Health Care Complaints Commission v Gazal

NCAT Occupational|2023-05-04|Before: Dr J

NSWCA 80 Lucire v Health Care Complaints Commission [2011] NSWCA 99 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mulpha Australia Limited v Central Sydney Planning Committee (2018) 233 LGERA 385; [2018] NSWLEC 179 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Sudath v Health Care Complaints Commission (2012) 84 NSWLR 474; [2012] NSWCA 171 Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Lindsay Joseph Michael Gazal (Respondent) Representation: Counsel: K Sharma (Applicant) P Aitken (Respondent)

Introduction

By application filed on 3 November 2022, the Health Care Complaints Commission (the Commission) sought findings and protective orders against Dr Lindsay Joseph Gazal (the Practitioner) pursuant to the provisions of the Health Practitioner Regulation National Law (NSW) (National Law). The Commission sought that the Practitioner's registration as a medical practitioner be cancelled pursuant to s 149C(1)(b) of the National Law with a non-review period of one year, and an order that the Practitioner pay the Commission's costs of the proceedings.
By his Reply filed 24 March 2023, the Practitioner admitted most of the facts alleged by the Commission in support of its application, and admitted that the "totality" of the conduct which he admitted constituted professional misconduct. Although the Practitioner admitted that two of the three Complaints relied upon by the Commission established professional misconduct, the Practitioner's Reply stated that he "leaves Complaint Three for the Tribunal to decide". Although it is common ground that it is not necessary for the Commission to establish Complaint 3 in order to support a finding of professional misconduct, the issue having been raised, and there being evidence with respect to it, the Tribunal will determine that Complaint.
Shortly after the commencement of the hearing, by consent, the Commission was granted leave to amend particular 1 of Complaint 1 of its application, without the necessity of formally filing an amended application. The effect of the amendment to the Commission's application was that the allegations with respect to prescribing the Schedule 4D drug pregabalin were amended to refer to 20 May 2021, in lieu of the period from 25 November 2016 to 20 May 2021. The Commission provided an amended Schedule A to the Complaint which was, by agreement between the parties, placed behind the Complaint where it appears in the evidence.
The evidence before the Tribunal comprised two volumes of documents behind 56 tabs upon which the Commission relied (Exhibit HCCC1), and a volume of documents behind 9 tabs upon which the Practitioner relied (Exhibit R1). By agreement, the Practitioner was cross-examined before the only other witness who was required for cross-examination, the Commission's expert, Dr Kertesz. Counsel for both parties provided the Tribunal with comprehensive and helpful written submissions at the conclusion of the hearing, which were supplemented by oral submissions.
The Commission's application foreshadowed that it may seek alternate protective orders pursuant to s 149A, s 149B and/or s 149C of the National Law after the conclusion of evidence. In its closing address, the Commission provided a minute of the orders which it sought in the light of the evidence which the Tribunal had heard. The orders sought included that the Practitioner be reprimanded pursuant to s 149A of the National Law, and that a series of conditions with respect to prescribing, supervision, education and audit be attached to his registration. The Practitioner accepted that a reprimand was appropriate, but opposed the imposition of the conditions sought by the Commission.
The parties agreed, appropriately in the Tribunal's view having regard to the admissions made by the Practitioner, that the hearing be a combined Stage 1 and Stage 2 hearing: King v Health Care Complaints Commission [2011] NSWCA 353; Lucire v Health Care Complaints Commission [2011] NSWCA 99; Sudath v Health Care Complaints Commission (2012) 84 NSWLR 171; [2012] NSWCA 171. Accordingly, the matters for determination are whether Complaint 3 made by the Commission is established and, irrespective of whether Complaint 3 is established, whether the Practitioner's registration should be subject to all or some of the conditions sought by the Commission.

Background

The background to the proceedings is not controversial. The Practitioner graduated with degrees in Medicine and Surgery from the University of Sydney in 1971. The Practitioner was first registered as a medical practitioner in New South Wales in 1971. The Practitioner completed 2 years hospital training at St Vincent's Hospital, and then trained at Middlesex Hospital in the United Kingdom before returning to Australia and commencing general practice in 1976. From 1979 to 2014, the Practitioner was the owner of the Waverley Medical Centre. In 2014, the Practitioner moved to the Bronte Medical Centre where he works as a contractor.
The Practitioner gave evidence that, other than for the purpose of holidays and other short interruptions, he has been in continuous general medical practice since 1976, a period of 47 years. It is common ground that the Practitioner has not been the subject of previous disciplinary proceedings and is a "first offender".
The patient whose treatment by the Practitioner gave rise to the present proceedings (Patient A) was from time to time a patient of the Practitioner from 2007 to 2021.
The introduction to the Commission's closing submissions provides a concise and accurate summary of the facts upon which the Commission relied with respect to each of its complaints, which essentially involve inappropriate prescribing of Schedule 4D and Schedule 8 drugs to Patient A between November 2016 and May 2021, failing to make and keep adequate records in relation to Patient A's treatment during that period and inappropriately prescribing drugs to family members, who included Patient A, Patient A's father, sister and brother-in-law.

