Health Care Complaints Commission v Jouda

NCAT Occupational|2023-02-24|Before: Dr J

Health Care Complaints Commission (Applicant) Dr Dheyaa Kadhim Jouda (Respondent) Representation: Counsel: I Chatterjee (Applicant) M Hutchings (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2021/00075794 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), publication or broadcast of the name of Patient A set out in the Schedule to the Complaint, and the name of Patient A's mother, is prohibited.

Material before the Tribunal

The Health Care Complaints Commission (Commission) relied upon the evidence which it tendered in the Stage 1 hearing (Exhibit HCCC 1).
The Respondent relied upon a statement prepared by him on 17 August 2022 to which was attached a series of documents evidencing courses undertaken by him through Avant Mutual prior to 30 September 2017 (exhibit R1). The Respondent relied upon a volume of more recent documents which became Exhibit R2 in the proceedings. Exhibit R2 comprised a supplementary statement of the Respondent of 13 December 2022, a report of Ms Alexsandra McCredie of City East Psychology dated 9 December 2022, together with Ms McCredie's Curriculum Vitae and her letter of instruction from the Respondent's solicitors of 16 November 2022. Attached to the Respondent's updated statement were documents from Avant certifying that on 21 April 2021 the Respondent completed the Avant Learning Centre course "Managing boundary Issues for patients with mental health issues", that on 2 July 2022 the Respondent completed the Avant Learning Centre course "Common medicolegal issues for GPs", and that on 3 September 2022 the Respondent completed the Avant Learning Centre course "Professionalism in medicine: exploring the code of conduct" as part of Avant's CPD education programme. Exhibit R2 also contained a letter of instruction to Dr Michael Atherton, a Psychiatrist and Addiction Specialist, dated 29 November 2022, a report prepared by Dr Atherton on 24 August 2022 and a supplementary report prepared by him on 29 November 2022. Both Ms McCredie and Dr Atherton were cross-examined at the hearing.
The Tribunal has been assisted by comprehensive submissions by Counsel for the Commission dated 20 March 2023, by Counsel for the Respondent dated 3 April 2023 and submissions in reply by Counsel for the Commission dated 20 April 2023.
The Tribunal was informed, and accepts, that the Respondent returned to Australia from Iraq specifically to give evidence in person at the hearing scheduled for 19 December 2022, but was unable to afford to return again for the hearing on 24 February 2023. By agreement between the parties, the Respondent was cross-examined by AVL on the latter date.

The orders sought by the parties

The Commission sought orders in the following terms: "4.1 An order pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (National Law) that if the Practitioner was still registered the Tribunal would have cancelled his registration. 4.2 An order pursuant to s 149C(4)(b) of the National Law that the Practitioner is disqualified from being registered in the health profession for two years (or in the alternate one year) from the date of this decision. 4.3 An order pursuant to s 149C(4)(c) of the National Law that the National Board is required to record the fact that if the Practitioner were still registered, the Tribunal would have cancelled his registration in the National Register kept by the Board. 4.4 An order pursuant to clause 13 of Schedule 5D of the National Law that the Practitioner pay the Commission's costs as assessed or agreed."
In submissions on his behalf, the Respondent submitted that the appropriate protective orders were: "(a) an order for suspension (for a period of twelve months but no longer than eighteen months); (b) the imposition of conditions; including: (i) practise in an accredited group practice; and (ii) practise in a major metropolitan area; and (iii) Category C supervision."
The Respondent further submitted (at par 56) that: "If the above is not considered sufficient, the Tribunal should then consider the making of an order of reprimand (in respect of Complaint 1) under subdivision 6 is appropriate: an order under s 149A of the National Law".
In submissions in reply (at par 30), the Commission noted the power under s 149A(3)(b), but also noted that it was unaware of any authorities which have dealt with the interrelationship (if any) between s 149C(4)(a) (which concerns the powers to suspend where a practitioner is no longer registered) and s 149A(3)(b) (which concerns the imposition of future conditions on reregistration). That was submitted to "highlight" that there might be uncertainty as to whether in the circumstances of this matter, it is permissible for the Tribunal to determine (as suggested by the Respondent) that it would have suspended him had he still been registered, and then impose conditions on his registration (to take effect on his reregistration).
To assist the Tribunal, and without resiling from its primary position, the Commission submitted (at par 31) that, having undertaken discussions with the Medical Council of NSW, the conditions referred to in Annexure A to the Commission's submissions could be considered by the Tribunal. The conditions to which the submission referred provided: "Practice conditions 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. Not to undertake any locum positions. 3. To practise only in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the subject practitioner): (a) Where the patients and patient records are shared between medical practitioners; (b) Where there is always one other registered medical practitioner on site; (c) Which is an accredited practice. 4. Not to prescribe to, consult, examine, treat or perform any procedures on any male: (a) The practitioner may only provide emergency medical services to such persons in compliance with s 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. 5. To complete within 12 months of the date the practitioner recommences medical practice, the Ethics Counsel Programme for Health Professionals organised by the Ethics Centre: (a) Within 3 months of the date the practitioner recommences medical practice, the Practitioner must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course; (b) Within 1 month of completing the abovementioned course, the Practitioner is to provide documentary evidence to the Medical Council of NSW that he has satisfactorily completed the course; (c) To bear responsibility for any costs incurred in meeting this condition; (d) In the event that the Ethics Counsel Programme for Health Professionals is unavailable, he must propose to the Council for approval a similar course to be undertaken in accordance with the requirements of this condition and provide a written explanation as to the reasons why he is making this proposal, by no later than 3 months from the date the practitioner recommences medical practice. 6. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: professionalism and professional ethics, maintaining of appropriate professional boundaries with patients, medical record reviews, appropriate prescribing practices, clinical performance, workload management. (b) To authorise the Medical Council of NSW to provide proposed and approved supervisors with the decision that imposed this condition and any other decision or report as determined by the Council; (c) Not to practise until a supervisor has been approved by the Medical Council of NSW. 7. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 8. To authorise and consent to any exchange of information between the Medical Council of NSW and future relevant persons or organisations at locations where he works as a medical practitioner in Australia of any issues arising in relation to compliance with these conditions. Review Provisions 10. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 11. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the Practitioner's principal place of residence is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia." (numbering of conditions as in original)

