Health Care Complaints Commission v Hasil

Court of Appeal (NSW)|2012-10-17|Before: Staff J

JUDGMENT 1On 15 February 2012, the Medical Tribunal of New South Wales ("the Tribunal") published its decision in respect of three complaints brought by the Health Care Complaints Commission ("HCCC") concerning Mr Roman Hasil ("the respondent"), who had previously been registered as a medical practitioner: Health Care Complaints Commission v Hasil [2012] NSWMT 1. 2The HCCC alleged that the respondent, a former registered medical practitioner having previously been registered under the Medical Practice Act 1992 ("the Act") (now repealed) was guilty of "unsatisfactory professional conduct" within the meaning of s 36(1)(a), s 36(1)(b) and s 36(1)(m) of the Act and/or "professional misconduct" within the meaning of s 37 of the Act in that he had: "(i) Demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; (ii) Contravened a provision of the Act, namely section 127B; (iii) Contravened provisions of the regulations, namely the Medical Practice Regulation 1998 (NSW) and the Medical Practice Regulation 2003 (NSW); and/or (iv) Engaged in improper and unethical conduct relating to the practice of medicine." 3The Tribunal determined three complaints. 4In summary, Complaint one involved allegations that the respondent failed to record sufficient information concerning each patient's care and treatment; inadequacy and failure relating to note taking regarding each patient; rudeness and the use of inappropriate language during the course of treatment of various patients; performance of a procedure on one patient without wearing gloves; failure to introduce oxytocin (Syntocinon®), (a drug used to induce labour at or beyond term in maternity hospitals), at a reasonable time in respect of one patient, and failure to notify the New South Wales Medical Board ("the Board") in writing within seven days of the fact that he had been convicted of an offence contrary to s 127B of the Act. 5This section provides: "127B Practitioners to notify convictions, criminal findings and charges (1) A registered medical practitioner must notify the Board in writing within 7 days after: (a) the practitioner is convicted of an offence or made the subject of a sex/violence criminal finding for an offence, in this State or elsewhere, giving details of the conviction or criminal finding and any penalty imposed for the offence, or (b) criminal proceedings are commenced against the practitioner in respect of a sex or violence offence alleged to have been committed, in this State or elsewhere, in the course of the practice or purported practice of medicine. (2) This section does not apply in respect of an offence if the offence is an excluded offence." 6The Tribunal found in respect of Complaint one that the respondent failed to record sufficient information concerning six patients' care and treatment. Particulars that challenged Mr Hasil's surgical or clinical techniques were not established. Mr Hasil admitted in respect of a number of particulars that he failed to record that he was the person who made medical entries in the patients' records, together with the time and any discussions he had with the patients. In respect of one patient, Mr Hasil admitted he failed to record any plan of treatment. The Tribunal also found that the respondent failed to comply with the Medical Practice Regulation, in particular Reg 6 Sch 2 cl 1 and cl 2 and that the respondent was guilty of unsatisfactory professional conduct. 7Complaint 2 which alleged that the respondent was "not of good character" was not established. 8Complaint 3 alleged that the respondent: "... suffers an impairment in that the practitioner suffers from a physical or mental impairment, disability, condition or disorder which detrimentally affects, or is likely to detrimentally affect, the practitioner's physical or mental capacity to practice medicine." 9This complaint was proven. 10The respondent's medical registration was suspended in February 2008 and his name removed from the roll of registered medical practitioners on 11 April 2009 due to his "failure to pay the annual renewal fee". 11In light of the decision of the Court of Appeal in King v Health Care Complaints Commission [2011] NSWCA 353 where it was held that the duty of procedural fairness requires this Tribunal to provide the respondent with an opportunity to adduce evidence and make submissions on appropriate consequential or protective orders following upon the Tribunal's findings, the matter was listed for hearing on 17 October 2012.

