Health Care Complaints Commission v Dowla - [2019] NSWCATOD 156 - NSWCATOD 2019 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Dowla

[2019] NSWCATOD 156

NCAT Occupational|2019-09-16|Before: Dr J

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2019-09-16

Before

Dr J

Source

Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

Law prohibiting the publication of the name of the Patient and the Person described as Person B set out in the Schedule to the Complaint filed 16 March 2017.

[2]

Introduction

These reasons are our reasons for the making of protective orders at the conclusion of professional disciplinary proceedings against Dr Mohammed Shareef-Ud Dowla (the practitioner).
On 26 July 2019 we published our reasons for decision in respect of an amended complaint brought by the Health Care Complaints Commission (HCCC) against the practitioner lodged with the Tribunal in March 2017. The complaint alleged the practitioner was guilty of both unsatisfactory professional conduct and professional misconduct as defined in the Health Practitioner Regulation National Law (NSW) (the National Law).
A Stage 2 hearing was conducted on 16 September 2019 and the practitioner was cross-examined as were his three witnesses.
In our reasons published on 26 July 2019 (the Stage 1 reasons), we noted the unfortunate history of the matter, due to no fault to either party. The delays in the matter occurred because of the death of the presiding Judge before completion of the matter requiring a complete re-hearing of the matter (see Health Care Complaints Commission v Dowla (Jurisdiction Issue) [2018] NSWCATOD 96).
As will be apparent from our discussion below, we were not satisfied the particulars of the complaint, which asserted sexually inappropriate behaviour with a female patient during the course of a consultation, were established to the standard of proof applicable in disciplinary proceedings. The practitioner conceded that he had given his phone number to the patient, for a purpose other than a clinical one. We found this action to constitute unsatisfactory professional conduct under s 139B(1)(l) of the National Law.

[3]

The Stage 1 reasons

At the commencement of the hearing, the parties agreed this matter should be heard in two stages to afford procedural fairness to the practitioner in circumstances where the particulars alleged by the HCCC, except the provision of the practitioner's telephone number to the patient, were all in dispute (see Lucire v Health Care Complaints Commission [2011] NSWCA 99).
It will be remembered that the gravamen of the allegations against the practitioner were that he had engaged in inappropriate behaviour of a sexual nature when he examined the patient who complained of pain radiating from her C-section scar. It was also asserted he had masturbated while asking the patient questions of a personal nature.
At [137]-[140] of our reasons we explained: Patient A has a long and unfortunate history of abuse and mental health diagnoses. On her own evidence, she was nervous immediately prior to her consultation with the practitioner. We are satisfied that, in her nervous state, and without an explanation by the practitioner that he would touch her thighs, that Patient A has misinterpreted his actions and in reconstructing events has embellished those events to have a sexualised context. We found, as particularised above, discrepancies in her evidence about the consultation and in particular her description to the lawyers on 8 December 2016 of the practitioner being flirtatious, and her very different evidence in her statements and before us that the practitioner's behaviour was normal up to and during the examination of her c-section scar. We note that Patient A agreed in cross-examination that she had demonstrated to the practitioner where she felt pain as being the front of her legs and her outer thighs (transcript 10.12.2018 p 65). We are satisfied that she was in a stressed state prior to the consultation, did not receive a full or adequate explanation of the type of examination the practitioner would conduct, did not receive an explanation for her perceived pain, and left the consultation in a distressed state. Patient A referred to the practitioner's questions which he posed to her to obtain a social history when he suspected a somatoform condition, as inappropriate questions. These factors, may have contributed to her perceptions of the consultation being improper and sexual in nature. By contrast, although the practitioner's early responses to the HCCC and to the preparation of his documents for the first hearing were inadequate, we generally found him to be a credible witness. Although we note it is not part of the particulars of the complaint, that we agree with both Professor Brew and Dr Darveniza that the examination of Patient A's thighs was perfunctory or cursory. The practitioner ultimately made an appropriate concession that he should not have provided his mobile telephone number to Patient A regardless of his motive for doing so in the first place.