Background

The background to the proceedings is comprehensively and uncontroversially set out in the submissions of the Commission (at pars 3-20) and record: "3. Dr Jouda is presently suspended from practice in Australia, but he is practising as a general practitioner in Iraq. … 5. Dr Jouda was [Patient A's] general practitioner between approximately 9 February 2017 and 7 June 2019. At the time of commencing to see Dr Jouda, [Patient A] was 23 years old. 6. From late 2012, [Patient A] had experienced psychosis and in 2016 was diagnosed with schizophrenia. 7. To Dr Jouda's credit, the majority of the complaints alleged against him were admitted. 8. However, a complaint of some significance - that the practitioner had, in the course of a social dinner that the practitioner had invited [Patient A] to, smoked marijuana with him - was and remains denied by the practitioner. … 10. The Tribunal found (and Dr Jouda admitted) that he had while in the course of the therapeutic relationship, failed to maintain appropriate professional boundaries by reason of exchanging mobile numbers with [Patient A], and messaged or called [Patient A] on numerous occasions (and up to 50 instances on 13 March 2018) for purposes that were not clinically warranted, and by reason of that conduct, demonstrated the judgement possessed, or care exercised, by him in the practi[c]e of medicine was significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience. 11. Further the Tribunal found that Dr Jouda had, while engaged in a therapeutic relationship with [Patient A], failed to maintain appropriate professional boundaries in that he: 11.1. Suggested at a consultation with [Patient A] that they go for a drink together; 11.2. In 2018 inappropriately invited [Patient A] to dinner at his home and cooked dinner for himself and [Patient A]; 11.3. On the occasion of the dinner in 2018 at the practitioner's home: 11.3.1. drove in his car with [Patient A] to purchase alcohol; 11.3.2. consumed alcohol with [Patient A] at his home; 11.3.3. smoked marijuana with [Patient A] at his home; 11.3.4. discussed his own, and [Patient A's], sexuality with [Patient A]; 11.4. Either following the dinner or on another occasion: 11.4.1. told [Patient A] that if he ever needed to borrow money, he could lend him money; and 11.4.2. on one occasion lent [Patient A] $400; and by reason of that conduct, demonstrated the judgement possessed, or care exercised, by him in the practi[c]e of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and/or had engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 12. As to the matters at [9], each of the factual allegations with the exception of the allegation of smoking marijuana with [Patient A], as well as the fact that they amounted to unsatisfactory professional conduct, was admitted by Dr Jouda. 13. Further the Tribunal found (and Dr Jouda admitted) that he: 13.1. Asked [Patient A] if he could use [Patient A's] name to complete a prescription; 13.2. On 5 February 2019, in a consultation with [Patient A], falsely documented that he prescribed Tenofir/Emtricitabine 300mg; 200mg tablet 1 daily in circumstances where he had not prescribed that medication for [Patient A]; and 13.3. Wrote that he had a medical consultation with [Patient A] on 7 February 2019 in which he purported that he prescribed [Patient A] Raltegravir 400mg tablet one twice a day in circumstances where there was no consultation with [Patient A] on that date and no such prescription to [Patient A]; and by reason of that conduct, engaged in improper unethical conduct in relation to the practise or purported practise of medicine. 14. Further the Tribunal found (and Dr Jouda admitted) that he, on seven occasions between 5 February 2019 and 19 August 2019, prepared prescriptions in the name of [Patient A], in circumstances where Dr Jouda knew the medication prescribed was not to be used by [Patient A]. 15. The Tribunal found (and Dr Jouda admitted) that, on 30 July 2019, he sent a letter to the Health Care Complaints Commission containing false information denying sending text messages to [Patient A], and denying that [Patient A] had attended at his home. 16 Finally the Tribunal found that the misconduct identified in paragraphs [9], [11] and [12] each amounted to professional misconduct within the meaning of the National Law; and that in the alternative the cumulative effect of the misconduct identified above amounted to professional misconduct." (citations omitted; emphasis omitted)

