Health Care Complaints Commission v Ahmed [2018] NSWCATOD 202 | Case summary

THE EVIDENCE

Against this general background it is appropriate to refer next to the evidence relied upon by the HCCC in relation to the Complaints filed as described above. Apart from numerous documents tendered to the Tribunal in support of its case, the HCCC relied upon the expert evidence of Dr Emery Kertesz MB BS Dip RACOG FRACGP FACRRM as contained in a detailed report and three supplementary reports. Dr Kertesz' reports were not challenged by Counsel for Dr Ahmed to the extent they dealt with matters conceded on his behalf. Counsel informed Dr Kertesz at the beginning of the cross examination that his opinions as to the duties and obligations of practitioners were not being challenged.
Dr Kertesz noted early in his main report that in May 2015 the HCCC had received a written complaint from an anonymous person alleging that Dr Ahmed was self-prescribing drugs of addiction, was deleting records from the system, requesting a trainee doctor to prescribe him medications on private scripts and prescribing drugs of addiction to patients in return for gifts. The HCCC referred the matter to the Pharmaceutical Regulation Unit for investigation. As a result a complaint was made to the HCCC in February 2016. In March 2016 the Medical Council imposed a number of conditions on Dr Ahmed's registration requiring him, inter alia, not to possess, supply or administer any drug of addiction or any substance listed in Schedule 4 D of the PTGA. He was to practice under category C supervision in accordance with the Council's compliance policy. The HCCC complaint was filed in the Tribunal in December 2017. That complaint did not embrace all of the matters raised in the anonymous letter of May 2015.
Dr Kertesz then referred to Dr Ahmed's professional history in terms already noted but added that he had spent 1990 in England as an observer supported by the World Health Organisation. Between 2005 and 2011 he had worked in an after-hours practice in Mackay before moving to Campbelltown. The Campbelltown Centre had 18 general practitioners, some full-time and some part-time. There were 2-3 nurses on duty Monday to Friday. At the relevant time Dr Ahmed worked three ten hour days and two four hour days per week. It was noted that Dr Ahmed held the Fellowship of the Royal Australian College of General Practitioners from 2011 and was registered as a Specialist General Practitioner.
Dr Kertesz's report recorded the documents that had been provided to him and summarised the HCCC's investigation. He analysed the medications prescribed by Dr Ahmed and described the strict legal requirements concerning the prescription of drugs of addiction or controlled drugs and the risks associated with prescribing these drugs in combination with other drugs as set out in Complaint One. His report then addressed a series of questions raised by the HCCC in relation to each patient identified in Complaint One as to the appropriateness of Dr Ahmed's assessment of the patient , the nature and suitability of the drugs prescribed and his compliance with regulatory requirements.
It is convenient to deal firstly with the contested allegations. The first group of allegations in this class concerned the failure to conduct an appropriate and adequate medical assessment prior to issuing the drugs prescribed. A related issue but not contested, was the allegation in Complaint Three of Dr Ahmed's failure to maintain medical records in accordance with Schedule 2 to the Health Practitioner Regulation (NSW) 2010. Dr Kertesz linked the need for an appropriate assessment of the patient with the taking of an appropriate history and examination of the patient on the first visit. Usually pre-existing prescriptions were continued without an independent assessment being made. In some cases checks should have been made of previous drug abuse history and reference should have been made to any Doctor Shopper history. The usual physical examination should have been undertaken and recorded. In relation to all 7 patients Dr Kertesz found that Dr Ahmed's failure to perform an appropriate assessment of the patient prior to prescribing the listed drugs led to the conclusion that his conduct fell well below the standard expected of a practitioner of his level of training and experience. The level of departure was significantly below that standard and warranted strong criticism. The same criticism was leveled at Dr Ahmed's failure to take any history or appropriate history of these patients. In all cases the notes were described as being of very poor quality and as failing to meet recommended standards in both content and structure. Dr Kertesz observed that good quality patient records were essential to the proper care of patients and were critical where another practitioner could take over the care of a patient. Significantly, the evidence before the Tribunal from Dr Ahmed and other doctors in the Centre practice was that it was common for patients to see a number of doctors as there was no system of appointments. Patients would be seen by the next available practitioner unless they wanted to wait for a particular doctor or return to the Centre when that doctor was available.
In his evidence Dr Ahmed stated that it was his "normal practice" when conducting each consultation and before prescribing any medications to review the patient's history and assess their general appearance. He would usually assess the patient's vital signs. He accepted that he did not always document the history taken and examinations performed and that his record keeping was poor, apparently due in part to his poor typing skills.
In cross-examination Dr Kertesz accepted that a lot of doctors were lazy in their record keeping regarding patients but that software was available to assist in the task and had been since 2001. He rejected the suggestion that notes might not be taken of unexceptional matters and stated that the Colleges were pressing for proper note taking by general practitioners. The approach was that if notes were not taken then the assessment never happened. It did not matter how busy was the practitioner they had to record what was important.
