Health Care Complaints Commission v Hassan - [2020] NSWCATOD 155 - NSWCATOD 2020 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Hassan

[2020] NSWCATOD 155

NCAT Occupational|2020-12-14

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Source facts

Court

NCAT Occupational

Decision date

2020-12-14

Source

Original judgment source is linked above.

Judgment (77 paragraphs)

[1]

ing the issues discussed with his supervisor for each of the 10 patient records and a short statement about what he learnt from the supervision meeting with his approved supervisor. (i) The reports are to be forwarded to the Council within 7 days of the preceding month. 5. To forward evidence to the Medical Council of NSW within 14 days of the Tribunal decision that imposed this condition, that he has provided a copy of the Tribunal decision to the Principal of the practice where he works and his approved supervisor. 6. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: a. The audit is to be held within 3 months from the Tribunal decision that imposed this condition and subsequently as required by Council. b. The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements and compliance with conditions. c. The auditor(s) should pay particular attention to: i. Prescribing d. To authorise the auditor(s) to provide the Council with a report on their findings. 7. Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of this decision to: i. The Principal of the practice where he works and his supervisor 8. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 9. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 10. To bear all costs arising out of compliance with these conditions. (4) Review (a) The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the respondent has a principal place of practice in NSW. (b) Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. (5)The respondent is to pay the costs of the Applicant in the fixed amount referred to in the Schedule provided by the Applicant to the Respondent. Catchwords: PROFESSIONS AND TRADES -health and professionals - medical practitioners - disciplinary proceedings - medical practitioner prescribing medication without conducting adequate examination and/or to order appropriate investigations - medical practitioner issuing erroneous prescriptions Legislation Cited: Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) Cases Cited: Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 Cunliffe v Commonwealth (1994) 182 CLR 272 FTZK v Minister for Immigration and Anor [2014] HCA 26 HCCC v Phillipiah [2013] NSWCA 342 Health Care Complaints Commission v Brush [2015] NSWCATOD 120 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Hughes and Vale Pty Ltd v NSW (1955) 93 CLR 127 Jones v Dunkel [1959] HCA 8, (1959) 101 CLR 298 Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 Texts Cited: NPS MedicineWise, "Reputation: Therapeutic Guidelines" Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Rashidul Hassan (Respondent) Representation: Counsel: N Roucek (Respondent)

[5]

Proceedings under section 150

On 12 January 2018 the Medical Council of New South Wales conducted a hearing under section 150(1) of the National Law in respect of certain matters following complaints made against the respondent in respect of his treatment of numerous patients. In its decision dated 14 February 2018 the Medical Council determined that it was appropriate to suspend the practitioner's registration effective from 12 January 2018.
The respondent sought a review of such decision. A hearing took place on 6 April 2018 before the delegates of the Medical Council of New South Wales. As a result, pursuant to s 150A(3) of the National Law, the decision previously made was set aside and conditions were imposed upon the registration of the respondent. Such conditions required the respondent to practise only in a group practice; to treat no more than 15 patients in any one day; to practise under category A supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision; to forward evidence to the Medical Council within 14 days of being approved to practise; that he had provided a copy of the decision to the principal of the practice; to submit to an audit of medical practice; to provide evidence that he had provided a copy of the decision to the principal of the practice where the respondent was working; and incidental conditions.
A second proceeding under section 150 took place on 7 September 2018 and as a result, pursuant to s 150(3) of the National Law, the section 150 decision was again varied. In written reasons dated 27 September 2018 the conditions were varied, essentially to permit the treatment of no more than 25 persons per day.
A third review was sought under section 150A by the respondent at a hearing which took place on 6 June 2019. Written reasons were delivered on 27 June 2019 by the delegates of the Medical Council which again determined to vary the decision made under section 150. The new conditions require the respondent to practise only in a group practice; to treat no more than 30 patients in any one day; to practise under Category B supervision; and to provide monthly reports to the Medical Council.

