Health Care Complaints Commission v Jamnagarwalla

Health Care Complaints Commission v Jamnagarwalla - [2022] NSWCATOD 61 - NSWCATOD 2022 case summary — Zoe

[5]

Summary of events and issues raised

The first proceeding relates to a consultation on 29 November 2018 with Patient A who was 12 years old. She was accompanied by her female cousin (Person A) who was 17 years old. The most serious allegation in these proceedings is that when seated in front of Patient A and examining her ears with an otoscope, Dr Jamnagarwalla inappropriately placed his left hand on Patient A's bare right upper thigh and brushed his left hand down her right leg. That conduct, as well as other conduct including staring at the bare legs of Patient A and Person A is said to amount to conduct of a sexual nature. The Commission maintains that, because of that conduct, as well as responding inappropriately when Patient A's legs started shaking, Dr Jamnagarwalla has engaged in unsatisfactory professional conduct and professional misconduct.
Dr Jamnagarwalla does not recall any details of the consultation and denies that he would have engaged in any of the alleged conduct.
On 30 November 2018, following an interview with Patient A, a police officer lodged a notification with the Australian Health Practitioner Regulation Agency (AHPRA). Two months later, on 21 January 2019, the Medical Council placed a condition on Dr Jamnagarwalla's registration that he not see any female patients. The condition, in full, was that: 1. He is not to consult, examine, treat or perform any procedures on any female. a. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner Regulation National Law. b. If any such event occurs, the practitioner 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.
On 7 February 2019, the Commission notified Dr Jamnagarwalla that the complaint was to be investigated. On 26 March 2019, Person A attended an interview with the Commission. On 27 March 2019, Patient A attended an interview with the Commission accompanied by her mother (Person B).
The second and third proceedings allege breaches by Dr Jamnagarwalla of the condition on his registration, failures to comply with his record keeping obligations, providing a false or misleading medical certificate and making a false or misleading statement to the Medical Council. From 24 January 2019 to October 2019, Dr Jamnagarwalla admits that, on 33 occasions, he breached the condition that he not see female patients. He says he was uncertain about the scope of the conditions and believed at that time that he could, for example, write prescriptions for female patients as long as he did not physically examine them. Dr Jamnagarwalla also admits the particulars relating to poor record keeping and providing false or misleading information.
On 5 February 2020, the Medical Council amended the condition to add the words "including prescribe to" after the word "treat" in the condition. The Council added those words "for the purposes of abundant clarity".
In these kinds of proceedings, the protection of the health and safety of the public is the paramount consideration: National Law, s 3A. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a). There are three main questions: has the Commission proven the factual basis of each allegation; is Dr Jamnagarwalla guilty of unsatisfactory professional conduct in the ways alleged by the Commission and, if so, is he also guilty of professional misconduct. The significance of a finding of professional misconduct is that the Tribunal then has power to suspend or cancel Dr Jamnagarwalla's registration, although we are not obliged to do so: National Law, s 149C(1)(b). We will set out the principles relating to each of these issues before addressing the allegations in detail.

[7]

Summary as to credibility of witnesses

The evidence included the police narrative recorded in the COPS system, the transcript of the interviews with Patient A and Person A as part of the investigation by the Commission, the statement of Person B, the three statements of Dr J, his clinical records, his oral evidence and the oral evidence of Patient A, Person A and Person B.
The parties filed a Statement of Agreed Facts, but there are significant factual issues in dispute. Dr Jamnagarwalla does not admit the particulars in Proceedings 1 and denies any recollection of the consultation with Patient A and her cousin, Person A. Consequently, all the allegations relating to that consultation are in dispute. Dr Jamnagarwalla admitted unsatisfactory professional conduct in Proceedings 2 and 3. One contentious issue in those proceedings is whether Dr Jamnagarwalla knew at the time that he was in breach of the condition not to treat female patients. While it is not necessary for the Commission to prove that Dr Jamnagarwalla deliberately flouted the condition, that question is relevant to the seriousness of the conduct. Dr Jamnagarwalla denied that he engaged in professional misconduct in relation to all three proceedings.
In cross-examination, questions can be asked which are relevant to a witness' credibility generally as well as to the reliability of particular evidence. The answers to those questions may bear on a witness' truthfulness, bias, motivation to be untruthful, perceptions or memory.
We accept those aspects of Dr Jamnagarwalla's evidence that are supported by his contemporaneous clinical notes or other independent documentary evidence. With minor exceptions, we have found each of the allegations that he denies to have been proven. We provide further reasons for accepting or rejecting Dr Jamnagarwalla's evidence throughout these reasons, but will deal with one issue now.
The Commission submitted that Dr Jamnagarwalla's credibility is adversely affected because of his admission that he accessed Person A's medical records at the end of 2019 to see whether she had ever had a consultation with him. He says he was trying to work out why Person A had complained and was questioning himself as to whether anything had gone wrong. He printed out Person A's medical records and gave them to his solicitors about a month before the hearing. Dr Jamnagarwalla says he did not refer to a consultation with Person A in early January 2019 in his evidence because nothing went wrong. When asked what he considered to be good medical reasons for a doctor to access a patient's clinical records, Dr Jamnagarwalla said that he would access a patient's records if a complaint had been made relating to that patient. He said it was acceptable to do so in this case even though the complaint was not about the way he had treated Person A. Person A had made allegations about him in the interview with the Commission and that was sufficient justification, in his mind, to access her clinical records.
While this conduct suggests that Dr Jamnagarwalla does not fully understand his obligations to maintain patient privacy, that does not necessarily mean that he is not telling the truth about what happened during the consultation with Patient A in November 2018.
Patient A, Person A (Patient A's cousin) and Person B (Person A's mother) gave evidence in a straightforward and generally convincing manner. It was not suggested that they were lying or that they had collaborated. The reliability of their memory was challenged on several grounds, which we consider in detail below.
We admitted evidence of what Constable Griffis wrote in a notebook and what was recorded in the COPS system, subject to submissions as to the weight we should give that material. Constable Griffis, the police officer who notified AHPRA of the complaint the subject of the first proceedings, was not available to give evidence. Dr Jamnagarwalla submitted that a "Jones v Dunkel" inference should be drawn that the evidence of Constable Griffis would not assist the Commission, and that the same inference should be drawn regarding the evidence of an unidentified second police officer who was with Constable Griffis during the interview with Patient A.
For the reasons given by the Commission, we do not consider such an inference to be warranted. Firstly, a "Jones v Dunkel" inference is only available where the witness is relevantly 'in the camp' of the party, such that they would be expected to call them. The police officers are not 'in the camp' of the Commission and it was equally open to Dr Jamnagarwalla to call one or both of them if he wished to do so. Secondly, the inference is only available where there has not been a satisfactory explanation for the absence of the witness. The absence of Constable Griffis was well explained in the affidavit of Ms Bayley, the solicitor for the Commission. The absence of the second police officer, who did not give a statement, did not record the narrative in the police records and was not the subject of a request for cross-examination, needs no explanation.
Even if we did draw a "Jones v Dunkel" inference on the basis of Constable Griffis' non-attendance, such an inference would not assist Dr Jamnagarwalla in resisting adverse findings in this case. The inference does not amount to a positive finding about what either of the police officers would have said. The inference is merely that their evidence would not have assisted the Commission.
Expert evidence was given by two general practitioners, Dr Young and Dr Lilienthal. Dr Jamnagarwalla required Dr Young for cross-examination on his report but the Commission did not require Dr Jamnagarwalla's expert, Dr Lilienthal, for cross-examination. For the most part, we agree with the opinions of both these experts about the level of seriousness of Dr Jamnagarwalla's proven conduct.

[8]

Unsatisfactory professional conduct

After making factual findings, we must decide whether what happened amounts to unsatisfactory professional conduct as defined in the National Law.
For Proceedings One, Complaint One, Particulars 1, 2, 3 and 4 the Commission alleges that Dr Jamnagarwalla is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. Section 139B(1)(a) defines unsatisfactory professional conduct to include: 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.
When deciding whether Dr Jamnagarwalla is guilty of unsatisfactory professional conduct under s 139B(1)(a) we must do so against the standard reasonably expected of a practitioner of an equivalent level of training and experience. Throughout these reasons we will refer to that standard as the "relevant" standard.
Dr Jamnagarwalla was well trained and very experienced during the period covered by the complaints. In 1997, he completed a Doctor of Medicine in Tanzania. On 26 June 2003, Dr Jamnagarwalla was first registered as a medical practitioner in Queensland and worked there between 2003 and 2005. On 14 June 2005, Dr Jamnagarwalla was first registered as a medical practitioner in NSW. Between 2005 and 2012, Dr Jamnagarwalla worked as a general practitioner in NSW. In 2008, he completed a Fellowship of the College of General Practitioners. In January 2012, Dr Jamnagarwalla started working as a general practitioner in a group practice in Sydney.
As well, or alternatively, the Commission alleges that Dr Jamnagarwalla is guilty of unsatisfactory professional conduct under s 139B(1)(l) in that he has engaged in "improper or unethical conduct". The kind of conduct described in s 139B(1)(a) relates to Dr Jamnagarwalla's "knowledge, skill or judgment" whereas s 139B(1)(l) identifies "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". However, the same conduct can amount to unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law: Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [59]-[66]. As well, an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102].
For Proceedings 2, Complaint 1 and Proceedings 3, Complaint 1, the Commission alleges that Dr Jamnagarwalla is guilty of unsatisfactory professional conduct because he has contravened a condition to which his registration was subject. Section 139B(1)(c) of the National Law defines unsatisfactory professional conduct to include: A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board.
For Proceedings 2, Complaint 2, the Commission alleges that Dr Jamnagarwalla is guilty of unsatisfactory professional conduct in that he has engaged in "improper or unethical conduct": National Law s 139B(1)(l). The words "improper" and "unethical" are not defined in the National Law. They have an ordinary English meaning. Dictionary definitions provide a guide to that meaning. As the Tribunal held in Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31]: The Macquarie Dictionary defines 'improper' as 'not in accordance with propriety of behaviour, manners etc. or abnormal or irregular' (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as 'contrary to moral precept; immoral; in contravention of some code of conduct'. As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to 'the practice or the purported practice of the practitioner's profession'.
For Proceedings 2, Complaint 3, the Commission alleges that Dr Jamnagarwalla is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he has contravened a provision of the Regulations. Those provisions relate to record keeping.

[11]

Particulars of the complaint and Dr Jamnagarwalla's reply The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrated 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/or ii. engaged in improper or unethical conduct relating to the practice of medicine. 1. During the consultation, while sitting close to Patient A and Patient B, the practitioner inappropriately stared at the bare legs of Patient A and Person A and attempted to look up their skirts in circumstances where: a. The practitioner knew that Patient A was 12 years old; (admitted) b. The practitioner was told that Person A was 18 years old; (admitted) c. Patient A had not previously had a consultation with the practitioner; (admitted) d. Patient A complained of an ear ache and sore throat; (admitted) e. Patient A and Person B were both seated and wearing short denim skirts; (not admitted) f. There was no clinical indication to look at the legs of Patient A or Person A. (admitted) 2. During the consultation, while sitting close to Patient A with his legs apart, the practitioner leaned across her body to examine her ears with an otoscope and inappropriately placed his left hand on Patient A's bare right upper thigh and brushed his left hand down her right leg in circumstances where: a. The practitioner knew that Patient A was 12 years old; (admitted) b. Patient A had not previously had a consultation with the practitioner; (admitted) c. Patient A complained of an ear ache and sore throat; (admitted) d. The practitioner did not seek permission to touch Patient A's upper thigh; (admitted) e. There was no clinical indication to touch Patient A's upper thigh. (admitted) 3. During the consultation, the practitioner failed to properly respond when Patient A's leg began to shake in circumstances where: a. The practitioner did not sufficiently acknowledge that her shaking could be an indicator of potential discomfort; b. The practitioner did not sufficiently explore whether Patient A was comfortable to proceed. Not admitted. 4. By reason of the actions in Particulars 1-2 above, individually or in combination, the practitioner engaged in inappropriate behaviour of a sexual nature towards Patient A and/or Person A. Not admitted.

We will address Particular 3 (response to leg shaking), then Particular 2 (hand on bare upper thigh), then Particular 1 (staring at bare legs). Finally, we will determine whether particulars 1 and 2, if proven, amount to inappropriate behaviour of a sexual nature (Particular 4).