In submissions for Dr Ahmed it was argued that because he had given sworn evidence of having taken a history of his patients although not noted in the patients records, and had made an assessment, the Tribunal had no basis for finding otherwise. That submission ignores the purpose of taking a written record of the presenting patient, not only for historical health purposes, but also to provide vital information to other doctors who may have to treat that patient as was the norm at the Campbelltown Centre. A competent history would also inform Dr Ahmed of any changes since the patient last consulted. The absence of a written record also left Dr Ahmed in the difficult position of having to remember the previous state of health of a presenting patient of whom there were in excess of 86,000 between 2011 and 2018. Indeed, during cross-examination Dr Ahmed had difficulty in remembering the circumstances of what he advised in a particular case concerning patient C. Dr Ahmed claimed to have a specific memory of giving advice only because that was his usual practice. This aspect of Complaint 1 is clearly established against Dr Ahmed. Similarly, the related allegation in Complaint Three is also clearly established on the evidence referred to above.
The next contested issue concerns patient B and the prescribing of a Schedule 4 drug without making timely and appropriate referrals to specialists for treatment, review or advice. Dr Kertesz noted that while Dr Ahmed referred the patient for imaging of her low back and hips on four occasions there were no referrals made for counseling or Pain Clinic assessment and no referrals were made for sleep studies or respiratory-sleep physician assessment. Dr Kertesz considered these failures regarding timely and appropriate referrals when prescribing listed drugs as conduct falling below the standard expected of a practitioner of his level of training and experience, however that departure did not warrant strong criticism.
Submissions for Dr Ahmed pointed out that there were referrals to a specialist for patient B but these were not the subject of criticism. He had tried to persuade the patient to consult a psychologist but she refused. It seems that Dr Ahmed broadly accepted the criticism but wished to have it weighed against the numerous other referrals he had made as being indicative of his proper and caring approach to patients. While the Tribunal accepts the evidence of Dr Kertesz as to the shortcomings of Dr Ahmed in relation to this patient the shortcomings need not be regarded as serious.
The last contested issue relates to patient G and the prescribing of the Schedule 4 drug Alprazolam, firstly, in an inappropriate quantity and for a purpose that did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to s 34 of the PTGR and, secondly, prescribed Alprazolam in combination with the Schedule 4 D prescribed restricted substances Diazepam and Oxazepam, an inappropriate combination. Dr Kertesz found no evidence of Diazepam being prescribed for this patient. The co-prescribing of Alprazolam and Oxazepam occurred on a single occasion and while inappropriate appeared to be a one off event. Although this prescribing fell below the standard expected of a practitioner of his level of training and experience, Dr Ahmed's departure from that standard did not warrant strong criticism.
In relation to Dr Ahmed's prescribing Alprazolam, Dr Kertesz expressed the opinion that the quantities of this drug appeared to be appropriate as did the prescribing of four other identified drugs that were considered to be within therapeutic quantities. Dr Kertesz did state that those quantities considered in combination with other prescriptions from other general practitioners in the same practice and in the total quantities prescribed may have exceeded recommended therapeutic doses. The lack of care with respect to the total prescribing, however, led to the conclusion that his conduct fell below the standard expected of practitioners of his level of training and experience. This was a significant departure from the standard warranting strong criticism.
On Dr Ahmed's behalf, it was submitted that patient G was a highly aggressive person and he was intimidated by the patient. He continued to prescribe Alprazolam that had been prescribed by other doctors in the practice. The patient had been attending the Centre for 8 years before seeing Dr Ahmed. The prescribing of Alprazolam was not continued after it was upgraded to a Schedule 8 medication in February 2014.
The tribunal accepts the evidence of Dr Kertesz with the result that allegations made in para 17c and d of the Further Amended Complaint are made out although the 17d allegation is considered to be minor in nature.
It is necessary to consider next the evidence in relation to the bulk of the matters raised in Complaint One which were not contested by Dr Ahmed. The parties approached the matters raised in Complaint One as representing the most serious allegations brought against Dr Ahmed. It should be noted at this point that of the seven patients dealt with in Complaint One , six were long term patients of the Centre with years of consulting other general practitioners in the Centre before seeing Dr Ahmed or becoming, in some cases, his regular patient. It was Dr Kertesz's evidence that where Dr Ahmed simply continued the prescription regime of another practitioner, although blameworthy, his actions in these circumstances were of a lower level of departure from good practice standards. However, where the previous prescription regime was continued on a longer term basis without Dr Ahmed considering fully the appropriateness of the drugs, their quantity and their possible interaction with other prescribed medication, Dr Ahmed's failure to recognize the dangers of such a course represented such a departure from good and standard practice as to warrant strong criticism.