HCCC's evidence 12Ms S McNaughton SC, who appeared for the HCCC, tendered the following material in respect of the determination by the Tribunal of appropriate orders: (i)report from Associate Professor Wayne GJ Reid, Clinical Neuopsychologist, Clinical Psychologist dated 22 November 2011; (ii)report of Associate Professor Reid dated 12 May 2012; (iii)letter from Michelle Sloane, Corporate Manager, The Sydney Private Hospital to the HCCC dated 17 July 2012; (iv)letter from Mr Gavin Brunker, Director of Nursing of the Sydney Private Hospital dated 17 July 2012 to the HCCC; (v)statement of Mr Peter Dess, Registered Nurse, dated 17 July 2012, employed at the Sydney Private Hospital. 13Associate Professor Reid was called to give evidence. He was not required for cross-examination. In his report of 22 November 2011, Associate Professor Reid stated that he had undertaken a neuropsychological assessment of the respondent. The tests administered and the results were: " Results:

Attention and information processing: Mr Hasil's attention span for digits was within the average range as was his attention and perceptuo motor speed and visual search time. His overall processing speed index from the Wechsler Adult Intelligence Scale - IV was in the average range. Impairment however was noted in those aspects of his information processing skills in tasks where he was required to think quickly and flexibly.
Intellectual Functioning: Based on history with Mr Hasil reporting that he was a member of MENSA in Czechoslovakia one would estimate that he would have been of at least superior intellectual ability. On current assessment of his intellectual functioning he falls within the average range for both verbal and non verbal intellectual functioning. This represents a decline in his intellect from his premorbid estimate.
Memory: Mr Hasil has impairment in his serial auditory verbal learning in a word list learning test where he was unable to learn more than 8 out of 15 words over five learning trials. In this learning task he had particular difficulties in organising unstructured verbal material in order to efficiently learn it. His problems on further analysis seemed to relate to memory retrieval problems as well as problems in organising information for efficient encoding. By contrast he had no impairment in his visual memory. His working memory that is his ability to hold information and manipulate it was also within the average range.
Executive/Adaptive Abilities: Mr Hasil has a reduction from his premorbid estimate in areas of his executive function for verbal reasoning and non verbal reasoning where he now functions in the average range. More clear evidence of impaired executive functioning however was seen in his conceptual skills and his ability to adapt and regulate his behaviour given feedback in a test of card sorting, problems with learning unstructured verbal material and poor planning and organisational skills. Furthermore his capacity to think quickly and flexibly was impaired.
Psychological Assessment: On examination Mr Hasil did not present with any evidence of a psychiatric disorder relating to his mood, or thought. He has a reported history however of alcohol abuse although denies abusing alcohol for the last two years." 14In his report to the HCCC dated 22 November 2011 under the heading "Summary and Assessment" Associate Professor Reid stated: "Mr Hasil is a 56 year old medical practitioner whose name has been removed from the register of medical practitioners on 11 April 2009. He is currently under investigation in relation to complaints about his medical practice. On neuropsychological assessment he was found to show a decline in his overall intellectual functioning from his premorbid estimate where he now functions in the average range whereas previously it is estimated he was of at least superior intellect. Impairment in his cognitive functioning was also identified in his frontal executive skills affecting his conceptual abilities, adaptive functioning, planning and organisation skills and ability to think quickly flexibly. In the context of his history it seems the most likely cause of his frontal executive deficits is the head injury he sustained in October 2009 where he was reported to have suffered bifrontal contusions, a traumatic subarachnoid haemorrhage and required bifrontal craniotomy. In addition Mr Hasil has a past history of alcohol abuse although he reports that he has drunk very little alcohol over the last two years. If one accepts this and considering his past reported drinking history it seems unlikely