Health Care Complaints Commission v Hanna

The Evidence

1. The evidence in the proceedings comprised: 1. Application and Complaint dated 9 November 2017; 2. Certificate of Registration Status from AHPRA (to be provided at hearing); 3. Certificate of Registration Status from Medical Council of NSW (to be provided at hearing); 4. Council correspondence advising of s150 proceedings dated 21 July 2016; 5. Council correspondence advising of outcome of s150 proceedings and referring the matter to the Commission pursuant to s150D dated 28 July 2016; 6. Written Reasons for s150 Decision dated 1 August 2016; 7. Transcript of s150 proceedings dated 25 July 2016; 8. Hanna v Medical Council of NSW [2016] NSWCATOD 108 Application for stay of order of suspension dated 15 August 2016; 9. Hanna v Medical Council of NSW [2017] NSWCATOD 27 Appeal dismissed dated 16 February 2017; 10. Summary of Professional Standards Committee decision dated 3 June 2004; 11. Professional Standards Committee Inquiry decision dated 7 June 2011; 12. Certificate of Conviction; 13. Court Attendance Notice for Penrith Local Court; 14. Court Attendance Notice for Sutherland Local Court; 15. Facts Sheet; 16. Statement of Constable Benjamin Saliba dated 21 July 2015; 17. Statement of Constable Benjamin Saliba dated 1 August 2015; 18. Statement of Constable Benjamin Saliba dated 21 August 2015; 19. Statement of Detective Senior Constable Grant Prior dated 1 August 2015; 20. Statement of Detective Senior Constable Grant Prior dated 6 January 2016; 21. Statement of Detective Sergeant Anthony Fokes dated 22 July 2015; 22. Statement of Detective Senior Constable Adam Thompson dated 23 July 2015; 23. Statement of Detective Senior Constable Erwin Samson dated 3 August 2015; 24. Statement of Detective Senior Constable Brett Dwyer dated 29 July 2015; 25. Statement of Detective Senior Constable Roslyn Realph dated 23 July 2015; 26. Statement of Detective Senior Constable Stephen Crimston dated 29 July 2015; 27. Statement of Senior Constable Glen Sullivan dated 29 July 2015; 28. Statement of detective Senior Constable Anthony Burnet dated 16 July 2015; 29. Statement of Constable Keith Haynes dated 20 July 2015; 30. Statement of Detective Senior Constable Belinda Stavrakis dated 4 September 2015; 31. Statement of Person A dated 14 July 2015; 32. Statement of Person A dated 16 July 2015; 33. Forensic Procedure Information Sheet dated 14 July 2015; 34. Statement of Lydia Kirk dated 14 July 2015; 35. Statement of Samantha Hope dated 15 July 2015; 36. Statement of Person A's Cousin dated 1 August 2015; 37. Suspects Forensic Procedures Information Sheet; 38. Search warrant (other than covert or criminal organisation search warrant); 39. Property Seizure / Exhibit Form; 40. Affidavit of evidence from Mr Tim Miller (mobile search) - dated 1 August 2015; 41. Affidavit of evidence from Mr Tim Miller (call records) - dated 1 August 2015; 42. Transcript of electronic recording of interview with Person A - dated 14 July 2015; 43. Transcript of the electronic recording of interview with Dr Hanna - dated 15 July 2015; 44. Email from Detective Sergeant Melissa Leemon to the Commission enclosing sensitive Law Enforcement Form: Child Protection (Offenders Registration) Act 2000: Notice issued to registrable person - dated 1 August 2015; 45. COPS Records; 46. Court Order Notice - Order dated 19 January 2016; 47. Transcript of discussion of court attendance notice with Her Honour Magistrate McGlynn dated 18 January 2016; 48. Transcript of Senior Constable Benjamin Saliba dated 18 January 2016; 49. Transcript of Person A's evidence dated 18 January 2016; 50. Transcript of Person A's cousin evidence dated 18 January 2016; 51. Transcript of Samantha Hope's evidence dated 19 January 2016; 52. Transcript of Lydia Kirk's evidence dated 19 January 2016; 53. Transcript of Dr Hanna's evidence dated 19 January 2016; 54. Findings by Her Honour, Magistrate McGlynn dated 19 January 2016; 55. Remarks by Her Honour, Magistrate McGlynn on the AVO dated 29 March 2016; 56. Commission request dated 4 October 2016; 57. Email from Registrar attaching Court Order Notice dated 7 October 2016; 58. Court Order Notice - Order dated 7 July 2016; 59. Application by practitioner to recall Person A for limited cross-examination dated 4 July 2016; 60. Dismissal of Application by His Honour Judge Buscombe dated 4 July 2016 and 7 July 2016; 61. Commission request to Court of Criminal Appeal dated 11 May 2017; 62. Email from CCA advising no appeal filed dated 11 May 2017; 63. Dr Hanna's alleged mandatory notification dated 2 May 2016; 64. Commission request for confirmation to AHPRA dated 26 August 2016; 65. Response from AHPRA dated 30 August 2016; 66. Email to Sue Hayward (AHPRA) from Jaimee Dinihan, HCCC dated 7 November 2017; 67. Letter from John Shears (AHPRA) to Jaimee Dinihan (HCCC) dated 7 November 2017; 68. Commission section 28 correspondence to Dr Hanna dated 6 September 2016; 69. Response from Avant on behalf of Dr Hanna dated 30 September 2016; 70. Commission section 40 correspondence to Avant on behalf of Dr Hanna dated 11 October 2016; 71. Response from Avant on behalf of Dr Hanna dated 9 November 2016; 72. Curriculum vitae of Dr Hanna; 73. Statement of Dr Hanna - undated; 74. Reference from Mrs Georgina Hanna dated 21 July 2016; 75. Reference from Ms Lydia Kirk dated 21 July 2016; 76. Reference from Ms Samantha Hope dated 20 July 2016; 77. Reference from Ms Shayla Hadfield dated 20 July 2016; 78. Reference from Dr Alexander Kotz dated 20 July 2016; 79. Reference from Ms Katie Merkouris dated 20 July 2016; 80. Reference from Ms Verna Dukes dated 22 July 2016; 81. Statement of Mr Kyle Robson; 82. Notes by Dr Miller of consultation on 9 March 2018; 83. Statement of the practitioner of 26 March 2018; 84. Report of Dr Deepinder Miller dated 12 March 2018 with instructing letter; 85. Treating report of Dr Ashraf Phillips of 27 March 2018 with instructing letter; 86. Records of Dr Ashraf Phillips with request for report; 87. Records of Macquarie Mall Medical Centre together with request; 88. Emails from practitioner to Kyle Robson at AHPRA on 11 July 2016; 89. Treating report of Dr Magdy Girgis of 28 March 2018 together with request of 22 March 2018; 90. Report of Dr Sukhvinder Virk of 28 March 2018; 91. Oral evidence of Dr Miller of Person A on 10 April 2018; 92. Oral evidence of Dr Miller on 10 April 2018; 93. Oral evidence of Dr Phillips on 10 April 2018; 94. Oral evidence of Dr Girgis of 10 April 2018 and 11 April 2018; 95. Oral evidence of Kyle Robson on 11 April 2018; 96. Oral evidence of the practitioner on 11 April 2018 and 12 April 2018; and 97. Exhibit "A1" Court Attendance Notice and Fact Sheets provided by the Police in the Newtown Local Court on 1 March 2018.

Unsatisfactory Professional Conduct

1. "Unsatisfactory professional conduct" of a registered health practitioner is defined in sub-section 139B(1) of the National Law as including: "Conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of the practitioner of an equivalent level of training or experience" (para 139B(1)(a))"; and Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (para 139B(1) (l))."

Improper or Unethical Conduct

1. In R v Byrne (1995) 193 CLR 501 the High Court held "improper" meant not in conformity with standards of professional conduct and practice.
2. In Health Care Complaints Commission v MacGregor [2016] NSWCATOD 85 at [41] the Tribunal referred to dictionary definitions of "unethical" as "contrary to moral precept; immoral; in contravention of some code of professional conduct" and held that that definition should be applied in disciplinary proceedings under the National Law.

Professional Misconduct

1. Under Section 139E of the National Law, for the purposes of the National Law "professional misconduct" of a registered health practitioner includes: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. More than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.