[4]

Issues to be determined at Stage 2

The issues to be determined at this Stage 2 hearing were narrowly confined. The HCCC submitted that the appropriate order was a reprimand. The practitioner's counsel opposed the making of a reprimand, and submitted the appropriate order was a caution.
An ancillary issue arose because, since we heard evidence in the Stage 1 hearing, but before we published our reasons, the Medical Council of NSW (the Council) heard a complaint that the practitioner had breached practice monitoring conditions placed on his registration. The practice monitoring conditions replaced chaperone conditions recorded on the practitioner's registration and to which he had consented. This occurred following the change of the Council's policy in this area.
The Council, at a hearing under s 150 of the National Law, imposed a condition that the practitioner not see female patients. The issue before us was whether our protective orders would have the effect that this condition would cease to have effect and should be removed from the practitioner's registration. It was not in dispute that the practitioner could seek review of the condition under s 150A or that the Council could remove the condition under s 150C, if we did not have the necessary power for its removal.
The parties are also at issue in respect of costs. While the HCCC did not seek costs in respect of the initial Stage 1 hearing days before the first Tribunal, or the jurisdiction hearing, 50 per cent of the HCCC's costs are sought in respect of the Stage 1 hearing and this hearing as well as costs leading up to the first hearing. The practitioner's counsel submits that costs should follow the event, and that an order for costs should be made in favour of the practitioner. Costs are sought in respect of the jurisdiction hearing and Stage 1 and Stage 2 of these proceedings.
Finally, we raised with the parties the issue of whether or not an order could be made under the Suitors' Fund Act 1951 (NSW) for the costs of the first proceedings.
We address all of the identified issues below.

[5]

The principles relevant to the making of protective orders

There was no dispute between the parties about the principles relevant to making protective orders
The solicitor for the HCCC, Ms J Dinihan, in her helpful submissions, referred us to the decision in Lee v Health Care Complaints Commission [2012] NSWCA 80. In that appeal a practitioner, who conceded he was guilty of professional misconduct for practising without professional indemnity insurance, argued error because the Tribunal imposed a longer period of suspension of his registration than had been imposed in a similar case. In his reasons, Barrett JA with whom Macfarlan JA and Tobias AJA agreed, referred to and quoted from the reasons of Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523. At [20], Barrett JA explained that Basten JA "made several important points". He then set out three points as follows: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
At [21] his Honour said: The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards.
In more recent times, reference is frequently made to the succinct summary of relevant principles applicable to protective orders by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307. At [35] his Honour explained: 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.

[7]

The evidence and submissions relied on by the HCCC for Stage 2

We commence our discussion of the HCCC's material by noting no objection was taken by the practitioner's counsel, Mr Ahmed, to any material relied on by the HCCC.
The HCCC relied on a letter to the practitioner from the Council dated 17 December 2014. The letter enclosed a copy of the Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia". The letter refers to a complaint made by an unidentified woman. The letter records "On 9 December 2014 the Council's Conduct Committee considered the complaint and both of your responses. The Committee resolved to counsel you by a letter and provide advice to assist you with your future practice". Importantly the letter noted: The Committee notes that not all the phone calls allegedly made by you to the patient were made by you. The Council reminds you of your responsibility as a medical practitioner to maintain professional boundaries with your patients at all times and to be careful not to behave or speak in a way that may be interpreted as crossing those boundaries. You should reflect on these comments and ensure that you attend to these aspects of your practice …
The letter advised the Council would not be taking any further action on the complaint.
The HCCC also relied on reasons of the Council dated 1 March 2019 following a hearing under s 150 of the National Law on 7 February 2019. The gravamen of the findings of the Council were that, after the practitioner consented to conditions imposing a requirement he comply with the Council's practice monitor policy when that policy replaced the chaperone policy, he continued to see patients prior to the approval of his nominated practice monitors by the Council. It is not in dispute that the practitioner was advised in the clearest of terms that he should not see female patients until his practice monitors were approved (Council's letter sent by email on 10 October 2018 and further email dated 17 October 2018). The practitioner was subsequently advised his practice monitors (who had formerly been approved as chaperones) were approved as practice monitors.
The reasons of the Council disclose breaches by the practitioner of the requirement that he have a practice monitor approved before seeing any female patient, and a failure to keep proper logs, or if the logs were kept properly, that the practice monitor could not have been present for the whole consultation. This was because the practice monitor noted appointment times of five to ten minutes duration, but the practitioner's evidence was that this was the initial part of the consultation, before nerve conduction studies were performed, and that a patient was seen after the studies had been carried out, with the total consultation period being about 30 minutes.
The Council's submissions note that the practitioner had conditions imposed by consent from 25 January 2016. The Council's reason refer to a s 150 hearing held on 31 August 2016 following a complaint alleging sexual assault on four occasions was received by the Council.