that alcohol abuse is responsible for his current cognitive problems. Furthermore there has been a further decline in his social functioning where he lives in an isolated boarding house environment and spends what appears to be considerable time wandering the streets. Considering the nature and extent of his higher cognitive deficits it is felt he is impaired in regard to his neurocognitive functioning and his ability to practice medicine is currently compromised. It is recommended Mr Hasil have further rehabilitation, psychological intervention and referral to a rehabilitation provider for assistance in finding employment in the open job market. Furthermore it is recommended he be referred for follow up neuropsychological assessment in 12 months time following a period of intensive rehabilitation and his case be referred back to the Medical Council for review of his capacity to function as a registered medical practitioner under the Impaired Registrants program." 15In his report dated 12 May 2012 Associate Professor Reid answered five questions asked by the HCCC as follows: "1. When is it likely that Dr Hasil will get fit to practice given his current impairment, his history of alcohol related impairment and his likely future employment? A: I am unable to answer this question given the complexity of Dr Hasil's medical and psychological status.
You suggested in your earlier report dated 22 November 2011 that Dr Hasil would require further rehabilitation and psychological intervention. Could you indicate which types of rehabilitation and intervention programs you would recommend Dr Hasil to undertake. A: This would depend on Dr Hasil's current status with regard to his motivation for rehabilitation. If alcohol abuse is a current problem rehabilitation would be in a alcohol rehabilitation unit seeing an Alcohol Counsellor. With regard to his cognitive impairment, a cognitive rehabilitation programme may assist.
Given his history of alcohol-related impairment, would random urine testing be appropriate? A: If alcohol abuse is currently a problem random urine testing would be appropriate.
If Dr Hasil failed to undertake a period of intensive rehabilitation, could you comment on his ability and/or capacity to function as a registered medical practitioner? A: In my report dated 22 November 2011 I stated, considering the nature and extent of his higher cognitive deficits it is felt he is currently impaired in regard to his neurocognitive functioning and ability to practice medicine. I recommend he receive psychological intervention and be referred to a rehabilitation provider to assist him in finding employment in the open job market. I also recommend he be referred for follow-up neuropsychological assessment in 12 months time following a period of intensive rehabilitation and be referred back to the Medical Council for review of his capacity to function as a registered medical practitioner under the Impaired Registrants Panel supervision. Considering the time since I last assessed Dr Hasil I am unable to comment on his current capacity to function as a registered medical practitioner without conducting a further neuropsychological assessment. Furthermore his capacity to function as a medical practitioner would also depend on whether he has had any of the rehabilitation I had recommended in my report in November 2011.
Any other comments which you may want to make with respect to Dr Hasil's impairment, past alcohol abuse and/or rehabilitation (and/or protective orders). A: See above." 16During oral evidence, Associate Professor Reid said that he did not administer any physical blood or urine tests to determine alcohol abuse when he conducted neurological testing of the respondent during the consultation on 14 November 2011. He stated that this was outside his area of expertise. He relied on the respondent's statement in this regard that he had drunk very little over the past two years. 17Associate Professor Reid confirmed that he was not able to see the respondent again before providing his report of 12 May 2012. 18Ms McNaughton referred to Associate Professor Reid's report of 22 November 2011, and in particular, his recommendation that the respondent "be referred for follow up neuropsychological assessment in 12 months time following a period of intensive rehabilitation and his case be referred back to the Medical Council for review of his capacity to function as a registered medical practitioner under the Impaired Registrants program." He was asked if the respondent had not had that intensive rehabilitation, what was his view as to whether or not the respondent would have the capacity to function as a medical practitioner. 