Health Care Complaints Commission v Iqbal

NCAT Occupational|2022-11-29

REASONS FOR DECISION

Dr Iqbal is a general practitioner. In May 2021 the Health Care Complaints Commission filed an Application for Disciplinary Orders against him under the Health Practitioner Regulation National Law (NSW) (the National Law).
Orders were made for the Inquiry to proceed in two stages.
Stage 1, where we made factual findings in relation to the allegations made and the seriousness of Dr Iqbal's conduct, has been completed. Our decision was published on 17 January 2022 [1] .
Stage 2 was listed for hearing on 29 November 2022. We did not hear any oral evidence. Dr Iqbal relied on his updated statement, a reflection statement, and five character references. Both counsel made submissions.
It is now our role to decide on the protective Orders which should be made.
The Health Care Complaints Commission asked us to cancel Dr Iqbal's registration, order that he not be able to apply for re-registration for one year, and order that he be prohibited from providing any other health service for one year.
In written submissions, counsel for Dr Iqbal asked us to either: 1. impose conditions on his registration relating to working at a group practice under Category B supervision, meeting regularly with a mentor and completing a medical ethics course; or 2. suspend his registration for 6 months.
In oral submissions, counsel for Dr Iqbal added two alternatives - a reprimand with conditions on Dr Iqbal's registration or a short suspension of his registration after which he would return to practice with conditions on his registration.
There is in place an Order pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the publication by any person or entity of the name of the persons set out in the Schedule to the Application (persons A and B in these Reasons).

Our previous findings

In these Reasons we must refer to our Stage 1 findings. However these references are only intended to be a summary of those findings and are not intended to qualify or change them.

The conduct

In January 2018 Dr Iqbal was working as a general practitioner. Person A, who was then 19, worked at the practice for about 11 days in that month as a receptionist on a traineeship.
We found Dr Iqbal guilty of unsatisfactory professional conduct because: 1. He engaged in sexual and unwelcome conduct with person A. This included saying to person A whilst they were alone "are you single and do you like girls or boys or both", inviting person A into his office and showing her images of naked women, buying her food from time to time including a box of chocolates, offering her lifts from work to her home, asking her to go on a date with him, asking her to go back to his place to watch a movie and sleep over and offering her $200 to have sex with him (Complaint One). 2. He offered money to person B (who is person A's mother) in an attempt to stop her disclosing person A's allegations of sexual harassment (Complaint Two).
We then decided that the conduct in Complaints One and Two was sufficiently serious to justify suspension or cancellation of Dr Iqbal's registration and found him guilty of professional misconduct (Complaint Three).

Evidence of Dr Iqbal

Dr Iqbal has prepared a statement dated 21 November 2022.
In that statement he says that, at the Stage 1 hearing, he was honest and truthful although his memory of the events was not clear and, to the extent that caused confusion in his evidence, he apologises.
Dr Iqbal still maintains that his actions were not motivated by a sexual interest in person A, but he offered an unreserved apology to person A if that was the impression that he created.
Dr Iqbal is also disappointed that his conduct will impact on the reputation of the profession which he has worked very hard to promote.
Dr Iqbal has completed the following courses: 1. In 2019 - 'Managing boundaries for patients with mental health issues' offered by Avant Mutual Group Limited; 'Chaperones: intimate examinations and cultural sensitivities' offered by Avant Mutual Group Limited; and 'On the record: medical records and documentation' offered by Avant Mutual Group Limited. 2. In 2022 - 'Professionalism in medicine: exploring the code of conduct' offered by Avant Mutual Group Limited; 'AMA Code of Ethics' offered by the Australian Medical Association via DP Learning; Professional Boundaries' offered by Davaar Consultancy and 'Avant Factsheet - Boundary issues'.
He has also read the following publications - 'Sexual boundaries in the doctor patient relationship' being Guidelines published by the Medical Board of Australia; 'Boundary issues' offered by Avant Mutual Group Limited, 'Crossing professional boundaries in medicine: the slippery slope to patient exploitation' published by the Medical Journal of Australia and 'The Code of Conduct' published by the Medical Board of Australia.
Dr Iqbal says that he now has a greater understanding of the nature of appropriate professional interactions with colleagues and professional boundaries generally.
If he is permitted to continue to practise, he will work hard to try to repair the damage that he has caused to the confidence which had been placed in him as a doctor.
Dr Iqbal says he is committed to maintaining appropriate professional boundaries as it is essential to maintaining the public's confidence in the profession.
Dr Iqbal says he has many reasons to ensure he does not repeat the conduct that brought him before the Tribunal, including the significant impact of these proceedings on him and his family.
Dr Iqbal says he genuinely believes that he has much to offer the public and profession going forward.
As part of the Avant Education Plan, Dr Iqbal prepared a reflection statement.
In that statement he says he now realises that his acts caused a great deal of pain and suffering to him and his family, and to person A and her family.
He has done the various courses, which we have already mentioned, to learn from his mistakes to protect himself and the public.
He now realises that what was socially and culturally acceptable in his country of origin is completely the opposite in Australia. This includes how people talk, how they meet, and their sense of humour. He is now careful to only say what is culturally and socially acceptable.
From the boundary issues course, he has learned that doctors are seen as powerful figures. Before, he thought he could be friends with everyone, but now he always maintains professional boundaries.
He has also learned that isolated practitioners are more likely to make mistakes because of a lack of peer support and oversight, so he has moved to a group practice.
Dr Iqbal also feels he now understands the issues surrounding professional boundary transgressing, professional boundary crossing, professional boundary violation and sexual misconduct, and can act proactively to prevent any form of boundary violation.

