Health Care Complaints Commission v Iqbal

Health Care Complaints Commission v Iqbal - [2022] NSWCATOD 5 - NSWCATOD 2021 case summary — Zoe

History

In January 2018 Dr Iqbal was working as a general practitioner in a medical practice in a town in NSW. Person A started working at the practice on 2 January 2018 as a receptionist on a traineeship. She was then 19. Her last day of work was 19 January 2018.
Person B is person A's mother. Person B worked as a cleaner at the same practice in January 2018 and mowed the lawn at Dr Iqbal's home.
Person C is person B's mother and person A's grandmother.
In Complaint One it is alleged that Dr Iqbal engaged in sexual and unwelcome conduct with person A.
After person A told person B of the matters now alleged in Complaint One, person B and person C confronted Dr Iqbal on 20 and 21 January 2018 and recorded their conversations with him. Those recordings and the transcripts of those recordings are in evidence. The conversations are the subject of Complaint Two.
The HCCC says, in Complaint Three that, because of the conduct asserted in Complaints One and/or Two, Dr Iqbal is guilty of professional misconduct.
On 23 January 2018 the HCCC received a Notification from a medical practitioner which said: "Young secretary working for the doctor, became very uncomfortable at the surgery particularly when she was on her own there with the doctor. He started discussing personal issues particularly of a sexual nature with her & invited her to come to his house. He also in conversation discussed offering her $200 for sex. When she obviously was shocked & embaressed by the request he quickly said that it could be for new clothes. The young secretary spoke to her mother, who also cleans at the surgery, she had great concerns & advised my Practice Manager of the various circumstances at the surgery. The grandmother & the mother of the secretary had a discussion with the doctor which they recorded & can be made available if necessary. After discussion with my practice manager an interview was made between myself, mother & grandmother at which times the full details of their concerns were discussed. Before the discussion started I asked their permission to record our discussion & they were quite happy to proceed. The definite inappropriate behaviour has been in particular to the young secretary however my concern after speaking in full with the grandmother & mother that there may be inappropriate behaviour of a sexual nature occurring with patients."
Person A made a statement to the police on 30 April 2018 and to the HCCC on 6 May 2019.
Dr Iqbal concedes some of the facts in the particulars but denies that he engaged in any inappropriate behaviour of a sexual nature.

[4]

Conflict in the evidence

In respect of those matters which have been denied by Dr Iqbal, there is a conflict in the evidence given by person A and Dr Iqbal which cannot be reconciled.
Accordingly, the issue is whether the HCCC has established that one or more of the disputed events pleaded in Complaint One occurred. To make any such finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities: Briginshaw v Briginshaw (1938) 60 CLR 336.
Both person A and Dr Iqbal gave evidence and were cross examined.
We found person A to be a credible and reliable witness for the following reasons: 1. Five pages of person A's diary are in evidence being her entries for 18 and 19 January 2018. We accept person A's evidence as to how these typewritten pages came into existence and find that they were typed up from hand written notes she had made on the day the events occurred. At the time she made the notes she did not intend or expect that they would be shown to anyone. Her record of her experiences and feelings on her last two days at work are consistent with her later statements. 2. Person A made a contemporaneous complaint. At the end of her last day at work at the practice, 19 January 2018, person A was picked up by a friend. She told him why she had decided not to return to that job. There is no evidence before us from that friend. That friend took person A home and person B was told by the friend and person A: 1. "Doctor Rashid [as they called Dr Iqbal] offered my daughter $200 to have sex with him and she didn't want to tell him as she was too scared, as she liked the job"; and 2. "what had been going on and that [she] wasn't going back as Dr Rashid had been getting worse over the time [she] was there"; and 3. "about what was happening and how the doctor was trying to take advantage of her". These quotes are from documents in evidence. In addition, the questions asked by person B and person C to Dr Iqbal on the following two days (in the recordings) disclose that they were aware of the gravamen of person A's complaints. We find that person A's contemporaneous complaint is consistent, in all important respects, with person A's evidence to this Inquiry. 1. Some of person A's evidence is admitted by Dr Iqbal.
We are not persuaded that Dr Iqbal's evidence is reliable for the following reasons.

