Health Care Complaints Commission v Hassan

Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2020/00189296 Publication restriction: Pursuant to clause 7 of Schedule 5D of the Health Practitioner Regulation National Law, publication of the identity of the patients described as Patient A to Patient K inclusive is prohibited.

REASONS FOR DECISION

1. By application for disciplinary findings and orders filed on 23 June 2020, the applicant seeks protective orders pursuant to section 149A of the Health Practitioner Regulation National Law (NSW) ("the National Law"), a fine or penalty under section 149B of the National Law, and suspension, cancellation or a prohibition order pursuant to section 149C of the National Law against the respondent. The applicant also seeks an order that the respondent pay the applicant's costs under clause 13 of Schedule 5D of the National Law.
2. The basis of the application is set out in the Complaint filed on the same day as the application. The Complaint alleges that in respect of 11 patients, identified as Patient A to Patient K, the respondent is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law. The Complaint further alleges that the respondent is guilty of professional misconduct under section 139E of the National Law because the respondent has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent's registration; and/or has engaged in more than one instance of unsatisfactory professional conduct such 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.
3. The respondent has filed a Reply which does not dispute that he has engaged in conduct which constitutes unsatisfactory professional conduct under section 139B(1)(a) of the National Law in respect of all but two of the patients referred to. The respondent, whilst making admissions concerning many of the particulars, provides explanations for his conduct. However, the respondent denies that he is guilty of professional misconduct as alleged.

The Respondent

1. The respondent, who was born on 5 December 1965, completed his Bachelor of Medicine and Bachelor of Surgery in Bangladesh in 1989 and obtained the Australian Medical Council Certificate in 2003. The respondent was first registered as a medical practitioner in Australia on 7 April 2003 by way of conditional registration in an area of need in New South Wales. The registration number of the respondent is MED 0001193221.
2. The respondent was granted general registration as a medical practitioner in New South Wales on 27 November 2003 and remained so registered under the now repealed Medical Practice Act 1992 until 30 June 2010. From 27 November 2003 to 30 June 2010 the respondent's registration was not subject to any conditions. At all relevant times the respondent was working as a general practitioner at the Inland Medical Centre at Forbes ("the practice").

Proceedings under section 150

1. 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.
2. 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.
3. 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.
4. 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.

The Complaints

1. In each of the complaints numbered 1 to 11 inclusive, it is alleged that the respondent has engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and is consequently unsatisfactory professional conduct under section 139B(1)(a).
2. The applicant relies upon an expert report dated 11 January 2020, provided by Dr Anoop Jalota. The report finds that in each of the particulars to the complaints, the conduct of the respondent was either significantly below the standard of care expected of a practitioner or was well below the reasonably expected standard of care. The respondent, by his counsel, cross examined the expert during the hearing of this application.
3. Each complaint, the respondent's reply, the expert's conclusion and the Tribunal's finding in respect of each complaint will be dealt with hereunder seriatim.

Complaint One

1. Patient A was a 37 year old male who complained of back pain and insomnia and consulted the practitioner on 13 July 2017. The particulars of the complaint are as follows:

Particular One 1. On 13 July 2017, the practitioner failed to conduct an appropriate assessment of Patient A in circumstances where the practitioner did not: a. take an adequate history; b. examine Patient A's back; c. order any investigations; d. offer any non-pharmaceutical methods of treatment.

1. The respondent admits the allegation in 1(a) but states that he did take a history from the patient. He states the patient advised him that he was suffering from withdrawal effects from cannabis intoxication and was booked to undergo rehabilitation.
2. In answer to 1(b) the respondent says that it was his standard practice with the presentation of back pain to perform an examination such as SLR, observing walk gait and balance but he did not record the examination findings.
3. The respondent admits paragraph 1(c).
4. With regard to paragraph 1(d) the respondent states that he knew that the patient was receiving physiotherapy treatment for his back pain.

Particular Two 2. On 13 July 2017, the practitioner prescribed 10mg Temaze (Temazepam) with the direction "15 daily m.d.u" for Patient A in circumstances where: a. the dose was excessive; b. the dose posed a risk of side effects including central nervous system and respiratory depression; c. Patient A had a history of depression and polysubstance abuse.

1. The respondent admits paragraph 2(a) but states that the direction was meant to be one tablet m.d.u, rather than 15 tablets m.d.u.
2. The respondent admits paragraph 2(b).
3. The respondent admits paragraph 2(c) and states that the patient advised of a cannabis intoxication only.

