Health Care Complaints Commission v Khan

Applicant's submissions

1. The applicant refers to the breach of boundaries of confidentiality with former patients, and the inappropriate emotional connection with the respondent's patients. The applicant points to the fact that whilst a sexual relationship between the respondent and a patient was not found by the Tribunal, the respondent allowed himself to treat the patient with "mutuality" and allowed a friendly relationship to develop on a consensual basis. The respondent submitted such conduct infringes the standards referred to in the publication of the Medical Board of Australia, namely "Good Medical Practice: A Code of Conduct for Doctors in Australia". The applicant points to the findings that the respondent had sent numerous messages which were suggestive of forming a sexual relationship to a patient, and that such conduct violated the practitioner/patient relationship.
2. The applicant submits that although the respondent did not appear in the Stage 1 proceeding, he provided written submissions which demonstrated that, although he was contrite and expressed remorse, he relied upon his emotional turmoil as a justification to encourage an association outside of the patient/doctor relationship with certain of his patients. The applicant submits that the tribunal could not accept the opinions expressed by a psychologist, and a psychiatrist, that the respondent would not cross such boundaries in the future. Whilst the respondent attributes his conduct to claimed depression and loneliness because of his wife's absence from Australia, and of alcohol abuse, this was insufficient to explain the number of female patients with whom the respondent attempted to form an association, nor the manner in which he conducted his association with text messages.
3. The applicant submits that the Tribunal's finding of an inappropriate breast examination of one patient (Patient I), is a serious matter. Such conduct had nothing to do with seeking "counsel" of women whilst in his alleged emotional turmoil, and the respondent's claim that he was not pursuing an extramarital relationship is inconsistent with his admission to having sought such a relationship with Patient A.
4. For these reasons, the applicant submits the only appropriate sanction is cancellation of the registration of the respondent as a medical practitioner.

Respondent's submissions

1. The respondent expresses his embarrassment, contrition, shame and remorse for his conduct, stating: I am embarrassingly ashamed for having been guilty of unsatisfactory professional conduct, to be more precise texting my patients out of the therapeutic context in 2015 that lead (sic) to suspension of my medical license (sic) in October 2015 by the Medical Council of NSW.
2. The respondent again acknowledges that he is "guilty of the same"; of having transgressed boundaries of a therapeutic doctor-patient relationship "emotionally but never physically or bodily whether or not I was in the clinic or outside of it". The respondent continues: "I have never examined any patient's private physical bodily parts appropriately or inappropriately in my life and in 2015 we did have a female doctor who could have done it for me, and all the patients knew that a female doctor is present".
3. The respondent states: "The only mistake in my prior submissions had always been "my attempt" to express and articulate the reasons that led to this professional conduct". Thereafter the respondent provides the reasons as being emotional turmoil. He states that since the "catastrophic events of 2015" he has "grappled" to the best of his ability and struggled to find out "why all of it happened so that I could not only justify my existence after that but also to be emotionally and mentally strong enough to prevent it from happening again."
4. The respondent states that he has read substantially on literature concerning psychology, ethics, morality, religion, philosophy, character and personality and the effects of depression and alcohol "just to find out why it happened". The respondent states that depression increases the perception of being lonely and makes a person disconnect with the "normal" people and world; that alcohol is unique as a mood-altering substance and that rather than "inhibiting the instincts and impulses it provokes these and makes the person fearless of the consequences." The respondent states that he accepts any disciplinary sanction which the tribunal considers appropriate.