[24]

FINDING: Complaint Three

Particular 1(a): Whilst there is some relevant history documented in the form of what Dr Hassan agreed was a template created by himself in his Medical Director programme for any patient who presents with depression (noted by the Tribunal to have been reused verbatim on several subsequent consultations in this patient's record), the Tribunal finds that it is inadequate in relation to a child presenting with symptoms of depression and does not reassure the Tribunal that the comments relating to history generated by this template were asked on each occasion. Notable omissions from the history in the patient's record include: no record of any adult(s) accompanying the child who could give consent for any treatment; no record of previous non-pharmacological interventions; and no timeline of the presenting symptoms.
Dr Hassan admits particular 1(b).
Dr Hassan admits particular 2(a).
Dr Hassan admits particular 2(b).
In regards to particular 2(c), Dr Hassan acknowledged that he had been questioned by the dispensing pharmacist about his prescription for escitalopram for Patient C. A "Clinical Intervention Report" dated 19 May 2017 was also created although not provided to Dr Hassan. His explanation to the Tribunal of maintaining this course of action was that his prescribing escitalopram to a 12 year old child was supported by his reference guide at the time, the US-based information from the 'UpToDate' website, to which he subscribes. His checking a reputable source is accepted by the Tribunal, noting that US guidelines do not always accord with Australian therapeutic guidelines: see NPS MedicineWise, "Reputation: Therapeutic Guidelines"; The Australasian Society of Clinical and Experimental Pharmacologists and Toxicologists; The Society of Hospital Pharmacists of Australia; and the International Society of Drug Bulletins.
As taken from the "Therapeutic Guidelines": There is evidence that selective serotonin reuptake inhibitors (SSRIs) are effective in treating major depression in children. However, due to concerns about increased risk of suicidal ideation and behaviour (see Suicidal ideation and behaviour, above), none of the SSRIs is approved in Australia for the treatment of major depression in children. Fluoxetine is approved for this use in the US and European Union countries.
The peer reviewer described this prescribing as significantly below the standard.
The following "Escitalopram: Drug Information" is taken from the 'UpToDate' subscription website that was provided to the Tribunal by Dr Hassan in this matter. This warning reads: Major psychiatric warnings: Suicidal thoughts/behaviour [US Boxed Warning]: Antidepressants increased the risk of suicidal thoughts and behaviors in pediatric and young adult patients (18-24 years of age) with major depressive disorder and other psychiatric disorders; consider risk prior to prescribing………Closely monitor patients for clinical worsening and emergence of suicidal thoughts and behaviors, particularly during the initial 1 to 2 months of therapy and during periods of dosage adjustments (increases or decreases); the patient's family or caregiver should be instructed to closely observe the patient and communicate condition with health care provider…..A medication guide concerning the use of antidepressants should be dispensed.
There is no documentation of Dr Hassan conveying the warning to the child's guardian(s) of the known risk of suicide as a result of prescribing this medication to children. There is no record of any adult accompanying the child to the consultation to give informed consent for any treatment. Dr Hassan gave evidence to the Tribunal that the child's mother and a professional from Community Health were present at the consultation.
Of further significant concern to the Tribunal was the omission in Dr Hassan's referral letters to both the psychiatrist and the psychologist of his having prescribed this medication and that further, in contradistinction to what Dr Hassan asserted at the section 150 hearing (tab 3, page 312, para 32), that no imminent appointment was in place with the psychiatrist to oversee this treatment. Dr Hassan's account of this discrepancy was "maybe a bit of miscommunication can happen". The medical records however did include instructions for the child to be reviewed in 1 week but without specific safety netting instructions.
Dr Hassan admits particular 2(d).
In regards to particular 3, the Tribunal was not satisfied that sufficient communication and safeguards were shown to be in place for Patient C's treatment and therefore finds this particular proven.

