Health Care Complaints Commission v Hanna

Relevant Law

1. In our Stage One reasons we set out s 138B (1) (a) and (l) together with s 139E of the Health Practitioner Regulation National Law (the National Law) being the definitions of unsatisfactory professional conduct and professional misconduct relied on by the HCCC in this matter.
2. We also referred to the fact that protective orders made at the conclusion of disciplinary proceedings are not designed to punish the practitioner but to protect the public.
3. The range of orders which may be made at the conclusion of disciplinary proceedings where findings of unsatisfactory professional conduct and professional misconduct have been made are found in s 149A, s 149B and s 149C of the National Law. Those provisions are in the following terms: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal 149B Power to fine registered health practitioner in certain cases [NSW] (1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units. (2) A fine is not to be imposed unless - (a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and (b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest. (3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct. (4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. (2) … (3) The Tribunal must cancel a registered health practitioner's or student's registration if the Tribunal is satisfied the practitioner or student has contravened a critical compliance order or condition. (4) If the person is no longer registered, the Tribunal may - (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board. (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order. (5A) The power of the Tribunal to make a prohibition order under subsection (5) extends to a person who is no longer registered if the Tribunal decides under subsection (4) that it would have suspended or cancelled the person's registration if the person were still registered. (6) If the Tribunal is aware a registered health practitioner or student in respect of whom it is proposing to make a prohibition order is registered in a health profession other than the health profession in respect of which the Tribunal is making the order, the Tribunal must, before making the prohibition order - (a) notify the Council and the National Board for that health profession, and the Commission, of the proposed order; and (b) give the Council, National Board and Commission an opportunity to make a submission. (7) An order may also provide that an application for review of the order under Division 8 may not be made until after a specified time.
4. The purpose and effect of protective orders in professional disciplinary proceedings are discussed in a number of authorities dealing with professional discipline of both health professionals and legal practitioners. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]-[36] Meagher JA 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. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted."
5. The test to be applied under s 139E of the National Law is not, as was the test under the Medical Practice Act 1992 (NSW) (repealed), whether the practitioner is probably permanently unfit to practise. In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA in his separate reasons explained the nature of protective orders under the National Law and the proper interpretation of s 138B and s 139E of that law. His Honour said: The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.[14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience,[15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest,[16] overservicing[17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).[footnotes omitted][our emphasis]
6. Here our present task is to evaluate the seriousness of the practitioner's conduct, and whether that conduct reveals a defect of character such that his registration should be either cancelled or suspended, or whether, on the evidence before us, that we are satisfied the practitioner has overcome the defect in his character that led to his inappropriate conduct with Patient A and that a reprimand or a reprimand and conditions will properly protect the public, and uphold the status of the profession whilst providing deterrence to like conduct.
7. We also note the comments of Basten JA, with which Leeming JA agreed, in Chen as follows: It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided.
8. We agreed to a two stage hearing in this matter at the request of the parties. This was on the basis that particulars involving inappropriate sexual behaviour were contested. It was anticipated by publishing our Stage One reasons we would afford procedural fairness to the parties by providing an opportunity to them, after considering our findings, to make submissions as to what protective orders should be made.
9. However, we observe that it should be possible in the majority of matters before the Tribunal, including matters such as the present one, for alternative submissions to be made by the parties at the conclusion of the hearing in anticipation of the Tribunal's findings as to appropriate protective orders. We further observe conducting a hearing in this manner is consistent with the objects and guiding principle in the Civil and Administrative Tribunal Act 2013 (NSW) (see s 3, s 36 and s 38) and the National Law (see Schedule 5D cl 11). A single hearing will reduce costs to the parties, and importantly lead to an earlier resolution of disciplinary proceedings resulting in the making of disciplinary orders for the protection of the public in a timely way.