[12]

Proceedings 1, Complaint 1, Particular 3 - response to leg shaking

After Dr Jamnagarwalla put his hand on her bare upper thigh, Patient A said she was nervous and her legs started to shake. A Commission investigator asked Patient A whether Dr Jamnagarwalla's hand was still on her leg when he checked her right ear. Patient's A's response was as follows: It was, kind of, there, and then, like, I kind of, like - because like, when I get nervous, like, my legs, like, jitter, they, like, go like. My legs started to jigger. And like, he, like, kind of, like, took his hand. And like - he also made a comment about how my legs were, like, moving, he was like, "Like, why do your legs, like -"he was, like - he was, like, "Like, your legs, they're, like shaking" or something , and I was, like, "Yeah, they just do that".
Person A's evidence to the Commission about Dr Jamnagarwalla's response to Patient A's legs shaking was that: . . . and another thing I just remembered he was doing - she was very anxious, so she was shaking her legs and he, like, touched her leg and didn't leave his hand, but just touched her leg and said, "Are you okay?" because she was shaking her legs.
Dr Jamnagarwalla's response was that he cannot recall the consultation but if he sees any sign of distress or discomfort while he is performing an examination, he "would stop the examination and ask the patient if they are comfortable" with him proceeding.
As to the factual basis for this particular, we find that Patient A's legs were shaking and that Dr Jamnagarwalla momentarily put his hand on her leg and said words to the effect of, "Your legs are shaking". We also accept Person A's evidence that Dr Jamnagarwalla said words to the effect of, "Are you okay?" The first issue is whether that response means that Dr Jamnagarwalla did not sufficiently explore whether Patient A was comfortable to proceed. If that is established, the second question is whether it amounts to unsatisfactory professional conduct either because it is below the relevant standard (s 139B(1)(a)) or because it is improper or unethical (s 139B(1)(l)).
In relation to Proceedings 1, Complaint 1, Particular 3, Dr Young provided the following opinion. We have highlighted the most significant paragraph: 46. According to [Patient A's] version of events she stated that she was nervous and her legs started to shake and at that point Dr Jamnagarwalla removed his hand. [Patient A] stated that Dr Jamnagarwalla noticed her legs were shaking and asked her why this was the case. [Patient A told him "that is just the way they are". 47. According to [Person A's] version of events at one point her cousin became very nervous and started shaking her legs, and at this time Dr Jamnagarwalla placed his hand on [Patient A's] leg and asked her if she was ok. 48. I note from reading the primary material (Interview of Brooke Herald 26 March 2019) [Person A] does not recall if [Patient A's] legs were shaking before or after the ear examination (5 p19). 49. I don't think the sequence of events matters - a reassuring hand on a knee may be appropriate if the patient had or pants or stockings on, but given that the patient had bare legs, was a minor, and had never seen Dr Jamnagarwalla before, I believe Dr Jamnagarwalla's behaviour was ill considered. 50. As well, as outlined in the Preamble, if a doctor had caused an adverse event, such as making a patient nervous by their behaviour or examination technique, then effort should have been made to recognise what had happened, acknowledge any patient distress and providing appropriate support and effort made to immediately to rectify the problem. However neither young person reported Dr Jamnagarwalla making such efforts. 51. Respectful doctors maintain physical boundaries in a professional manner and think before they act; experienced GPs realise that adverse events may happen without their intention but have strategies to implement immediately when such events arise. 52. It is my opinion that Dr Jamnagarwalla's conduct (assuming [Patient A's] and [Person A's] version of events) in his response when he noted that [Patient A's] legs were shaking was not appropriate and fell significantly below the standard expected of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct. This departure from the standard invites my strong criticism.
Dr Lilienthal does not consider that the conduct as outlined, constitutes unsatisfactory professional conduct: It would seem from Patient A's own statement that Dr Jamnagarwalla did attempt to settle her discomfort before proceeding to take a medical history and during the examination. If Dr Jamnagarwalla had failed to notice and acknowledge Patient A's discomfort and had not attempted to diffuse this situation, I would then have agreed that this would then have constituted 'unsatisfactory professional conduct'.
We have not taken into account Dr Lilienthal's speculation as to whether Patient A instantly developed a negative attitude to Dr Jamnagarwalla, whether Dr Jamnagarwalla would have sensed this negativity or whether his overly friendly attitude had a genuine and proper basis. These are factual matters, not matters of expert opinion.
Dr Jamnagarwalla asked if Patient A was okay when he saw that her legs were shaking. That response does not support a finding that he did not properly respond or sufficiently acknowledge that the shaking could be an indicator of potential discomfort or that he did not sufficiently explore whether Patient A was comfortable to proceed. While it is not appropriate to touch a patient's leg even if it is shaking, Dr Jamnagarwalla did respond by checking if Patient A was okay. The conduct is not significantly below the relevant standard, nor is it improper or unethical. Proceedings 1, Complaint 1, Particular 3 is not proven.

[13]

Proceedings 1, Complaint 1, Particular 1 - staring at bare legs

Patient A stated that during the examination, when Dr Jamnagarwalla leant over to look at her ear, she saw him looking up her cousin's skirt. She said she could tell that his eyes went in that direction and it was "really, really weird". She described herself and her cousin laughing nervously. Patient A agreed in cross-examination that Dr Jamnagarwalla did not look up her skirt.
Person A said in her interview with the Commission that Dr Jamnagarwalla looked at their faces most of the time but "every now and then when - I don't know if he thought we weren't looking, he would look down a little bit, but yeah... like, towards our legs." The evidence that he looked down "a little bit" was said to cast some doubt on the extent of the staring, but Person A also told the Commission that after Dr Jamnagarwalla had put his hand on Patient A's upper thigh: . . . he just kept asking questions and just kept looking at us in a very funny way. And then, as we were leaving, I saw him, like, look down - because we were both [wearing] skirts. So I quickly got up and said, 'Let's go'. " (Word in brackets added.)
When Person A described Dr Jamnagarwalla as looking down "a little bit" we take that to mean looking down towards their legs. Person B's evidence is consistent with that interpretation: As the girls got up to leave, my daughter said that she noticed the doctor look at her legs and up her skirt with his eyes.
Dr Jamnagarwalla submits that Patient A's testimony was vague. After leaving the medical centre, she said that Person A had said to her, "yeah, like, he kind of, looked up my skirt". By using the words "kind of", Dr Jamnagarwalla submits that if this is an accurate account of what Person A actually said, it was too vague. We are not persuaded that using the words "kind of" to describe what Person A had told Patient A, materially weakens either Patient A's or Person A's version of events. That phrase is a colloquial expression. It was not intended to convey that Person A was unsure as to what had happened.
Person A's evidence was also that she saw Dr Jamnagarwalla looking when she stood up and her denim skirt had ridden further up her leg from being seated. She explained, "typically that's what happens" in relation to the movement or positioning of short denim skirts when seated and then standing.
Dr Jamnagarwalla denied that he tried to look up Patient A's or Person A's skirt. Dr Jamnagarwalla stated that the allegation was false and that there were components of the complaint that he was 100% certain could not have happened.
On the basis of Patient A's and Person A's testimonies, which were persuasive, we find the factual basis of this particular to have been proven. Patient A and Person A were both seated and wearing short denim skirts. During the consultation, while sitting close to Patient A and Person A, Dr Jamnagarwalla inappropriately stared at the bare legs of Patient A and Person A and attempted to look up Person A's skirt. However, given Patient A's agreement that Dr Jamnagarwalla did not attempt to look up her skirt, we find the factual basis of that allegation not proven.
Dr Young was asked to provide his opinion on the appropriateness or otherwise of Dr Jamnagarwalla's conduct in staring at Patient A's legs and trying to look up their skirts. This was his opinion: Respectful doctors maintain professional boundaries. This includes regarding patients in a way that avoids being construed as sexual in nature. Looking at both young people's legs and up their skirts was not professional, it was sexualising their bodies, which is a breach of sexual boundaries, as outlined in the Preamble, abusing trust and risking good quality healthcare.
Dr Young went on to say that he believes the conduct was "most inappropriate", fell significantly below the relevant standard and invites his strong criticism.
Dr Lilienthal offered the following opinion: Given the circumstances stated above, there are no clinical reasons for a medical practitioner to stare at the bare legs of a patient of any age nor the bare legs of an accompanying person. There is no clinical reason for a medical practitioner to attempt to look up the skirts of a female patient or her accompanying person . . . People can choose to wear whatever clothing they wish but this does not mean that another person can take advantage of this in any way, especially a medical practitioner. If Dr Jamnagarwalla did behave in this way, I would agree that it would constitute unsatisfactory Professional conduct.
We agree with the opinions of the expert witnesses. The proven conduct is not only significantly below the relevant standard, it is improper and unethical. Apart from the allegation that Dr Jamnagarwalla attempted to look up Patient A's skirt, we find this particular to have been proven.

[15]

Otoscope or thermometer?

This particular identifies an otoscope as being the instrument Dr Jamnagarwalla was using when he "inappropriately placed his left hand on Patient A's bare right upper thigh and brushed his left hand down her right leg". Patient A was shown an otoscope and said that Dr Jamnagarwalla had that device in his right hand when examining her left ear. Dr Jamnagarwalla submitted that because the complaint refers to an otoscope, the Tribunal should find this particular not to have been proven unless we are satisfied that the conduct occurred in the course of using that particular instrument. The Commission submitted that the Tribunal has power to make findings of unsatisfactory professional conduct or professional misconduct if it considers the substance of the complaint to have been proven even if the precise particulars are not made out.
As well as using an otoscope, Dr Jamnagarwalla also inserted a thermometer inside Patient A's ear to take her temperature. An otoscope and a thermometer are a similar size. Both are inserted into the ear canal, one to take a patient's temperature and the other to check for signs of infection. At one stage, Patient A referred to a thermometer, rather than an otoscope, when asked by the Commission's investigators how long Dr Jamnagarwalla had his left hand on her thigh. Her response to that question was: Maybe, like, I - well, how long does it take to do the thermometer? Like, maybe, like, six, eight seconds. Like I - maybe, like, more like five to, like eight seconds. Like, it wasn't extremely long, but it was, like, more than, like an accidental brush.
That is the only occasion during the interview that Patient A referred to a thermometer. When questioned about this reference, in cross-examination, Patient A was clearly confused. Dr Jamnagarwalla submitted that Patient A knew the difference between an otoscope and a thermometer. However, neither Patient A nor Person A was shown the thermometer or asked whether it was the device referred to in their evidence. It is plausible, and we find, that Patient A does not remember the exact kind of instrument Dr Jamnagarwalla was using at the time. The evidence establishes that Dr Jamnagarwalla put his hand on Patient A's bare upper thigh when leaning over her to put either an otoscope or a thermometer into her ear canal.
In those circumstances, can the Tribunal, in effect, substitute the word "instrument" for the word "otoscope" in this particular? Wilson J set out the following general principles in Liu v Health Care Complaints Commission [2018] NSWSC 315 at [29] - [37]: [29] The Tribunal is not a court presided over by a judge; it is constituted by a combination of lawyers, relevant health professionals, and lay persons, as required by s 165B of the National Law. Its particular expertise is in providing a mechanism for dealing expeditiously and practically with problems that arise in medical practice, always with the aim of protecting the public. In carrying out its functions, the Tribunal is not obliged to observe the rules of evidence; it may inform itself in any manner it thinks fit: clause 2 of Schedule 5D of the National Law. It can determine its own procedure with respect to any matter not provided for by law: s 38 of the CAT Act. [30] In hearing a complaint, the Tribunal is not confined to the complaint as made. It may, if it appears that another complaint could have been made additional to or in lieu of that before it, and whether or not by the same or a different complainant, proceed as if that other complaint had been referred to it, and deal with it: cl 6(2) of Schedule 5D of the National Law. Pursuant to cl 6(3) the Tribunal may have regard to all of the evidence before it, relevant to that complaint or any other complaint, in making a finding of unsatisfactory professional conduct or professional misconduct. … [33] The complaint "initiates the chain of inquiry which may bring matters before the Tribunal": King v Health Care Complaints Commission [2011] NSWCA 353, at [5] per McColl JA, who was in agreement on this and other points with Handley AJA; Macfarlan J dissenting). Handley AJA said on that point that a complaint functions as a "summary or distillation of the complaints, formulated as an aide memoire for the benefit of the [person the subject of the complaint] and the Tribunal" (at [171]). Its purpose is to inform the proceedings, not to confine them. … [36] It is clear that the subject matter of the complaint may or will be broader than individual particulars of it, and include those matters of fact advanced in support of it. That must be so having regard to the overall aims and objectives of the National Law, and the wide procedural powers given to the Tribunal. In particular, the Tribunal's power to inform itself in any way it sees fit, and to determine any complaint it considers should be determined, regardless of the complaint advanced, is inconsistent with a narrow reading of the Tribunal's power to range beyond the particulars of a complaint. [37] The role of the Tribunal is to conduct an inquiry into a complaint made against a health practitioner, informed as it thinks necessary, and determining any complaint it considers arises on the material before it. There can be no basis in such circumstances to consider the Tribunal bound by the way in which a complaint is particularised, or to confine the exercise of its powers to make findings and orders by strict reference to the terms of the complaint as originally advanced.
Wilson J refers to the Tribunal's power to proceed as if another complaint had been referred to it, if it appears that another complaint could have been made. We do not consider that there is a need to add another complaint because whether the instrument was an otoscope or a thermometer is not material. Dr Jamnagarwalla and Patient A agree that he used both instruments. In cross-examination, it was put to Dr Jamnagarwalla that he put his hand on Patient A's bare upper thigh while using an instrument on her left ear. Dr Jamnagarwalla denied touching her thigh at all. Dr Jamnagarwalla has given detailed written and oral evidence about his usual practice when using both an otoscope and thermometer. He has been given a reasonable opportunity to respond to the allegation that he inappropriately touched Patient A on the thigh during his examination of her on 29 November 2018 when using an instrument. There is no procedural unfairness.