[5]

Invitation to the movies

One of the most serious allegations made by person A is that Dr Iqbal kept asking her to go on a date with him to see a movie (particulars 2 (b), 3 (f) and 4).
In her diary she wrote: "18 January 2018 - He's asked questions like, if i would go to the cinemas with him. It's becoming more and more uncomfortable and I often wonder if he talks like that with the other receptionist. 19 January 2018 - … he asked if i wanted to hangout with him. Is he serious? … honestly I didn't know what to do or how to react. I didn't say anything to respond so he mentioned a few things to do such as, going to the cinemas … or going back to his place to watch movies … "
In her statement dated 30 April 2018 person A said "On this day [11 January 2018] Doctor Rashid asked me to the movies and I said, "No, maybe you should ask someone else". He would ask me in the afternoon as there were no patients and no one else around."
Dr Iqbal says that he invited person A once to go to a movie in a neighbouring town with him and his family and the invitation was not sexually motivated. In his last statement dated 6 December 2021 he says "I invited her to come to the movies with my family". When giving evidence he added that it was possible he did not make it clear to person A that his family was coming.
This evidence of Dr Iqbal is supported by a statement from his wife who said he had asked her whether he could bring an employee to a family outing to the cinema.
We do not accept that Dr Iqbal intended, at the time he asked her, for person A to join him on a family outing. We find that he was inviting person A on a date. We have made this finding after taking into account the following: 1. In describing what he had said to person A he said: "I haven't had anything for the last six months … Basically if we can be friends … for movies and things like that". (the recorded conversation on 20 January 2018). There is no mention of the family coming to the movie as he now asserts. 1. Dr Iqbal said "I had no plans for this weekend whatsoever [unintelligible] I requested that if she wants to go out to the movies with me and I told her I shall [unintelligible] today because I sit weekends here with nothing to do. We can go out and get to know each other and watch a movie and come back in and drop you off". (the recorded conversation on 20 January 2018). Not only is there no mention of the family coming to the movie, but the words are consistent with Dr Iqbal inviting person A on a date because he had been sitting at home on weekends with nothing to do. We are satisfied that this statement is completely inconsistent with his assertion in his recent statement dated 6 December 2021 that "I invited her to come to the movies with my family". 1. In the letter sent by his solicitors replying to particulars sought by the HCCC dated 30 June 2020, Dr Iqbal admitted he had invited person A to a movie, and accepted that it had been unwise and open to misunderstanding. While he mentioned that he was a happily married man with a family, he did not say in that letter that the family would also be going to the movie. In addition, in that letter he accepted that it had been a silly mistake to offer to go to a movie with a junior female employee of the practice. We consider that he would not have considered it a silly mistake if he had simply been inviting person A to the movies with his wife and three children.
In cross examination Dr Iqbal said he had not mentioned to person B and person C in the recorded conversations that he had invited person A to go to the movies with his family, because he did not want to get his family involved. We do not accept this explanation. Earlier in the same recorded conversation he had said he would never ask out another person because he was married and had children.
We do not accept that Dr Iqbal either said to person A that she should come with him and his family to the movies, nor is this what he intended.
We find that Dr Iqbal's lack of frankness to us on this topic impacts on the reliability of the whole of his evidence.

[6]

What was their relationship?