The Practitioner's Credit

1. In the reasons of the Professional Standards Committee Enquiry conducted on 7 June 2011 in relation to conduct of the practitioner, the committee members rejected the practitioner's evidence that he "continually offered referral to a specialist surgeon which was refused by the patient … "they found that that evidence of the practitioner was false".
2. In that hearing the practitioner alleged that he had completed "another 1-2 years of a Masters of Medicine Degree completed at the University of Queensland". This was untrue. The committee found that on the evidence the courses he had completed to date were pre-requisite requirements for entry to the Masters Degree or the Fellowship Program conducted by the Skin Cancer College of Australia and New Zealand. He was not enrolled in the Masters of Medicine (Skin Cancer) Degree course.
3. The committee also found that notwithstanding the practitioner's' claims that he was qualified to perform appropriate surgery on a patient's left lower eyelid in March 2007, having regard to the nature of the lesion at the time he was not.
4. The magistrate found that the practitioner had testified in his evidence several alleged relevant pieces of conversation between him and Person A which had not been put to her in cross-examination.
5. The magistrate also found that the practitioner's evidence that Person A was emotionally unstable for the whole day was "an attempt to paint the complainant as an unreliable and unstable witness" and found that that evidence sat uncomfortably with his assertion "that he did not find her a vulnerable person on that day, but rather street-wise". She found: "The evidence of the accused shifted frequently to his advantage in his description of the complainant" and she cited various evidence of that. His allegation that she was unstable "for the whole day" was inconsistent with the fact that she did not attend at the practice until the afternoon.
6. The magistrate described the evidence of the practitioner as "vacillating and self-serving, at times unbelievable". She found that the practitioner had "lied as to the circumstances of the offence".
7. In the reasons of the delegates of the Medical Council in the hearing under section 150 of the National Law conducted on 25 and 26 July 2016, the findings included that the practitioner participated in the hearing and was assisted by legal counsel. The practitioner gave oral evidence. He described the assault as a "lapse of judgment" and asserted that he had done nothing criminal or against the law. He told the Tribunal that he believed that Person A had embellished the circumstances for her own purposes, specifically "to obtain victim's compensation".
8. He conceded in cross-examination that in the s150 hearing he "didn't accept the criminality of his conduct towards Person A and had lodged an appeal". He conceded that he told the delegates for the Council that his conduct was "inappropriate". When he was reminded of this he said "Yes, but I was still in denial". He conceded that he also "thought it was a personal matter, not a professional matter".
9. He told the delegates:- "My overall view is that there was a lapse of judgment on my behalf, but I don't believe I did anything criminal or against the law, but there definitely was a lapse of judgment on my behalf and I have been reflecting on that to understand why that had had happened".
10. On the same day later in his evidence, when asked he said:- "Well I stand by my statement that young lady is the one who initiated the contact and my lapse of judgment was continuing it, but there was no - and stressed definitely no force - nothing was forced in any way. There was no - she never said no to anything or, you know, do anything - but she's embellished the situation for her own purposes."
11. When asked what he thought her purpose would be, he replied:- "Victim's compensation. I think this young lady - this young lady was a runaway from home and my manager felt sorry for her and gave her an opportunity and she's been kicked out of home from her father. Her father had coined her car and took all her keys and she attended her first day there crying, bawling her eyes out from all this situation. And my … in reflecting back, I'm very empathetic to my staff, maybe - and looking back I should be more of a boss to them than a friend and that's where the lapse of judgment came along. I cared a lot about my staff. I tried to treat them with a bit more decency."
12. When asked whether what he described as a "lapse of judgment" reflected or impacted in some other ways on his management of himself as a doctor, he rejected that suggestion. He said "It has nothing to do with my clinical skills or with the way I treated my patients. That's a different ball game altogether."
13. In cross-examination he testified that on the day of the offence he had taken a photograph of Person A "wearing laser glasses" and had sent it to her mobile phone. He said that he then asked her whether she had "read it" and she told him she hadn't because she didn't have any credit on her phone. He said that he then offered her money for her to charge her phone and said that he offered to advance the money from her wages. Then he said he also offered her money for food.
14. He conceded that he had told the delegates that his interactions with Person A comprised "nothing but a kiss" and Person A had embellished it. He conceded in this hearing that that was not true and said "At the time that was how I saw things. I was probably trying to minimise it". When compared even with the admissions he made in his statement of 26 March 2016 it was a gross minimisation.
15. When he was asked to describe his conduct in relation to Person A he told the delegates that he was aware "she had personal difficulties; she had been thrown out of home by her father and had financial problems". He told the delegates that his error lay in becoming personally involved in Person A's difficulties.
16. When he was asked about the reason for his "lapse of judgment" he spoke of having too much empathy. He described himself as "a person who cares about his staff and behaves more like a friend than a boss. He said he wanted the clinic to be a "fun place".
17. When asked about the conviction at that hearing, he said he had been poorly represented and that his conviction had occurred because his barrister had omitted evidence. He said that his barrister had refused to put into evidence certain statements from his staff and "declined to cross-examine the young lady thoroughly because he was tip toeing around offending anyone and I think that's what cost me the case". He alleged that Person A had initiated contact and his lapse of judgment was in continuing with that contact. He said that the finding of the Tribunal was that he said nothing that involved force and [Person A] did not say 'no'.
18. It was also reported by the committee delegates: "He said he offered to take her to dinner, with a friend, because she had no money for food. After making this invitation, as she was leaving his office, he said to her, 'I hope I haven't scared you off'. She then gave him a kiss and he said he continued with and participated in the kiss and this was his transgression."
19. To the delegates he denied any other contact occurred.
20. They also reported: "He said he felt he should not have paid her so much attention. He acknowledged his behaviour, in kissing her, was inappropriate….He also said he pitied [Person A]. He said she was crying and was very fragile on that day and he tried to be a friend and to assist her. He said his intentions were good, but he had transgressed and was disgusted with himself."
21. The delegates reported that the practitioner "characterised the assault as a personal matter which does not reflect on his professional abilities". He said: "The criminal conviction has nothing to do with the way I treat patients" … "It has no relevance to the way I deal with patients."
22. The delegates also reported:- "Dr Hanna said if a practitioner had been convicted of a physical assault '10 times' or if he had committed a serious crime, such as murder, which might reflect on his general behaviour, this might indicate he is not a fit and proper person. However he had a 'temporary lapse of judgment' which had never happened before and which would not happen again."
23. The delegates also reported that the practitioner asserted "that his conviction did not reflect on his clinical practice".
24. The reasons of the delegates of the Medical Council who decided to suspend the practitioner's registration were dated 1 August 2016.
25. The practitioner applied to the Tribunal for a stay order in respect of the suspension. The application was heard by Marks ADCJ, Principal Member. The practitioner had by then lodged an appeal to the District Court against the conviction. In determining the merits of the appeal for purposes of the stay application, Marks ADCJ found on the evidence before him that the appeal against the decision of the section 150 hearing was unlikely to succeed. The stay application was dismissed. The appeal was also heard and dismissed.
26. Cross-examination of the practitioner at this hearing reflected very poorly on his credit. The practitioner was repeatedly evasive when cross-examined. He continued that way despite repeated cautions by the Presiding Member that such conduct might give the impression to the Tribunal that he was evasive, less than frank and unreliable.
27. He told the Tribunal the amount he receives from income insurance is $3,500.00 per week but after tax he receives only $1,500. When questioned further he said he receives $1,750 per week after tax. But that is untrue, because the tax rate he alleges is equivalent to 50% of every dollar, which is far more than it would be.
28. When it was put to him that in his statement there was no comment to acknowledge the hurt and suffering to Person A, he conceded that. When it was put to him that he made no comment at all about concern for her, he avoided the question. He only conceded that proposition when the question was repeated.
29. When he was asked when he had apologised to Person A, he avoided the question and when the question was repeated he said "I haven't, because of the Apprehended Violence Order".
30. It was put to him that it was his decision not to continue seeing Dr Phillips, a psychiatrist, he answered "No, it was difficult to see Dr Phillips". He said the difficulty was to obtain an appointment. He conceded that he hadn't attended on Dr Phillips in 2017. He said that was because he had "problems with transport". He also told the Tribunal that he had a motor cycle. He also said in cross-examination that it was difficult to go to an appointment with Dr Phillips "because I couldn't manage to get up and go to the appointment".
31. When it was put to him that he did not report to the Medical Council when he was found guilty, he avoided the question. When the same question was repeated, he avoided it again.
32. He was asked when he invited Person A to dinner and he said "Close to the beginning". Meaning the beginning of her afternoon trial shift. His evidence was that he had met Person A only a week or two before she commenced work and he had been in her presence for only one minute on that occasion. He had told the court at his trial the invitation to dinner arose after a staff member had told him that Person A was depressed, had no money and had not eaten. He was asked at the Tribunal hearing when the invitation for dinner was made to Person A and he said "Close to the beginning - an hour or so. I can't recall." It was put to him that he told the District Court that it occurred "Right at the start". He responded "Close to the beginning - I don't think it was the start".
33. He conceded he told the Local Court that Person A initiated the kissing and kissed him. He said she put her arm around him and kissed him. It was put to him that that was not true and his response was "I believed it true at the time". When asked what time he was referring to, he said that it was at the time it happened and at the time I told the Local Court. When asked whether he still believes that it is true, he replied "No, I can see now" and he said he doesn't.
34. He denied to the Local Court that he put his hands on Person A's buttocks, but he conceded at this hearing that the denial was a lie. He further conceded that his denial that at any stage he placed his hands on any location near Person A's vagina or her groin was untrue.
35. In the section 150 hearing on 25 July 2016 and in the Local Court hearing on 19 January 2016, when he was asked whether he recalled being asked whether he forcibly kissed Person A and grabbed her on the buttocks, he replied "I strongly denied". When asked why he strongly denied he answered "the 'forcibly' … making me look like an animal". But he conceded that he did do it.
36. He testified in the criminal proceedings that Person A initiated physical contact between them. He conceded in cross-examination that that was false.
37. In the proceedings in the Tribunal seeking a stay of the suspension decision of the section 150 hearing, on 3 August 2016 the practitioner testified he had had counselling by his GP since February 2016. In cross-examination in this hearing, he conceded that that was incorrect. He then said that he had had "non-formal discussions" with his GP by telephone and they had "started around February". Eventually he conceded that it was wrong to describe the discussions as "counselling".
38. He had also said at the same hearing he had seen Dr Phillips, his treating psychiatrist, in the year since the assault "many times". When he was asked what he meant by "many times" he said "two or three". It was put to him that four times is not 'many'?" and he replied "that's what I felt it was".
39. He conceded he told the Tribunal that he was "seeing a counsellor" and it was put to him that he saw the counsellor (a psychologist) only once. He replied "that was 'seeing a counsellor'". He said that the he terminated the relationship with the counsellor because the counsellor did not do reports.
40. In his statement of 26 March 2018 at paragraphs 51-53 inclusive he gave a version of a conversation he had with Person A on the day of the offence. At the hearing before this Tribunal he conceded that it was a different version to the version he gave at his criminal trial. At the section 150 proceedings resulting in his suspension, he provided a written statement which made no reference to any such conversation.
41. When asked in these proceedings why he asked Person A "do you take drugs", he replied "I was discussing her situation, depressed, her … family differences … I was trying to make an assessment … nose ring … I was concerned whether drugs were a part of her life. I asked her many things before that as well". He told the Tribunal hearing of the application for a stay of the suspension that he had asked her to dinner at 4:30 pm. His response to that was "I asked her very early and then last thing". He said she was attending for a half day from 1.00pm as training for a position as a "junior casual receptionist" and he had met her only once prior and for only about one minute.
42. The practitioner was charged with the criminal offence on 15 July 2015. But he did not contact his insurer until 8 April 2016. In a letter to Ms Choy of the Health Care Complaints Commission (HCCC) of 28 September 2016 he falsely stated "I was not aware of the requirement under section 130 of the National Law to provide written notice of a relevant event within seven (7) days after becoming aware of that event". It is clear he was aware of the requirement once he spoke to Mr Robson on 29 March 2016 and accessed the website. He said he printed out the form. In evidence he said before 29 March 2016 it was general knowledge in the profession that a doctor had to report a conviction. The form he obtained for notification included a question whether the practitioner had "engaged in sexual misconduct in connection with the practice of the practitioner's profession" to which when he filled out the form on 2 May 2016, more than a month after the conviction, he crossed the "NO" box.
43. He conceded in cross-examination that he had not attended any ethics course since he was at university in 1988. When he was asked whether he thought he should have attended such a course he conceded that he should have, and said "I'd be very happy to do one". But nearly 3 years had passed since the incident and he had not attended any such course.
44. In answer to a further question he said he had made enquiries about attending such a course but it would cost $5,000.00. The Tribunal could not rely on his evidence as to the cost as there was no corroboration by a document or otherwise, his other conduct and his very poor credit.
45. When he was asked by a panel member what motivated him to deny the allegations for a year or more, he said "I was very defensive and in denial". When he was asked what motivated him to lie about the circumstances, he said "I didn't see it as lying. I couldn't accept it in my mind".
46. When being asked extensive questions of the practitioner by members of the panel in an effort to understand what his alleged financial problems were and how they came about, he gave evidence of what he described as "being defrauded" by his accountant and his alleged indebtedness to the Australian Taxation Office, his evidence as to the events became increasingly confused and unconvincing. At first he seemed to be saying that the accountant misappropriated income tax refunds which the practitioner was entitled to. But later he was saying that the refunds were GST.
47. He then said the accountant had not lodged the practitioner's tax returns (so there weren't income tax assessments) and had misappropriated GST refunds. And later he said it was not him, but a company which owned the practice and the GST refunds were payable to the company.
48. Then he said it was he who was being pursued as a director of the company that had failed to pay tax. But then the Australian Taxation Office was proceeding against him for "superannuation not paid for staff". He said that he had signed tax returns but the accountant had not lodged them. And then he said "No tax returns were submitted" and he never saw the GST returns. Then there was more evidence from him on the company issue that added to the confusion.
49. The practitioner admitted that he has been receiving an income by way of income insurance to compensate for the loss of his income from practice as a medical practitioner and there was some confusion as to what he does with those funds. He purported that he has no income from them and that all of those funds after any tax deducted is paid to his estranged wife for the support of his children and her wife.
50. The tribunal found the practitioner to be a very unreliable witness, who often lied when he perceived it would serve his interests.