In relation to patient A Dr Ahmed prescribed ten drugs over various periods. Dr Kertesz was of the view that this prescribing did not follow any guidelines in that the various narcotics of different strengths appeared to be prescribed in a haphazard fashion. The potential interactions of these medications could possibly have been minimised by more consistent prescribing. This conduct fell below the standard expected of a practitioner of Dr Ahmed's training and experience and warranted strong criticism. Further Dr Ahmed failed to be aware of the regulations governing the prescribing of certain Schedule 8 medications to known or suspected addicted persons and his failure to obtain an authority from NSW Department of Health was strongly criticised. In this case Dr Kertesz observed that this person had been a long term patient of the Centre but from 2014 was a regular patient of Dr Ahmed and thus all medication responsibility and ongoing management laid with Dr Ahmed thereafter.
Patient B had been prescribed Stilnox and Valium in quantities that were within therapeutic standards but when considered in combination with prescriptiions from other doctors in the same practice, the total quantities prescribed may have exceeded the recommended therapeutic dose. While this was a failure of prescription management it did not warrant strong criticism from Dr Kertesz. However, Dr Ahmed's continued prescribing of established medications in an ongoing fashion deserved strong criticism but this approach appeared to be standard for the Centre. Although not originally a patient of Dr Ahmed, after continuing previous prescriptions he chose, changed and ceased treatments. Dr Kertesz concluded that not all responsibility lay with Dr Ahmed in the ongoing management of this patient having regard to the existing significant management that had already been established. This observation regarding limited responsibility was also made by Dr Kertesz in relation to patients C, E, F and G.
Dr Ahmed's failure to perform an appropriate assessment of patient C prior to prescribing listed drugs was strongly criticised by Dr Kertesz. The quantities of these drugs that were prescribed were within therapeutic quantities but may have exceeded recommended therapeutic doses when account was taken of other drugs taken in combination that were prescribed by other practitioners in the Centre. This did not draw strong criticism from Dr Kertesz. There was evidence of drug seeking behaviour not necessarily noted by Dr Ahmed or dealt with appropriately such as simply saying "no" to a request or demand. Dr Ahmed's failure to recognise and deal with this drug seeking behaviour drew strong criticism.
Patient D was treated from the start by Dr Ahmed. On analysis of the records, Dr Kertesz concluded that the patient demonstrated drug seeking behaviour and that Dr Ahmed appeared to prescribe Pethidine on demand. A full history and examination should have been taken and a history check undertaken regarding previous drug abuse history. Dr Ahmed's failures in these respects led to the conclusion that his conduct fell significantly below the standard expected of a practitioner of his level and training and experience and drew strong criticism. He had supplied Pethidine without obtaining an authority because he was unaware of his obligation to do so. Dr Kertesz was critical of any prescribing of Pethidine for this patient although it was noted that Dr Ahmed had prescribed half the quantity that another doctor at the Centre had prescribed for the same patient.
One particular event that raised concerns about Dr Ahmed's prescription of drugs to this patient was a claim that he was about to attend a withdrawal programme and needed Pethidine in the interim. This claim was supported by a letter of enrolment in a drug withdrawal programme but Dr Ahmed requested verification from the patient's rehabilitation specialist. Dr Ahmed was informed that a Dr Robert McCrae could verify the patients' attendance at this programme. Dr Ahmed spoke on the telephone twice to Dr McCrae who confirmed patient D's enrolment and the need for Pethidine in the interim. He believed he was speaking to a genuine physician and provided the prescription.
Dr Kertesz was critical of Dr Ahmed for not recognising what was clearly drug seeking behaviour and for not simply refusing to provide the prescription. This event apparently occurred on a Sunday and no reason was provided as to why Dr McCrae had not provided the prescription. Dr Ahmed told the Medical Council that another Doctor was taken in by the same ruse perpetrated by a "Dr McCrae". There is no record of whether this was followed up but counsel for Dr Ahmed accepted that his client was extremely naïve and gullible in this instance. Dr Ahmed gave evidence of his fear of this patient who was large and intimidating. He feared for his safety if he refused medication. He did not, however, raise these safety concerns with other practitioners or managers at the Centre nor did he request that patient D not be allocated to him when attending the Centre.
The issues arising in the case of patient E were reduced after Dr Kertesz received information from Dr Ahmed and subsequently withdrew a criticism made in his first report. There were two other aspects of Dr Ahmed's treatment of this patient where Dr Kertesz identified departures from usual standards but the circumstances were considered such as to not warrant strong criticism.
