Ansari v Medical Council of NSW

Ansari v Medical Council of NSW - [2021] NSWCATOD 138 - NSWCATOD 2021 case summary — Zoe

[6]

Patient's Instructions

Patient A had a first consultation with the respondent on 19 June 2020. The patient suffered from a condition known as chronic obstruction pulmonary disease ("COPD"). A week earlier namely on 12 June 2020, patient A had sent an email to the applicant stating: "I do not want a GA due to my concerns with my COPD".
At the consultation on 19 June 2020 patient A informed the applicant that she suffered from COPD. She stated that "a general anaesthetic was not something" which she could subject herself to as it was a high risk. The applicant reassured her that he only used "twilight sedation" for these procedures. A brochure advertising the applicant's services stated: "Most of our surgical procedures are performed in Day Surgery unit under twilight sedation and local anaesthesia. If we or the patient prefers general anaesthesia or if the procedure is combined with other major surgery, Dr Ansari will perform the procedure in a hospital with GA facility and with the assistance of the qualified anaesthetist."
On the following day she received paperwork and noticed that it indicated that she was to have a general anaesthetic. She contacted the applicant and his personal assistant by email stating that she did not consent to a general anaesthetic. In response the patient stated: "I was reassured by Dr Ansari that this was just standard practice, that he is aware of my concern and that he has never had to do this surgery under general anaesthetic".
Patient A alleges that she noted COPD twice on the form she was required to return to the applicant's PA for the anaesthetist. Having signed the consent form she wrote on it: "GA is not agreed-upon - (COPD)".
Patient A also claimed that she made the surgical team aware of her COPD and the risk of general anaesthetic when she informed the anaesthetist of this fact on the Saturday before the surgery (the fourth occasion). On the day of the surgery patient A stated that she again spoke to the anaesthetist prior to the surgery and reiterated her concern (the fifth occasion) that she only wanted a twilight sedation.

[11]

Findings of Medical Council

A summary of the delegates' finding is as follows: 1. it was inappropriate that the applicant would attend to perform a face lift, neck lift, neck liposuction and blepharoplasty under twilight sedation; 2. patient A should not have been operated on in a day hospital without experienced staff; 3. the procedure with twilight sedation placed the patient at increased risk of over-sedation with propofol and aspiration pneumonia. It increased the risk of a poor outcome of the surgery if a GA was suddenly required whilst neck and facial surgery was in progress; 4. the applicant's experience, when analysed, did not equate to him having the skills expected of a specialist surgeon; 5. there was an unacceptable delay of two hours before calling an ambulance to take the patient to St Vincent's Hospital; 6. the delegates noted that as the applicant's practice involved procedures requiring invasive surgery and anaesthesia, more intense Category A supervision was required; 7. the applicant had four prior complaints which related to poor practice, poor hygiene and allegations of poor outcome but the complaints were subsequently withdrawn; 8. a clinical review conducted on 3 May 2021 by a Consultant Plastic and Cosmetic surgeon noted that the applicant had no specialist qualifications as a surgeon and yet was representing himself to be an experienced surgeon; that the standard of care provided was poor; that contrary to the applicant's claim that general anaesthesia was intubated, a laryngeal mask airway was used which is an incorrect airway for the procedure resulting in early multi-system organ failure which was entirely preventable; the procedure itself was poorly performed with dehiscence and wound breakdown twice; the final clinical result was poor requiring revision.
The Delegates stated (written reasons: page 16): "It is clear to the delegates that Dr Ansari is inadequately trained and made serious errors in the treatment of [the patient] and he does not have full understanding of those errors."
In summary the concerns of the Tribunal included: 1. concern as to a fundamental lack of knowledge in the area of the use of local anaesthetic; 2. concern regarding the lack of consent and the fact that the applicant did not suspend the operation to obtain that consent; 3. concern by the use of interrupted sutures; 4. concern as to the applicant's capacity to assess patients as to their suitability to have proposed procedures; 5. concern that the website should be reviewed to ensure that the applicant is not misleading the public; 6. concern that the applicant should undertake practical surgical skills-based training.