[9]

The practitioner's evidence

The practitioner relied on a statement dated 3 September 2019, the truth of which he confirmed on oath in his oral evidence before us.
In his statement the practitioner set out steps he has taken to improve his communication with female patients, particularly vulnerable female patients. He explains at para 7: In order to improve my practice in that regard, on 29 June 2019, prior to the judgment being delivered, I attended the following professional development seminar run by the Medical Indemnity Protection Society (MIPS) as I thought it would be useful in relation to the matters that were the subject of these proceedings: (a) "Understanding the Modern Patient", and (b) Discerning Doctors Don't get sued.
The practitioner also explained that he had sought counselling and guidance from two doctors and a psychologist "in relation to how to improve my communication with female patients; particularly those who consult me for gynaecological issues".
The practitioner also reports attending a full day course on 24 August 2019 "Practical Solutions to Patient Boundaries" which he says he found to be "extremely beneficial".
At para 10 the practitioner states: I believe I have now obtained an in-depth understanding and insight as to how to conduct myself during a consultation with a vulnerable female patient in the future and how to ensure I do not cross professional boundaries.
Later in his statement, the practitioner refers to the adverse effect the proceedings have had on him including professional embarrassment, the loss of his employment at Bankstown-Lidcombe Hospital, and the financial impact of the chaperone/practice monitor policy requirements which he discloses as being $313,668.64. He also refers to the surcharge of a premium on his medical insurance premiums of $105,445.
The practitioner also referred to a deterioration in his Parkinson's disease. We pause to note the panel raised with the practitioner who he was consulting for the management of his Parkinson's disease. This questioning revealed the practitioner was still self-prescribing, and had not sought to consult an independent specialist. His evidence about his general practitioner was found by us to be vague and unreliable. However, later in the proceedings, we were advised by Mr Ahmed, counsel for the practitioner, that during a break, an appointment had been arranged for the practitioner to consult a specialist.
In response to answers posed to him in cross-examination about what practical steps he had taken since receipt of the Council's letter of 14 December 2014, the practitioner said that he "had been more careful". We understood that answer to mean until these proceedings he had not taken any "practical steps" to facilitate the Council's recommendations.
The practitioner sought to explain that his breach of the practice monitor condition was a mistake, because he thought his Council approved chaperones (who were subsequently approved as practice monitors) could just continue in their role without formal Council approval. He also sought to explain the discrepancy in the completion of his practice monitor logs in respect of the time he actually saw the patient, and that recorded in the logs as a mistake.

[11]

