1. Ms Bindon submitted that the respondent's position is that there are four aspects of the practitioner's conduct that give rise to serious risk; and it is not necessary for the Tribunal to accept all four grounds to find serious risk; any one of them would constitute a serious risk.
2. In relation to the first ground, inappropriate clinical assessment and procedure, the question is not focused on the performance of the procedure itself but the practitioner's judgment of undertaking the circumcision on this particular patient who he assessed as having a partially buried penis. There was no record in the practitioner's clinical records as to the state of Patient A's penis before the procedure was carried out. The practitioner and his nurses have stated that the practitioner does perform circumcision on buried penises. Professor Hutson's evidence is that it is not now possible to tell whether the penis was buried or partially buried due to the lack of this information in the clinical records and that buried penises should not be operated on in community, but referred to a specialist or surgeon.
3. The actual clinical procedure is part of a process which involves obtaining informed consent which necessarily must include telling the patient of the risks and which, in this matter, is acknowledged by the experts as clearly deficient. Adequately documenting all aspects of the process and the provision of aftercare advice are also part of the process. The practitioner's failure to obtain informed consent, to adequately document the process and his inadequate after care are the other three grounds relied on by the Board that give rise to serious risk to public health and safety.
4. Ms Bindon submitted that it is no answer to say that this practitioner has performed over 1,000 circumcisions without issue. The question is what evidence is there that the failures in the informed consent process, the after-care process and the inadequate documentation were 'one offs' or does the evidence suggest that this is the manner in which the practitioner runs the practice based on the material he has put forward.
5. In relation to the conditions, Ms Bindon adopted the test in Hocking and submitted that, while the condition imposed must be the least onerous for the practitioner, primacy is given to public safety. In this matter, there is little or no evidence of the condition being onerous for the practitioner. The condition is as tailored as it could be to respond to the risk.
6. Given the four layers of risk that the practitioner poses, Ms Bindon submitted:

... given the failures of the practitioner stretch from the informed consent process, the documentation and the aftercare it is virtually impossible to imagine a condition that will adequately cover all of those stages and the serious risks posed by each of those stages.[21]

... the condition that has banned the circumcision is the only realistic condition that can work...[22]

1. From the information before it the Tribunal is satisfied of the following facts.
2. The practitioner obtained his medical qualifications at Jordan University, moved to Australia in 1994 and obtained registration in 1995. He has been practicing medicine for 22 years including as a Senior Medical Officer at Calvary Hospital Emergency Department and as a Psychiatric Registrar for a period of six months at the Canberra Hospital and is a General Practitioner. He owns and operates out of two general practices in Canberra, one being the Belconnen Medical Centre and the other Conder Surgery.
3. In his affidavit he stated that he had assisted a paediatric surgeon overseas in performing surgical circumcisions from 1992 to 1995 and from 2000 to 2008 he assisted a general surgeon, Dr Molhem Elhassan, perform surgical circumcisions on hundreds of cases and also assisted another General Practitioner at the Conder Surgery on 65 cases.
4. Between 1 January 2008 and 19 November 2018, the practitioner stated he has personally performed 1,282 circumcision procedures[23] using the plastibell method.
5. The practitioner routinely carried out five circumcisions a week[24] until 19 November 2018[25]. He has employed a nurse specifically to assist with circumcisions. He said he has suffered a reputational and financial impact as a result of the condition that has been imposed.[26]

1. On 3 October 2018 AHPRA, on behalf of the Board, received a notification from Patient A's mother regarding the practitioner.
2. In the Board's statement of facts and reasons Patient A's mother's complaint is summarised as follows:
   1. In summary, [Patient A's mother's] complaint concerned a circumcision undertaken by [the practitioner] on 6 September 2018 on [Patient A's mother's] then 5 month old son, [Name], and the follow up care provided by [the practitioner] on 6 and 7 September 2018 in circumstances where [Patient A's mother's] son was experiencing bleeding following the circumcision, and was subsequently admitted to Canberra Hospital for complications arising from the circumcision, where it was necessary for him to undergo surgery with blood transfusion.
3. The practitioner denies that he poses a serious risk to persons and says it is not necessary or appropriate for the Board to prevent him from performing circumcisions.
4. The notification is currently being investigated by AHPRA. It is not known when it is expected to be completed.

What did the applicant do? What was the relevant conduct?

1. The material before the Tribunal showed that there was a significant dispute about some of the relevant facts relating to what was said by whom and the practitioner's conduct before the circumcision procedure was carried out, the obtaining of informed consent from Patient A's mother, what was said in the telephone calls between the practitioner and Patient A's father on 6 September 2018 and 7 September 2018 and the after care provided to Patient A by the practitioner.
2. The Tribunal will consider the four grounds in the following order:
   • (a) The appropriateness of the clinical assessment and the circumcision procedure carried out.
   • (b) Whether the follow up care was inadequate.
   • (c) Whether the practitioner failed to adequately document the consultation and procedure.
   • (d) The issue of informed consent.

The appropriateness of the clinical assessment and the circumcision procedure carried out

1. It is the practitioner's position that he has performed over 1,200 circumcisions and is well placed to make a determination as to whether or not it is appropriate to proceed with the circumcision. In his affidavit he describes Patient A's penis as "a slightly buried penis."[27] This is what he told Patient A's mother.[28] There was no reference to the penis being partially buried in Patient A's progress notes at the Belconnen Medical Centre.
2. In the notes completed by A/Professor Croaker, Paediatric Surgeon, after he operated on Patient A at Canberra Hospital on 8 September 2018, he stated under Findings "buried penis with substantial bruising around base of penis." Patient A was referred to the Emergency Department of The Canberra Hospital on 8 September 2018 by his GP for persistent bleeding after circumcision. Patient A was transfused before A/Professor Croaker removed the blood clot, stopped the bleeding and closed and sutured the wound. He included the following two comments in his report:[29]
   1. We would strongly discourage circumcision in the setting of a buried penis. There are techniques for dealing with this if a circumcision must be done, but they are not in my opinion suitable for an awake procedure.
   2. Significant bleeding is a recognised and potentially serious complication of circumcision, and I am surprised that [Patient A] was not seen yesterday by the proceduralist who performed his circumcision.
3. Whether or not Patient A had a buried or partially buried penis occupied a considerable amount of time during the hearing as it was relevant in determining the appropriateness of the practitioner conducting the circumcision procedure in his surgery. The consensus from the experts is that a buried penis is hidden under the skin where you cannot actually see it from the outside at all and a slightly buried penis has a bit more fat around the base of the penis than normal but the penis can still be seen sticking out beyond the skin. Indeed, there appears to be a continuum of partially buried penises.
4. Dr Wines did not accept A/Professor Croaker's finding of Patient A having a buried penis. He said that A/Professor Croaker:

... didn't see the penis (pre circumcision). He didn't know whether the penis was buried or not.[30]

Dr Wines was very critical of A/Professor Croaker including the two comments in [79] above in his report describing these comments as "unprofessional"[31] and "improper".[32]

1. Professor Hutson gave evidence of why, in his opinion, A/Professor Croaker had described Patient A's penis as "buried" on 8 September 2018. He described it as "an acquired buried penis from the swelling, which is quite different from a congenital buried penis."[33] He explained that it was likely "to be just caused by the blood clot accumulating under the skin making the pre-pubic skin around the base of the penis so swollen that it effectively buries the penis in the blood clot under the skin."[34] The Tribunal found this opinion informative and helpful.
2. Referring to his description of a buried penis in the previous paragraph, Professor Hutson said that the photograph sent by Patient A's parents on the night of 6 September to the practitioner was not like his description. He observed that you could actually see the penis is still on the outside. The subsequent photograph dated 29 May 2019 he described the penis as sticking out pretty normally adding the penis is normal.
3. Professor Hutson's evidence was that it was acceptable for a practitioner to circumcise a patient with a slightly buried penis in the community however, a truly buried penis is contraindicated to circumcision in a GP's surgery as it needs a much more sophisticated surgical procedure. Having seen the photos taken on 29 May 2019 he did not believe that Patient A had a buried penis in the anatomical sense.
4. Dr Wines' evidence was that it was impossible for him to comment on the appropriateness of circumcision in the practitioner's surgery as he had not been in the position of examining Patient A pre-circumcision. In his opinion, that decision needed to be made by the attending practitioner. However, he eventually agreed that if the patient had a proper buried penis, he should not be operated on in an 'awake' procedure.

1. In considering the appropriateness of the practitioner's clinical assessment and the circumcision procedure carried out the Board had A/Professor Croaker's report, but not the expert evidence from Professor Hutson and Dr Wines before it when it made the decision on 20 December 2018. The objective evidence of both medical experts does not support the Tribunal forming a reasonable belief that the practitioner's conduct in assessing and performing the circumcision on Patient A in his surgery poses a serious risk to persons that requires immediate action to protect the community.
2. Without the necessary objective evidence to form the reasonable belief that the practitioner's conduct in assessing and carrying out circumcisions poses a risk to persons that requires immediate action, the Tribunal is not satisfied that the blanket condition imposed by the Board should be confirmed. The Tribunal will revoke that condition, effective from the date of this decision. However, in doing so the Tribunal is conscious that it needs to consider the other aspects of the practitioner's conduct and the evidence in relation to that, namely his follow up care, the documentation of the consultation and procedure and obtaining informed consent.

What did the practitioner do? What was the relevant conduct?

1. In his affidavit the practitioner stated that he followed his usual follow-up and monitoring procedure. In her statement, one of the practice nurses, Sitamidiya Mutsinze, said that she read the Post Circumcision Care sheet to Patient A's mother and gave her a copy of the information sheet. It included the statement: "DO NOT WORRY if you see spotting of blood on the nappy. This is common after all operations." This sheet had the practitioner's mobile number on it.
2. In her statement Patient A's mother said that before leaving the surgery and after the nurse had told her she should be right to go she opened Patient A's nappy and showed the nurse as there was a lot of blood on the nappy. The nurse offered to get the practitioner who then looked at where Patient A had been circumcised. The mother said that the practitioner then said to her:[35]

... Bleeding is normal and he's not in any pain with the anaesthetic. You have a follow up appointment. If there are any concerns call me.

1. Patient A's father said Patient A was crying and distressed when he got home from work. Patient A's parents noticed lots of blood in Patient A's nappy later that afternoon and evening. His mother said he would not settle and was screaming continuously. The parents decided to call the practitioner using the number on the after-care sheet at 9.51 pm. Patient A's father spoke with the practitioner. In his statement he set out the following conversation:[36]

Father: I am [name, Patient A's father]. He is bleeding a lot.

Father: Everywhere, all through the nappy. It's a lot of blood. It's not normal to bleed this much. We are concerned.

Practitioner: That's fine. It's normal for children to bleed after these types of procedures. However, if you want I can take a look if you send me a photo?

1. After sending a photo by text the practitioner called the father back. The father said in his statement that the following conversation took place:[37]

Practitioner: It looks normal, you don't need to worry. Apply the cream[38] and give him some Panadol. He will be fine. Just see how you go overnight.

1. There was no dispute about the telephone calls being made and the photo being sent. However, in his affidavit the practitioner said:[39]

...and I asked his father to send me another photo after two hours - I stayed awake until 1.00am that night in case [Patient A's] father called me. I told [Patient A's] father that I was contactable at any time. I did not receive any further pictures or hear anything further from [Patient A's] parents again that night or the next morning ...

The practitioner said he did not make a note of this conversation with Patient A's father on 6 September 2018 until 14 September 2018,[40] which was after he received, on 13 September 2018, A/Professor's report of Patient A's surgery at the Canberra Hospital, on 8 September 2018.

1. Patient A's father denied that the practitioner asked him, in the second phone call on 6 September 2018, to call back or send further photos in two hours' time. In his sworn evidence he confirmed that the contents of his statement were true and correct and he repeated that the practitioner did not ask him to send more photos or to contact him again that night. In cross examination Patient A's father's evidence in relation to this telephone call was not shaken. He was an impressive witness.
2. The practitioner said, in his affidavit:[41]

On reflection, I could have perhaps called [Patient A's] father back two hours later when I did not hear from him, but it was 12am by that stage.

