Health Care Complaints Commission v Barnouti

The HCCC evidence.

1. The broad facts of this matter describe how the Respondent, during an operation the Respondent performed to insert into a pocket created surgically in Patient A's chin, an implant, the effect of which was to enhance the appearance of the chin to Patient A's desired outcome, the implant ejected itself from the designated pocket and fell onto the floor of the operating theatre. The Respondent immediately picked up the implant and placed it in a bath of Betadine. Thereafter, he proceeded with the operation and completed encasing the implant in Patient A's chin. There were omissions in the Operation Report, which the Respondent was required to complete for the hospital, which included that the implant had fallen onto an unsterile surface before being it was bathed in Betadine and inserted into the patient's chin. Further, although one of the nursing staff present during the procedure sought to complete a Riskman Report of the adverse incident, she was unable to do so because of technical computer problems. The Respondent failed to confirm that a Riskman report had been completed.
2. On the Respondent's part, he acknowledges the omissions from the operating report and that a Riskman Report was ultimately not logged (made), however, he denies there was any attempt or intention by him to hide the mishap and he relies on evidence of other actions to support that case.
3. Although we have stated the gravamen of the case above, it is necessary to consider some other details which arose from the documentary and oral evidence.
4. The first notice of a complaint emerging from the Respondent's conduct was notified to the HCCC in an anonymous complaint lodged through the HCCC web site. We do no more than to note that fact. Given the complaint was anonymous, we cannot give it any measurable weight, in this determination, other than to note it caused the commencement of action which lead to the parties being before us in this hearing.
5. The anonymous complaint gave rise to a hearing convened by the Medical Council of NSW pursuant to section 150 of the National Law and heard by Delegates of the Council. That hearing took place on 30 September 2021. A transcript of the Respondent's evidence to that hearing is contained between pages 20 and 53 of Exhibit A1. We will, where necessary refer to particular evidence given in that hearing, where we consider that is necessary.
6. The outcome of the section 150 hearing before the Delegates of the Medical Council was that, with effect from 8 October 2021, conditions were placed upon the Respondent's registration. The conditions included that the Respondent be subject to supervision, at Category C level, as specified in the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time). The Respondent was also to be subjected to an audit of his medical records by a nominee of the Medical Council, within six months of the order imposing the conditions.
7. On 2 February 2022 the Respondent applied to the Medical Council for a review of the conditions imposed on his registration on 8 October 2021. There was a hearing convened before the Delegates of the Medical Council on 19 May 2022 to review those conditions. A copy of the transcript for that hearing is in Exhibit A1 at page 65 and following.
8. On 19 May 2022 the Medical Council determined to set aside the decision of 8 October 2021 which imposed conditions on the Respondent's registration. The Delegates concluded their decision with the following: "The evidence revealed that Dr Barnouti had taken steps to overcome areas of concern. We considered that there was no longer a risk to the health and safety of the public and the decision to impose conditions should be set aside."
9. Included in Exhibit A1, at page 82, is an index of the documents before the Medical Council's Delegates for the section150A hearing on 19 May 2022. The documents included a copy of the letter written by the Respondent to the Medical Council and dated 19 May 2022. In that letter the Respondent set out information in relation to Patient A, including that he had performed subsequent surgery on Patient A to remove the chin implant, the subject of the complaint, and replace it with a sterile version. The Respondent reported that there had been no growth of bacteria on the original implant, nor in the surgical site.
10. The Respondent, additionally, in his letter of 19 May 2022 to the Medical Council, stated that he was aware that the field of cosmetic plastic surgery has increasingly large numbers of complaints. He commented that the subject complaint was not made by Patient A, rather it was made by a colleague. He informed that he sees, treats and operates on around 3000 patients each year. In 2022 he had seen around 1000 patients and received no complaint. In 2021 he received two patient complaints. Both were investigated and discontinued. He had seen around 3000 patients that year. In both 2019 and 2020 he had seen about 3000 patients in each of those years and he received no complaints.
11. The Respondent provided to the Medical Council with testimonials from five specialist medical practitioners who stated they had worked with him. He also attached a letter from the Director of Clinical Services at Hunters Hill Private Hospital which stated that the Respondent's "complication and readmission rate for patients admitted to Hunters Hill private Hospital (HHPH) is below and/or in line with other Specialist Plastic Surgeons at HHPH for the period July 2013 to July 2018."
12. One of the documents included in Exhibit A1 is a letter from the Director of Clinical Service at Westmead Private Hospital. It is dated 20 April 2022 and advises that the Respondent "had no complications, readmissions, or take back for the period January 2021 to April 2022." A letter in similar terms is included in Exhibit A1 from the General Manager, Virtus Specialist Day Hospitals. Likewise, a letter from the Sydney Private Hospital provides a report for the months from October 2021 to 17 February 2022, advising no recorded readmissions, take backs, complications, or major clinical issues. It is not clear from those letters how many operations the Respondent had conducted in those facilities during the stated periods. We have assumed the authors would not have written the letters if the Respondent had performed no operations during the stated periods.
13. At page 129 and following is a response signed by the Respondent and dated 27 August 2021. The document contains a detailed response to the anonymous complaint served on the Respondent by the HCCC by letter dated 19 August 2021. In that response we note the following portions, which were drawn to our attention by the HCCC, during the hearing. 1. At paragraph 11: "During the course of carrying out the procedure I made an error of judgment. Approximately 30 to 40 minutes into the procedure, after I had just opened up the patient's chin, the nurse assisting, passed me the sterile implant to be inserted in the chin. Unfortunately, I dropped the sterile implant onto the floor. The implant was on the floor for less than 5 seconds. I instinctively picked it up and placed it immediately into a dish filled with Betadine. I then changed my gloves and continued to wash the implant thoroughly with Betadine, shelled out all outer layers of the solid silicone implant, discarded the outer layers that were in contact with the non-sterile surface, washed the remaining implant with new sterile Betadine, washed the surgical field and cavity with new sterile betadine and changed my gloves." 2. At paragraph 13: "The patient was administered two doses of intravenous antibiotics. She was commenced on a full course of oral antibiotics". 3. At paragraph 14: "In hindsight, I acknowledge that it was not appropriate to re-use the implant. I have apologised to both the patient and the hospital management for this error of judgment. This is the first time I have ever dropped an implant in 22 years of surgical experience". 4. At paragraph 15: "The decision to re-use the implant was a spontaneous act without sufficient consideration". 5. At paragraph 16: "At the time this occurred, I did not immediately record the error, however, I brought the patient back for her first post operative follow up four days post-surgery on 1 February 2021 (as opposed to my usual 7 days), sat down with her and provided full open disclosure to her and her parents at that time. I provided her with the enclosed letter dated 1 February 2021 which was also placed in the Hospital records." 6. Paragraph 18: "I also strongly refute that I am a 'reckless' surgeon and that I have a previous history of using expired implants." 7. Paragraph 19: "I have learnt from this incident and now always order spare implants for all procedures to avoid a similar future incident."