[12]

Condition 2 and Condition 3

The applicant has provided extensive written submissions and oral submissions at the hearing of this application. The essential submission is that Conditions 2 and 3 were unnecessary and unjustified; that such conditions arose directly from a misunderstanding of the regulations by one delegate upon the issue whether the Regulations permitted liposuction involving the removal of less than 2.5 litres of fat to be performed other than in a licensed facility ("the 2.5 L issue"); that such misunderstanding by that delegate has infected the minds of the other delegates and led to the imposition of these conditions.
During the section 150 hearing the applicant stated that he performed small liposuction in his surgeries, which he defined as those surgeries involving less than 2.5 litres of fat removal. One delegate disagreed that such a quantity was "small liposuction" and stated: I was under the impression that legally, anything done beneath the skin, had to be done in an accredited facility. So liposuction is beneath the skin… Applicant: My understanding is that liposuction, less than 2 ½ L of fat, can be done in the procedure rooms, given the best procedure rooms. When one is expected to take more than 2 ½ L that has to be done in a licensed hospital facility.… Delegate: I'll have to check that up but my understanding was anything under the skin was not supposed be done in an unaccredited facility.
The Chair agreed that this aspect needed to be checked, adding "that's probably something that is a separate issue".
Later in the proceedings the delegate who raised the issue stated: "I just have one suggestion. If we check the law about liposuction in anything but an accredited facility, if I'm correct, then Dr Ansari should not be doing that in his clinic. It should be done in an accredited facility".
The Chair then stated to the delegates: "Perhaps we can leave that with you and you can take it back to [applicant' solicitors] and ask them to double check those rules because obviously there is some disagreement here about what the rule is. It would be worth double checking just make sure he is in compliance."
A discussion followed concerning supervision which would be required of the applicant. The Chair indicated that the delegates would require Category A supervision before the applicant undertook further surgical procedures.

[14]