Complaint two -Self Notification

1. Complaint two is that the practitioner, having been convicted on 29 March 2016 in the Local Court, failed to notify the National Board of the conviction within seven (7) days.
2. Under sub section 130(3) of the National Law a charge or conviction for an offence punishable by imprisonment for 12 months or more is a "relevant event" and the practitioner was required by sub section 130(1) to notify the National Board of each within seven (7) days of becoming aware of it.
3. The practitioner said that he was aware that he had an obligation to notify the National Board but said he "inadvertently believed" that the notification had to be made in respect of a conviction for a criminal offence; not in respect of being charged.
4. He did not notify the National Board of the charge and then when convicted on 29 March 2016 for aggravated indecent assault he did not notify the National Board of the conviction because, he said, he had lodged an appeal against it. He said that he believed "that as I had lodged an appeal with the District Court of NSW against the Local Court's decision that the conviction had not yet been proven".
5. On 25 July 2016 in the s150 proceedings the practitioner was asked whether he had informed the Medical Board of the conviction and sentence when they were confirmed by the District Court on 7 July 2016. He replied: "Yes. I sent the - an email to AHPRA. I had spoken to AHPRA in March as well and again, the gentleman didn't tell me - I told him what the situation is and he didn't tell me there's an immediate reporting - sent me the forms."
6. And later when asked further about when he notified AHPRA he referred to documents and said: "I sent it to Kyle Robinson (sic), notification liaison officer, at AHPRA, on - I got the form from him on 31 March 2016 and I sent it maybe only a couple of days after they sent the conviction."
7. He testified in this hearing that after the conviction in the Local Court he contacted AHPRA and obtained a form from them in late March, But he said he did not complete that and send it back until the District Court dismissed the appeal.
8. In his statement the practitioner alleged he sent a self-notification of the conviction on 11 July 2016 in an email of that date to Mr Robson at AHPRA. A copy of the alleged self-notification is in evidence. It is dated 2 May 2016.
9. He said he spoke to Mr Robson of AHPRA by telephone on 29 March 2016. It is clear on the evidence that he telephoned AHPRA on 29 March 2016, the day of the conviction. Mr Robson was not available and returned his call. They then talked about the compulsory notification requirement. Mr Robson told him that Mr Robson could not give him advice. Mr Robson by email gave him a link to the definition of the events for which the practitioner was required to give notice to the National Board and a link to the form and as a result he obtained the form for self-notification, either from the link or from Mr Robson.
10. In evidence he could not recall whether Mr Robson had a lady phone him or he rang her. He said he was told that he needed to write and he sent an email. In the hearing there was a call for the email to be produced and no email was produced. The attachments to his statement regarding this email comprise a copy of the alleged notification and a copy of each of what appears to be his email inbox and his email sent box of 11 July 2016. There are 2 entries of emails from Mr Robson and 2 entries of emails sent to Mr Robson. The times of the emails are not shown.
11. He was then questioned and said that he read the first email from Mr Robson when he received it. He conceded that he read that once he made a self-notification he would receive a letter from AHPRA acknowledging the receipt. He said "I read that on the day." When he was asked whether he received any such letter of response, he avoided the question. When it was repeated, he conceded that he had not. He was then asked whether he followed up the absence of a response, his answer was that he did not.
12. He conceded in cross-examination that the document which he said was a copy of the notification he lodged. The form stated that the conduct the subject of concern occurred in February 2016. He then conceded that that was not the date of the conduct but the date of the conviction.
13. The document in question is dated 2 May 2016. He testified that he received it in March from Mr Robson, did not sign it until 2 May and did not submit it until 11 July 2016.
14. He telephoned AHPRA on 29 March 2016, the day of the conviction. Mr Robson was not available and returned his call. They then talked about the compulsory notification requirement.
15. In a letter of 28 September 2016 the practitioner told HCCC that he contacted AHPRA on 29 March 2016 and spoke to Mr Kyle Robson. He enclosed a copy of the email from Mr Robson of that date. The practitioner said in his letter that he viewed the link but did not see any material on the requirement to self-notify following a criminal charge or conviction. He alleged that on 8 April 2016 he contacted his medical defence organisation, discussed the notification form he had received, but was not advised of the requirement to self-notify of the criminal charge and conviction. That his medical defence organisation would not give him such advice seems extremely unlikely. There was no corroboration of that evidence and given his poor credit the Tribunal does not accept it.
16. Mr Robson wrote to the practitioner by email on Tuesday 29 March 2016 after the practitioner had telephoned AHPRA and spoken to Mr Robson. Mr Robson said:- "Thank you for calling AHPRA with your enquiry. As we discussed, if you believe that you may need to make a self-notification as per any of the definitions at HTTP://www.ahpra.gov.au/notifications-who-can-make-a-notification/mandatory-notifications-aspx please submit a notification form - note - oo this can be via email or post or you can simply reply to this email with the details and we can use that as the basis of the notification. Once received, AHPRA sends you a letter acknowledging the notification has been received with the contact details of the HCCC (Health Care Complaints Commission) and the relevant Health Professionals Council Authority (in this case the Medical Council of NSW) as these are the authorities that handle notifications in NSW. You can follow up with both these authorities on the progress of your notification. I trust this is of assistance."
17. He conceded in cross-examination that he received no acknowledgment from AHPRA, no correspondence from the Health Care Complaints Commission and none from the Medical Council acknowledging the notification. Then on 31 March 2016 Kyle Robson sent a further email to the practitioner as follows:- "Re Notifications Enquiry Hi There. Please find attached, Let me know if you have any further issues. Kind Regards"
18. It appears that the attachment may have been a second form for the practitioner to make a required notification under section 130 of the National Law.
19. Genevieve Wallace, the senior legal advisor at AHPRA, notified HCCC by letter of 30 August 2016 that AHPRA had no record of any notification or complaint submitted by the practitioner since the National Scheme began in 2010. Mr Dinihan a legal officer from the Health Care Complaints Commission confirmed that there was no record of any self-notification on 7 November 2017 and so did the senior legal adviser, Mr Shears by a letter of the same date.
20. The "two screen shots" from the practitioner's outbox showing emails sent to Kyle Robson on 11 July 2016…. attached to the practitioner's statement purport that the emails were sent to Mr Robson on 11 July 2016. Mr Robson's email address is kyle.robson@ahpra.gov.au. The first of the email entries is addressed differently (to Kyle.Robson@ahpra.gov.au).
21. Tab 55 of the applicant's documents is a copy of an email from the solicitors for the practitioner to the Health Care Complaints Commission attaching the two emails allegedly sent from the practitioner to Mr Robson on 11 July 2016.
22. The first is an email from a staff member at the Penrith Cancer Foundation, where the practitioner practised, sent to the practitioner on 11 July 2016. It purports to attach a document described as "Nadi Hanna Complaint.pdf" and shows that it was sent at 1:28 pm on 11 July. It is not an email from the practitioner. A second document with an attachment described as "NH" and a subject "Dr Nadi Hanna" was sent by the practitioner from his email address to Mr Robson. The body of the email states only "self notification". It was sent at 1:55 pm on 11 July. The solicitors for the practitioner state that when they attempted to send both attachments together their email was "rejected due to size".
23. Kyle Robson provided a statement for the proceedings. It is dated 6 April 2018. He had been at that time employed by AHPRA since 2014. He is now working as an investigator in the assessment team but he had previously worked in customer service, administration, notifications, registrations and legal. His email address has been the same throughout.
24. He recalled working on 29 March 2016 in notifications and received a request to contact the practitioner He telephoned him later that day. He said he cannot recall the details of the telephone conversation but he followed up the call with an email sent at 2:33 pm on 29 March. He attached a copy of the email, which has been referred to earlier.
25. He said that on or about 26 August 2016 he became aware from correspondence sent by the Health Care Complaints Commission that the practitioner was claiming that he had made a self-notification to AHPRA.
26. Mr Robson, on about 30 August 2016, reviewed the "registration database 'Pivotal'" for any information regarding the practitioner including whether any electronic notifications were received. He could not locate any self-notifications by the practitioner. He also reviewed the "TRIM" database to see whether any hard copy self-notifications had been received and found that there had been none. He also checked his personal inbox for any emails from the practitioner and could not locate any. He subsequently liaised with Genevieve Wallace who finalised the reply to the Commission of 30 August 2016.
27. Mr Robson also said in his statement that between 28 October 2016 and 31 October 2016 he engaged in direct mail correspondence with the practitioner's solicitor as to whether he had received any emails from the practitioner on 11 July 2016. He notified Mr Robson that the last time he had correspondence with the practitioner by email was in March 2016 when he sent the practitioner the form to complete. He said he has not received anything further since then.
28. Mr Robson also notified the solicitor that "for completeness I also asked my replacement in that role to see whether he had received anything. He also confirmed that according to the available emails, nothing was received in that box either on those dates.
29. On 3 April 2018, Mr Robson sent an email to AHPRA's service desk analyst. He was advised by that person the maximum size email that AHPRA could receive "is 10 mb which is more like 9 mb for attachments". If someone were to send an email larger than that they would receive a bounce back telling them that the email was not delivered".
30. Mr Robson was required for cross-examination. He confirmed his evidence that he could find no response from the practitioner to the email response Mr Robson sent to the practitioner at 2:33 pm on 29 March 2016.
31. On the relevant evidence and taking into account the practitioner's poor credit, the Tribunal finds that the practitioner did not submit a self-notification of the charge or of the conviction.
32. The practitioner also admitted the particulars of Complaint 2.
33. The evidence establishes Complaint 2. The practitioner, in breach of section 130 of the National Law, failed to notify the National Board of the charge and failed to notify the National Board of the conviction. Each of these breaches of section 130 is deemed unsatisfactory professional conduct by para 139B(1)(b) of the National Law as "a contravention by the practitioner (whether by act or omission of a provision of this law) whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention".
34. The findings in relation to Complaint 2 reflect adversely on the reliability of the practitioner generally and also in terms of credit. There is also considerable evidence about his problems with depression and consequent irrational thoughts and irrational behaviour. These matters are discussed later in the reasons. Person A gave evidence in the hearing in the Local Court and also in this hearing. She was cross-examined both times. She presented as a much more reliable witness than the practitioner. Similar findings were made by the Magistrate in the criminal proceedings.

Relevant Further Conviction and Practitioner's Evidence.

1. As a result of the exercise of a search warrant by Police on 16 November 2017 July 2017, the Police took possession of the practitioner's mobile telephone from his home in Penrith. Pursuant to the Child Protection (Offenders Registration) Act 2000, the practitioner was a registerable person because of being sentenced in the Local Court for the sexual assault on the child Person A.
2. The restrictions imposed included that he was no longer permitted to treat any person under the age of 18 years in any capacity at any time in the next eight (8) years. He was provided at the time of the conviction with an information sheet that listed the requirements imposed on him by the legislation as a registrable person. Those requirements included a requirement that he notify Police of any written or oral communication by him with a child including by electronic means such as email or the internet.
3. The same document warned him that a breach of that requirement was a criminal offence punishable by up to five (5) years imprisonment and/or a fine of up to $55,000.00.
4. The Police discovered from the practitioner's phone that since his conviction here had been access through his telephone to interactive websites frequented by children; being access to Snapchat on 30 September 2017 and access to a similar site, WhatsApp, on 1 November 2017.
5. The practitioner was then charged with the relevant offences on 16 November 2017. He pleaded guilty to both offences in the Local Court and was convicted of both. Instead of the penalty, he was allowed to enter into a good behaviour bond in March 2018.
6. When the practitioner was asked in these proceedings how the interactions with those sites had occurred on his telephone, he said the downloads were by "third parties". He then was asked who and named a person who he said was a 26-year-old worker he met at a party. Then later he said that it was "not really a party".
7. He conceded that the username on the site WhatsApp was "Mr Fun". He denied that he downloaded from the sites. When asked about the interactions with Snapchat he said "It was similar. The people I hang out with have no money and can't afford a phone so they use mine to contact other people".
8. Exhibit "A1" was a Court Attendance Notice and a Police Fact Sheet. Given the contents of those documents, the practitioner's plea of guilty, the absence of any corroboration of his evidence that someone else used his phone to access those sites, and his poor credibility generally, the Tribunal does not accept his allegation that it was not him who accessed the sites on his mobile telephone in breach of the legislation.

Complaint three

1. The practitioner gave clear evidence at the s150 hearing on 25 July 2015 that he had lodged the notification with AHPRA in July 2016, but that is untrue. The practitioner clearly breached the requirements of section 130 for him to notify the National Board within seven (7) days of the charge and within 7 days of the conviction. On 25 July 2016 at the s150 proceedings he knowingly lied to the delegates of the Medical Council when he said he had, on or shortly after 7 July 2016 he forwarded his self-notification of the conviction pursuant to section 130 of the National Law to AHPRA.
2. The Tribunal is satisfied Complaint three is proved on the balance of probabilities.
3. Lying to the delegates of the Medical Council at the section 150 hearing is clearly improper and unethical conduct of the practice or purported practice of medicine. Accordingly the conduct is unsatisfactory professional conduct pursuant to section 139B(1)(l) of the National Law.

Complaint One

1. The practitioner in his statement of 26 March 2018 admits, and the evidence establishes, all of the pleaded background and particulars of complaint 1. That conduct constituted an aggravated indecent assault, a serious offence under the Crimes Act 1900, that the victim was a child and an employee of his, attending for a half day trial working in the surgery and it was her first day.
2. The complaint is that the practitioner has been convicted of a criminal offence of aggravated indecent assault under s 61M(1) of the Crimes Act 1900. Section 144(a) of the National Law includes such a conviction in the matters that can be the subject of a complaint about a registered health practitioner.
3. The evidence establishes, and the respondent practitioner admits, that on 29 March 2016 the practitioner was convicted of aggravated indecent assault of a child of 17 years. The evidence proves, and the practitioner admits, the whole of Complaint One, including the whole of the background and the whole of the particulars.
4. The legislature considered the offence serious as the maximum sentence under S 61M(1) is imprisonment for 7 years.
5. The Tribunal is also satisfied that the conduct the subject of Complaint One is also conduct that falls within the definition of "unsatisfactory professional conduct" in sub-section 139B(1) paras (a) and also (l) being:- "(a) Conduct that demonstrates the judgment possessed 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; and (l) Improper or unethical conduct relating to the practice or purported practice of the practitioner's profession."