19Associate Professor Reid gave the following evidence: "A: I really can't answer that question insofar as it would be speculation. I would need to examine Mr Hasil and also to find out from Mr Hasil how he has been coping, what he's been doing, is he currently working, how is his Health, whether or not he has undergone any further medical reviews in terms of just his general health. Whether in fact he has made any attempts at continuing his medical education, even though he is not working as a medical practitioner, to see whether in fact he is doing anything about or has considered what things he would particularly like to do. That is, what is his motivation, is he interested in trying to get his career back and also if so what has he done. So until such time as I have that information I really can't give a really informed opinion about that question or to answer that question. ... Q. If he has not had intensive rehabilitation and psychological intervention what do you say about whether or not he would have been just able to fix up by himself, if I can put it that way? A. My opinion would be, if I was to just make a - form some - give some opinion which is not based on any hard evidence, but I would say he would probably have difficulties, given the sorts of problems that I identified on the examination and from the history that I have taken. I would imagine he would have difficulties in being able to negotiate his way through the system to actually be able to find a rehabilitation provider off his own bat and to be able to start the process of active rehabilitation, that is, engaging, finding a rehabilitation provider who could do a work assessment with him, start setting some goals as to what sorts of things he might start to do. So with all those things I would imagine Mr Hasil would have difficulty. It's difficult enough not having problems cognitively to actually negotiate your way through a system like that. The other side of the issue is looking at his financial resources and his ability as an individual to be able to seek out those sorts of services because his options are of going to the public sector. The public sector offers very little in the way of providing those services to individuals, so he would be looking at going to private service providers and if he doesn't have the economic resources to do that, again, that sets limitations on his capacity to be able to follow through with those recommendations that I have made . So, yes. Q. Assuming, for the purposes of obtaining your opinion, that he has not undertaken any intensive rehabilitation since you saw him, would you be of the view that he should not be allowed to practise as a medical practitioner until there is evidence that he has undertaken intensive rehabilitation, psychological intervention and has been reviewed by the Medical Council as to his capacity to function as a registered medical practitioner? A. Yes, I am of the opinion he would have difficulties without going through those sorts of things currently or based on my examination as of November 2011. Q. Would it also be appropriate in your opinion, Professor, given his past history of alcohol abuse, to include in any review of his capacity to function some sort of random testing of perhaps his blood or other appropriate testing to determine whether or not he still had an alcohol abuse problem? A. Yes, that would be highly recommended and I think it is standard practice that the health profession or counsellors as they are now called, recommend for any of their registrants who have any suspected problems with alcohol or substance use that they have random testing of their urine or blood random testing." 20Mr Dess in his statement dated 17 July 2012 said that approximately three to four weeks prior to the making of his statement, he received a telephone call from a male who said he was an obstetrician/gynaecologist. He was asking about gynaecological theatre lists. He stated that the person said he was available to do large amounts of surgical work. He gave his name [Mr Hasil], which Mr Dess asked him to spell. Mr Dess wrote it down. He passed the name onto Mr Brunker, the Director of Nursing. 21Mr Brunker, in his statement confirmed he was present during the telephone call between the respondent and Mr Dess. He said upon being given Mr Hasil's name, he immediately undertook an Internet search. Both Mr Dess and Mr Brunker became suspicious when the respondent declined to leave his telephone number.