14. The HCCC relies upon the statements, made in writing and contained in Exhibit A1, from a number of witnesses, none of whom were required for cross-examination. The first statement is that of Patient A which is set out at p.167 of Exhibit A1. In that statement we note the following, in particular. 1. On 28 January 2021 Patient A had rhinoplasty, septoplasty and chin augmentation surgery performed by the Respondent. 2. The first follow up appointment was arranged for 4 February 2021, "but was rearranged to 1 February". "If I remember correctly, I think it was me that asked for the appointment to be rearranged because I was no longer available to attend on the original date." (We note the Respondent in his oral evidence refuted that last portion of Patient A's statement. He said he had particularly decided to bring forward the consultation to 1 February.) 3. At the consultation on 1 February 2021 the Respondent informed Patient A that the implant he was proposing to use in the operation had fallen on the floor of the operating theatre. The Respondent explained he had picked up the implant and "sterilised it as much as possible", and then continued with the surgery. The Respondent had provided Patient A with a letter dated 1 February 2021. Patient A signed the letter to say she had read it. The Respondent had offered to perform any replacement surgery, should that be required, at his own cost. 4. At an appointment with the Respondent on 18 June 2021, Patient A informed the Respondent she could feel a small lump on the left side of her chin. The Respondent suggested an injection to the chin to "even things out". That was provided by the Respondent. 5. On 4 October 2021 in a further consultation the Respondent had "said he would prefer to replace the chin implant completely rather than reshape the one that was in my chin."… "Dr Barnouti said he would feel better about removing the implant that had been dropped and also said there would be a better outcome in terms of shape.".. "Dr Barnouti said he would meet all the surgical costs and I would not have to pay anything." 6. Further surgery was performed by the Respondent at Hunters Hill Private Hospital on 17 November 2021.
15. A statement by the anaesthetist who provided the anaesthetic service to Patient A on 28 January 2021, is included at pages 177 and following of Exhibit A1. In that statement we note: 1. During the operation the Anaesthetist heard the words "Oh dear" and looked up to see why the words had been used. He observed that the implant was in a kidney dish in Betadine, which is not uncommon. He remembered the Respondent said that he was cleaning the implant. 2. The Anaesthetist heard the Respondent make comments to the room like, "It will be alright" and "I am happy to proceed". 3. He did not specifically remember the Respondent changing his gloves at that time, however, he said: "he is normally meticulous about that sort of thing during his surgeries". 4. It was not until after the Anaesthetist had observed the implant in the Betadine bath that he gathered from other conversation in the room that the implant had fallen on the floor. 5. The Anaesthetist said nothing to the Respondent at the time of this incident and upon reflection considered he should have "spoken up". He considered, although having no knowledge about feasibility, that a replacement could have been ordered on the spot.
16. A statement by the scrub nurse, who was working with the Respondent on 28 January 2021 during the operation on Patient A, is included in Exhibit A1. We note the following from her statement: 1. The scrub nurse was accustomed to working with the Respondent in operations and had done so on many occasions prior to 28 January 2021. 2. She recalled that in the operation the Respondent had made an incision in the patient's chin. She had handed the Respondent the implant to be used in the procedure. She observed he then began to shape the implant. Having cut parts of the implant to shape, the Respondent checked to see if it would fit the chin cavity he had created. He then made further adjustments and again checked to see the fit. On one of the occasions, while the Respondent was attempting to fit the implant, "the implant flung out of the chin and landed on the floor." 3. "Dr Barnouti picked up the implant quickly and put it into a pot containing Betadine." .."I remember Dr Barnouti asking someone for a new set of gloves after he picked up the implant." "I do not recall if he changed his gloves or not." 4. The scrub nurse thought a replacement implant could have been delivered to the operating theatre within 1 or 2 hours of a request being made. However, she conceded she had never before been in an operation where an implant had fallen on the floor. 5. The scrub nurse stated: "Dr Barnouti said words to the effect of: 'The implant fell on the floor. We need to write an incident report and I'll tell the patient.' He did not specifically ask me to write the incident report." 6. The scrub nurse stated that she was "uneasy about Dr Barnouti's decision to use the implant." She decided to make an Incident Report. She completed the report on the hospitals "RiskMan" system, however, when she tried to save the report "the computer screen kept freezing". She tried 6 or 7 times. She ultimately became aware that the "RiskMan Report" she had endeavoured to make was not saved to the system. She later, on 12 March 2021 wrote some of the report which was saved to the Hospital system. 7. The scrub nurse stated that she had thought an incident report would have been written or discussed with the manager "by other scout nurses as Dr Barnouti was speaking to them when he said we need to write an incident report."
17. At page 184 of Exhibit A1 is a statement by a "scout nurse" who had been assisting in the operation with Patient A on 28 January 2021. We note in particular the following: 1. She remembered Dr Barnouti was handling the implant when it fell from his hands onto the floor. She said: "He immediately picked it up and asked for some Betadine. Dr Barnouti placed the chin implant into the Betadine and let it soak." She said: "Dr Barnouti reassured me that it was okay to use the implant after it had soaked in the Betadine and that it was not a problem to continue with the surgery."
18. There are two further statements from nurses, who were present in the operating theatre for the operation on Patient A on 28 January 2021, however, their statements do not materially add to the evidence we have set out from the other persons present.
19. At page 190 of Exhibit A1, is the material which was provided to the HCCC expert, Ass. Prof. Stern, requesting his report. The material is extensive.
20. The Report of Ass. Professional. Stern is set out at page 208 of Exhibit A1. We note the following in particular from that report: 1. In relation to what should have occurred once the implant had fallen on the floor, Ass. Prof. Stern opined: "The implant should not have been used at that time. If there was no backup prosthesis, that component of the patient's surgery should have been abandoned, unless a new prosthesis could be delivered from the supply company within a reasonably short time frame." Ass. Prof. Stern opined that the Respondent's conduct in continuing to use the prosthesis was conduct which was significantly below what is reasonably expected of a practitioner with an equivalent level of training as the Respondent. 2. Ass. Prof. Stern opined that the failure of the Respondent to document the surgical misadventure was significantly below the standard expected from the Respondent. 3. In relation to the making of the RiskMan Report of the incident, Ass. Prof. Stern stated that: "It is generally accepted that if the issue being reported through this system pertains to a technical detail of the surgery itself, the report should be submitted by a member of the surgical team. Everything to do with the performance of the surgery is the responsibility of the surgeon and his team, including the report of any misadventure to ensure the detail in the report is accurate. If this had been done by Dr Barnouti, at the time of the surgery, then I do not feel that there is a clear need to separately notify a member of the Hospital Executive as this is the purpose of the RiskMan Report.
21. We note Ass. Prof. Stern, does not particularise who he considered would be included in his description of "the surgical team".