Referees

Dr Mehrotra, a general practitioner, has known Dr Iqbal since July 2022. They work in the same medical centre. He has always found Dr Iqbal to be courteous and friendly. There have not been any incidents of professional misconduct at the centre.
Dr Mehan, a general practitioner, met Dr Iqbal in 2018 when he was Dr Iqbal's supervisor during his studies to attain fellowship to the Australian College of Rural and Remote Medicine. He now works at the same medical centre with Dr Mehotra and Dr Iqbal. Dr Mehan described Dr Iqbal as polite and caring and thought he may have suffered from a lack of professional boundaries and cultural awareness. Dr Mehan believes that it is unlikely that Dr Iqbal would repeat the conduct because he has been open about the complaint with all staff, he examines female patients with a chaperone, he has done a course on professional boundaries, he has undergone counselling and he approaches staff with any work-related issues with direct support and the supervision of management. He said he would accommodate Dr Iqbal working under supervision and conditions.
Dr Vracar, a psychologist, works at the medical centre with Dr Mehan, Dr Mehotra and Dr Iqbal. Dr Iqbal consulted with her on 6 October and 18 November 2022. He told her that person A had been performing very well in her position and his offers of food and the manner in which he interacted with her was part of his upbringing and culture. There was no hidden agenda or grooming. Dr Vracar said that he appeared stressed, emotional and embarrassed and told her he was very remorseful. Dr Vracar thought that Dr Iqbal's cultural background and family upbringing could have impacted on his private and professional boundaries. In Dr Vracar's opinion there is no obvious risk to public safety.
Ms Noye is a nurse and assists Dr Iqbal at the medical centre with clinical procedures, care plans, health assessments and chaperoning. Ms Noye has a high regard for Dr Iqbal's character and says he treats all his patients with professionalism and person-centred and quality care. Ms Noye has always felt comfortable, safe and respected when working with Dr Iqbal. In Ms Noye's opinion, the chance of Dr Iqbal repeating any of the conduct is very unlikely and she has never seen him act in that way.
Dr Iqbal worked with Dr Weenink, a general practitioner, between 2019 and 2021. They are now friends. He considers Dr Iqbal an excellent clinician who is also willing to ask for help when needed. He shows great compassion to his patients. Dr Weenink has no concerns about Dr Iqbal's honesty or integrity and the type of conduct underlying the Complaint does not accord with the character of the man he knows. Dr Weenink believes that Dr Iqbal would not engage in such conduct in the future because of the stress of this process and the courses he has completed.
Dr Malik, a general practitioner, has known Dr lqbal for 10 years. From time to time they have worked together. Dr Iqbal currently works with him on a part time basis at a medical centre which Dr Malik's family owns. Dr Iqbal and his family are patients of Dr Malik. Dr Malik considers Dr Iqbal to be honest, polite and a very friendly and caring person. The type of conduct underlying the Complaint does not accord with the character of the man he knows. Dr Malik believes that Dr Iqbal would not engage in such conduct in the future because he has been open and honest about these proceedings, the proceedings have been stressful and he has completed courses. Dr Malik has also offered to provide supervision if a supervision condition is placed on Dr Iqbal's registration.