Expert's conclusion

1. The consultation and assessment was significantly below the required standard; the prescription of temazepam was significantly below the standard; the prescription of 10 mg temazepam with direction to take 15 tablets m.d.u should only be used for a short duration and if taken as prescribed could have resulted in CNS and respiratory depression, potentially leading to a coma and was below the standard of care. The records are significantly below the standard of care.

FINDING: Complaint one

1. The Tribunal finds that this complaint is established.
2. The respondent admits all particulars other than paragraph 2(a) stating that his intention was to limit the total number of tablets prescribed to 1 rather than 15 tablets daily. The documentary evidence from his prescription dated 13 July 2017 is, however, that he prescribed 15 tablets daily of Temaze (temazepam), quantity 25x5 (total of 125 tablets) with 0 Repeats. After being shown this, Dr Hassan's evidence was "I can't explain" … "I did not intend to do that" … "I was on my own, very busy".
3. Therefore particular 2(a) is found proven.
4. The Tribunal finds particular 3 proven.
5. All Particulars are found proven.

Complaint Two

1. Patient B consulted the practitioner on 13 January 2017. The patient was a 26 year old female. The reason for the consultation was recorded as URTI (Upper Respiratory Tract Infection). The patient was prescribed Depo Ralovera, a three-monthly injectable depot slow-release contraceptive which is irreversible. The particulars of the complaint are as follows:

Particular One 1. On 13 January 2017, the practitioner failed to conduct an appropriate assessment of Patient B in circumstances where the practitioner did not: a. take an adequate history; b. conduct any examination.

1. The respondent states that the patient attended for her contraception medication and not for treatment in relation to her URTI/rhinitis which had been previously diagnosed by him and to which she had prescribed Depo-Medrol and other medications. The respondent acknowledges he incorrectly selected "URTI" on the drop-down facility of the software.
2. The respondent admits particular 1 but states that the patient attended only for her contraception medication.

Particular Two 2. On 3 January 2017, the practitioner prescribed Depo-Ralovera solution for injection 150mg/Ml for Patient B in circumstances where: a. Depo-Ralovera is not clinically indicated for upper respiratory tract infection; b. the practitioner has previously prescribed Depo-Medrol solution for injection 40mg/mL on 3 August 2016.

1. The respondent admits paragraph 2(a) but states that the patient did not attend for treatment in relation to her upper respiratory tract infection, but requested medication for contraception.
2. The respondent admits particular 2(b).

Experts Opinion

1. The consultation notes are significantly below standard; there is no mention in the notes as to the indication for the use of Depo-Medrol. Corticosteroids can suppress the immune system and can increase the risk of severity of infections; their anti-inflammatory effects can also mask signs of infection and can cause adrenal suppression, hypertension and Hirsutism. The prescription was below the expected standard of care. Once the respondent discovered the error, he should have called the patient back for an explanation; such conduct is significantly below the standard expected. With reference to the RACGP standards and the Health Practitioner 2 Regulation (NSW) 2016 (hereafter referred to as "the Regulation" in this decision) the medical records are significantly below the standards expected and the notes reflect a generic (prefabricated) auto fill examination finding.

Particular One

1. Proven by admission. Dr Hassan did not document an adequate history or conduct an examination.

Particular Two

1. Dr Hassan admits particular 2(a).
2. Dr Hassan's assertion in mitigation for prescribing Depo-Ralovera was that the reason for the consultation was incorrectly recorded as 'URTI' and was instead for the purpose of contraception and that the prescription of Depo-Ralovera was therefore appropriate. His explanation of inadvertently selecting 'URTI', rather than 'Contraception', from a "pop-up" or "drop-down" menu in the practice software 'Medical Director' was rejected by the Tribunal as implausible given that this explanation is inconsistent with the professional members' experience of this software where 'U' for URTI is very far down the alphabet from 'C' for contraception and where there had been no record of Contraception as a reason for previous consultations. The Tribunal accepts, however, that a likely reason for the consultation was indeed for contraception.
3. Dr Hassan admits particular 2(b). The Tribunal notes that the prescription of Depo-Medrol was unrelated to the consultation on 13 January 2017 that is the subject of this particular.