[45]

FINDING: Complaint Seven

Patient G, aged 73 years, attended for 'erection issues, pain, insomnia'. The patient was prescribed Viagra 18 months earlier.
The respondent said the patient was not happy with Viagra. The respondent decided to change the patient's medication to Cialis as this drug for erectile disorder improves symptoms of enlarged prostate that the patient also suffers from.
As recorded, the physical examination included taking blood pressure and "General: Not clinically anaemic. Not centrally cyanosed. Not jaundiced. No finger clubbing. No spider naevi. No abnormal bruising. No thinning of skin." This is a template that the respondent created in Medical Director that appears frequently in his records.
The respondent admitted that much, if not all, of the "general" examination as recorded was not relevant to the patient's problems. Therefore, he did not actually examine for what he had recorded, e.g. finger clubbing, spider naevi, abnormal bruising, thinning of skin, etc.
The respondent admitted he made an error and prescribed Ciazil instead of Cialis. Ciazil or citalopram is an anti-depressant. It was prescribed without structured monitoring, follow-up or safety net instructions.
The respondent admitted he did not read the prescription on the computer screen before printing it, did not read the prescription hardcopy when he signed it, and did not read it before handing it to the patient.
Were it not for the clinical intervention of the pharmacist on 27 August 2016, the patient would have commenced on an anti-depressant medicine that can have an adverse effect on electrical conduction in the heart, among other adverse effects; and that would worsen his erection difficulties.
After the respondent was contacted by the pharmacist, he wrote a prescription for Cialis, without dosing instructions. The prescribing error was not recorded. The drug prescribed in error (Ciazil) was not cancelled/ceased in the medical records. Thus, on 23 August 2016, the patient was prescribed Ciazil, Cialis (no dosing instruction) as well as Viagra (no dosing instruction), as shown at p922 and 952 of his medical record. The respondent denied that he handed a Viagra prescription to the patient on that day, but Viagra was not cancelled/ceased in the medical records.
The Tribunal finds that the respondent was reckless in his prescribing and finds professional misconduct proven.

[65]

FINDING: Complaint Eleven

Patient K aged 69 years was a new patient and visitor from the USA who sought repeat prescriptions for Tertroxin that she has been taking for hypotension (low blood pressure). Apart from an incomplete smoking history, no other history was recorded, no blood pressure taken, and no other physical examination recorded.
The respondent decided to prescribe levothyroxine 75 mcg as he considered this the nearest equivalent to Tertroxin. However, he prescribed baclofen (Lioresal, a centrally acting muscle relaxant for supressing muscle spasms in multiple sclerosis and spinal cord conditions) instead. The medical records showed that both levothyroxine and Lioresal were prescribed at that visit.
The respondent did not know how he made that mistake. He said he was unfamiliar with the name baclofen. However this unfamiliarity did not cause him to read the medicines information on baclofen. He admitted he did not realise his prescribing error as he did not read the prescription on the computer screen, he did not read the prescription when he signed it, nor when he handed it to the patient.
The pharmacist noticed the error and phoned the respondent to advise on what he should have prescribed. The prescribing error is not recorded and the error drug was not ceased/cancelled in the records.
But for the clinical intervention of the pharmacist, Patient K would have been on a medicine that has a not insignificant range of adverse effects.
Subsequently on 13 July 2016, he wrote a prescription for liothyronine sodium. Inexplicably, he also prescribed norethisterone which is a progesterone hormone medicine. There were no dosing instructions for either medicine. There is no recorded indication for norethisterone.
In his reply to the HCCC (p336, 1 March 2020), the respondent's lawyer stated: My client asked the patient to return to the clinic the next day with the documentation from overseas about Tertroxin. When she did, my client realised the prescription error and provided a proper script for levothyroxine. The Tribunal considered that any realisation on the part of the respondent of his prescribing error came about only because of the clinical intervention by the pharmacist. When taken to his medical record dated 13 July 2017, the respondent admitted that the patient did not present the next day but that the respondent wrote the prescription.
The Tribunal finds the respondent reckless in his prescribing. The Tribunal finds professional misconduct.

