance in finding her incompetent. Rather it is raised, in our consideration, as to her suitability. On all the expert evidence and the doctor's own evidence, after a 2 ½ year suspension, she has enough insight as to the requisite ethical standards to return to practice. She has agreed and states she is willing to co-operate in a re-training programme.

54 Accordingly, we find Dr Cooke is currently competent to practice medicine but under supervision after retraining over several years in conventional medicine knowledge and practice.

55 Within a recommended retraining programme there must be supervision. Such supervision will assess whether Dr Cooke, in her continuing development, gives priority to the application of basic skills in physically examining a patient, assessing and properly recording symptoms and determining appropriate medical treatments including providing patients with clinical options. The doctor must put aside her practise of complementary treatments in this period.

56 The suspension of the doctor's medical registration will be lifted when she enters the hospital re-training programme and then the Royal Australian College of General Practitioner, General Practitioner Training Programme. The doctor must not access Medicare for any service other than those in the supervising hospital setting for that one year.

57 When the doctor moves to practise medicine under the hospital supervision and under the Practitioner Training programme, she must notify the Medical Council the name of her supervisor and provide reports and/or copies of the Supervisor's reports.

58 The doctor must continue to consult a Psychiatrist approved by the Medical Council at a frequency to be agreed between the Psychiatrist and the doctor throughout the RACGP Training Programme. While she may during the litigation have not been as Dr Phillip's opined in a "healthy state of mind", the gravity of her conduct and the protection of the public requires she continue to explore aspects of her character which allowed such conduct.

Orders

1.The doctor is reprimanded.

2.The Tribunal finds that Carolyn Giselle Cooke is competent to practice as a registered health practitioner under supervision and with on-going re-training in accordance with the provisions of the Health Practitioner Regulation National Law (NSW).

3.The Tribunal orders that the name of Carolyn Giselle Cooke be reinstated to the Register of Medical Practitioners kept under the Health Practitioner Regulation National Law (NSW) once she notifies the Medical Council of her hospital placement and it receives an acknowledgment from the appointed supervisor.

4.Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), the Tribunal orders Carolyn Giselle Cooke's registration be subject to the conditions set out in Annexure A.

5.The Tribunal orders that Carolyn Giselle Cooke is not to publicly self promote as a medical practitioner with complementary medical skills until her retraining is complete as formalised by the conferring of the Fellowship of the Royal Australian College of General Practitioners (FRACGP) by examination. This must have been preceded by supervision for a minimum of three years in a full time general practice.

6.There shall be a suppression order on the names of patients A and B and the names of family members of Patients A and B. This order covers all documentation including medical reports.

7.The Tribunal orders that the respondent pay the costs of the Health Care Complaints Commission.

ANNEXURE A

Outline of Practice Conditions

1.The practitioner is to practise only in a public hospital approved by the Medical Council of New South Wales (the Council) and accredited for Prevocational Training in a position at Post Graduate Year 2 Level and only under direct/immediate supervision, of an onsite, senior colleague at all times. This supervision is to be Level 1 supervision (as detailed in the Council's guidelines, copy attached). This condition is to remain in force for a minimum period of 12 months.

2.That the Director of Prevocational Education and Training or another senior doctor approved by the Medical Council at the employing hospital be the nominated Clinical Supervisor and that Dr Cooke provide reports from her nominated supervisor at least on a quarterly basis to the Medical Council. The supervisor is authorised to inform the NSW Medical Council immediately if there is any concern in relation to the practitioners' clinical performance.

3.The practitioner is then to proceed to the College of General Practitioners as a Registrar and re-train as a general practitioner. This will require the practitioner to undertake three years supervised full time training in general practice followed by sitting for and passing the appropriate examinations in order to achieve the FRACGP.

4.The proposed clinical supervisor(s) during the General Practice training be advised to and approved by the Medical Council and that Dr Cooke be required to provide a report from the supervisor(s) on at least a six monthly basis. The supervisor(s) be authorised to inform the Medical Council if there are any concerns in relation to the practitioner's clinical practice and/or breach of the Orders especially in relation to the use and promotion of complementary medical skills.

5.Once she has attained the FRACGP, the practitioner is to only work in a group medical practice of at least three medical practitioners with one practitioner always on site and that she complies with such Continuing Medical Education (CME) requirement to maintain her Vocation Registration and that she provide documentation of the CME activity annually to the Council.

6.Within six weeks of this Decision and these Orders, the practitioner is to attend for counselling with a Council approved psychiatrist for counselling about the findings made by the Medical Tribunal with respect to the complaints about the practitioner and in relation to any other relevant issues arising from the Tribunal's decision including insights into aspects of her character that rendered her vulnerable to the admitted unethical and improper conduct:

a) The frequency and duration of the sessions will be at the discretion of the approved psychiatrist and will continue at his/her discretion, although the frequency is to be no less than monthly for at least six months.

b) The practitioner is to authorise the approved psychiatrist to provide a written report to the Council at the end of six months on the outcome of the counselling sessions and to notify the Council if the practitioner fails to attend.

c) The practitioner will provide a report to the Council at the end of six months on the matters raised during the counselling sessions and the benefits, if any, to her practice from the course of counselling.

d) The practitioner is to bear the responsibility for the cost of the counselling and provision of reports to the Council.

7.The Medical Council is to provide to the head of the College of General Practitioners and to all nominated supervisors a copy of this Decision. The Medical Council is authorised as the appropriate Review Body for any Review of these conditions.

If the practitioner resides outside New South Wales s 125 and s 127 of the National Law applies so any review of the conditions can be conducted by the Medical Board of Australia.

Decision last updated: 13 July 2012