22. There were two aspects of the evidence of Ass. Prof. Stern which gave rise to statements made by the Senior Members of the Tribunal and which we have asked the HCCC to assist us with by the provision of a further submission in writing. Both the matters, which we will refer to below, do not detract from our ultimate acceptance that the HCCC has established its case, as specified in the Complaint (the Respondent is guilty of unsatisfactory professional conduct). However, it may have impact upon our determination as to the seriousness of the Respondent's conduct and the making of an appropriate protective order. The two matters raised by the senior members of the Tribunal, and placed on the record during the hearing, are summarised as follows: 1. In relation to Ass. Prof. Stern's opinion that the Respondent should have either personally made the RiskMan Report of the incident or alternatively checked the Report made by a member of the surgical team to ensure the detail was correct, each of the Senior Members of the Tribunal hearing this matter, stated that they do not look at a RiskMan Report which has been prepared by one of their surgical team, in relation to an operation performed by that Senior Member, as a surgeon. Dr Mark Sheridan is a neurosurgeon and Dr Newton is a recently retired plastic surgeon. 2. Dr Newton was concerned about a suggestion that the Respondent could have sought a replacement implant for the chin and while he waited for the implant to arrive, could have proceeded with the Rhinoplasty operation. Dr Newton stated on the record that such a course of action could give rise to the possibility of cross-contamination, between the two surgical sites, which are close in proximity.
23. At page 225 of Exhibit A1 there is a copy letter from the Director of Clinical Services and Quality dated 25 January 2022 and addressed to an officer of the HCCC. In that letter, on page 226, the writer sets out the following: "The RN said Dr Barnouti had asked her to complete an incident notification. The RN attempted to complete the incident notification online, however, the online notification had not been saved." We note the letter is written 12 months following the procedure. It does say at paragraph 6, that the writer was made aware of the incident on 12 March 2021 and on that day he spoke with the Registered Nurse who was the scout nurse at the time of the incident on 28 January 2021.
24. Further in that letter on page 226, the writer records: "A short time after my meeting with the RN I contacted Dr Barnouti who confirmed the same details of the incident provided to me by the RN. Dr Barnouti said he had requested the RN, at the time of the incident, to complete an incident notification."
25. Included in Exhibit A1 is a copy of the surgical notes/medical records created by the Respondent in the file created for Patient A. At page 244 is a note, made by the Respondent, which sets out the "frank discussion" he had with Patient A on 1 February 2021, being the first consult post operation. It records that he informed the patient of the detail of the incident and in particular, the dropping of the implant and subsequent insertion of that implant into the patient's chin.
26. Exhibits A2 and A3 provide detail of the Respondent's registration as a medical practitioner in Australia. It was not until 29 January 2021 that there is any note of a condition being placed on the Respondent's registration.
27. Exhibit A5, is a copy of the letter sent to the Respondent by the CEO of the Hunters Hill Private Hospital dated 17 May 2021. It sets out the conclusion the hospitals internal investigation. It set out that a report was required to be made to the HCCC and encouraged the Respondent to self-notify to Ahpra.
28. We note our consideration of the evidence, provided by the HCCC, is necessary to enable us to be satisfied that the HCCC has made out its case in establishing the Complaint alleged in its Application filed in the Registry, and also, to assess the seriousness of the conduct for the purpose of determining an appropriate protective order. Given that the Respondent, represented by legal practitioners, accepts that he is guilty of the complaint raised and that the HCCC has established he is guilty of unsatisfactory professional conduct as defined by section 139B(1)(a) and section 139B(1)(l), the consideration of whether the HCCC has established its complaint, needs be less rigorous than is the case where there is a contest on the facts and law.
29. The Respondent tendered his documentary evidence which had been filed on 29 August 2023 and which was accepted into evidence and marked as Exhibit R1. We note the evidence is relied upon to address matters relevant to the making of any protective order in this case and not to challenge a finding that the Respondent is guilty of unsatisfactory professional conduct pursuant to s.139B(1)(a) or 139B(1)(l).
30. At Tab 2 in Exhibit R1, the statement of the Respondent is set out. When the Respondent gave oral evidence, he told us the contents of the statement were true and correct. In the Statement we have particularly noted the following evidence. 1. The Respondent currently holds visiting rights at Hunters Hill Private Hospital (HHPH), Sydney Private Hospital and Westmead Private Hospital. He also has accreditation as a VMO at Bankstown Public Hospital. He has held the visiting and VMO positions at those hospitals since 2009. 2. The Respondent describes the "mishap" with the chin implant during the procedure at HHPH on 28 January 2021. He states as follows: "Approximately 30-40 minutes into the procedure, after I had just opened up the chin, the nurse assisting passed the sterile implant to me to be inserted into the chin. Unfortunately, I dropped the sterile implant onto the floor. The implant was on the floor for a few seconds. I instinctively and immediately picked it up and placed it into a dish filled with Betadine. I then changed my gloves, washed the implant thoroughly with Betadine, shelled the outer layers of the solid silicone implant, discarded the outer layers (which had come into contact with the floor), washed the remaining implant with new sterile betadine, washed the surgical field and cavity with new sterile Betadine and again changed my gloves." 3. The Respondent stated: "In hindsight, I acknowledge that it was not appropriate to use the implant after it had been dropped onto the floor. I have apologised to both Patient A and the Hospital management for my error of judgement. This was the first and only occasion that I have dropped and implant in 24 years of surgical experience." 4. The Respondent stated further: "The decision to re-use the implant was inappropriate and made with insufficient consideration. At the time I thought it would be acceptable to re-use the implant as I discarded the non-sterile outer part of the solid silicone, implant, thoroughly re-sterilised the remaining part of the implant, maintained full, sterile surgical field, and I did not have a spare implant available to use. On reflection, I completely accept that the appropriate course would have been to perform the septorhinoplasty while waiting for a new implant to arrive." 5. Following the procedure on 28 January 2021, the Respondent stated that he arranged for the first post operative follow-up consultation with Patient A, to take place on 1 February 2021. On that occasion, he made a complete disclosure to both Patient A and her parents, of the mishap, which had occurred during the operation. He provided the patient with a letter dated 1 February 2021, which was also placed in the Hospital records. 6. In consultation with Patient A and her family, the Respondent performed another procedure to remove, and replace the chin implant at no cost to the patient. At the time the original implant was removed, the Respondent caused cultures to be undertaken of both the chin pocket and the original implant and the reports stated there was no growth of bacteria detected. 7. The Respondent stated that, following the incident of the dropped implant, he had arranged for a spare implant to be available at the time of all procedures. 8. The Respondent acknowledged that the operation report, which he completed in relation to Patient A's procedure, should have included a notation that he had used the dropped implant. 9. During the procedure with Patient A, the Respondent informed one of the nurses assisting, that an incident report would need to be undertaken and that he would personally inform the patient of the incident. The Respondent said he understood that the nurse would log the incident report. He accepts he should have personally insured that had occurred. 10. The Respondent has returned to undertake operations at the Hunters Hill Private Hospital on 3 to 4 days a month. 11. Following a hearing before the Medical Council, the Respondent had conditions placed on his registration, which included Category "C" supervision. At a subsequent Medical Council hearing, those conditions were removed. Before that time, the Respondent had completed educational courses to ensure he had learnt from the incident. 12. Following the imposition of conditions on his registration, the Respondent was the subject of a medical records audit by the Medical Council. He has also undergone three hospital audits.
31. Included in Exhibit R1 is a copy of the medical record audit dated 11 May 2022. The outcome was to note a clearly satisfactory audit.