Consideration

It is important that we commence our consideration of the evidence and matters relevant to protective orders by noting that we were advised that the HCCC would not be taking any action in respect of the complaint which led to the s 150 proceedings and the restriction arising from those proceedings prohibiting the practitioner from seeing female patients.
As noted at the commencement of these reasons, the HCCC submits that the appropriate protective order to be made in this instance is a reprimand. Reliance is placed on the decision of Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738. In that decision the Tribunal explained at [14]: Counsel is correct in saying that there is little guidance available. The ordinary meaning of he words leads to the conclusion that a reprimand is an official rebuke for past wrongful conduct whereas a caution is a reminder to take care in the future and avoid repetition. Of the two, we consider a reprimand provokes more serious consequences. In Peeke v Medical Board of Victoria (unreported, Marks J. 19 January 1994). His Honour commented on a view that had been expressed to the effect that to impose a reprimand was to trivialize a serious lapse in professional standards. His retort was succinct - I am not able to agree with the Board that a reprimand is a trivial penalty. It may be inappropriate or inadequate in many circumstances, but a reprimand, to a professional person, has a potential for serious adverse implications.
We now turn to the general principles relevant to the making of protective orders. These are well explained by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. 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.
We also note that, as distinct from a caution, a reprimand if imposed, will appear on a practitioner's registration maintained by the Australian Health Practitioner Regulation Agency (see s 225(j)). However, under s 226(3) a National Board may decide to remove a reprimand from the register if it considers it is no longer appropriate for the information to be recorded on the register.
The practitioner's submissions which advocate for a caution, rather than a reprimand, refer to the decision of this Tribunal in Riley v Health Care Complaints Commission [2019] NSWCATOD 54. The facts in that decision are quite different to the circumstances we are required to consider. In Riley an anaesthetist was found to have failed to complete medical records to include the quantity of two drugs administered during an operation. The drugs administered were recorded. Both the Professional Standards Committee (PSC) and the Tribunal hearing an appeal from the PSC's decision found the anaesthetist was unlikely to similarly offend and that a reprimand had been in place on his registration for a period of eight months. The Tribunal concluded the imposition of a caution was an appropriate outcome.
In this case, we found that the practitioner's conduct was improper under s 139B(1)(l). We reject the submission made on behalf of the practitioner that conduct found established under s 139B(1)(l) is less serious than conduct found established under s 139B(1)(a). It is the seriousness of the nature of the conduct found established which is relevant, particularly for the purposes of s 139E (professional misconduct).
In reaching our conclusion that it is appropriate to reprimand the practitioner we take into account that he has, albeit only recently, had some contact with other practitioners to seek advice. We also have given weight to the fact he has undertaken continuing professional development relevant to communication. However, we must balance those positive matters against the fact that notwithstanding the warning by the Council in December 2014 about the need for care in his communication with patients, he clearly disregarded the sensible advice given, and provided his mobile phone number to Patient A for a non-medical purpose. Any insight the practitioner should have gained about his communication with patients was sadly lacking at least until the conclusion of these proceedings.
We find the imposition of a reprimand will be a deterrent to other practitioners to engage in like conduct. Further, we are satisfied the imposition of a reprimand sends a strong message that upholds the reputation of the profession and maintains confidence in it by the public.

[12]

Do we have the power to make orders which would have the effect of cancelling the practitioner's current conditions

Normally, the conclusion of disciplinary proceedings dealing with a complaint, and if appropriate to do so, the making of protective orders, results in any suspension or conditions imposed at a s 150 hearing being subsumed into final protective orders. As such, the procedure is akin to an interim or interlocutory order ceasing to have effect on the making of final orders in a court. That is not to say that a suspension or condition may not be earlier removed after an application by the practitioner to the Council under s 150A or by the Council itself under s 150C.
Section 150H deals with the duration of conditions on a practitioner's registration. It provides as follows: 150H Duration of conditions - complaint matters [NSW] (1) This section applies if - (a) a Council for a health profession imposes conditions on the registration of a registered health practitioner or student under section 150; and (b) the matter is dealt with as a complaint against the practitioner or student. (2) The conditions imposed by the Council have effect until the first of the following happens - (a) the complaint about the registered health practitioner or student is disposed of; (b) the conditions are removed by the Council. (3) This section - (a) does not prevent conditions being imposed under another provision of this Law; and (b) is subject to anything done by the Tribunal on an appeal.
The HCCC submit that any protective orders made by us in respect of the amended Complaint do not "dispose of" the complaint which led to the s 150 proceedings on 7 February 2019. Those proceedings dealt with a separate and distinct complaint, namely a lack of compliance with practice monitoring conditions.
Mr Ahmed, on behalf of the practitioner, did not suggest this interpretation of the National Law was incorrect. Rather, he took a practical view, and indicated if we did not have power to remove the condition which prohibits the practitioner from seeing female patients, that whatever step would lead to the removal of that condition in the shortest period should be taken.
There is no doubt that the conditions placed on the practitioner's registration, which required initially a chaperone and then a practice monitor to be present during the practitioner's consultation with female patients, are the conditions which were in place at the time we heard the Stage 1 proceedings. We did not deal with a breach of those conditions, nor were we asked to do so. Thus, we agree with the HCCC that our orders will not have the effect of removing the present condition.
However, the necessity for a chaperone or practice monitor, or for that matter, a requirement that the practitioner not see female patients, was to protect female patients pending the determination of a complaint of inappropriate sexual conduct by the practitioner on Patient A. We note that the restriction on the practitioner seeing female patients was imposed prior to the delivery of our Stage 1 reasons. We did not find the complaint of inappropriate sexual conduct established. In these circumstances, and in light of the very unfortunate history of this matter, we recommend that the Council should take such action as is appropriate under s 150C to remove the condition. We make this recommendation on the basis of the representations before us that the HCCC do not intend to prosecute any complaint against the practitioner for breach of his practice conditions. Accordingly, we have provided in our orders that the Council is the appropriate review body.