Consideration

The Tribunal notes that the Chair expressed the opinion that the 2.5 L issue was "a separate issue". From this statement, it may be inferred that it was separate to the principal consideration before the Tribunal, namely the competence of the applicant to perform cosmetic surgery.
The Tribunal finds it impossible to draw the inference at this interlocutory hearing that any confusion concerning the issue of whether the applicant was authorised to carry out the procedures has necessarily resulted in the making of conditions 2 and 3.
Whilst the provisional belief of one delegate was mistaken, there was no concluded opinion expressed by the remaining delegates. At the conclusion of the hearing, the 2.5 L issue was left unresolved, to be determined subsequently.
There was an abundance of evidence before the delegates to indicate to them that the making of the orders requiring supervision as set out in conditions 2 and 3 was necessary for the protection of the public. Inherent in condition number 2 is the concern that the applicant may be conducting procedures in circumstances where there may be inadequate facilities for the conduct of those procedures. There was evidence before the delegates that the facilities at the premises where the applicant was performing his procedures may have been inadequately equipped. Condition 2 does not refer to the 2.5 L issue, and, contrary to the submissions of the applicant, it is not possible for the Tribunal to determine that this was the catalyst for inclusion of this condition. To consider that such condition was imposed solely because of a 2.5 L issue ignores the other evidence which gave rise to concern about the procedures conducted by the applicant. The applicant himself acknowledged he didn't know whether equipment, such as a microscope, was available at the Surry Hills Day Hospital. The applicant stated: "If I would get a second ago, I would probably do [sic - go] somewhere where there are better resources than the Surrey [sic] Hills Day Hospital."
The Delegates were also concerned that the procedures conducted by the applicant should not be performed other than in properly equipped premises, and that the procedures conducted by the applicant involving anaesthesia necessitated the use of appropriate facilities. The delegates said: "While Dr Ansari made the point that his anaesthetist prepares the anaesthetic for the day surgery, when he undertakes procedures in his room such as "small liposuctions" where he uses tumescent local anaesthetic, he has known anaesthetist there. In order to undertake procedure safely he must have a good knowledge of appropriate local anaesthesia, its duration of effectiveness and its safety. That was not evident upon questioning."
Condition 3 has obviously been formulated to address the concerns which were revealed during the hearing concerning the expertise of the applicant. The Council found that the training of the applicant should be contrasted with those of a specialty surgeon. Having referred to the training and qualifications of the applicant, the delegates stated: "This training can be contrasted with that undertaken by specialty surgeons. The expert delegate indicated that a specialist surgeon will generally undertake 2 to 3 years with specialty unaccredited training then 4 to 5 years of intensive specialty training, which also involves at least 10 hours of academic time per month for 4 to 5 years, to equip them with the skills necessary for patient selection and assessment. The Royal Australian College of Surgeons (RACS) examinations are written, and there are five viva examinations including two clinical fevers. A pass mark of 90% is required to obtain Fellowship and qualifications in plastic surgery. Dr Ansari is not a member of the RACS and the Australian Medical Council, the body responsible for accreditation of specialist colleges, does not recognise the ACCS (Australasian College of Cosmetic Surgery) as an approved college for accredited training in any surgery. Given this, delegates paid particular attention to the complexity of the procedures being undertaken by Dr Ansari with a view to assessing the appropriateness and adequacy of both his skills training and professional knowledge."
The Medical Council correctly points out that the onus lay upon the applicant to produce the requisite regulation before the decision was made by the delegates. It did not do so. Further, the Medical Council points out that the applicant had the option of seeking a review of the conditions under section 150A of the National Law; or appearing under section 159 on the basis of new evidence in accordance with section 159(3). None of these options were followed.
In the Tribunal's assessment, it cannot be inferred that the conditions 2 and 3 resulted solely from any misunderstanding concerning the facility: rather, the conditions have been imposed because of the delegates' concerns about the competence of the applicant.

[15]

Website Submission

The delegates formulated a recommendation and included it at the conclusion of the statement of Conditions, as follows: "Dr Ansari should review his website to ensure that he is not misleading the public about his training as a surgeon."
The applicant claims that such recommendation is unjustified.
The transcript of the Council hearing records its concern that the applicant may be advertising professional qualifications which are misleading. In particular, one delegate stated (TP 12): No, but I'm a bit perturbed that on your webpage you say you are a member of the Royal College of Surgeons of Edinburgh and it's a very fancy diploma type award that you have for that matter which I presume you probably have on display. Do you think that makes or do you think that the general public would interpret that as being a full fellow of the College of Surgeons? Do you think that they, looking at that, would think you are a fully trained surgeon from Edinburgh? Applicant: I haven't, as far as I know on the website we haven't said that's a fully, it's compared to a full surgical qualification. Delegate: you don't say that but do you think the general public would just presume it is? They don't know all the intricacies of things. Applicant: I'm not sure, you know, I can't say how the general public will perceive it. What I can say, I just put exactly what I got.
This issue arose because such certificate was issued once the applicant had sat for a basic level of surgical examination and therefore became a member of the Royal College of Surgeons of Edinburgh. The delegates were concerned that the publication of such qualification could readily mislead the public into believing that the applicant was a full fellow of that College.
The Tribunal considers there was prima facie adequate basis for such a recommendation. Clause 9 of the Guidelines for registered medical practitioners who perform cosmetic medical and surgical procedures, published by the Medical Board of Australia states: 9 Qualifications and titles 9.1 A medical practitioner must not make claims about their qualifications, experience or expertise that could mislead patients by implying the practitioner is more skilled or more experienced than is the case. To do so is a breach of the National Law (sections 117 - 119).
The detailed consideration of the basis for the recommendation and its utility is a matter for consideration if this matter is raised when the appeal is determined.