Complaint 1

The background to Complaint 1 of the Applicant's application referred to Schedule A to the Complaint, which identified drugs dispensed by the Practitioner to Patient A. The accuracy of Schedule A was not in contest.
The background to the Complaint further recorded that drugs of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 (NSW) (PTGA) were drugs contained in Schedule 8 of the Poisons List proclaimed under s 8 of the PTGA (Schedule 8 drugs).
The background further recorded that the Practitioner prescribed restricted substances within the meaning of the PTGA, being drugs contained in Appendix D of the Poisons and Therapeutic Goods Regulation 2008 (NSW) (PTGR) (Schedule 4D drugs). It was not in dispute that Schedule A to the Complaint accurately recorded dates upon which Schedule 4D and Schedule 8 drugs had been prescribed by the Practitioner. The identity, date dispensed, the drug strength, dose, drug schedule, quantity, repeats, prescribing pharmacy, record of script in the patient notes, and whether the prescribed drugs were PBS or private script, were accurately recorded in Schedule A, and amended Schedule A.
The Complaint alleged that the Practitioner was guilty of unsatisfactory professional conduct under s 139B(1)(a) or (l) of the National Law in that the Practitioner has engaged in: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) … (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The particulars of Complaint 1, as amended, provided: "1. Between 25 November 2016 - 20 May 2021, the practitioner prescribed for Patient A the Schedule 4D drug clonazepan and on 20 May 2021 the Schedule 4D drug pregabalin as set out in amended Schedule A, where the duration and frequency of the prescribing: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 34 of the PTGR; b. otherwise was not clinically indicated or appropriate in the patient's circumstances. 2. Between 25 November 2016 - 20 May 2021, the practitioner prescribed for Patient A the Schedule 8 drugs methadone and tapentadol as set out in Schedule A in a quantity that, having regard to the period of time over which the drugs were prescribed: a. did not accord with the recognised therapeutic standard of what was appropriate in the circumstances, contrary to clause 79 of the PTGR; b. otherwise was not clinically indicated or appropriate in the patient's circumstances. 3. On 20 May 2021, the Practitioner failed to conduct an appropriate assessment of Patient A prior to prescribing him the Schedule 4D drugs pregabalin and clonazepam and the Schedule 8 drugs methadone and tapentadol as set out in Schedule A which should have included: a. performing an annotating an adequate history; b. performing a focused examination; c. ordinary pathology and urine tests. 4. On 20 May 2021, the Practitioner inappropriately prescribed Schedule 8 drugs to Patient A without an authority in contravention of section 28 of the PTGA. 5. On 20 May 2021, the Practitioner failed to undertake relevant enquiries as to whether Patient A was a drug dependent person which should have included: a. contacting the Ministry of Health regarding Patient A's Opioid Treatment Programme status. b. contacting the Medicare Australia Dr Shopper line. c. ordering urine drug screening. d. contacting Patient A's regular General Practitioner. e. contacting Patient A's regular pharmacy. f. reviewing Patient A's patient records where colleagues had documented his drug seeking behaviour. 6. On 20 May 2021, the practitioner prescribed the Schedule 4D drugs pregabalin and clonazepam and the Schedule 8 drugs methadone and tapentadol as set out in Schedule A without seeking any information from Patient A's General Practitioner as to his current medications. 7. On 20 May 2021, the practitioner failed to appropriately respond to Patient A's drug seeking behaviour. 8. On 20 May 2021, the practitioner inappropriately prescribed benzodiazepines in combination with opioid drugs to Patient A which was unsafe. 9. On 20 May 2021, the practitioner failed to make appropriate and adequate entries to establish what Patient A's current medication was prior to prescribing him the Schedule 4D drugs pregabalin and clonazepam and the Schedule 8 drugs methadone and tapentadol as set out in Schedule A. 10. Between 2007 - 2021, the practitioner failed to make appropriate and timely referrals for specialist assistance for Patient A to the following relevant specialists: a. pain specialist. b. alcohol or other drug specialist. c. a doctor skilled in the management of drug dependency. 11. Between 2007 - 20 May 2021, the practitioner failed to seek advice from colleagues in the overall management of Patient A especially his drug related issues."
By his Reply, the Practitioner admitted the Complaint and stated: "1. The Respondent admits the Particulars 1 and 2 of Complaint One for the period of time 25 November 2016 until 25 October 2018 and on 20 May 2021. 2. The Respondent admits Particulars 3, 4, 5, 6, 7, 8 and 9 of Complaint One. 3. The Respondent admits Particulars 10 and 11 for the period of time 2017 until October 2018 and 20 May 2021 of Complaint One. 4. The Respondent admits that his conduct as described by the above admitted Particulars amounts to unsatisfactory professional conduct in accordance with s 139B(1)(a) of the Health Practitioner National Regulation Law (National Law). 5. The Respondent leaves the issue as to whether or not his admitted conduct is also unsatisfactory professional conduct on the basis of s 139B(1)(l) of the Health Practitioner National Regulation Law (National Law), for the Tribunal to decide."
It is not in contest that after his consultation with the Practitioner on 24 October 2018, Patient A did not consult the Practitioner again until 20 May 2021.
In final addresses, Counsel for the parties engaged with whether, as the Commission's application sought, findings of unsatisfactory professional conduct pursuant to s 139B(1)(l) of the National Law should be made in addition to the factual findings which the Practitioner admitted should be made pursuant to s 139B(1)(a) of the National Law. The Tribunal will engage with those submissions later in these reasons.
We record at this stage that it was not suggested by the Commission that upholding the Complaint pursuant to s 139B(1)(l) of the National Law enhanced its case with respect to the imposition of conditions on the Practitioner's registration as a medical practitioner. Nor has it been submitted on behalf of the Practitioner that not making a finding of improper or unethical conduct pursuant to s 139B(1)(l) of the National Law enhanced his case in opposition to the imposition of conditions as sought by the Commission.

Complaint 2

Complaint 2 alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law in that he had contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2016 (the Regulation).
In support of the Complaint, the Commission alleged that on 20 May 2021 the Practitioner failed to make and keep adequate records in relation to Patient A, which included notes that: "(a) lacked the required content. (b) lacked clarity. (c) failed to record the [P]ractitioner's conversation with the Medicare Australia PBS Authority's hotline regarding Patient A."
By his Reply, the Practitioner admitted this Complaint.