Particular Three

1. Dr Hassan's failure to demonstrate having taken a proper gynaecological history and to satisfy himself that the patient was neither pregnant nor at risk of very early pregnancy when prescribing a long lasting injectable contraceptive which could have adverse effects on a foetus, is found to amount to unsatisfactory professional conduct.

Complaint Three

1. Patient C was 12 years old and complained of depression. She consulted the respondent at the practice on 19 May 2017. The particulars of the complaints are:

Particular One 1. On 19 May 2017, the practitioner failed to conduct an appropriate assessment of Patient C in circumstances where the practitioner did not: a. take an adequate history; b. conduct a HEADDS (Home, Education/employment, Activities, Drugs/alcohol, Depression, Sexuality/Suicide) psychosocial assessment.

1. The respondent does not admit paragraph 1(a), stating that he took a history that Patient C had experienced low mood, had lost interest and that he questioned her about her feelings generally.
2. The respondent admits paragraph 1(b).

Particular Two 2. On 19 May 2017, the practitioner prescribed 10mg Escitalopram with the direction "1 daily p.r.n" for Patient C in circumstances where: a. Patient C was 12 years old; b. Patient C had not previously complained of depression; c. Escitalopram was not clinically indicated; d. the practitioner did not trial psychotherapy before prescribing.

1. The respondent admits the particulars but stated he attempted to verify the prescription for a 12-year-old patient by checking the AMA 'UpToDate' website which indicated the following: children and adolescents> or= to 12 years: initial: 10 MG once-daily; may be increased to 20 MG/daily after at least three weeks.
2. The respondent states that he felt a small dosage would not be an issue and that he was advised the patient was consulting a psychiatrist that day. He considered that her treatment, including medication, would be properly reviewed at that time.

Particular Three The conduct in Particulars 1 and 2 above is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct.

1. The respondent repeats his responses to particulars 1 and 2.

Expert's Opinion

1. A mental health care plan was generated after a K10 questionnaire assessment (score of 37) and appropriate referrals to the psychiatrist and psychologist was generated. The use of the antidepressant, escitalopram, was neither warranted nor recommended and there was no mention of any bullying/safety net and home situation discussed. A HEADDS assessment would have been more appropriate for a young adolescent; the prescription of the antidepressant was significantly below the standard expected. The referral was made to a specialist appropriately; however, the records are below the standard expected.

FINDING: Complaint Three

1. 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.
2. Dr Hassan admits particular 1(b).
3. Dr Hassan admits particular 2(a).
4. Dr Hassan admits particular 2(b).
5. 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.
6. 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.
7. The peer reviewer described this prescribing as significantly below the standard.
8. 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.
9. 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.
10. 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.
11. Dr Hassan admits particular 2(d).
12. 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.

Complaint Four

1. Patient D consulted the practitioner on 9 November 2017. He was 16 years old and complained of back pain. The particulars are as follows:

Particular One 1. On 9 November 2017, the practitioner failed to conduct an appropriate assessment of Patient D in circumstances where the practitioner did not: a. take an adequate history; b. conduct an appropriate examination.

1. The respondent does not admit particular 1(a) but concedes there is no record.
2. The respondent admits particular 1(b).

Particular Two 2. On 9 November 2017 (amended during the hearing to 17 December 2015), the practitioner prescribed 10mg methotrexate with the direction "10mg twice daily for 1 week and wean to 10mg daily for 1 month" for Patient D in circumstances where the dose: a. was excessive; b. posed a risk of side effects including immunosuppression and infections.

1. The respondent admits particular 2, but states that he meant to prescribe prednisolone which had been initiated by the rheumatologist and that he was contacted to confirm a higher dose.

Expert's Opinion

1. There did not appear to be any consultation notes for the earlier appointment of 19 August 2016. The dose of medication, namely methrotrexate, was very high and given as a weekly dose rather than a twice-daily dose. The notes are inadequate, the risks of the drug are serious with potential life-threatening effects, and the prescription was significantly below the expected standard. Upon learning of the error, the respondent did not make any record of it or contact the patient, according to the records. The medical records are significantly below the standard of care under the Regulation.

