Health Care Complaints Commission v Kabir

Disciplinary Orders

1. The Tribunal's power to make disciplinary orders, when a complaint is proven or admitted, is provided for in the National Law, Part 8, Division 3, Subdivision 6. Relevantly, they are as follows: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. … 149B Power to fine registered health practitioner in certain cases [NSW] (1) The Tribunal may by order impose a fine on the registered health practitioner of an amount of not more than 250 penalty units. (2) A fine is not to be imposed unless - (a) the Tribunal finds the registered health practitioner to have been guilty of unsatisfactory professional conduct or professional misconduct; and (b) the Tribunal is satisfied there is no other order, or combination of orders, that is appropriate in the public interest. (3) A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct. (4) A fine must be paid within the time specified in the order imposing the fine and must be paid to the Council for the health profession. … 149C Tribunal may suspend or cancel registration in certain cases [NSW] (1) The Tribunal may suspend a registered health practitioner's registration for a specified period or cancel the registered health practitioner's registration if the Tribunal is satisfied - (a) the practitioner is not competent to practise the practitioner's profession; or (b) the practitioner is guilty of professional misconduct; or (c) the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner's profession; or (d) the practitioner is not a suitable person for registration in the practitioner's profession. …

The Respondent's evidence for Stage 2

1. A statement of Dr Kabir, dated 16 February 2022, was provided to the Tribunal. In his statement, Dr Kabir described the detrimental impact that the imposition of conditions upon his registration by the Medical Council of NSW, in late 2016, had upon his practice as an anaesthetist. Those conditions were imposed following a hearing under s 150 of the National Law, and they were effective from 22 December 2016. The practical impact of them was that Dr Kabir was unable to work as an anaesthetist for several months. They were varied in March of 2017, which enabled Dr Kabir to build his practice as an anaesthetist again. His present workload is roughly two thirds of the workload he was undertaking immediately prior to the imposition of conditions.
2. In his statement, Dr Kabir described the emotional impact upon him of Patient A's death as devastating. He said that he has given a great deal of thought to his involvement with her and to the matters which came to be the subject of the complaint.
3. Dr Kabir indicated that he now has insight into the circumstances which resulted in him allowing himself to be drawn into giving medical care to Patient A at home. He said that he would not permit any such thing to occur again.
4. Dr Kabir said that he could not recall an instance in his hospital work when he had proceeded contrary to his clinical judgment. He has spoken up to cancel surgeries in situations where it was necessary and he works well in teams with surgeons and nursing staff.
5. Dr Kabir indicated that he is now much more aware of the ethics of medical practice, and the importance of ethics as a crucial aspect of being a good doctor, than he had been in 2013. He said that he has refused requests from family members and nursing staff for prescriptions and has explained the reasons for that refusal to the people making the requests.
6. Dr Kabir is now aware of the importance of having a regular General Practitioner, and he has one. Dr Kabir said that he believes that he has learned from his mistakes.
7. A letter of Professor McFarlane, psychiatrist, dated 21 December 2021, was provided to the Tribunal. Professor McFarlane said that, in his opinion, the unusual circumstances in 2013 triggered Dr Kabir's amnesic and fugue states. Professor McFarlane said that he had questioned Dr Kabir about his management of high risk and challenging circumstances as an anaesthetist and had not identified any propensity for him to experience an amnesic and fugue state in those circumstances. In Professor McFarlane's opinion, it is highly improbable that Dr Kabir will fall into a dissociative or fugue state again.
8. Professor McFarlane said that Dr Kabir does not suffer from any psychiatric condition which places him at risk of suffering from dissociative amnesia or a fugue state.
9. References in relation to Dr Kabir were provided from four surgeons. All of them work with Dr Kabir. All of them have known Dr Kabir for many years, since before the events the subject of the application. Two of them have a close personal friendship with Dr Kabir and two of them have a cordial personal relationship with him, but characterise their contact with him as predominantly professional. All of them work either weekly or fortnightly with Dr Kabir doing surgical lists, with Dr Kabir as the anaesthetist. Two of the surgeons have worked with Dr Kabir for 12 years, one of the surgeons has worked with Dr Kabir for 10 years, and one of the surgeons has worked with Dr Kabir for 7 years. All of the surgeons say, in their references, that Dr Kabir is an excellent anaesthetist, both from the point of view of his technical work and also from the point of view of his interaction with patients. All of them comment on his excellent judgment and his practice of relying on his own independent judgment as an anaesthetist when performing his work, rather than being inappropriately deferential to anyone else's view. None of them were aware of any concerns about his professional work or manner. Dr Kabir is considered to be a well-liked and respected member of the surgical teams in which he works.
10. Two anaesthetic nurses, who work with Dr Kabir regularly and frequently, provided references. One of the nurses has worked with Dr Kabir for 6 years, and the other has worked with him for 10 years. Both nurses consider Dr Kabir to be competent and confident in his professional judgment. One of the nurses commented that, in emergency situations and stressful cases in the operating theatre, Dr Kabir remains calm and continues to exercise sound judgment.
11. Both of Dr Kabir's supervisors provided references. Dr Beck has supervised Dr Kabir since 2017, under the conditions imposed by the Medical Council of NSW. Dr Beck said that he has no concern about Dr Kabir, and that no issues had arisen with respect to his practice. Dr Beck said that Dr Kabir's anaesthetic work is sound. Dr Satchi has also supervised Dr Kabir since 2017. In his reference, he said that Dr Kabir is a very knowledgeable and capable anaesthetist. Dr Satchi also said that Dr Kabir takes on complicated and challenging anaesthetic cases, and that he trusts Dr Kabir's judgment and anaesthetic skills. Dr Kabir follows his independent judgment, has a good relationship with staff and completes his work in a calm, controlled and collected manner.