Evidence relied on by the practitioner at the Stage Two Hearing

1. The practitioner's solicitors lodged a further volume of documents immediately prior to this hearing. The practitioner's solicitors also indicated those documents in the three volumes of documents admitted into evidence at the commencement of the hearing in October which were now relied on at this hearing. At the hearing we were provided with several updating references and a reference from A/Professor Suzanne Hodgkinson dated 23 November 2017. No objection was taken by the HCCC to the filing of the additional volume of documents. Consequently, each of the referees' references was unchallenged before us.
2. The new volume of documents may be summarised briefly as containing correspondence between the solicitors and the practitioner's referees asking them to confirm each referee's adherence to their earlier character references in the light of the Tribunal's findings. All of the referees responded to the solicitor's request. Additionally, the practitioner relied on an updated report by his expert psychiatrist, A/Professor Anthony Richardson (A/Professor Richardson).
3. The practitioner provided a considerable number of references from many senior members of the profession. In addition, the practitioner included two unsolicited letters of appreciation from patients addressed to the hospitals at which they were treated and references from senior Maronite and Russian Orthodox clergy. It is unnecessary that we set out the content of each reference. The professional referees' material contained broadly similar themes. Each referee commented on the high regard with which the practitioner's knowledge and clinical skills are held, his regard for patients, hospital trainees and staff, and that the practitioner's conceded conduct was, in their opinion, entirely out of character. A number of the referees referred to the practitioner's illness in 2013 and 2014. We accept as cogent and relevant to our deliberations the content of all the referee statements. We find they are supportive of the submissions made on the practitioner's behalf that the conduct the subject of these proceedings was aberrant, and that it occurred in a period of time when the practitioner was ill, vulnerable and lonely.
4. Dr John Crozier, AM CSM, FRACS DDU (Vascular and Endovascular Surgeon), in his reference dated 22 November 2017 said: He is a very intelligent man and talented clinician. He has achieved equivalency on the recognition of his medical training which was initially undertaken in Western Europe but latterly within Australia. I remain supportive of my earlier advocacy for Dr Ibrahim. He is an exceptional man. He demonstrates many superior attributes. He does display humility and insight. I am confident he will continue to provide exemplary medical support to patients from a wide range of backgrounds with complex medical conditions. I am confident that he will display the appropriate professional courtesies and boundaries.
5. Dr John H O'Neill, MD FRACP, Consultant Neurologist, provided a reference dated 15 November 2017. He commented on the fact that the practitioner has worked in Western Sydney where "his multilingual capabilities have been of great value".
6. Dr O'Neill expressed the following views: I was extremely surprised to hear of the personal complaint against Ibrahim. I note it occurred at a time when Ibrahim was depressed and recovering from chemotherapy for leukaemia. I believe his familiarity with a patient as described would be completely atypical for Ibrahim's character as I know it. Ibrahim has expressed written remorse and I am sure he is deeply sorry for this inappropriate personal interaction with a patient. Give [sic] that this is a one-off event and given Ibrahim's undoubted sincere remorse over it, I have no qualms in suggesting that Ibrahim's continued practice as a Neurologist would not threaten the safety of his patients or the public in general. Indeed, his inability to practice Neurology would be a tragic loss to the community of western Sydney were he provides an excellent professional Neurological consultant service.
7. Associate Professor Hodgkinson, MB BS FRACP, PhD was the head of the Department of Neurology at Liverpool Hospital between 1994 and 2007. She presently runs the Multiple Sclerosis service for the South Western Sydney Local Health District. Associate Professor Hodgkinson explains she has known the practitioner since 1994. She opines in a letter dated 23 November 2017: [[t]he practitioner] has always been extraordinarily conscientious with his clinical practice. He has been accessible at all hours of the day and night. For quite sometime he was working at Fairfield, Liverpool and Campbelltown and running his private practice. During some of this time he would have been working, in my own mind, too hard. However, SWSLHD is an area that is extremely busy and [the practitioner] has always been a doctor that would work extremely hard to meet patient expectations. His medical consultations are informed and he consults appropriately….. With the respect to the conduct committed in the personal statement of [the practitioner]. This does surprise me very considerably. In my conversations with [the practitioner] he has presented to me as a man who is horrified, mortified and profoundly embarrassed about what has happened. I believe that the practice of medicine is extremely important to him and he put enormous effort becoming a neurologist in Australia. I believe that a recurrence of this is highly unlikely. He provides a tremendous amount of neurological expertise to Fairfield hospital and is the only neurologist proving such service. There would be a massive loss to the patients attending Fairfield hospital if he is unable to practice medicine. He has a large practice and is one of the few Arabic speaking neurologist [sic] of SWSLHD.
8. We were also provided with a letter of reference from Dr Laurence McCleary, Senior Staff Specialist Neonatologist and Paediatrician. Dr McCleary has known the practitioner since 2012 when he was appoint Head of Paediatrics and Neonatology as well as Director of Prevocational Education and Training. He explained "[the practitioner's] venerable reputation preceded our acquaintance and it is one that is well justified".
9. Dr McCleary commented on the practitioner's treating role as follows: Fairfield Hospital's [sic] owes a significant portion of its reputation for teaching by the major contribution provided by [the practitioner's] enthusiasm, dedication and excellent quality of teaching. [t]he practitioner leads one of the busiest medical teams at Fairfield Hospital yet despite this junior doctors preparing for examinations often request to be on [the practitioner's] team because [sic] the strength of his commitment to both is staff and patients alike is well-known.
10. As with other referees, Dr MCleary commented on the high regard with which the practitioner is held by other professionals, and that his conduct in respect of Patient A was out of character. He also expresses the opinion that the practitioner "has developed a keen and objective insight into errors of judgment he made".
11. We also had regard to the comments of Dr Harry Doan, Director, Medical Services, Fairfield Hospital set out in his letter dated 20 November 2017. Dr Doan referred to the positive feed-back he has received from medical registrars about the practitioner's teaching and from patients regarding their care by the practitioner. Dr Doan explained that he believed the practitioner is "regretful and remorseful of his actions", and that he had learned from his mistake "and poses no threat to the community or the patients".