FINDING: Complaint Four

1. Whilst particular 1(a) was not admitted by Dr Hassan, there is no record of an adequate history. Therefore the Tribunal finds this proven.
2. In regards to particular 1(b), Dr Hassan told the Tribunal "I must have examined [Patient D] but I didn't write it down". The Tribunal finds this complaint proven.
3. The Tribunal finds particulars 2(a) and (b) proven. Dr Hassan admitted this was "my mistake" and that prescribing methotrexate daily rather than weekly is dangerous and could cause "pancytopenia and the risk of septic shock". He gave evidence that he was well aware at the time that methorexate was a weekly and not a daily dose and that the mistake was an oversight due to being too busy, experiencing frequent interruptions and being very stressed over the period of time he was working at Forbes.
4. The Tribunal is concerned that Dr Hassan had received a previous warning in the form of a phone call from the local pharmacist about the same mistake in relation to this patient in December 2015, and that such a serious error was repeated. Dr Hassan did not record this phone call in the patient's record but evidence of this was provided to the Tribunal in the form of a Clinical Intervention report. This report was not sent to Dr Hassan at the time. Dr Hassan's explanation of this repeated error was that it was caused by his failure to correct the initial prescribing error in the medical record and that he followed the accepted practice of re-prescribing by clicking on this medication without, however, checking the (incorrect) directions at the time when printing or signing the prescription. Dr Hassan told the Tribunal that he now deletes incorrectly prescribed medications and records serious conditions in the 'Warnings' box that is seen each time the patient record is opened.
5. The Tribunal considers that the repeated identical errors constitute professional misconduct.

Complaint Five

1. Patient E consulted the respondent at the practice on 9 May 2016 and 17 October 2016 complaining of arthritis. The patient was 34 years old. The particulars are:

Particular One 1. On 9 May 2016 and 17 October 2016, the practitioner failed to conduct an appropriate assessment of Patient E in circumstances where the practitioner did not: a. take an adequate history; b. conduct an appropriate examination; c. refer for specialist assistance.

1. The respondent does not admit particular 1(a) but concedes there is no record.
2. The respondent admits particular 1(b) and (c) but states he was aware that the patient was under the care of a rheumatologist in India and that she was visiting Australia on the occasions of her consultations with Dr Hassan.

Particular Two 2. On 9 May 2016 and 17 October 2016, the practitioner prescribed 10mg Methotrexate with the direction "20mg daily m.d.u" and 5mg Folic acid (folate) with the direction "5 b.d.m.d.u" for Patient E in circumstances where: a. the dose of Methotrexate was excessive; b. the dose of Folic acid was excessive; c. the practitioner failed to direct Patient E to take the Folic acid 24 hours after the methotrexate; d. the dose of methotrexate posed a risk of side effects including liver/renal failure, immunosuppression and infections.

1. The respondent admits particular 2(a) and particular 2(b) but states that he meant to direct the medication to be taken weekly.
2. The respondent admits particular 2(c) and particular 2(d).

Expert's opinion

1. The consultation and assessment of this patient was significantly below the standard of care. The respondent made a diagnosis of arthritis based on the diagnosis by a specialist in India; the history and examination is lacking as to the duration of the symptoms, the relieving or aggravating factors and the site of the pain. The prescription of Plaquenil is appropriate but the dose of methotrexate 20 mg once a day is several times higher than the usual dose of 10/20 mg once a week. The dose of Folic acid is too high as it is to be given 24 hours after the methotrexate. The prescription of medication is significantly below the standard; the patient could have developed significant side effects. There were no referrals to a specialist and in this respect the standard of care is significantly below the expected. The respondent admitted his mistake but there is no record in the notes. The medical records are significantly below the Regulation requirements.

FINDING: Complaint Five

1. The Tribunal finds particular 1(a) proven. Whilst Dr Hassan did not admit this particular, he conceded there is no record of any appropriate examination.
2. Particular 1(b) is proven by admission.
3. Particular 1(c) is proven by admission.
4. Particular 2(a) is proven by admission. The Tribunal notes that this serious error is the same as for Patient D which adds to the Tribunal's concern about Dr Hassan's prescribing practice at that time. The Tribunal finds that Dr Hassan's explanation of this error as due to computer generated "pop-ups" was implausible.
5. Particular 2(b) is proven by admission.
6. Particular 2(c) is proven by admission. Dr Hassan admitted that he did not have sufficient knowledge of the mechanism of action of Folic acid in relation to concomitant use of methotrexate at that time.
7. Particular 2(d) is proven by admission.

Complaint Six

1. Patient F consulted the practitioner on 19 October 2017. The reason recorded for the consultation was otitis externa. The patient was 47 years old. The particulars are:

Particular One 1. On 19 October 2017, the practitioner failed to conduct an appropriate assessment of Patient F in circumstances where the practitioner did not: a. take an adequate history; b. conduct an appropriate examination.