[19]

Section 150 proceedings

It is useful to state the principles underlying the imposition of conditions following a section 150 hearing. In Steel v Medical Council of New South Wales [2020] NSWCATOD 77, Judge Boland when dealing with an appeal under section 159B, summarised the principles derived from recent decisions of the Court of Appeal to be applied in s 150 proceedings and appeals. At [26]-[33], Judge Boland said, relevantly: Three recent decisions of the Court of Appeal (Kirby v Dental Council of New South Wales [2020] NSWCA 91, Health Care Complaints Commission v Windsor [2020] NSWCA 110 and Ghosh v Medical Council of New South Wales [2020] NSWCA 122) have considered the provisions of Division 3 Sub-division 7 and Division 6 Sub-division 2 of Part 8 of the National Law. In Kirby v Dental Council of New South Wales Brereton JA in his reasons explained the role of s 150 at [12] and [15] as follows: Exercise of the power under s 150(1) to suspend or impose conditions necessarily requires that the Council undertake an evaluation of circumstances concerning a practitioner that come to its notice. Although a complaint may be the means by which relevant circumstances that require consideration of action under s 150 may come to a Council's notice, s 150(4) makes clear that a complaint is not necessary to enable the Council to act; in other words, it may act of its own motion. … In the context of a provision headed "Suspension or conditions of registration to protect public", and the objective and guiding principle stated in s 3A, the touchstone for the exercise of the Council's power under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for the protection of the health or safety of any person or persons, or that the action is otherwise in the public interest. If so satisfied - regardless of how the matter comes to its attention - it must act. The power is conferred purely for the protection of the public, and thus the Council's sole concern is what if any action is required for the protection of the health and safety of any relevant persons and/or the public interest. This is not a professional disciplinary power, but purely protective. Although disciplinary proceedings may flow from s 150 action (as a result of the referral to the HCCC under s 150D), they are dealt with separately, under other provisions of the National Law which provide for dealing with complaints. As NCAT in its decision rightly observed, the role of a Council in undertaking a s 150 inquiry is to protect the public, and in a case such as the present, where serious allegations have been made which, if true, could lead to suspension or cancellation of the practitioner's registration but the evidence is incomplete and further investigation is needed, the issue for the Council is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring suspension, or imposition of a condition, for protection of the public.
Judge Boland also referred to the observations of Barrett AJ at first instance (see Kirby v Dental Council of New South Wales [2018] NSWSC 1869 at [6]): Section 150(1) assumes, clearly enough, that a Council will perform an evaluative task in relation to circumstances concerning a practitioner that come to its notice. The evaluation must focus entirely on what is required to protect the health and safety of relevant persons and on the requirements of the public interest. Considerations of punishment are foreign to the assessment.
Judge Boland also referred to the observations of Payne JA at [2] in the Court of Appeal decision above where His Honour observed: Section 150 of the Health Practitioner Regulation National Law (NSW) ("the National Law") imposes a positive duty on the Council to act, in one of several specified ways, if the Council is satisfied that it was appropriate to do so for the protection of the health or safety of any personal persons or otherwise in the public interest.
The National Law provides a very broad power to the Council in s 150. In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115, the Tribunal said at [49]: The power to suspend created by section 150 has been described, in terms of its predecessor legislation, as "Draconian" (see Levine J in the Supreme Court of NSW in X v NSW Medical Board (1993) 32 ALD 330 who determined that in appropriate cases the respondent should be given an opportunity of being heard before a suspension was imposed). Nevertheless, as the authorities to which we shall refer make it plain, the provision exists for the protection of the public.
Accordingly, there is express recognition that the power provided by section 150 may have far-reaching consequences, including suspension from practice. At [56] in Crickitt, the Tribunal again dealt with the width of the power provided by s 150 stating relevantly: (4) Nevertheless, the "Draconian" nature of the power is such that great care needs to be taken to ensure that there is some proper and appropriate basis for making any order. This will involve an appropriate examination consideration of the nature and extent of any misconduct alleged against the practitioner. The decision-maker "must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach" (R v Medical Board at [28]).