1. The practitioner said that first thing on Friday 7 September 2018 he asked the practice nurse to call Patient A's mother and check on Patient A. He said this was because he was concerned about him and it was his normal practice.[42]
2. The practice nurse left a message for Patient A's mother and Patient A's mother called back at 10:31 am on 7 September 2018. In response to a question from the practice nurse as to how Patient A is, Patient A's mother said to the nurse:

Mother: He has been up every hour on the hour. He has been screaming his head off and the bleeding hasn't stopped.

When the nurse asked her if the bleeding had stopped Patient A's mother asked Patient A's father to check his nappy and then told the nurse:

Mother: He says it's not bleeding as much but it's oozing and there is a blood clot on the end. ...

The nurse asked her to take a photo and send it through to the doctor and she said she would let the practitioner know he is going to get a photo.

1. Patient A's father said he had also spoken to the nurse in the telephone call at 10.31 am and the following conversation took place:[43]

Father: No, not at all, [Patient A] is bleeding a lot.

Nurse: [The practitioner] might be able to come out and see [Patient A]

if necessary or you can come into the surgery and see him, but I am sure everything is alright.

1. Patient A's father sent through two photos at 10.42am and 10.43 am. The practitioner called the father's phone at 10.44am. The father said the following conversation took place:[44]

Practitioner: Saw the photos, it looks fine. He is just bleeding a little more than usual but it's totally normal.

Father: It doesn't seem like normal bleeding for this type of thing. [Patient A] did not get any sleep and he won't stop screaming. The Panadol isn't working and there is a red lump. He's really bleeding. His nappy is full of blood.

Practitioner: It's totally fine, quite common and normal. Just put some cream on it and it should stop bleeding soon.

1. The Practitioner's evidence in relation to the photos and the telephone call was less than satisfactory. He said in his affidavit:
   1. I do not recall speaking with [Patient A's] parents on Friday 7 September 2018. Based on a review of my phone records, I sent a message to [Patient A's mother's] mobile phone at 9.31am on Friday. I believe I would have been checking how [Patient A] was. I also note that I called [Patient A's father] at 10.44am. I have undertaken a thorough search of my phone and found that [Patient A's father] did send photographs to me at 10.43am on Friday, although I have no independent recollection of receiving these. Chronologically, it seems as though I saw the photos and then called [Patient A's father], but if I said it was normal and fine, I believe I was responding to something other than to the photographs. The normal response to the photos would be to ask [Patient A's] parents to bring him to the surgery.
2. The difficulty with this evidence is that the practice nurse, Mary Balacuit, said that Sitamidiya Mutsinze, not the practitioner, had called Patient A's mother at 9.31am and left the message. Patient A's mother said that when she returned this call she spoke with the nurse who told her she was calling regarding Patient A's circumcision as the practitioner wanted her to call to see how Patient A is. The nurse asked her to take a photo and send it through to the practitioner and said she would let the practitioner know he is going to get a photo.
3. Professor Hutson told the Tribunal that if the practitioner had said to Patient A's father on 7 September 2018, after seeing the two photographs sent to him that morning, that 'there is nothing to worry about, it's perfectly normal' it was inappropriate, because he said he could see from the photographs that it was not trivial adding "it's actually pretty serious."[45]
4. Professor Hutson said that the statement that 'there is nothing to worry about, it's perfectly normal' would have reassured the parents. He said:[46]

I would have thought that ... he's understated the significance of the problem and has given the parents reassurance when he should have told them to go to hospital or come to his clinic immediately.

1. Further, Professor Hutson resisted Ms Musgrove's questioning which he understood sought to implicate Patient A's parents. The following exchange took place:[47]

Ms Musgrove: ... So if the parents had taken the child to any GP including [the practitioner], prior to 8 September, it's entirely possible, isn't it, that the child would not have needed a transfusion?

Prof. Hutson: But I would like to make a point here, because ---

Ms Musgrove: Well no, can you just answer my question? ---

Prof. Hutson: You're implying it's the parent's fault to some extent.

1. It is not in dispute that Patient A's parents decided to get a second opinion on 8 September 2018 as Patient A was still oozing blood and very upset. They saw their local GP who, after examining Patient A and looking at the four nappies his mother had brought to the appointment, referred them to Canberra Hospital Emergency Department immediately.
2. At the Canberra Hospital Emergency Department, A/Professor Croaker, Paediatric Surgeon, diagnosed a post circumcision haemorrhage. His report dated 8 September 2018 included:

Indication: Ongoing bleeding following Plastibell circumcision two days ago (Thursday 6th) The Plastibell was apparently loose in the nappy on arrival. Child was noted to be pale and tachycardic, with a haemoglobin of 69gm% on arrival, pulse 155, with continued bleeding and large clot noted.

Findings: Buried penis with substantial bruising around base of penis. Large clot obscuring glans. When this was removed, it was seen that the ventral wound had dehisced, and there was point bleeding from the penile frenulum.

1. The Canberra Hospital Paediatric Surgery Discharge Summary[48] stated that [Patient A] required re-operation and transfusion for bleeding from his circumcision wound. The surgery was done under general anaesthetic. Patient A was discharged home on 10 September 2018.
2. When the practitioner received a copy of A/Professor Croaker's report dated 8 September 2018 on 13 September 2018 he sent the family a message to check if Patient A was okay and offered to refund the surgery fees as a sign of goodwill (not an admission) which was accepted. In his affidavit he stated:[49]

If Patient A's parents had brought him to see me on 7 or 8 September 2018, I would have done one of two things; either I would have cauterized the wound or put a suture in. I have the facilities to do both of these in either of my surgeries, and that would have stopped the bleeding.

In the circumstances where Patient A's parents stopped communicating with me, there was very little I could do.