1. The respondent admits each particular but claims he did take blood pressure and requested an echocardiogram.

Particular Two 2. On 19 October 2017, the practitioner prescribed 6.25mg carvedilol with the direction "1 daily as directed m.d.u" and 75mg clopidogrel with the direction "1 daily as directed m.d.u" for Patient F in circumstances where the practitioner did not discuss the potential side effects or drug interactions before prescribing.

1. The respondent does not admit that he did not discuss the potential side-effects or drug interactions before prescribing, but otherwise admits the particular. Further, the respondent states that prescribing of clopidogrel and carvedilol was instigated by a cardiologist who was titrating the dose of carvedilol slowly up to 12.5 mg b.d.

Particular Three 3. The conduct in Particulars 1 and 2 above is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct.

1. The respondent repeats his responses to particulars 1 and 2 above.

Expert's Opinion

1. The notes do not reflect the increasing dose of carvedilol nor do they reflect discussion with Dr Ruth Arnold concerning the doses and the need to gradually increase it. The appropriateness of the consultation was below the expected reasonable standard of care. The prescription of carvedilol 6.25 mg tablets was an error and was below the expected reasonable standard of care. The practitioner's notes are inadequate. The patient had a cardiac arrest in 2017 and was seen as a follow-up post discharge with the respondent. However, the notes do not record the cardiac event at all; the notes are below the standard required by the Regulation.

FINDING: Complaint Six

1. In regards to particular 1(a), Dr Hassan admits that the record does not show any history, but he told the Tribunal that he had asked for and received by fax a Discharge Summary from the hospital dated 17 October 2017, on the day of the consultation. He asserted that he was therefore very familiar with the patient's cardiological history and management and his prescribing was based on information gained from the hospital. He could not explain why this document was not in the medical record, as he had given it to his receptionist for scanning into the patient's file. The detailed letter from the treating cardiologist that is in the patient's records and clearly gave the history of the patient's cardiological condition and the medication prescribed was not received until 7 December 2017.
2. Particular 1(b) is proven by admission.
3. Particular 2 is not proven. Whilst Dr Hassan admits he prescribed those medications in the dosage particularised, he plausibly explained that he was simply providing repeat prescriptions following the instructions on the Discharge Summary that had been initiated in hospital by the treating cardiologist, who he assumed would have explained the potential side effects and drug interactions on the initiation of the treatment. He further, plausibly, maintained that he was following instructions to gradually increase the dose of carvedilol.
4. In regards to particular 3, whilst the Discharge Summary Dr Hassan referred to is not in evidence, the letter from the cardiologist gives weight to Dr Hassan's version of events. In evidence to the Tribunal, after hearing further evidence, the peer reviewer was no longer critical of Dr Hassan's prescribing (although still critical about the standard of his notes). On balance, unsatisfactory professional conduct is not found to be proven.
5. The Tribunal finds that although particular 2 is not proven, the conduct referred to in particular 1 amounts to unsatisfactory professional conduct.

Complaint Seven

1. Patient G consulted the respondent on 23 August 2016. The patient was 72 years old and complained of erection issues, pain and insomnia. The particulars are:

Particular One 1. On 23 August 2016, the practitioner failed to conduct an appropriate assessment of Patient G in circumstances where the practitioner did not: a. take an adequate history; b. conduct any examination; c. order any investigations.

1. The respondent admits each particular.

Particular Two 2. On 23 August 2016, the practitioner prescribed 20mg Ciazil (Citalopram) with the direction "Usual Adult starting dose: 20mg daily. Increase in increments of 10mg 2-3 weekly until satisfactory clinical response is achieved. Max dose 40mg/day" for Patient G in circumstances where: a. Ciazil (citalopram) was not clinically indicated; b. Patient G had a history of bladder outlet obstruction with an enlarged prostrate; c. the dose of Ciazil posed a risk of side effects including nausea, diarrhoea, insomnia, anxiety and sexual dysfunction; d. the practitioner did not discuss the potential side effects or drug interactions before prescribing.

1. The respondent admits particular 2 but states that he was intending to prescribe Cialis not Ciazil.

Experts Opinion

1. The prescription of Ciazil is significantly below the reasonable expectation. The respondent's conduct is significantly below what was reasonably expected because there has been no record of the medication error in the notes; no apology was given to the patient; and the medical records are below the Regulation standard.