Dr Ahmed continued to prescribe Norspan in an ongoing fashion, continuing from his peers prescribing. Norspan had been prescribed for patient E since 2007 but was not seen by Dr Ahmed until 2013. The Complaint concerns a period of about 4 months during which Dr Ahmed prescribed the Schedule 8 drug of addiction, Buprenorphine. Dr Kertesz concluded that Dr Ahmed was unaware of the patient having been on the Opiate Treatment Programme and was unaware of his obligation under State law not to prescribe Schedule 8 drugs at all to this patient. This conduct warranted strong criticism. The failure of Dr Ahmed to document the medications and their therapeutic purpose for management of the patient led to the conclusion that his conduct fell significantly below the standard expected of a practitioner of his level of training and experience but did not draw strong criticism.
Patient F was not usually seen by Dr Ahmed but was regularly consulted between 2012 and 2015. Dr Kertesz noted that Dr Ahmed simply continued to prescribe pre-existing medications to this patient as his peers had previously done and he appeared to do so unquestioningly. Alprazolam and Temazepam were prescribed concurrently but there was no evidence in Dr Amhed's notes of warnings or suggestions regarding the concurrent use of these drugs having any detrimental or cumulative effects. There was no mention in the notes of the possible extreme addiction qualities of Alprazolam. The prescription of these drugs was within therapeutic quantities, but when considered in combination with other prescriptions from other doctors in the same practice, the total quantities prescribed may have exceeded therapeutic doses. In his evidence Dr Ahmed admitted prescribing these two drugs in combination but said that he warned the patient not to take the drugs together and only to take Alprazolam for panic attacks.
Dr Kertesz regarded the unquestioning continuation of existing prescriptions and the failure to obtain authority for the prescription of Schedule drugs was deserving of strong criticism. He did state, however, that the patient did not exhibit any drug seeking behaviour.
For just under 2 years Dr Ahmed prescribed the Schedule 4 drug Alprazolam for patient G, continuing the medication practices of other doctors in the Centre. Oxazepam, a schedule 4 D prescribe restricted substance, was also prescribed by Dr Ahmed as a continuation of previous medication practices within the Centre. Dr Ahmed did not prescribe Diazepam in combination as particularized in Complaint One.
Dr Kertesz stated that the quantity of Alprazolam and Oxazepan prescribed by Dr Ahmed appeared to be appropriate and continued the practice of other doctors at the Centre. However, the total prescribing of the Centre may have exceeded recommended therapeutic doses. This lack of care led to the conclusion that his conduct in this respect fell below the standard expected of practitioners of his level of training and experience and warranted strong criticism. While Dr Ahmed had made no referrals to specialists for treatment, review or advice, other doctors at the Centre attending on this patient also made no such referrals. This conduct, while considered below good practice, did not warrant strong criticism. Dr Kertesz again regarded the failure to obtain an authority for the prescription of Alprazolam as warranting strong criticism. He does not appear to have made any particular observations regarding paragraph 19 of Complaint 1.
In his evidence Dr Ahmed described patient G as highly aggressive and it was submitted that he was clearly intimidated by him. This was suggested as the reason why the pre-existing medication regime was continued. Again there is no evidence of Dr Ahmed doing anything about measures to avoid this patient. He conceded that this was not acceptable from a medical practitioner and said that he would not let it happen again. Interestingly, Dr Kertesz stated that intimidation from a drug taking patient could be terrible and very frightening :there was a danger, for example, of being shot. There was some training available now and a duress button had been installed at the Centre. There were cameras in use and young doctors around.
Complaint Two dealt with Dr Ahmed's self-prescribing of three Schedule 4D prescribed restricted substances contrary to Medical Board and Medical Council guidelines. Dr Kertesz noted that self prescribing, self management and self referral were all considered inappropriate and unacceptable by RACGP, AMA, NSWMC and AHPRA guidelines. His conduct in this respect warranted strong criticism. In his evidence Dr Ahmed accepted that he should not have self prescribed . He now had a GP and would not act in this way again. There had been no suggestion of self-prescribing during the last four to five years. The Tribunal finds that this allegation has been proved.
While these various matters were conceded by Dr Ahmed ,the Tribunal has considered the matters for itself and accepts the evidence of Dr Kertesz as to the relative culpability of Dr Ahmed on the many issues covered. In this context the Tribunal concludes that Complaints One and Two have been made out.
The above consideration of the Complaints has included responses made by Dr Ahmed in mitigation of the conduct he has accepted occurred. Counsel for Dr Ahmed emphasised that his client did not seek to justify this conduct but sought to place it in the context of the workings of the Centre and its base of clients. He fully understood the mistakes that he had made and had taken a variety of very substantial steps to address his shortcomings. These included : completing an online course through Avant Mutual Group titled "Prescribing: Principles and Practice" that focussed on legislative requirements for prescribing certain medications and identifying drug seeking behaviour; successfully completing the Monash University's online course "Issues in General Practice Prescribing" that included completing 20-30 hours work per week in the form of reading ,examination preparation and undertaking examinations. To complete this course he had to reduce his work hours and spent several hours after work to complete the required reading The course included the identification of drug seeking patients, effective pain management and alternatives to analgesics, managing effective specialist referrals, legislative requirements for prescribing different medications, and safe prescribing strategies; completing the online course "On the record: medical records and documentation"; attending a General Practice conference and Exhibition over 3 days dealing with a number of topics; attending a seminar entitled "Managing and Treating Opioid Dependence in General Practice" given by a Staff Specialist at the Liverpool Hospital; and attending a seminar given by a specialist sleep physician.
