Azizi v Medical Council of New South Wales

Solicitors: HWL Ebsworth Lawyers (Applicant) Health Professional Councils Authority (Respondent) File Number(s): 2020/00337372 Publication restriction: Nil

Introduction

1. Nima Azizi has applied to this Tribunal for reinstatement as a medical practitioner, pursuant to s 163B of the Health Practitioner Regulation National Law (NSW) ("the National Law"). His application is not opposed. The respondent accepts that, on the available evidence, it is open to the Tribunal to conclude that Mr Azizi satisfies the criteria for re-instatement.
2. However, the Medical Council of New South Wales (the Council) insists that certain conditions be imposed on any registration.
3. The Council suggested to the Tribunal (in its Reply) a range of 14 conditions, and Mr Azizi accepted them as appropriate.
4. At the conclusion of the hearing, the Tribunal indicated that it was prepared to order re-instatement, but it asked the parties to review certain aspects of their "agreed" conditions.

Background

1. Mr Azizi was born in Iran on 9 April 1981. After completing his primary medical training, he migrated to Australia on 12 November 2008. He first secured limited registration with the Australian Health Practitioner Regulation Agency in July 2009.
2. Some relevant personal details of Mr Azizi include that he converted to Christianity in May 2017, married on 8 September 2019, and, having been a sparing consumer of alcohol and cigarettes, that he has totally abstained from both of them since September 2020.
3. The Tribunal has the benefit of written reasons delivered by the respondent following two relevant s 150 proceedings concerning Mr Azizi. They were heard on 11 December 2013 and 3 March 2014. (Both are referenced as MED000121709 and MPO363750).
4. The delegates conducting both those proceedings considered the public could be adequately protected by placing upon Mr Azizi's registration a range of Health and Practice conditions, but the second panel also recommended that the Council refer the matter to the Health Care Complaints Commission (HCCC) for investigation.
5. The HCCC ultimately succeeded in disciplinary proceedings against Mr Azizi in this Tribunal, and, following the Tribunal's reasons for decision, delivered on 20 July 2016 (Health Care Complaints Commission v Azizi [2016] NSWCATOD 94) ("the 2016 reasons"), Mr Azizi's registration was cancelled.
6. It was further ordered that he not be permitted to re-apply for a period of three years. That three-year period expired on or about 20 July 2019, and the present application was not made until 27 November 2020.
7. The grounds stated for the present application are that Mr Azizi has "sufficiently addressed the issues within" the 2016 reasons of the Tribunal.
8. In its 2016 decision, the Tribunal found that the HCCC's allegations against Mr Azizi were "serious", and that Mr Azizi's professional conduct was unsatisfactory, in that he had breached the National Law, and was guilty of serious dishonesty, leading to an overall finding of professional misconduct.
9. The Tribunal as presently constituted has closely considered the s 150 reasons and the 2016 reasons.
10. We have been very careful not to "review" the Tribunal decision, but to focus on the protection of the health and safety of the public, viewed in the present circumstances: see, generally, Zepinic v Health Care Complaints Commission [2020] NSWSC 13, at [84]-[85] (set out in the respondent's submissions, at par 3). We must assess the applicant's "worthiness" and "reliability" for the future: see Re Zaidi [2006] NSWMT 6, at [42].
11. Mr Azizi says in his statement of 10 December 2020 (Ex A1, tab 3), at par 4: "I now fully accept the Tribunal's findings and admit all of the particulars set out in the Complaint. I accept that my conduct was so serious that it amounted to professional misconduct and justified the cancellation of my registration."
12. However, he does not accept the factual underpinning of many of the Tribunal's findings.
13. The fact is that his professional misbehaviour was exacerbated by his proven deception of pharmacists and the regulatory authorities. Shortly after the 2016 decision he told his psychiatrist "no one advised me to tell the truth" (Ex A1, tab 7A, p 2), but he now says that he "had never been honest with [him]self about the true nature and gravity of [his] addiction [to OxyContin]" (Ex A1, tab 3, at par 7), and that he has gradually developed "genuine insight", which: (1) forced him "to be honest, sincere and candid about [his] addiction, [his] poor judgment and [his] bad decisions", and (2) "brought [him] to experience deep remorse" (Ex A1, tab 3, at par 8).
14. His personal and professional history is set out at length in the 2016 reasons, in the history recounted by his various health professionals, and in his 10 December 2020 statement in the present proceedings (Ex A1, tab 3). It is common ground, and need not be repeated here.
15. His "fall from grace" can be traced back to March 2013, and resulted from the cumulative effect of (a) regular and painful shoulder injuries, commencing in 2003, (b) family and relationship issues, (c) loss of his hospital position, and (d) successive failures in the "AMC clinical examination".
16. At the time of the 2016 cancellation of his registration, he was working as a General Practitioner in a group practice in northern Sydney, and, following the cancellation, his visa was also cancelled, and he ended up in immigration detention at Villawood, from 30 November 2017 to 27 July 2018.
17. On the positive side, he has successfully undertaken preliminary examinations to work in the USA, has married, become an active Christian involved in voluntary work with refugees, had regular urine and hair tests, and has undertaken extensive professional development programmes. He has also attended relevant health professionals for treatment, and "Doctors in Recovery" therapy sessions, on a regular basis.
18. He has been working as a practice manager at Milsons Point Medical Centre, where his mentor, Dr Mehdi Samari, has offered him full-time employment as a General Practitioner, under his supervision, if acceptable to the respondent (Ex A1, tab 3, p 16, at pars 90-94, and annexure M at pp 134-138).