Legal principles

This Tribunal can make the following protective orders: 1. caution or reprimand Dr Iqbal and impose any conditions we consider appropriate on his registration. [2] 2. Impose a fine [3] 3. Suspend or cancel his registration [4] .
Section 3A of the National Law provides that "in the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration".
Public protection is achieved by ensuring that only doctors who are suitably trained and qualified to practice in a competent and ethical manner are registered. [5]
In some cases, the effect of the order made to protect the public may be punitive. In Lee v Health Care Complaints Commission [2012] NSWCA 80 the Court of Appeal held: [20] Essential to a proper assessment of a tribunal's discretionary judgment in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters were explained by Basten JA in Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1. The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2. That is not to deny that such orders may be punitive in effect and that punitive effects may be relevant in formulating a protective order. 3. The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist.
In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal held: [35] 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.

Determination

In our Stage 1 decision we found that Dr Iqbal's conduct was professional misconduct because it was sufficiently serious to justify suspension or cancellation of his registration (Complaint Three).
However the finding of professional misconduct does not mean that Dr Iqbal's registration must be suspended or cancelled. [6]
In determining which Order or Orders will protect the health and safety of the public we take into account the following findings we made in Stage 1 of these proceedings: 1. Dr Iqbal, who had seen the scarring on person A's arm from previous attempts at self-harm, knew she was extremely vulnerable. He used his position of power to groom person A for the purpose of a sexual relationship when he was or should have been aware he could cause significant harm to person A. [7] 2. Dr Iqbal pursued a sexual relationship with person A when he was very aware about issues of appropriate boundaries. [8] 3. His conduct continued and escalated throughout the short term of person A's employment. [9] 4. This behaviour culminated in Dr Iqbal asking person A to have sex with him and, when she refused, he offered her money to have sex with him. [10] 5. Dr Iqbal offered money to person A's mother in an attempt to stop her reporting person A's allegations of sexual harassment. [11] 6. Dr Iqbal's exploitative behaviour towards a junior employee revealed deficiencies in judgment that would not be expected of a doctor of his years of experience and qualifications. [12] 7. Dr Iqbal's conduct breached clause 4.2.3 of the Medical Board of Australia, "Good Medical Practice: A Code of Conduct for Doctors in Australia" (March 2014) that requires doctors to behave "professionally and courteously to colleagues". [13] 8. We found that Dr Iqbal was prepared to tell lies to distance himself from the allegations in the Complaint. [14]
In determining which Order or Orders will protect the health and safety of the public we take into account the following additional matters: 1. Dr Iqbal has the support of his work colleagues, as we have already outlined. 2. The events occurred in January 2018, and there is no evidence of any complaint about his conduct since that time. 3. At the Stage 1 Inquiry, Dr Iqbal did admit some aspects of his conduct, however the more serious matters were either not admitted or denied. 4. In his recent statement he still says that his intentions were misunderstood by person A and he denies that he was motivated by a sexual interest. He still attributes at least part of this misunderstanding to cultural differences. 5. Several of the character referees are of the view that Dr Iqbal's acceptance of the cultural differences in the workplace in Australia, the courses he has done and his open discussion about these proceedings with fellow employees, evidence that he has developed insight into the issues which gave rise to the Complaints so there is no reason to believe that he would repeat the conduct. 6. However, as conceded by counsel for Dr Iqbal, this analysis does not engage with all of the conduct which the Health Care Complaints Commission has established. The analysis is based on acceptance of Dr Iqbal's denial of grooming person A or having a sexual interest in her, which is contrary to our findings. In addition we do not accept (and Dr Iqbal has not expressly said) that cultural differences or some innocent meaning could be given to some of the other conduct e.g. his invitation to person A to come to his place to watch a movie and sleep over. 7. We decline to find that Dr Iqbal has insight into the inappropriateness of the whole of his conduct towards person A. 8. In the absence of full insight, we accept the submission made by counsel for the Health Care Complaints Commission, there can be no genuine remorse for all of his conduct.
We are satisfied that the gravity of the conduct means that Dr Iqbal's registration should be either suspended or cancelled. As the primary purpose of this Order is to denounce the conduct of Dr Iqbal, we do not consider that it is necessary to make an Order the effect of which would require Dr Iqbal to re-apply for registration. We accordingly will suspend rather than cancel Dr Iqbal's registration for a period of six months.
We remain concerned about the level of Dr Iqbal's insight into the inappropriateness of the whole of his conduct and his understanding of the well-established principles governing his behaviour in the workplace. We accept that the best way of addressing this issue is to make his registration, after the period of suspension, subject to conditions requiring him to work in a group practice, work under category B supervision, retain a mentor and complete an ethics program after which he is to prepare a written reflective report.
The Health Care Complaints Commission also suggested a condition prohibiting Dr Iqbal from performing any procedure on any female. Counsel for Dr Iqbal said that was not necessary because person A was not a patient. We do not accept this submission. The risk of a potential boundary violation is the same and we will include this condition.
Lastly the Health Care Complaints Commission asked us to Order that he be prohibited from providing any other health service for one year. We are satisfied that Dr Iqbal poses a substantial risk to the health of the members of the public. We accept that such an Order is appropriate for the six months while his registration is suspended.