Evidence relied upon by the Practitioner

On 7 September 2022, the Respondent filed a statement made by him on 17 August 2017. That statement has no probative value for present purposes. In his statement of 13 December 2022, the Respondent set out his post-complaint history of consultations with Ms McCredie on six occasions as at that date which consultations he said he found "to be very helpful", adding that Ms McCredie "has helped me understand my depression and anxiety and the trigger that I have exacerbated these conditions".
The Respondent further stated that: "Ms McCredie has helped me recognise aspects of my personality that had an impact on my behaviour with Patient A. After my discussions with Ms McCredie, I am more aware of my vulnerabilities, in particular seeking validation of my self-worth from patients and not controlling my underlying motivation to help people. I am aware that I need to work on improving my self-esteem".
The Respondent referred to "role playing exercises" undertaken by him in the course of his consultations with Ms McCredie which he said that he found "very helpful in providing practical examples of how to maintain professional boundaries during interactions with patients".
The Respondent further stated that he has "also spent time with Ms McCredie addressing issues related to my homosexuality", adding that although he felt he had "come to terms with and accepted I am homosexual, I do not feel comfortable disclosing my homosexuality to others" and that he intended to continue to work with Ms McCredie "to develop strategies to manage my concerns about being more open about my sexuality".
The Respondent concluded by stating that he "cannot be open about my sexuality while living in Iraq" and hoped "one day to be able to return to live in Australia".
In her report, Ms McCredie confirmed that she had seen the Practitioner on six occasions between 21 September 2022 and 22 December 2022. Under the heading "Current symptoms and presenting problem", Ms McCredie said: "Dr Jouda reported that he was diagnosed with major depressive disorder in 2010, and it appears it had been well managed with Es-Citalopram x 20mg. Current DASS21 scores indicate mild depression, and normal anxiety and stress. Dr Jouda reports the current NCAT proceedings have exacerbated his symptoms of depression. He reports disturbed sleep, persistent low mood, rumination, and anhedonia. He stated he feels 'flat and sad mostly; I'm not happy … but in spite of this, I try and be positive'. Other stressors include future-orientated uncertainties, that is, not knowing what will happen to him in the future including the outcome of the hearing. Also, Dr Jouda appears to struggle to come to terms with his sexual orientation, in that, he 'cannot live a life I want as a homosexual'."
Ms McCredie set out in some detail the "therapeutic intervention and processes" which the Respondent had undertaken during the course of his consultations with her. After setting out a number of such considerations, Ms McCredie concluded her report by stating: "It would appear many factors and emotional vulnerabilities contributed to Dr Jouda breaching his professional boundaries and conduct. This included countertransference; loneliness and isolation; self-worth; his want to help; and his fear, worry, and shame that attributed to his irrational and unethical decision making in using a patient's name to attain [sic] medication."
Ms McCredie said that: "During our sessions, Dr Jouda identified these liabilities and risk and was able to assess and consider how each aspect breached professional and ethical boundaries and code of conduct. Dr Jouda now feels adept in minimising such risks when working with patients. He stated he will continue to revise and revisit, and be mindful of his internal processes through consultation with his manager, psychiatrist or psychologist, to protect his patients and himself, and prevent further breaches in the future".
Ms McCredie concluded her report by expressing her opinion that "[p]articularly as Dr Jouda appears to have suffered as a result of his deregistration, his risk of transgression is low or negligible".
In response to a question from the Tribunal, Ms McCredie explained that "countertransference" involves seeing something in a patient which a practitioner can relate to which can go beyond logic, and needs careful management.
Dr Atherton's first report dated 24 August 2022 was based on an assessment of the Respondent via video conferencing of about 90 minutes duration, Dr Atherton being in Australia, the Respondent being in Iraq. For the reasons which he detailed in his report, Dr Atherton considered the Respondent to be "at low risk of reoffending". Dr Atherton stated that the Respondent "appeared knowledgeable regarding the GP Code of Conduct and the nature of why his behaviour was wrong", that he had undertaken a number of courses and "certainly now has an awareness of professional boundaries and their essential place in the doctor/patient relationship".
Dr Atherton considered the Respondent to be "intact" cognitively so that there was "no reason why he would lack capacity to exercise appropriate judgement in the future". Dr Atherton found "no substance use disorder identified which would impact on his capacity in the future or any medical issues which would result in a lack of capacity", the Respondent's depression being "well controlled on medication and he has good insight into the need to continue with medication and the need to follow up" with health professionals back in Australia. For those reasons, Dr Atherton considered that it was "likely that his capacity is stable". Dr Atherton considered he had observed nothing about the Respondent which made him "concerned that he has not learnt his lesson".
Dr Atherton opined with respect to appropriate protective orders that it would be appropriate for the Tribunal to consider the following recommendations: "(a) He should be mandated to engage with a psychiatrist of his choice at a time and frequency determined by the clinician. This would offer the opportunity for him to have regular review and management of his significant major depressive illness and also the opportunity to explore his past and future stressors. (b) I believe that he would benefit from a psychologist or specialised counsellor who has a particular expertise in helping men, such as Dr Jouda, come to terms with their sexuality and develop strategies to integrate better into their community and society. (c) I also believe it would be reasonable for him to only work in a multi doctor GP practice and somebody in that practice should be aware of the findings against him and the orders in place."
In his later report dated 29 November 2022, Dr Atherton referred to his video conference with the Respondent on 29 November 2022, which was of about 60 minutes duration. In his report, under the heading "Whether there have been any developments in relation to Dr Jouda's understanding of and acceptance of the gravity of his conduct forming the subject of the complaint", after referring to the events of the evening when Patient A stayed at the Respondent's home, Dr Atherton wrote "Dr Jouda denies that anything bad happened on the evening". From that section of Dr Atherton's report, there emerges a concerning lack of reported engagement by the Respondent with his offending conduct on that night, particularly with respect to the smoking of marijuana on that night. As with the Respondent's own statement, his statements to Dr Atherton involve considerable and concerning generality, and a reluctance to engage with the matters which he has either admitted, or which have been found proved to the comfortable satisfaction of the Tribunal in the Stage 1 proceedings.
Dr Atherton reiterated his "impression" that the Respondent has a "major depressive disorder which is currently in long term remission secondary to medication Citalopram x 20mg". For the reasons which he suggested, Dr Atherton is of the opinion that the Respondent was predisposed "to be sensitive to emotional stress and potentially impulsive around avoiding feeling isolated and alone". Dr Atherton further said that he could "understand how exploring his inner thoughts may have been difficult in the early part of the proceedings, but I did notice a shift in his ability to self-reflect in the 3 months since I last saw him, probably because of the psychologist intervention. He still has a way to go to dramatically changing his innate desire to keep things personal, but I think with the right conditions he can be a safe practitioner and there will not be a repeat of the previous boundary issues".
Dr Atherton reiterated his opinion that the conditions previously suggested by him remained appropriate if the Practitioner were to be permitted to resume practice.
Counsel for the parties made submissions arising out of the cross-examination of Ms McCredie and Dr Atherton which are better dealt with in the context of a consideration of those submissions.