Dr Iqbal says that he did not have any romantic interest in person A nor were any of his admitted comments intended to convey any sexual meaning. He liked her and thought she was a good worker. He says he is a friendly person who tried to make person A feel at ease in her new job for example by buying her lunch and taking an interest in what she had done on the weekend. He said he had not had an opportunity to become friendly with person A in her first week of work because he was always busy with patients so that he had limited opportunities to interact with person A.
This is contradicted by several of his comments on the recordings: 1. Dr Iqbal: "I told her that [unintelligible] I like her. I'm a silly person, right, if she wants to go out with me. Right? That's what I told her. She said she'd think about it." (the recorded conversation on 20 January 2018). 2. Dr Iqbal: "There was no stuff that was said. There was nothing that was said that was bad. I mean at the end of the day, we discussed at a mature adult level and she said, "No" and I said, "Okay, done." That was it. I mean it wasn't something that I grabbed her or groped her, or I did something wrong with her. I didn't do anything like that, [unintelligible 00:05:02]." (the recorded conversation on 21 January 2018). 3. Dr Iqbal: "I never offered it that way. I liked her as a person and I wanted to go out with her". (the recorded conversation on 21 January 2018). 4. Dr Iqbal: "…Can't you fall in love with somebody? Person B: No Dr Iqbal: No tell me please. Person C: So now you're saying you're in love with her? Dr Iqbal: No, I liked her Person B: Yeah but it doesn't matter. Besides that, look you're a … Dr Iqbal: I didn't love her. I said I liked her, she's a nice person to talk to". (the recorded conversation on 21 January 2018). 1. Dr Iqbal: "I'm not like that seriously. I am not like that. You don't understand, I am not - this is not me. You like somebody and you approach her that you like somebody and that was the only… Person B: I understand … Dr Iqbal: That was the only - once [unintelligible] it ever happened, you know? I've never even spoken to anybody like that." (the recorded conversation on 21 January 2018).
We are satisfied that, in these conversations, Dr Iqbal told person B and person C that he liked person A and had invited her out and felt that, as an adult, she could decide whether to go on a date with him.
We consider that Dr Iqbal's lack of frankness on this topic in saying he did not have a romantic interest in person A impacts on the reliability of the whole of his evidence.

[15]

Complaint One particular 3 (a)

In her statement dated 30 April 2018, person A said she had not been there long when Dr Iqbal offered her a better job. She wanted the job as it was a promotion but she wasn't going to take it as she felt he was offering it to her to get her to go out with him.
Dr Iqbal denies that he invited person A into his office and offered her a promotion. He said he did tell her she had done a good job and she might be able to get a promotion if she stayed in the job, but that was not intended to be inappropriate. He said he did not own the practice, so employing, promoting and terminating staff was not his role. When she had been there two weeks he had asked her what her long-term goals were and she had said it was to have a position at the practice. He had told her he thought she was a good worker. He had said it to encourage her.
This response was in his statement dated 6 December 2021 and in evidence to this Tribunal. It is however not completely consistent with the transcript of the recording on 20 January 2018 when he did not say to person B and person C that promoting staff was not his role but said "I even told her I was going to send her for training, for practice manager."
Again, we prefer the evidence of person A and find that Dr Iqbal made the statement.
Person A's diary discloses how Dr Iqbal used the possibility of promotion to lead into a sexual proposition. "Throughout the day, Dr Rajid didn't have many clients so he spoke to me more and the other lady (pathology lady) had left so that didn't make my situation better. He'd asked me to sit down in his office and at first he started talking about work and how he wanted me to become an assistant manager because he thought I was going so good with my job already. For once he wasn't harassing me or talking dirty and this assistant manager plan sounded good for me. He mentioned about the other receptionist working there and why he hasn't gotten them to go for it. I was generally happy about it sure but I still felt uncomfortable around him and hoped that he would stop harassing me. Then he started talking inappropriate again, he'd mentioned sex and how he would pay me $200 for it."
We find that Dr Iqbal's conduct in offering person A a promotion was conduct of a sexual and unwelcome nature and he did so to enhance his chances of having a sexual relationship with person A.