[66]

Complaint Twelve

This complaint alleges that the respondent is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the respondent has breached a provision of the Regulations under the National Law. The particulars are set out hereunder. The respondent admits each particular. 1. On 13 July 2017, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient A in that he failed to record: a. information relevant to Patient A's diagnosis or treatment, namely the duration and potential cause/s of the back pain and insomnia; b. notes as to any advice regarding treatment, namely the potential side effects of Temaze (Temazepam). 2. On 13 January 2017, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient B in that he failed to record: a. information relevant to Patient B's diagnosis or treatment, namely the duration and symptoms of Patient B's upper respiratory tract infection, the indication for prescribing Depo-Ralovera and the date of her last menstrual period; b. notes as to any advice regarding treatment, namely the potential side effects of Depo-Ralovera. 3. On 19 May 2017, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records and referral letters for Patient C in that he failed to record: a. information relevant to Patient C's diagnosis or treatment, namely conditions at home and school, safety net and bullying; b. notes as to any evidence regarding treatment, namely the potential side effects of escitalopram. 4. On and after 9 November 2017, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient D in that he failed to record: a. information relevant to Patient D's diagnosis or treatment, namely the duration and symptoms of Patient D's back pain; b. notes as to any advice regarding treatment, namely the potential side effects of methotrexate and the subsequent detection of the error. 5. On 9 May 2016, the practitioner contravened clause 6(1) and Schedule 2(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient E in that he failed to record: a. information relevant to Patient E's diagnosis or treatment, namely the duration and symptoms of Patient E's arthritis, the aggravating and relieving factors and the site of pain; b. notes as to any advice regarding treatment, namely the potential side effects of Methotrexate. 6. On and after 17 October 2016, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient E in that he failed to record: a. information relevant to Patient E's diagnosis or treatment, namely the duration and symptoms of Patient E's arthritis, the aggravating and relieving factors and the site of pain; b. notes as to any advice regarding treatment, namely the potential side effects of methotrexate and the subsequent detection of the error. 7. On 19 October 2017, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient F in that he failed to record: a. information relevant to Patient F's diagnosis or treatment, namely the duration and symptoms of Patient F's otitis externa and any discussion with specialists; b. notes as to any advice regarding treatment, namely the potential side effects and drug interactions of carvedilol and clopidogrel. 8. On 23 August 2016, the practitioner contravened clause 7(1) and Schedule 2(1) of the Health Practitioner Regulation (New South Wales) Regulation 2010, in respect of his medical records for Patient G in that he failed to record: a. information relevant to Patient G's diagnosis or treatment, namely the duration and symptoms of Patient G's erection issues, pain and insomnia; b. notes as to any advice regarding treatment, namely the potential side effects of Ciazil (citalopram) and the subsequent detection of the error. 9. On and after 5 April 2016, the practitioner contravened clause 7(1) and Schedule 2(1) of the Health Practitioner Regulation (New South Wales) Regulation 2010, in respect of his medical records for Patient H in that he failed to record: a. information relevant to Patient H's diagnosis or treatment, namely the duration and symptoms of Patient H's sinusitis, the length of travel, potential vaccination and any discussion with pharmacists; b. notes as to any advice regarding treatment, namely the potential side effects of Doxepin, the precautions for travel and the subsequent detection of the error. 10. On and after 28 July 2016, the practitioner contravened clause 7(1) and Schedule 2(1) of the Health Practitioner Regulation (New South Wales) Regulation 2010, in respect of his medical records for Patient I in that he failed to record: a. information relevant to Patient I's diagnosis or treatment, namely the duration and symptoms of Patient I's acne and any discussion with pharmacists; b. notes as to any advice regarding treatment, namely the potential side effects of Doxepin and the subsequent detection of the error. 11. On and after 10 March 2017, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient J in that he failed to record: a. information relevant to Patient J's diagnosis or treatment, namely her vaccination history, any history of Q Fever and her work with animals; b. notes as to any advice regarding treatment, namely the potential side effects of the Q Fever vaccine and the subsequent detection of the error. 12. On and after 11 July 2017, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient K in that he failed to record: a. information relevant to Patient K's diagnosis or treatment, namely the duration and symptoms of Patient K's hypotension, the reasons for taking her current medication, the conversion to levothyroxine and any blood pressure measurement; b. notes as to any advice regarding treatment, namely the potential side effects and drug interactions of Lioresal (baclofen) and levothyroxine and the subsequent detection of the error.