The submissions of the parties

In its primary submissions, the Commission submitted (at par 34) that the Respondent's conduct was "objectively very serious and would ordinarily warrant cancellation of a practitioner's registration, both by reason of the need for deterrence for such conduct and that the conduct gives rise to concerns as to Dr Jouda's judgement as a practitioner".
The Commission emphasised (at par 35) the Tribunal's finding that Patient A was "vulnerable" as the Respondent was aware, and that he was found to have abused Patient A's trust in various ways. It was submitted that the Respondent's conduct was "not limited to obtaining some form of companionship, but also in order for Dr Jouda to obtain for personal benefit medication that could have had the result that [Patient A's] future care could have been compromised".
It was fairly conceded (at par 36) that the Respondent's evidence identifying "his personal vulnerabilities at the time" provided some "mitigatory context to his offending". Although the Commission conceded (at par 37) that some of the Respondent's offending conduct was "understandable" because of his personal circumstances at the time, the conduct remained concerning because of the "power imbalance, [Patient A's] mental health issues, and the age gap" between the Respondent and Patient A.
The Commission submitted (at par 38) that the "supply of alcohol, the marijuana use, and the falsifying of prescriptions" were of a "different category". To that list can be added knowingly providing false information to the Commission.
The crux of the Commission's opposition to the Respondent being reregistered to practise medicine (at par 39) was that, based on the Respondent's own evidence, "he does not appear to have properly grappled with his serious lapses of judgement as a practitioner in 'condoning' marijuana use by, and supplying to and condoning the consumption of excessive quantities of alcohol to his vulnerable patient, in view of [Dr Jouda's] undoubted knowledge at that time of [Patient A's] medical and psychiatric history, his current issues, and the potential exacerbation of the health of [Patient A] if he were to consume alcohol to excess, or consume cannabis", as the Tribunal found in its Stage 1 determination:Health Care Complaints Commission v Jouda [2022] NSWCATOD 56 at [83].
The Commission submitted (at par 41) that there were two "primary deficits" with respect to the expert evidence upon which the Respondent relied. The first asserted primary defect (at par 42) was that "neither expert had material concerning a complaint made against Dr Jouda that was relatively close in time to the conduct that arose in this matter". That was a reference to the s 150 decision which recorded the previous Complaint in 2017 when the Practitioner was practising in South Australia. A male patient had then alleged that the Practitioner had "inappropriately touched his genitals during a physical examination" whereafter the Practitioner was found to have sent a number of unsolicited and unprofessional text messages to the patient. Although the allegation of sexual misconduct was not found established by the Medical Board of Australia, the Board considered that, at a minimum, the Respondent had failed to "explain clearly to the patient the need for an intimate physical examination or to obtain appropriate consent for this". The Board also concluded that the Respondent had failed to maintain appropriate boundaries with the patient and imposed conditions on his registration requiring him to complete further education in the areas of communication, informed consent and maintaining professional boundaries. Through no fault of theirs, the weight which can be afforded the opinions of Ms McCredie and Dr Atherton is diminished by their not knowing about the 2017 Complaint, particularly as it was so proximate in time to the offending conduct which gave rise to the present proceedings.
The Commission conceded that the Respondent had undertaken education which was specific to boundary violations as a consequence of the earlier s 150 proceedings. That education was reflected in the certificates attached to the statement of the Respondent dated 17 August 2017 which was filed in September 2022. As the Commission succinctly submitted (at par 44), "the problematic conduct with respect to Patient A commenced a few months later, in March 2018".
It was submitted (at par 45), accurately, that both Dr Atherton and Ms McCredie "accepted that the conduct the subject of the earlier Complaint and these proceedings had some similar factors, concerning as they did male patients and boundary crossing behaviour".
The Commission submitted (at par 46), again accurately, that Dr Atherton conceded in cross-examination that those matters were relevant to an assessment of the likelihood that the Respondent may re-engage in boundary violations in the future. Dr Atherton maintained his previously written opinion that the likelihood of such conduct recurring remained low, although, in view of the matters to which he was referred in cross-examination, not as low as he had initially considered.
The Commission submitted (at par 47) that Ms McCredie's apparent non-acceptance of the relevance of the earlier Complaint and its outcome "undercuts the weight to be given to her opinions". With respect to Ms McCredie, we cannot disagree with that contention, particularly in view of when it occurred relative to the offending conduct which was admitted or proved in these proceedings.
The Commission further submitted (at par 48) that Dr Atherton "appeared to have misunderstood the Tribunal to have found that Dr Jouda did not consume marijuana with Patient A", which was submitted to detract from the weight to which his opinions would otherwise be entitled. There is force in that contention.
The Commission made a number of submissions (at pars 49-55) with respect to the Respondent's attempted downplaying of the consumption of alcohol on the night of Patient A's visit to his home, particularly in the light of the Tribunal's findings in the Stage 1 hearing. The expression "downplaying" is apt.
The Commission referred to the apparent failure of the Respondent to inform either Dr Atherton or Ms McCredie of the risks to Patient A from consuming alcohol as a result of which "understandably" neither appeared to have "covered these events in any detail in the course of therapy".
Dr Atherton was submitted (at par 58) to have "in error" disregarded the consumption of marijuana on the night of Patient A's visit to the Respondent's home. In the Tribunal's view, the Commission's submissions with respect to the Respondent's failure to "come clean" about the events of the night Patient A went to his home, and/or the misunderstanding of the Tribunal's reasons by his psychiatrist and psychologist, resulted in their understandable failure to engage with those issues. As the Commission submitted, that detracts from the weight to which Dr Atherton and Ms McCredie's expert opinion evidence is entitled and raises issues with respect to the reliability of the Practitioner's evidence.