[22]

Incomplete memory of the consultation

During cross-examination, Patient A and Person A were asked questions about their memory of exactly what happened in the consultation. Patient A agrees that she told Dr Jamnagarwalla that she had a sore throat and pain in both ears. She cannot remember what she told Dr Jamnagarwalla about the pain in the previous days and weeks but remembers that her left ear was excruciating in the previous two days. Even though Dr Jamnagarwalla's notes record "slight cough, sniffles, no temp", Patient A has no recollection of telling Dr Jamnagarwalla that she had a cough or a sniffle. She says she may have told him that she had a little bit of a temperature.
Dr Jamnagarwalla challenged the witness' credibility based on answers to some of those questions. For example, Patient A could not recall whether her ears or throat were examined first, whether Dr Jamnagarwalla put the otoscope in his other hand when examining her left ear, whether he placed his hands on her neck to check her glands, whether he used a stethoscope or what Dr Jamnagarwalla said at the end of the consultation. Similarly, Person A told the Commission's investigators that she could not really remember which hand Dr Jamnagarwalla put on Patient A's right leg. Then she said she thought it was the right hand. She was also uncertain as to whether Dr Jamnagarwalla held the instrument in his right or left hand when he examined Patient A's ears.
Patient A does not remember the order in which Dr Jamnagarwalla examined her but thinks that the first thing he did was examine both her ears. When checking the left ear, Patient A agreed that she turned her head to the right, that is, towards Dr Jamnagarwalla's desk and away from Person A. However, she stressed that she turned it 'half-way', that is at a 45-degree angle, not all the way across. She could not recall whether she could see her cousin when her face was in that position.
Patient A gave four different answers to the question as to whether Dr Jamnagarwalla had given her a prescription. First, she said she could not remember, then she said he might have, then that she did not think he had and finally that she was "pretty sure" he did. Dr Jamnagarwalla submitted that not remembering, for example, whether a script was given or not speaks against her reliability. If the consultation unfolded as Patient A said it did, it is not surprising that she cannot remember whether she was handed a script or not.
There are inconsistencies between the account given by Patient A to the Commission and the account she gave to the Tribunal. Those inconsistencies relate to matters including whether she had told Dr Jamnagarwalla that one or both ears were sore, how long she had had an earache before the consultation and the order in which Dr Jamnagarwalla performed various examinations. Patient A agreed that her recollections of the consultation were 'foggy' after such a long time.
We do not agree that the witness' incomplete and, at times, inconsistent memory of events means that their evidence is unreliable. Before both the Commission and the Tribunal, Patient A was doing her best, to give an accurate account of what she can remember happening. She acknowledged to the Tribunal that her recollection was foggy. However, she did not waver in relation to her evidence that Dr Jamnagarwalla had put his hand on her bare upper thigh for up to 8 seconds while examining her ear with either an otoscope or a thermometer. Understandably, if it happened, that is what she recollects most vividly. Her inability to give a consistent account of other parts of the consultation does not reflect adversely on her credibility as to that incident taking place.
Moreover we do not accept that inconsistencies in the accounts given by Patient A and Person A, regarding the exact details of what occurred, undermines their evidence that Dr Jamnagarwalla placed his hand on Patient A's bare upper thigh. We would be more sceptical if they had given precisely the same version of events as that would suggest collusion or reconstruction. We would also be sceptical if Patient A and Person A claimed to remember specific details such as the order in which examinations were performed, so long after the consultation.

[23]

Person B's account of what she was told

Person B's account of what her niece and her daughter told her is generally consistent with Patient A's and Person A's version. Person B's statement of 7 March 2020 states that: In the late afternoon of Thursday 29 November 2018 my niece [Patient A] and my daughter [Person A] attended the Rouse Hill Medical Centre. At about 5.30 pm I received a telephone call from [Person A]. During the conversation [Person A] advised me that she and [Patient A] had a bad experience at the medical centre. [Person A] said words to the effect of "Mum something happened when we were in the doctors and it wasn't normal". I could tell by the way [Person A] was speaking over the phone that she was upset. She was speaking faster than normal, and her voice sounded as if she was in a stressful situation. I asked [Person A] what happened at the medical center. [Person A] stated that the doctor had touched [Patient A's] leg on her bare skin as he was examining [Patient A's] ear. I advised [Person A] to come straight home. A short time later [Person A] and [Patient A] arrived at my home.
Person B made the following typed note of her recollections after the police had attended at her home: Private and Confidential On Thursday November 29, I received a phone call in the late afternoon from my 17-year-old daughter stating that both her and my niece had just come out of the Rouse Hill Town Centre medical centre. My daughter was shaken up and I could hear in her voice that she was upset. My daughter said they had a bad experience at the doctors. I asked her what happened, and she said that the doctor had touched my nieces' leg on her bare skin as he went to look in her ear. I told them to come straight home. When they arrived home, I asked what happened. They said as the doctor called them into the office he started to ask them lots and lots of questions. They said that he was trying to be over friendly to them and this was very uncomfortable. They said no doctor had ever been like this when they went to the doctors with their mums. As they sat down he continued to ask them questions that had nothing to do with why they would be visiting the doctors. He asked my 17-year-old daughter if he was seeing her as well while walking in? Are you sisters? How old are you? My 12-year-old niece felt scared and so she told him that my daughter was 18 as she thought that was better as this meant she was an adult. He asked my daughter did she drive here? Are you a good driver? How many red lights have you gone through? He then stated to my 12-year-old niece "you live in [name of suburb deleted], why did you come here? They answered him and said they were driving past as they felt scared to tell him why they were in Rouse Hill as my niece lives in [name of suburb deleted]. He then asked why are you here? She stated she had sore ears and a sore throat. At this point [Patient A] was shaking her legs as she felt anxious. He looked down at my nieces' legs as she was shaking them, and he asked are you ok? Then without asking my niece to turn her head towards him so that he could check in her ears he lent across her and put his hand on her leg and looked into her ear that was not closest to him. He then crossed over her body with his hand on her leg to look into the other ear. At this point my 12-year-old niece freaked out. He then looked at her throat, gave the diagnosis. As the girls got up to leave my daughter said that she noticed the doctor look at her legs and up her skirt with his eyes. The doctor's name is Dr Mustafa Jamnagarwalla. I, (name deleted), have contacted the police and given a statement. The police report was completed, and the event number for this complaint is - E291498595. Thank you (Name deleted)
Dr Jamnagarwalla submitted that it is unknown when Person B typed the note other than that it was "shortly after". In fact, Person B says in her statement to Police that she wrote the note, "About a day or two after the incident". We accept that evidence. In those circumstances, the note is likely to be a reliable account of what Patient A and Person A told her. Person B considered the allegations to be serious enough to contact police.

[24]

Police record

On 30 November 2018, Constable Griffis interviewed Patient A and Person A. Person B could not recall whether she was in the room when that occurred. She cannot remember precisely what either of them told the police officer but recalls thinking that it was exactly what they had told her had happened. The COPS Event contains the following narrative: The PN Mustafa Jamnagarwalla is currently a general Practitioner at the Rouse Hill Town Medical Practice. About 5.45PM on 29 November 2018 the Victim [Patient A] (date of birth deleted) and Witness [Person A] (date of birth deleted) attended the Rouse Hill Town Medical Practice due to the victim feeling unwell from an ear infection. Neither the Victim nor the Witness have previously visited the AA and were both wearing short skirts at this time that sat just above their knees. A short time later the Victim and Witness entered the surgery room at the AA with the PN. There the PN has sat in his chair behind his desk and the Victim and Witness sat on a lounge in front of the PN. The victim has told the PN about her ailment and the PN has then walked over to and sat next to the Victim on her left side with his Otoscope. At this time the Victim's skirt sat halfway up her upper leg. The PN has then placed one hand on the Victim's upper leg region whilst he examined both of the Victim's ears. As the PN removed his hand from the Victim's leg he has brushed down the Victim's leg and then returned to his desk where he has continued to speak with the victim and Witness. The Victim and Witness believe that during this conversation the PN was looking toward their legs and possibly trying to look up their skirts. The PN issued the Victim with a prescription and the Victim and Witness left the Medical Centre a short time later. Disturbed by the PN's actions they have reported the matter to NOK [Person B] (date of birth deleted) who is the mother of the Witness and Aunty of the Victim. The NOK contacted police who arrived at their address later that afternoon. The Victim and Witness provided the above version of events and stated that they and the NOK wanted to have the matter reported to the Australian Medical Association and were not interested in pursuing the matter beyond a police report. (Sentence redacted.) Police have advised the Australian Health Practitioner Regulation Agency of this most recent incident involving the PN, FNPA required.
There were several inconsistencies between the account of the incident recorded by the police officer and the accounts of Patient A, Person A and Person B. While it was conceded that some of those inconsistencies are relatively inconsequential, others were said to be more significant. For example, the police report records that: There the PN has sat in his chair behind his desk and the Victim and Witness sat on a lounge in front of the PN.
Patient A says she does not recall telling the police officer that it was a lounge or that she was sitting in front of Dr Jamnagarwalla. If she did say that, it is not correct. Patient A says she was sitting on a chair and the doctor was sitting at his desk. Her cousin, Person A, was sitting in another chair to her left. Person B said that she never heard her daughter or her niece say that they had sat on a lounge.
The police report also states that: The victim has told the PN about her ailment and the PN has then walked over to and sat next to the Victim on her left side . . .
Patient A said that if she told the police officer that Dr Jamnagarwalla walked over to her and sat on her left hand side, that is not correct. Dr Jamnagarwalla was sitting at his desk and then slid over on his swivel chair so that he was facing her but to her right. Person B denied that her daughter or her niece had told her that Dr Jamnagarwalla "walked over and sat next to" her niece.
Patient A also corrected the police account that she and her cousin were wearing short skirts "that sat just above their knees". According to Patient A, her skirt was "a little bit shorter than that".
Dr Jamnagarwalla submitted that the Police narrative and the COPS entry are reliable because of their contemporaneity.
These two documents are the same narrative entry recorded in different formats. They were typed some time after the interview with the witnesses, not during the interview. In addition, the Police recorded that no further action was to be taken other than notifying the Medical Council, which may be why no contemporaneous note was taken and why the same attention to detail as one would usually expect is not present. The inconsistencies would be more significant if they accorded with Dr Jamnagarwalla's evidence, but they do not. Dr Jamnagarwalla does not say that there is a lounge in his consulting rooms or that his usual practice when examining a patient is to walk and sit next to her on the left side. Rather than inferring that some of the details provided by Patient A and Person A are not correct, a more probable inference is that the police officer did not correctly hear or remember some of the precise details of what Patient A and Person A had said.

[28]

Dr Jamnagarwalla's denials and evidence about his usual practice

In Dr Jamnagarwalla's statement of 4 September 2020, he says that he does not have a recollection of the consultation with Patient A and relies on the information included in the medical records. In proceedings before the Medical Council, Dr Jamnagarwalla stated that there is no way he would place his hand on the upper leg of a patient during such an examination. He denied that he placed his hand on Patient A's leg to move his chair or to stop his chair from moving. He also denied brushing his hand down Patient A's leg. Dr Jamnagarwalla stated that it was possible that he may have unintentionally touched Patient A's knee during the examination, but could not say for sure.
According to Dr Jamnagarwalla, he would have examined the patient in accordance with his standard practice. He told the s 150 panel that during an examination of a patient complaining of sore ears, he would remain seated in his chair and slide his chair in front of the patient. The chair would be obliquely to the right and he would have one leg under the desk and one leg in front of the patient. He would take the patient's temperature with the aid of a thermometer in the patient's right ear and would conduct a throat examination with the aid of a spatula if the patient was young or if there was difficulty in viewing the throat.
At the hearing, Dr Jamnagarwalla produced a thermometer of the type he used in the consultation with Patient A. He demonstrated how he would hold that instrument. His right hand gripped the handle and his thumb was on a button used to record the temperature. Dr Jamnagarwalla is right handed. He held the thermometer vertically.
Dr Jamnagarwalla stated that while still seated he would conduct an ear examination with the aid of an otoscope. Dr Jamnagarwalla stated that his left leg would remain under his desk, inside the desk leg and his right leg would be in front of the patient. The otoscope would be in his right hand and that he would examine the right ear first as it is closest to him. Dr Jamnagarwalla demonstrated how he would hold an otoscope. He held it in his right hand and used his thumb at the back to click on the light. To examine the left ear, Dr Jamnagarwalla would normally tell the patient to rotate so that the left ear is pointed forwards and towards him. He would use his left hand to hold the patient's ear in order to manipulate up and down to get a better view. Dr Jamnagarwalla would remain seated during the examination with his legs in the same position.
After examining both ears, Dr Jamnagarwalla would usually feel the patient's cervical lymph nodes and then proceed with a chest examination. In the case of Patient A, Dr Jamnagarwalla stated he did not conduct a thorough chest examination as this was not the primary complaint.

[29]

What was Dr Jamnagarwalla doing with his other hand when using the instruments?