The principles to be applied in making protective orders

1. The principles to be applied in making protective orders are well established.
2. We bear in mind the relevant guiding principles of the National Law, which are set out in s 3 of the National Law, together with s 3A of the National Law, which sets out an additional NSW provision: 3 Objectives and guiding principles … (2) The objectives of the national registration and accreditation scheme are - (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and … (3) The guiding principles of the national registration and accreditation scheme are as follows - (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note - This section is an additional New South Wales provision.
3. In the Stage One decision, we set out, in detail, what aspects of the conduct alleged and found to have been engaged in constitutes unsatisfactory professional conduct, and what constitutes professional misconduct. We have summarised those findings and determinations at [6] to [11], above.
4. Professional misconduct, by definition under s 139E of the National law, is: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
5. However, that does not mean that, once the health practitioner has been shown to have committed professional misconduct, suspension or cancellation of that practitioner's registration must inevitably follow. There is an evaluative process to be undertaken. (see Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [71])
6. It is relevant to consider the degree of seriousness of the practitioner's conduct.

The seriousness of the conduct

1. In Health Care Complaints Commission v Litchfield (1997) NSWSC 297, 41 NSWLR 630 at 638, Gleeson CJ, Meagher and Handley JJA said: The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal.
2. We reject any suggestion in the submissions of the HCCC to the effect that the practitioner's conduct should be assessed by reference to a 'spectrum of seriousness'.
3. We reject the submission made on behalf of Dr Kabir that, in deciding whether it is appropriate to impose a suspension of Dr Kabir's registration, or whether to cancel his registration, or whether to do neither of those things, our approach ought to be to decide 'whether at the time the orders are to be made, the practitioner is then fit or unfit to practise, either conditionally or unconditionally, and if not fit, whether suspension or cancellation is appropriate'. We agree that the relevant time for the making of the assessment as to disciplinary orders is at the time that the orders are made, but it is not the case that suspension or cancellation of registration can be appropriate only where a finding has been made that Dr Kabir is not fit to practise. In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [1] and [20], Basten J said: 1. …The following additional observations concern the submission that the power of the Tribunal to cancel a practitioner's registration is engaged only when the Tribunal is satisfied that the practitioner is permanently or indefinitely unfit to practise. … 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. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
4. The duration of Dr Kabir's unsatisfactory professional conduct is relevant. It spanned a period from 2008 to 2016. Beginning in January 2008 and ending in January 2013, Dr Kabir issued 23 prescriptions in Patient A's name, the details of which are set out in the Stage One decision at [18]-[19]. From 14 September 2010 to 30 August 2016, Dr Kabir issued 53 prescriptions in the name of Patient B. From 24 September 2013 to 9 March 2015, Dr Kabir issued 36 prescriptions in the name of Patient C. He kept no medical records in relation to Patient A, Patient B or Patient C. This was a course of conduct, below the applicable professional standard, which endured, in relation to Patient A, for five years, and, in relation to Patient B, for almost six years, and was therefore significantly below the applicable standard. Concerningly, Dr Kabir continued to prescribe for people who were closely associated with him personally, but for whom he was keeping no medical records, namely Patients B and C, for more than three years after the death of Patient A, and more than two years after the death of Patient A, respectively.
5. Dr Kabir misappropriated from hospitals, either directly or indirectly, hospital fluid bags, cannulation equipment, intravenous antibiotics and intravenous paracetamol for use in his treatment of Patient A. No explanation has been proffered as to why he believed, at the time, that this was an appropriate course of conduct. Plainly, drugs and equipment kept at a hospital are for use in work associated with that hospital and not for the private use of doctors or other staff.
6. Dr Kabir's treatment of Patient A, in inserting a cannula, and administering intravenous antibiotics without a clear clinical indication that they were required, and in leaving the cannula in place for several days, thus giving Patient A intravenous access, in circumstances where he had cause to be concerned that she might be abusing drugs (see the Stage One decision at [20]-[21]), was seriously below the standard of conduct expected of a medical practitioner. His conduct in treating Patient A at home, particularly from 12 January 2013 to 18 January 2013 was also seriously below the standard of conduct expected.
7. Dr Kabir's conduct on 18 January 2013 departed from the proper standard of conduct of a medical practitioner by a significant degree. Having failed to revive Patient A, he failed to call an ambulance for two hours. He disposed of the fluid bag and cannula. He drove around for about 90 minutes. We accept, as we set out in the Stage One decision, that, during the two hour period, Dr Kabir was, from time to time, affected by an amnesic or fugue state (see [45] to [73]). However, his disposal of the fluid bag and cannula was clearly intentional and had the effect of taking evidence out of the reach of subsequent investigators. He had the opportunity to call an ambulance, and did not take it. This conduct was a serious departure from the standard of conduct expected of a medical practitioner.