[14]

The parties' submissions on costs

The HCCC seeks 50 per cent of all costs from the filing of the complaint on 16 March 2017 to the day prior to the initial Stage 1 hearing, 16 September 2017 and from the day after the decision on jurisdiction, 23 June 2019, to the conclusion of the matter. The HCCC notes that it does not seek costs of the Stage 1 hearing on 17 and 18 September and 15 November 2017 nor the costs arising out of the two subsequent interlocutory applications relating to interim orders and jurisdiction.
The basis on which the HCCC seeks these costs is that the practitioner has not been wholly successful in the proceedings. The HCCC note at para 14 of its submissions: A finding of unsatisfactory professional conduct has been made on the basis of complaint 1 particular 4. Whilst the practitioner admitted the factual aspect of particular 4, he did not admit that the conduct amounted to either unsatisfactory professional conduct or improper or unethical conduct.
The submissions set out, by reference to authority, general principles in relation to costs. We accept those principles. The submissions go on to explain at para 19 It cannot be disputed that the complaint against the practitioner was very serious. It is accepted that the most serious aspects of the complaint were unproven.
The submissions filed on behalf of the practitioner note the power to award costs provided in cl 13 of Schedule 5D of the National Law. The submissions point out that costs are compensatory, that we found at [113] of the Stage 1 reasons that the inappropriate sexual behaviour particulars were the "essence of the complaint against the practitioner", that the practitioner was overall successful with the only unsuccessful matter being particular 4. Notwithstanding this aspect of the matter, it is argued on behalf of the practitioner that costs should "follow the event".
As we have noted in our Stage 1 decision, this matter has had an unfortunate and unusual history in the Tribunal resulting in the first hearing being a nullity because of the untimely death of the late Acting Judge K O'Connor AM. If these proceedings had occurred in a court, an application could have been made under the Suitors' Fund Act 1951 (NSW) (Suitors' Fund Act) for a payment under that Act. However, although the Act refers to a court and tribunal, this Tribunal has not been prescribed under the regulations to be a tribunal to which the Suitors' Fund Act applies.
The Suitors' Fund Act does provide, in s 6C, for an application for a discretionary payment to be made in circumstances where the provisions of the Act do not apply. That section is in the following terms: 6C Payments not otherwise authorised by this Act (1) If: (a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings, (b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and (c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections, the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case. (2) A payment under this section shall not exceed $10,000.
It appears to us that the costs of the first hearing, or at least costs of the three hearing days incurred by the practitioner may be ones which fall within the spirit and intent of the Suitors' Fund Act if application is made by the practitioner to the Director-General. We note that the HCCC do not seek any costs in respect of the hearing days.

Health Care Complaints Commission v Dowla

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Judgment (18 paragraphs)

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Legislation Cited (3)

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Cited By (23)