Patient A's evidence was that when examining her ear with an otoscope, Dr Jamnagarwalla's other hand was on her bare upper thigh. She denied that he had his other hand on the rim or perimeter of her ear at the time. Patient A agreed that Dr Jamnagarwalla held the rim of her ear with his other hand when examining her right ear, but not when examining her left ear. However, when pressed, Patient A agreed that she had forgotten or was confused as to what he was doing with his hands, saying that the incident took place four years ago and her recollection could be foggy. Patient A agreed that Dr Jamnagarwalla had to lean in close to check the temperature in her ear and examine her throat. As we have set out above, Patient A referred to a thermometer, rather than an otoscope, when asked by the Commission's investigators how long Dr Jamnagarwalla had his left hand on her thigh.
When asked in the Tribunal hearing whether Dr Jamnagarwalla was checking her ear with a thermometer, Patient A said, 'Yes, not the ear checking thing'. Ultimately, Patient A agreed that Dr Jamnagarwalla had placed his hand on her thigh while he was using a thermometer to check her temperature in both ears. Person A said she does not recall whether Dr Jamnagarwalla took Patient A's temperature. Person A admitted that she could not remember many of the details of the consultation, including in which hand Dr Jamnagarwalla was holding any of the instruments or whether he was holding Patient A's ear with his other hand when using the otoscope.
Dr Lilienthal's opinion was that it is "impossible to examine a patient's ear canals using one hand", however if Dr Jamnagarwalla did place his hand on Patient A's bare upper thigh while examining her ear, that conduct would amount to unsatisfactory professional conduct: Importantly, when examining a patient with an otoscope, also known as an auroscope, it is necessary for a practitioner to use both hands simultaneously. The ear canal is not a straight passage but has a bend in it. this bend is convex anteriorly, i.e. towards the patient's face. To successfully examine a patient's ear canal and the ear drum at the end of the canal, the practitioner needs to insert the instrument into the ear canal while holding it in one hand, and simultaneously straighten the ear canal by pulling the ear backwards, i.e. towards the back of the patient's head, using their other hand to do this. Drawing the ear backwards, straightens the ear canal, diminishing the angle of the bend and enables the examiner to see the patient's ear canal and drum without obstruction. This manoeuvre is repeated when examining the patient's other ear with tile practitioner usually changing hands so that the instrument is held in the opposite hand and the patient's ear is pulled backwards with the other hand. It is impossible to examine a patient's ear canals using one hand. The examination of a patient's ear takes less than five seconds. Sometimes practitioners move around the patient to examine each ear in turn, but it is not inappropriate to lean over a seated patient when examining their ears. We usually ask or indicate that the patient turn their head toward or away from the otoscope when moving from one ear to the other. It therefore seems difficult to conceive how Dr Jamnagarwalla could have placed one hand on any part of the patient while examining her ears. I note that Dr Jamnagarwalla denies these allegations. If Dr Jamnagarwalla did touch the Patient A's thigh as alleged, I would agree that this would constitute " Unsatisfactory Professional conduct". (Emphasis added.)
When examining a patient's ear with an otoscope, Dr Young's opinion was that Dr Jamnagarwalla's description of a two-handed technique accords with standard practice. Typically, a doctor would hold the pinna of the ear with one hand and the otoscope with the other hand. However, he disagreed with Dr Lilienthal that it would be "impossible" to perform an otoscopic examination one handed. It is feasible for a doctor to perform that examination one handed, with practice. In his view, the alleged conduct fell significantly below the relevant standard and invites his strong criticism.
Just because it would not be clinically correct to use an otoscope with one hand, that does not mean that Dr Jamnagarwalla did not do so. We agree with Dr Young's evidence that it is possible to examine a patient's ear with one hand using an otoscope. He demonstrated that when examining a patient's ear he would hold it vertically, gripping the handle with his right hand and with his right thumb on the light switch and using his right eye to view the ear canal. He would swap hands when examining the left ear. Dr Jamnagarwalla's view that it is simply not possible to conduct an otoscopic examination of the ear canal is not correct. While a one-handed examination is not the usual technique and the view obtained may be suboptimal, it is a plausible method to perform an inspection of the outer ear.

[31]

Does the proven conduct, in Proceedings 1, Complaint 1, Particulars 1 and 2, either individually or in combination amount to "inappropriate behaviour of a sexual nature" towards Patient A and /or Person A?

A code or guideline, approved by a National Board, is admissible as evidence of what constitutes appropriate professional conduct or practice for the health profession: National Law, s 41. At the time of the consultation with Patient A in November 2018, one relevant guideline was the Medical Board of Australia's publication 'Sexual Boundaries: Guidelines for doctors,' October 2011. That document defines "sexualised behaviour" as including "any words or actions that might reasonably be interpreted as being designed or intended to arouse sexual desire". Dr Jamnagarwalla challenged the categorisation of the impugned conduct as sexual in nature.
Whether the conduct engaged in by Dr Jamnagarwalla is inappropriate conduct of a sexual nature towards Patient A is a question of fact. We have found that Dr Jamnagarwalla touched a 12-year-old girl on her bare upper thigh, about 12cm from her vagina, for up to eight seconds, with no clinical or other innocent reason for doing so. He also inappropriately stared at the bare legs of Patient A and Person A and attempted to look up the skirt of Person A. It is not necessary for the Commission to prove that Dr Jamnagarwalla was motivated by sexual gratification or that these actions were intended to arouse sexual desire for the actions to amount to inappropriate behaviour of a sexual nature. As Britton DP said in Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 at [176] - [180]. at [176]: In short, a person may behave in an apparently sexualised way towards another for a variety of reasons. … The ulterior motive for doing so is irrelevant. If conduct is self-evidently sexualised due to the combination of the act and the circumstances, it adds nothing to probe or speculate about the inner workings of the mind of the actor.
Individually this conduct amounts to inappropriate behaviour of a sexual nature towards Patient A and Person A. The Sexual Boundaries Guidelines are complemented by the Good Medical Practice: A Code of Conduct for Doctors in Australia, Medical Board of Australia. These documents explain that breaching sexual boundaries is always unethical and usually harmful. Patients place their trust in doctors and have a right to expect that examinations and treatment will only be undertaken in their best interests. The conduct is significantly below the relevant standard and unethical. We find this particular to have been proven.

[32]

Proceedings 1, Complaint 2 - professional misconduct

The issue is whether the proven particulars in Proceedings 1, Complaint 1, individually or in combination, justify a finding of professional misconduct. The test for professional misconduct is whether Dr Jamnagarwalla's "unsatisfactory professional conduct" is "of a sufficiently serious nature to justify suspension or cancellation of his registration". Basten JA explained the concept of professional misconduct in Health Care Complaints Commission v Chen (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome."
The following points are taken from the cases of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200; Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18]-[ 24] and Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3: 1. the essential task in determining whether relevant conduct is professional misconduct is a characterisation of it; 2. the characterisation requires a focus on the nature of the conduct in terms of its seriousness and not its consequences; 3. the seriousness of unsatisfactory professional conduct depends on the extent to which it departs from proper standards, though additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public; 4. characterisation of conduct is not to be determined by working backwards from a view that the Tribunal does or does not ultimately wish to suspend or cancel a Respondent's registration. Rather, the characterisation of the conduct must come first; 5. to constitute professional misconduct, the relevant conduct must be found to have the capacity to justify an order for suspension or cancellation of registration though that does not necessarily mean that such an order should be made in a particular case; and 6. "misconduct in a professional respect" (although that language is no longer used under s 139E of the National Law) means conduct that incurs the strong reprobation of colleagues of good repute and competence. 7. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWCA 264 the Court made the following observations which are particularly relevant: "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe."
Dr Lilienthal's opinion is that this conduct does not amount to professional misconduct: I do not believe that the alleged behaviour described above, if proven to have taken place, is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. I believe there are other sanctions or conditions of practice that could be imposed on such a practitioner that would both protect the public from further abuse and still allow an experienced doctor to provide a limited service to the community.
Part of Dr Young's report where he expresses a view as to this question, has been redacted following an objection from Dr Jamnagarwalla. His conclusion is that this conduct is significantly below the relevant standard and invites his strong criticism. Dr Jamnagarwalla says that Dr Young's opinion does not ground a finding of professional misconduct because his reasoning is not exposed. However, we note that Dr Jamnagarwalla did not object to the balance of the report being tendered. A bare conclusion without reasoning is not of great assistance to the Tribunal but we are not bound by the opinions of expert witnesses. We can form our own view of the conduct and its seriousness. That is particularly so where, as here, the complaint is not a technical clinical complaint but one of inappropriate physical touching and other boundary crossing conduct.
Patient A was a child of 12 at the time of this incident and Person A was only 17 years old. Apart from their young age, both were in an extremely vulnerable situation because they were on their own, with no adult present apart from Dr Jamnagarwalla. Because her complaint was an earache, Dr Jamnagarwalla needed to get close to Patient A to take her temperature and to examine her ears. As we have found, both the act of placing his hand on Patient A's bare upper thigh about 12cm from her vagina and staring at her bare legs, is conduct of a sexual nature. Similarly, staring at Person A's bare legs and attempting to look up her dress is also conduct of a sexual nature.
The touching of the bare upper thigh continued for a number of seconds and the staring at bare legs was intermittent. The behaviour is unethical and significantly below the relevant standard. What makes it even more serious is that both Patient A and Person A were under 18 years old and on their own. The conduct incurs our strong reprobation.
Individually, the proven particular of Complaint 1, Particular 2, is serious enough to justify suspension or cancellation of Dr Jamnagarwalla's registration. Even if that is not correct, the proven Particulars in Complaint 1, Particulars 1 and 2, in combination, are serious enough to justify suspension or cancellation of Dr Jamnagarwalla's registration. Complaint One, Particular 2 is proven.

[34]

Particulars of the complaints and Dr Jamnagarwalla's Reply

It is alleged that Dr Jamnagarwalla consulted and/or treated 29 female patients (some on more than one occasion) in breach of the conditions on his registration. It is accepted that Dr Jamnagarwalla treated one patient, Patient A, in an emergency but did not notify the Medical Council as required by the conditions. The relevant particulars in full are set out below: The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(c) of the National Law in that the practitioner has contravened a condition to which the practitioner's registration was subject. 1. On 24 January 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient A; b) he examined Patient A; c) he treated Patient A by taking a history and prescribing medication; d) Patient A was female; e) the respondent did not notify the Council within 24 hours. The Respondent admits this particular. 2. On 17 October 2019 the respondent contravened condition 1 in circumstances where: a) he consulted Patient B; b) he treated Patient B by issuing a prescription; c) Patient B was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient B on 17 October 2019 but otherwise admits this particular. 3. On 30 October 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient B; b) he treated Patient B by taking a history and issuing a specialist referral letter; c) Patient B was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient B on 30 October 2019 but otherwise admits this particular. 4. On 31 October 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient B; b) he treated Patient B by taking a history and issuing a specialist referral letter; c) Patient B was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient B and took a history on 31 October 2019. The Respondent otherwise admits this particular. On 14 March 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient C; b) he treated Patient C by issuing a prescription; c) Patient C was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient C on 14 March 2019 but otherwise admits this particular. 6. On 13 June 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient D; b) he treated Patient D by issuing a prescription; c) Patient D was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient D on 13 June 2019 but otherwise admits this particular. 7. On 15 July 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient E; b) he treated Patient E by issuing a prescription; c) Patient E was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient E on 15 July 2019 but otherwise admits this particular. 8. On 18 August 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient F; b) he treated Patient F by issuing a prescription; c) Patient F was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient F on 18 August 2019 but otherwise admits this particular. 9. On 27 January 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient G; b) he treated Patient G by issuing a prescription; c) Patient G was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient G on 27 January 2019 but otherwise admits this particular. 10. On 3 February 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient H; b) he treated Patient H by issuing two prescriptions; c) Patient H was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient H on 3 February 2019 but otherwise admits this particular. 11. On 5 April 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient I; b) he treated Patient I by issuing a prescription; c) Patient I was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient I on 5 April 2019 but otherwise admits this particular. 12. On 30 May 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient J; b) he treated Patient J by issuing two prescriptions; c) Patient J was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient J on 30 May 2019 but otherwise admits this particular. 13. On 14 May 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient K; b) he treated Patient K by issuing a prescription and assessing body mass index (BMI); c) Patient K was female; d) the respondent was not providing an emergency medical service. The Respondent admits this particular. 14. On 11 June 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient K; b) he treated Patient K by ordering pathology testing and issuing a prescription; c) Patient K was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient K on 11 June 2019 but otherwise admit this particular. 15. On 12 June 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient K; b) he treated Patient K by issuing a prescription and assessing body mass index (BMI); c) Patient K was female; d) the respondent was not providing an emergency medical service. The Respondent denies particulars a) and b). The Respondent admits particulars c) and d). 16. On 16 July 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient L; b) he treated by issuing a prescription; c) Patient L was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient L on 16 July 2019 but otherwise admits this particular. 17. On 29 September 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient M; b) he treated Patient M by issuing a prescription and a medical certificate; c) Patient M was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient M on 29 September 2019 but otherwise admits this particular. 18. On 2 October 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient N; b) he treated Patient N by issuing two prescriptions; c) Patient N was female; d) the respondent was not providing an emergency medical service. The Respondent admits this particular. 19. On 30 January 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient O; b) he treated Patient O by issuing three prescriptions; c) Patient O was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient O on 30 January 2019 but otherwise admits this particular. 20. On 12 August 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient P; b) he treated by issuing a prescription; c) Patient P was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient P on 12 August 2019 but otherwise admit this particular. 21. On 7 July 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient Q; b) he treated Patient Q by issuing a prescription; c) Patient Q was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient Q on 7 July 2019 but otherwise admits this particular. 22. On 17 May 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient R; b) he treated by issuing two prescriptions; c) Patient R was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient R on 17 May 2019 but otherwise admits this particular. 24. On 25 January 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient T; b) he treated Patient T by issuing a prescription; c) Patient T was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient T on 25 January 2019 but otherwise admits this particular. 25. On 22 March 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient U; b) he treated Patient U by issuing a prescription; c) Patient U was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient U on 22 March 2019 but otherwise admits this particular. 26. On 1 May 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient V; b) he treated Patient V by issuing a prescription; c) Patient V was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient V on 1 May 2019 but otherwise admits this particular. 27. On 19 September 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient W; b) he treated Patient W by issuing a prescription; c) Patient W was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted with Patient W on 19 September 2019 but otherwise admits this particular. 28. On 24 September 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient X; b) he treated Patient X by issuing a prescription; c) Patient X was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient X on 24 September 2019 but otherwise admits this particular. 29. On 16 May 2019, the respondent contravened condition 1 in circumstances where: a) he consulted Patient Y; b) he treated Patient Y by issuing a prescription; c) Patient Y was female; d) the respondent was not providing an emergency medical service. The Respondent denies that he consulted Patient Y on 16 May 2019 but otherwise admits this particular. 30. The conduct in any of the particulars to Complaint One is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct.
For Proceedings 3, Complaint 1, the particulars relating to the alleged breach of the conditions are as follows: 1. On 20 October 2019, the respondent contravened condition 1 in circumstances where: a. he consulted Patient AA; b. he treated Patient AA by issuing a prescription; c. Patient AA was female; d. the respondent was not providing an emergency medical service; e. the respondent did not notify the Council within 24 hours. The Respondent denies particular a. The Respondent admits sub-particulars b, c and d. In relation to particular e, the Respondent admits that he did not notify the Council within 24 hours but denies that he contravened condition 1 by not doing so. 2.On 20 October 2019, the respondent contravened condition 1 in circumstances where: a. he consulted Patient Z and conducted an examination; b. he treated Patient Z by issuing a prescription; c. Patient Z was female; d. the respondent was not providing an emergency medical service; e. the respondent did not notify the Council within 24 hours. The Respondent admits sub-particulars a, b, c and d. In relation to particular e, the Respondent admits that he did not notify the Council within 24 hours but denies that he contravened condition 1 by not doing so. 3.On 21 October 2019, the respondent contravened condition 1 in circumstances where: a. he consulted Patient W; b. he treated Patient W by issuing a prescription; c. Patient W was female; d. the respondent was not providing an emergency medical service; e. the respondent did not notify the Council within 24 hours. The Respondent denies sub-particular a. The Respondent admits sub-particulars b, c, and d. In relation to particular e, the Respondent admits that he did not notify the Council within 24 hours but denies that he contravened condition 1 by not doing so. 4.On 22 October 2019, the respondent contravened condition 1 in circumstances where: a. he consulted Patient AB; b. he treated Patient AB by issuing a prescription; c. Patient AB was female; d. the respondent was not providing an emergency medical service; e. the respondent did not notify the Council within 24 hours. The Respondent denies sub-particular a. The Respondent admits sub-particulars b, c, and d. In relation to particular e, the Respondent admits that he did not notify the Council within 24 hours but denies that he contravened condition 1 by not doing so. 5.On 24 October 2019, the respondent contravened condition 1 in circumstances where: a. he consulted Patient AC; b. he treated Patient AC by issuing a prescription; c. Patient AC was female; d. the respondent was not providing an emergency medical service; e. the respondent did not notify the Council within 24 hours. The Respondent denies sub-particular a. The Respondent admits sub-particulars b, c, and d. In relation to particular e, the Respondent admits that he did not notify the Council within 24 hours but denies that he contravened condition 1 by not doing so. 6.The conduct in any of the particulars to Complaint One is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct.