Complaint Four

1. The allegation is that on 14 July 2015 between 1:00 pm and 4:30 pm at the practitioner's practice on Person A's first day of work at the practice the practitioner engaged in unwanted conduct of a sexual nature. The practitioner admits the following particulars:- "(a) he said to Person A on at least one (1) occasion words to the effect 'You have a beautiful smile'; (b) he grabbed Person A's hips and moved her to one side whilst obtaining the laser kit in his office; (c) he closed and locked the door while Person A was alone with him in his office; (d) he kissed Person A on the face without her consent in his office while the door was closed and locked; (e) he forcibly touched Person A's buttocks without her consent in his office while the door was closed and locked; and (f) he touched Person A's groin area without her consent in his office while the door was closed and locked."
2. The practitioner admits the background (as for Complaint One) and also admits each of the particulars of Complaint Four. Those matters are also supported by the evidence,
3. The Tribunal is satisfied that the conduct particularised was improper and unethical conduct relating to the practice or purported practice of medicine. It was therefore unsatisfactory professional conduct under para 139B(1)(l) of the National Law.

Complaint Five

1. Complaint Five is that the practitioner is guilty of professional misconduct under section 139E of the National Law in that he has engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, they amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
2. Complaints One, Two, Three and Four and the particulars for those are relied upon individually and cumulatively. In his cross-examination on 11 April the practitioner admitted that, in respect of this complaint, he is guilty of professional misconduct.
3. Complaint 1 is the criminal offence of aggravated indecent assault of the 17 year old employee. It needs to be said that the offence of which the practitioner was convicted was more serious because of the considerable vulnerabilities of Person A. Person A was only 17. Her mother had suffered a drug addiction and died when Person A was only eight years of age. She lived with her father after that, but they had a difficult relationship which led to him excluding her from the home a few days before she was to go the practitioner's practice to start employment as an assistant receptionist. When she went to the practice she had no accommodation of her own and had been staying with a friend. She had no money and could not afford food or accommodation. He was her employer and she was attending to work in his surgery for the first time.
4. Similarly failure to report to the National Board the charge or the conviction and withholding that information from the National Board and AHPRA was serious, improper and unethical conduct for a medical practitioner. It was also breach of a legislative requirement.
5. Furthermore the conduct the subject of Complaint Three demonstrated a serious lack of integrity where he sought to mislead the Medical Council by lying at the section 150 hearing.
6. Together Complaints One, Two Three and Four constitute professional misconduct particularly in terms of the lack of integrity that they demonstrate. Together they are conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
7. The practitioner is therefore guilty of professional misconduct.

Complaint Six

1. This complaint is that the practitioner is not a suitable person to hold registration as a medical practitioner within the meaning of S144 of the National Law. It relies upon Complaints One, Two, Three and Four. In addition it relies on particulars two, three and four of complaint 6.
2. The allegations regarding this complaint are alleged to have occurred on 14 July 2015 between 1:00 pm and 4:30 pm when Person A was attending for the first time as an employee of the practice.
3. The practitioner admits that during the afternoon he invited Person A to go to dinner with him that evening and also said words to the effect: "Don't tell the other girls about it".
4. In the same period the practitioner called reception to request that Person A come into his office. The practitioner concedes that he "Called reception on a number of occasions to request Person A to come to my office … between 13:00 and 16:30 in the context of Person A's training". He did not elaborate on what the training in his office was,
5. Person A alleged that when she approached his office each time he was standing in the doorway and had a conversation with her. His response to that in his statement was: "I admit that when Person A approached my office I may have been standing in the doorway".
6. She alleged: "The practitioner said: 'Are you having trouble paying for things?'" He pulled a pile of money out of his pocket that was approximately 8-10 cms thick of $100.00 and $50.00 notes. She alleged that she replied: "No, I don't want any of your money".
7. The practitioner's version was: "I admit that during the course of the afternoon Person A told me she did not have any credit on her mobile phone and I offered her a $50.00 note, which I took from my pocket, to buy phone credit. Person A declined my offer".
8. Person A said that the practitioner then said to her: "Here I will help you out, have one of these." He pulled two $100.00 notes out of his pile and she says she replied: "No, seriously I don't want your money". The practitioner does not admit this allegation.
9. Person A also alleges the following conversation occurred:- Practitioner: "Now [Person A] have you ever done drugs and partied?" Person A: "No, because I have seen what they did to my mum and it ruined her life." Practitioner: "I do it on a regular basis. I have regular days off so I go out on Tuesday and party and have Wednesday and Thursday to recover."
10. The practitioner's version of the conversation in paras 53 of his statement is:- Practitioner: "Do you take drugs?" Person A: "No, because my mother was on them and she killed herself." Practitioner: "I have days off so I go out on Tuesday because I have Wednesdays and Thursdays off."
11. But in para 53 the practitioner said of his latter alleged statement, "I deny this reference was in relation to drugs or "'partying'". At the hearing he testified that he asked her if she took drugs because of concerns about employing her if she did. She insisted on her version. Person A denied having said that her mother "killed herself". Her evidence is that her mother did not commit suicide and did not die from drugs.
12. Person A in her cross-examination generally adhered to the allegations as made in the complaint. In cross-examination it was put to her that he did not say "to recover". She insisted that he did. It was put to her that there was no reference to "partying" and she conceded that. But the statement she gave on 16 July 2015 said that he said to her: "I do it on a regular basis. I have regular days off so I go out on Tuesday and party and have Wednesday and Thursday to recover".
13. Similarly, she said in that statement that he said to her: "Now [Person A] have you ever done drugs and partied?"
14. Her version of those conversations is generally closely consistent with the notes made by a Police Officer when she spoke with him on 6 July 2015.
15. When the practitioner was cross-examined he conceded that the version of the conversation in his statement in these proceedings is not the version he gave in his evidence in the criminal proceedings in March 2016.
16. On the balance of probabilities the version of Person A is correct.
17. The Tribunal does not accept the practitioner's evidence to the extent that he disputes any of Particulars 2, 3 and 4 of complaint 6. The Tribunal prefers the version of Person A. Those particulars are proved on the balance of probabilities.
18. Complaint 6 is made under S144 of the National Law. S 55(1) of the National Law lists some matters that may justify a decision by a National Board that an individual is not a suitable person to hold general registration. The Tribunal finds that the practitioner is not a suitable person to hold general registration as a medical practitioner because of his criminal conviction, his failure to comply with legislation requiring him to self-report the charge and the conviction, his conduct in giving false evidence to the s 150 hearing, the risk of him assaulting or sexually assaulting or indecently assaulting or propositioning a patient or member of the staff in his surgery, and the risks to the public and the profession because of his dishonesty and lack of integrity. On the evidence he is not of good character. He is not a suitable person to be a registered medical practitioner. Complaint 6 is proved. The practitioner's registration should therefore be cancelled.