Complaint 3

Complaint 3 alleged that the Practitioner was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) and (l) of the National Law in that the Practitioner had: "i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
In support of the Complaint, the Commission alleged that: "1. The practitioner inappropriately prescribed drugs to his family members which included: i. Patient A. ii. Patient A's father. iii. the practitioner's sister. iv. the practitioner's brother-in-law. 2. In prescribing drugs to his family members at 1 above, the practitioner's conduct was contrary to: a. NSW Medical Council's 'Guideline for self-treatment and treating family members'; b. Medical Board of Australia 'Good Medical Practice: a code of conduct for doctors in Australia' at 4.15."
By his Reply, the Practitioner stated that he "leaves Complaint Three for the Tribunal to decide."
In support of this Complaint, the Commission relied upon the evidence of Dr Emery Kertesz, a General Medical Practitioner with longstanding experience whose expertise was not challenged (Exhibit HCCC1, Tab 7).
The Practitioner clarified in oral evidence that Patient A was the son of his father's cousin. The Practitioner was not sure that previous evidence given by him that he thought Patient A was his "third or fourth cousin" was necessarily accurate. In submissions, Counsel for neither party suggested how the familial relationship between the Practitioner and Patient A should be described. The evidence with respect to the dates on which Patient A consulted the Practitioner are in evidence and are not disputed.
There is no evidence of the frequency or nature of the consultations by Patient A's father with the Practitioner. Nor is there any evidence with respect to the frequency or nature of consultations with the Practitioner's sister or his brother-in-law. The Practitioner's evidence is that he never prescribed Schedule 4D or Schedule 8 drugs for his sister or brother-in-law. That evidence was not challenged. The Practitioner gave evidence that he has never been, and is not, either his sister or brother-in-law's regular general practitioner. That evidence was not challenged. The Practitioner gave evidence that when he was consulted by his sister or brother-in-law, and prescribed medication for them, it had been, in essence, in circumstances where doing so was particularly convenient for them and that he had never "initiated" treatment for them. That evidence was not challenged.
There is no evidence that the Practitioner ever "initiated" treatment for Patient A's father or prescribed Schedule 4D or Schedule 8 drugs for him.
In his report, Dr Kertesz referred to section 4.15 of the Medical Board of Australia "Good Medical Practice: a code of conduct for doctors in Australia" (the Code) which states under the heading "Providing care to those close to you": "Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those who work with you and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the patient and doctor. In particular, medical practitioners must not prescribe Schedule 8, psychotropic medication and/or drugs of dependence or perform elective surgery (such as cosmetic surgery), to anyone with whom they have a close personal relationship. In some cases, providing care to those close to you is unavoidable, for example in an emergency. Whenever this is the case, good medical practice requires recognition and careful management of these issues."
There is no evidence that, other than Patient A, the Practitioner has ever prescribed Schedule 8, psychotropic medication and/or drugs of dependence, or performed elective surgery with respect to Patient A's father, the Practitioner's sister or the Practitioner's brother-in-law.
Dr Kertesz referred to the NSW Medical Council "Guideline for Self-Treatment and Treating Family Members" (Guideline) which states the following general principles: "1. All medical practitioners should have their own, independent General Practitioner. 2. Medical practitioners should not initiate treatment (including prescribing) for themselves or members of their family. 3. In emergency situations or isolated settings where there is no help available, medical practitioners may treat themselves or members of their family until another medical practitioner becomes available. 4. Medical practitioners should not serve as primary or regular care providers for members of their family, although there are circumstances in which they may work together with an independent medical practitioner to maintain established treatment. 5. Medical practitioners should not issue medical certificates for themselves or members of their family. 6. Medical practitioners should not issue death certificates or cremation documents for members of their family."
Dr Kertesz added (at p 12): "Specifically relating to family members, the guidelines include the following: 'Professional objectivity may be compromised, and their judgment may be influenced by the nature of their relationship with the patient. Medical practitioners may fail to explore sensitive areas when taking a medical history or may fail to perform an appropriate physical examination. The patient may feel uncomfortable disclosing sensitive information or undergoing a physical examination when the medical practitioner is a family member. Patient autonomy may be compromised when a medical practitioner treats a member of their family. The principles of informed consent may not be adhered to when a medical practitioner treats a member of their family.'"
Dr Kertesz observed (at p 12) that the guidelines were "not state or national laws however the recommendations therein contained are a strict and comprehensive recommendation for the treatment of family members". Dr Kertesz's opinion was that the Practitioner's "failure to recognise the potential harm in providing care to his second cousin and his being unaware of the guidelines issued by both the Medical Board of Australia and the NSW Medical Council makes his behaviour fall below that reasonably expected of a practitioner of equivalent level of training and experience and that departure is significantly below that standard".
That was the extent of Dr Kertesz's report with respect to this Complaint. The evidence of fact which informs the Complaint, and Dr Kertesz's opinion with respect to it was provided by the Practitioner. That information was not suggested to be other than accurate.
We have earlier referred to the evidence which the Practitioner gave with respect to each of the four patients referred to in this Complaint. Had the Practitioner not given that evidence, and done so in a forthright manner, it is conceivable that, save to the extent to which we have referred with respect to Patient A, the Commission would not have been able to rely upon any evidence of fact with respect to Patient A's father or the Practitioner's sister or brother-in-law as the foundation for Dr Kertesz's opinions. Fortuitously, as Dr Kertesz was cross-examined after the Practitioner was cross-examined, he was able to be, and was asked to express opinions on the basis of the evidence of fact given by the Practitioner.
In the course of his evidence, Dr Kertesz frankly recognised the difficulty of defining or qualifying what a "close personal relationship" was. Dr Kertesz stressed the importance in a doctor/patient relationship of parties being at "arm's length", total transparency, and the avoidance of any "personal involvement". Dr Kertesz sagely suggested that medical practitioners should "try to avoid treating people who are close to us", although who such patients were was not "set in stone", or governed by any specific "rules and regulations". Dr Kertesz fairly conceded that, as the Tribunal accepts was the case, if there was never a personal relationship between the Practitioner and Patient A, he would "moderate" or "temper" his criticism of the Practitioner's conduct, suggesting that it fell "below but not significantly below" the requisite standard.
As we have earlier recorded, the evidence does not establish a close personal relationship to have ever existed between the Practitioner and Patient A's father. Although arguably a member of the Practitioner's extended family, whether Patient A, or his father, were "family members" or "members of [the Practitioner's] family" for the purpose of the Code or the Guideline is less than certain.
We do not understand Dr Kertesz to have made any specific concessions with respect to his opinion in relation to treatment of the Practitioner's sister or brother-in-law.
Counsel for the Commission referred at pars 14-15 of their submissions to the concessions made by the Practitioner in cross-examination and, in particular, to the Practitioner's statement dated 23 March 2023 (Exhibit R1, Tab 2 at par 103) that he "should not have treated members of my family, no matter whether or not they have a close relationship". Although reliance upon that admission was appropriate, the Tribunal must be comfortably satisfied of each element of this Complaint in order to uphold it. In our view, the Practitioner's admission established that his conduct fell below the requisite standard. Whether it fell significantly below the requisite standard remains to be considered.