[37]

Patient B

Particulars 2, 3 and 4 concern three consultations with Patient B. On 17 October 2019, Dr Jamnagarwalla consulted Patient B and treated her by issuing a prescription. On 30 October 2019, Dr Jamnagarwalla consulted Patient B by taking a history and issuing a specialist referral letter. On 31 October 2019, Dr Jamnagarwalla consulted Patient B and treated her by issuing a specialist referral letter.
In his statement of 12 August 2021, Dr Jamnagarwalla said the following about Patient B: Patient B was one of my regular patients when I was still seeing female patients. Patient B usually attended to see me at least every fortnight. Patient B had a history of Ehlers Danlos syndrome, Sjogren's syndrome, lactose intolerance, chronic pain and colon polyps. On 17 October 2019, I wrote a prescription for Doxycycline SR Capsules 100mg, one daily for Patient B (HCCC records page 8) for her recurring sinus infections. I did not see Patient B on 17 October 2019. Patient B's husband attended a consultation with me that day and he requested a prescription for Patient B for her ongoing sinus issues. On 30 October 2019, Patient B's son attended a consultation with me. During the consultation, Patient B's son advised me that Patient B needed a referral to an ENT surgeon. I prepared a referral for Patient B to Dr Nirmal Patel, ENT surgeon in relation to her history of a sore throat and hoarseness of voice for a few months (HCCC records page 433). I did not see Patient B on this date. On 31 October 2019, I prepared a referral for Patient B to A/Professor Leo Pang, ENT surgeon, in relation to her history of a sore throat and hoarseness of voice for a few months (HCCC records page 435). I cannot now recall why I prepared a second referral for Patient B to a different ENT surgeon. I note that A/Prof Pang works in the same practice as Dr Patel. I did not see Patient B on 31 October 2019, and I cannot now recall how I was advised of the need for a new referral. There is a notation in Patient B's medical records dated 31 October 2019, stating, "Results discussed with patient". I did not discuss any results with Patient B on this date. This entry is an error. It is possible that I entered "Results discussed" in the records instead of "Referral done". Before a patient's medical record can be closed, a reason must be entered. To enter "Referral done" my usual practice is to type the letters "Re" into the record. The software automatically populates a list of options, including "Results discussed" and "Referral done". It appears that I clicked on "Results discussed" in error.
Apart from the details of the script provided, a full stop is the only entry in Patient B's records for 17 October 2019. Dr Jamnagarwalla says that when he wrote the 12 August 2021 statement 9 months before this hearing, he had a clear recollection that Patient B's husband attended the consultation and that Patient B was not present. He says he did not speak to Patient B on that day.
Dr Jamnagarwalla now has no recollection of the consultation. He wrote the statement almost two years after the consultation but says he had been preparing it 'for a while'. We do not accept his evidence that he had a clear recollection of the consultation when he signed the statement and no recollection of it now. Rather, we are satisfied that Dr Jamnagarwalla has attempted to reconstruct events based on his clinical notes and his memory of how patients usually presented, for example, by themselves or with a partner or parent. Dr Jamnagarwalla acknowledged that it would have been a 'good idea' to make a record of whether Patient B attended or not. However, this particular does not allege that Patient B attended in person. It is sufficient for us to find that Dr Jamnagarwalla was in breach of the condition because he consulted and treated Patient B on 17 October 2019.
For the 30 October 2019 consultation with Patient B, Dr Jamnagarwalla recorded only that he had created and printed a specialist referral letter to Dr Nirmal Patel. Nothing is recorded under 'reasons for contact' except a full stop. On 31 October 2019, Dr Jamnagarwalla wrote in his notes "results discussed with patient" but says that there were no results to discuss and he must have clicked the wrong option on the computer. He issued a referral letter to another specialist, Assoc/Prof Leo Pang asking for a review for "sore throat and hoarseness of voice". Dr Jamnagarwalla says he did not see Patient B before writing either of the referral letters and cannot find any reference to a sore throat in Patient B's clinical notes.
Dr Jamnagarwalla says he knows Patient B's family well and remembers her adult son coming in with a note requesting a referral on 30 October 2019. He guesses that Patient B rang and asked for the referral letter to be changed to Assoc/Prof Leo Pang. Dr Jamnagarwalla admitted that he could not remember why he wrote "sore throat and hoarseness of voice" on the referral letter. He agreed that he probably did not include as much accurate clinical information as he could have. These admissions are examples of Dr Jamnagarwalla's poor record keeping, which we address further below.
We find that Dr Jamnagarwalla consulted and treated Patient B on 17 October 2019, 30 October 2019 and 31 October 2019. In doing so, he was in breach of the condition. We find the factual basis of these particulars to have been proven.

[38]

Patient C

On 14 March 2019, Dr Jamnagarwalla consulted Patient C and treated her by issuing a prescription. Nothing is recorded in the clinical notes under 'history', 'examination' or 'plan'. Dr Jamnagarwalla states that Patient C was not his regular patient and that she has asthma. He says that on 14 March 2019 she brought her son in for a consultation and that she requested a prescription for her regular asthma medication. Dr Jamnagarwalla wrote a script.
In oral evidence, Dr Jamnagarwalla first said that he was sure he did not see Patient C on 14 March 2019. He then said that he could not remember if she was present. When asked why he wrote in his statement that he had seen Patient C, Dr Jamnagarwalla shrugged his shoulders and said it must have been a mistake. He now admits that he did "consult" Patient C despite denying that allegation in his Reply. Dr Jamnagarwalla agreed that in March 2019 he thought that the question of whether writing scripts for a patient who was not present was a consultation, was a 'grey area' or 'uncertain'. He also agreed that he did not attempt to clarify any uncertainty with his solicitors or his insurer and that in hindsight he was providing a "consultation", but not a very good one. In his words, he "wavered on the side of the patient".
Dr Jamnagarwalla agrees that the information he provided to the Medical Council about the circumstances in which various scripts were written was incomplete or inconsistent with what he has told the Tribunal. These gaps and discrepancies are not specified in the complaint but affect Dr Jamnagarwalla's credibility. For example, for Patient C, Dr Jamnagarwalla told the Medical Council that he provided the script to Patient C's husband. In his statement to the Tribunal, Dr Jamnagarwalla wrote that Patient C brought her son in for a consultation and that it was during that consultation that Patient C requested a prescription for herself. When giving oral evidence Dr Jamnagarwalla conceded that he did not know who was at the appointment on 14 March 2019. In his words, he was "looking for an explanation". He gave the impression that he had an independent recollection of this consultation when he did not. He surmised as to who may have been present at the consultation. Despite his denial, we are satisfied that Dr Jamnagarwalla knew he had breached the conditions when responding to the Medical Council's letter.
Whether or not Patient C was present when Dr Jamnagarwalla wrote the script, he breached the condition on his registration by consulting and treating Patient C. The factual basis of this particular has been proven.

[41]

Patient F

On 18 August 2019, Dr Jamnagarwalla consulted Patient F and treated her by issuing a prescription. Patient F was a regular patient who had Hashimoto's disease for which she takes regular medication. In his statement, Dr Jamnagarwalla says that Patient F attended the consultation, which related to her son, but during that consultation, she requested a prescription for her usual thyroid medication. The reason for contact is recorded as 'script'. When questioned, Dr Jamnagarwalla admitted that he could not remember whether Patient F attended with her son or not, nor could he remember whether he discussed Patient F's history before prescribing the medication. Dr Jamnagarwalla denied that he knew that he was in breach of the conditions on his registration. He conceded that his understanding of the conditions fell into the same grey area of uncertainty that he had mentioned earlier in his evidence.
We find the factual basis for this particular to have been proven.
Dr Jamnagarwalla was asked some other questions relating to consultations with Patient F that are not particularised in the complaint but which go to his credit. On 29 May 2019, the clinical notes record that Patient F attended for a 'Flu Vaccine'. No other details are recorded. Dr Jamnagarwalla cannot recall whether he administered the vaccination.
An entry for 19 March 2019 records: "increased Thyroxine to one daily, repeat in six weeks". Dr Jamnagarwalla also referred Patient F for blood tests on that day. Dr Jamnagarwalla is not sure whether Patient F was present on 19 March 2019. He denied that it was his usual practice to change the dose of medication without taking a history. He then conceded that it was "possible" that Patient F attended on that day and thought that this was the same 'grey area' that he had mentioned in his previous evidence. Finally, an attendance is recorded for 23 January 2019 when Dr Jamnagarwalla referred Patient F to a radiologist. Dr Jamnagarwalla has no independent recollection of the circumstances in which that referral occurred.
For Patient F, Dr Jamnagarwalla wrote, "ongoing script provided" in his response to the Medical Council. In his statement, Dr Jamnagarwalla wrote that Patient F attended on 18 August in relation to her son. When it was put to him that he was not taking the conditions seriously, Dr Jamnagarwalla said, "You could put it that way" but added that he was taking them seriously, it was just that he did not think there was a problem.

[46]

Patient K

There are three consultations relating to Patient K: 14 May 2019, 11 June 2019 and 12 June 2019. On 14 May 2019, Dr Jamnagarwalla consulted and treated Patient K by assessing her body mass index (BMI) and issuing a prescription for Duromine. On 11 June 2019, Dr Jamnagarwalla treated Patient K by ordering pathology testing and on 12 June 2019, he issued a script.
In his statement of 12 August 2021, Dr Jamnagarwalla says: Patient K was one of my regular patients when I was still seeing female patients. She attended consultations with me usually at least once a month. Patient K had a history of hypothyroidism and had had a total thyroidectomy. Patient K took Eltroxin daily. On 14 May 2014, Patient K attended to see me in relation to her son. During the consultation, Patient K asked for a repeat prescription for herself for Duromine. I asked Patient K whether she was having any side effects from the Duromine, but I did not record this information in her medical records. I asked Patient K to see the practice nurse to record her biometrics. I cannot now recall but it appears the practice nurse rang me to advise me of Patient K's biometrics. I recorded Patient K's BMI, her height and her weight in her medical records. It appears the practice nurse also recorded these details in Patient K's records, under my name, as there are two entries in Patient K's records recording this information. At that time, the nursing staff at the practice did not have their own log in to access patients' medical records in Med Tech and they needed to use a doctor's log in details to enter information in the records. I wrote a prescription for Duromine Modified release capsules 30mg for Patient K. On 11 June 2019, Patient K attended to see me in relation to her son. Patient K's husband was also present for the consultation. I thought Patient K's son most likely had influenza and I referred him for pathology on a throat swab. I prescribed antibiotics for Patient K's son. Following my consultation with Patient K's son, I noticed Patient K, her husband and son were still sitting in the waiting room. I asked Patient K why they were there, and she told me that she had a severe headache. Patient K told me she was taking antibiotics. I felt sorry for Patient K and thought it likely she also had influenza. I wrote a prescription for Panadeine Forte Tablets 500mg/30mg for Patient K and I prepared a pathology form for throat swabs for her. I recorded details of the prescriptions I wrote for Patient K and the pathology referral in the medical records. On 12 June 2019, one of the practice staff informed me that Patient K had called the practice requesting a call back. I returned Patient K's call. Patient K asked me if her pathology results were available. She advised me that she still had a headache and aches and pains. Patient K's throat swab results were available and were positive for Influenza A and B. I advised Patient K of the swab results. I advised Patient K to cease taking antibiotics. I wrote prescriptions for Patient K for Zofran Zydis Wafers 8mg and Tamiflu Capsules 75mg, which I left with the practice receptionist to be collected.
For the consultation on 14 May 2019, Dr Jamnagarwalla is now, 'not 100% sure' that Patient K attended in person. He added that he thought he had a consultation with her son that day, but cannot remember what it was about. Dr Jamnagarwalla thinks that he asked the practice nurse to measure Patient K's BMI. He said that because his "scales are often out or time pressures" he needs to speed up the process. Dr Jamnagarwalla agrees that Patient K must have been present for her BMI to be recorded.
Dr Jamnagarwalla fully admits this particular in his Reply. When asked whether he knew at the time he prepared his statement that the 14 May 2019 attendance was a consultation, Dr Jamnagarwalla did not agree or disagree. Instead, he said he had nothing to say about that issue.
Dr Jamnagarwalla has no recollection of this consultation. His statement is based on what is in the clinical notes and the fact that he billed Medicare for a consultation with Patient K's son on 14 May. He has added details which he perceives to be in his favour, such as that he asked her questions about side effects. While we do not need to be satisfied that Patient K attended in person, in order to find the complaint proven, we are satisfied that she did.
A second appointment relating to Patient K took place on 11 June 2019. No information is recorded under the headings 'history', 'examination' or 'plan'. Dr Jamnagarwalla says he remembers this consultation and stands by the version in his statement set out above. For the consultation on 12 June 2019, Dr Jamnagarwalla says he returned Patient K's phone call, rather than referring her to another doctor, because he thought it was his responsibility to do so. Dr Jamnagarwalla denies that he knew when he spoke with Patient K on the phone that it was a consultation. He repeated that it was a "grey area" and he was "veering towards the patient's side".
Not only did Dr Jamnagarwalla write repeat prescription at the request of certain patients, he prescribed new medication for Patient K. Dr Jamnagarwalla insisted that he was taking the conditions seriously, however it is apparent from the circumstances and his own evidence that he was not.
We find the factual basis of this complaint to have been proven.