The purpose of disciplinary orders

1. The purpose of disciplinary orders in the context of medical practitioners was usefully summarised in Health Care Complaints Commission v Dr Della Bruna [2014] NSWCATOD 31 at [88], and we take each of the matters outlined into account: In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2) Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83].
2. In the Stage One decision, Dr Kabir was found to be culpable for ethical breaches of various kinds, a number of which fell significantly below the applicable standard of conduct for medical practitioners. The disciplinary orders imposed must signal to the medical profession, and to the public, that such conduct must not occur within the profession. This is necessary to maintain the confidence of the public in the medical profession which, in turn, is an essential part of protecting the health and safety of the public.
3. It was argued on behalf of Dr Kabir that the fact that an inquest was held into Patient A's death, under the Coroners Act 2009 (NSW), with attendant publicity, constituted sufficient denunciation of Dr Kabir's conduct. No authority was cited for that proposition, and we reject it. The purpose of an inquest in relation to a death is made clear in s 3(c) of the Coroners Act 2009, which sets out the relevant object of the Act, as follows: (c) to enable coroners to investigate certain kinds of deaths or suspected deaths in order to determine the identities of the deceased persons, the times and dates of their deaths and the manner and cause of their deaths
4. Any findings by the coroner in relation to Dr Kabir's conduct were incidental to the purpose of the inquest. Making disciplinary findings in relation to an individual medical practitioner is not part of the coroner's role.
5. There is no evidence before us to suggest that Dr Kabir's misconduct had an adverse impact upon his ability to undertake his work as an anaesthetist at any point in time. In fact, the references before us, which are summarised above at [21] to [23] indicate to the contrary. We accept that it is not necessary to protect Dr Kabir's patients, or the public generally, from Dr Kabir in his work as an anaesthetist.

Other relevant matters

1. It is relevant, when considering the disciplinary orders which it is appropriate to impose, to consider Dr Kabir's conduct subsequent to the conduct the subject of the application. However, we reject the submission made on behalf of Dr Kabir, that the effluxion of time, of itself, is a factor which should ameliorate the disciplinary orders. Having said that, Dr Kabir has had the benefit of having that time to show that his misconduct would not continue. It may well be that, had disciplinary action been taken in 2013 or 2014, the cancellation of Dr Kabir's registration would have been seriously considered.
2. As we have said, it is a matter of concern that Dr Kabir continued to prescribe for Patient B until 30 August 2016, more than three years after Patient A's death. However, there is no reason to think that Dr Kabir has prescribed for close personal associates since that time.
3. Dr Kabir expressed regret in relation to his misconduct. He asserted that he knows that his conduct was wrong and he will not repeat it. He points to his changed circumstances and, in particular, to the fact that he is now happily married.
4. A significant part of the explanation provided by Dr Kabir for his misconduct was the nature of his relationship with Patient A, and his asserted immaturity at the time of their relationship. We note that Dr Kabir was either 35 or 36 years old in January 2013.
5. This explanation is not altogether comprehensive. It clearly has nothing to do with the prescribing to Patients B and C. It does not address Dr Kabir's failure to understand that he was providing a medical service to Patients A, B and C and was therefore obliged to write medical records for his treatment of them for the benefit of their future medical advisors. It does not address Dr Kabir's failure to recognise the gravity of acting as a doctor in an area beyond his expertise, in circumstances where Patient A had a multi-faceted, complex presentation. It does not address his misappropriation of hospital property, including drugs.