[69]

The Respondent's evidence

The respondent has provided a statement which provides details concerning his qualifications, his appointment as a solo ICU Registrar in Bankstown Hospital, his successful completion of Part 1 of the ICU College; and his work at the hospital from 2007 to 2009. It also details his advanced training in anaesthetics at Blacktown Hospital following a year at the Nepean Hospital. He states that he sat for Part 2 of the examination of the ICU College but was unsuccessful. Thereafter he entered a practice at Forbes with another practitioner but left after 18 months due to family commitments in Sydney. Between 2012 and 2018 the respondent practised as a solo practitioner in Forbes.
The statement refers to the fact that the respondent achieved a diploma in skin cancer in 2014. In 2017 he successfully passed the Applied Knowledge test element for the FRACGP exam on his second attempt and intends to sit Part 2 commencing on 23 October 2020.
The respondent states that whilst a solo practitioner at Forbes, he worked Monday to Thursday from 8 AM to 6 PM with only a 30-minute break, and worked a half day on Friday.
Between 6 PM and 7 PM he completed practice administration and between 7 PM and 8 PM he attended as a VMO on ward rounds at Forbes Hospital, often seeing 4 to 5 patients. He states he saw 35 to 50 patients a day for usually 7 to 8-minute consultations with a few 20-minute consultations. He states that the demographic was families with a bias towards elderly people. He also had approximately 20 nursing home patients who he saw three times a week including on Friday afternoons.
The practitioner stated whilst in Forbes, he resided infrequently with his wife who was ill and preferred to reside in Sydney, and that his two daughters resided with his extended family in Sydney.
In May 2018 he commenced working with Dr Sully at his Parkes clinic under his direct supervision. In August 2019 the practitioner commenced working at the Mac-Field General Practice at Macquarie Fields, working 40 hours per week with his supervisor Dr Tozammel Hossain and Dr Nasrin Sultana.
The respondent has provided his explanation, as detailed in his replies to the complaints. He acknowledges that he was: totally out of my depth whilst working as a sole practitioner in Forbes and that I did not apply proper clinical care or judgement in relation to the history-taking, examination, prescribing or treatment of the nominated patients.
The respondent also states: 20. I appreciate that the allegations raised in relation to the nominated patients reflect a serious deficiency in my clinical knowledge and the delivery of proper medical service at the time. I fully appreciate the seriousness of my actions and or inactions in relation to the patients and the potential for adverse outcomes. I am extremely grateful that no adverse outcomes occurred and in this regard, I am extremely grateful for the competency of the pharmacist in detecting the errors. 21. As a result, in a firm commitment to improving my medical practice, I have undertaken a number of remedial steps as follows: (a) I stopped working as a sole practitioner as I accept that working in isolation as I did was a severe disadvantage; (b) I approached Dr Sully, to act as his supervisor. As a result, level 2 supervision was formally ordered by the Medical Council, in January 2018. I have been audited by the Council every 6 months. Currently, my supervisors are Dr Tozammel Hossain and Dr Nasrin Sultanas. (c) I passed the KFP components of the RACGP Fellowship exam in 2019 and as stated, am enrolled in the OCSE exam commencing on 23 October 2020. I have also completed the following: (i) Emergency Medicine (FACEM) Part 1 exam; (ii) European Diploma of Intensive Care exam - Part 1; (iii) USME both Part 1 and Part 2 exam (SA Licensing exam); (iv) The MIPS record-keeping online course. 22. Through the educational courses I have enrolled and through studying for the OCSE, my understanding of the deficiencies I displayed in relation to my clinical practice at Forbes and my clinical knowledge generally and ability to provide optimum medical care have vastly improved. 23. I understand the need for proper history taking, appropriate examination, proper investigation and treatment and the drafting of a management plan. I also appreciate the requirement for adequate note taking to assist in the continuity of care. 24. I am extremely careful in ensuring that I fully understand, through history taking, examination and investigation, the condition that the patient presents with and to take the time, using relevant resources such as the Therapeutic Guidelines and other colleagues if complex, to reach a diagnosis and consider treatment, discussing these with the patient. I am cautious in relation to only doing appropriate prescribing (and that the actual prescription provided is correct in terms of medication and therapeutic dosages).
The respondent has provided a reference from Dr Tozammel Hossain, the principal of the Mac-Field Medical Practice, dated 3 November 2020. The reference states that the respondent has "progressed well, and has settled into the practice very well with no issues or complaints from his colleagues, staff or patients. He has no issues with prescribing medication."
A reference has also been provided by Hayssam Sleitini (undated), a pharmacist who states, inter alia, that he has been working with the respondent very closely as a team during the respondent's current engagement. The referee states that he has not had any issues regarding scripts or errors of dosing and "I have had a number of appraisals from patients regarding his diagnostic abilities".
The respondent's June, July, and October 2020 Supervision Reports have been provided. The Reports record no untoward difficulties and express greater awareness of the care required when prescribing medicines.
Also included is the RACGP CPD triennium statement for 2020 - 22 recording the respondent's courses.
The respondent has also tended a series of certificates (identified as Exhibit 3 in the proceedings). One certificate, issued by the Medical Indemnity Protection Society, records one hour achieved on 3 April 2018 in the OI & CPD program for the 2017 - 19 triennium; another certificate, issued by the same authority, records completion of a one-hour course on 17 November 2024 in opioid prescribing; another issued on 23 November 2020 records six hours of study for the GP Active Learning Module: Youth AOD and Sexual Health; the last certificate issued on the same day records six hours of study in the course "Identifying ID clinical audit: screening and managing your patients with iron deficiency".