FINDING: Complaint Seven

1. Patient G, aged 73 years, attended for 'erection issues, pain, insomnia'. The patient was prescribed Viagra 18 months earlier.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. The Tribunal finds that the respondent was reckless in his prescribing and finds professional misconduct proven.

Complaint Eight

1. Patient H, aged 13 years, consulted the respondent with his father on 5 April 2016. The patient and his father asked the practitioner for malaria tablets for the patient's upcoming overseas travel. The particulars are as follows:

Particular One 1. On 5 April 2016, the practitioner failed to conduct an appropriate assessment of Patient H in circumstances where the practitioner did not: a. take an adequate history; b. conduct any examination.

1. The respondent admits the particular but states that he ordered pathology tests for hepatitis serology.

Particular Two 2. On 5 April2016, the practitioner prescribed 50mg Doxepin with the direction "1 daily m.d.u" for Patient H in circumstances where: a. Doxepin was not clinically indicated; b. Doxepin is not recommended for children and adolescents; c. the dose of Doxepin posed a risk of side effects including sedation, dry mouth and blurred vision; d. the practitioner did not discuss the potential side effects of Doxepin before prescribing.

1. The respondent admits the particular but states he was intending to prescribe doxycycline but accidentally prescribed Doxepin.

Expert's Opinion

1. The consultation was significantly below the expected standard, with the history and examination of Patient H not documented. The appropriateness of prescribing the wrong drug is significantly below the reasonable standard of care and once the medication error was discovered, the respondent should have personally contacted the patient's mother to stop the medication rather than leave it to a secretary. The consultation notes are significantly below the Regulation standard; the care and treatment provided to the patient is significantly below the reasonably expected standard.

FINDING: Complaint Eight

1. Patient H, aged 13 years, attended for travel advice for holiday travel to Vanuatu. Patient H was accompanied by his father, but this fact was not noted in the medical records.
2. The respondent said he considered Malarone as an anti-malarial, but when he phoned the pharmacist, there was no supply available. The respondent decided to prescribe doxycycline as an anti-malarial prophylactic. He admitted he made a mistake and prescribed Doxepin at 50 mg daily instead.
3. The respondent did not realise his error as he did not read the prescription on the computer screen before printing it, he did not read the prescription when he signed it, and he did not read it when he handed it over.
4. Were it not for the clinical intervention from the pharmacist, the child would have commenced on a medicine for major depression that is not recommended in Australia for use in children because it raises the risk of suicidal thoughts or actions in children and young adults.
5. Following a phone call from the chemist, the respondent said he wrote a prescription for doxycycline, the correct medicine. The prescribing error was not recorded and the error drug Doxepin was not cancelled/ceased in the medical records (p1101, 1111).
6. Doxycycline is a tetracycline antibiotic. As an anti-malarial prophylactic, how it is taken in relation to the period of exposure is critical to its effect. The respondent claims he advised the patient in this regard but this is not recorded. Doxycycline also increases photo sensitivity, so sun protection advice is particularly important when the patient is holidaying on a tropical island. This advice was not provided.
7. The Tribunal finds the respondent's prescribing reckless and finds professional misconduct proven.

Complaint Nine

1. Patient I consulted the practitioner on 26 July 2016. The patient was 16 years old and complained of acne. The particulars are as follows:

Particular One 1. On 25 July 2016, the practitioner failed to conduct an appropriate assessment of Patient I in circumstances where the practitioner did not: a. take an adequate history; b. conduct an appropriate examination.

1. The respondent admits particular 1(a).

Particular Two 2. On 28 July 2016, the practitioner prescribed 50mg Doxepin with the direction"1 bd m.d.u" for Patient I in circumstances where: a. Doxepin was not clinically indicated; b. Doxepin is not recommended for children and adolescents; c. the dose of Doxepin posed a risk of side effects including sedation, dry mouth and blurred vision; d. the practitioner did not discuss the potential side effects of Doxepin before prescribing.

1. The respondent does not admit particular 2(a) and states that he conducted a general examination of the patient's skin and took his blood pressure.
2. The respondent admits particulars 2(b), (c) and (d) but states he was intending to prescribe doxycycline but accidentally prescribed Doxepan.