From September 2018 Dr Ahmed has undertaken a period of observation with Dr Manohar, a pain management specialist. He is to attend one day a week for 2-3 hours and this is an ongoing commitment. In addition Dr Ahmed has reviewed and familiarised himself with a number of publications relevant to his practice. He had also reviewed the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia." Additionally, in recognition of the inadvisability of treating himself he now has his own independent general practitioner.
In support of his case, Dr Ahmed called a number of the Centre doctors to provide character references and to provide evidence of his professional standing. These witnesses did not seem to have a close personal and/or social connection with Dr Ahmed and their evidence was confined to observations made in the operation of the busy Centre. The most significant of these witnesses was Dr Annette Munday who had been his Category C Supervisor since May 2016 under conditions imposed upon his registration in March 2016.
In a written statement Dr Munday said that as supervisor she had been involved in regular monthly meetings where she discussed and reviewed with Dr Ahmed his prescribing activity, clinical performance and medical record keeping. These were ongoing meetings and to date 27 such meetings had taken place. Dr Munday found his clinical notes to be suitable, relevant and adequate. She was aware of no inappropriate prescribing whatsoever, and no prescribing of Schedule 4 or 8 medications. Dr Ahmed had shown himself to be of sound professional character. She was aware of no complaints by patients, staff or colleagues. Having read the HCCC Complaint it appeared that his professional conduct difficulties related to prescribing Schedule 4 and 8 drugs, but those problems had been rectified. Since March 2016 Dr Ahmed's mode of practice had changed: his medical notes were more detailed and complete; he was generally more conscientious about his work and professionalism; complaints had fallen away to nothing; and there were no Schedule 4 or 8 medications prescribed by him. Dr Munday expressed the opinion that any professional misconduct had been satisfactorily addressed and that Dr Ahmed was fit to continue practicing without restriction.
Dr Munday was extensively cross examined and often provided lengthy answers. It was clear from the nature of her evidence that she had complete faith in Dr Ahmed and the efforts he had made to change his practice methods. At times those responses appeared to verge on advocacy but overall Dr Mundey gave a frank assessment of Dr Ahmed's professional status having regard to the challenges faced by a practitioner in a very busy corporate medical Centre operating in a low sociio-economic area.
Meetings with Dr Ahmed usually occupied about an hour and Dr Munday would check his medical notes on a random basis and would look for Schedule drug prescribing. For two years she had occupied the room next to Dr Ahmed and felt that she had got the feel of what was happening in his practice. Although she had been in the practice since 1999 she was not situated in close proximity to Dr Ahmed until she became his supervisor. She was unaware of his problems during this time and only one other doctor picked up a problem with Dr Ahmed but that person had problems of his own and ultimately all doctors were complained about.
Dr Munday accepted that the complaints about prescribing drugs was a serious issue but Dr Ahmed was not the only doctor to prescribe in this way. Drug affected patients were extraordinarily manipulative and would go to extreme lengths of lying and hurting themselves in order to get drugs. Their lies often made it hard not to prescribe and drug seekers would never go to a pain clinic. Dr Munday noted that these matters were no longer an issue for Dr Ahmed due to the restrictions regarding the prescribing of Schedule drugs placed on his practice. The seven patients involved had also left the practice.
Dr Munday observed that a senior doctor in the Centre could intervene and remove patients who were drug seekers. Such a senior doctor could have helped Dr Ahmed work out what to do with drug seekers but there was no dedicated supervisor at the Centre at that time and no lead doctor on site between 2011-2015. There was no mentor type figure at the Centre during this time.
In relation to checking Dr Ahmed's notes and assessments Dr Munday observed that Medicare rewarded "in and out" treatment and that the consequence of bulk billing was that practitioners performed six minute consultations. Dr Ahmed had altered the way he operated with much better notes and examinations with longer consultations. In this way he had taken responsibility although in essence he was a contactor remunerated on a percentage basis. Medicare was billed by the doctor and the Centre would receive 40% to 60% of that fee. Dr Munday observed that this was the reason that the six minute consultation was the ideal and that any practitioner would agree.
The Centre conducted clinical meetings once a month and usually had a speaker present over lunch. These meetings had not previously discussed complex patients nor particular problems faced by practitioners consulting at the Centre. Dr Munday was unaware of any training provided to all the staff concerning the duress system that had been installed. There had never been a meeting about the risk to doctors because of pressure applied by drug seeking patients although in the past police had been called because of threats, the presence of a gun and attempts at stealing cash but these were not threats by drug patients.