32. The Respondent has included in Exhibit R1 an updated reference from Dr Mark Kohout, Specialist Plastic Surgeon, dated 21 August 2023. At the conclusion of that reference, Dr Kohout wrote: "I have found Dr Barnouti to be a doctor with high ethical standards, and excellent surgical skills. He is held in high regard by his colleagues and by his patients. He is a caring professional and a generous person in private life."
33. The Respondent included a further updated reference from Dr Craig J Coghlan, Specialist Anaesthetist, dated 22 August 2023. Dr Coghlan concludes his reference with the following words: "I unreservedly support Dr Barnouti and can unequivocally confirm that he is of good character and widely supported and respected by his peers and colleagues."
34. The Respondent was required for cross-examination by the HCCC. We note the following from that oral evidence. 1. The Respondent was asked to accept that there were many similarities between the facts stated in his letter dated 27 August 2021 to the HCCC and the facts stated in his statement set out in Exhibit R1. He did accept that was so. He agreed that when he was preparing his statement (as set out in exhibit R1) he probably had regard to what he had written in his letter of 27 August 2021 to the HCCC. 2. It was put to the Respondent that he had omitted to use the word "spontaneous" in paragraph 15 of his statement (as he had used it in paragraph 15 of his letter to the HCCC) because that word implied that he had been reckless in his action. The Respondent denied that. 3. The Respondent was taken to page 228 of Exhibit A1 which contained the 2nd page of a letter he had written to the CEO of the Hunters Hill Private Hospital, dated 24 May 2021. He was asked about his use of the words: "This is the first time where I have failed to practice within the standards." He was asked what "standards" he was referring to. He said he was referring to providing the best to the patient. "It is a combination of standards". He said: "I know what is acceptable standard." 4. The Respondent was referred to page 56 of Exhibit A1. There, as part of the decision of the Medical Council, the following is set out: "As noted there are 23 previous complaints relating to this practitioner." The Respondent was asked to recall that he was asked about complaints made against him during the s.150 hearing. He said it had been raised. He did not know how many complaints had been made against him however, he was prepared to accept it could be 23. He said a number had been discontinued. (We note there was objection to this line of cross-examination.) The way in which the question was put to the Respondent suggests the complaints were formal complaints made to the HCCC or perhaps the Medical Council of NSW. Notation: We pause here to note, the evidence of prior complaints made against the Respondent, appears to come from what is set out in the Medical Council's s.150 decision dated 25 October 2021, which can be seen at page 54 of Exhibit A1. There the following is set out: "He has been the subject of 23 complaints: most of his complaints relate to dissatisfaction regarding the outcome of cosmetic surgery. Fourteen of the complaints were discontinued. This is Dr Barnouti's second section 150 hearing. He has also undergone two Performance Assessments, two Performance Review panels and a section 150A." Further we note that at page 56 of Exhibit A1, in the decision of the Medical Council, it is stated that there were three relevant complaints. The first was in April 2012 where the complaint was of "severe facial infection after a chemical peel." It was also noted at the Performance Interview that his medical record keeping was incomplete and disorganised." In 2018 there was a complaint about poor outcome from a rhinoplasty procedure. There was a Performance Assessment. "The panel was concerned Dr Barnouti had not adequately assessed the patient, and they were also concerned regarding his handling of the complaint". The third complaint noted by the Medical Council in their reasons was in December 2019. "The complaint arose following the admission to ICU of Dr Barnouti's wife. She had developed cardiorespiratory failure from suspected fat emboli during a procedure performed by Dr Barnouti at his practice rooms". In January 2020 at the section 150 arising from that complaint, "the delegates identified significant concerns regarding Dr Barnouti's lack of judgement in operating on his wife and a condition was imposed for him, not to treat or prescribe for himself or his family". At page 22 in Exhibit A1 a copy of page 3 of the Transcript of the s.150 hearing is set out. There at line 4 Dr Eyers, one of the Medical Council delegates conducting the hearing sets out: "I would also like to inform the hearing that the focus of this hearing is going to be on the most recent complaint, but the documentation we have includes details of a large number of previous complaints which are before us for consideration." The Transcript of the s. 150 hearing on 30 September 2021, at page 51 of Exhibit A1, sets out a response from the Respondent which infers that he had seen the documents which list those complaints. The Respondent made specific reference to page numbers of a document and the name of patients set out therein. We have not been directed specifically, by the HCCC, to a copy of those documents which were before the delegates hearing the s.150 proceeding. No objection was taken to the admission into the evidence before us of the detail in the decision of the delegates of the Medical Council who provided their reasons following the hearing on 30 September 2021. 1. The HCCC pressed further questions about prior complaints. The Respondent conceded that at least one of the complaints led to the Medical Council requiring the Respondent to undertake a Performance Assessment. 2. The Respondent agreed that he had been the subject of a complaint arising from a procedure which he had undertaken upon his wife in 2020. He agreed there had been a s.150 hearing into that complaint. He agreed the outcome was that he was not to treat or prescribe for members of his family. He said that at the time he treated his wife he was not aware of the requirements not to treat members of family. Since then, he said, he has not treated any family member. 3. In relation to the procedure on 28 January 2021 the Respondent was asked if he had placed the implant in a dish of Betadine before it fell on the floor. He said he had. He was asked if he had put the implant into Betadine again after it fell on the floor. He said her had cut the outer surface of the implant after it had fallen on the floor. He said he may have cut the edges off the implant before it fell. 4. The Respondent was asked if he had spoken to any members of the surgical team after it had fallen on the floor but before he decided to insert the implant into Patient A's chin. The Respondent said that he did not have any other surgical assistant on that day, such as a Registrar. (We note that answer suggests that as far as the Respondent was concerned the description "surgical team" comprised medical practitioners and not nursing staff.) 5. Given that the Respondent had never experienced the circumstances which confronted him in the procedure on 28 January 2021, he was asked if he could have called a colleague to discuss what he should do. He said he could have and his failure to do so was a lack of insight on his part. 6. The Respondent agreed the incident had not been included in the operation report. He agreed it should have been. He said he had requested "the nurse" to make an incident report (referred to as a RiskMan Report in HHPH). The Respondent said he did not have a Registrar with him on that day and that the operation report is usually prepared by either the Registrar or the surgeon. He said there had been a copy of the letter he had written to Patient A (1 February 2021) placed on the Hospital record and that set out exactly what had occurred. He said there was no intention on his part to hide the incident. 7. The Respondent denied that he had said in the "M and M" in May 2021 that he would do the same thing again. 8. The Respondent denied he had failed to inform the patient about the possibility of longterm infection arising from an implant procedure. Although it had not been included in the letter he had written to the patient on 1 February 2021, he said he had spoken to her about it. 9. The Respondent conceded that he teaches compliance with standards as part of his university work. 10. The Respondent agreed that he had assumed the RiskMan Report in relation to the incident had been completed in the Hospital records however, he did not check that had happened.
35. The HCCC provided a written submission which was marked as MFI 1. A further written submission, provided by the HCCC and requested by us, was marked as MFI3.