In those circumstances, the Commission submitted (at par 63) that a "real question of fitness arises with respect to Dr Jouda's judgement which is not dealt with satisfactorily in the expert evidence that he leads". This was submitted (at par 64) to make suspension inappropriate "as there is no basis on which the Tribunal can be satisfied that the issues that have arisen are temporary or will be resolved in the short term". It was submitted (at par 65) that cancellation was thus warranted and was "also consistent with the gravity of the conduct".
The Commission relied upon the authorities establishing that registration amounts to the profession holding a person out to the public as a "person worthy of their confidence": Dawson v Law Society of New South Wales [1989] NSWCA 58. This was further submitted to entail that the person has demonstrated "integrity, trustworthiness, high moral and ethical values and a capacity to comply with relevant regulatory requirements and codes of practice": Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115. It was also submitted that in a case such as the present, reformation could not be assumed, being the exception rather than the norm (Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630), which must be demonstrated by more than the mere passage of time without misconduct: Lee v Health Care Complaints Commission [2012] NSWCA 80.
The Respondent submitted (at par 40) that "the Tribunal ought to be comfortably satisfied that the likelihood of Dr Jouda again engaging in conduct of the type underlying the complaints is low to non-existent". It was submitted that the Respondent "has, as he phrased it, had a 'huge lesson' losing his livelihood, his home and finally confronting the features of his own personality and being". To the extent that those matters have been established, put bluntly, the Respondent brought them on himself. The Respondent's contentions were asserted to find support in the evidence of Ms McCredie and Dr Atherton. It was submitted (at par 43) that "[i]t cannot be demonstrated on the evidence that there is a need for orders directed towards specific deterrence".
Counsel for the Respondent submitted (at par 46) that he "presented in evidence - particularly under cross-examination by Counsel for the HCCC - as a truthful witness doing his best to candidly answer the questions put to him. He plainly endeavoured to be a responsive witness. He frequently acknowledged the error of his conduct the subject of complaint. He expressed obvious (and appropriate) regret and remorse in respect of the interaction with Patient A". The Tribunal accepts those submissions, as far as they go.
The issue of significance arising from the Practitioner's evidence, and the evidence of Ms McCredie and Dr Atherton, is the extent to which the Practitioner is able to appropriately reflect on aspects of the offending conduct which give rise to the present proceedings and, his insight into that conduct. The Respondent's, at best, reluctance to reflect on, and engage with aspects of his offending behaviour militates against finding that his reregistration would not constitute an unacceptable risk to the health and safety of the public.
The Respondent submitted (at par 49) that the Tribunal "should form an impression of Dr Jouda from his conduct in the proceedings. He admitted the bulk of the particulars in the Complaints - thereby demonstrating insight and necessarily represents a recognition of the proper boundaries of the doctor/patient relationship". The Tribunal is concerned that the Respondent appears unable to acknowledge the totality of his offending conduct.
It was submitted (at par 54) that the Commission had not "articulated with specificity" the risk to the public upon which it relied in support of the protective orders which it sought: Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [97]-[101] (Brereton JA).
The Practitioner's submissions reiterated the primary position to which we have earlier referred but submitted (at par 56) that if the Tribunal did not consider such orders to be sufficient to protect the health and safety of the public, the Tribunal should consider reprimanding the Practitioner pursuant to s 149A of the National Law. It was asserted that the "force of a reprimand (and the public opprobrium that it entails) cannot be overlooked": Lindsay v Health Care Complaints Commission [2005] NSWCA 356. It was further submitted that a reprimand would perform "an important function in publicly denouncing conduct that falls below standard" particularly as a reprimand is required to be recorded in the National Register, and may be expressed to be a severe reprimand: Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 at [60] (MacFarlan JA).
In submissions in reply, the Commission reiterated and amplified its submissions with respect to the asserted concerns arising for the health and safety of the public arising from the Practitioner's own evidence. It was conceded (at par 3) that the Practitioner's "social isolation can logically explain (if not excuse) his conduct in inviting [Patient A] to dinner; it can similarly explain the high level of SMS communication between them". It was submitted, however (at par 4) that the Practitioner's social isolation "does not explain why, in circumstances where Dr Jouda believed that marijuana and alcohol were contraindicated for [Patient A] in light of his severe mental health issues, Dr Jouda would condone the consumption of those substances." The Commission submitted, accurately, that the evidence "indicates that the consumption of alcohol was not in the nature of 'one or two glasses of wine with dinner' but rather a feature of the evening itself".
The Practitioner's conduct was submitted (at par 5) to be "particularly aberrant" in view of the evidence that the Practitioner rarely drank, Ms McCredie and Dr Atherton identifying their understanding to be that the Practitioner drank approximately 4 standard drinks a fortnight. The Commission further relied (at par 6) on the Practitioner rather than Patient A having "instigated" the consumption of marijuana. That was submitted to be "a feature that is aberrant and unexplained in that there is no suggestion in the materials that Dr Jouda habitually consumed marijuana". For those reasons, the Commission submitted that the Practitioner's case involved a "gloss over the issues".
The Commission identified (at par 11) what, in the Tribunal's view, is ultimately a pivotal issue in determining the appropriate protective orders in this case. It was there submitted, accurately, that "[n]one of Dr Jouda, Dr Atherton or Ms McCredie addressed the issue of the consumption of marijuana - Dr Jouda because he denied it, Dr Atherton as he mistakenly understood the Tribunal to have dismissed that element of the complaint, and Ms McCredie because she accepted (notwithstanding the terms of the [Stage 1 decision]) Dr Jouda's denial".
The Tribunal does not need to speculate about the reasons for the absence of that evidence. It is sufficient to record that there is a significant evidentiary lacuna for the reasons submitted by the Commission.
It was further submitted (at par 13), not without foundation, that, as asserted in the Commission's primary submissions, Ms McCredie and Dr Atherton "did not properly appreciate the context in which the alcohol was consumed", thereby limiting the value of their opinion evidence.