1. Where the evidence of the practitioner and Patient A's parents differed in relation to the telephone calls, the Tribunal preferred the evidence of Patient A's parents. They made concessions where appropriate. They did not have to give evidence and be cross examined. Notwithstanding the trauma they experienced in September 2018 which they had to revisit in their evidence, their evidence was credible and compelling. They were impressive witnesses.
2. Dr Wines' evidence appears to have been based on the practitioner's version of the telephone calls which version the Tribunal does not accept. When it was put to Dr Wines that two photos were sent to the practitioner on the morning of 7 September 2018, he said[50] that Patient A should have been seen by the practitioner that day; adding "I would want to see the baby as soon as possible".[51]
3. Professor Hutson described the Post Circumcision Care information sheet and the inclusion of the emergency telephone number as adequate and acceptable. However, he observed that it described "spotting of blood" on the nappy rather than the procedure that would be followed if there was active bleeding, which was what occurred in this matter.
4. In his report dated 11 June 2019 he opined, in relation to the information provided by the family, including the photographs, to the practitioner:

...this should have in ideal circumstances, triggered the doctor to immediately see the patient or arrange for the baby to be transferred to the emergency department which should have happened on the 07/09/2018. It could also be argued that it might even have been appropriate for the baby to be transferred to the Canberra Hospital on the evening of the 06/09/2018 given the bleeding described by the family and the photograph showing a large blood clot. This was clearly a lot more than the spotting of blood on the post-operative care information sheet provided. Failure to act on the bleeding on the first night when the photos were sent, was the cause, in my opinion, of the baby needing a transfusion, as the bleeding continued for another 24 hours or more.[52]

1. The Tribunal found Professor Hutson's evidence compelling. The Tribunal also noted that Dr Wines commented that he held Professor Hutson in the highest regard.
2. The practitioner's evidence, as set out in his affidavit, about whether or not he had seen the photographs on 7 September 2018 when he spoke with Patient A's father approximately two minutes after they had been sent to him is implausible. It was strenuously disputed by Patient A's father, whose evidence was not shaken in cross examination in relation to the 7 September 2018 telephone call from the practitioner. Nor was Patient A's father's evidence under cross examination shaken in relation to the telephone calls on 6 September 2018. Further, the Tribunal noted that the practitioner, in a roundabout way, appeared to concede that as his telephone records showed that he called Patient A's father approximately one minute after the photos were received on his telephone, that he had received the photos and spoken to Patient A's father on 7 September 2018.

1. Having considered all of the material before it, the Tribunal has formed a reasonable belief that the aftercare conduct occurred as described by Patient A's father. The Tribunal has a reasonable belief, based on objective evidence from Professor Hutson and to a lesser extent, from Dr Wines, that the practitioner failed to provide adequate and appropriate follow-up care, including failing to arrange urgent management of the bleeding. Professor Hutson's evidence that, in his opinion, the practitioner's inadequate follow-up care was the cause of Patient A's need for a blood transfusion and surgery was not shaken in cross examination. It was compelling evidence. There was no onus on Patient A's parents to follow up the practitioner in relation to Patient A's follow-up care; the onus was on the practitioner to follow through. The parents did contact the practitioner and were reassured by his advice. The Tribunal has determined that the practitioner's aftercare conduct in relation to Patient A poses a serious risk of harm to people such that there is a need to impose immediate action to protect public health and safety.
2. The Tribunal also noted that this was not the first time the practitioner's aftercare had come to the attention of AHPRA. The Tribunal will return to this under Past Notification History below.
3. The Tribunal will consider the form of immediate action later in the decision.

The failure to adequately document the consultation and the procedure

What did the applicant do? What was the relevant conduct?

1. Patient A's Progress Notes for September 6, 2018 stated:

Prescription added: CHLORSIG EYE OINT 1% 1 t.i.d. both sides

1. In his affidavit the practitioner did not dispute that the above entry comprised his documentation of the consultation and procedure on 6 September 2018.
2. Both expert witnesses described deficits in the practitioner's documenting of the consultation and the procedure.
3. Professor Hutson said in his report:[53]

The documentation of the consultation seems deficient, as there is no description of the physical anatomy or the examination which was done presumably before the procedure. [The practitioner] just records a circumcision was done after consultation and that antiobiotic [sic] ointment was prescribed subsequently. The only record in the file is the record done subsequently in retrospect on Friday 14/09/2018 when he records the phone call made at 9.00pm on the 06/09/2018. In my opinion the documentation of the consultation is below the standard expected of a medical practitioner, as it should clearly describe whether or not the anatomy of the penis was normal, and that the general health and appearance of the baby was appropriate for the circumcision to be done.

1. In cross examination Professor Hutson was asked about the lack of notes and whether the lack of notes posed a serious risk to the patient. He said:[54]

That's the trouble when it is not written down, you don't actually know what has happened. But it doesn't mean it didn't happen, it just means it wasn't written down about it having happened.

Ms Musgrove: And the lack of notes in and of itself does not pose a serious risk to public safety at the time the procedure is performed?

Professor Hutson: My personal view is that it's a bit improper not to have the records describing exactly what's happened.

Ms Musgrove: Yes, but it does not pose a serious risk to the patient at the time of the procedure is being done, does it?

Professor Hutson: I disagree because it might well have - if we didn't have the information we really needed - in this particular case it might not have mattered but in principle it does matter because there might have been something really important with the child that's not recorded.

1. Although Dr Wines opined that adequately documenting the consultation and procedure was important "medico-legally, but clinically it isn't",[55] and at the time of the procedure it does not pose a risk for that procedure to take place, in his report dated 10 May 2019, Dr Wines, relevantly, stated:
   1. In such circumstances the reason for the request for circumcision should be stated in the notes as well as the clinical findings. During the explanation the complications would be routinely covered but the addition of documenting this would not be unreasonable. [The practitioner] is agreeable to this.
   2. ... The pre-circumcision consultation was not extensively documented but taken in consideration with the circumcision protocol presumably provided and accepted it was probably acceptable with the following confirmation. Documentation of the fact that the protocol had been provided and read by the parents should also have been recorded.
2. In cross examination about [22] in the previous paragraph Ms Bindon put to Dr Wines that he did not have any evidence anywhere that the protocol was ever provided to the parents to which he replied that he could not recall the details of things and, instead, he tended to focus on what he described as the efficiency of the practice. The following exchange then took place:[56]

Ms Bindon: Sorry, it's a question about the documentation?

Dr Wines: I can't - I totally agree, in this day and age, the documentation was not as it probably should have been. As well as the consent form wasn't as comprehensive as it could have been. But overall, my impression of the whole undertaking of the practice was one of efficiency and compassion.