Consideration

1. Section 3A of the National Law requires that the "protection of the health and safety of the public must be the paramount consideration", when considering an application to practise medicine. It is a fundamental requirement of the objective of section 3A that the practitioner must be considered to be a "fit and proper person" to practise. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher J said: "…It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise…"
2. The purpose of imposing disciplinary sanctions is to protect the public; it is not intended to punish a practitioner who has been found guilty of unsatisfactory professional conduct or professional misconduct: see Health Care Complaints Commission v Litchfield [1997] NSWLR 264. However it has also been recognised that where conduct is regarded as sufficiently serious, deregistration or suspension may involve an element of punishment: see Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].
3. It has also been recognised that there is no fixed boundary between unsatisfactory professional conduct and professional misconduct. Professional misconduct would arise, for example, where conduct of the practitioner is proven to be so gross that it can be immediately classified as professional misconduct. However, there are other instances where unsatisfactory professional conduct may, because of its gravity, degree or of its cumulative effect, constitute professional misconduct. Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 observed in paragraphs [18] - [20] such considerations and stated inter alia: "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 judgement made by the Tribunal."
4. The respondent clearly acknowledges that his conduct in communicating and trying to form an association with his female patients constituted unsatisfactory professional conduct. The Tribunal considers it appropriate to refer to some of the patients, and to consider the conduct of the respondent in relation to them.
5. The patients who have come to notice were aged between 20 and 45 years, were female and were vulnerable in the sense that most had a history of and sought treatment from the respondent for mental health challenges. The Tribunal has already dealt in the Stage 1 hearing decision with the particular circumstances of each patient. For convenience, a sample of four patients will be referred to in this decision.
6. Patient A was a retail sales assistant who was born in 1995. The respondent, having been born in 1974, was 20 years older than his patient. The notes recorded by the respondent on 20 April 2015 do not record the reason for the consultation other than: "New patient". The evidence suggests that Patient A consulted the respondent for anxiety and feelings of depression. Numerous pathology tests were ordered. At a meeting in about June 2015 the respondent asked Patient A to talk to him about the problems in her life, stating that a psychologist at the practice was too busy and that he could be her psychologist.
7. The respondent acknowledges that he became attracted to the patient thereafter, and that having obtained the patient's mobile telephone number he contacted her frequently seeking to discuss his marital issues and stated on one occasion words to the effect of: "I need to tell you why I'm talking to you. I really liked you since I first saw you. I have unconditional love for you. If ever you want to be with me I'm ready for you".
8. The respondent said words to the effect of: "I wanted you the first time I saw you".
9. The respondent sent 232 text messages of a personal nature to Patient A. The respondent also made comments in some of such messages suggesting that her boyfriend was "cheating" on her. He requested her to visit his house, or to meet him in a park.
10. Bearing in mind the relationship of medical practitioner and patient, the age difference between the medical practitioner and Patient A, and the knowledge that she was suffering from depression and anxiety, the Tribunal finds the conduct of the respondent to be reprehensible. It was a patient who required medical assistance, and is not at all appropriate for the practitioner to seek solace or support from his patient nor to disclose his personal details or difficulties with her.
11. Patient B was 26 years of age. She was also suffering from anxiety and depression for which the respondent prescribed antidepressants. Thereafter the boundaries between medical practitioner and patient were transgressed, as the respondent sent text messages and personal messages to Patient B asking her to come over to his house for coffee and stating that he was "in trouble". This patient had attempted suicide. Yet the respondent did not appear to consider the impact of his conduct on her fragile mental state.
12. Patient C was 44 years of age. She states she was desperate and suicidal having been the victim of a sexual assault. The patient was in need of medical treatment for mental health issues and states that she was vulnerable. The respondent searched for her address on Google. The respondent visited the patient at her home where he discussed his personal issues.
13. Patient D was 37 years old. She was suffering from depression and found the initial consultations with the respondent professional and supportive. However thereafter the respondent communicated by iMessages and phone calls and explained to the patient about his marital difficulties. The records show that a substantial quantity of messages were sent by the respondent to the patient.
14. A similar pattern existed in relation to other patients who are referred to in the Complaint; see the decision relating to Stage 1 at paras [22] to [190]. The material shows that hundreds of messages were sent by iMessaging or texts to such patients. For example, one patient (Patient F) received 26 text messages and 186 iMessages of a personal nature. Patient G received 82 text messages of a similar nature. The messaging was unrelated to their medical condition or treatment. They were in some cases of a salacious nature, or seductive.