The practitioner's treating professionals

1. We accept that the practitioner has his own general practitioner who he sees on a regular basis. We also accept that the practitioner's present health is managed by his treating specialist Professor David Gottieb. He has continued to see A/Professor Richardson.

The practitioner's evidence

1. In his latest statement the practitioner says at [79] that he has, since 2015, developed a better understanding of the nature of his relationship with Patient A and the seriousness of his conduct. We accept that the practitioner has undertaken the courses set out in [80] of his statement, including a Medical Ethics course taught through Monash University and that he has attended consultations with A/Professor Richardson, Consulting Psychiatrist.
2. At [99] of his statement, the practitioner refers to his reflection on the impact of his conduct on Patient A. He says "I may have caused the patient emotional distress". He acknowledges that he abused his position of trust with the patient, compromised his objectivity, complicated her life and may have adversely affected her pre-existing depression. He says (and we agree) "She was vulnerable and I should have treated her with more care and respect". He concludes that he acknowledges he gave Patient A "a valid reason to think poorly of medical practitioners which may impact her level of trust. Through my conduct she may be concerned another male doctor will cross the professional boundary".
3. In this hearing the practitioner gave further oral evidence before us. He was not required for cross-examination by the HCCC on this occasion. He commenced his evidence by acknowledging he had read the Stage One reasons and said that he accepted our criticisms of him in those reasons.
4. The practitioner confirmed he has been compliant with the chaperone condition imposed on his registration resulting in an asserted cost to him of not less than $63,500. He also explained that when the Council approved chaperone was not available because of sickness of herself or her child, or because the approved chaperone had ceased working for the nursing agency and the Council had insufficient time to approve a replacement, he had been forced to cancel appointments with patients at short notice on approximately 20 occasions causing inconvenience to the patients. He pointed out that he is fluent in both Lebanese and Arabic and a number of his patients are non-English speaking. He asserted his inability to see some patients hurt the patients. He also explained he had suffered a financial loss of practice income since the imposition of the chaperone condition.
5. The practitioner explained that he had seen A/Professor Richardson at least eight times, that his consultations had given him more objectivity about doctor/patient relationships (we infer he was referring to his relationship with Patient A as well as patients generally), and more recently had provided assistance to him to deal with issues in his personal life. He said A/Professor Richardson has prescribed Avanza 30mg daily for his depression, and since commencing that medication he had started to feel a little better and to have better sleep. He said he was willing to continue to see A/Professor Richardson.
6. The practitioner gave evidence that he had disclosed his relationship with Patient A to his colleagues. He explained that he is the Director of Physician training at Fairfield Hospital and that he has responsibility for teaching of 5 Registrars, 10 Interns and 4 students and that he conducts three sessions per week for approximately 48 weeks each year.
7. The practitioner also confirmed that his solicitors have, on his instructions, made an Offer of Compromise in respect of the District Court civil proceedings commenced against him by Patient A.