References were also provided by three other practitioners who worked with Dr Ahmed at the Campbelltown Centre .
Dr.Ciardi worked at the Centre between November 2016 and March 2018 being a period when Dr Ahmed was practisiing under conditions imposed by the Medical Council. He spoke of Dr Ahmed as being a pleasant person who enjoyed talking to his colleagues. He perceived that Dr Ahmed was very popular and well liked as a medical practitioner having had the opportunity to see some of his patients while he was on leave. Dr Ciardi could not find anything in his clinical notes that "startled" him and regarded the notes as good. Dr Ahmed made correct diagnoses, requested appropriate investigations and prescribed appropriate medication. He followed up patients appropriately. He continued to consider Dr Ahmed to be a fine family physician, having good diagnostic skills and prescribing appropriate treatment. Dr Ciardi was surprised when he read the complaints and they seemed out of character. He was of the view that it would be a great pity and a great loss for his patients should he be suspended or deregistered.
In cross examination Dr Ciardi said that most patients at the Centre bulk billed and were walk-in patients. Patients could ask for their regular doctor or could consult anyone who was available. Many of the patients liked Dr Ahmed and were disappointed if he was not in attendance-some would wait for him. In this practice all the doctors had access to each others notes. He would look at the last few entries and get up to date but there was not much time and many patients waiting. He did feel pressure and did not want patients to have to wait too long.
The remuneration arrangement at the Centre was that the doctor would share the Medicare rate with the Centre for normal and long consultations. The more patients seen the higher was the remuneration. Long consultations did not pay proportionally to the time actually taken. There were no regular practice meetings at the Centre. On his first day or so at the Centre he was trained by a technician in the medical software available.
Dr Nagi was a general practitioner who had worked with Dr Ahmed at the Campbelltown Centre since 2011. He stated that Dr Ahmed was a highly regarded doctor in the Centre who communicated with the doctors and the staff all the time. He maintained his professionalism and supervised the junior doctors and medical students as well as assisting colleagues when needed. Dr Nagi was not aware of any complaints from patients or colleagues regarding his ability as a medical practitioner. He had seen many of Dr Ahmed's patients and shared the care of his patients without any issues arising. He spoke of Dr Ahmed as a very good medical practitioner who was respected by doctors and staff. He was a knowledgeable and caring practitioner. In cross examination he agreed that the allegations against Dr Ahmed were serious and that patient's health was at risk.
Dr Rand Al-Hajali had worked with De Ahmed at the Centre since 2011 and knew Dr Ahmed as a well respected and polite person with an outstanding manner, being an easy person to communicate with on a personal and professional level with their colleagues at the Centre. Between 2015-16 Dr Al-Hajali was an independent Lead Doctor at the Centre and in that position received no complaints from patients against Dr Ahmed or his ability as a medical practitioner. The opinion expressed was that Dr Ahmed was an honest, reliable and trustworthy general practitioner. Dr Rand Al-Hajali was not required for cross examination.

CONSIDERATION.

In submissions the parties referred to numerous and well known authorities applicable to proceedings such as now before the Tribunal. Those authorities were not contested and the Tribunal proceeds on the basis that its jurisdiction is primarlly protective in nature, rather than punitive ( see eg Health Care Complaints Commissiion v Litchfield (!997) 41 NSWLR,630,637). Reference was also made to s 3A of the Health Practitioner Regulation National Law (NSW) providing that the Tribunal must treat the protection of the health and safety of the public as the paramount consideration. In written submissions for the HCCC reliance was placed on the decision in Gayed v Walton [1997] NSWSC 279 and other cases for the proposition that in exercising its protective jurisdiction, the Tribunal must have consideration for the maintenance of the standards of the medical profession, preservation of public confidence in the profession and, more broadly, the protection of the community. Submissions for Dr Ahmed were critical of the over emphasis on deterrence in the submissions of the HCCC but did not suggest that it had no role to play at all in the decision making process.
Having regard to these general principles this case falls for determination in circumstances where Dr Ahmed has admitted the vast majority of the particularised complaints and has provided material leading the HCCC to reduce the number of matters in issue. He has accepted that in the three categories of Complaint he is guilty of unsatisfactory professional conduct but denies that on any basis he is guilty of professional misconduct.
The Tribunal accepts the analysis of Dr Kertesz in numerous instances where he has found the conduct of Dr Ahmed as falling below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The terms of that finding reflect the definition of "unsatisfactory professional conduct" set out in s 139B of the National Law. That analysis applies to Complaints One, Two and Three and accords with the Tribunal's view of the conduct covered by those complaints. The Tribunal regards Complaints One and Three as representing the most serious breaches due to the need to ensure the safety of the public when prescribing drugs and in maintaining standards of the medical profession in the making and recording of appropriate notes and making appropriate assessments of patients. In both cases the conduct breached statutory or regulatory provisions. The result is that Dr Ahned is found guilty of unsatisfactory professional conduct in relation to each of the three complaints.