The principles governing the present application

The principles which govern this application are not in doubt or dispute and require only brief reiteration. The Tribunal has the powers to make orders which, in substance, reflect the position of each party. In determining the present proceedings, the "protection of the health and safety of the public must be the paramount consideration": National Law, s 3A. Section 4 of the National Law requires the Tribunal to "exercise its functions having regard to the objectives and guiding principles" articulated in sections 3 and 3A of the National Law.
The focus of the exercise of the Tribunal's powers with respect to protective orders has been consistently accepted as "[centring] not on punishment as such but on the protection of the public and the maintenance of proper professional standards": Lee v Health Care Complaints Commission at [21].
The authorities reveal a number of matters of general relevance: Health Care Complaints Commission v Cahoud [2022] NSWCATOD 36; Health Care Complaints Commission v Do [2014] NSWCA 307; Health Care Complaints Commission v Duggan [2015] NSWCATOD 142. Those matters are: 1. the need to protect the public in the general, and present or future patients of the practitioner in particular against the risk of further misconduct by the practitioner (the unacceptable risk); 2. deterring the offending practitioner from reoffending (specific deterrence); 3. the need to protect the public through general deterrence of other practitioners from engaging in conduct of the kind of which the practitioner has been found guilty; 4. the need to protect the public by reinforcing high professional standards and denouncing transgressions; 5. the maintenance of public confidence in the profession, by signalling to practitioners and the public that misconduct by medical practitioners is viewed seriously, and has serious consequences for offenders; 6. the desirability of making available to the public any special skills possessed by the practitioner.
In Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 ("Lambert") at [83], Basten JA recorded that, although the specific purpose for which orders are made in disciplinary proceedings is to protect the public interest, "such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order". His Honour added that: "… the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition … and to produce a level of insight into his or her own character or misconduct which did not previously exist."
The objective of protecting the public from misconduct of the kind of which the practitioner has been found guilty and upholding public confidence in the standards of the profession was said in Health Care Complaints Commission v Do at [35] to be: "… achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
The authorities also establish that the effect of any protective orders which are made on the Practitioner are indirectly relevant by way of the effect of such orders on the likelihood of repetition of the impugned conduct.
In Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102 at [17], the Tribunal said that although the consequences for the practitioner and his family were "unfortunate", it "must be emphasised that his circumstances are caused solely by the fact that he engaged in a course of misconduct of a serious kind, justifying a finding that it constituted professional misconduct. To this extent his authorship of his own misfortune is irrelevant in determining what protective orders should be made."
Importantly for present purposes, in Lambert at [83], Basten JA also observed that findings that the punitive effects have reduced the likelihood of the repetition of proven misconduct often "will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist."
In Health Care Complaints Commission v Luque [2019] NSWCATOD 129 at [94], the Tribunal recorded that: "The setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'two-fold operation' in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time".
Any protective orders made by the Tribunal should not result in "more serious consequences for the practitioner that is reasonably necessary in execution of the protective purpose of the legislation": Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82. In determining appropriate protective orders, the Tribunal was required to consider the whole of the Practitioner's conduct: Gad v Health Care Complaints Commission [2002] NSWCA 111. Whether the degree of seriousness of offending conduct is such that there is no appropriate alternative to cancellation of registration is a matter of degree, involving an evaluative judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411; Health Care Complaints Commission v Jangodz [2016] NSWCATOD 71.
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, the Court of Appeal suggested that the question of whether a practitioner's registration should be cancelled involved two stages of decision making. The first was whether it could be demonstrated that, at the time of the making of the decision, that the medical practitioner is unfit to practise medicine, whether because of former or current conduct and, secondly, whether the practitioner would be likely to remain so unfit for a significant indefinite period. It is unnecessary for the Commission to establish that any unfitness to practise is probably permanent.