Evidence of Dr M Girgis GP

1. Dr Girgis has seen the practitioner as his general practitioner over the period from July 2016 until March 2018. Consultations by the practitioner with Dr Girgis or one of his partners occurred 16 times in the second half of 2016, 32 times in 2017 and twice in the first two months of 2018. Generally the diagnosis throughout by Dr Girgis was "major depression and anxiety". For the whole of that period, the practitioner had been certified by Dr Girgis or one of his partners as unfit to undertake any work and the doctor has provided detailed certificates entitled "Ongoing Treating Doctor's Statement" for OnePath, the practitioner's income protection insurer.
2. In July 2016 Dr Phillips, a consultant psychiatrist who saw the practitioner, wrote to Dr Girgis and in that letter he recommended that the practitioner be referred for psychotherapy. On two occasions in July 2016 and again in September 2016 Dr Girgis referred the practitioner to Jamir Benjamin, a psychologist, for psychotherapy. He conceded that the practitioner did not go to Mr Benjamin. He also advised the practitioner in November 2016 to attend a psychologist for psychotherapy.
3. In that period the consultations by Dr Girgis with the practitioner have mainly involved prescribing medications, completing the Doctor's Treatment Statements for OnePath and counselling the practitioner about lifestyle modification, diet, exercise and other health matters.
4. According to the records of Dr Girgis the practitioner is currently taking nine (9) medications, including Viagra and Cialis. There is no evidence that Dr Girgis has been providing any psychotherapy to the practitioner.
5. In a report of Dr Girgis dated 28 July 2017 he stated the major symptoms that the practitioner was currently experiencing and they included "unable to concentrate, severe depression, anxiety and panic disorder". He listed the treatment the practitioner was receiving as medications: antidepressant, anti-anxiety, mood stabiliser.
6. Generally in his reports to the income insurers and others he has certified that the practitioner has been and continues to be "totally unfit" for paid work.
7. Dr Girgis gave oral evidence. From that evidence it appears that for nearly two years Dr Girgis has been consulting with the practitioner, but the practitioner has not improved. It is important also to note that the practitioner has not undertaken any course of psychotherapy notwithstanding that it has been recommended by Dr Girgis and Dr Phillips, his psychiatrist.
8. Dr Girgis in his evidence-in-chief said that he had seen the practitioner 20 years earlier when he was suffering from depression and anxiety upon the breakdown of his first marriage.
9. He described the practitioner as "a different person now to when he came in July 2016". He said that at that time the practitioner was "crushed, rock bottom". He said that the practitioner sleeps better and has clearer thoughts now. He thinks he is very remorseful (although he said he does not discuss with him the conduct that resulted in the conviction). He said he has received "nothing back" from any psychologist. His practice is a bulk billing practice and he sees about 50 patients per day, depending on the shift. He said that his consultations, including those that involve counselling, are about 20 minutes.
10. His evidence was that he prepared a Mental Health Plan for the practitioner and that included a psychologist for psychotherapy, but the use of a psychologist has not eventuated.
11. In a two-page report he provided for the practitioner's solicitors in these proceedings he described his diagnosis as "severe depression associated with anxiety disorder". He said that his treatment of the practitioner comprised five medications and his counselling, consultations with his psychiatrist Dr A Phillips and counselling by himself.
12. He expressed the opinion that the practitioner's mental state had improved since the events of July 2015. It appears on the evidence that if it has improved, the reason for that is the medications.
13. Dr Girgis said in his report "I have no concerns for Dr Hanna to restart practising as a general practitioner" but he qualified that by saying that the practitioner would have to initially be working under supervision by another experienced GP. Presumably, it would also be conditional upon continuing his medications and consultations with Dr Girgis and Dr Phillips.
14. When asked, Dr Girgis could not recall whether he had read the copy of the complaint and the copy of the magistrate's decision that had been forwarded to him. He said "I may have".
15. At times Dr Girgis was evasive and appeared to be defensive of the practitioner. On one occasion he pressed an answer that was not responsive to the question and insisted on making his point.
16. Although he had included consultations with Dr Phillips in his proposal for the practitioner to be able to practice again, he conceded in cross-examination that the practitioner did not attend on Dr Phillips until March 2017. He then said that he did not know how frequently the practitioner attended on the specialist. The Presiding Member advised Dr Girgis about the danger that evasiveness in his answers might adversely affect the panel's assessment of his credit and he appeared to then take that into account.
17. In his ongoing statement to the income insurers dated 10 January 2018, Dr Girgis described the current symptoms and stated his diagnoses as "major depression, severe anxiety, panic attacks, adjustment disorders" and the symptoms were described as "very depressed or difficulty to concentrate, not sleeping well, suicidal thoughts". The next such report is dated 6 April 2018 and has similar particulars except it does not include suicidal thoughts.
18. The doctor was reminded that he had said in his earlier evidence that there had been a significant improvement since the practitioner consulted him in July 2016. He was referred to the first report to the income insurance company that he signed which was at page 177 of tab 5 of the respondent's documents. That document said that the diagnosis was major depression disorder and adjustment disorder and the current symptoms were "depression (severe), anxiety (moderate), lack of concentration and tiredness (severe)".
19. He was taken to various subsequent reports to the income insurer and it appeared that the practitioner's condition had deteriorated over time. Indeed it included major depression through to November 2016. He conceded that throughout the whole of that period the practitioner may have had major depression. Similarly he conceded that as at 10 January 2018 the practitioner still had major depression, severe anxiety, panic attacks and adjustment disorder. The symptoms were "very depressed, difficulty to concentrate, not sleeping well, suicidal thoughts".
20. When Dr Girgis was then asked how the practitioner's health had improved, he avoided the question.
21. Dr Girgis conceded that his view was the practitioner was still unable to practice as a doctor. Dr Girgis was then asked whether he considers the practitioner is "still unable to practice as a doctor" and he answered "I said he can't work because he is unable to practice". He was then asked where he had informed the insurance company that the practitioner had been suspended. After some avoidance and a caution, he conceded that he has not told the insurance company of the suspension.
22. In further questioning Dr Girgis was extremely evasive. He repeatedly avoided another question. It was only when the Presiding Member intervened and cautioned him that he answered the question.
23. In Dr Girgis' clinical records in relation to the practitioner, the entries for counselling of the practitioner include words such as "diet, exercise, lifestyle modification and continuing current medication/management".
24. When asked in cross-examination what he counselled, he replied "nothing new". He was asked then about the reference to the words "diet, exercise", and some others and said that was part of the counselling. He said that the words were what he counselled the practitioner about. He was then quite evasive but eventually said that he also counselled him "about things to do" because he was not working.
25. He was asked about his understanding of proper clinical notes and the requirement that they be sufficient to enable another practitioner to assume the clinical care of the patient. His answer was unresponsive and rambling. The Presiding Member repeated the question for him and he confirmed that he did understand that. He said that he had also counselled the practitioner about drinking less coffee.
26. When asked whether for each counselling recorded as for "diet, exercise" and others they were the only areas on which he counselled the practitioner, he avoided the question and volunteered unresponsive material. His answer was not responsive but then conceded that they were the only areas. He was then asked similar questions about particular clinical notes about counselling and he said that those topics were the extent of his counselling on those occasions. He also said that writing a script was not "counselling". It was revealed in the cross-examination that in a report he gave to the UHG (associated with the income insurer) on 28 July 2017 he said that the practitioner was seeing his psychiatrist, Dr Phillips. But that was not true. The practitioner had ceased seeing Dr Phillips. Dr Girgis said that he didn't know that the practitioner had ceased seeing Dr Phillips at the time.
27. He conceded that he had provided a medical certificate for the practitioner on 8 November 2017 and at that time had been unable to work or do any paperwork since "late July 2016". He also said in the certificate "I do believe that Dr Hanna was unable to handle any paperwork from the taxation department or any paperwork of any stressful nature due to his medical conditions since July 2015". In another medical certificate dated 22 November 2017 he gave the practitioner, he certified that the practitioner "still required ongoing psychological treatment" and also said that the practitioner "is seeing psychiatrists" when this was untrue. He said that he believed at the time that the practitioner was still seeing Dr Phillips.
28. He conceded that he did not further refer him to a psychologist for psychotherapy when he found that the practitioner had not attended pursuant to the earlier referrals. He conceded that in 2017 the practitioner still needed to go to a psychologist for psychotherapy but when asked why he did not give another referral he said he thought he did not need to see a psychologist and was stable. This contradicted the certificate that he gave which said that "he still required psychological services".
29. Dr Girgis received a letter of 23 October 2017 from Avant Law, who were acting for the practitioner. He conceded that when he received that letter he was aware that the practitioner had been convicted of the offence against Person A. He conceded that that prompted discussion with the practitioner in late 2017 about the facts of the assault. The letter had requested answers to four questions relating to the practitioner and his illnesses and care. There was no reply on the practitioner's file produced for the hearing. When asked whether he did reply to the letter, he said "I can't recall whether I did reply".
30. His handwritten record of a consultation on 16 July 2016 recorded that he had given the practitioner a further referral to the psychologist to whom he had previously referred him. Dr Girgis also received a letter of 30 July 2016 from the psychiatrist, Dr Phillips. In cross-examination Dr Girgis admitted that he received the letter and read it. He then conceded that he would have realised at that time that the practitioner had been convicted of aggravated sexual assault. He subsequently conceded that he had not raised this assault with the practitioner until the end of 2017. His response to the question was rambling and largely unresponsive to the questions asked.
31. His attention was drawn to handwritten records of a consultation on 27 July 2016 where there were detailed notes about the assault charge and the practitioner's denials of the allegations made against him.
32. Dr Girgis made a note that an appointment had been made for the practitioner to attend on Dr Phillips on 30 July 2016, three days later. He also noted that the practitioner needed a referral to another counsellor instead of Mr Benjamin for psychotherapy.
33. Dr Girgis received a letter from Dr Phillips dated 30 July 2016. He said that he read it and conceded that he would have realised at that time that the practitioner had been convicted of aggravated sexual assault.
34. In his statement of 28 March 2018 Dr Girgis said "Dr Hanna "now sees that he has impacted adversely on the life of the victim. He is saddened and remorseful of his action which caused harm to the victim, whom he cared for. He is deeply saddened that he let down his family, colleague and the community. He is not pitying himself and admits he made a monumental mistake, wishing to put it behind him and move on. Becoming a useful and respectful member of the community and his family is his goal".
35. When asked in cross-examination what the practitioner had said about the impact on the life of the victim, Dr Girgis was somewhat evasive but said "I can't recall when he said that". He then said that the reference to "whom he cared for" was not intended to refer to the victim, but to "the people whom he cared for". Dr Girgis then said that he was in a rush when he did the report and when asked whether he could not have given it much thought, he gave a rambling response but did not deny the proposition. He then said, when asked how long it took him to write the statement, "I received the request about 4 or 5 days before, did a draft, and then 'finalised it'". When asked where in his notes there was any record of the practitioner referring to the impact on the life of the victim, he avoided the question. The question was repeated and he avoided it again. He then took time to search through his notes but could not find any record of any such statement by the practitioner.
36. It was put to him that the statement he made in these proceedings saying that the practitioner's "mental state has now improved significantly" is inconsistent with what he told the income support insurer in the most recent report, his response was "he could work as a doctor with supervision".
37. He was then asked what he meant when he said in his statement for these proceedings "Dr Hanna has gained full insight" and he replied "He understands the impact on him and his family and his life".
38. He then stated that the practitioner "can work as a doctor - working will help his depression". When it was then put to him that when the practitioner was working in 2015 he had major depression and Dr Girgis' response to that was "I didn't treat him then".
39. It was put to him that in his 2018 assessment given to the income insurer he had stated that the practitioner "had difficulty concentrating". His response was "with a supervisor he can get him to come and help him". He then said that he did not propose that there be a full-time supervisor and did not propose a check on the consultation with each patient, "just from time to time to come".
40. He said in his statement for these proceedings "I have no concerns for Dr Hanna to restart practising as a general practitioner". He was asked what observations caused him to have "no concern". He said "I didn't say no concerns". The question was repeated. He said "Under supervision - he is much improved but needs ongoing counselling and supervision".
41. He said in his statement for these proceedings "Dr Hanna has learned a life lesson". When asked what the life lesson was, he avoided the question and gave an unresponsive answer, talking about consequences to the practitioner and "all around him". When the question was repeated by the Presiding Member, he answered "to be … not to do anything like that again". When asked to elaborate on what he meant he said "the event in 2015" and after further questioning he confirmed that he meant the aggravated indecent assault. He was asked whether that was the lesson that the practitioner needed to learn and he said "no" then elaborated on the effects of the offence on the practitioner. He also said that the practitioner is "very skilled in his work" but he conceded that there was no suggestion that he saves more lives than other doctors do.
42. In the handwritten notes of the consultation with the practitioner on 27 July 2016 Dr Girgis noted that the practitioner said that he "denied all the allegations". When he was asked when the practitioner told him that the allegation was a valid one he said "later". When the question was repeated, his answer was somewhat confusing and it appeared he was saying 2018 or 2017. Dr Girgis said he did not explore with the practitioner what the events were that led to the charge. When asked why not, he said he was focused on the treatment and there were multiple reasons for the depression. He said he also did not go into the details of the bankruptcy of the practitioner.
43. When asked why he thought the practitioner had committed the assault, Dr Girgis said "depression, separation, financial problems, moving home, …".
44. Dr Girgis conceded that he had not made any Mental State Assessment of the practitioner in 2018. When asked how he assessed the mental state of the practitioner in his report in 2018, he said it was by clinical assessment. When he was asked to identify the notes from his file, he said it was "just observations". Then he said it would have happened on dates when he prepared a certificate for the income insurer. He was asked to identify the clinical notes that he relied upon for the report he gave the UHG on 28 July 2017 and the clinical notes supporting his assessment in March 2018 for his statement to the Tribunal but after considerable time he conceded that he could not find any such notes on his file.
45. He was asked about his opinion expressed in his statement that the practitioner's "mental health has improved significantly". He had said that in 2015 the practitioner's conduct was "unstable because of depression". He was asked how he could say now his current depression will not cause any similar conduct and he answered "He is more stable, his mental state has improved" but it was put to him, and he conceded, that there is no record of any recent Mental State Assessment.
46. A member of the panel asked Dr Girgis whether he considered that he has a duty to recognise limits on his skills and refer a patient to the specialist when, despite long-term involvement with the patient, there is no appreciable improvement. His response to that was "He did not need to be scheduled, I saw him as more stable".
47. To another member of the panel Dr Girgis conceded that he has known the practitioner since they worked together at a medical centre at Campbelltown. He was evasive when he was asked whether he knows the practitioner quite well. When asked whether he regards him as a friend, he answered "I don't socialise with him". He conceded though that he had seen the practitioner a lot in the past. He said he is not involved in any business activities with the practitioner. He said that he completed a Mental Health Skills Training Course "some years ago". He was asked whether he thought a Mental State Examination would have been useful in dealing with the practitioner. He avoided the question. He conceded subsequently that he did not conduct one. He had been treating the practitioner's depression and anxiety from July 2015 and was still doing so in April 2018 when the hearing occurred.
48. In answer to a further question he conceded that he has as a GP done a Mental State Examination but he said that he does "several" Mental Health Care Plans each week.