Ms Bindon: So, sorry to labour the point. I just want to be sure that you haven't seen something that we haven't seen. Do you recall ever seeing any clinical notes or record of the consultation before the procedure?

Dr Wines: I have - I have no recollection confidently of having seen that.

Ms Bindon: You agree, don't you, that in a situation of a buried penis, and let me say, proper buried penis, if that makes it easier, there are greater risks of bleeding in a circumcision on a proper buried penis than a normal penis. Do you agree?

Ms Bindon: So is that not a reason to make sure that you record whether the penis is buried or not?

1. Where the evidence of Professor Hutson and Dr Wines differed, the Tribunal preferred the evidence of Professor Hutson. His evidence was responsive to the questions asked of him whereas the Tribunal found Dr Wines' evidence, in large part, to not be responsive to the questions asked of him. Counsel for the Board submitted and the Tribunal agrees that Dr Wines resisted and refused to answer questions that might have required him to give an unfavourable answer, in his view, towards the practitioner. The following exchange took place:[57]

Ms Bindon: Do you agree that in your report, you are aiming to advocate for the [practitioner], because you have a view that he has been unfairly targeted?

Dr Wines: Well, I would tend to agree with that. I think the force of the Board was totally biased, and making inappropriate comments about his assessment of buried penises, and it was not justified to do so.

1. The Tribunal found Dr Wines advocating for the practitioner was not helpful. In his report he wrote about things which were not relevant to this hearing, namely the history of circumcision and the purpose and ethical rightness or wrongness of circumcision.
2. The Tribunal has considered what the practitioner has said in his affidavit, particularly at [21] and [22]:
   1. Ordinarily, I would include the following comments in the clinical records:

Circumcision performed using plastibell, procedure explained by nurse/doctor and pictures shown to family, consent obtained and signed by parents, possible explanations explained including risks, infection and possibility of surgery or redo procedure.

1. I have set up a short cut in my clinical records system to enter that information, and I am not sure why I did not enter that information in this case, other than it being an oversight.
2. The Tribunal noted that the practitioner's 'usual record keeping' referred to in the preceding paragraph does not include a contemporaneous record of any or any satisfactory clinical assessment of Patient A which is of concern.
3. Relying on the objective evidence, in particular, of Professor Hutson, and to a lesser extent on Dr Wines, as well as the practitioner's own concession above, the Tribunal is able to form a reasonable belief that the practitioner's documentation is devoid of the information which Professor Hutson said in [122] above, he would expect to find in a clinical record; it is not only inadequate, but also it is apparent that the practitioner failed to document the procedure he referred to in [21] of his affidavit or to follow the short cut procedure he referred to in [22] of his affidavit (see [128] above) and that this poses a serious risk to people.
4. The Tribunal noted the comments of the then General President of the tribunal in Hocking[58] where she said "the evidence does not support a conclusion that this was a detailed, careful and well considered consultation". Those comments could equally be said of the practitioner's documentation of the consultation with Patient A's mother.
5. The Tribunal has determined that the practitioner's conduct in failing to adequately document the consultation and procedure in his clinical records in relation to Patient A poses a serious risk of harm to people such that there is a need to impose immediate action to protect public health and safety.
6. The Tribunal also noted that this was not the first time the practitioner's documentation had come to the attention of AHPRA. The Tribunal will consider this below under Past Notification History.
7. The Tribunal will consider the form of immediate action later in the decision

What did the applicant do? What was the relevant conduct?

1. In his affidavit the practitioner set out his practice in obtaining informed consent. He stated:
   1. My practice is to explain the procedure to the patient's guardian, and say that, despite us performing a lot of these procedures which are relatively simple, the procedure carries risks, and complications may arise during the procedure (no matter how simple). I explain that to every family that I see in relation to the circumcision procedure (which now numbers into the thousands).
   2. I verbally explain the risks of the procedure, and show the parents pictures of what the procedure looks like. Bleeding is a known and common risk following circumcision, which is why it is dealt with in the circumcision protocol, and that risk is impressed on families when obtaining their consent to proceed with the procedure. Specifically, the procedure states

Important to point out to parents that picture shows an ideal outcome but not all scenarios are as perfect. There may be more bleeding in some cases and we allow more time for observations in those scenarios.

1. When I consult regarding a baby with a buried penis, we advise the patient's guardian that there is a higher risk of bleeding with the procedure.
2. At [33] of his affidavit the practitioner simply states:[59]

We discussed the procedure, and [Patient A's mother] gave her consent for the procedure to be performed. The forms for the procedure were signed by both [Patient A's mother] and me.[60]

1. The practitioner's practice nurse, Mary Balacuit, had signed two statements. In the first of these statements she stated that she was not involved in the consultation; she was involved in the circumcision procedure. Neither she nor another practice nurse, Sitamidiya Mutsinze, who also signed two statements, refer to the circumstances surrounding Patient A's mother signing the consent. Neither practice nurse was available for cross examination.
2. Dot Whitehead, another registered nurse employed by the practitioner, filed a statement. She was not involved in the procedure on Patient A but said she became aware of it when the practitioner told her about it after the fact, because of the issues raised by the parents and the complaint they made. In her statement she set out the practice's usual procedure for a circumcision including the nurses explaining what the procedure involves to the parents. She stated: [61]

We explain the risks and show pictures of what it may look like post-surgery and two days post-surgery. We say that there is always a risk of bleeding and that, if the bleeding does not settle initially, we keep them in the surgery for a further 15-20 minutes and if still bleeding [the practitioner] may decide to do a full circumcision. If the parents have any questions for the doctor, they are always encouraged to ask the doctor.

1. Dot Whitehead did not give evidence and was not made available for cross examination.
2. The evidence of Patient A's mother was in stark contrast to the applicant's untested evidence and the untested evidence of his witnesses.
3. Patient A's mother said in her statement, which in her sworn evidence she said was true and correct, that she had a consultation with the practitioner on 6 September 2018 to discuss getting Patient A circumcised. She said the consultation lasted approximately five minutes during which time he examined the baby and told his mother that there was a lot of fat around his penis, describing it as 'partially buried'. He asked her if she wanted to do the circumcision that day so she did not have to come back. She stated: [62]

[The practitioner] did not mention any potential complications, or risk with the procedure. [The practitioner] did not talk about the risk of bleeding or pain. [The practitioner] did not say that there was a higher risk of bleeding with a buried penis.