Documentary Evidence

1. The expert evidence examined by the Tribunal in the present matter included the following reports: (a) dated 2015-2020, from Dr Robert Fisher, a psychiatrist who treated the applicant, and later reviewed him for the respondent (Ex R1, tabs 3 to 6, and Ex A1, tab 4); (b) dated 28 February 2021, from Dr Michael Atherton, a psychiatrist and addiction specialist who assessed Mr Azizi for the present hearing; (c) dated 14 April 2020, from Dr Usman Malik, a psychiatrist who attended on Mr Azizi 16 times from December 2013 to June 2017, and reviewed him on 6 February 2020; (d) dated February and October 2020, from Dr Danielle Florida, his current treating psychiatrist, who specialises in addictions, and to whom Mr Azizi was first referred in October 2016; (e) dated 10 July 2020, from Professor MacDonald Christie, a senior consulting pharmacologist retained on Mr Azizi's behalf by his solicitors; and (f) dated 14 February 2020, from Hazel McKenzie, the psychologist to whom Mr Azizi was referred by Dr Florida in 2018, and who sees him regularly.
2. None of those six experts was required for cross-examination, but all of them verify the health regimes which Mr Azizi outlined in his statement, and all are positive about his future prospects.
3. Unfortunately, no report was provided by his treating GP.
4. Mr Azizi also proffered four character references, all dated 20 January 2021, two from work colleagues, and two from senior members of his church community (Ex A1, tab 9).
5. Those references give the Tribunal some comfort that its decision to reinstate him will be appropriately respected.

Discussion

1. Prior to this hearing, the members of the panel were concerned principally with Mr Azizi's credit. He was, however, prepared to be questioned by us, and gave very frank responses to some quite confronting questions.
2. Some of our misgivings remain to some extent, especially concerning his past dealings with one Adam Ebadi (see the 2016 reasons, at [232], and Ex R1, tab 7, p 62), and the remaining lack of clarity as to what became of all the tablets he obtained (but see Professor Christie's report).
3. We have concluded, however, that with some slight tightening of the "agreed" conditions, the public will be adequately protected.
4. Mr Azizi seems well aware that his drug dependence involving OxyContin is severe, and that he has a "lifelong vulnerability" to relapse (per Dr Fisher, Ex A1, tab 4A, pp 8-9).
5. He has, however, been in remission for some considerable time.
6. Lying is a common feature of addiction, and despite his very poor record in this respect, Mr Azizi would appear to have reformed since around the time of his immigration detention in 2017/2018, some five years after his really troubled period between March and December 2013.
7. We are comfortable to make the orders sought, but with revised conditions as submitted after the hearing.

Costs

1. No order was sought in respect of costs, and none will be made.

Orders

1. The Tribunal makes the following orders: 1. Pursuant to s 163B(1)(c) of the Health Practitioner Regulation National Law (NSW), the Tribunal orders that Nima Azizi be re-instated onto the Register of Medical Practitioners, subject to the following conditions:

Practice conditions

1. To obtain Medical Council of New South Wales (the Medical Council) approval prior to changing the nature or place of his practice.
2. To provide a plan for professional development and re-entry to practice to the Medical Board of Australia for consideration and approval.
3. To practise no more than 30 hours per week.
4. To treat no more than 30 patients in any one day.
5. Not to possess, supply, administer or prescribe any "drug of addiction" (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1966 (NSW).
6. Not to possess, supply, administer or prescribe any Schedule 4 drug listed in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW).
7. To practise under category B supervision in accordance with the Medical Council's "Compliance Policy - Supervision" (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: professionalism and professional ethics including the maintaining of appropriate professional boundaries with patients; recent developments in clinical practice; appropriate prescribing practices; workload management; clinical performance; medical records reviews; and clinical outcomes; 2. Not to practise until a supervisor has been approved by the Medical Council.
8. To authorise and consent to any exchange of information between the Medical Council and Medicare Australia for the purpose of monitoring compliance with these conditions.

Health conditions 9. Not to prescribe for self-medication. 10. To take any medication as prescribed by his treating practitioners. 11. Not to self-administer any: 1. prescribed restricted substance (Schedule 4 Appendix D drug) or drug of addiction (Schedule 8 drug); or 2. narcotic derivative, non-prescription compound analgesic or cold medication, unless such medications are prescribed by his treating practitioner and taken as directed by his treating practitioner. 1. Within seven days of being prescribed such treatment from his treating practitioner, the practitioner must: 1. notify the Medical Council and Council-appointed practitioners. 2. provide written confirmation of the treatment from the treating practitioner to the Medical Council. 12. When the practitioner recommences medical practice, he is to comply with the Medical Council's "Drug screening policy" and "Participant procedure: drug screening" (as varied from time to time) and attend for: 1. urine drug screening three times a week; and 2. quarterly hair drug screening. 13. To attend for treatment by a general practitioner of his choice. The minimum frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Medical Council with the professional details of the treating practitioner. 14. To attend for treatment by an Addiction Specialist (either an Addiction Medicine Specialist [FAChAM] or an Addiction Psychiatrist [Cert Addiction Psych]) of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Medical Council with the professional details of the treating practitioner. 15. To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: 1. is to authorise the treating practitioner to inform the Medical Council of any of the following: 1. Failure to attend for treatment; 2. Termination of treatment; or 3. A significant change in health status (including a significant temporary change). 1. must provide the Medical Council with the professional details of the treating practitioner.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 08 June 2021 - Numbering corrected at [36] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 June 2021