Dr Philips

1. Dr Phillips is a consultant psychiatrist practising at Campbelltown Medical Centre. He has seen the practitioner as a treating psychiatrist. No curriculum vitae for Dr Phillips was in evidence. In evidence there is a two-page report by Dr Phillips of 30 July 2016 reporting to Dr Girgis, the clinical notes of Dr Phillips and copies of reports by Dr Phillips given to the practitioner's income insurer. There is also a report by Dr Phillips of 27 March 2018 provided to the practitioner's solicitors in these proceedings.
2. The practitioner was referred to Dr Phillips by Dr Girgis and saw Dr Phillips for the first time on 30 July 2016. He told Dr Phillips that he had a long history of depression starting more than 20 years ago and "precipitated by his psychosocial issues including the loss of his medical practice, his house and his relationship". Dr Phillips reported that "the symptoms have worsened in the last few years because of financial issues that led to him going bankrupt for many years".
3. The practitioner told Dr Phillips that he saw a psychiatrist about 20 years ago and had a diagnosis of depression. He was treated with Sertraline for a few months.
4. The practitioner told Dr Phillips that he was remorseful that he had lost his registration as a result of his indecent assault conviction. He said that he was "unstable" because he was going through a relationship problem that is now resolved.
5. Dr Phillips noted that the symptoms of the practitioner in July 2016 were "low mood, loss of energy and motivation, disturbed sleep and lack of appetite". He said that the practitioner also described obsessive and anxious symptoms that had worsened recently and also panic attacks. Dr Phillips said: "He mentioned that he gave some attention to a 17-year-old girl whom he was trying to help. She alleged sexual assault which resulted in a conviction of aggravated sexual assault." "The Police also cancelled his shooting gun licence after he was convicted. He was put on a Child Protection Register. He mentioned that the Police came to check his house and his computer without notice to check for porn. He has to report at a Police Station and has to do 250 community hours." "Nadi stated that he is remorseful for the incident and reckons that he was unstable because he was going through a relationship issue that is now resolved."
6. Dr Phillips said that the practitioner was "struggling with depressive rumination, but he is able to sleep". The practitioner told Dr Phillips he had mild asthma and denied drinking alcohol, using drugs or smoking. Dr Phillips reported that the practitioner had: "No psychomotor agitation or retardation was noticed. He spoke with a normal rate, tone and volume. His affect was reactive and appropriate. He described his mood as 'low'. There was no evidence of formal thought disorder, delusions or current suicidal ideas. There were no perceptual disorders detected during the assessment. His cognitive functions were intact."
7. Dr Phillips said that the practitioner had presented with "symptoms suggestive of chronic depression in partial remission on the background of multiple psychosocial issues". He asked Dr Girgis to arrange for blood tests and recommended continuance of a medication. He concluded his report; "he will benefit from a referral to psychotherapy for CBT/supportive psychotherapy. I will review in four (4) weeks."
8. The practitioner has attended consultations with Dr Phillips on the following 4 dates since 30 July 2016:
9. 27/08/16, 24/09/2016, 19/11/2016 and 19/03/2018
10. The clinical notes of Dr Phillips reveal that the practitioner told him on 27 August 2016 that he had suicidal thoughts.
11. It is clear that the practitioner did not comply with the advice of his GP and Dr Phillips for him to have ongoing consultations with Dr Phillips. Indeed, it appears that he did not attend on Dr Phillips or any other psychiatrist in the period from November 2016 until March 2018. It appears from the records that the consultation on 19 March 2018 was prompted by a letter from the practitioner's solicitors to Dr Phillips requesting a report.
12. In that report of March 2018 in answer to the question "Your treatment and recommendations of Dr Hanna? Dr Phillips said: "Dr Hanna is currently treated by an antidepressant … he was also referred to a psychologist to start psychotherapy (especially Cognitive Behavioural Therapy and interpersonal therapy)."
13. The practitioner did not implement that recommendation.
14. Dr Phillips reported that the practitioner's mental state had "significantly improved since he was first seen. His depressive symptoms have settled. He started to gain insight into the accident and his role and circumstances that led to that outcome. He is remorseful about his role in the events."
15. Dr Phillips, in answer to a question about the extent of the practitioner's insight as to whether it had improved, said in his report:- "As mentioned in the previous question Dr Hanna has gained insight into the events. Initially he was blaming the young woman for initiating the contact and rationalising his actions as he just reacted to what she had started. Currently he is remorseful of the event and recognising the following: (a) His mental state at the time of the event was unstable and he 'should not have been working'; (b) He was separated from his wife and going through a difficult time in his marriage; (c) He was not taking his medication; and (d) The effects of his financial issues, especially the bankruptcy, on his mental state."
16. In answer to the question as to whether Dr Hanna is currently a fit and proper person to hold registration as a doctor and will practice in accordance with appropriate ethical and professional standards, Dr Phillips, advised that the practitioner's mental state had improved because he was "back on medication and having regular follow-up with a psychiatrist".
17. However, the evidence in the Tribunal does not establish that since 2016 the practitioner had attended any treating psychiatrist except on 19 March 2018, which attendance was prompted by the need for a report for these proceedings.
18. The second proposition that Dr Phillips relied upon was the practitioner had worked "for 30 years in the same field without any issues and had not had any complaints against him". The practitioner had on occasions in June 2004 and June 2011 been before Professional Standards Committee and found by the Committee on both occasions to have been guilty of unsatisfactory professional conduct. Dr Phillips was not aware of those matters, which were quite serious.
19. It was upon erroneous assumptions that Dr Phillips then concluded that the practitioner was a "fit and proper person" to be registered as a medical practitioner which finding he qualified by saying that the practitioner needed "supervision and certain restrictions" and "a gradual re-introduction plan should be devised to help him go back to work".
20. As to the opinion of Dr Phillips of the practitioner's character and general reputation and ethical standards, attitudes and qualities, Dr Phillips, based on premises some of which were erroneous, opined that the practitioner "has a good character and his reputation was good".
21. It is of concern that that opinion was given in March 2018, when the last prior consultation the practitioner had with Dr Phillips prior to that was in November 2016.
22. In his March 2018 report, Dr Phillips also gave an opinion that Dr Hanna had observed appropriate professional standards in the past and would continue to do so. But that was without the knowledge of the facts proved in relation to the aggravated sexual assault, and the Professional Standards Committee proceedings against the practitioner, where he was found not to have observed appropriate professional standards. Also his opinion was subject to the practitioner's mental state continuing to be stable, which he said would be achieved "with regular monitoring of his mental state and supervision at his workplace". That was in the context where the practitioner had failed for more than a year to attend for consultation with a treating psychiatrist. Dr Phillips in that report in March 2018 recommended that "Dr Hanna should be given another opportunity to practice under supervision".
23. In evidence-in-chief at the hearing, Dr Phillips said he was prepared to continue to see the practitioner and the practitioner would need to see him every second or third month.
24. From the practitioner's past conduct and his evidence, the Tribunal would have no confidence that he would attend on Dr Phillips with any reasonable frequency. Dr Phillips testified that the mental health services in the public system would be unlikely to provide such a service.
25. Dr Phillips said that even if the practitioner were receiving funds from the income protection insurance, with a wife and two children dependent on him he probably can't afford $400.00 per consultation with a psychiatrist. However, both Dr Phillips and Dr Girgis had bulk billed the practitioner for his consultations.
26. Dr Girgis reported the practitioner had up to January 2018, 10 months of problems concentrating. Dr Phillips saw him in March. He said he did a mental state examination and that his assessment was that the practitioner was "not so cognitively impaired that he could not go back to work as a doctor".
27. Dr Phillips conceded that he had not advised the practitioner to ask his GP to refer him to a psychiatrist who would bulk bill. He said he didn't know anyone in the Westmead area.
28. Dr Girgis had diagnosed the practitioner on 8 November 2017 as "Bipolar I Disorder" but Dr Phillips' opinion, notwithstanding that he did not see the practitioner between November 2016 and March 2018 is that the practitioner does not suffer from Bipolar Disorder. He qualified that by saying "not when I saw him or in the past".
29. The practitioner had also claimed his failure to attend Dr Philips on the distance involved in travelling to Dr Phillips' consulting rooms and also the lack of flexibility on the part of Dr Phillips in offering appointments.
30. Dr Phillips said he hadn't asked the practitioner whether he had been successful in making claims on the income protection insurance. The practitioner told the Tribunal that he had and that he was being paid regularly by the insurer but all the money he received was being used to support his children and his estranged wife. Dr Phillips said that if the practitioner was relying on the insurance money, then allowing for the support of two children and his wife the practitioner would not be able to afford $400.00 per consultation with a psychiatrist.
31. He later conceded that he had not asked the practitioner's GP to refer the practitioner to a psychiatrist who would bulk bill. Dr Phillips said that he doesn't know about the psychiatric team at Westmead.
32. When Dr Phillips was told that the practitioner had informed Dr Girgis that he had problems concentrating and that he had repeatedly said this over 10 months up to January 2018, Dr Phillips said "I saw him in March two months later. I did a mental state examination … and my assessment was that he was not so cognitively impaired that he can't go back to work".
33. Dr Phillips said that he would be prepared to continue to treat the practitioner. He did not indicate whether he would be prepared to continue to bulk bill.
34. Dr Phillips said that his consultation with the practitioner in March 2018 was more than 30 minutes but not more than 60 minutes. He did bulk bill the practitioner for that consultation. From July 2016 to the end of January 2017 he provided the practitioner with "Unfitness for Work" notes.
35. Dr Phillips said that in the consultation in July 2016 regarding the indecent assault, "I didn't go into the details of the incident. The issue was depression and that was what we focused on". He said that at that time the practitioner and his wife had reconciled temporarily. On 27 August 2016 the practitioner saw him and told him that he was depressed at the time of the assault. At the time of the consultation he had been declared bankrupt, he had been suspended from his practice by his partners on character grounds, the bankruptcy was being extended or had been extended by four (4) years, the administrator of his estate had confiscated his passport, he had suicidal thoughts, was facing divorce, had been put on the Paedophile Register and said he had made an appointment with a psychologist 'Adele' the following week. When he was asked, Dr Phillips said that he referred the practitioner to the psychologist, and "from memory, he went a few times". He apparently then ceased.
36. He said when he saw the practitioner in September 2016 he was still suicidal.
37. He recorded symptoms in a document for the income protection insurers: "lack of motivation - suspension of profession". He said when asked about that "it can be lack of motivation to seek help". His clinical notes of the consultation on 24 September 2016 show that the practitioner was still depressed and suicidal. On 19 November 2016 he recorded in his notes of the consultation and on the form he completed for submission to the income protection insurers that "symptoms have impacted on daily functioning, also affected his cognition and judgment".
38. He said he recommended psychotherapy and that he usually refers the patient to a psychologist for that. He said the plan was for the practitioner to see the psychologist for help and to report. But he said that the practitioner for 12 months did not attend on a psychologist for psychotherapy.
39. In cross-examination Dr Phillips was asked about the possibility of the practitioner seeing a psychiatrist twice each week. He said that that was not necessary and that once every two or three months would be sufficient. When asked why he stopped seeing the practitioner, he said "I don't know. I think it was some logistics about community service. One or two appointments were changed for various reasons".
40. When Dr Phillips was asked what the practitioner had told him about the assault incident, he replied "He said he shouldn't have been working, shouldn't have done that". When asked what the practitioner had said for him to form an opinion that the practitioner was remorseful and appreciating the gravity of the incident, he said "Really, sort of said he had done that and very remorseful".
41. He said that his assessment of "partial improvement" in his report of March 2018 was based on "improvement of symptoms". He said he was not aware of any treatment by a psychologist to the practitioner other than in 2016.
42. He said that the current symptoms the practitioner had include obsessive/compulsive behaviour and "some depression symptoms". When asked what he meant in his report in March this year when he said the practitioner had "started to gain insight", he said that at 19 March he had not "started", but that he had it. He said that this was suggested by the fact that it was demonstrated by blaming himself for going to work when he shouldn't have and how he acted with the lady but that the practitioner "didn't go into detail".
43. He was asked on what basis he included in the report the statement that the indecent assault was an "isolated incident" and he said "he told me it was the only incident in 30 years". But when asked, he said the practitioner had not told him he had been charged in 2017 with failure to comply with reporting incident requirements.
44. When he was asked he said that that would have concerned him. When asked how the diagnosis of depression and obsessive/compulsive disorder would explain the conduct the subject of the criminal proceedings, he replied "his mental state wasn't stable". He said that the condition could be engendered by stress but he couldn't be sure that it was related. It could be a different cause.
45. When he was asked by a panel member whether the practitioner under stress would be at risk of repeating such conduct, he said he wouldn't be because he hadn't been taking medication at the time of the conduct and was subject to a number of stressors and he said "Now we will be able to detect changes in his mental state early". Dr Phillips said the practitioner needs clear rules for supervision and regular reviews by a psychiatrist and GP and treatment by a psychologist. When Dr Phillips was asked what the practitioner had said to convince him that the practitioner was regretful, he replied "He said 'I shouldn't have been working' and he shouldn't have done what he did". When asked what the practitioner was regretful about, he replied "His actions - and the effect on his life". When asked whether the practitioner had mentioned the impact on the victim he replied "Her youth, and 'I shouldn't have done that to a young person'".
46. Dr Phillips said he could not recall the practitioner saying anything about the consequences for the victim. When Dr Phillips was asked whether he could be sure there would be no further breach, given that the practitioner has been depressed for a very long time, he replied "There have been no complaints in 30 years".
47. In answer to other questions from a panel member, Dr Phillips said that one of the side effects of the medications can be sexual impairment, which is "usually a big issue". He said that in that situation the dosage can be decreased or the medication can be changed. He said that he had bulk billed all of the practitioner's consultations. "I offered my services for free". When asked whether he had a good rapport with the practitioner he answered, "To some extent".
48. He said that to achieve stability with the practitioner the time it would take would depend on "person to person and the best-case scenario would be 2 or 3 months". He said that would require medication, psychiatric consultations every 2 or 3 months and a psychologist weekly. He said he had referred the practitioner to a psychologist, but he didn't know whether he had attended. He said that if the practitioner had sought out and attended an ethics course that would have been a "sign of insight".