The Commission relied on the Practitioner's acknowledgement during cross-examination that treating family members, irrespective of whether they had a close relationship, carried risks for the patient. In his evidence, the Practitioner identified a number of means by which that risk could materialise. It was submitted, correctly, by the Commission that the Practitioner's personal relationship with Patient A and Patient A's father "caused his judgement to be clouded at the consultation on 20 May 2021".
The evidence of the Practitioner at the s 150 hearing before the Medical Council to which Counsel for the Commission referred, confirms, as the Practitioner said, that his judgement "must have been affected by the fact that it was a relative, took at trust, death in the family not seeing him for a long time". In his evidence before the Tribunal, the Practitioner did not resile from what he had previously said, or to attempt to justify or otherwise distance himself from his earlier statements.
The Commission also submitted (at par 15) that the acknowledgements by the Practitioner that he had not been aware of the Code, or the Guideline to which Dr Kertesz referred, supported this Complaint.
Counsel for the Practitioner submitted (at par 8FF) that this Complaint was distinguishable from the other Complaints, which the Practitioner had admitted. It was submitted, accurately, that the Complaint did not involve inappropriately prescribing Schedule 8 or Schedule 4D medications to multiple patients, the only inappropriate prescribing being with respect to Patient A which the Practitioner readily admitted in response to Complaints 1 and 2. It was further submitted that the Complaint did not involve "a practitioner who was conducting the vast bulk of the patient's care when prescribing to him. He considered himself as supplementing that care, and the absence from other practitioners tends to bear that out".
The evidence does not establish that the Practitioner "initiated" treatment for any of the four persons to whom this Complaint relates. Nor does it establish that he was the "primary" or "regular" care provider for at least three of them. The identity of a number of medical practitioners who have been involved in the care of Patient A has been revealed by the evidence. That is not so with respect to the other three persons to whom the Complaint relates. The evidence of the Practitioner with respect to Patient A is that he endeavoured to communicate and work with independent medical practitioners who were from time to time treating Patient A. The absence of success of those efforts was not attributable to any failure or absence of diligence on the part of the Practitioner having regard to his unchallenged evidence in that regard.
The submissions on behalf of the Practitioner (at pars 10-11) related more to the consequences of finding this Complaint established than to whether it has been established. Under the heading "Prescribing to family", the Practitioner made a number of submissions (at pars 26-36) in support of his defence to this Complaint. It was acknowledged, accurately, that the Practitioner accepted, and has accepted from the commencement of these proceedings, the "inappropriateness in general terms of prescribing to family members".
Counsel for the Practitioner submitted (at par 30) that Dr Kertesz's report was "silent" with respect to the treatment of the Practitioner's sister and brother-in-law. Although these proceedings are not governed by the rules of evidence, the weight which is appropriate to be afforded to expert opinion evidence is informed by the principles recorded in the decisions of courts with respect to s 79 of the Evidence Act 1995 (NSW), which is concerned with "opinions based on specialised knowledge". In the context of observations with respect to the admissibility of expert opinion evidence, in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85], Heydon JA suggested that opinions based on "assumed" or "accepted" facts required identification and proof of those facts. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, the High Court reiterated the need for expert opinion evidence to explain how the expert's expertise applies to the facts "assumed or observed" by the expert. In the present case, Dr Kertesz's opinions with respect to this Complaint were necessarily reliant upon "assumed facts".
Counsel for the Practitioner relied (at par 32) on the onus of proof which the Commission bears in these proceedings, and submitted that, although it was open to the Tribunal to find, and, at least inferentially, not seriously disputed by the Practitioner that his conduct fell below the requisite standard, the Tribunal could not be comfortably satisfied that the conduct fell significantly below that standard. We have earlier referred to the concessions properly made by Dr Kertesz with respect to Patient A. Whilst, as Dr Kertesz noted, the Code and the Guideline do not have the force and effect of a provision of the National Law or a regulation made pursuant to it, or any other specific legislative instrument governing the conduct of medical practitioners, their provisions provide an objective basis by reference to which the conduct of the Practitioner can be properly evaluated.
The Code refers (at section 4.15) to avoiding the provision of medical care to anyone with whom a medical practitioner has a "close personal relationship". The section then states that "in most cases, providing care to close friends, those you work with and family members is inappropriate" for the reasons which are then recorded. Significantly, the Code refers to "most" cases. The Code expressly refers to "some cases" in which providing care to those "close to you is unavoidable", an example being "an emergency". Not surprisingly, the Code does not define "family members" or "family". Nor does the Guideline.
The Guideline may be thought to be more limited by reason of its requirement that medical practitioners "should not initiate treatment (including prescribing) for themselves or members of their family". The evidence does not establish that the Practitioner initiated treatment by way of prescribing for any of the four persons referred to in this Complaint. The only treatment which the evidence reveals that the Practitioner provided for those persons was "prescribing".
The definition of "family" is significantly dependent upon the context in which the word is used. For example, the Australian Bureau of Statistics defines family as "two or more persons, one of whom is at least 15 years of age, who are related by blood, marriage (registered or de facto), adoption, step or fostering, and who are usually resident in the same household". It is readily apparent that many "families" would not fall within that description.
In Thompson v The Public Trustee of New South Wales [2010] NSWSC 1137, Hallen AsJ (as His Honour then was) considered the meaning of "close personal relationship" pursuant to the provisions of s 5 of the Property (Relationships) Act 1984 (NSW), which is concerned with "domestic" relationships, one type of which is defined as a "close personal relationship" between "two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care". Excluded from the category were persons who provided domestic support and personal care "for fee or reward". It is readily apparent that many domestic relationships which would be regarded as "families" would not fall within that description.
On balance, it appears that the primary focus of the provisions of the Code and the Guideline is on the "closeness" of a personal relationship between a medical practitioner and patient. Although persons who are related by blood or legal or de facto marriage may constitute "family", it could not be seriously suggested that members of the household of a medical practitioner who have no blood or other formal ties to the practitioner could not be "family" for the purpose of the Code or the Guideline.
On balance, although, as the Practitioner frankly admitted, the conduct relied upon in support of this Complaint fell below the requisite standard, the Tribunal is not comfortably satisfied that it fell significantly below that standard. Inherent in so finding is our inability to be satisfied to the requisite standard that, although related to him by blood or marriage, distant though that was in the case of two of them, the Practitioner had a "close personal relationship" with any of the four persons referred to in the Complaint. If we are wrong, and the Code and/or the Guideline applied to some or all of the four persons referred to in the Complaint, in view of the circumstances surrounding each of those persons, and that the Practitioner's conduct fell below the requisite standard, we would not be comfortably satisfied that the conduct fell significantly below the requisite standard.
For those reasons, the Tribunal is not persuaded that this Complaint has been established.