A/Professor Richardson's reports

1. A/Professor Richardson has provided a number of reports to the practitioner's solicitors since 2015. In his report dated 15 December 2015 A/Professor Richardson referred to two sessions he had conducted with the practitioner. At that time he reported: [t]he practitioner came to me well armed with a full working knowledge of the ethical guidelines for clinical practice of a medical practitioner. Although it can be said that he may have been more susceptible during his diagnosis and treatment of cancer both of us were able to point out the normal cognitive distortions and emotional confusions that occur when professional boundaries are being assaulted. We have been able to identify a number of internal processes in [the practitioner] that will allow him to identify situations in which there are other agendas apart from those spoken. This growing insight applies to his personal processes as well as the agendas of his patients. The intention here is to allow [the practitioner] to become comfortable with setting boundaries during emotional disturbances. I am pleased to say that [the practitioner] is both a willing and apt student in this area, despite it being new to him.
2. In his report dated 17 November 2017, and written after reading our Stage One reasons, A/Professor Richardson opined: It does seem that [the practitioner] has been a hard-working and service driven physician who had developed very little understanding of how people work psychologically. He did not understand that we all come to our Doctor with our own agendas. He had had no training in recognising those agendas.
3. A/Professor Richardson went on to opine that the problem of identifying "agendas" is now recognised in medical education, which is the major tool used to "help clinicians assert and maintain boundaries to the various assaults that are made to soften professional boundaries on both sides".
4. A/Professor Richardson discounts any suggestion of the practitioner being a "predator" but rather says "[t]he practitioner seems to be a man under the psychological stressor of illness, aging and a stalled marriage who became personally interested in one of his patients. This is inappropriate professionally. His naivety and lack of self-reflection has been established". A/Professor Richardson goes on to opine: [t]he practitioner still has value to add to the medical profession as a mentor, trainer and clinician. He has taken time and energy to become educated in these matters as a way to redress his failure in this situation. This means that he is and is unlikely to be part to such a violation again.