[50]

Patient O

On 30 January 2019, Dr Jamnagarwalla consulted Patient O and treated her by issuing three prescriptions. In his 12 August 2021 statement, Dr Jamnagarwalla says; Patient O was my regular patient when I was still seeing female patients. Patient O attended consultations, usually with her mother, at least every month. Patient O had cerebral palsy. She had had a gastrostomy and fundoplication and suffered from recurrent pneumonia and seizures. Patient O is wheelchair bound and is non-verbal. On 30 January 2019, I wrote prescriptions for Patient O for Amoxicillin and Clavulanic Carbamazepine 100mg/5ml Oral Liquid. I cannot now recall the reason I prescribed Amoxicillin, however, it is my usual practice to prescribe this antibiotic for a patient suffering from an Upper Respiratory Tract Infection. The Carbamazepine was prescribed for management of Patient O's seizures. I did not see Patient O on this date. Patient O's mother rang the practice and spoke to me by phone. She requested prescriptions for Patient O. I left the required prescriptions at the reception desk for collection by Patient O's mother. I reviewed Patient O's medical records before writing the prescriptions. I made a note in the records that scripts had been provided, but I did not record details of the prescriptions.
The clinical notes for this date record nothing except "patient not present" and "scripts given to patient". There is no record of which scripts were given. Dr Jamnagarwalla says he cannot explain that omission or why the scripts are not recorded. He says it is possible that Patient O's mother told him that Patient O had a URTI.
In the clinical notes for Patient O for 15 November 2018 (2 months before the conditions were imposed on Dr Jamnagarwalla's registration) a detailed history is recorded. Dr Jamnagarwalla agreed that he stopped recording that kind of information in the clinical notes of female patients after the conditions were imposed and that that was poor clinical practice. As we find below, it was also in breach of the record keeping requirements.
We find the factual basis of this particular to have been proven.

[52]

Patient Q

On 7 July 2019, Dr Jamnagarwalla consulted Patient Q and treated her by issuing a prescription. Dr Jamnagarwalla denies that he consulted Patient Q on 7 July 2019 but otherwise admits this particular. In evidence, he accepted that he was treating Patient Q.
Dr Jamnagarwalla says he has a "fairly clear" recollection of this consultation and he did not see Patient Q on that date. Rather, he spoke to Patient Q's father and mother by phone. Dr Jamnagarwalla recorded details under the headings "history", "examination", "plan" and "actions" in Patient Q's medical records. Under the heading 'examination', Dr Jamnagarwalla recorded the following: "afebrile Cong nostrils chest clear abd full++" This was intended to convey that Patient Q did not have a fever, her nostrils were congested, and she had a clear chest and a very full abdomen. The parents' account of Patient Q's symptoms were said to be the source of the information he recorded in his notes. His plan was to check her stools and prescribe medication. He prescribed Avamys Nasal spray 27.5mcg/1 120 dose, OsmoLax Powder for oral solution 1g/1g 10g and Singulair Chewable tablets 5mg for Patient Q. He also prepared a pathology form for Faeces MCS + OCP + PCR. The pathology referral he prepared for Patient Q, and the prescriptions he wrote, were left at reception for collection. Patient Q's pathology results showed she had Dientamoeba.
Dr Jamnagarwalla made a further entry in Patient Q's notes on 17 July 2019. On that date, he wrote a prescription for Metronidazole suspension 200mg/5mL 5 mls 3 times a day. He did not see Patient Q on this date. He says he rang Patient Q's father and informed him of the pathology result and the prescription he had written.
Dr Jamnagarwalla could not give a reason for failing to refer Patient Q to another doctor and acknowledges that he should have done so. He said he found it difficult to tell the parents that he could not treat their child. Dr Jamnagarwalla said he now understands that he took a "short cut" and the result was a "poor consultation".
Dr Jamnagarwalla denied that the detail he recorded in Patient Q's clinical notes was inconsistent with other records where he did not record anything apart from the medication he had prescribed.
We find the factual basis of this particular to have been proven.

[55]

Patient U

On 22 March 2019, Dr Jamnagarwalla consulted Patient U and treated her by issuing a prescription. Dr Jamnagarwalla denies that he consulted Patient U on 22 March 2019 but otherwise admits this particular.
In his statement, Dr Jamnagarwalla writes that on 22 March 2019, Patient U's father and her brother attended a consultation with him. Patient U, who was 8 years old at the time, was not there. When questioned, Dr Jamnagarwalla said he could not recall the consultation but Patient U never came to see him in person after the condition was imposed.
During the consultation, Patient U's father asked for a prescription for Patient U. The clinical notes record that Dr Jamnagarwalla prescribed Amoxycillin Sandoz Powder for oral suspension 250mg.5mL 100 mL and 10 -Augmentin Duo Forte Tablets 875mg/125mg. There are no other details recorded in the notes for that day. In further evidence in chief, Dr Jamnagarwalla deleted the words in italics above from his statement. He says he would not have prescribed two different antibiotics. The Augmentin Duo Forte Tablets are for adults, not children. According to Dr Jamnagarwalla, he must have made a mistake in recording that he had prescribed that medication to Patient U. He does not recall the consultation or why he prescribed antibiotics.
Patient U's father also requested a referral to an ophthalmologist for Patient U for ongoing review of astigmatism. Dr Jamnagarwalla wrote a referral without examining Patient U and assumed that Patient U's father must have told him that his daughter had a 'lazy eye'.
Dr Jamnagarwalla was questioned about consultations he had with Patient U which are not particularised in the complaint. We allowed those questions to be asked and will take the answers into account to the extent they affect Dr Jamnagarwalla's credibility.
On 20 March 2019, Dr Jamnagarwalla wrote a medical certificate for Patient U in which he wrote: This is to certify that I have examined [Patient U] on 20 March 2019. [Patient U] will be unfit for school from 18 March 2019 to 21 March 2019 inclusive.
Dr Jamnagarwalla did not examine Patient U and admits that the statement to the contrary in the certificate is false. He wrote the certificate at the request of Patient U's father even though he had not seen Patient U on 18 or 19 March 2019. Writing false certificates reflects adversely on Dr Jamnagarwalla's integrity. Examples such as this do not give us confidence that what Dr Jamnagarwalla writes, or what he says, is necessarily accurate.
We find the factual basis for this particular to have been proven.

[61]

Patient Z

On 20 October 2019, Dr Jamnagarwalla consulted Patient Z, conducted an examination and treated her by issuing a prescription. In his statement of 12 August 2021, Dr Jamnagarwalla says in relation to Patient Z: I saw Patient Z for the first time at a consultation on 20 October 2019. Patient Z was four years old at the time and was brought in by her parents. Patient Z had a cough and a slight fever. Patient Z did not have any rash. I recorded Patient Z's temperature, oxygen saturation and heart rate. I examined Patient Z's throat and auscultated her chest. I diagnosed Patient Z with croup and prescribed Redipred Oral Solution 5mg/mL 3.5mls od-2 days. I made an entry in Patient Z's medical records recording the above information. On 11 June 2020 I conducted a telehealth consultation with Patient Z's father regarding Patient Z. I cannot recall whether Patient Z was booked to see me or whether I conducted the consultation as the first available doctor. Prior to conducting a telehealth consultation, it is my usual practice to review relevant information in Pracsoft and Medical Director. I noted that Patient Z was recorded to be a male patient and I accordingly proceeded to telephone the number provided for the telehealth consultation. Patient Z's father answered my call. I confirmed Patient Z's date of birth and address and then proceeded with the consultation. Patient Z's father requested the patient's Covid test results. I reviewed Patient Z's records and noted that Patient Z had been referred for a Covid test by one of my colleagues on 8 June 2020. The test was negative for Covid. I discussed the result with Patient Z's father. I advised him that Patient Z had RSV. Patient Z's father told me Patient Z's symptoms were better. Patient Z had no shortness of breath but still had some cough and sniffles. Patient Z had no fever and had good intake. During my conversation with Patient Z's father, he made a comment along the lines of "she is doing much better" or referred to "her" symptoms. Following this comment, I asked Patient Z's father to confirm Patient Z's sex. I was advised that Patient Z was a female. I advised Patient Z's father to continue symptomatic treatment and to bring her in for a face-to-face consult if her symptoms were not improving. Following my telehealth consultation with Patient Z's father, I advised the practice manager that Patient Z's sex was incorrectly recorded as male in her medical records and asked that this be changed. Before the record was changed, I took a screenshot of the record identifying Patient A as male. I then telephoned my Avant solicitor to advise that I had inadvertently conducted a telehealth consultation with a female patient. My solicitor emailed a letter to the Medical Council the same day informing the Council of what had happened (HCCC documents Tab 2). I note the Patient Information Form (HCCC Documents Tab 25 page 269) records Patient Z as being female and the pathology report in relation to the Covid test result (HCCC tab 25 page 270) report refers to Patient Z as "Miss" and her sex as female. I did not notice these details on either of the occasions I treated Patient Z. I was reliant on the information recorded in Medical Director on both occasions
Dr Jamnagarwalla denied that he knew when he examined Patient Z on 15 April 2019 that she was a 4-year-old girl. He says he thought the child was male. Dr Jamnagarwalla gave evidence that as at June 2020, when he had a telehealth consultation with Patient Z, it was not his usual practice to look at the test results before talking to the patient by phone. Rather, it was his usual practice to telephone the patient and then open the file on the computer. When questioned about the credibility of that evidence, Dr Jamnagarwalla said he "nearly fell off his chair" when Patient Z's father referred to Patient Z using the pronoun "she".
We accept Dr Jamnagarwalla's evidence on this point. It is plausible that Dr Jamnagarwalla did not know that Patient Z was a girl until his father began referring to her as "she". That conclusion is supported by the fact that Dr Jamnagarwalla contacted his insurer soon after he became aware that Patient Z is a female.
Nevertheless, the factual basis of this particular has been proven.

[66]

Particulars and Dr Jamnagarwalla's response The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice of medicine. 1. On 16 June 2019, the respondent provided a false or misleading medical certificate regarding Patient B in circumstances where: a) the medical certificate contained the words, ''This is to certify that I have examined (Patient B) on 16 Jun 2019 and in my opinion she is suffering from chronic medical condition"; b) the respondent did not examine Patient B on 16 June 2019. Dr Jamnagarwalla admits this particular.