Dr Miller

1. Dr Deepinder Miller, a psychiatrist, was instructed by the solicitors for the practitioner to give evidence in the proceedings in answer to a set of questions provided in the instructing letter. She was provided by the instructing solicitors with extensive documentation in the proceedings namely 30 documents filed by the Health Care Complaints Commission.
2. Dr Miller had not treated the practitioner. There was no curriculum vitae filed for Dr Miller or included in her report.
3. Dr Miller was provided with a code of conduct for expert witnesses and also clinical records of Dr Phillips, Dr Girgis, the application, and clinical records for the practitioner of Dr Phillips. She also conducted a two hour assessment with the practitioner.
4. Dr Miller's report is 11 closely typed pages. It is extremely thorough. The assessment occurred on 6 March 2018 and 9 March 2018.
5. The practitioner gave Dr Miller a version of the conduct the subject of the criminal proceedings that minimised his conduct that was the subject of the criminal proceedings. He did not acknowledge any assault. He said that it was Person A's first attendance for work and she was to work from 2:00 pm for half the day. He said that she was "teary and unable to cope" and as a result the manager wanted to send her home, but he asked for her to be permitted to complete her shift, and he told the manager that he would "look after her" and so he was "more attentive towards her and took time to speak to her between seeing patients".
6. He said that "In a desire to appear friendly and approachable" he asked [Person A] about her life". She recited information. He said that he felt sorry for her and that it was in this context that he asked her to join him for dinner later that evening with a male friend who was visiting from Perth. He said that he asked her for her telephone number to confirm their meeting and that she had initially accepted the dinner invitation but later that evening stated that she could not attend and gave several excuses that did not make sense to him. He said he reassured her all was well and she need not be afraid as he just wanted to make sure she did not go hungry. He told Dr Miller that she then leant forward towards him and he thought that she was leaning to give him a kiss. He stated that he closed the door to his office and kissed her.
7. He said that Person A left the room and "back then I thought she initiated it. Now I know I was kidding myself". He said that Person A then sat at the front desk and cried and when he asked her why she was crying she said "This is what happened at the last job". He said he then apologised to her.
8. Dr Miller relied upon the version in the Police Facts Sheet, which was quite different.
9. The practitioner told Dr Miller that he had been "struggling with depression since 2013". He said at the time of the offence he was feeling exhausted and overwhelmed. He was fighting the bankruptcy order and an aggressive debt collector. He said at the time he was flat in mood, experienced teariness and increasing levels of irritability with family members and people working in his practice. He said he lacked insight into his irrational behavioural. He said he experienced anhedonia, social withdrawal, initial insomnia as well as feelings of lethargy upon waking which resulted in daytime napping. He said that those symptoms had persisted for the previous five (5) years. He said that since 2015 he had experienced a loss of appetite and consequently he lost 15 kgs in weight.
10. When he saw Dr Miller he described experiencing a sense of helplessness, homelessness, worthlessness and guilt. He told her that he felt he had lost his sense of his identity, purpose and respect both within the family and the community at large. He also said he felt a great deal of shame that he could no longer provide for the financial needs of his family (his wife and he had separated and the two teenage children were living with the wife). He said he was socially isolated, as when he attempts to socialise it results in people finding him on the Internet, reading about his charge and then refusing to have further contact. He said he had been bullied for his actions. He said he had been referred to as "a child rapist" on the Internet and his children had been bullied for his actions.
11. He said he had been experiencing impaired concentration, focus and short-term memory. He said he can't complete any online courses or watch a movie for longer than 20 minutes. Dr Miller reported that he described high-trait anxiety but denied experiencing panic attacks. To her he denied having any plans or intent to harm himself or others but said that he constantly ruminates about suicide. He denied having any symptoms that are consistent with an underlying diagnosis of mania, psychosis, obsessive compulsive disorder or Social Anxiety Disorder.
12. He told Dr Miller that he had seen Dr Chung, a psychiatrist, at age 33 many years ago, who diagnosed him with Major Depressive Disorder, with anxious distress, moderate to severe. He was prescribed medication, which he said he took for three months without independent medical advice. He said at age 50 he saw Dr Phillips who he said diagnosed him with an Adjustment Disorder with depressed mood and recommenced him on medication. He said he had been taking medication for the past three years and that his GP provides him with counselling twice a month. He said his GP had also prescribed two medications for insomnia.
13. He also reported a family history of psychiatric illness. He said his younger sister suffers from schizophrenia but there is no other reported family history of psychiatric illness or drug or alcohol misuse. He told Dr Miller at the time of the assessment that he was taking three medications.
14. He also told her that in December 2017 he was charged for downloading the application Snapchat on his mobile telephone and not reporting this to the Police. He told her that a 26-year-old female person he met at a party had downloaded the application onto his telephone so that she could send him a text via the Internet as she had no credit on her telephone. He said he did not know that this was a reportable offence.
15. He told Dr Miller he had no other forensic history but from the documents she became aware of his appearances before the Professional Standards Committee on multiple occasions. She also became aware of the complaint to the Medical Board in 1994 alleging that he was prescribing steroids for the purpose of bodybuilding.
16. She also was aware that there were other complaints about the practitioner's clinical conduct in October 2012, April 2013, July 2013 and February 2014 in respect of which no action was required. There was one other complaint regarding his clinical performance, specifically treatment of a basal cell carcinoma on a patient's eyelid. That also resulted in findings of unsatisfactory professional conduct in relation to his medical record keeping.
17. The practitioner told her that while he had a happy childhood and he was always provided for, he was raised in a "non-emotional family" and learned not to confide in his parents or siblings. He said he was never hugged as a child and he and his siblings were never told that they were loved. He told her that as a result he learned to hide his true emotional self.
18. He told her that he was academically bright at school and was consequently accelerated by two years. He completed his HSC at the age of 16 and gained entry to medicine at the University of New South Wales. He became a registered medical practitioner in 1988. He was first married at the age of 21 to a young woman introduced to him by his Coptic Orthodox parents and the marriage ended after three years because of infidelity. He met his second wife at the age of 25 and they married 12 months later. They separated in 2012 but he said they had continued to live together "on and off" in the past six (6) years in order to co-parent their two (2) children who at the time of the assessment were 18 years and 16 years.
19. Dr Miller diagnosed the practitioner as suffering from "Major Depressive Disorder, recurrent". Dr Miller found that the practitioner requires "ongoing psychiatric treatment that should include a combination of medication review as well as regular psychotherapy." She said, "unfortunately he has not been able to access such treatment due to the financial limitations he faces in his current circumstances".
20. She noted that at the hearing in 2016 before the delegates of the Medical Council there was concern that he "had not seen a psychologist, Mr Benjamin, to whom he had been referred by Dr Girgis for psychotherapy. The practitioner said he did not go because he was "too ashamed to tell them that he could not afford the fees". There was no evidence that he ever explored the possibility of taking advantage of the government scheme whereby he could have initial sessions free. Dr Miller reported "this financial limitation continues to blight his psychiatric recovery".
21. The Tribunal must be concerned that although the practitioner was seeing Dr Phillips and being bulk billed for those consultations, and Dr Phillips was willing to provide the practitioner with psychotherapy sessions on a bulk billed basis, the practitioner never asked Dr Phillips about him providing such sessions.
22. Dr Miller reported that the practitioner "understands the boundary issues and the seriousness of his transgression. He comprehends the enormity of the impact his behaviour had on [Person A] a vulnerable adolescent who trusted his seniority and position". She also said that he understands the trust the general public places in medical practitioners and that on that day "he failed [Person A], his family, his co-workers, his employees and the public at large. She noted that he had not informed her of the entirety of the events that occurred on the occasion of the offence. She said "I believe that this was due to his unease in the first interview". She said that in the second assessment interview he was less guarded in his account of the events and more candid.
23. When asked to comment on the extent to which he has insight, Dr Miller agreed with the Medical Council summation of 28 July 2016 that "the public interest test indicated that suspension was the appropriate outcome". She said, though, while he did not make any excuses for his conduct he did state that it was completely out of character. His wife, in a statement agreed with that. But the practice manager in her statement said that he "is sometimes flirtatious and over-interested", and had frequently enquired about her personal life and asked questions such as "did you get with anyone on the weekend?".
24. Dr Miller concluded that the practitioner first became depressed in his childhood which was then often marred by emotional neglect and authoritarian parenting.
25. Dr Miller's answer as to whether the practitioner is a fit and proper person to hold registration as a doctor and will practice in accordance with appropriate ethical and professional standards was "he should be permitted to return to medical practice under strict supervision". That and other conditions she proposed indicate that she does not consider he is fit to practice without support, supervision and conditions.
26. She said that he should be able to return to work with conditions on his registration which include not being permitted to see patients under the age of 18 and also having Level 2 Supervision as outlined in the Medical Council Supervision (Performance Conduct, Health) Policy which states "Independent practice, with review of cases/records as specified. Supervisors must work at the same location and usually be available in person to advise or assist the supervised doctor". Those requirements require the supervision might include: "Observed practice; case presentation; regular structured meetings; case reviews; record reviews; other activities as specified; reports to Medical Council as specified in the condition/s and requiring supervision".
27. The other recommendation she made was that if he were given the opportunity to return to work this should occur "in a graded manner with his initial return to work no more than 16 hours per week divided across Monday Wednesday and Friday. He should not be permitted to work long hours and the conditions on his registration must be transparent to his supervisor".
28. Dr Miller in cross-examination said that the practitioner did not give her a complete statement about the conduct in question but he knew that she had read all of the applicant's documents in the case. She said that he spent most of the time telling her what he'd done and how he felt about it. She said that he had a lack of remorse but that he also appeared to have "complete insight into the gravitas of his conduct". She confirmed that he was not her patient and she saw him only for the purpose of preparing the report. She said that he did discuss with her that he had been charged with the offences and had told her about one downloading offence and it appeared from her evidence that he did not mention the second such offence.
29. She said "the bankruptcy was the catalyst that caused the practitioner's marriage to collapse". She said he told him about the sale of his practice to a group and that he said he couldn't maintain "the turnover of patients" because he was spending too much time with patients and also the lack of facilities and that he had made a formal complaint about that, which appeared to accelerate conflict until he was terminated."
30. She said that his version of "Person A telling the practitioner that she would not come to dinner was that the first message that she first readily accepted the dinner invitation and later sent him a text message to say she couldn't. But in her report, she referred to an oral acceptance and later a further oral decline with "several excuses".
31. Dr Miller said she didn't explore with the practitioner why he wanted to kiss Person A. She conceded that he did not tell her that he had closed the door and locked the door. He told her that Person A closed the door. She said she did not explore with him why he grabbed her by the buttocks. She said he did explain why he thought his conduct was acceptable and that was when he said he was "deluded". She said when she attempted to explore with him events leading up to the incident "he reverted to generalisations" and gave some information about how he built up rapport.
32. He told her that he offered her money to buy food. It appears in other versions he gave at other times he said that he offered her money to charge her telephone. She said that he did not tell her that he had talked about drug taking. When asked if she was concerned that he didn't report events in their entirety, she said "As a psychiatrist I find people don't do so on their first interview, whether they are the offender or the victim. It takes a long time of psychotherapy".
33. She said that while the practitioner realised he was struggling with depression since 2013, he lacked insight into his irrational thoughts and irrational behaviour since then. When it was put to her that the practitioner did not express concerns for Person A, she said "He did earlier, but this was about his family. He said he was extremely sorry and what he did was appalling, but he didn't talk about the impact on Person A." However, she thought that he did understand that.
34. She said that he didn't talk about the impact on her of him pleading not guilty and of her having to give evidence.
35. When it was put to Dr Miller that there was no explanation given as to why he did what he did, she said that she found the explanation was his depression. She said that the depression affected his judgment and made his behaviour irrational. She said that depressed people often behave irrationally and often have irrational thoughts. She said "He still has a major depressive disorder".
36. She acknowledged that there may be other contributing factors other than the depression. She said she treats other professionals. When it was put to her that he may have just been "horny" she said "It is unusual for someone to do this knowing the impact it will have on his career. If he was sexually aroused he would probably find an alternative candidate so it wouldn't so damage his career".
37. She said in her report on page 10 that he understands the boundary issues and at page 7 she said that he realises it was completely inappropriate for him to "go anywhere near a 17-year-old".
38. When asked in cross-examination, she said that he understood that she was 17, the same age as his daughter and he said it was "really inappropriate, referring constantly to his own child".
39. She said that her adoption of the expression "complete insight" arose because he was comparing Person A to his daughter. She said that he realises that what he did was unacceptable. She said that he knew what he had done was wrong but he didn't expect he could lose his job.
40. She said that although she had recommended a return to practice, this would be with strict supervision as he remains clinically depressed and has been since 2013, "not every day but recurrently".
41. She said that the practitioner had told her that he was having counselling with his general practitioner and also told her that he had a psychiatrist, but he couldn't afford to go to see him. This is not true, given that Dr Phillips bulk billed him whenever he went there.
42. Dr Miller said that although the practitioner is seeing his GP, "he does need to go back to a psychiatrist". The conditions of her recommendation that he be able to work included conditions.
43. She said that the basis of her recommendation for him to be able to return to work were: 1) That he has insight; 2) That there is no risk of a repeat; 3) That he has supervision (not necessarily in the room); 4) That he attends practice meetings; and 5) That he does not work more than 16 hours per week. She said that on that basis he would be a low risk, assuming that he attends psychotherapy.
44. She again emphasised that people who are chronically depressed often have no insight, have irrational thoughts, make irrational decisions and do irrational things. She noted that the practitioner is not embracing treatment. She said he may be presently having medication but he needs to have psychotherapy and is not getting it from his GP.
45. She said that a GP is unlikely to be able to give him the psychotherapy he needs. She said the practitioner had told her that he was referred to a psychiatrist and a psychologist, but he told her his GP was giving him the counselling because he couldn't afford anyone else. This is untrue because of the availability of bulk billing with Dr Phillips and at least an initial eight (8) sessions with a psychologist under the bulk billing arrangements.
46. She said that the practitioner's medications, so far as he informed her, were the three she listed in her report and comprised two antidepressants (to be alternated) and sleeping tablets. However, the medical records of Dr Girgis show that the practitioner, at February 2018, was taking eight prescribed tablets, which included Cialis, Viagra, Zoloft and two types of sleeping tablets.
47. Dr Miller emphasised that the practitioner needs psychotherapy from a trained psychotherapist.
48. In answer to questions from the panel, Dr Miller testified that she would not diagnose the practitioner as suffering obsessive/compulsive disorder, panic attacks, suicidal thoughts or risk-taking behaviour. But she did say that his behaviour with staff was risk-taking behaviour. She said she thought the practitioner had been a depressed child and when he is stressed pressures grow and his depression increases. She said that she doesn't think that he has improved at all since the 2016 event but she said she doesn't think he is any worse than when the incident occurred. She said that the only improvement is by way of some insight, but he still needs to have psychiatric care. She said he didn't have any insight in 2016 when the appeal was heard and his insight to the diagnosis has developed since then. She said he has had "minimal counselling" and it has been "very basic".
49. She said that his sessions with a psychiatrist have been mainly about medication management. She said she thinks he is motivated to treatment, although this is inconsistent with his failure to maintain a relationship with the psychiatrist and failure to attend psychotherapy. Dr Miller said that she understood he hadn't attended any psychotherapy.
50. She said she believes the practitioner realises that it is the long-term treatment that he needs and he is at least using the GP to ensure continuity. She accepted that he hasn't seen Dr Phillips many times and that eight free sessions with a psychologist would not be enough, he needs to have two sessions per week for at least a year to achieve appreciable improvement.
51. She said that if he worked under strict supervision, with no patients under 18 and on a part-time basis he could then afford to see a psychiatrist regularly. She again said that she thinks he is motivated and wants treatment and he really understands the impact it has had on persons other than himself.
52. She said that he may have had panic attacks but he does not have a panic disorder or an adjustment disorder. She said he had no suicidal thoughts. She said she doesn't agree that he can't perform any work duties. "He is cognitively capable of going to work".
53. She also said that Viagra and Cialis were often used by psychiatric patients because of the side effects the other medications they are taking.
54. Dr Miller said she didn't ask the doctor whether his income protection claim has been successful. She said she assumed that if he was in receipt of income protection payments and he has a wife and two 2 children dependent on him, he won't be able to afford $400.00 for a consultation with a psychiatrist. In January he had been having problems concentrating and that had been the case for 10 months according to the records of his general practitioner. Dr Miller said she saw the practitioner two 2 months later. She said she didn't do a mental state examination, but her assessment was that he was not so cognitively impaired that he could not go back to work. She said she didn't ask him to ask his general practitioner to refer him to a psychiatrist who bulk bills, but that was not necessary because Dr Phillips does bulk bill.
55. She also said that he does not have Bipolar Disorder.
56. Dr Miller, whose evidence was heard before Dr Phillips', recommended that the practitioner, to address his problems with depression, would need two sessions of psychotherapy per week with a psychologist or psychiatrist. She said it would take at least a year of that process before there would be some appreciable improvement from the process. When she was asked how he would attain those services if he can't afford them, she said that there are doctors who bulk bill. When asked, Dr Phillips in his oral evidence agreed that two sessions of psychotherapy per week would be reasonable and desirable. He was asked how the practitioner would obtain psychotherapy if he did not have the finances, Dr Phillips said "I bulk bill my services and a psychologist can bulk bill 10 such sessions".