Appropriate disciplinary orders

1. It was submitted, on behalf of Dr Kabir, that the continuation of the conditions on Dr Kabir's registration, imposed by the Medical Board, in April 2017, 'is a matter for the Council rather than the Tribunal'. In the context of disciplinary proceedings before the Tribunal that is not correct.
2. The National Law provides, in s 150H: 150H Duration of conditions - complaint matters [NSW] (1) This section applies if - (a) a Council for a health profession imposes conditions on the registration of a registered health practitioner or student under section 150; and (b) the matter is dealt with as a complaint against the practitioner or student. (2) The conditions imposed by the Council have effect until the first of the following happens - (a) the complaint about the registered health practitioner or student is disposed of; (b) the conditions are removed by the Council. (3) This section - (a) does not prevent conditions being imposed under another provision of this Law; and (b) is subject to anything done by the Tribunal on an appeal.
3. This decision will dispose of the complaint about Dr Kabir. Consequently, under s 150H, the conditions imposed by the Medical Council in April of 2017 will cease to have effect (see also s 150I(9)(b) of the National Law). The Medical Council and the Tribunal are decision makers in a single, co-ordinated regulatory system under the National Law.
4. Both parties to this matter put forward a draft set of disciplinary orders for the Tribunal's consideration. Those draft orders were useful for the purposes of the submissions in relation to disciplinary orders, but the Tribunal is not obliged to choose one or other set, or even a combination of the two sets of draft orders, and may craft the set of orders it considers to be appropriate.
5. We have considered whether there is any need, at this point in time, for Dr Kabir to be under any form of supervision with respect to his practice as an anaesthetist. No evidence has been provided that this is now warranted, so there will be no such condition. However, we will impose a condition requiring that Dr Kabir have a mentor, who shall be a senior anaesthetist, with whom he will meet twice a year to discuss which continuing medical education units Dr Kabir should undertake.
6. We are concerned that Dr Kabir has seemingly not sought any counselling concerning his misconduct, but has only seen a psychologist to discuss the stress of the inquest and these proceedings. Dr Kabir agreed to a condition with respect to consulting a psychologist in the future. We agree that it is likely to be of some benefit to impose a condition with respect to future consultation with a psychologist, but we will impose a condition which gives more certainty as to what is to occur than the draft condition put forward.
7. The HCCC seeks an order for Dr Kabir's suspension for a period of two months. This is resisted, on the basis that his competence as an anaesthetist is not in issue. We consider that the submissions made on behalf of Dr Kabir fail to address many of the matters of concern in relation to these proceedings, which are set out in detail above, including at [42] to [46], and in the Stage One decision. Aspects of Dr Kabir's misconduct were a serious departure from the standards expected of a medical practitioner. Dr Kabir, and medical professionals in general, must be deterred from practising or giving medical advice outside of their areas of expertise, from treating close personal associates as patients and then failing to keep records, from misappropriating equipment and drugs from hospitals and from prescribing drugs to close personal associates at all, especially in circumstances where they have not formed an independent view as to the need for those drugs. We consider that a period of suspension is warranted. We consider that the appropriate period is four months, to begin one month from the publication of this decision.
8. It was submitted on behalf of the respondent that the imposition of a fine would be sufficient to denounce the misconduct and deter like conduct. We disagree. The duration and variety of kinds of misconduct make suspension appropriate.
9. The HCCC seeks an order for costs, which was not opposed.

Orders

1. The non-publication orders made in the Stage One decision continue.
2. We will make the following orders: 1. Dr Kabir is reprimanded. 2. Dr Kabir is suspended from the register of health practitioners for a period of four months, commencing four weeks after the date of the publication of these orders. 3. It is a condition of his registration that, following the end of his suspension, Dr Kabir is to attend for treatment by a psychologist of his choice on a monthly basis for a minimum of six months. 4. It is a condition of his registration that Dr Kabir: 1. inform the Medical Council of NSW of the name, address and qualifications of his treating psychologist, 2. authorise his treating psychologist to inform the Medical Council of NSW of all and any of the following: 1. Dr Kabir's failure to attend for treatment 2. The termination of treatment 3. A significant change in Dr Kabir's health status (including a significant temporary change). 1. It is a condition of his registration that Dr Kabir do the following in relation to Continuing Professional Development: 1. nominate and obtain the approval of the Medical Council of NSW for a senior anaesthetist to be his mentor for the purpose of selecting Continuing Professional Development activities relevant to anaesthetists for Dr Kabir to attend, 2. for the two years following the end of the period of his suspension, meet with the mentor on at least two occasions, 3. complete at least two of the activities offered in the Australian and New Zealand College of Anaesthetists (ANZCA) Continuing Professional Development Emergency Response modules by the end of 2023, one of which shall include cardiac arrest. 1. The Medical Council of NSW is the appropriate review body to review the conditions imposed by Orders 3, 4 and 5 of these orders. The Health Practitioner Regulation National Law ss 125, 126 and 127 will apply if Dr Kabir's place of practice is anywhere in Australia other than New South Wales so that the appropriate review body in those circumstances will be the Medical Board of Australia. 2. Dr Kabir is to pay the costs of the Health Care Complaints Commission as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 April 2022