The HCCC's Submissions

1. The HCCC submits that the issue to be determined by the Tribunal is whether a Reprimand, as sought by the HCCC is the appropriate protective order to make in this matter. The HCCC seeks findings that the Respondent is guilty of unsatisfactory professional conduct pursuant to sections 139B(1)(a) and 139B(1)(l). The HCCC reviewed the evidence it relied upon to support the findings sought.
2. In relation to the protective order it sought, the HCCC referred the Tribunal to s.149A(1)(a) of the National Law. In support of its' case that a Reprimand should be applied to the Respondent the HCCC submitted the following: "a. The practitioner's conduct in particular 1-3 fell significantly below that expected of a practitioner of equivalent training and experience. b. The practitioner had been practising surgery for 15 years at the time of the incident. c. The practitioner's conduct in particulars 1-4 was improper, judged objectively against the Medical Code of Conduct and the Royal Australasian College of Surgeons Competencies. a. The practitioner was "reckless" in his decision to reuse the dropped implant because: i. He made the decision whilst the implant was soaking in betadine in the space of 30 seconds. ii. It was a spontaneous decision. iii. He didn't consult with any of his team. iv. He didn't call any of his peers to seek advice. v. He didn't request a replacement implant, even though he said that was the preferred course. vi. He was aware of the possible risks of short-term infection of using a non-sterile implant - that is why is prescribed the patient antibiotics. vii. He was aware of the possible risk of long-term infection but was of the view that was too remote. viii. At the time of the incident, he was aware of his professional obligations to meet professional standards and competencies of practice as well as the Code of Conduct, and the Ramsay Health Facility Rules. ix. At the time of the incident, he was a lecturer at UNSW, and he taught the professional standards and codes of conduct to his students. b. The Commission submits the practitioner's failure to document the misadventure in the operation report is evidence of his reckless conduct. The Commission submits that the Tribunal would reject the practitioner's evidence that it was neither a deliberate omission, nor a careless mistake, in circumstances where he gave evidence that the incident was significant. c. In circumstances where the practitioner has had previous complaints referred to the Medical Council including at least one Performance Assessment and one matter the subject of s.150 proceedings involving surgery that he performed on his wife, the Commission submits that the practitioner has already received the benefit of a "caution". In that matter conditions were placed on his registration [1] because there was a concern over his conduct. The practitioner gave evidence that at the time he was unaware of his obligations under the Code of Conduct not to treat family members. (We note we have not been directed to any documentary evidence of the Respondent having received a formal "Caution" from the Medical Council following the hearing of the s.150 inquiry into the complaint made following the admission of the Respondent's wife to ICU, as referred to above. We do note however, that the Council had power pursuant to s. 148E of the National Law to caution a practitioner.) d. The practitioner came across in evidence as remorseful, however the Commission questions whether his insight is genuine. e. The practitioner gave evidence that he wished he had a Registrar or someone had told him not to do it (that is, reuse the dropped implant). He said it was a busy day. He said words to the effect "if I had a senior registrar, we probably wouldn't be here today". This evidence is similar with that he gave at the s.150 proceedings where he initially blamed his colleagues for his error, stating that if only they had told him it was wrong, he wouldn't have done it. f. In evidence when asked why he did not document the misadventure in the operation report or why he did not telephone a peer for advice, his explanation was "lack of insight". These responses demonstrate that the practitioner may not fully comprehend his actions. g. The practitioner denied he said that he "would do it again" (that is reuse a dropped implant) when at the Plastics department meeting in May 2021. However, he also acknowledged that he wasn't properly prepared to discuss the incident and may have not presented on it as well as he could have. [2] He gave evidence that he didn't have the patient's file on hand. h. The practitioner did disclose the incident to the patient at the first post operative consultation and provide adequate follow up care, however in his letter to her, he did not disclose the signs and symptoms of chronic and late infection. The Commission submits that this demonstrates the practitioners lack of insight into the potential consequences of his actions. i. The practitioner was vague in his evidence as to how his statement of August 2023 came into physical existence. The Commission submits that the changes that were made to the August 2023 statement were made to lessen the seriousness of his conduct. j. The practitioner's reckless conduct deserves denunciation, and a reprimand must be recorded on the National Register under s.225(j) of the National Law. There is no obligation for a caution to be recorded. k. By recording a reprimand on the register, the Tribunal would be sending a message to the public and the medical profession, that reckless disregard of the code of conduct and professional standards will not be tolerated. l. It is a public record that a practitioner's conduct has fallen below the standard expected of such a professional. It sends a message of deterrence to other practitioner's and upholds the reputation of the profession. [3]
3. The Respondent also provided a written submission. In that submission the Respondent addressed the requirement in this case for the Tribunal to be satisfied the Respondent is guilty of unsatisfactory professional conduct, as alleged by the HCCC and then, if so satisfied, consider whether a protective order should be made.
4. The Respondent addressed sections 3 and 3A of the National Law, noting the amended provision applicable to NSW, in section 3A(1) and (2)(c) of the "Guiding Principles: Section 3A (1): The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2)(c): restrictions on the practice of a health professional are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
5. The Respondent submitted: "Dr Barnouti, by his recognition of the errors that he made, demonstrates that he is a medical practitioner who practices in a competent and ethical manner (as intended by the National Law). He immediately recognized that the incident of dropping the chin implant ought to be documented (and called for its documentation), he accepted that he ought to have also documented the event in the Operation Report. In either event, he did inform the patient, and performed further surgery to remove and replace the implant without cost to the patient."
6. In relation to the protective order sought by the HCCC, the Respondent submitted: "27. The HCCC submits that Dr Barnouti should be the subject of a reprimand.
7. The Tribunal is entitled to form an impression of Dr Barnouti from his conduct of the proceedings. He admits the Complaint and did so at earliest opportunity. That is of itself evidence of appropriate insight.
8. The jurisdiction exercised in making orders is often referred to as 'protective' not punitive: Health Care Complaints Commission v Litchfield [1997] NSWSC 297 (Litchfield); (1997) 41 NSWLR 630 (at 637).
9. Whether the degree of seriousness of conduct is such that there is no appropriate alternative to an order placed upon Dr Barnouti's registration is a matter of degree and judgment: see, by way of analogy, Sabag v Health Care Complaints Commission [2001] NSWCA 411 (at [82]); Health Care Complaints Commission v Jangodz [2016] NSWCATOD 71 (at [18]).
10. There are appropriate alternatives to an order for reprimand: no action, or the making of a caution.
11. It is accepted that in determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: section 3A of the National Law.
12. There are important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order. These include the reminder to other members of the profession of the public interest in maintaining high professional standards (the deterrent aspect to the protective nature of the jurisdiction: Health Care Complaints Commission v Do (ibid) ) and the unacceptability of certain kinds of conduct and the maintenance of confidence in the high standards of the profession: New South Bar Association v Meakes [2006] NSWCA 340.
13. That is not to say that the Tribunal cannot comment on matters of practice unless it is accompanied by the issue of a protective order.
14. In determining appropriate orders, the Tribunal is required to consider the whole of the Dr Barnouti's conduct: Gad v. Health Care Complaints Commission [2002] NSWCA 111 (at [55]).
15. However, the object of protection of the public includes specific and general deterrence: Health Care Complaints Commission v Ledner [2017] NSWCATOD 90 (at [64]), referring to NSW Bar Association v Hamman [1999] NSWCA 404.
16. There is no need for specific deterrence in this case: it cannot be demonstrated that Dr Barnouti needs to be deterred from any course of conduct (nor that he might again repeat the conduct).
17. As to the nature of protective orders and general deterrence, in Prakash v HCCC [2006] NSWCA 153, at [91], Basten JA observed: …The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.
18. The proceedings are not truly a suitable vehicle for orders motivated by considerations of general deterrence: Dr Barnouti communicated about the event with staff present during the procedure, and with the patient. He did not engage in conduct directed at concealing the event. Other than reminding practitioners of the importance of the content of a patient's Operation Report (which may be addressed in the Tribunal's reasons even in the absence of the making of a protective order), little more need be done.
19. If Dr Barnouti had not sought that a Riskman incident report be created and engaged in such fulsome communication with the patient (and remediation) considerations of general deterrence would come to the fore.
20. The risk to the public (in consequence of which the HCCC seeks protective orders has not been articulated with specificity): see as to that issue, Ghosh v Medical Council of New South Wales [2020] NSWCA 122, (at [97]- [101], per Brereton J. A reprimand (and the public opprobrium that it entails) is a substantial thing and its effect cannot be overlooked: see for example, Lindsay v Health Care Complaints Commission [2005] NSWCA 356, at [91], per Hunt AJA.
21. However, it cannot be demonstrated to be necessary.
22. Consequent to Dr Barnouti's admissions, recognition of error, and evident remorse, no action ought to be taken.
23. In the alternative, a caution ought to be issued."