Consideration

As we have earlier recorded, the Commission's primary position, from which it did not resile, was that, pursuant to s 149C(4)(b) of the National Law the Practitioner be disqualified from being registered in the health profession for two years (or in the alternative one year) from the date of this decision.
The Practitioner sought (at par 55) an order for "suspension (for a period of 12 months but no longer than 18 months)" with the imposition of conditions and, if the Tribunal considered it necessary to do so, a reprimand pursuant to s 149A of the National Law.
As is not in doubt, the Practitioner not being registered, the provisions of s 149C(4) of the National Law apply. Although s 149C(4)(a) provides that the Tribunal may decide that if the Practitioner "were still registered the Tribunal would have suspended or cancelled the person's registration", it is difficult to discern the power to make an order suspending the registration of a practitioner who is not currently registered. Section 149C(4)(a), in the Tribunal's view, provides for something analogous to a declaration. The power to make orders with respect to the Practitioner's registration is found in s 149C(4)(b) which provides that, if the Tribunal would have cancelled the person's registration, it may "decide that the person is disqualified from being registered in the health profession for a specified period or until specified conditions have been complied with". It is tolerably plain that, in the present circumstances, if relief in the terms sought by the Practitioner was appropriate, the only order which the Tribunal could make to give effect to it would be, pursuant to s 149C(4)(b), disqualifying the Practitioner from being registered in the health profession for a specified period, a period of 12 months, but not more than 18 months, being sought by the Practitioner.
As its terms make clear, the "trigger" for an order pursuant to s 149C(4)(b) is a finding pursuant to s 149C(4)(a) that, that if the person were still registered the Tribunal would have cancelled the person's registration. If the Tribunal is not persuaded that it would have cancelled the Practitioner's registration had he still been registered, there is no power to do more than require the National Board with which the person was registered to record the fact that the Tribunal would have suspended the Practitioner's registration pursuant to s 149C(4)(c).
The Tribunal is comfortably satisfied that, if the Practitioner had been still registered, it would have cancelled his registration. In those circumstances, the Tribunal may order that the Practitioner is disqualified from being registered for a period of twelve months, that being the period sought by the Commission in the alternative and by the Practitioner, albeit the latter was by way of suspension.
Although there have not been specific submissions with respect to it, the effect of an order pursuant to s 149B of the National Law disqualifying a person from being registered for a specified period appears to be that, until the expiration of that period, a person cannot apply to be re-registered. We do not understand it to mean that re-registration is automatic. For the reasons which follow, we would not intend that re-registration would be automatic if, after the expiration of a specified period, the Practitioner were to make such an application.
The Tribunal apprehends that the difference of substance between the primary positions of the parties relates to whether the Practitioner should be able to apply for re-registration as a medical practitioner. If the Practitioner had been registered, the Tribunal would have cancelled his registration. The Tribunal accepts that the risk of the Practitioner reoffending is low. The Tribunal accepts that the proceedings have had a significant impact on the Practitioner in terms of his awareness of the importance of maintaining doctor/patient boundaries, as well as some insight into the aspects of his own personality which led or contributed to his offending conduct. The Tribunal accepts that a reprimand, and conditions of the kind sought by the Practitioner or invited by the Commission in the alternative, would satisfy the requirements of specific deterrence.
The Tribunal is not satisfied, having regard to the gravity of the Practitioner's offending conduct, and the matters to which we refer later in these reasons, that, if he were still registered, declining to cancel the Practitioner's registration would satisfy the requirements of general deterrence. Failing to cancel the Practitioner's registration would also, in the Tribunal's view, fail to adequately signal to practitioners and the public how seriously misconduct of the kind proven against the Practitioner, which involved gross breaches of the trust of a vulnerable patient in the two important aspects referred to in the Tribunal's Stage 1 decision, is viewed.
The Practitioner submitted (at par 26) that: "It [was] evident that the conduct underlying the complaints was substantially influenced by Dr Jouda's socialisation in Iraq and his understanding of its cultural normative values (and the attendant harmful or fatal consequences) which are consistent with cultural normative values within Australia. It is a relatively unique quotient of fear and isolation that engendered much of the conduct".