15. Despite the findings of the Tribunal, the respondent refuses to accept that he engaged in any inappropriate conduct concerning the inappropriate breast examination with Patient I. The Tribunal considered the evidence adduced by the applicant and the denials by the respondent, but was satisfied that the conduct complained of occurred.
16. The Tribunal is concerned that the refusal to accept the findings on this issue demonstrates a lack of insight by the respondent. Further, whilst the respondent blames loneliness, depression, and alcohol for his conduct, there is no satisfactory explanation for the hundreds of messages sent to various patients; for the meetings he set up between himself and certain of his female patients; and the clear indication with Patient A that he would like to have an extra marital affair. In HCCC v Sunjic [2008] NSWNMT 12, which considered the case of a registered nurse who had entered into a sexual relationship with a former patient, thereby constituting professional misconduct, the decision of Jacobsen v Nurses Tribunal (unreported: Dunford J BC 9705032), where the court considered the case where a nurse formed a relationship with a mental health patient, was referred to. In Jacobsen, though the nurse arranged for the patient to be treated by another, he continued the sexual relationship with the now former patient. In Sunjic the Tribunal recognised the vulnerable position of mental health patients and said at [82] (referring to Jacobsen): "The Court held that "The plaintiff had entered into a sexual relationship with an X-patient, of whom he knew much that was confidential to the professional relationship, and he was likely to suffer from future mental illness. This fact alone was serious enough to elevate the nature of the conduct from unsatisfactory professional conduct or professional misconduct as it undoubtedly offended against the foundations of the nurse/patient relationship and justified the removal of the plaintiff's name from the register".
17. The conduct of the respondent is even more egregious when the patients sought assistance for mental health conditions and were current patients of the respondent. In HCCC v Engel-Jones [2011] NSWNMT 23 at [51], the Tribunal said: "The Tribunal has an obligation to assist in maintaining public confidence in the nursing profession and to confirm for nurses (and midwives) that their professional standards will be maintained. The order the Tribunal makes in circumstances of this case must reflect the fact that mental health patients are perhaps the most emotionally vulnerable patients a nurse may treat and that the ethical standards of nurses need to be steadfastly maintained in relation to them. Keeping the professional boundary between themselves and their patient is a matter that is well understood and practised by most mental health nurses".
18. The above extract was quoted in HCCC v Scully [2011] NSWNMT 28. The principles apply with even greater force to a qualified medical practitioner.
19. The respondent's conduct is disturbing. It clearly contravenes the Code of Conduct referred to above. Section 1.4 of the Code states, inter alia; "Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy. Patients trust their doctors because they believe that, in addition to being competent, the doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely upon their doctors to protect their confidentiality."
20. Other relevant statements of the Code have been set out at para [59] of the Tribunal's decision in relation to the Stage 1 proceedings.
21. There is nothing before the Tribunal, except statements of remorse and shame, which gives the Tribunal confidence that the conduct would not re-occur if the respondent found himself to be in circumstances similar to those in which he found himself in 2015 when the offending conduct occurred. The expressions of remorse do not satisfy the Tribunal that there is a real understanding of the boundaries which are crossed or the harms caused or potentially caused to the involved patients. More importantly, the respondent seems to have no concept of the reason why such boundaries exist between a medical practitioner and his patient.
22. The respondent's psychiatrist, Dr Ang in her report of 2 May 2016 submits that the factors which gave rise to the offending have now been removed. Dr Ang states: "In Summary it appears the circumstances contributing to Dr Khan's Boundary violations have been resolved. His Depression is in Remission. Alcohol Abuse is in Remission. The loneliness and isolation from family, friends and community have resolved".
23. The respondent does not seem to have any insight into the fact that his conduct could have only served to damage his patients by divulging his own problems to them. The patients consulted the practitioner for medical assistance. Instead, he sought assistance from them. As Dr Howle, the expert retained by the HCCC stated in his report of 2 June 2016, the respondent sought emotional support from eight patients over a very short period, almost simultaneously; the respondent used a very vulnerable group to provide himself with "companionship". The text messages, in some cases clearly went beyond seeking "companionship"; he suggested a meeting at a patient's home; the texting did not suggest any therapeutic purpose in contacting such patients.
24. The respondent attributes such conduct to a "mistake" and suggests that alcohol was a factor. However there is no clear evidence that alcohol use accounts for the very many instances of text messaging and for the respondent's arranging contact with patients outside the consulting room.
25. But it was not merely the respondent discussing his issues with the patients which exceeded all boundaries of proper medical standards. The respondent's conduct was predatory. The respondent declared his love for more than one patient and pursued patients simultaneously for his own purposes. Such conduct is a gross violation of the requisite standards.
26. The respondent claims that he was depressed and lonely. Even if he was suffering from depression, it does not adequately explain his conduct towards his patients, all of whom were vulnerable. In these circumstances the Tribunal is not satisfied that the confident prediction of Dr Ang should be accepted.