It is then necessary to consider the contested allegation, namely that the complaints taken individually or in any combination, result in Dr Ahmed being guilty of professional misconduct. Section 139B of the National Law defines "professional misconduct" as either : a. unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration ; or b. more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. It should be noted that while the legislation refers to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, that result does not automatically follow a finding of professional misconduct ( see HCCC v Karalasingsham [2007] NSWCA 267 at [67]; HCCC v Dr Hofer [2014] NSWCATOD 74 at [262] ). Indeed, Counsel for Dr Ahmed drew attention to four decisions of this Tribunal where the respondent doctors were found guilty of professional misconduct but were not suspended from practice or had their registration cancelled. These cases will be considered in the following paragraphs.
Submissions for Dr Ahmed included an analysis of four decisions of this Tribunal as a basis for concluding that the conduct being considered in those cases was more serious than Dr Ahmed's conduct as revealed by the evidence, yet the Tribunal in each case found professional misconduct but did not suspend or cancel the registration of the practitioner. The cases relied upon were: HCCC v Dr Hofer (referred to above); HCCC v Low [2015] NSWCATOD 18; HCCC v Arreza [2017] NSWCATOD 119; and, HCCC v Chong [2017] NSWCATOD 81.
In response the HCCC drew the attention of the Tribunal to the decision of the Court of Appeal in Lee v HCCC [2012] NSWCA 80. In that case the Court of Appeal made observations about the limited value of comparisons with other cases when determining appropriate orders in a particular case. Here the comparison was being made with a recent decision of the Tribunal where the Court found there were some broad factual similarities between the cases. Nevertheless, the Court observed that such a course must be approached with extreme caution although there was some value in assessing whether other cases might be of value as examples in indicating a range of appropriate orders. These examples could not be seen as precedents.
The four cases relied upon by Dr Ahmed did have some broad similarities with the present case but there were differences, For example, in Hofer the practitioner had full knowledge of the statutory and regulatory provisions regarding prescribing Scheduled drugs and came from a very different medical background. In Low, financial difficulties provided a significant backdrop to the conduct and his case was supported by a diversity of character references. The case of Arreza concerned a practitioner with a very different medical background and experience in hospitals then becoming involved in prescribing Schedule drugs in a solo private practice. Dr Chong, at the relevant times, was the only GP working at the practice on a full time basis, while senior doctors working part time at the practice had been the subject of disciplinary proceedings. In contrast to these cases, counsel for HCCC provided a schedule of cases where a variety of orders were made in cases of inappropriate prescribing or use of drugs, including suspension and deregistration. It is, therefore, only in the general sense spoken about by the Court of Appeal, that these four cases offer assistance in determining the appropriate findings and orders in Dr Ahmed's case.
Having considered all of the evidence the Tribunal is satisfied that Dr Ahmed's conduct (already found to constitute unsatisfactory professional conduct and largely conceded by Dr Ahmed) considered in combination is sufficiently serious in nature to justify suspension or cancellation of the practitioner's registration and thus constitutes professional misconduct. The Tribunal notes that it has frequently been said by the Courts and Tribunals that the proper handling of drugs by medical practitioners is of the greatest importance to the community. In this case Dr Ahmed's lack of knowledge and adherence to the statutory and regulatory provisions and important practice guidelines demonstrated a recklessness in the practice of medicine. That conclusion is supported by the evidence of Dr Kertesz .
The Tribunal, however, is not satisfied that this is a case where the protection of the public or any other relevant consideration requires the suspension or cancellation of Dr Ahmed'd registration. The Tribunal is satisfied that the protection of the public and the maintenance of public confidence in the profession is best achieved by the recording of a reprimand to indicate its serious disapproval of the conduct disclosed in the evidence, and by the imposition of comprehensive conditions upon his registration. Dr Ahmed has consented to an order that he pay the costs of these proceedings, a concession properly made. There will be an order to that effect. The detailed conditions under which Dr Ahmed must practice are set out in Annexure "B", which is attached to this decision.