Review of Cancellation

1. In relation to the evidence of Dr Girgis, Dr Phillips and Dr Miller, Dr Miller's opinion evidence is preferred by the Tribunal to conflicting opinions of Dr Girgis or Doctor Phillips because she impressed as more objective and much more thorough and more professional.
2. The complaints proved are very serious. The practitioner has ignored the advice of his psychiatrist, his GP and Dr Miller that he needs psychotherapy to seriously address his depression. He has had it since childhood. If he did embrace psychotherapy it would take at least a year to make appreciable improvement.
3. The practitioner was a young man of considerable promise when he completed High School at 16 and went to university and when he first registered as a medical practitioner in 1987. But it appears he has been troubled by depression since childhood with serious bouts in the last 20 years.
4. In 1994 there was a complaint made to the Medical Board the practitioner may be prescribing anabolic steroids for body building purposes. He was counselled by the Board.
5. The practitioner's first marriage resulted in divorce after a few years.
6. In 2004 when he had been in practice for 17 years the Professional Standards Committee found him guilty of unsatisfactory professional conduct. Briefly the allegations proved were:-

• Incorrect diagnosis of a squamous cell carcinoma without taking a biopsy,
• Performing a wedge resection and failing to separately suture the muscle layer of the woman's lip,
• Diagnosed a basal cell carcinoma (BCC) as a squamous cell carcinoma, without first taking a biopsy to confirm the diagnosis,
• Performed a wedge resection of a man's ear when the lesion was in fact chondrodermatitis which failed to achieve a satisfactory cosmetic result; and
• Failed to maintain adequate clinical records.

1. In 2007 a complaint was received by the Medical Council and another patient about an unsuccessful breast reduction. As a result the practitioner underwent a performance assessment in 2008. It was found that his professional performance was unsatisfactory in the area of medical record-keeping. The Performance Review Panel imposed conditions on his registration requiring an audit of his medical records. Several audits were undertaken.
2. Between 2004 and 29 March 2007 (a period of about three years) he failed to refer a patient to a specialist surgeon for advice and/or treatment of a recurrent BCC on the patient's left lower eyelid.
3. On 15 February 2005 he placed the patient on a trial of Aldara Cream to treat a BCC on the patient's lower eyelid in circumstances where it was not clinically indicated and that lesion had re-occurred after at least two previous treatments.
4. On 29 March 2007 he had a consultation with a patient at which he:-
5. Performed a wedge excision of a BCC on the patient's left lower eyelid, which he was not qualified to perform, having regard to the nature of the condition, and
6. He failed to refer the patient to an appropriately qualified surgeon for the treatment of the BCC.
7. On about 29 March 2007 he failed to follow up the patient's pathology results with the patient after a wedge excision.
8. In 2011 when he had been practising for 24 years there were further proceedings against him and a Professional Standards Committee hearing. The Committee found that:- 1. The practitioner had failed to comply with the requirements of clauses 13 and 14 of Schedule 2 of the Medical Practice Regulation 1998, in that, after treating Patient A's BCC he failed to record in Patient A's medical record:- 1. Whether a tissue specimen (if any) was sent to pathology; and/or 2. The results and/or findings of any pathology samples taken; and/or 3. Any further action taken in regards to any pathology taken.
9. In relation to his financial affairs, it appears that he made a very serious mistake in entering an agreement to sell his practice to Primary Health and as part of that agreement to work for Primary Health in the practice and see specified numbers of patients, which he found he was unable to achieve. This resulted in litigation between him and Primary Health and he was dismissed from the practice. It appears that Primary Health succeeded in the litigation, which subsequently led to him being declared bankrupt in about 2012. As a result of the bankruptcy, he lost a Porsche car and a Mercedes car and other assets. It appears that the family home was lost.
10. Then in July 2015 the assault the subject of these proceedings occurred at a time when the practitioner had been a registered medical practitioner for about 28 years. He was charged but failed to notify the National Board.
11. On 25 July 2016 in a hearing under section 150 of the National Law, the delegates of the Medical Council suspended the practitioner's registration. The practitioner's application for a stay of that suspension was dismissed by the Tribunal on 15 August 2016. The practitioner's appeal to the Tribunal in respect of the suspension was unsuccessful and dismissed on 16 February 2017.
12. The practitioner has, since his suspension in the s150 proceedings by the Medical Council, been unemployed and experienced impecuniosity.
13. When the bankruptcy was to expire after four years, in February 2016 a creditor successfully applied to have it extended for another 4 years. The practitioner appealed against the bankruptcy extension but the appeal was dismissed. In about August 2016 the practitioner was suspended from his then medical practice. His second wife and their two children separated from him in about August 2016. The children have continued to live with their mother and have seen him for contact at times.
14. He was charged with the aggravated indecent assault in 2015. He failed to notify the National Board. He was convicted in the criminal proceedings on 29 March 2016, but failed to notify the National Board of the conviction. He appealed to the District Court against the conviction and on 7 July 2016 that appeal was dismissed.
15. After his conviction for the assault, an Apprehended Violence Order was made against him to protect the victim. The Police also then attended his home and confiscated his extensive gun collection and his firearm licence was cancelled.
16. On 16 November 2017 the practitioner's mobile telephone was confiscated by the Police and he was arrested and charged in respect of the offences under the Child Protection (Offenders Registration) Act 2000. He was subsequently convicted of the two offences.
17. The practitioner's evidence is that his accountant has defrauded him of significant funds. The Australian Taxation Office has pursued him as a director of his practice company for unpaid taxes of the company.
18. The practitioner has an ongoing dispute with the Australian Taxation Office in relation to outstanding tax and failure to lodge returns.
19. After he had been questioned by a panel member about all these adverse events it was put to the practitioner that since the first proceedings before the Professional Standards Committee, his life had been chaotic. He rejected that suggestion. His response was, "Not at all. Normal life is not rosy."
20. The Tribunal has concluded the complaints proved are so serious, the ongoing problems the practitioner has with depression which he has failed to seriously address by psychotherapy, and the prediction that it would take a year of psychotherapy before any appreciable improvement would occur, indicate that the practitioner is a serious risk to the public and to the reputation of the profession. Taking into account that his lack of enthusiasm to address his depression by psychotherapy, the Tribunal has decided under sub-section 149C (7) that an application for review of the cancellation order should not be made until after 13 April 2019, one year from the date of the order.

Costs

1. The Tribunal's power to award costs is in cl 13 of schedule 5D of the National Law. It provides that generally costs follow the event (See Health Care Complaints Commission v Philipiah [2013] NSWCA 342). In these proceedings the applicant sought an order that the respondent pay the applicant's costs of or incidental to the proceedings. The respondent did not oppose that application. The Tribunal was satisfied that there is no circumstance established that would displace the usual rule that an unsuccessful party pay the costs of a successful party. The Health Care Complaints Commission has succeeded in establishing each of the 6 Complaints and also professional misconduct. It should have its costs paid by the respondent.

Non-Publication Order

1. For protection of the privacy of Person A a non-publication order was made.

Orders

1. Accordingly the orders made on 13 April 2018 were ; 1. The practitioner is guilty of professional misconduct. 2. The practitioner is reprimanded. 3. The practitioner's registration as a medical practitioner is cancelled. 4. The practitioner may not apply for a review of the cancellation until after 13 April 2019. 5. The respondent practitioner must pay the costs of the Health Care Complaints Commission of or incidental to these proceedings as agreed or as assessed. 6. Broadcast or publication without the leave of the Tribunal of the name or other identifying information of the person referred to in the proceedings as Person A is prohibited.

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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: 16 July 2018