Finding

1. The Tribunal is aware that the respondent is now residing in Pakistan. Accordingly the question of measures which might be required should the respondent ever seek to practise in Australia again, must be considered. There is some reference to the fact that the respondent has undertaken courses which might assist him. The respondent has undertaken readings and ethics courses and was enrolled to undertake an ethics course through Monash University which was scheduled to commence in February 2016. There is no evidence of the nature and extent of such courses, as no detail has been provided to the Tribunal and the Tribunal is not aware that any such facilities exist in Pakistan. There is no evidence before the Tribunal that, since the date of the respondent's suspension, he has actually completed any courses of instruction, nor is there clear evidence of any practical understanding gained through learning about ethics, nor is there evidence that the respondent's own deficits have been addressed sufficiently by any learning so as to be protective of the public into the future.
2. There is no evidence that the respondent has undertaken personal therapy aimed at increasing his insight, or understanding of the reasons for maintenance of professional boundaries, and the impact of boundary violations on patients. Further, there is no evidence that he has sought assistance in relation to his personal vulnerabilities or in order to develop more adaptive coping strategies during periods of personal stress.
3. Dr Howle (expert consultant by HCCC) opined (in relation to Patient I): "… This conduct is a boundary violation by treating a patient whilst having a very personal relationship with her. It is more disturbing as her medical problems were mostly psychological in nature. I see this conduct could be seen as taking advantage of a vulnerable patient, and gives me concern as to whether Dr Khan has any concept of ethical behaviour".
4. Dr Howle continued in respect of Patient E: "…as indicated in my answers with respect to the first patient and the included references, one has to be very careful in any non-professional contact with a current patient. In this case, Dr Khan says he was having his own psychological problems and needed support. To utilise a young female patient, who is also having psychological problems, as an appropriate person to seek emotional support from is wrong in several ways. He should have been approaching a peer, friend, or professional; he should not have been approaching any patient; he certainly should not have been approaching a patient with similar problems, and probably should have been avoiding a young female. This is a boundary violation, and also suggests that Dr Khan lacks insight into normal ethical behaviour. I believe his conduct was significantly below the expected standard of a practitioner of an equivalent level of training or experience, applicable at the time of the conduct, and invite my strong criticism."
5. The Tribunal is required to ensure the maintenance of ethical standards by medical practitioners: see Roberts v Medical Council of New South Wales [2015] NSWCATOD 35 where the Tribunal commented that it was necessary to consider whether confidence may be imposed on a practitioner to uphold and observe "the high standards of moral rectitude required of a medical practitioner".
6. In Prakash v HCCC [2006] NSWCA 153 at [91], Basten JA said: "…However the public interest includes indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners. There is also 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".
7. Such principles follow from the requirement of the National Law. In Health Care Complaints Commission v Do at [33], Meagher JA said: "The factors which the Tribunal is required to consider in the exercise of its protective jurisdiction are to be found in the terms of the Law. They may be stated expressly authorised by implication from its subject-matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 - 40 (Mason J)."
8. Ultimately, the question is whether the respondent is a fit and proper person to have the privilege of being a medical practitioner: as to fitness, see Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at [56]. In NSW Bar Association v Meakes [2006] NSWCA 340, Basten JA observed that the protective purpose (for legislation relating to regulation of professions) was to firstly remove the practitioner from membership of the profession or provide a deterrent against repetition of the conduct by way of reprimand or fine; second it reminded other members of the profession of the importance of maintaining the appropriate professional standards; thirdly it gave emphasis to the unacceptability of the conduct involved; fourth, it was directed to maintenance of public confidence in the standards of the profession. Such principles were reflected by Meagher JA in HCCC v Do at [35].
9. The question of fitness to practise medicine involves the question of whether the impugned conduct was improper or unethical: that is, "viewed objectively, would [it] be regarded by reasonable persons as falling below the standards of conduct to be expected…in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both…": see Office of Local Government v Toma [2016] NSWCATOD 21. See also the observations of French CJ in Parker v Comptroller-General of Customs [2009] 83 ALJR 494; [2009] HCA 7 in which his Honour provided the ordinary meanings of "improper" as being "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, in erroneous, wrong", as was referred to in Health Care Complaints Commission v Liu [2016] NSWCATOD 133. The Tribunal must determine whether the misconduct is "sufficiently serious" to justify an order (where professional misconduct is found): see Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186.
10. No element of punishment is involved in imposing a disciplinary sanction as has already been referred to: see New South Wales Bar Association v Evatt (1968) 117 CLR 177 at pages 183 - 184 (per Barwick CJ, Kitto, Taylor, Menzies and Owen JJ). However, it does not follow that an order of deregistration with a period of prohibition on making any application for future registration, cannot be imposed to protect the public and to act as a general deterrent to other practitioners, and in this way serve to uphold the standards of the profession: see HCCC v Dr Saeid Saedlounia [2013] NSWMT 13 at [43] - [50].
11. Taking into consideration the above, the Tribunal is satisfied that the respondent is currently not a fit and proper person to be registered as a medical practitioner under the National Law. Registration of the respondent should be cancelled with a direction that no further application for reregistration be made within a period of three years from the date of publication of these reasons.
12. The Tribunal is cognizant of the fact that the respondent has not been practising as a medical practitioner since the date of his suspension and departure from Australia in July 2016. The Tribunal has given consideration to whether such period should be taken into account in determining the period of time in which the respondent will be prohibited from reapplying as a medical practitioner. The Tribunal considers that, unlike sentences for crimes where sentences may be backdated to reduce the penalty, the Tribunal's functions are entirely different. They are directed to protecting the public and the Tribunal considers that aspect prospectively, not retrospectively. Accordingly the Tribunal finds that it should not countenance the period of suspension which has already elapsed. The Tribunal's conclusions are in accordance with the observations of the Tribunal in Health Care Complaints Commission v Karimi [2018] NSWCATOD 197.
13. The Tribunal has noted the many references in the form of statutory declarations provided by former patients and co-workers. Whilst they demonstrate his capabilities as a medical practitioner, they do not address the issues which have led to the complaints. The Tribunal observes that the practitioner's development of insight into his own misconduct depends upon his acceptance of the adverse findings of the Tribunal. Unless the respondent fully accepts such findings, further time is required to develop insight before the public could be adequately protected.