Discussion and Conclusions

1. As we noted in our Stage One reasons, we found the practitioner's concession that his conduct involving Patient A involved both unsatisfactory professional conduct and professional misconduct was properly made.
2. It is useful at this point we repeat what we said in our Stage One reasons at [161] to [162]. There we said: We find the practitioner generally to be a more reliable historian than Patient A and that they first kissed in Patient A's car not his car. In reaching this finding we had regard to Patient's A clear confusion about dates and venues. We are not satisfied on the evidence that the practitioner asked Patient A to kiss him, but we accept they did engage in kissing then, and on other occasions, and the kissing was mutually desired and was intimate and passionate in nature. While this particular as pleaded is not proved, the findings we have made confirm the appropriateness of the practitioner's concession of both unsatisfactory professional conduct and professional misconduct. Our findings accord with the expert evidence of Professor John Watson. By seeing the patient outside his clinic and engaging in a relationship involving passionate kissing and hugging while maintaining a therapeutic relationship with her, the practitioner knew well he was breaching the code of conduct. He puts his own very real needs for affection and gratification above the needs of a very vulnerable younger woman with complete disregard for the consequences of his action.
3. We also note that we found the practitioner's initial statements made 28 June 2015 and 8 August 2016 to be less than frank and that he sought to downplay the true nature of his relationship with Patient A in those statements.
4. The practitioner's concession of professional misconduct and our independent finds of such conduct means that it is open to us, if appropriate to do so, to make an order suspending or cancelling his registration. There is no doubt that he engaged in a serious boundary violation with a patient who he acknowledges is a vulnerable person with a history of depression who may have been emotionally affected by his actions. We have in our earlier reasons noted our observations of Patient A's distress in the witness box which we accept was genuine.
5. We do not find the circumstances of this case warrant the cancellation of the practitioner's registration. This is because first, we accept the practitioner's expressions of remorse and contrition as genuine. The practitioner has "owned up" and taken responsibility for his inappropriate conduct to the Tribunal, his peers, and members of the clergy. Secondly, from 2015 he took steps to gain a better understanding of what led him to transgress in the manner he did. He has undergone therapeutic treatment with A/Professor Richardson. That treatment has resulted in him gaining, over time, nuanced insight into his inappropriate conduct. He has undertaken studies in ethics completing the Monash University's ethics course and participated in a one day course in Brisbane conducted by the Cognitive Institute "Mastering Difficult Interactions with Patients". Thirdly, on the material before us, we are satisfied that the practitioner has complied with the conditions initially placed on his registration with his consent, and as subsequently amended. Fourthly, we agree with the practitioner's referees and A/Professor Richardson's view that the practitioner's conduct with Patient A was aberrant, that it occurred in a period of his life when he was unwell and depressed and, significantly, is not likely to be repeated. We think it highly unlikely that the practitioner would offend again by committing a boundary violation. These proceedings have caused him significant distress, a degree of public and professional humiliation and financial loss. Finally, we accept that cancellation of the practitioner's registration would deprive the community in a disadvantaged area of Sydney of the benefit of a talented, highly regarded specialist with multi-lingual skills. It would also deprive those Registrars, Interns and Students he teaches of his acknowledged expertise and dedication.
6. We turn then to consider whether an order should be made suspending the practitioner's registration. Such a course would send a strong message of deterrence to other practitioners engaging in like conduct, and reflect the seriousness with which his conduct is to be regarded. We have given serious consideration to imposing a period of suspension, but ultimately have rejected this outcome. In so doing we do not minimise the wrongfulness of the practitioner's conduct. While suspension sends a strong message that like conduct has serious consequences, we have balanced that consideration against the factors enumerated above for rejecting cancellation of the practitioner's registration. We accept as submitted by Mr Griffin the conceded professional misconduct was at the less serious end of the spectrum and that the practitioner has taken positive steps to cure the defect of character evidenced by his conduct in 2014. Ultimately, in the unusual circumstances of this practitioner, we do not find a period of suspension is warranted.
7. We are not satisfied that the imposition of the mentoring condition sought by the HCCC would be appropriate in this case. There is no suggestion that the practitioner's clinical skills are other than at the very highest level. The need for such a condition will be manifest when a Tribunal has concerns that absent a mentor a practitioner will not be able to practise safely. That is not the instant case. So much is clear from the references of the practitioner's fellow neurologists and other professionals at Fairfield Hospital. We are satisfied the practitioner is highly unlikely to engage in any inappropriate conduct with a female patient in the future. His conduct with Patient A was aberrant and occurred in a difficult period in the practitioner's life. We are satisfied there is no risk to the public which would be avoided or minimised by the practitioner having a mentor. Accordingly, we find no utility in placing a mentoring condition on his registration.
8. We have given careful consideration as to whether a health condition requiring the practitioner to see A/Professor Richardson, or a psychiatrist of the practitioner's choice, on a quarterly basis for one year should be made.
9. Mr Griffin submits that such a condition is unnecessary as the practitioner has voluntarily attended his general practitioner or a regular basis, sees his treating haematologist as required and post the complaint has continued to see A/Professor Richardson.
10. We accept each of the matters raised by Mr Griffin is worthy of careful consideration. The imposition of a health condition will require the preparation of reports by the treating psychiatrist and consideration by the Medical Council involving time and cost.
11. The practitioner's own evidence is that he is currently taking medication for depression. He is still undergoing treatment for his chronic myeloid leukaemia. He has a heavy workload. While we accept that the practitioner is highly unlikely to commit a boundary violation again, his understanding of the wrongfulness of his conduct has been a gradual one. We are satisfied he has gained insight into and understanding of his actions, and his own vulnerabilities as a result of his therapeutic relationship with A/Professor Richardson.
12. In his oral evidence at this hearing the practitioner did not say he would continue to see A/Professor Richardson, rather he said that he was willing to do so. We infer by this statement the practitioner acknowledges he will continue to see A/Professor Richardson if required to do so.
13. We consider that a requirement the practitioner continue to see A/Professor Richardson for a further twelve months to be an appropriate condition. The Council will be the appropriate review body. Such a condition is likely to consolidate the insight the practitioner has gained, and provide support to him to cope with his depression and the aftermath of these proceedings. It is a proportionate response to the practitioner's present situation.
14. The practitioner conceded that it would be appropriate for us to issue a reprimand. We agree with that concession. The imposition of a reprimand, which will appear on the National Register maintained by the Australian Health Practitioner Regulation Agency, is a serious matter. It is a public record that a practitioner's conduct has fallen below the standard expected of such a professional. It sends a message of deterrence to other practitioner's and upholds the reputation of the profession. A reprimand can only be removed from the Register on application by the practitioner to the National Board. We propose to request the Registrar to make a copy of these reasons and our Stage One reasons available to the Medical Board of Australia so that the Board will be fully apprised of our findings if any application is made by the practitioner before a reasonable period of time to remove the reprimand.