[17]

Complaint One particular 3 (d)

Person A says she felt uncomfortable when Dr Iqbal kept giving her various foods which she had not asked for. In her diary entry for 19 January 2018 she said "Dr Rajid got back from lunch and bought me a frozen coke". In her statement dated 30 April 2018 she said "From the second week Doctor Rashid kept buying me gifts, he would buy me chocolates and lunches and I didn't ask for it". In her statement dated 6 May 2019 she said "Dr Iqbal was pretty nice to me when I first started working for him, but in the first week he started buying me food from McDonalds when he went for lunch. He wouldn't actually ask me, he would just buy me lunch. I found this a bit weird. He would do this about twice a week. Sometimes he bought me a frozen coke, other times it was a McDonalds meal. Dr Iqbal bought me a box of Ferraro Chocolates from Coles while I was working for Dr Iqbal on my own. This was in the second week I was working for him. This only happened once."
In his letter to the HCCC dated 16 November 2018 and his solicitor's letter dated 30 June 2020 Dr Iqbal said he had offered person A a chocolate as part of an ordinary office conversation and had bought her something for lunch once as a friendly gesture with no element of harassment involved. In his statement dated 6 December 2021 he said he also had bought her one or two frozen drinks from McDonalds when he bought one for himself. He had intended to be friendly and generous and make her feel welcome and part of the team.
When giving evidence to this Inquiry Dr Iqbal said he had bought her one burger because she had to stay in the office over the lunch hour and she had not brought any lunch to work. It was possible that he had given her a small box of chocolates.
Dr Iqbal denies that the conduct was of a sexual nature.
Again we prefer the evidence of person A and find Dr Iqbal bought food for person A from time to time and gave her a box of chocolates.
As we have previously mentioned, this is an example of conduct which, if considered separately, could be explained as a friendly gesture. However, taking into account our findings in relation to the other conduct asserted in Complaint One, we find that it was conduct of a sexual and unwelcome nature and Dr Iqbal did it to enhance his chances of having a sexual relationship with person A.

[21]