Costs

It is common ground that Dr Iqbal is to pay the costs of the Health Care Complaints Commission of the whole of the proceedings.

Orders

We make the following Orders: 1. Pursuant to s 149C(1)(b) of the Health Practitioner Regulation National Law (NSW), the registration of Dr Iqbal as a medical practitioner is suspended for a period of 6 months commencing 21 days after the date of these Orders. 2. Pursuant to s 149A(1)(b) of the Health Practitioner Regulation National Law (NSW), on the expiration of the suspension of the registration of Dr Iqbal, his registration shall be subject to the conditions set out in the Schedule headed "Health Care Complaints Commission v Dr Iqbal - Conditions". 3. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law (NSW) Dr Iqbal is prohibited from providing any health service as defined by s 4 of the Health Care Complaints Act 1993 for a period of 6 months commencing 21 days after the date of these Orders. 4. The Medical Council is the appropriate review body for the purposes of Division 8 of Part 8 of the Health Practitioner Regulation National Law (NSW). 5. Dr Iqbal is to pay the costs of the Health Care Complaints Commission.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

Conditions

To obtain Medical Council of NSW approval prior to changing the nature or place of his practice.
To practise only in a group practice approved by the Medical Council of NSW where there are at least 3 registered medical practitioners (excluding Dr Iqbal): a. Where the patients and patient records are shared between the medical practitioners; and b. Where there is always one other registered medical practitioner on site.
Not to undertake solo medical practice.
Not to consult, examine, treat or perform any procedures on any female. a. Dr Iqbal may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law (NSW). b. If any such event occurs, Dr Iqbal must notify the Medical Council of NSW within 24 hours and provide details of the event and any other information as requested by the Council.
To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each supervision meeting Dr Iqbal is to review and discuss his practice with his approved supervisor with particular focus on: i. Boundaries and Ethics ii. Communication iii. Patient management and appropriate patient examination iv. Medical record keeping b. To authorise the Medical Council of NSW to provide proposed and approved supervisors with copy of the decision which imposed this condition. c. Not to practise until a supervisor has been approved by the Medical Council of NSW.
To nominate an experienced General Practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. a. At each mentoring meeting Dr Iqbal is to include discussion of the following: i. Professional boundaries and ethics ii. Communication iii. Personal and professional difficulties as they arise b. To authorise the mentor to report, in an approved format, to the Council every three months about the fact of contact, and to inform the Council if there is any concern about his professional conduct.
To complete within 12 months of the date of the decision the Ethics Counsel Program for Health Professionals organised by the Ethics Centre. a. Within 3 months of the date of the decision Dr Iqbal must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned program. b. Within 1 month of completing the abovementioned program, Dr Iqbal is to provide documentary evidence to the Medical Council of NSW of his satisfactory completion of the program. c. To bear responsibility for any costs incurred in meeting this condition. d. In the event that the abovementioned program is unavailable, Dr Iqbal must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why he is making the proposal, by no later than 3 months from the date of this decision.
To provide the Medical Council of NSW within 1 month of completion of the course listed in condition 7 with a written reflective report. a. The report must demonstrate reflection about: i. The matters which led to the imposition of this condition on his registration ii. How he has incorporated his learnings from the Ethics Counsel Program for Health Professionals into his professional practice b. Prior to submitting the reflective report to Council, Dr Iqbal must submit the report to his Council-approved Professional mentor for review and discussion. i. The details about the discussion and feedback provided must be included in the respective quarterly mentor report to Council. ii. The Council-approved mentor must co-sign and date the report
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.
Sections 125 to 127 of the Health Practitioner Regulation National Law (NSW) are to apply whilst Dr Iqbal's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia.

Endnotes

Health Care Complaints Commission v Iqbal [2022] NSWCATOD 5
s149A National Law
s149B National Law
s149C National Law
s3(2)(a) National Law
Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [175]
At [122] and [126]
At [126]
At [126]
At [94]
At [126]
At [103]
At [97]
At [33] I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2022

At a glance

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Decision date

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Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)