Expert's Opinion

1. The appropriateness of the consultation and assessment is significantly below standard; the clinical history and examination is inadequate and the examination mentioned was not relevant to the presenting complaint of acne. The notes confirm the respondent realised his mistake and ceased Doxepin and printed a prescription for doxycycline. The drug prescribed is not recommended for use in children and adolescents and can lead to significant risks; the prescription is significantly below the reasonable standard of care. There is no record of any referral to specialists; and there is no mention that the respondent, when realising his prescribing mistake, contacted the patient. The medical records are below the Regulation standard; there is no referral to a specialist.

FINDING Complaint Nine

1. Patient I, aged 16 years, attended for acne.
2. In the medical records, the respondent used his "General examination" template. He admitted that, with the exception of anaemia, he did not check for central cyanosis, peripheral cyanosis, jaundice, finger clubbing, spider naevi, bruising or skin thinning, although these were recorded as having been examined.
3. The respondent prescribed Doxepin and a local application, Epiduo Gel. The respondent admitted he mistakenly prescribed Doxepin (a medicine for major depression) instead of doxycycline (a tetracycline antibiotic). The Tribunal notes this error occurred barely 3 months after the pharmacist had phoned the respondent to point out an identical error (Complaint 8).
4. Again, the respondent admitted he did not realise his prescribing error as he did not read the prescription on the computer screen before printing it, he did not read the prescription when he signed it, and he did not read it when he handed it over.
5. Were it not for the clinical intervention from the pharmacist, Patient I aged 16 years, would have commenced on a medicine for major depression that raises the risk of suicidal thoughts or actions in children and young adults. The pharmacist recorded in the clinical intervention that the doctor was "advised to check his prescriptions carefully as this is dangerous".
6. The respondent made out a prescription for doxycycline tablets. There is no record of advice regarding photosensitivity and sun protection.
7. The respondent did not record the prescribing error although he did record ceasing Doxepin.
8. The Tribunal finds the respondent's prescribing to be reckless, particularly as this is an identical error of which he was warned 3 months earlier. The Tribunal finds professional misconduct proven.

Complaint Ten

1. Patient J consulted the practitioner on 10 March 2017 and requested a vaccination. She was 42 years old. The particulars of the complaint are:

Particular One 1. On 10 March 2017, the practitioner failed to conduct an appropriate assessment of Patient J in circumstances where the practitioner did not: a. take an adequate history; b. conduct any examination; c. order any investigations.

1. The respondent admits each particular.

Particular Two 2. On 10 March 2017, the practitioner prescribed Q fever injection 25mcg/0.5mL for Patient J in circumstances where: a. Patient J had not previously had a blood test or skin test to check for allergy or prior immunity; b. prescribing the Q fever vaccine to a patient who may be allergic or already immune poses a risk of hypersensitivity reactions and anaphylaxis.

1. The respondent admits the particulars.

Expert's Opinion

1. The patient required a skin antibody test before giving vaccination. The practitioner did not examine the patient and there is no documentation concerning the respondent's knowledge that the patient had been working with animals. The consultation was significantly below the reasonably expected standard.; Q fever vaccine should not have been provided without allergy testing. The prescription was significantly below the standard and the medical records are below the Regulation standard.

Finding: Complaint Ten

1. Patient J presented for vaccination. No history is recorded although the respondent said he ascertained that she worked with animals.
2. In the medical records, the respondent used his "General examination" template. He admitted he did not examine what he had recorded.
3. The respondent had never prescribed Q-vax, the vaccine for Q Fever prevention. He said he did not know this medicine. He spoke to the pharmacist who faxed him Q-vax information. He did not read this. He did not check the medicines information within the prescribing software, or the UpToDate website or Therapeutic Guidelines. Nevertheless, he proceeded to prescribe the medicine, ignorant of the necessity to check the patient for prior immunity or allergy.
4. The pharmacist phoned the practitioner to check if the necessary tests had been completed.
5. The respondent said in his response to the HCCC on 1 March 2020 (p311) that he organised the test when the patient attended the next time. At the next visit on 7 June 2017, there was no enquiry documented pertaining to Q-vax and Q Fever serology was not ordered. The respondent said this was because Patient J decided to defer having the vaccine. Then he speculated Patient J may have gone to hospital for her Q-vax.
6. At the next visit on 17 July 2017, Q fever serology was ordered. This was recorded as a pre-vaccination serology. It was positive for IgG antibodies to Q fever. The respondent agreed it was important for the patient to be notified of this result. He cannot recall who notified the patient, or whether she was notified. There is no record of notification.
7. Were it not for the clinical intervention from the pharmacist, Patient J would have been at considerable risk of vaccine reaction that can be potentially disastrous.
8. The Tribunal finds the respondent's prescribing reckless and finds professional misconduct.