[20]

Application of principles

It is necessary to have regard to the basis upon which the delegates formed the conclusion that conditions were necessary upon the practice of the applicant. Those grounds are stated in the reasons of the delegates published on 19 July 2021, the basis for which arises from the complaint and the hearing convened on 18 June 2021.
Of particular concern to the delegates was the fact that the applicant was not sufficiently accredited to perform the surgery which he was undertaking; that his training and experience were inadequate; that the facilities he was using to conduct his surgery were inadequate; that he had no or inadequate appreciation of the risks that he was undertaking when he considered that the "twilight" anaesthetic would be adequate to perform a surgery of an expected duration of five hours requiring the patient to be motionless for this period of time; that the applicant had paid no regard to the consent form signed by the patient; that the applicant was prepared to continue with the surgery even though he had only recently received the blood tests relating to the patient; and that the patient suffered from renal problems.
The delegates did not exercise the power to suspend but in their discretion considered that conditions, as formulated, were essential for the protection of the health and safety of the public if the applicant was to continue to practise as a registered practitioner. The Tribunal observes that, unlike the circumstances in Crickitt, no suspension has been imposed and further, the applicant was represented legally at the s 150 hearing. The Tribunal is mindful that the findings of the Medical Council are purely interlocutory (see Hall J in Lindsay v NSW Medical Board [2008] NSWSC 40 relating to the predecessor legislation namely section 66 of the Medical Practice Act 1992 (NSW) (repealed)); however, they provide the basis for the making of the conditions.
The need to protect the health and safety of the public has been repeatedly referred to: see for example Health Care Complaints Commission v Do [2014] NSWCA 307 where Meagher JA said (inter alia) at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession.
In the proceedings now before the Tribunal, that objective was, in the opinion of the delegates, achieved by the imposition of the conditions.
The Tribunal has had regard to the grounds of appeal. These will be determined by the Tribunal when the appeal is determined in accordance with the principles referred to in Medical Council of New South Wales v Smithson [2021] NSWCA 53 at [20].
It is not the function of the Tribunal, on this interlocutory application, to consider the merits, save as to say that it has been submitted that the decision was tainted with Wednesbury unreasonableness, that is, that no decision-maker, properly informed, could have reached such a decision as considered in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. It is not possible, on this application, to determine whether such a ground could succeed. However, taking into account the content of the evidence before the section 150 hearing, the Tribunal is satisfied that there is at least a prima facie basis for the making of the conditions. As was stated in Kalil v Bray (1977) 1 NSWLR 256 (in relation to the Veterinary Surgeons Act 1923 (NSW)): The tribunal… will no doubt, give due weight to such expert evidence, if any, as may be placed before it. But the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is the tribunal itself. This is a responsibility to be discharged by drawing on its own internal resources of knowledge of veterinary science.
By analogy, the delegates have used their expertise to formulate conditions as they consider necessary for the protection of the public. The conduct of the procedures upon the patient has given rise to concern relating to the competence of the applicant to perform such procedures.
If a stay is not granted, it will have a consequence that the applicant will be required to practise subject to the conditions. Whilst this may not be convenient for him, his appeal will not be rendered nugatory. The grounds raised in the External appeal form raises principally questions of law which are arguable under section 159B, and it could not be said that the appeal was hopeless. Nevertheless, the Tribunal is satisfied that the public interest, as considered in New South Wales Bar Association v Stevens [2003] NSWCA 95 at [91], [103], [112]-[115] per Spigelman CJ, is a factor to be considered in the exercise of the Tribunal's discretion to grant a stay. The public interest is served by the continuation of the conditions in the interim pending the hearing of the applicant's appeal. The balance of convenience weighs against the grant of a stay and the applicant has not discharged the onus of proof that the circumstances warrant a stay.

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Judgment (24 paragraphs)

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Legislation Cited (4)

Cases Cited (19)

Cited By (8)