Evidence of the respondent 22The respondent, who was self-represented, advised the Tribunal that he did not wish to provide any evidence to the Tribunal.

Consideration 23In determining the appropriate protective orders in this matter, the Tribunal is required to take into account that the overriding objectives and principles of the Health Practitioner Regulation National Law (NSW) ("the National Law"). They are as found in s 3(2)(a) of the National Law and are: "to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered". 24As the Tribunal has already observed, the respondent's medical registration was suspended in February 2008 and his name removed from the roll of medical practitioners on 11 April 2009 due to his "failure to pay the annual renewal fee". 25Section 149C of the National Law gives this Tribunal the power to suspend or cancel the registration of a registered health practitioner. 26Section 149C(4) of the National Law provides: "(4) If the person is no longer registered, the Tribunal may- (a) decide that if the person were still registered the Tribunal would have suspended or cancelled the person's registration; and (b) if the Tribunal would have cancelled the person's registration, decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with; and (c) require the National Board with which the person was registered to record the fact that the Tribunal would have suspended or cancelled the person's registration in the National Register kept by the Board." 27Section 163 of the National Law provides that the appropriate body to review any order or conditions is the Medical Council of New South Wales ("the Council"). (See also s 41B). 28In respect of appropriate orders that should be made, Ms McNaughton submitted that: "We would be seeking that Mr Hasil should be disqualified from being registered until specified conditions have been complied with and they should be in the terms of the sorts of conditions mentioned by Professor Reid in his report of November 2011, that is, that Mr Hasil undertake further rehabilitation, psychological intervention and referral to a rehabilitation provider for assistance in finding employment in the open job market; and that he be referred for follow up neurological psychological assessment in whatever is the appropriate period of time following a period of intensive rehabilitation; and his case be referred back to the Medical Council for review of his capacity to function as a registered medical practitioner under the impaired registrants programme or something to that effect. Of course, the submissions are largely directed to the findings by the Tribunal that the practitioner, Mr Hasil, is impaired." 29Ms McNaughton also submitted that the HCCC would be seeking "some sort of random [alcohol] testing" as part of the review conducted by the Council. 30The respondent advised the Tribunal he did not wish to make any submissions in response to those made by Ms McNaughton. 31Associate Professor Reid concluded in his report of 22 November 2011 that: " Considering the nature and extent of his higher cognitive deficits it is felt he is impaired in regard to his neurocognitive functioning and his ability to practice medicine is currently compromised. It is recommended Mr Hasil have further rehabilitation, psychological intervention and referral to a rehabilitation provider for assistance in finding employment in the open job market. Furthermore it is recommended he be referred for follow up neuropsychological assessment in 12 months time following a period of intensive rehabilitation and his case be referred back to the Medical Council for review of his capacity to function as a registered medical practitioner under the Impaired Registrants program." 32The Tribunal has neither been provided with a current report in respect of the respondent from Associate Professor Reid nor any other clinical neuropsychologist. Nor has the Tribunal been provided with any other relevant evidence by the respondent regarding his current health. 33The Tribunal in its earlier decision found that the respondent was suffering from an impairment. Taking into account the evidence relied upon and the Tribunal's obligation to ensure the protection of the public, the Tribunal has reached the conclusion that pursuant to s 149C(4) that Mr Hasil is disqualified from being a medical practitioner until a specified condition has been complied with by Mr Hasil. 34The condition which the Tribunal imposes is that if future neurological testing demonstrates that the nature of the respondent's impairment has improved such that he could resume practice as a medical practitioner with appropriate conditions such as supervision, the Tribunal is of the view that in such circumstances the respondent could make an application for re-registration to the Council. 35The Tribunal is mindful that Associate Professor Reid recommended the respondent be referred for follow up neuropsychological assessment 12 months from 22 November 2011 following a period of intensive rehabilitation. 36The Tribunal does not propose to add as a condition that respondent undertake a period of intensive rehabilitation. That will be a matter for the respondent which may, of course, impact upon and affect any future neurological tests. It follows that it will be incumbent for the respondent to demonstrate as a result of neuropscyhological testing that his health has improved such that the Council could be satisfied that he has the capacity to function as a medical practitioner.

Costs 37Ms McNaughton sought that the respondent pay the costs of the HCCC. Pursuant to s 175B of the National Law: "The responsible tribunal may make any order about costs it considers appropriate for the proceedings." 38Schedule 5D of the National Law provides: "13 Tribunal may award costs [NSW] (1) A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. (2) When an order for costs has taken effect, the Tribunal is, on application by the person to whom the costs have been awarded, to issue a certificate setting out the terms of the order and stating that the order has taken effect. (3) The person in whose favour costs are awarded may file the certificate in the District Court, together with an affidavit by the person as to the amount of the costs unpaid, and the Registrar of the District Court must enter judgment for the amount unpaid together with any fees paid for filing the certificate." 39The respondent admitted 22 particulars and denied 18 particulars, of which 10 were established. 40Complaint two was not established and Complaint three was proven. 41The Tribunal therefore proposes to order an apportionment of the cost to reflect the result of the proceedings. 42The respondent is to pay 70 per cent of the costs incurred by the HCCC.

Orders

Pursuant to s 149C(4) of the National Law, if Mr Hasil were still registered as a medical practitioner, the Tribunal would have cancelled his registration.
Any application by Mr Hasil for re-registration as a medical practitioner must be supported by a current neuropsychological assessment that confirms the nature of Mr Hasil's impairment is such that he can resume work as a medical practitioner with appropriate conditions.
The appropriate review body in respect of Order 2 is the Medical Council of New South Wales.
Mr Hasil is reprimanded in respect of the matters admitted and proven in Complaint one.
Mr Hasil is to pay 70 per cent of the costs incurred by the Health Care Complaints Commission as agreed or, as assessed.

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: 09 November 2012

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