Complaint One particular 5

In Complaint One particular 5 the HCCC says that, on or about 19 January 2018, during a shift, whilst they were alone, Dr Iqbal followed person A to the waiting area of the practice, and inappropriately said, "will you have sex with me". When person A replied "No" he followed her to the back of the practice and said "is it yes or no for sex, I will give you $200".
Dr Iqbal denies Complaint One particular 5. He says he offered her money for clothes and said something like "its not for sex" as a failed attempt at humour which he regrets.
The relevant diary entries on 19 January 2018 are the following: "Next thing i'm hearing is how he wanted to have sex with me. Of course Im in complete shock and was super uncomfortable because I've never been in this situation. How would anyone react to this situation? I started to notice that whenever I worked alone or was alone, he would approach me for awkward conversations. I tried my best to avoid it for a while but after asking me for sex, how could i possibly avoid it or the awkwardness?" "Then he started talking inappropriate again, he'd mentioned sex and how he would pay me $200 for it. I was in so much shock i just went silent but eventually told him no and that i wasn't interested. He tried changing it up saying it was for fun as "friends". How does anyone react to their boss asking for sex? I told him i wasn't comfortable with it. Hoping he'd understand this whole situation was out of hand and it made me feel really uncomfortable but instead he asked "why?". He'd said how he wasn't going to pay me for sex but wanted to buy me work clothes because I always wore the same clothes … Anyway a patient had walked in so that saved me from more awkward conversation ... I had to check the fridge in the back to check on the temperatures before i left and this is when I felt like I couldn't even breathe because Dr Rajid wanted to walk with me to the back room. He said he wanted to see how I did it. After writing down the temperatures and walking out of the back room he asked "Yes or no for sex?" I said "no" and told him to try dating sites or something else."
In her statement dated 30 April 2018 person A said that, on 19 January 2018, Dr Iqbal asked her to spend the weekend with him and sleep over at his house. She refused and walked out to the back room to where the fridge was and Dr Iqbal followed her. He said he wanted to see how the fridge worked. He followed her back out of that room and asked if she would have sex with him and he would give her $200. She said "No" and left straight away as the harassment and fear caused by Dr Iqbal was too much for her to handle.
In her statement dated 6 May 2019 person A said that on 19 January 2018, when they were both in the waiting area he said "Will you have sex with me?" and she replied "No". Dr Iqbal then followed her into the fridge area and said "Is it yes or no for sex, I will give you $200". She said "No" again.
In his letter dated 20 April 2018 Dr Iqbal said that patients had made negative comments about person A wearing the same clothes repeatedly. Together, with the owner of the practice, they decided to offer to pay for and encourage her sensitively to buy new clothes. His wife also needed help with tidying the house and minding children. For these reasons he asked person A whether she would like to come to earn a bit of money to buy new clothes. There was no suggestion of a sexual nature.
In his letter dated 16 November 2018 Dr Iqbal says "I did not at any time offer [person A] money for sex" and "On the other hand if [person A] is being honest she must know that the serious allegations about seeking sex or offering money for sex are completely wrong". He again says that he offered her money to buy clothes.
In his statement dated 6 December 2021 Dr Iqbal did say that when he said to person A "we are going to give you $200", she said "why" and he said, "because you are working on the weekend, you've been working hard and to buy some clothes." He then said "it's not for sex" in a light-hearted way, which he intended to be funny.
We note that the owner of the business has said in a statement that he agreed that Dr Iqbal should offer person A $200 to cover the cost of her uniform.
In his evidence at this Inquiry Dr Iqbal added that person A had come to see him in his office, she had rolled up her sleeve and showed him her tattoos and the scarring from attempts at self harm before she asked for a long sleeve uniform. She told him she was short of funds and needed money to buy it. He had spoken to the owner of the business and they agreed to offer her $200 being $165 for the shirt and the rest for transport. When he offered person A $200, he told her it was for working hard and jokingly added it was for clothes and shoes and not for sex.
We note that in the transcripts of the conversations with person B and person C, Dr Iqbal told them various versions of what he had said to person A - "Now this money that I'm giving you is not for sex at all. Instead for [unintelligible] not for sex - this is because every day she wears the same clothes… You know what, I could offer you $200 but not for sex. Not for sex… Listen I'm going to give you $200 not for anything. Not for sex, its just to get some new clothes and new shoes. That's what I told her."
We have already made findings as to the reliability of the evidence of Dr Iqbal. Again we prefer the evidence of person A and find that Dr Iqbal asked person A to have sex with him, she refused and he then offered her money to have sex with him.

[23]

Findings - Complaint One

Dr Iqbal admits that jokingly saying "its not for sex" when offering person A money to buy clothes (being the extent of his admission) is unsatisfactory professional conduct.
However we have found that the HCCC has established the facts underlying Complaint One particulars 1 to 6 inclusive as pleaded.
The HCCC says that it has established unsatisfactory professional conduct pursuant to two subsections of s 139B(1).
Firstly, the HCCC relies on the definition in s 139B(1)(a) which defines it as conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
The relevant legal principles are the following: 1. Determining whether conduct is significantly below a reasonable standard requires the Tribunal to make an objective assessment with reference to the standards of the profession generally: Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82] per Basten J; Ahmad, Dr Firoz Uddin [2013] NSWMPSC 8 at [171]. 2. Guidance on whether a departure from that standard is significant can be taken from the established principle that the term "may in law be taken to mean not trivial, of importance or substantial": Re A Medical Practitioner and the Medical Practice Act, (NSWMT, 3 September 2007, unrep) at [12]. 3. The Tribunal may apply the specialist expertise of the Panel in making this determination: Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 at [16].
We find that the conduct in Complaint One particulars 1 - 6 demonstrates that the judgment possessed by Dr Iqbal in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. His exploitative behaviour towards a junior employee reveals deficiencies in judgment that would not be expected of a doctor of his years of experience and qualifications. Accordingly, we find that the HCCC has established that Dr Iqbal is guilty of unsatisfactory professional conduct by reason of s 139B(1)(a) of the National Law as a result of the conduct proven in Complaint One.
Secondly, the HCCC relies on the definition in s 139B(1)(l) which defines unsatisfactory professional conduct as any improper or unethical conduct. Those terms are not defined in the National Law.
The relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong" (Parker v Comptroller of Customs (2009) 83 ALJR 494; [2009] HCA 7). If Dr Iqbal's conduct was not in conformity with standards of professional conduct and practice it may be regarded as improper (R v Byrnes (1995) 183 CLR 501 at 514-515).
Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct.
We find that Dr Iqbal's conduct in Complaint One particulars 1 - 6 was highly improper and unethical. Accordingly, we also find, on this alternative basis, that the HCCC has established that Dr Iqbal is guilty of unsatisfactory professional conduct by reason of s 139B(1)(l) of the National Law as a result of the conduct proven in Complaint One.