1. After speaking with Patient A's father, Patient A's mother said she told the practitioner that they wanted to proceed whereupon he advised her that she would need to move into the surgical room where the nurses would show her what a plastibell looks like. The nurse showed her the plastibell which was in a plastic bag; she did not show her any photos of what the penis would look like after the procedure with a plastibell. When the nurse took the plastic bag back she handed Patient A's mother a consent form and pen. When Patient A's mother signed the consent the practitioner was not in the room.
2. When the practitioner returned to the room Patient A's mother said that he told her Patient A would be injected and he showed her where, pointing to either side of the penis and on the ball sack. While she assumed that anaesthetic would be injected the practitioner did not tell her the injections were anaesthetic, what type of anaesthetic would be used and if there could be any risk or complication from the anaesthetic. She was asked to leave the surgical room. She left Patient A with the practitioner and one nurse in the surgical room.
3. In her oral evidence she confirmed that neither the practitioner nor the nurse had mentioned potential complications or risks with the procedure. Patient A's mother was an impressive witness. Her evidence was not shaken in cross examination. Where her evidence and that of the practitioner and his witnesses differs, the Tribunal preferred Patient A's mother's evidence. In her oral evidence and in cross examination she was a credible witness.
4. Dr Wines stated in his report, in relation to informed consent:[63]

I am not aware of the background of [the practitioner] nor do I know him professionally but examination of the documentation in this case would suggest a highly professional approach to circumcision providing a useful pathway to have the procedure performed by someone with considerable expertise and experience. The added inclusion of a statement confirming discussion of potential complications in the consent procedures would appear to be appropriate. (emphasis added)

1. In cross examination Dr Wines was asked about this highlighted statement, and whether he meant that there should have been such a statement in the consent form. Dr Wines said:[64]

...the admission of the wording ... that the potential complications have been explained to the parents, would be an appropriate thing to - to have in his consent form, but my interpretation of his consent form is that it would be included in the general discussion of the operation.

1. When asked whether the practitioner's processes for obtaining informed consent, including his consent form, was appropriate in all of the circumstances Dr Wines stated in his report:
   1. The circumcision protocol of the practice supplies more than adequate information to the parents and documents in considerable detail the circumcision process, postoperative care and observations as well the potential complications which may eventuate. It would have been advisable for (the practitioner) to have documented the presentation of this material in the consultation notes.
2. Later under cross examination Dr Wines conceded that while there was reference in this protocol to 'more bleeding' in which case the practitioner and nurse would allow more time for observation, the protocol did not specifically talk about what the risks are. He maintained his belief that the risks would have been discussed in the consultation but the documentation was deficient because this had not been documented. He agreed the practitioner's documentation was not as it probably should have been and that the consent form was not as comprehensive as it could have been.[65]
3. Professor Hutson stated in his report[66] that he would have expected the medical practitioner to inform the family about the risks of pain and bleeding after circumcision. After noting that there was a written consent form and that a post circumcision care sheet had been given, he states: "there is no information in the record about whether there was an adequate verbal explanation."
4. Clause 3.5 of the Code of Conduct states that informed consent is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved. Dr Wines said that the consent form was not as comprehensive as it could have been. Professor Hutson's evidence is set out in the previous paragraph.
5. There was no information in the consent form of the risks and complications associated with the procedure or whether these were explained to Patient A's mother, who was consenting to the procedure on her infant son who was a vulnerable patient. The practitioner, in his written submission to the Board, accepted that it would be better practice to include the risks of circumcision in the consent form and said he will amend these forms in the future.
6. Ms Bindon submitted,[67] and the Tribunal agrees, that the practitioner's failure to obtain informed consent, and in particular to discuss the precise risks and potential complications, in all likelihood, left Patient A's parents unprepared for the events which transpired, heightened their distress and potentially impeded their own ability to assess what to do when complications arose.

1. Relying on the objective evidence from Professor Hutson, and to a lesser extent from Dr Wines and on Patient A's mother's evidence as well as the practitioner's own concession above, the Tribunal is able to form a reasonable belief that the practitioner's conduct in failing to obtain informed consent poses a serious risk to people such that there is a need to impose immediate action to protect public health and safety.
2. The Tribunal also noted that this was not the first time the practitioner's processes for obtaining of informed consent had come to the attention of AHPRA. The Tribunal will consider this below under Past Notification History.
3. The Tribunal will consider the form of immediate action below.
4. In determining the form of immediate action, the Tribunal needed to decide whether it could consider the practitioner's past notification history.

1. Counsel for the practitioner submitted that the Tribunal should disregard the information relating to previous and current complaints made to the Board as

These complaints concern vastly different circumstances and should not be considered in the context of the current complaint. The information provided in relation to those complaints is not before the Tribunal ...[68]

1. Counsel for the Board referred the Tribunal to section 151(2) of the National Law which expressly permits past notification history to be taken into account in making a decision under the National Law. The Tribunal concurs. As the tribunal said in Helmy:

the Tribunal is required under section 156 of the National Law to consider whether the practitioner posed a risk to public safety, the history of notifications could be taken into account in this respect. [69]

1. While it is true that the complaints contained in AHPRA's synopsis of notifications and restrictions[70] concern very different circumstances, the outcomes in two of the Restrictions imposed on the practitioner are relevant in considering taking immediate action to protect public health or safety. They are:

On 31 July 2015 - Caution - The Medical Board of Australia decided to caution you to impress upon you your professional obligation to ensure the continuity of care for peri-operative patients. The Board also cautions you to ensure that informed and signed consent is obtained from a patient prior to any procedure or treatment and that the clinical records at all times contain copies of relevant signed consent forms.

On 28 March 2018 - Caution - The Medical Board of Australia has decided to caution Dr Nathem Al-Naser to ensure in the future that he practices the profession in accordance with the Medical Board of Australia Good Medical Practice: A Code of Conduct for Doctors in Australia, in particular that he:

(a) ...