Whether the Practitioner is guilty of improper or unethical conduct pursuant to s 139B(1)(l) of the National Law

Under the heading "Improper unethical conduct: what is established in these proceedings?", Counsel for the Practitioner referred (at pars 51-62) to the "different approaches" which were suggested to emerge from decisions of the Tribunal as to what may be "improper conduct, in the context of inappropriate prescribing".
Counsel referred to Health Care Complaints Commission v Khalighimonfared [2022] NSWCATOD 78 ("Khalighimonfared"), in which the practitioner admitted that the prescribing of Schedule 8 drugs to three patients over a period of nearly 2 years constituted unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law, but denied that the conduct was "improper or unethical" pursuant to s 139B(1)(l) of the National Law. It was submitted (at par 54) that the Tribunal concluded (at [85]) that there had been no improper or unethical element to the practitioner's conduct.
After reviewing a number of authorities in which the meaning of "improper" and "unethical" conduct was considered in the context of protective proceedings of the present kind and other proceedings, the Tribunal recorded in Khalighimonfared at [85]: "There is no doubt that the conduct of the practitioner, in relation to his treatment of the six patients, was significantly lacking and, by his own admission, sufficient to constitute unsatisfactory professional conduct and professional misconduct. We do not consider, however, that his conduct could properly be found to be 'improper or unethical relating to the practice or purported practice of medicine'. In our view, his deficiencies in knowledge and practice do not include any element of 'unethical or improper conduct' for the purposes of section 139B. He lacked relevant knowledge and experience and acted in a manner which did not meet the best interests of his patients but, in our assessment, there was no 'unethical or improper element' to his conduct."
To what extent the issue was fully debated in that case is not apparent from the Tribunal's reasons for decision.
Counsel for the Practitioner also referred us to the decision of the Tribunal in Health Care Complaints Commission v Javaheri [2022] NSWCATOD 162 ("Javaheri") at [162], [164]-[209]. Javaheri was also a prescribing case. The Tribunal recorded (at [208]) that it had: "… considered the arguments of each of the parties and assessed same against the established facts. If we follow the dictionary definition of 'improper' (as in Health Care Complaints Commission v Sare [2018] NSWCATOD 190) then we would find the conduct of the Respondent was 'abnormal or irregular'. If we follow the words adopted in Office of Local Government v Toma [2015] NSWCATOD 21 then we would find the conduct fell 'below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the' medical profession. Such findings would then establish the HCCC case against the Respondent pursuant to s 139B(1)(l)."
The potential practical utility of finding guilt pursuant to s 139B(1)(l) in addition to a finding of guilty pursuant to s 139B(1)(a) of the National Law was explained by the Tribunal in Javaheri at [210]. Although on the facts of that case such finding did not have "significant meaning", the Tribunal said that it was "a matter which may address the seriousness of the conduct when put alongside all of the other findings in this case, against the Respondent, pursuant to s 139B(1)(a), and therefore inform the decision in relation to s 139E".
As in the present case, the Tribunal would have been comfortably satisfied that professional misconduct had been established irrespective of whether the Practitioner was found guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l) of the National Law.
In Health Care Complaints Commission v Grygiel (Stay Application) [2019] NSWCATOD 123, Boland ADCJ considered that the Tribunal could find that unsatisfactory professional conduct pursuant to s 139B(1)(a) could also constitute "any other improper or unethical conduct" pursuant to s 139B(1)(l) of the National Law. As her Honour's reasons confirm, the issue is fact sensitive.
Although, as doing so would have no practical utility in the circumstances of this case, we do not need to express a concluded view, the terms of s 139B(1)(l) of the National Law appear intended to capture conduct which does not fall within any of the previous categories of conduct which constitute unsatisfactory professional conduct. The use of the expression any "other" improper or unethical conduct implies that s 139B(1)(l) is intended to encompass conduct which is found to be improper or unethical which is not captured by the various categories of offending conduct which are articulated in s 139B(1)(a) to (k) of the National Law. Interpreting the provision in that manner would arguably "best achieve the purpose or object underlying" the National Law as it is revealed by s 3A, and thus be preferred to "each other interpretation" of the provision: Interpretation Act 1987 (NSW), s 33; Mulpha Australia Ltd v Central Sydney Planning Committee (2018) 233 LGERA 385; [2018] NSWLEC 179.
In this case, the admitted conduct of the Practitioner which amply supports a finding of unsatisfactory professional conduct pursuant to s 139B(1)(a) is the same conduct as the Commission relied upon to establish improper or unethical conduct pursuant to s 139B(1)(l) of the National Law. Although not in this instance, a finding pursuant to s 139B(1)(l) could in turn be relied upon to establish professional misconduct. Doing so in the circumstances of this case would offend the rule against "double jeopardy" which applies in proceedings pursuant to the criminal law: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. These are not "criminal" proceedings, but, having regard to the implications for the Practitioner of finding complaints proved, we are reluctant to adopt a course which would result in his being found guilty of the same misconduct twice as a matter of fairness. Conversely, it would be counter-intuitive to find a practitioner guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l) and then disregard that finding when the issue of professional misconduct is addressed. On balance, we consider the preferable approach in this case to be to decline to find the Practitioner guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l) of the National Law.

Whether the Practitioner is guilty of professional misconduct pursuant to s 139E of the National Law

Section 139E(b) of the National Law provides that, for the purposes of the law "professional misconduct" means "more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify a suspension or cancellation of the practitioner's registration."
As the authorities make clear, "there is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct", and that deciding whether conduct is sufficiently serious to constitute professional misconduct involves an "evaluative determination" by the Tribunal: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [9] (Basten JA).
The Tribunal is comfortably satisfied by the evidence that the instances of unsatisfactory professional conduct of which the Practitioner has been found guilty are sufficiently serious when considered together to amount to professional misconduct. The disciplinary powers of the Tribunal pursuant to Subdivision 6 of Division 3 of the National Law, including the power to cancel or suspend the Practitioner's registration pursuant to s 149C, are thus enlivened.