[25]

Complaint Three

In Complaint Three the HCCC says that Dr Iqbal is guilty of professional misconduct as he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration.
Dr Iqbal says that his conduct does not amount to professional misconduct.
The determination of whether his conduct amounts to professional misconduct has, as its starting point, an objective assessment of Dr Iqbal's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from "proper" or "reasonably expected" standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638).
Dr Iqbal was, in January 2018, 39 years of age. While he was not person A's employer, he was the only doctor working in the practice.
As we have said, person A was 19.
Dr Iqbal, who had seen the scarring on person A's arm, knew she was an extremely vulnerable person. Nevertheless, he used his position of power to groom person A for the purpose of a sexual relationship.
The entirely foreseeable (by Dr Iqbal) effect on person A is shown by her entries in her diary.
She starts by expressing her happiness at having found the job at the practice. "A lot has changed for me and I've been feeling so much better too. Working at Smart Dollar was good for a first job but now that I've been working at the … Medical Centre as a trainee, I've learnt so much and for once I've been confident within myself." She started to become concerned at Dr Iqbal's unwanted advances, but was worried she was overreacting and did not want to start any trouble because she was really enjoying the job and the last thing she wanted to do was to ruin the chance she had been given as a trainee. She had felt very nervous when she started but she pushed herself and felt positively about her new found abilities to adjust to her surroundings, to multi-task, to be polite no matter what, to help people out and to be focused. She wrote she "never thought in a million years I'd be working at this job because I always thought i wasn't capable of the multi-tasking and of remembering everything." Being busy kept her mind occupied from thinking about anything negative, she felt her mental state had been a whole lot better and she hadn't hurt herself or thought about killing herself for a while. Working had kept her on her feet and helped her grow, learn and to gain more experience. She felt at the start of her future and hoped everything would continue to be this good.
However, on 19 January 2018, the tone of her entry changed. She recounts the unwanted food and drinks he bought her, his offer for her to hang out with him that night and go to the cinema or back to his place to watch movies. She started to notice that whenever they were alone he would approach her for awkward conversations. She had tried to avoid him and had arranged to always be picked up after work. She had become excited when he said he wanted her to become an assistant manager but then he mentioned sex and offered her $200. She wrote that she was in so much shock she just went silent but eventually told him no and that she wasn't interested. Even then she didn't want to tell anyone because she thought she could work it out herself and was too scared of losing the job she actually enjoyed. When she got home, she cried because she had held it all in for so long and it felt good telling someone.
We are satisfied that Dr Iqbal used his position as the senior person at the practice to pursue a sexual relationship with person A in circumstances where he was or should have been aware he could cause significant harm to person A. It occurred when, according to his own statement, he was at the time "very aware about issues of appropriate boundaries". His conduct continued and escalated throughout the term of person A's employment. He then offered money to members of the family in an attempt to stop them reporting person A's allegations of sexual harassment. His conduct, we are satisfied, significantly departs from "proper" or "reasonably expected" standards.
We also find that his conduct was of a sufficiently serious nature to justify suspension or cancellation of his registration.
The HCCC has established that Dr Iqbal is guilty of professional misconduct.

At a glance

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