On 16 June 2019, Dr Jamnagarwalla provided a medical certificate regarding Patient B. The medical certificate contained the words, "This is to certify that I have examined [Patient B] on 16 Jun 2019 and in my opinion she is suffering from chronic medical condition". Dr Jamnagarwalla did not examine Patient B on 16 June 2019.
This is Dr Jamnagarwalla's account of the circumstances of this consultation: On 16 June 2019, Patient B's husband attended a consultation with me. During the consultation, Patient B's husband requested that I provide a medical certificate for Patient B to excuse her from jury duty. Patient B was not present at the time I saw her husband. I prepared a medical certificate for Patient B and gave it to her husband. I was satisfied that it was appropriate to provide the certificate for Patient B without seeing her, based on my knowledge of her medical conditions. Patient B had Ehlers Danlos syndrome, Sjogren's syndrome and suffered from chronic pain. At the time I prepared the medical certificate for Patient B, the practice was using MedTech software. When a medical certificate is generated using Med Tech, the software automatically includes the sentence "This is to certify that I have examined … on ….". If the medical practitioner preparing the certificate does not delete this sentence, it will remain in the certificate. Annexed and marked "C" is a blank medical certificate generated in MedTech. I did not examine Patient B on 16 June 2019, and I should have deleted the sentence in the medical certificate stating that I had. I acknowledge that I should not have provided a medical certificate for Patient B. The practice staff submitted a bill to Medicare for a consultation with Patient B on 16 June 2019 in my name. This bill should not have been submitted. Up until July 2019, the software we used at the Practice was Medtech. When a patient arrived for a consultation and was checked in by reception staff, Medtech automatically generated and printed a voucher for a standard short consultation, Medicare Item No. 23. The vouchers were retained by the reception staff. If the consultation involved something other than a standard short consultation, the practitioner corrected the voucher by hand. At the end of each day, reception staff reviewed the vouchers and entered any amendments made on the vouchers by the practitioner on Medtech and submitted the vouchers to Medicare. Since July 2019, billings are done using the practice management software, PracSoft. Following each consultation, practitioners enter the relevant Medicare Item number into PracSoft. At the end of each day reception staff generate vouchers for each practitioner, which are submitted to Medicare. I am unaware of how the Medicare voucher came to be generated for Patient B on 16 June 2019. It is possible that when Patient B's husband arrived for his consultation with me, he mentioned to reception staff that he also needed a Medical Certificate for Patient B, which may have resulted in the voucher being generated. I became aware that the bill had been submitted when I reviewed the material in Attachment 1 to the Council's letter to me dated 12 November 2019 (HCCC documents re 2021 complaint Tab 11). At that time, I asked the practice staff to arrange for a reimbursement to Medicare. There was a delay in the reimbursement being processed as the practice manager was away at the time. I did not think about the issue again until shortly prior to the s150 Inquiry held on 5 February 2020. I spoke directly to the practice manager at this time and she prepared a Refund Request Form, which I signed on 4 February 2020. (HCCC documents re 2021 Complaint, Tab 19 page 185).
Dr Jamnagarwalla says he recalls that Patient B was not present that day and that he signed a medical certificate and gave it to her husband. He agrees that despite the words "This is to certify that I have examined [Patient B] on 16 Jun 2019 . . .", he did not examine her. Consequently, that statement is false. We find the factual basis of this particular to have been proven.

[69]

Particulars of the complaint and Dr Jamnagarwalla's response: On 29 November 2019, the respondent made a false or misleading statement to the Council in circumstances where: a) on 12 November 2019, the practitioner received a letter from the Council attaching a document titled, "Attachment 2 - Medicare Compliance Review-· Prescribing (21 January to 18 October 2019)" containing a list of 76 patients; b) on 29 November 2019, the respondent provided a letter to the Council mentioning 24 of the 76 patients then stating, ''The remainder of the patients listed in Attachment 2 are male." c) the remainder of patients listed in Attachment 2 included the names of the following patients who are female: i. Patient G ii. Patient H iii. Patient I iv. Patient J v. Patient K vi. Patient L vii. Patient M viii. Patient N The Respondent admits this particular.

In his statement of 12 August 2021, Dr Jamnagarwalla provides the following response: I received a letter from the Council dated 12 November 2019 (HCCC documents Tab 11). In the letter, the Council advised that data provided to them from Medicare Australia indicated that I may have consulted, examined, treated or performed procedures on female patients during the period 21 January 2019 to 18 October 2019. A list of patients and Medicare data was attached to the Council's letter in two attachments. Attachment 1 was a list of fourteen patients, including patient details and Medicare data relating to services provided. Attachment 2 was a list of seventy-six prescriptions and Medicare data relating to those prescriptions, including patient details. I replied to the Council by letter dated 29 November 2019 (HCCC documents Tab 14). In relation to the fourteen patients in Attachment 1, I provided information in relation to four patients in this list. I advised that the remainder of the patients in this attachment were male patients. In relation to Attachment 2, I discussed twenty-four of the prescriptions listed in the attachment. I advised that in relation to the remaining prescriptions, the patients listed were male patients. I acknowledge that the information I provided to the Council in my letter dated 29 November 2019 was not correct. Some of the patients I had identified as being male patients were female patients. I was not intending to be deliberately misleading in the letter. I was careless and was rushing when I reviewed the Medicare data provided by the Council and did not pay sufficient attention to the patients' names in the lists provided. I think I may have quickly scanned the patient surnames and decided the patients were males. I was confident that I had not breached my conditions and accordingly skimmed through the list. 152. By way of explanation rather than an excuse, at around the time I received the letter from the Council and prepared my response, I was under significant stress in my personal life. My wife was the subject of longstanding criminal proceedings and over the months preceeding November 2019, discussions were being held as to whether the charges against her were to be the subject of a re-trial. My oldest brother was also very sick in Tanzania at around that time. He has diabetes and lost an eye due to retinal detachment. I am very close to my brother, he played a fatherly role to me and supported me during my university studies in Tanzania. I was very stressed about his health and was unable to visit him due to the case against my wife. It was a very stressful period in my life. At the time, I felt overwhelmed by the volume of material provided. I did not give enough attention to the letter from the Council and did not spend the time required to properly consider all the information provided in the annexures to the Council's letter. I now have a much better understanding of what I am required to do to comply with my conditions and I am committed to ensuring that I am strictly compliant with all conditions on my registration. I deeply regret breaching the conditions on my registration.

[70]

Findings as to the factual basis of the complaint

On 12 November 2019, Dr Jamnagarwalla received a letter from the Council telling him that they had reviewed data from Medicare Australia to monitor his compliance with the conditions on his registration. The Council attached two documents. Attachment 1 was a list of 14 occasions on which Dr Jamnagarwalla had charged for a consultation with a female patient between 21 January 2019 and 18 October 2019. Attachment 2 was headed "Attachment 2 - Medicare Compliance Review - Prescribing (21 January to 18 October 2019)". That document contained a list of 76 patients for whom Dr Jamnagarwalla had written prescriptions during the same period.
On 29 November 2019, Dr Jamnagarwalla provided a letter to the Council mentioning 24 of the 76 patients then stating, "The remainder of the patients listed in Attachment 2 are male." The remainder of patients listed in Attachment 2 included the names of eight patients who are female: Patients G, H, I, J, K, L, M and N.
As set out in the letter quoted above, Dr Jamnagarwalla acknowledges that the information he provided to Council on the 29 November 2019 was not correct. His explanation was essentially that he was careless and rushing when he reviewed the names of the patients. While Dr Jamnagarwalla says he went through the list patient by patient, the writing was small and the list was long. Dr Jamnagarwalla typed his response to the Medical Council himself and says he would have checked it. He says that he reviewed the records before providing a response but did not take enough care in preparing his response to the Council. He agreed that his response was 'superficial', he 'did not take it seriously' and that he was 'trying to get it out of (his) way'.
Many of the first names of the patients he said were male patients were typical female names. Dr Jamnagarwalla admits that his false statement to the Medical Council was a "gross mistake". We find that by stating that "the remainder of the patients listed in Attachment 2 are male", Dr Jamnagarwalla provided false and misleading information to the Medical Council. That was an obvious and significant mistake. He did not exercise reasonable care when making that response.

[73]

Particular of complaints and Dr Jamnagarwalla's response The practitioner is guilty of unsatisfactory professional conduct under section 1398(1)(b) of the National Law in that the practitioner has contravened a provision of the Regulations under the National Law. 1. On 17 October 2019, the respondent the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016 ("the Regulation"), in respect of his medical records for Patient B in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 1A. On 25 January 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient T in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 2. On 27 January 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient G in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 2A. On 30 January 2019, the practitioner contravened clause 6(1) and Schedule 4(1)of the Regulation, in respect of his medical records for Patient O in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 3. On 3 February 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient H in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 3A. On 14 March 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient C in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 4. On 5 April 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient I In that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 4A On 1 May 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient V in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 4B. On 16 May 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient Y in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 4C. On 17 May 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient R in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 5. On 30 May 2019, the practitioner contravened clause 6(1) -and Schedule 4(1) of the Regulation, in respect of his medical records for Patient J in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record ·any history, examination or plan. The Respondent admits this particular. 6. On 11 and 12 June 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient K in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 6A. On 15 July 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient E in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 7. On 16 July 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation. in respect of his medical records for Patient Lin that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 7A. On 18 August 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient F in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 7B. On 19 September 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient W in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 8. On 29 September 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient M in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular. 9. On 2 October 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient N in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. The Respondent admits this particular.

In his statement of 12 August 2021, Dr Jamnagarwalla provided the following response to these particulars: I acknowledge that my medical records for Patients B, C, E, F, G, H, I, J, K, L, M, N, O, R, T, V, W and Y are inadequate in that I did not record sufficient information in relation to each patient's diagnosis and treatment. On the occasions I wrote prescriptions for the above patients, as I did not consider I was conducting a consultation with the patients, I did not think I needed to record the information I would ordinarily include in the medical records. I acknowledge that writing a prescription or referral, or ordering pathology is treating a patient and should always involve taking a history and conducting any required examination and recording relevant information in the patient's medical records. On 11 May 2021, the Council conducted an audit of my medical records. The auditor concluded that my medical records are consistent with the required standards for good medical record keeping and demonstrate compliance with my conditions. The auditor gave my advice in relation to how I can improve the recording of family and social history. Annexed and marked "F" is a copy of the Council's Medical Record Audit Report dated 11 May 2021. As advised by the auditor, I am now recording more information in relation to patients' family histories and their social histories. Whenever an existing patient attends for a consultation, I check that the patient's family and social history is complete and up to date. For any new patients I ensure that I obtain and record full details in relation to the patient's family and social history. By letter dated 7 June 2021, the Council advised me that the decision had been made that a further audit of my medical records is required in twelve months. Annexed and marked "G" is a copy of the letter from the Council. At a practice meeting held in January 2021, we discussed issues raised in relation to medical records during the most recent practice accreditation. The need to improve the recording of patients' family histories was noted during the accreditation and at the practice meeting, we decided to conduct an internal audit, with doctors to review each other's records. This internal audit was conducted in late June/early July 2021. Each doctor in the practice reviewed ten records in relation to another doctor's patients. The doctor who reviewed my records advised that the recording of family histories was adequate in 70% of the records reviewed. I have completed an Avant on-line medical records course "On the record: medical records and documentation". Annexed and marked "H" is a certificate of completion confirming my completion of this course.
For Proceedings 3, Complaint Two, the record keeping complaint is that: The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Regulations under the National Law. PARTICULARS OF COMPLAINT TWO 1. On 20 October 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Health Practitioner Regulation (New South Wales) Regulation 2016 ("the Regulation"), in respect of his medical records for Patient AA in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. 2. On 21 October 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient W in that he failed to record sufficient information relevant to the patient's diagnosis or treatment, namely he did not record any history, examination or plan. 3. On 22 October 2019, the practitioner contravened clause 6(1) and Schedule 4(1) of the Regulation, in respect of his medical records for Patient AB in that he failed to record any information relevant to the patient's diagnosis or treatment. The Respondent admits this particular.

[74]

Consideration of record keeping complaints

The failures listed in these complaints are said to constitute unsatisfactory professional conduct in breach of s 139B(1) (b) of the National Law. That provision defines unsatisfactory professional conduct to include: A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
In this case, the contravention of the National Law is said to be a contravention of clause 6(1) and Schedule 4(1) of the Regulation. That provision is as follows: 6 Records relating to patients (1) A medical practitioner or medical corporation must, in accordance with this Part and Schedule 4, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or medical corporation. (2) A contravention of subclause (1) by a medical practitioner does not constitute an offence but may constitute behaviour for which health, conduct or performance action may be taken. (3) Subclause (1) does not apply to the following - (a) a public health organisation within the meaning of the Health Services Act 1997, (b) a private health facility within the meaning of the Private Health Facilities Act 2007, (c) a nursing home within the meaning of the Public Health Act 2010. (4) Subclause (3) does not affect the application of subclause (1) to a medical practitioner appointed, employed, contracted or otherwise engaged by a medical corporation referred to in subclause (3).
Clause 1 to Sch 4 of the Regulation states that: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following - (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient.
For the patients named in Proceedings 2, Complaint 3 and Proceedings 3, Complaint 2 Dr Jamnagarwalla did not make and keep a record with all the information listed in Cl 1(2) to Schedule 4 of the Regulation. Apart from Patient K (BMI), Dr K kept no record or inadequate records. Looking at the records now, he either did not know, or could only have made an educated guess as to the underlying conditions for which the script was written. We set out many examples of breaches of the record keeping regulations in Proceedings 2, Complaint 1. We highlight some further examples below.
For Patient B's consultation on 17 October 2019, there was no reference to sinus infection or any other symptoms in the notes. Dr Jamnagarwalla thought it was 'fine' not to write the symptoms when he was just issuing a prescription. He agrees that it was not an oversight to omit these details and that he left them out because he did not regard the event as a 'consultation'. Below we give reasons for rejecting that explanation.
Dr Jamnagarwalla wrote a prescription for Amoxicillin for Patient D on 13 June 2019 but cannot now recall what the prescription was for. He did not make any record of the reason for the prescription in Patient D's medical records. Because of his poor record keeping, Dr Jamnagarwalla does not now remember why the script was issued 3 days later on 16 June 2021. He agreed that it is possible that he incorrectly wrote 16 June instead of 13 June.
Dr Jamnagarwalla stated that he had reviewed Patient E's medical records before writing the prescriptions on 15 July 2019. Dr Jamnagarwalla qualified that statement by saying that he believes he would have reviewed those records because that is his usual practice.
When prescribing diazepam for Patient G on 18 August 2019, Dr Jamnagarwalla did not write anything in the clinical notes apart from the name of the scripts he issued. Unsurprisingly, he cannot now remember why he prescribed a benzodiazepine to this patient.
Dr Jamnagarwalla prescribed Patient I 10 months' supply of Seroquel for bipolar affective disorder. He agreed that it is not best practice to write a script, especially for an antipsychotic medication, without communicating with the patient.
Dr Jamnagarwalla maintains that he asked Patient K about any side effects from Duromine but did not record the answer in his notes. When pressed, he admitted that he does not recall the consultation and does not know why he did not record that he asked Patient K about side effects.
Dr Jamnagarwalla was questioned as to why he issued Primolut N to Patient R, a non-verbal adult who he stated was not present. He said he did so at the request of her father, to suppress menstruation. Dr Jamnagarwalla agreed that it is important to ensure that the treatment is justified and the reasons properly recorded.
Dr Jamnagarwalla admits that he did not record the prescription he wrote for Patient AB in her medical records. He says he did not write the Medicare number or the patient's address and says that the pharmacist must have inserted that information on the script. Dr Jamnagarwalla agreed that failing to write any record whatsoever of a script he had provided was not good medical practice.
We find the factual basis of the conduct set out in these particulars to have been proven. That conduct is, by definition, unsatisfactory professional conduct because Dr Jamnagarwalla has contravened the record keeping requirements set out in the Regulation.