Complaint Eleven

1. Patient K consulted the practitioner on 11 July 2017. She was a 69 year old and complained of hypertension. The particulars are:

Particular One 1. On 11 July 2017, the practitioner failed to conduct an appropriate assessment of Patient K in circumstances where: a. Patient K was a new patient from overseas; b. the practitioner did not take an adequate history; c. the practitioner did not conduct an appropriate examination; d. the practitioner did not order any investigations.

1. The respondent admits particular 1.

Particular Two 2. On 11 July 2017, the practitioner prescribed 25mg Lioresal (baclofen) with the direction "2 tab mane m.d.u" for Patient K in circumstances where: a. Lioresal (baclofen) was not clinically indicated; b. the dose of Lioresal (baclofen) posed a risk of side effects including nausea, vomiting, constipation and diarrhoea.

1. The respondent admits particular 2.

Expert's Opinion

1. The consultation was significantly below the reasonable standard expected and whilst the prescription of levothyroxine was consistent with what is reasonably expected, the prescription for Lioresal was significantly below the reasonably expected standard and could have caused significant side-effects. The respondent's rationale for not prescribing Tertoxin was consistent with what was reasonably expected, since he was not comfortable prescribing such drug. The respondent should have recorded an error in the notes and should have told the patient to immediately stop taking Lioresal; the medical records are significantly below the expected standard.

FINDING: Complaint Eleven

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. The Tribunal finds the respondent reckless in his prescribing. The Tribunal finds professional misconduct.

Complaint Twelve

1. 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.

FINDING: Complaint Twelve

1. Proven: the Tribunal finds that the conduct constitutes unsatisfactory professional conduct.

Complaint Thirteen

1. This particular alleges that the respondent is guilty of professional misconduct under section 139E of the National Law in that the practitioner has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and/or has engaged in more than one instance of unsatisfactory professional conduct that when taken together amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. The particulars relied upon of those set out In Complaints 1 to 12 above.
2. The respondent does not admit this Complaint.

The Respondent's evidence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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).
9. 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."
10. 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".
11. 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.
12. Also included is the RACGP CPD triennium statement for 2020 - 22 recording the respondent's courses.
13. 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".

Legal Principles

1. 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".
2. 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]
3. 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]
4. 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.

Onus of proof

1. The test has been accepted as that in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Although it has been described as a misnomer to consider the burden of proof in a Tribunal where the rules of evidence do not prevail: see Hayne J in FTZK v Minister for Immigration and Anor [2014] HCA 26 at [33]-[36], such standard is accepted as the appropriate test in this Tribunal for matters arising under the National Law. See also the observations of the Court of Appeal in Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41. The Tribunal will apply the following principle: The onus lies on the applicant for reinstatement to demonstrate that she can be relied upon to practice in accordance with the professional standards expected of a health practitioner and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession. See Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]. For recent authority, see Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39.

Observations

1. 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.
2. 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.
3. 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.
4. 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.
5. The Tribunal accepts the respondent's evidence on all of the above issues that caused the respondent anxiety, distress and loneliness.
6. 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.
7. 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.
8. 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.
9. 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.

Conditions on Practice

1. 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.
2. 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".
3. The Tribunal will consider the evidence in the decision it makes concerning conditions.
4. 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.
5. 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)".
6. 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.
7. Disciplinary sanctions
8. 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.
9. 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.
10. 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.

Costs

1. The applicant seeks an order that the respondent pay its costs of the proceedings. In accordance with the principle established by the NSW Court of Appeal in HCCC v Philipiah [2013] NSWCA 342 at [42]-[46], the costs will be awarded in favour of the Applicant. It has been successful in its application and the Tribunal sees no reason not to award costs under cl 13 of Schedule 5D of the National Law. There is no basis for apportionment: see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [50].
2. The costs to be awarded are to be fixed in accordance with the Schedule provided to the Respondent by the Applicant.

Orders

1. 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.

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

Amendments 20 January 2021 - Date suspension effective from amended at para [6]. 'Direction issues' amended to 'erection issues' at para [90]. Complaint Twelve finding inserted at para [152]. 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: 20 January 2021