Costs

1. Costs have not been argued, but the originating application filed by the applicant seeks an order that the respondent pay the costs of the proceedings. The applicant reiterated its claim for costs at the conclusion of the Stage 2 hearing.
2. The usual rule is that, where adverse findings have been made against a practitioner, of unprofessional conduct or professional misconduct, the unsuccessful party should bear the costs: see HCCC v Philipiah [2013] NSWCA 342, at [42 - 44]. An award of costs is intended to compensate the successful party: an award is not intended to penalise the unsuccessful party: see Latoudis v Casey (1990) 170 CLR 534 especially at 543 (per Mason CJ). Such principle has been extended to Tribunals: see Ohn v Walton (1905) 36 NSWLR 77; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]; NSW Medical Board v Dinakar [2009] NSWMT 8.
3. Usually the Tribunal follows the practice that costs should follow the event. Where proceedings have been taken and have incurred unnecessary costs or expense, such costs will not be awarded: see Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48) - [52]. An award of costs is discretionary: see Williams v Lewer [1974] 2 NSWLR 91 at 95.
4. The power to award costs is provided in clause 13 of Schedule 5D of the National Law. The Tribunal will make an order that the respondent pay the cost of the applicant of these proceedings, but will allow either party 21 days in which to apply for a different order for costs.

Orders

1. The Tribunal therefore makes the following findings and orders: 1. Pursuant to section 149C (1) (b) of the Health Practitioner Regulation National Law (NSW) the Tribunal orders that the respondent's registration as a medical practitioner be cancelled and that the respondent, pursuant to section 149C (7) not apply for reregistration for a period of three years from the date of this decision. 2. Pursuant to clause 13 of Schedule 5D of the National Law, the respondent pay the costs of the applicant of these proceedings. Any application for a different order for costs is to be made to the Tribunal within 21 days of the date of these orders. 3. Order (2) made on 2 January 2019 relating to the non-publication of the identity of patients and of a witness in the proceedings be continued permanently.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2019