[70]

Legal Principles

The overriding duty of the Tribunal is to ensure that the public are protected from any conduct of the respondent which could be regarded as incompetent: see s 3A of the National Law. Section 3A requires that the "protection of the health and safety of the public must be the paramount consideration when considering allegations of, inter alia, the practice of medicine which is deficient".
The Tribunal must be satisfied that the applicant is a "fit and proper person" to be registered as a medical practitioner. As was stated in Health Care Complaints Commission v Brush [2015] NSWCATOD 120, the following observations are made (at [72] - [73]): We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members 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 (ss 3(1) and 3(2)(a) of the National Law). [72] While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills. [73]
In Cunliffe v Commonwealth (1994) 182 CLR 272 Mason CJ states, in reference to the words "fit and proper person": In some contexts, the words "fit and proper person" are so indefinite that they have been held to confer in effect what amounted to a discretionary judgement on a licensing authority… But the context may supply sufficient precision. [43]
The term "fit and proper" is to be construed in light of the particular legislative context: see Hughes and Vale Pty Ltd v NSW (1955) 93 CLR 127 at 156, Dixon CJ, McTiernan and Webb JJ.

[72]

Observations

In these proceedings, the Tribunal notes that the practitioner has not come under notice for many years of practice. There is no evidence to suggest that the practitioner was otherwise incompetent for the years 2003 until 2016. The Tribunal notes the explanation by the respondent that he was operating "out of his depth" when he was engaged in solo practice from 2016 to 2018.
There is no suggestion of any long-term harm caused to any patient by virtue of the failings which the respondent readily acknowledges. Nevertheless, the fact that there have been so many admitted errors in prescribing causes the Tribunal concern for the public. The majority of such errors in prescribing were detected by the pharmacists who were issuing the medications. Such pharmacists invariably contacted the practitioner to advise him of apparent errors in prescribing. In some cases the dosage was incorrect; in others the wrong drug had been prescribed by the respondent.
The respondent stated he provided an on-call service to the nursing home, and after-hours service to the patients. He did not have a nurse assisting him so he was required to take bloods and conduct other minor procedures personally.
The Tribunal notes the difficulties under which the practitioner was conducting his practice. He appears to have been separated from his family, but at weekends would regularly drive approximately 700 km to Sydney and return to spend time with his family. The Tribunal accepts that whilst he was working as a sole practitioner, his workload was burdensome, and his other commitments both at aged care homes and hospital, caused him to be excessively busy. Added to these complications was the fact that his wife was not in good health and was living away from him. Dr Hassan therefore had little, if any, personal or domestic support whilst practising in Forbes during that period and this would have contributed further to his stress and to demands on his time and attention. The Tribunal also notes that the respondent felt isolated in the country town, and had no rapport with other practitioners. The respondent stated that he did not attend and was not invited to attend any meetings held by the practitioners. He felt entirely on his own.
The Tribunal accepts the respondent's evidence on all of the above issues that caused the respondent anxiety, distress and loneliness.
The Tribunal notes however that the respondent could have taken measures to avoid his heavy workload, and thereby possibly to avoid the mistakes he has made in his prescribing. For example, repeatedly seeing patients in repetitive volumes of approximately 50 patients per day plus attending to other patients in aged care facilities was avoidable. Whether seeing such a volume of patients was motivated by a sense of altruism to assist the community or by financial remuneration is unknown. Further, it would have been appropriate for the respondent to have engaged a nurse to assist him. He declined to do so, either because it was expensive to engage such an employee, or because there were no such qualified persons available. The evidence on this aspect is unclear.
The Tribunal has considered all of the incidents referred to in the Complaints. It notes that it has made a finding of professional misconduct with respect to Complaint Eleven. Taking into consideration the other findings, the Tribunal concludes that the conduct, taken together, also constitutes professional misconduct.