(b) Keeps accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners.

1. The 28 March 2018 caution referred to in the preceding paragraph was imposed less than six months before the procedure on Patient A. Given the Tribunal findings above in relation to the practitioner's conduct in failing to keep up-to-date and accurate records which detail the clinical history, so soon after the caution, the Tribunal is able to be satisfied that the condition imposed on 28 March 2018 was insufficient to ensure that the practitioner does not pose a serious risk to persons.
2. The Notifications also included one dated 11 November 2015 for which the outcome was - 'open investigation'. An application for disciplinary action was brought to the tribunal in that matter by the Board on 29 June 2018. On 11 June 2019 the tribunal delivered its decision in that matter, The Medical Board of Australia v Al-Naser.[71] That tribunal found that grounds (a) to (e) of the application of 29 June 2018 were made out. Relevantly for the present matter grounds (c), (d) and (e) were:
   • (c) Failure to obtain informed consent;
   • (d) Failure to provide adequate after care instructions and treatment; and
   • (e) Failure to maintain adequate clinical records.
3. The penalty hearing in that matter, to the Tribunal's knowledge, has not been finalised.
4. This history adds to the Tribunal's reasonable belief that the practitioner poses a risk to public safety, particularly as some of the conduct the subject of the present appeal appears to have been of concern to the Board since 2015.

1. The question of what decision should be made if the tribunal hearing the appeal is satisfied that the criteria for taking immediate action are met has been considered by ACAT in Hocking where the then General President said:
   1. ... In Pearse v Medical Board of Australia (Pearse), QCAT agreed with a submission made by the respondent Board that:

...any conditions imposed ought address the relevant risk specifically, and otherwise be the least onerous possible.[72]

1. In MLNO v Medical Board of Australia,[73] cited with approval in Pearse, the tribunal said:

While the protection of the public is and must remain the paramount consideration, the impact of immediate action on a health practitioner cannot be underestimated.

1. Because the taking of immediate action involves the identification of specific risks and both suspension and the imposition of conditions can have a significant adverse impact on a practitioner, the approach identified in Pearse is appropriate. Without compromising public health or safety, the action taken should be limited to that which is necessary to address the identified risk pending investigation and where relevant, further action - nothing broader or more onerous.
2. Ms Musgrove reminded the Tribunal that any condition needs to address the relevant risk specifically and otherwise be the least onerous conditions possible. She submitted that the current condition is not the least onerous condition possible.[74] In relation to the four grounds relied on and the current condition she submitted, in summary:
   • (a) There is no need for immediate action on the performance of circumcisions.[75]
   • (b) Should the tribunal find that his conduct of follow-up care Dr Al-Naser posed a risk to people and that immediate action was necessary to protect the public, again any condition needs to be relevant and responsive to that particular risk. It also needs to be the least onerous that can be imposed while protecting the public. One suggestion that may be for the tribunal in determining any conditions, if necessary, could be that on receipt of a phone call from a concerned parent post-circumcision that all such patients, at a minimum, are to be seen by Dr Al-Naser within a specified period of time, such a condition would reduce any specific risk that may be perceived by the tribunal.[76]
   • (c) ... it would also be open to the tribunal to impose a condition that required every child to be brought back to the surgery post-circumcision within a specified timeframe.[77]
   • (d) A condition that is tailored to address the risk, not just the blunt, blanket condition that does not address the specific risk. Dr Al-Naser is more than willing to comply with the condition that addresses note taking and recording of information.[78]
   • (e) Dr Al-Naser is more than willing to change the consent form to have a list of the possible risks and complications for circumcision, and that when each one is discussed, the box will be ticked by either the doctor or the nurse as they actually discuss those risks and potential complications.
   • (f) Dr Al-Naser is also willing to provide to each parent or guardian the Royal Australasian College of Physicians brochure on circumcision which is Exhibit A1. He is willing to provide that before each consultation for circumcision. That would ameliorate the concerns in relation to the risks not being told, and both those measures could be effective and will address the specific risk, protect the public and be the least onerous as possible, as is required.[79]
3. Ms Musgrove submitted that there was evidence available to the Tribunal of the financial impact of the current condition on the practitioner. This submission appeared to be based on the practitioner performing on average five circumcisions a week and his statement that he refunded Patient A's mother $462.50. If that is accepted the practitioner would not be receiving $2,312.50 a week. The immediate action took effect from 20 December 2018. Ms Musgrove submitted that he had, therefore, lost billing income on circumcisions of $64,750. Additionally, Ms Musgrove referred to the evidence that the practitioner had hired a staff member specifically to assist with circumcisions.
4. The practitioner did not produce any corroborative evidence of the financial loss which his Counsel has asked the Tribunal to infer from his affidavit. The practitioner has also stated that he owns two medical practices, yet he provided no evidence that could assist the Tribunal reliably determine whether and what loss he may have suffered. Likewise, while claiming that impact to his reputation is incalculable, the practitioner did not produce any evidence which could corroborate this claim. The only known damage to reputation appears to be the publication of the condition on the AHPRA website.
5. Ms Bindon submitted that the Tribunal could take into consideration, in determining whether the practitioner's conduct poses a risk, the practitioner's pattern of behaviour. This is particularly relevant given that similar conduct to the conduct being considered in this appeal, has come to the Board's attention since at least 2015. She took the Tribunal through the most recent tribunal decision (see [159] above) involving the practitioner and submitted that this decision and the earlier cautions indicate that:

this is not a one-off scenario and that this practitioner has processes that he doesn't follow and processes that are inadequate in and of themselves, and aftercare that is inadequate. The idea that the risk that he poses in all of these stages could be adequately compensated for or addressed through a condition, that for example, requires him to overhaul all of his documentation does not remove the risk because he has a pattern of not following the documents that he even has.[80]

Moreover it doesn't address how the aftercare problem would be managed.

It's a lack of judgment in relation to the patients and their complications.