Stage 2

In the light of the evidence which the Tribunal has heard, the Commission ultimately, and properly in our view, sought that, pursuant to s 149A(1)(a) of the National Law, the Practitioner be reprimanded, and that a number of conditions be attached to his registration (National Law, s 149A(1)(b)).
The Practitioner did not oppose the imposition of a reprimand, but did oppose having any conditions attached to his registration.
The Tribunal is comfortably satisfied that a reprimand is appropriate on the evidence before it, and is consistent with the principles which emerge from the authorities. Those principles governing are not in doubt and require only brief reiteration for present purposes.
The Tribunal accepts that the Commission bears the onus of establishing that, in order to protect the health and safety of the public it is necessary to impose the conditions which it seeks: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10.
Section 4 of the National Law requires the Tribunal to exercise its functions having regard to the objectives and guiding principles recorded in s 3B of the National Law, which provides that, in exercising its powers under the National Law, the Tribunal must regard "the protection of the health and safety of the public" as the "paramount consideration". In making protective orders, the task undertaken by the Tribunal has consistently been described as centring "not on punishment as such but on the protection of the public and the maintenance of proper professional standards": Lee v Health Care Complaints Commission [2012] NSWCA 80 ("Lee") at [21].
In Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 ("Lambert") at [83], Basten JA said that the specific purpose for which orders are made is "protective in the public interest and is not punitive with respect to the individual" although such orders "may be punitive in effect", and that punitive effect "may be relevant in formulating a protective order". His Honour further observed that 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".
The authorities recognise, and the Tribunal accepts, that it cannot assume that a practitioner has reformed without clear proof, and that more than the mere passage of time without misconduct is required: Lee at [73]. The authorities also suggest that reformation is the exception rather than the norm: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWSC 297. The Tribunal must be satisfied that the practitioner has demonstrated "integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant obligations and codes of practice such that it is appropriate for the practitioner to be held out to the public as a person worth of their confidence": Dawson v Law Society of New South Wales [1989] NSWCA 58; Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115.
Protecting the health and safety of the public is not confined to protecting future patients from the risk of harm. The Tribunal may appropriately take into account matters such as the maintenance of standards and the general standing of the medical profession. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the Court of Appeal noted that an objective was: "… 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."
In the criminal law, good character and an otherwise unblemished record may materially mitigate the severity of the sentence which is imposed for offending conduct: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(e)-(f). The Tribunal takes each of those matters into consideration in favour of the Practitioner, particularly having regard to the duration of his unblemished record of professional service. However, as the National Law makes clear, the paramount interest in determining appropriate protective orders remains the health and safety of the public.
In Health Care Complaints Commission v Thomas [2015] NSWCATOD 60, to which Counsel for the Commission referred the Tribunal, and by reference to the decisions to which the Tribunal referred, it was observed (at [87]) that: "… Disciplinary orders have as their primary objective the protection of the public from incompetent, irresponsible and unsafe practice of medicine. They also serve as markers to the practising profession as to the consequences that may flow from failures to adhere to professional standards so grave as to constitute unsatisfactory professional conduct or professional misconduct. They serve to promote public confidence in the high standards of medical practitioners. …"
In Lambert at [83], Basten JA said that "the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection" and (at [85]) that "[t]hat message denies the analogous application of principles relevant to sentencing proceedings in the criminal jurisdiction".
In his statement (Exhibit R1, Tab 2) the Practitioner recorded (at par 7) that "[a] lot of my patients have been seeing me as their doctor for a long time and followed me from Waverley Medical. I also see a lot of young kids and teenagers but mainly my patients are over 50 years of age. I also have a group of patients (from 16-45 years old) who I treat for mental health issues". The Practitioner referred (at par 9) to his involvement in "setting up and delivering a nutritional educational programme in Timor-Leste to assist the locals as they have one of the highest infant mortality rates in the world. Recently I went to Timor in March 2023 to volunteer and will continue to introduce this programme on a volunteer basis". In response to questions from the Tribunal, the Practitioner explained the nature and extent of his involvement in volunteer work in Timor-Leste in his capacity as a medical practitioner.
After outlining his history of treatment with respect to Patient A, the Practitioner set out (at pars 26-42) the circumstances surrounding his consultation with Patient A on 20 May 2021. The Practitioner stated (at par 43): "On reflection, I can see that my consultation on that day was affected by a number of extenuating circumstances, namely the bereavement which took my focus the time constraints put on me by the shortage of doctors, being pressured by staff and the Covid pandemic. I have reflected on the consultation over the last 18 months and realised the mistakes I have made and how to avoid this happening again."
The Practitioner further said (at par 45) "I was absolutely distraught when I read the complaint and learnt that I had contributed to [Patient A's] overdose. I have agonised and relived my consultation with [Patient A] on 20 May 2021, on multiple occasions, and thank God that the result was not more catastrophic". The Practitioner stated (at par 46), accurately, that, at the inquiry convened by the Medical Council on 10 June 2021 he had acknowledged that his consultation with Patient A on 20 May 2021 was "below standard and that [he] was greatly embarrassed and upset".
Under the heading "Changes", the Practitioner recorded (at par 54) his determination to "learn from this incident and proactively engaged in refreshing and learning more about the issues which relate to the matter". Annexed to the Affidavit (Annexure G) was an extensive list of CPD activities which the Practitioner has undertaken since the Complaint was brought against him. Under the heading "Observation Session", the Practitioner set out (at pars 55-57) his learning at the Pain Management Clinic with Addiction Medicine, Department of Pain Management, Prince of Wales Hospital, with specialists Associate Professor Apo Demirkol and Associate Professor Kok-Eng Khor on 1 December 2021.
On 8 February 2022, Associate Professor Khor provided a statement (Exhibit HCCC1, Tab 17(b)) in support of the Practitioner "in his capacity as a general practitioner". Associate Professor Khor's contact with the Practitioner extends "back at least 15 years". Associate Professor Khor's opinion was that "as far as I can determine, Dr Gazal has always been attentive to his patients' needs and we would collaborate well in managing some of these complex patients". Associate Professor Khor confirmed that the Practitioner had done the "observation study" to which he referred in his statement, and that the Practitioner "continues to take active part in continuing medical education and maintaining his CPD status. He had given several lectures on contemporary patient care issues to his colleagues in his practice and also within the RACGPs".
As with others who provided statements in support of the Practitioner, Associate Professor Khor was not required for cross-examination on that statement.
Under the heading "Practice Environment has Changed", the Practitioner set out (at pars 58-60) the changes in his practice, and his own working hours which have resulted in his not feeling "the same pressure to move through patients as I did with the previous owner/practice manager" (at pars 61).