The Tribunal notes a submission made by the Respondent on the final day of the hearing that certain witnesses were not called and that there was an inference to be drawn in accordance with the principle in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The Tribunal rejects that submission for the following reasons.
Firstly, all of the material relied upon by the Applicant was admitted into evidence by consent. Secondly, prior to the hearing commencing, the respondent informed the applicant that it was not necessary to call any witnesses other than the expert. Thirdly, the opportunity was afforded to the respondent to reopen the hearing to enable such witnesses to be called. The respondent declined such opportunity.

[73]

Conditions on Practice

The first s 150A review imposed conditions on the practice of the respondent. The respondent found such conditions to be inconvenient and as a result, the second and third reviews pursuant to s 150A took place, in each case reducing the restrictions. Included in the conditions were reporting requirements and nomination of a supervisor.
On 26 August 2019 a communication was made by the Medical Council to the respondent reminding him of the necessity to send a nomination form for his new supervisor to enable the Medical Council to forward the appropriate consent form. Such communication took place following the third review under section 150A, and during the period when the current conditions of practice applied. The respondent was also reminded that his supervision reports of the months of May and July 2019 were overdue. In response, a telephone call was received from the respondent. He informed the officer at the Medical Council that he was preparing for his Fellowship examination and wanted to have the conditions lifted. The file note made on that day continues: "He further added that he had had enough of this and is unsustainable for him to continue like this. He will send the details of his supervisor soon. Dr Hassan abruptly disconnected the phone".
The Tribunal will consider the evidence in the decision it makes concerning conditions.
Another issue which is of concern to the Tribunal is the standard of supervision reports. Reports have been provided, purportedly in fulfilment of the supervision conditions, by two supervisors of the respondent. The Tribunal observes that the comments made by the supervisor appear to be formulaic and repetitive. For example, in a supervision report dated April 2020, a patient was recorded as having consulted the respondent on 7 April whereas the consultation took place on 6 April; and a consultation on 15 April was recorded as 14 April in the meeting report; and a patient seen on 23 April was included in a 22 April meeting.
The Tribunal is unimpressed by the level of supervision which apparently is being carried out. A supervision report dated 10 November 2020 records that the respondent was to "continue to improve both prescribing, competence and confidence. The recommendation is made by the supervisor: "I would recommend to relax his restriction on his license (sic)".
The evidence establishes that the supervisor and the respondent collaborated together to formulate the report. An orthodox report would have been written by the supervisor alone without the person being supervised participating in its formulation and recommendations.
Disciplinary sanctions
The applicant seeks disciplinary sanctions, including a suspension of 6 months, together with Category B supervision and a limit of 30 consultations per day. The Tribunal considers that in view of its finding that the respondent has been found guilty of professional misconduct, a suspension from practice is warranted. The Tribunal is mindful of the principles referred to in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] where the Court said: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
The Tribunal considers that a suspension is necessary, even though the evidence suggests that the respondent, having been found wanting in his prescribing practice and record-keeping, has now improved.
However, since the respondent has already been suspended for a period in excess of 2 months, the period of suspension will be reduced from 6 months to 4 months. Further, the Tribunal considers that Category C supervision with fortnightly meetings with a supervisor will be sufficient. The Tribunal has heard submissions in respect of such sanctions from both parties. In the circumstances of the repeated errors by the respondent in his prescribing, the Tribunal considers it justified that such orders be imposed.