It depends on the good judgment of the practitioner and there's a serious risk to the person that he does not have that judgment on the material before the tribunal.[81]

1. As to the condition or conditions to be imposed Ms Bindon submitted that:[82]

...the only condition that could adequately address the risk that he poses is the condition that has been imposed, which is that he not perform circumcisions, and indeed, on some of the evidence in this case, one wonders whether that condition should be broader, but at least as far as the circumcision goes, the condition that he not perform them, as the immediate action while the investigation is ongoing, is the appropriate condition and the tribunal could not feel safe in a condition that is less than that, given the problems in both the pre and post circumcision procedure.

1. The Tribunal has, for the reasons set out above, formed a reasonable belief that immediate action in the form of the conditions set out in the order on the practitioner's registration is necessary to protect public health and safety. The conditions include machinery conditions necessary for the practitioner's compliance to be monitored.

1. The first condition requires the practitioner to provide, monthly, to AHPRA details of the each surgical procedure he has performed during that month and to include the informed consent, the medical notes documenting each procedure and his notes of the follow up care in each case. This addresses, not only the risk identified by the Tribunal in the above reasons, but is necessary to protect public health and safety.

[1] [2015] ACAT 22

[2] [2015] ACAT 22 at [37]

[3] Hocking v Medical Board of Australia [2015] ACAT 22 at [69], [70]

[4] [2016] ACAT 97 at [22]

[5] [1985] HCA 24 at 15

[6] [2009] ACTSC 28 at [88]

[8] Transcript of proceedings 1 July 2019 page 11, lines 12-15

[9] Transcript of proceedings 1 July 2019 page 11, lines 23-28

[10] Transcript of proceedings 1 July 2019 page 11, lines 3-41

[11] Transcript of proceedings 1 July 2019 page 12, lines l13-15

[12] [2012] VSCA 295

[13] [2016] ACAT 97 at [13]

[16] [2012] VSCA 295 at [107]

[17] Respondent's submissions dated 21 June 2019 at [9]

[18] [2012] FCA 679 at [65(g)]

[20] As required by section 4 the National Law

[21] Transcript of proceedings 1 July 2019 page 26, line 23

[22] Transcript of proceedings 1 July 2019 page 26, line 39

[23] Practitioner's affidavit sworn 1 July 2019 at [9]. 880 circumcisions in Belconnen Medical Centre and 402 in Conder Surgery.

[24] Practitioner's affidavit sworn 1 July 2019 at [51]

[26] Practitioner's affidavit sworn 1 July 2019 at [51]

[27] Practitioner's affidavit sworn 1 July 2019 at [29]

[28] Statement of Patient A's mother dated 20 June 2019 at [6]

[29] A/Prof GDH Croaker's report dated 8 September 2018; Respondent's Statement of Facts and Reasons dated 14 February 2019 page 38

[30] Transcript of proceedings 1 July 2019 page 35, lines 35-36

[31] Dr D Wines Report dated 10 May 2019 at [15]

[32] Dr D Wines Report dated 10 May 2019 at [15]

[33] Transcript of proceedings 2 July 2019 page 6, lines 29-30

[34] Transcript of proceedings 2 July 2019 page 6, lines 25-28

[35] Patient A's mother's statement dated 20 June 2019 at [21]

[36] Patient A's father's statement dated 21 June 2019 at [6]

[37] Patient A's father's statement dated 21 June 2019 at [7]

[38] For which the practitioner had given the mother a prescription

[39] Practitioner's affidavit sworn 1 July 2019 at [37]

[40] Practitioner's affidavit sworn 1 July 2019 at [38]

[41] Practitioner's affidavit sworn 1 July 2019 at [39]

[42] Practitioner's affidavit sworn 1 July 2019 [40]

[43] Patient A's father's statement dated 21 June 2019 at [10]

[44] Patient A's father's statement dated 21 June 2019 at [11]

[45] Transcript of proceedings 2 July 2019 page 21, lines 20

[46] Transcript of proceedings 2 July 2019 page 21, lines 20-23

[47] Transcript of proceedings 2 July 2018 page 18, 13-18

[48] Annexed to the respondent's Statement of Facts and Reasons dated 14 February 2019 at page 34

[49] Practitioner's affidavit sworn 1 July 2019 at [45]-[46]

[50] Transcript of proceedings 1 July 2019 page 40, 10 and 41

[51] Transcript of proceedings 1 July 2019 page 41, 11

[52] Professor Hutson's Medical Report dated 11 June 2019, page 3

[54] Transcript of proceedings 2 July 2019 page 11, lines 10-39

[55] Transcript of proceedings 1 July 2019 page 52, line 45

[56] Transcript of proceedings 1 July 2019 page 53, line 42 to page 54, line 12

[57] Transcript of proceedings 1 July 2019 page 56, lines 36-41

[59] Practitioner's affidavit sworn 1 July 2019 at [33]

[60] Practitioner's affidavit sworn 1 July 2019 at [33]

[61] Witness Statement of Dot Whitehead dated 22 June 2019 at [9]

[62] Patient A's mother's statement dated 20 June 2018 at [7]

[63] Report of Dr Robert Wines dated 10 May 2019 at [13]

[64] Transcript of proceedings 1 July 2019 page 43, lines 10-14

[65] Transcript of proceedings 1 July 2019 page 53, lines 43-44

[67] Respondent's submissions dated 21 June 2019 page 18

[68] Applicant's submissions dated 10 May 2019 at [7]

[69] [2016] ACAT 97 at [18]

[70] T documents, within the Statement of Facts and Reasons dated 14 February 2019 page 322

[71] [2019] ACAT 52

[72] [2013] QCAT 392 at [18]

[73] [2012] VCAT 123 at [5]

[74] Transcript of proceedings 2 July 2019 page 64, lines 10-14

[75] Transcript of proceedings 2 July 2019 page 65, lines 33-34

[76] Transcript of proceedings 2 July 2019 page 66, lines 8-17

[77] Transcript of proceedings 2 July 2019 page 66, lines 23-25

[78] Transcript of proceedings 2 July 2019 page 67, lines 34-37

[79] Transcript of proceedings 2 July 2019 page 68, lines 19-33

[80] Transcript of proceedings 2 July 2019 pages 81-82, lines 43-47

[81] Transcript of proceedings 2 July 2019 pages 81-82, lines 1-2, l.4, 11, l. 16-18

[82] Transcript of proceedings 2 July 2019 page 82, lines 20-27