Oral submissions of HCCC

1. In addition to the written submission, the HCCC provided a brief oral submission which highlighted the following: 1. The experts report opined that the conduct of the Respondent was significantly below the standard. 2. The Respondent was a practitioner of 15 years' experience performing surgery. (We note the Respondent claimed 22 or 23 years of practice). 3. The conduct of the Respondent is conceded to have been improper. 4. The decision to use the dropped implant was reckless.

Oral submissions of the Respondent

1. In addition to the written submission the Respondent provided a brief oral submission in which we noted the following: 1. The Respondent here made an error. He assessed the risk of proceeding with the operation after the mishap of the dropped implant was low. 2. He did not seek to hide the event of the dropped implant. He asked a nurse to make the RiskMan report which she endeavoured to do. He did not check, however the nurse did not inform him of the difficulty she experienced in attempting to make the report. 3. The conduct was not reckless. Had he not placed the implant in a Betadine bath before inserting it into the chin, that would have been reckless. 4. There is no acceptable evidence of how long it would have taken to obtain another implant on the day of the operation. 5. The conduct should have been dealt with as a performance review. 6. Nothing has been identified as requiring general deterrence to be attended to in this case by the imposition of a Reprimand. 7. The Reprimand is said to be required because the Respondent is alleged to lack insight and that he blames others for his complained of conduct; his failure to order another implant rather than proceeding with the original after the fall to the floor; and/or his failure to close the chin incision he had made and proceed with the rhinoplasty procedure. It is submitted the Respondent has demonstrated insight. It is submitted he did not seek to blame others for his conduct. It is submitted he did not seek to hide the mishap. If he had not taken the action he did in seeking to disclose, rather than to cover-up the incident, then there may have been a necessity for a general deterrence component to the protective orders. 8. In this matter there may be an issue about matters of practice to be considered. If so then the Tribunal members (drawing on the qualifications and experience of the Senior Members) can inform themselves as to matters of practice. 9. This is a case where the HCCC has established, without opposition, that the Respondent is guilty of unsatisfactory professional conduct. The HCCC submits that a reprimand is required because the Respondent is said to lack insight. It submits that the Respondent "blames others" for the mishap and the failing to make a RiskMan Report. It further submits his failure to order another implant and/or alternatively close the incision he had made in the patients' chin and proceed with the rhinoplasty procedure, was an error. The Respondent submits that the Tribunal would not accept that a wait of 1 to 2 hours for another implant was a reasonably available option in this case. (We note there is no definitive evidence as to how long it would have taken on the day of the operation to have a second chin implant delivered to the operating theatre.) 10. Sub-Particulars (b), (c) and (d), of the Complaint, address matters of conduct surrounding documentation. The Respondent submits that the Tribunal would not conclude that the failure of the Respondent to complete documentation (as alleged) was motivated by an attempt to hide the mishap. The Tribunal would recall, and find, that the Respondent asked a nurse to make a RiskMan Report of the incident. It will recall that the Respondent caused a copy of the letter he wrote to Patient A on 1 February 2021 to be placed on the Hospital patient file.
2. In response to the submission of the Respondent, the HCCC submitted that a Reprimand need not be a perpetual stain on the record of the Respondent's registration. The HCCC submitted there was a provision within the National Law which enabled application to the relevant National Board of the Health Profession in question. In a further written submission (marked MFI 3 by us) the HCCC set out the following: 1. Under s.226(3) of the Health Practitioner Regulation National Law (NSW) (the National Law), a National Board may decide to remove information that a registered health practitioner has been reprimanded from a National Register or Specialists Register in which the practitioner's name is included if it considers it is no longer necessary or appropriate for the information to be recorded on the Register. 2. The National Board, or Australian Health Practitioner Regulation Agency (AHPRA) form, to request removal policy document states that in the "absence of an order specifying a publication end date, reprimands are recorded for five years and that applications to remove reprimands before the expiry of five years will not be accepted." 3. However, in the decision of Health Ombudsman v Gillespie [2021] QCAT 54 at [41]-[42] and [50], Judge Allen QC for the Tribunal expressed concern about AHPRA's policy, holding that the Tribunal should not impose a publication end date on a reprimand as such an order would be ultra vires."
3. We accept the submission of the HCCC as set out above, that the imposition of a Reprimand upon the Respondent's registration need not necessarily be seen as a permanent professional stain on his reputation.
4. We asked the parties to assist us with submissions which address the ability of the Tribunal members to apply their own medical expertise in reaching determinations in a matter of the nature of that now before the Tribunal. The request arose because of the views placed on the record by Senior Member Sheridan and Senior Member Newton. The HCCC helpfully provided the following further submission:

"Use of Tribunal's expertise

1. Further to [23] and [24] of the Applicant's submissions dated 18 September 2023, the Court of Appeal decision of Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 provides some useful guidance.
2. The Tribunal held that the practitioner's conduct in particular 1A amounted to unsatisfactory professional conduct under s.139B(1)(a), that is, the insertion of a pacemaker in Patient A was not within the range of reasonable responses for a practitioner of Dr Chatoor's training and experience. In coming to their decision, the Tribunal rejected the expert evidence (four of the five experts at various points in their evidence put Dr Chatoor's conduct within the range of reasonable conduct: [50]) and relied upon the overseas guidelines for which compliance with them was not mandatory: [49]-[50]. In these circumstances, the decision of the Tribunal could not be sustained: [52].
3. The Court held at [51] "Whilst the Tribunal was not bound by the expert opinions, and was entitled to take into account the professional expertise and experience of the medical professionals sitting on the Tribunal, it needed to state why it thought it appropriate to depart from the expert evidence if it decided to do so. It did not state this. Instead it proceeded on the erroneous basis that the expert evidence supported its decision."
4. In relation to particular 2k, the Tribunal held the practitioner's conduct in failing to make adequate arrangements for a specialist to review the patient before her discharge amounted to unsatisfactory professional conduct under s.139B(1)(a). In reaching their conclusion, the Tribunal relied on the expert evidence and the experience and expertise of its professional members which they were entitled to do: [55] (see Gray v Geoff Groom Building Pty Ltd [2019] NSWSC 1081 at [23]-[27] per Leeming JA)."
5. As stated earlier, in the oral submission of the Respondent, his counsel submitted the Tribunal can draw on the qualification and experience of its' Senior Members where there is an issue about matters of practice.