[75]

Orders

The Tribunal orders as follows: 1. Under section 149A(1)(a) of the Health Practitioner Regulation National Law, the Tribunal reprimands the respondent. 2. Under section 149C(1) of the Health Practitioner Regulation National Law , the Tribunal suspends the respondent's registration for a period of [4] months from the date of the Tribunal decision ("the suspension period"). 3. Practice conditions Under section 149A(1) of the Health Practitioner Regulation National Law , the Tribunal directs that the following Conditions be imposed on the respondent's registration from the expiry of the suspension period for a minimum period of two years: 1. To practise only in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the subject practitioner): 1. Where the patients and patient records are shared between the medical practitioners. 2. Where there is always one other registered medical practitioner on site. 3. Which is an accredited practice. 2. To treat no more than 30 patients in any one day. 3. To practise under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and determined by the appropriate review body. a. The terms of the Council's Compliance Policy - Supervision is varied to require: 1. the practitioner to meet with his supervisor on a fortnightly basis. At each supervision meeting the supervisor is to randomly select 10 patient records where the practitioner has prescribed medications to patients in the preceding fortnight. 2. if in that fortnight no prescriptions have been written then the discussion should include details of treatment given to other randomly selected patients to make the total number of patients discussed up to ten. 3. the practitioner authorises the supervisor to provide reports to the Council (in a Council approved format) on a monthly basis. The reports are to document the details of each patient record reviewed, including the name and date of prescription, what was discussed about each record and the advice provided by the supervisor to the practitioner about each record. b. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. the 10 patient records randomly selected by the supervisor referred to in condition 3)a)i) and 3)a)ii) 2. Prescribing skills 3. Basic clinical skills 4. Patient management skills 5. Interaction/ communication with patients c. To authorise the Medical Council of NSW to provide proposed and approved supervisors with a copy of the Tribunal decision that imposed this condition and any reports the Council deems appropriate. 4. The practitioner is to provide the Council (in a Council approved format) with monthly reports documenting the issues discussed with his supervisor for each of the 10 patient records and a short statement about what he learnt from the supervision meeting with his approved supervisor. 1. The reports are to be forwarded to the Council within 7 days of the preceding month. 5. To forward evidence to the Medical Council of NSW within 14 days of the Tribunal decision that imposed this condition, that he has provided a copy of the Tribunal decision to the Principal of the practice where he works and his approved supervisor. 6. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: a. The audit is to be held within 3 months from the Tribunal decision that imposed this condition and subsequently as required by Council. b. The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements and compliance with conditions. c. The auditor(s) should pay particular attention to: i. Prescribing d. To authorise the auditor(s) to provide the Council with a report on their findings. 7. Within 14 days of a change in the nature or place of his practice, he is to forward evidence to the Medical Council of NSW that he has provided a copy of this decision to: i. The Principal of the practice where he works and his supervisor 8. To authorise the Medical Council of NSW to notify current and future persons or organisations at any places where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. 9. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 10. To bear all costs arising out of compliance with these conditions. 1. Review 1. The appropriate review body for the purpose of a review under section 163 -163C of the Health Practitioner Regulation National Law is the Medical Council of NSW when the respondent has a principal place of practice in NSW. 2. Sections 125 and 127 of the Health Practitioner Regulation National Law are to apply while the respondent's principal place of practice is anywhere in Australia other than NSW, so that a review of these conditions can be conducted by the Medical Board of Australia. 1. The respondent is to pay the costs of the applicant in the fixed amount referred to in the Schedule provided by the applicant to the respondent.

Health Care Complaints Commission v Hassan

At a glance

Court

Decision date

Source

Judgment (77 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (16)