Under the heading "Educating Others in the Same Practice", the Practitioner set out (at pars 62-64) steps which he has taken within the practice aimed at ensuring "that all doctors provide a united approach in relation to prescribing drugs of addiction and do not repeat my mistakes, and to make them aware of the NSW rules and regulations". Further evidence of education of other doctors throughout the profession was also provided (at par 65).
Under the heading "Impact of this Matter" the Practitioner said (at pars 67-70): "67. Over the past 1 and half [sic] years I have reflected greatly on my actions of that day and deeply regret the dire circumstances that followed. I have read extensively regarding opioids, prescribing rules and regulations and have undertaken courses to improve my ability as a doctor. 68. I accept that I had a lack of knowledge in relation to the requirement to have a NSW Authority for certain medications for a drug dependent person. 69. This matter, I believe, has made me a better doctor and I can see where I made mistakes and if a similar circumstance arose, I would do things entirely differently. 70. The matter has caused me a great deal of stress and has affected me and my family and is something that makes me even more determined not to allow for this mistake to happen ever again."
In the course of polite but probing cross-examination, the Practitioner did not resile in any way from the admissions which he first made shortly after the Complaint against him came to his notice in 2021. The Practitioner did not attempt to rationalise or excuse in any way the conduct which he admitted, or to attempt to deflect blame for that conduct from himself. The genuineness of the Practitioner's contrition and embarrassment was palpable during the course of his cross-examination.
Having heard his evidence, the Tribunal is confident that the Practitioner will not reoffend. That finding is partly reliant upon the Practitioner's demeanour during cross-examination, but more reliant upon the circumstantial evidence, or lack of it, with respect to the likelihood of his reoffending, and the evidence of health professionals who have known the Practitioner professionally for many years.
Susan Corbett, a Pharmacist who has known the Practitioner for more than 40 years, provided a statement in his support (Exhibit R1, Tab 3b), dated 27 February 2023. Ms Corbett said that: "Having had a long working relationship with Dr Gazal, I have always found him to be a very caring doctor with a great deal of concern for his patients. This has been exhibited by the loyalty and trust shown by his long-standing patients over the years. His care for his patients has also been displayed by the confidence of a wide demographic of his patients, from the parents of young children and babies to the very elderly."
Ms Corbett, who was aware of the allegations against the Practitioner, was "surprised by the charges against Dr Gazal as this doesn't reflect his normal prescribing. There have been occasions where he has been thoughtful in the quantities of medications he has prescribed and not given the default maximum quantity. Although I cannot recall specific examples and before the official introduction of 'staged supply', there were occasions when he rang the pharmacy to ask us to restrict the supply of some drugs to smaller amounts and at intervals".
Ms Corbett's evidence, particularly having regard to the nature and duration of her professional association with the Practitioner, is counter indicative of the need for conditions to be imposed on his registration in the interests of public health and safety.
Dr Gerard Barold, a general practitioner with more than 40 years' experience, provided a statement in support of the Practitioner dated 24 February 2023 (Exhibit R1, Tab 4b). Dr Barold first came into contact with the Practitioner in the late 1980s and early 1990s, at which time the Practitioner was President of the AMA Section for General Practice in NSW as well as GP representative of the AMA National Council. For the reasons set out in his statement, Dr Barold was of the opinion that the Practitioner's development of the General Practice Conference and Exhibition "has played a significant if not revolutionary role in the provision of GP medical education".
Professor Phillip Stricker, the Chair of the Department of Urology at St Vincent's Clinic, provided a statement in support of the Practitioner dated 27 February 2023 (Exhibit R1, Tab 5b). Professor Stricker has known the Practitioner as a general practitioner "for over 20 years in a professional capacity", during which time the practitioner has been a regular GP referrer of patients to Professor Stricker. Professor Stricker stated that the Practitioner's patients "are always exceptionally well worked up before they are referred to me and often there are follow up calls with regard to the patient". Professor Stricker's opinion was that the Practitioner's reputation "throughout the medical fraternity which I mix with regularly is outstanding".
Professor Stricker concluded by stating that he had "no hesitation in supporting Lindsay Gazal's character and reputation which has been outstanding during this whole period of time where I have been practising. Lindsay is a meticulous, intelligent, considerate and empathetic general practitioner with a very high level of knowledge and I would have no hesitation in supporting his character reference."
Ms Michelle Horswood, Manager of the Bronte Medical Centre and O'Connell Street Clinic, provided a statement in support of the Practitioner (Exhibit R1, Tab 6b). Ms Horswood is a Registered Nurse of 43 years standing with multiple post-graduate nursing qualifications and a Master of Management Degree majoring in human behaviour. Ms Horwood has worked as a manager for 30 years in both large tertiary hospitals and private medical facilities, 19 years of which have been in general practice.
Ms Horswood first met the Practitioner in November 2021 and observed that it was "markedly apparent to me that the Bronte practice had been undermanaged for some time", a matter which she discussed with the Practitioner. Ms Horswood detailed the Practitioner's concern to improve management of the practice and the morale of those working there. Ms Horswood made a number of positive statements about the Practitioner's ethics and professionalism, and referred to his being "looked to as a clinical leader in the practice" whose opinion was "valued by all". Ms Horswood referred to the Practitioner's "legacy of ongoing learning to the general practice community" through the general practice education conference which he instigated more than 20 years ago.
Dr Snezana Zec provided a statement in support of the Practitioner dated 22 February 2023 (Exhibit R1, Tab 7b). Dr Zec has known the Practitioner for more than 20 years and considers him to be an "honest and dedicated person and I cannot vouch highly enough for his character, integrity and reputation. He has always been willing to offer assistance to his fellow colleagues and has been invaluable and respected contributor to Bronte Medical".
Dr Zec confirmed the Practitioner's evidence with respect to the steps which he has initiated within the practice, to which the Practitioner also referred, and particularly to changes within the practice which clearly have reduced the levels of stress with which the Practitioner has previously had to cope.
The Practitioner relied upon a statement by a former District Court Judge (Exhibit R1, Tab 8b) who has known the Practitioner since about 1999, being a "close friend of my son" with whom the Practitioner was "involved in setting up the general practitioners conference and exhibition in cooperation with the Universities of Sydney and New South Wales". The witness was of the view that the Practitioner was "not only a man of good character, with a good grasp of medical ethics, but that he had a genuine desire to do the utmost for his patients. He seemed very anxious to ensure that he addressed not only their physical wellbeing, but also their wellbeing." The statement continued that "after reading the Notice of Complaint, I spoke to Dr Gazal. He was very frank in acknowledging that he had behaved in a manner which he appreciated broke a number of rules of ethics and proper medical treatment. He is deeply remorseful that he allowed himself to engage in this behaviour." The statement further recorded that "[t]here is no doubt in my mind that Dr Gazal has learned a bitter lesson from this HCCC prosecution. He has undoubtedly damaged his reputation, which he finds deeply humiliating. He accepts that he brought it on himself. He has worked long and hard as a GP over many years without any complaints against him. He has spent a great deal of time reflecting on what he did or failed to do. He is deeply remorseful and immensely distressed. I feel confident that he will never behave in like manner again".