Conclusion

1. As stated earlier, we firstly need to be satisfied the HCCC has established, on the requisite standard, the Complaint it has set out in the Application document filed 7 June 2023 and contained in Exhibit A1.
2. We have considered all the evidence we understand to be relevant to the establishment of the Complaint. We have set out above that evidence which we have particularly relied upon to reach our conclusion. We have noted the Respondent's properly made concession, that the HCCC has established its case. We have reached the decision that we accept the HCCC has established its' Complaint and we therefore find the Respondent guilty of unsatisfactory professional conduct as defined by sections 139B(1)(a) and 139B(1)(l).
3. We now turn to consider what protective order, if any, should be imposed upon the Respondent arising from our finding.
4. The HCCC urges the Tribunal to impose a Reprimand on the Respondent. The Respondent submits that this case does not warrant the making of any protective order. In the alternative the Respondent urges us not to impose a Reprimand. If there is to be any order, the Respondent submits a Caution will meet all the requirements of the making of protective orders.
5. In determining the protective order which is appropriate in this case we have had regard to the explanation in Health Care Complaints Commission v Do [2014] NSWCA 307 of the objective of protecting the health and safety of the public is not confined to cases of professional misconduct. As is made plain from [33] and [34] of Do, the Court of Appeal was explaining the factors that the Tribunal is "required to consider in the exercise of its protective jurisdiction", including the paramount consideration in s 3A of the "protection of the health and safety of the public". Those considerations apply to unsatisfactory professional conduct just as they apply to professional misconduct. Deterrence is an orthodox element of the exercise of disciplinary powers under the National Law. At [34] and [35] the Court said: "The National Law establishes a registration and accreditation scheme. That scheme, by Div 3 of Pt 8, includes provisions for the making of complaints about registered health practitioners and the determination of those complaints, including in relation to serious complaints, by the Tribunal. The objectives of that scheme, as described in s 3(2), include to "provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered" and to "facilitate access to services provided by health practitioners in accordance with the public interest". The provisions in Pt 8 concerning the making and dealing with of complaints are provisions substituted in the National Law by the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW). Section 3A of the Law provides that in the exercise of those functions "the protection of the health and safety of the public must be the paramount consideration". Section 4, which applies to the National Law as in force in New South Wales, also requires that an entity having functions under it "is to exercise its functions having regard to the objectives and guiding principles" set out in s 3. 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. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." See also New South Bar Association v Meakes [2006] NSWCA 340.
6. We have had regard to the words of the Court of Appeal in Litchfield where it was said that the role of a protective order is not punitive on the practitioner. We have had regard to our assessment of the seriousness of the conduct of the Respondent as established by the finding of unsatisfactory professional conduct. We have borne in mind the provision of the National Law as set out in paragraphs 3 and 3A, as we have referred to earlier in these reasons.
7. We have had regard to the submission made by the HCCC particularising why it submits the Tribunal would find the Respondent was "reckless" in his conduct (see paragraph 52 above).
8. The Respondent has labelled his action as a "lapse in judgment". We consider that label is too general to describe the professional conduct of the Respondent in this case. Although it might be considered as pedantic, we see this conduct as being conduct which failed the Respondent at a time when control of instinctive and/or reactive and incisive conduct, is required. Clearly a surgeon needs the ability, on a hopefully rare occasion, to be able to know the proper pathway for action when immediate and incisive action is required during a procedure in the face of an unexpected occurrence. In this case the Respondent faced that very circumstance. Something occurred in a procedure which the Respondent had never before been confronted with in his long history of cosmetic surgery. His reaction to the event was significantly below the standard which was expected of him given his training and experience. His action failed the trust which Patient A was entitled to place in him. His action led to the requirement to have the implant removed and replaced with a sterile version in order to be sure that the initial implant was not contaminated when it was inserted into the patient's chin. We accept that Patient A may have had to undergo a further procedure if the lump in her chin, which she could feel following the procedure, could not have been resolved by non-surgical means. That was quite a different situation to the one which was the primary concern for the Respondent, namely, the increased possibility of infection. It was the concern of possible infection, arising from the misadventure with the implant during the procedure of 28 January 2021, which motivated his urging of the Respondent to agree to the second procedure.
9. The issue as to whether another implant could have been delivered to the operating theatre, following the mishap of dropping the original implant, is really clouded by the debate as to how long it would have taken to obtain a replacement. The matter which stands out in this case to condemn the Respondent, is that he did not stop to enquire how long that wait might have been. He did not cause an inquiry to be made to the supplier. He did not consider that information, and then determine what action to take. On any view, one of the options should not have been to attempt to disinfect the implant after it had been in contact with a non-sterile surface, and then complete the procedure with that implant. Those matters point to the seriousness of the complained of conduct and the necessity for an appropriate protective order.
10. We have considered the submission of the HCCC which sought a finding that the Respondent had acted recklessly in his conduct. We were not provided with any reference to case law or statute which may have assisted our determination of whether the conduct was reckless, as submitted.
11. Without seeking to have this decision define what is or is not reckless conduct in a medical practitioner, we are not inclined to define the Respondent's conduct as reckless. There was a degree of spontaneity in his conduct however, he did act in a manner which was probably instinctive, namely, he immediately placed the implant in a bath of Betadine in order to counteract the impact of it coming into contact with a non-sterile surface. We do agree with the submission of the Respondent that had the Respondent picked up the implant from the operating theatre floor and placed it straight into the chin cavity he had created for the patient, that would be an apparent abandonment of all caution and concern for possible infection in the patient. That conduct would have been, in our view, reckless. In that circumstance there would have been an absence of any objectively assessed care for the health and safety of the patient.
12. Some assistance with the difference between foreseeable risk and reckless conduct (in the context of a civil suit for damages) may possibly be drawn from decisions such as Morgan v Sherton Property Limited [1999] NSWCA 60, where the court found that foreseeable risks include risks that arise from an entrant's failure to exercise reasonable care for his or her own safety, but they do not extend to risks arising from a entrant's deliberate foolhardy or reckless behaviour. At paragraph 18, Sheller JA, (with whom Mason P and Fitzgerald JA agreed), stated: "What risk is foreseeable? In the passage I have quoted Brennan CJ included in foreseeable risks, risks arising from an entrant's (to a subject place) failure to exercise reasonable care for his or her own safety. But this does not necessarily extend to risk arising from the entrant deliberately behaving in a foolhardy or reckless manner."
13. The analogy could be said to be that complete disregard for the foreseeable consequences of infection in the patient, by the insertion of an implant which has most likely become contaminated by contact with a non-sterile surface, would, for a surgeon with the knowledge and experience of the Respondent in this matter, be reckless conduct. It could, in our view, because of the seriousness of the conduct, lead a Tribunal to find the practitioner guilty of professional misconduct (s.139E of the National Law).