Costs

1. We have already set out the competing costs applications to be determined by us.
2. The Tribunal's power to award costs is found in Cl 13 of Schedule 5D of the National Law. It provides as follows: (1) The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate. (3A) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (4) This clause applies instead of section 60 (Costs) of the Civil and Administrative Tribunal Act 2013.
3. The principles to be applied in considering a costs application under the National Law are referred to in the written submissions provided by Mr Griffin at this hearing. In particular, he refers to the discussion of Emmett JA, with whom Meagher and Beech Jones JJA agreed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 as follows: As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing (see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48] - [52]). It has not been suggested by the Doctor that any of those factors applied. As the Tribunal observed in its reasons, the question of costs is discretionary. However, the discretion is a judicial one and must be exercised according to proper fixed principles and rules of reason and justice, not according to private opinion. While it is not easy to state the precise principles that are to guide a court in exercising the discretion over costs, the discretion is only to be exercised where there are materials upon which to exercise it (Williams v Lewer (1974) 2 NSWLR 91 at 95). It is important when exercising the discretion to bear in mind that costs are intended to compensate a successful party. Costs are not intended to penalise an unsuccessful party. It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs, not by way of penalty, but to compensate the Commission for the costs that it has incurred in prosecuting the proceedings in the public interest, over the opposition of the practitioner.
4. Mr Griffin's submissions contain a chronology of events commencing in February 2016. Specific reference is made to the practitioner's s 40 response dated 12 August 2016 when his solicitors pointed out to the HCCC that no appointment for Patient A occurred in Campbelltown in June 2014. Reference is also made to the request for further and better particulars made by the practitioner's solicitors in March 2017 and 21 August 2017 and a response provided on 29 September 2017.
5. Mr Griffin's written submissions note that the practitioner admitted unsatisfactory professional conduct and professional misconduct "at an early stage". We note these admissions were made in the practitioner's Reply lodged on 17 August 2017 approximately two months prior to the commencement of the hearing.
6. It is submitted that although we found Particulars 3 and 4 were established that these were not "significant findings" but that the sexual assault allegations which were not found proven "comprised a substantial part of the prosecution". Mr Griffin also points out that the HCCC made a forensic decision not to abandon Particular 10 of the complaint.
7. It is submitted on the practitioner's behalf in the written submissions prepared before this hearing that each party should pay their own costs of the proceedings, or alternatively that the practitioner should be ordered to pay no more than 30 per cent of the applicant's costs. However, that position was modified by Mr Griffin in his oral submissions to seek an order that the practitioner pay fifty per cent of the HCCC's costs.
8. By contrast, Ms Mathur on behalf of the HCCC submits an appropriate order would be that the practitioner pay all of the HCCC's costs up to the commencement of the hearing, and thereafter 50 per cent of the HCCC's costs.
9. We are satisfied that the HCCC should be compensated for the costs incurred in these proceedings. However, we find there is a sound basis to reduce the costs payable to reflect the matters raised by Mr Griffin in his submissions.
10. Doing the best we can in the circumstances we find the orders proposed by the HCCC are appropriate. The practitioner's concession of professional misconduct was not made until approximately two months prior to the hearing. A discount of 50 per cent of the costs incurred from the first day of the hearing properly reflects the admissions made by the practitioner, the failure of the HCCC to establish the particulars directed to sexually inappropriate conduct by the practitioner, and the correspondence addressed to the HCCC relevant to Particular 10.

Orders 1. Dr Ibrahim Youssef Hanna ("the practitioner") is reprimanded. 2. The practitioner's registration is subject to the following conditions: 1. the practitioner is to attend on A/Professor Anthony Richardson or such other psychiatrist (the psychiatrist) as the practitioner may nominate to the Medical Council of NSW (the Council) quarterly commencing in the first quarter of 2018 and terminating twelve months thereafter; 2. to notify the Council immediately if he changes psychiatrist; 3. to authorise the psychiatrist to notify the Council in the event the practitioner fails to attend any quarterly appointment, or terminates the therapeutic relationship; and 4. the practitioner shall be responsible for costs associated with compliance with 2(a) - 2(c). 1. The Council is the appropriate review body to review the conditions imposed by Order 2 of these orders. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply if the practitioner's place of practice is anywhere in Australia other than New South Wales so that the appropriate review body in those circumstances is the Medical Board of Australia. 2. The Registrar is requested to provide a copy of these reasons for decision to the Council and to the Medical Board of Australia as soon as practicable. 3. The practitioner is to pay the costs of the Health Care Complaints Commission of and incidental to the proceedings up to 16 October 2017 and 50 per cent of the costs thereafter as agreed or failing agreement as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2017