[76]

Professional misconduct

For Proceedings 2, the Commission alleges that by breaching the condition that he not consult or treat female patients, by providing false or misleading statements and by failing to comply with record keeping requirements, Dr Jamnagarwalla has, either individually or cumulatively, engaged in professional misconduct. For Proceedings 3, the Commission alleges that by breaching the condition that he not consult or treat female patients. Dr Jamnagarwalla has engaged in professional misconduct. Dr Jamnagarwalla denies these particulars. We will address the non-compliance with the conditions in both proceedings first.
As we have set out above, the test for professional misconduct is whether Dr Jamnagarwalla's "unsatisfactory professional conduct" is "of a sufficiently serious nature to justify suspension or cancellation of his registration". The expectations as to compliance with conditions on a practitioner's registration were summarised by the Tribunal in Health Care Complaints Commission v Mikhail [2021] NSWCATOD 103 at [36] - [37]: It is well established in the case law that registration conditions must be scrupulously observed: see e.g. Prakash v Health Care Complaints Commission [2006] NSWCA 153 (Prakash) at [74], citing the then Medical Tribunal of NSW in Re Dr Tan Thanh Le [2001] NSWMT, 20 September 2001, at [95]: "Conditions are imposed on the registration of medical practitioners in the public interest. As with disciplinary proceedings generally, such conditions are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession: cf. Health Care Complaints Commission v. Litchfield (1997) 41 NSWLR 630 @ 637. The effect of such conditions may be to prohibit or regulate the conduct of a practitioner in various ways, commonly in relation to areas of practice, the prescription of certain types of drugs, the forms of permissible employment as a practitioner, requirements for supervision, training or notification, or by providing for the monitoring of aspects of a practitioner's life, such as conditions concerning the use of alcohol or drugs. Invariably they superimpose on the usual collection of responsibilities expected of all practitioners added burdens or restrictions. Moreover, those burdens or restrictions are imposed for reasons peculiar to the individual practitioner and create burdens or restrictions particular to that practitioner. Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly." It is "essential" to the smooth operation of the system of regulation and discipline that practitioners comply with conditions placed on their registration: see Health Care Complaints Commission v Karalasingham [2019] NSWCATOD 23, Health Care Complaints Commission v Reid [2018] NSWCATOD 162. As observed by the former Medical Tribunal of NSW in Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [121], in addition to satisfying the required theoretical and clinical acumen thresholds as necessary preconditions for the grant of a licence to practise medicine, practitioners so licensed are required to conduct themselves with the high standards of personal and professional probity expected of members of an honourable profession. Those expectations must necessarily be seen as extending to the requirement of scrupulously observing conditions of practice: s 139B(1).

[77]

Were the breaches of the conditions deliberate?

It is highly relevant when assessing the seriousness of Dr Jamnagarwalla's admitted breaches of the conditions on his registration, to determine whether the breaches were deliberate. Despite Dr Jamnagarwalla's denials, qualified admissions and equivocations, we are satisfied that, in January 2019, he knew what the conditions required of him and deliberately attempted to circumvent them. We set out our reasons for this finding below.
Firstly, Dr Jamnagarwalla knew what the conditions meant when they were discussed and imposed on 18 January 2019. He was present at the s 150 hearing and agreed that he heard his solicitor make the following submission when the options for the conditions were discussed in detail: If the Council feels that conditions have to be imposed, I think (Dr J's) preference would be for a black and white condition that he not see a certain class of patients rather than that chaperone conditions be imposed.
At the end of the s 150 hearing, the Chairperson of the panel told Dr Jamnagarwalla that they would not be suspending his registrations. He went on: . . . we will be placing a condition on it that you not see female patients. We considered (Dr Jamnagarwalla's solicitor's) submission for a subset of that condition but we feel that the simplest and best condition in the public interest is for you not to see female patients.
Dr Jamnagarwalla said he did not remember the Chairperson saying that but he did read the decision. He agreed that the condition was intended to ensure that he not "see" female patients, but initially said that he understood that to mean, in part, that they could be in his consulting room and he could write a script for them, as long as he did not physically examine a female patient. If Dr Jamnagarwalla had been genuinely unsure as to what the conditions meant, and was intending to abide by them, he would have sought clarification from his solicitors, his insurer or the Medical Council.
This issue was the subject of questions by members of the Tribunal's panel. We set out one relevant exchange between a panel member, Dr Albert and Dr Jamnagarwalla below: Dr Albert: Can I ask you something, when you had the conditions on your registration in January 2019, have you had any discussion with the MDO about the conditions, the Medical Defence Organisation? Dr Jamnagarwalla: After the conditions were imposed? Dr Albert: Yes Dr Jamnagarwalla: Unfortunately not. Dr Albert: So they didn't explain to you the conditions, they didn't explain to you what you should or shouldn't do? Dr Jamnagarwalla: No. Dr Albert: Not at all? Dr Jamnagarwalla: No. It was just like, OK, you're not supposed to be seeing female patients at all. That's it. (Emphasis added.) Dr Albert: But you definitely . . . you saw the conditions and you went through it? Dr Jamnagarwalla: Yes. Dr Albert: And you went through the criteria of the conditions, isn't it? Dr Jamnagarwalla: Sorry, what do you mean by the criteria? Dr Albert: I mean not . . Dr Jamnagarwalla: Not to treat, consult . . ? Yes. I would have, yeah. Dr Albert: So if you went through it, you know what you need to do from now on, isn't it? Dr Jamnagarwalla: Not from now on, from before. Dr Albert: From the conditions, from when the conditions were imposed. Dr Jamnagarwalla: Yeah, . . . I've been more thorough after the second hearing than I was . . . Dr Albert: No, I'm talking about January 2019. Dr Jamnagarwalla: No, obviously I wasn't thorough with that, yes. Dr Albert: You knew what you should do. Dr Jamnagarwalla: Yeah, not to . . . Dr Albert: Yeah you knew. And . . Mr Windsor: sorry can I . . . I'm not sure the witness had quite finished his answer in response to Dr Albert::. Dr Albert: OK , I'm sorry. Finish please. Dr Jamnagarwalla: So, I knew that I am not consulting female patients and that includes the whole scenario of taking history, examining patients, referrals, write prescriptions or treatment, procedures, follow ups, the whole consultation thing. (Emphasis added.) Mr Maybury: Well, I'm sorry just to interrupt but . . . I don't want to say anything in the presence of the witness, but I'm sure the transcript will pick up what the doctor's previous answer was, or hopefully it will anyway. I don't want to say anything further but since my learned friend asked that the answer be completed, there was an earlier answer which I will ask the Tribunal to give consideration to in due course. Dr Albert: OK, anything to add? Dr Jamnagarwalla: No. . . . . Dr Albert: During the . . .over the last few days I heard you saying that you didn't take the conditions seriously, you knew the conditions but wasn't or weren't taken seriously, is that true? Dr Jamnagarwalla: Yes. Dr Albert: OK. So there wasn't any misinterpretation. True or false? Dr Jamnagarwalla: No, there was a misinterpretation because things like writing prescription, it wasn't a misinterpretation. . . . but without the misinterpretation or not, but it wasn't clear understanding. Dr Albert: Sorry, I didn't mean to interrupt you. OK, so doctor, do you know the difference between Medicare and PBS? The Pharmaceutical Benefits Scheme? Dr Jamnagarwalla: Mmm . . .I don't know how to explain this. I think PBS is only dealing with medication subsidy for patients.
Dr Jamnagarwalla appears to have acknowledged by the answers in italics above, that he understood, as at January 2019, that the condition was "not consulting female patients and that includes the whole scenario of taking history, examining patients, referrals, write prescriptions or treatment, procedures, follow ups, the whole consultation thing." He agreed that he knew what the conditions were, but did not take them seriously and was not thorough.
When Dr Albert asked Dr Jamnagarwalla whether he had misinterpreted the condition, he gave an equivocal answer. First, he said there was a misinterpretation about writing prescriptions, then he said it was not a misinterpretation. Dr Jamnagarwalla concluded by saying, in effect, that whether or not he had misinterpreted the conditions, he did not have a clear understanding of them.
When Dr Jamnagarwalla received the letter from the Medical Council saying that he had breached the conditions, he says he was shocked that what he had done was not right. He wrote in his statement that: Following receipt of the letter from the Medical Council dated 12 November 2019, I discussed the matter with a few of my fellow medical practitioners at the Practice. The medical practitioners I spoke to were surprised when I told them that by prescribing to patients without having seen the patients in consultation, I was treating them and was accordingly in breach of my conditions.
Dr Jamnagarwalla named the doctors he had spoken to, but did not ask them to give evidence.
In support of the absence of medical records, Dr Jamnagarwalla wrote in his statement that; On the occasions I wrote prescriptions for the above patients, as I did not consider I was conducting a consultation with the patients, I did not think I needed to record the information I would ordinarily include in the medical records.
The reason that Dr Jamnagarwalla did not record the information he would normally have recorded, was to support his claim that he was not conducting a consultation. He did not leave out this information because he genuinely thought he was not consulting female patients.
It is not credible that an experienced practitioner could misunderstand what the conditions meant. When asked to describe what he was doing when writing prescriptions if he was not treating the patient, Dr Jamnagarwalla said he did not have an answer. He disagreed that the reason he could not provide an answer was that the only reasonable response is that writing scripts for a patient is 'treating' the patient.
Secondly, Dr Jamnagarwalla attempted to avoid detection by not billing Medicare for the vast majority of consultations he had with a female patient. The only exceptions to Dr Jamnagarwalla's practice of not billing Medicare were Patient A (which we have found was an emergency treatment) and Patient B on 16 June 2019 (for which Dr Jamnagarwalla arranged a reimbursement). Dr Jamnagarwalla thought that as long as he did not bill Medicare, the auditors would not be able to trace the consultations he had with female patients. In his defence, Dr Jamnagarwalla said that as far as he is concerned, a doctor cannot charge Medicare for issuing a prescription. However, when questioned later, he agreed that he did sometimes charge Medicare for that kind of consultation and that he should be doing so.
It was also suggested that the population of Australia would be disappointed if they were charged for 'simply getting a prescription'. No evidence was put forward in support of that proposition. We agree with Dr Jamnagarwalla that the mantra of 'just a prescription' misunderstands how doctors generally issue prescriptions. At a minimum, when providing a prescription for ongoing treatment, a medical practitioner is expected to assess the ongoing need for it, the efficacy of the current approach and to screen for issues with its use. Abrogation of this responsibility places patients and the community at risk.
We accept that, prior to the conditions being imposed, on occasions Dr Jamnagarwalla did not bill Medicare for male or female patients when he wrote repeat prescriptions. He said he did not do so if he was 'under the pump'. He says he billed for a short consultation (Item A) only three or four times. However, after the conditions were imposed, this practice was extended to the vast majority of consultations with female patients. In any case, Dr Jamnagarwalla's practice of not billing Medicare extended to all kinds of consultation, not just repeat prescriptions. For example, he did not bill Medicare for a consultation with Patient K even though she was present and either he or a practice nurse measured her BMI and prescribes Duromine.
While Dr Jamnagarwalla knew that the conditions would be monitored using data from Medicare Australia, he admitted that he did not know that the audit would also include data from the Pharmaceutical Benefits Scheme. The PBS records the medications dispensed to patients at a Government-subsidised price. A panel member, Dr Aitkin, asked Dr Jamnagarwalla whether he would still have prescribed to female patients if he knew that the auditors would look at the PBS data. Dr Jamnagarwalla's denials in the following exchange with Dr Aitken are unconvincing: Dr Aitken: So, if you knew that they would audit the PBS would you still have prescribed for female patients? Dr Jamnagarwalla: At that time, probably I would have. Dr Aitken: You would still . . Dr Jamnagarwalla: Yeah well, by my understanding at that stage, I would have done it. Yes. Dr Aitken: Now, I'm going to rephrase that. So if you knew that the audit for your conditions, complying with the conditions will be auditing of the Pharmaceutical Benefits Schemes, which means the prescriptions you write for female patients, and the Medicare billing would you still write prescriptions for female patients. Dr Jamnagarwalla: At that time? Dr Aitken: Yes. Dr Jamnagarwalla: I would have, yeah.
Thirdly, Dr Jamnagarwalla's evidence changed significantly during the course of the hearing. In his statement he said that the conditions only prevented him from "seeing the patient, taking a history, performing an examination, ordering any appropriate investigations and providing appropriate treatment". Dr Jamnagarwalla said for the first time in cross-examination that the conditions were uncertain or cloudy and there was some 'grey areas'. He wavered on the side of the patient and, in effect, admitted that he did not take the conditions seriously.

At a glance

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Judgment (82 paragraphs)

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Cases Cited (21)

Cited By (6)