The Practitioner's evidence before the Tribunal, and our observations of him whilst giving that evidence, are consistent with those opinions.
Professor Gordian Fulde AO, an eminent Professor in Emergency Medicine, provided a statement in support of the Practitioner (Exhibit RA, Tab 9b). Professor Fulde attended throughout the first day of the hearing of the proceedings. Professor Fulde and the Practitioner have been "close friends since 1966" when they met in the course of their studies of medicine at the University of Sydney. Professor Fulde detailed his subsequent contact with the Practitioner and set out a number of matters with respect to the Practitioner's "clinical skills and medical professionalism", recording, in that context, that Professor Fulde had "chosen Lindsay as my own GP and he is fully involved in the care I receive from specialists at St Vincent's".
Professor Fulde referred to the Practitioner's "general reputation", with particular reference to the Practitioner having "led the way by creating a GP conference and medical exhibition" which continues and, in Professor Fulde's opinion, provides a valuable service to the medical profession and the general public. Professor Fulde concluded by stating his belief that the Practitioner "is a good and careful general practitioner who cares for his patients and practises at a high standard. I am happy to have him treat me personally and to recommend him as a doctor to others who need care."
Having regard to Professor Fulde's standing in the medical profession, and the Australian community, which is reflected in his being made an Officer of the Order of Australia, his evidence is entitled to very considerable weight.
The Tribunal is comfortably satisfied that, on the evidence before it, reprimanding the Practitioner adequately addresses considerations of individual deterrence, in view of the profound impact of these proceedings on the Practitioner. The observations of Basten JA in Lambert to which we earlier referred with respect to such impact are apt in the case of the Practitioner.
So far as general deterrence is concerned, the Tribunal is also satisfied that, in the circumstances of this case, reprimanding the Practitioner sends an appropriate "message" to members of the medical profession. That is particularly so given the duration of the Practitioner's hitherto unblemished record of practising medicine, his character and reputation as the statements of the witnesses to whom we have referred confirm, and the reality that, in the twilight of his career, the Practitioner will have a reprimand recorded against him. There is a need for proportionality in making protective orders, subject always to the overriding requirement that any such orders adequately protect public health and safety. In our view, the requirement of proportionality is adequately met by the imposition of a reprimand in this case.
In Health Care Complaints Commission v Perera [2018] NSWCATOD 112, the Tribunal accepted (at [99]) that a reprimand may demonstrate "that the practitioner is sanctioned for abrogating [professional] responsibility through carelessness and/or inattention to detail", "acts as a deterrent to other practitioners to engage in like conduct", and "upholds and reinforces the standards of the profession to which it expects its members to adhere".
In our view, having regard to the Practitioner's circumstances, imposing a reprimand also signifies to the public how seriously the Tribunal regards conduct of the kind which has been admitted or found proved against the Practitioner. It is to be remembered that the powers of the Tribunal pursuant to s 149A of the National Law include significantly less onerous protective orders than a reprimand, including giving a caution, ordering a practitioner to complete a specific educational course, or to undertake mentoring or make other orders which are less draconian than a reprimand.
The controversy which the Tribunal must determine is whether all or some of the conditions sought to be attached to the Practitioner's registration are necessary to protect the health and safety of the public.
Counsel for the Commission submitted (at par 27), accurately, that the Practitioner "has accepted, in significant respects, that his conduct fell below the standard expected of him." The Commission fairly conceded that it was "also true that some developments have since occurred which may make this day-to-day practice more manageable". It was submitted (at par 28) that the Practitioner had "not identified any concrete strategies to manage similar pressures of work if they were to arise again - for example, he does not have any formal mentoring support. Further, while he has taken steps to educate himself through CPD course [sic] and the like, he has not engaged in detailed educational programmes, such as through a university".
The Tribunal understands the Commission's concerns, but they are unable to be accepted as proved having regard to the evidence of the witnesses upon whose statements the Practitioner has relied. The Tribunal accepts that those witnesses were well able to express their opinions. As is apparent from our review of those statements, the witness statements cover a number of areas of medical expertise and many decades of firsthand experience of the Practitioner as a medical practitioner. The Tribunal has not been directed to any particular "detailed educational programmes", much less any such programmes conducted by a university which it could reasonably be suggested that the Practitioner should undertake or complete. With respect to the Commission, cross-examination of the Practitioner did not in our view reveal any relevant deficiency in his post-complaint education, his competence as a medical practitioner, or absence of attempts at "reformation" with respect to the conduct which gave rise to the present proceedings.
The Practitioner relied (at par 41) on the decision of the Medical Council in its review decision of 12 July 2022 which, although "not binding on the Tribunal, at least provides some insight into the peer review evaluation of Dr Gazal's reform and insight". On that date the Medical Council set aside its earlier decision pursuant to s 150A(3) of the National Law (Exhibit HCCC1, Tab 23). The effect of that decision was to remove the conditions on the Practitioner prescribing which had previously been imposed on Schedule 4D and Schedule 8 medications. The Tribunal is entitled to and does take that into account, and affords it considerable weight, but must ultimately make its own evaluative determination on the whole of the evidence before it.
The Practitioner submitted (at par 48) that, for the reasons there asserted, "there does not appear to be any proper indication for the imposition of conditions on Dr Gazal's practice".
In view of the matters to which we have earlier referred, and particularly having regard to the evidence of health professionals who have known the Practitioner in that capacity, in some instances for many decades, and the absence of previous complaints with respect to his conduct, the Tribunal is not satisfied that it is necessary to impose any conditions upon the Practitioner's registration in order to protect the health and safety of the public. Not imposing conditions upon the Practitioner's registration does not in our view give rise to an unacceptable risk to public health and safety.

Orders 1. The Practitioner is guilty of unsatisfactory professional conduct. 2. The Practitioner is guilty of professional misconduct. 3. The Practitioner is reprimanded. 4. The Applicant file and serve written submissions not exceeding 7 pages in length in support of its costs application within 28 days of the date of the Tribunal's decision. 5. The Respondent file and serve written submissions not exceeding 7 pages in length in opposition to the Applicant's costs application within 56 days of the date of this decision. 6. In the event that either party opposes an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of the Applicant's costs application, that party include in submissions filed pursuant to these orders submissions in support of such opposition.

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: 26 June 2023

(2018) 233 LGERA 385

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (7)

Cases Cited (32)

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