Whilst the Tribunal accepts that contention, in protective proceedings, the reasons underlying offending conduct are of limited significance. The critical issue is the likelihood of a repetition of the offending conduct, which in turn involves a consideration of the Practitioner's insight into the offending conduct and the extent to which personality attributes which caused or contributed to the offending conduct have been adequately addressed.
On the evidence before it, the Tribunal is unable to accept the submission on behalf of the Practitioner (at par 27) that it "does not appear at all likely that the boundary violations would have occurred in the absence of fear and isolation (the vulnerabilities of which Ms Alexsandra McCredi, Psychologist, spoke in the concluding paragraph of her 9 December 2022 report)."
Similarly, although the Tribunal accepts that the cultural matters relied upon by the Practitioner permit a "component of clemency" in the formulation of the appropriate orders, doing so cannot override the guiding principle articulated in s 3A of the National Law.
Without suggesting that there has been a lack of candour in his consultations with Ms McCredie or Dr Atherton, the Tribunal is persuaded that, in the respects identified by the Commission in its submissions, to which we have earlier referred, there has been an unfortunate inability on the part of the Practitioner to be candid with respect to the alcohol and marijuana issues to which the Commission's submission referred. Although the Practitioner has undoubtedly a greater insight into the reasons which caused or contributed to his offending conduct, particularly at his home on the night Patient A attended there, there are two consequences which are unhelpful to the Practitioner's case.
The first is that, as submitted on behalf of the Commission, the experts to whom the Practitioner has turned for assistance, and particularly his therapeutic expert, Ms McCredie, have been given less than the "full picture", with the consequence that the weight which would otherwise be afforded their evidence is reduced. The other consequence is that, notwithstanding that he now recognises the importance of maintaining appropriate doctor/patient boundaries, the Practitioner's apparent inability to confront the aspects of his offending conduct with respect to consumption of alcohol and marijuana preclude the Tribunal from finding that allowing him to potentially regain his registration in the near future would not constitute an unacceptable risk to the health and safety of the public.
The Tribunal is persuaded, largely by the reasons advanced on behalf of the Practitioner, that a reprimand is appropriate, particularly in view of the previous disciplinary proceedings, and the fact that the offending conduct which gave rise to the present proceedings occurred within a very short time of the Practitioner experiencing disciplinary proceedings as a result of his alleged misconduct. Failing to have a reprimand recorded on the Practitioner's record would potentially compromise the health and safety of the public in the future.
The Tribunal will make an order pursuant to s 149C(4)(b) that the Practitioner is disqualified from being registered as a medical practitioner for a period of twelve months from the date of the Tribunal's order. Although it would clearly be a matter for any authority to whom the Practitioner applied for re-registration as a medical practitioner to determine, on the evidence before the Tribunal, the Practitioner would need to continue to engage with Ms McCredie, and perhaps Dr Atherton, on a regular, consistent, and completely candid basis.

Orders 1. Pursuant to s 149C(4)(a) of the Health Practitioner Regulation National Law (NSW), the Tribunal would have cancelled the Respondent's registration if he were still registered as a medical practitioner. 2. Pursuant to s 149C(4)(b) of the Health Practitioner Regulation National Law (NSW), the Tribunal orders that the Respondent is disqualified from being registered as a medical practitioner for a period of 12 months from the date of this decision. 3. Pursuant to s 149A(1)(a) of the Health Practitioner Regulation National Law (NSW), the Respondent is reprimanded. 4. A party seeking an order for costs file and serve written submissions not exceeding 7 pages in length within 28 days of the date of this decision. 5. A party opposing an order for costs file and serve written submissions not exceeding 7 pages in length within 56 days of the date of this decision. 6. A party opposing an order pursuant to s 50(2) of the Civil and Administrative Act 2013 (NSW) dispensing with a hearing of any costs application include in any submissions filed pursuant to these orders submissions in opposition to such course.

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

Amendments 27 June 2023 - Coversheet and paragraph 1 amended - Respondent's middle name corrected. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2023

Civil and Administrative Act 2013(NSW)

(2020) 102 NSWLR 303

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Cases Cited (23)

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