14. The Respondent has submitted that this is not a case which requires a consideration of a general deterrent when the Tribunal assesses the protective order to make. We have considered that submission, however, we do consider a general deterrence consideration is required in this determination. Here the Tribunal is presented with the conduct of a practitioner with very extensive experience as a plastic surgeon, a practitioner who holds a teaching role in the profession and a practitioner who is no doubt seen as a role model for the students he teaches. His evidence is that he undertakes about 3,000 procedures each year as a plastic surgeon. He operates at a number of private hospitals. He is a VMO in at least one public hospital. He therefore has a wide exposure to medical practitioners with all levels of training and experience. He works with many other health professionals who fulfil roles in medical procedures, such as anaesthetists and nurses. It is important, we think, for the public and the profession to know that such notable medical practitioners are not beyond reproach and discipline from those entities which have an important role in the control and regulation of the health profession.
15. In determining the appropriate protective order, it is customary for the Tribunal to consider prior disciplinary history of a Respondent. In this case we have set out the evidence which is before us. Although we are unable to definitively find the Respondent has been issued with a Caution by the Medical Council at an earlier disciplinary hearing (because of the lack of compelling evidence of such) we are prepared to find that the current proceeding is not founded on a prior history of no disciplinary action being imposed upon the Respondent.
16. We record here that we considered the Respondent to have given his oral evidence in an apparently honest manner. There was no aspect of his presentation as a witness or the content of his oral or written evidence which led us to conclude he was obfuscating or being dishonest. Although there may have been a basis for the HCCC to submit that in the hearing before the delegates of the Medical Council, the Respondent sought to blame others for his actions, we did not detect that in the evidence he gave before us.
17. We are satisfied the Respondent has demonstrated remorse for his error and he has done all that could reasonably have been done for the patient, to repair any possible adverse income to her health of his conduct.
18. The Respondent has since January 2021, and particularly following the s.150 hearing and the imposition of the conditions upon his registration, undertaken further education to enliven his insight beyond that which he clearly had at January 2021. He has also been accepted back to the Hunters Hill Private Hospital to conduct surgical procedures. That speaks well of the regard the Hospital authorities, at that place, have for the Respondent and for the conclusion they must have reached that there is unlikely to be any repetition of the conduct the subject of this complaint.
19. We take into account that, somewhat extraordinarily, there is no complaint by Patient A, in relation to the conduct of the Respondent. This proceeding arose as a result of an anonymous complaint from a person who appears to have probably been a member of the medical profession, although that later reference is speculative and not important to this determination.
20. Part of the satisfaction we have that the Respondent is now a fit and proper person to continue to practise medicine as a plastic surgeon, is found in the fact that the conditions imposed upon the Respondent, by the Medical Council in 2021, required supervision of his practice by an approved supervisor. Although we have not seen all the reports which were provided to the Medical Council by the supervisor, it is reasonable for us to conclude that the reports were satisfactory. We have evidence of the audit report which was required by those conditions. We are satisfied that the Respondent is not a danger to the health or safety of the public as he practises today. There are no current conditions on his registration.
21. One on the subjects with which we sought the assistance of the parties' legal representatives, was the ability of the Tribunal to utilise the medical expertise which reposes in the Senior Members of the presiding Tribunal. In this case Senior Member Sheridan is a practising neurosurgeon. Senior Member Newton is a recently retired plastic surgeon. Both parties made submissions on that topic.
22. In this case we have not needed to draw on the professional opinion of the two Senior Members of the Tribunal as the statements they placed on the record are peripheral to the determination we have to make. The statements reflect their common practice in relation to making and checking a RiskMan report which may be made arising from a procedure.
23. Having considered all the matters set out above we conclude that in this matter a Reprimand, as sought by the HCCC, is the appropriate protective order to make. We do not consider it would be appropriate to make no order, as submitted by the Respondent. We have considered and weighed up the possibility of imposing a Caution against the Respondent as opposed to a Reprimand and have concluded that the balance falls in favour of making a Reprimand. We consider it is necessary to maintain the confidence of the public in the profession to impose the Reprimand. We have concluded that the average member of the public would be very concerned by the conduct of the Respondent in continuing to use the implant which had fallen on the floor, even after bathing it in Betadin, and then, when that action was called into question before this Tribunal, it was dealt with by the imposition of a Caution. That outcome would mean that any potential patient of the Respondent who sought to view his registration by a search of Ahpra, would see nothing adverse to inform their decision to use his services.
24. We also conclude that a deterrence component to determining the appropriate protective order is required in this case. We conclude that medical practitioners who were made aware of the facts in this case would be surprised, if not shocked, to learn that the Tribunal dealt with the complaint by imposing a Caution, as opposed to imposing a Reprimand or some more restrictive available protective order.
25. We consider the seriousness of the conduct of the Respondent is such as to require the imposition of a Reprimand.
26. In reaching this determination we are satisfied that the Respondent would not repeat his conduct which has been found against him. He has demonstrated insight into his conduct, and he has demonstrated remorse. He has taken action to ensure that should there be a mishap with a prosthesis during a procedure in the future, he will always have a reserve prosthesis on hand. He has been accepted back to the Hospital where the conduct in question occurred. That demonstrates to us a confidence which the Directors of that Hospital have that the conduct was a "one off" event for the Respondent and also otherwise demonstrates the respect with which the Respondent is bestowed by that Hospital and those other medical practitioners who work there, upon the Respondent.
27. We also take into account what the Respondent has done to repair the consequences of his conduct. He arranged to see the patient in his rooms very shortly after the operation and gave full disclosure of what had occurred. He thereafter monitored the progress of the patient and subsequently, at his own cost, replaced the original implant with a sterile version. We find the Respondent's evidence that there was no sign of infection in the original implant at the time of its' removal, of no diminution in the seriousness of his conduct, although, no doubt of great comfort to Patient A.
28. We have had regard to the references which have been tendered by the Respondent in this case. He is clearly held in high regard by those referees. It appears those persons are satisfied there will be no repeat of the conduct which brought the Respondent to the attention of this Tribunal.
29. The orders which we will make are as follows:
30. Dr Laith Barnouti is Reprimanded pursuant to section 149A(1)(a) of the National Law.
31. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name of the patient referred to in this decision, or any relative of the patient, is prohibited.

Costs

1. The HCCC informed the Tribunal at the commencement of the hearing that no costs order would be sought against the Respondent.

Endnotes

1. Exhibit A2
2. HCCC Materials, tab 11, Letter from practitioner to Commission, 27 August 2021, para 17, p 131.
3. Health Care Complaints Commission v Hanna (No 2) [2017] NSWCATOD 178 at [50] 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 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: 13 October 2023