The following matters are considered by the Tribunal to place Dr Ahmed's professional misconduct in the context in which it occurred but are not regarded as providing an excuse for his conduct: 1. a. A number of the allegations were found by Dr Kertesz to be not serious while a number of prescriptions were found to be in quantities within therapeutic guidelines. The danger to patients who had been prescribed other drugs by doctors within the practice was apparently never considered by those doctors and they did not raise any concerns with him. 2. in a number of cases Dr Kertesz found that Dr Ahmed had continued pre-existing presriptions and not all responsibility lay with him in the practice 3. Dr Ahmed did make referrals to specialists (although one of his colleagues made no such referrals in relation to the same patient) but not in cases where this was appropriate. There is some limited evidence of Dr Ahmed trying to wean patients off drugs but without success, a not unusual outcome particularly where the patient resists. 4. Dr Kertesz stated that is was common for GP's not to know about Schedule 8 and Schedule 4D drugs and the regime under which they could be prescribed. This was considered to be an education problem for the profession and practitioners had to read journals and attend conferences to be aware of State law provisions. 5. during the relevant period there was no Lead Doctor or Senior Supervisor at the Centre providing leadership and guidance to practitioners. There was no one acting as a mentor. While there were monthly clinical meetings there was no discussion about dealing with complex patients 6. Dr Kertesz spoke of the reality of intimidation by drug addicted or drug seeking patients whose behaviour could be terrifying. Dr Munday spoke of such patients being persuasive liars and manipulators, yet the handling of such patients does not seem to have been discussed within the Centre. 7. Dr Ahmed has been a medical practitioner for over 30 year and does not appear to have come to attention for this type of conduct. Between 2011 and 2018 he had attended to nearly 83,000 patients. He has come to attention in relation to seven of those patients and his treatment of them between 2011 and 2015. 8. The evidence given by Dr Ahmed and Dr Munday, supported in part by the evidence of fellow practitioners who gave character references, painted a disturbing picture of a corporate medical Centre apparently providing multiple drugs of addiction in a quick turnaround method referred to by Dr Munday as the practice of six minute medicine. Reference has been made to the number of patients seen by Dr Ahmed but the Tribunal was informed that he was not the busiest of practitioners operating out of the Centre. Dr Munday's evidence was that Dr Ahmed was not doing anything different to other doctors who bulk billed under the Medicare remuneration system. It appears that when Dr Ahmed came to the Centre from Queensland in 2011 he entered a very different medical "culture". A working medical environment, as the one described, has most likely contributed to the findings of prescribing and record keeping of Dr. Ahmed and has the propensity to encourage the propagation of substandard performance by other practitioners, if internal measures of reflection, open discussion and rectification do not take place.
There are a number of significant subjective matters that have assisted the Tribunal in reaching its decision in this matters: 1. Dr Ahmed has practiced under conditions placed on him by the Medical Council in March 2016. For nearly three years he has complied with those conditions and has not come to adverse attention again. Those conditions prohibited him from prescribing Schedule 4D and 8 drugs. It is apparent that this prescribing was at the heart of his misconduct. 2. For nearly three years he has been under the Supervision of Dr Munday who reports most favourably on his clinical performance, noting that his mode of practice has changed and that his notes are far more detailed and complete. Dr Ahmed is said to take more time with patients and has not been involved in inappropriate prescribing. He was described as showing himself to be of sound professional character. These comments were generally endorsed by three other doctors who were able to observe Dr Ahmed's approach to medical practice at the Centre 3. Dr Ahmed accepted the vast majority of the matters raised against him when he filed his evidence in the Tribunal and conceded that he was guilty of unsatisfactory professional conduct. His approach provides some evidence of his insight into his conduct and the reasons for it and his remorse. 4. Dr Ahmed has undertaken a number of measures to correct his deficiencies and to improve his clinical skills. These measures include participation in a number of course, importantly including the Monash University course concerning general practice prescribing. He has kept informed by extensive reading of medical journals. In addition he has commenced a weekly session of observation with Dr Manohar, a pain management specialist. 5. He has not self-prescribed for the last four to five years and has appointed an independent general practitioner outside of the Centre. In doing so he has accepted Medical Board guidelines and acknowledges the inadvisability of practitioners treating themselves or members of their family.
During the hearing it was made clear that Dr Ahmed would like to be able to prescribe Schedule 4D and Schedule 8 drugs in the future. The Tribunal is not satisfied that, at this time, it is appropriate for him to do so. During his cross examination a number of questions were put to him by the Professional members of the Tribunal in seeking to establish Dr Ahmed's level of knowledge regarding the effects of certain drugs and the system of regulation. His responses to those questions suggests that his understanding of these matters is still not satisfactory. The conditions will therefore continue to prevent him from prescribing those drugs . While he continues to have a less than satisfactory understanding of these matters he runs the risk of repeating the type of prescribing that has brought him to notice in this case. The Tribunal also sought to determine Dr Ahmed's level of competency on current ethical and legal expectations on physicians in relation to their moral and professional responsibilities for reducing harm to patients and the broader community. The Tribunal was not satisfied that Dr Ahmed fully comprehended this aspect of his responsibilities and demonstrated a lack of insight into his moral obligations and ethical responsibilities..The other conditions specified in Annexure "B" have largely been suggested by the parties and were not opposed by Dr Ahmed.

Health Care Complaints Commission v Ahmed

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Judgment (6 paragraphs)

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Cases Cited (7)