Health Care Complaints Commission v Moussa

NCAT Occupational|2021-05-07|Before: The Hon J, Boland AM

Introduction

Dr Jamal Mohamad Moussa (the practitioner) is a medical practitioner who was first registered in New South Wales in October 2007. On 30 November 2020 the Health Care Complaints Commission (HCCC) commenced disciplinary proceedings against the practitioner in the Tribunal.
In a directions list held on 23 April 2021 the practitioner's solicitor made an oral application to vacate the hearing of the disciplinary proceedings fixed to commence on 17 May 2021 for three days and also sought to review a decision of the Registrar not to issue a summons for the production of documents addressed to a general practitioner.
Directions were made on 23 April 2021 for both parties to file and serve any material and written submissions in respect of the adjournment application and the summons by 27 April 2021 (in respect of the practitioner) and 30 April 2021 (in respect of the HCCC). The parties agreed this matter could be determined by me pursuant to s 165B(5A) of the Health Practitioner Regulation National Law (NSW) (the National Law) on the papers.
In material filed on behalf of the practitioner, while pressing for the adjournment, if that adjournment is not granted, orders are sought for the filing of material and that the matter proceed as a Stage 1 hearing only on the allocated hearing dates.
For the reasons that follow I have determined that the hearing should proceed as a Stage 1 hearing only on the allocated hearing dates, and that the Summons should be issued but with leave granted to the HCCC to first inspect any documents produced.

The parties' evidence/submissions in respect of the applications

In her affidavit, after referring to the allocated hearing dates, Ms Brown explains that, on 13 April 2021, after she had requested the practitioner to complete his statement, that he forwarded an email to her in which he said his business visa had been cancelled the previous Monday and immigration had only given him two weeks to make an application for a new visa. Ms Brown relates the practitioner advising her he was applying for a partner visa but "this required a voluminous amount of documentation to be completed and certified by a JP, together with a Police Check in Australia and al [sic] his places of residences overseas, witness statements and the like". She also deposes the practitioner said he was required to complete his visa material by 16 April 2021, but if this was not successful he would be deported from Australia at the end of April 2021.
As noted above, Ms Brown annexes to her affidavit a copy of the AAT decision which I note is dated 30 March 2021. The AAT member affirmed the delegate's decision to refuse the practitioner a Bridging A (Class WA) (Subclass 010) visa.
Ms Brown deposes that the practitioner advised her that the decision was initially to submit an appeal of the AAT decision to the Federal Court, provisionally with a hearing on 27 May 2021, "which will entail the drafting and collation of voluminous documents".
Ms Brown deposes that "as a result of these developments, the Respondent has not been able to finalise his material in reply in accordance with the time-table and will not be able to in a timely fashion prior to the hearing".
On 27 April 2021 Ms Brown forwarded a letter from M.I.C Lawyers (Muhammad Iqbal Chaudhry, Solicitor and Migration Agent) to the Registrar. Mr Chaudhry confirms that he acts for the practitioner and that he has lodged the practitioner's application for a bridging visa and states "We are not informed of when his bridging visa will be granted. His current visa expires on 30 April 2021."
Mr Chaudhry's letter also notes that the practitioner has filed an application for judicial review in the Federal Circuit Court of Australia. Mr Chaudhry opines "However, we believe his chances of being successful is [sic] low, considering our past experiences." Mr Chaudhry's letter concludes: "We have informed Dr Jamal Moussa that even if his bridging visa is granted it will be for a limited time and that he needs to prepare either to leave Australia, or to seek other form/s of application that will enable him to lawfully stay in Australia."

The HCCC's submissions

The HCCC submissions note that "At this stage, the Commission opposes the Respondent's Application to vacate the hearing dates".
The submissions note that it is not clear either from Ms Brown's affidavit or the Migration Agent's letter what the practitioner's situation is post 30 April 2021 and before the judicial review proceedings.
The submissions refer to my decision in Health Care Complaints Commission v Mooney [2021] NSWCATOD 15 in which I set out the Tribunal's guidelines on adjournment.
The submissions next note the condition on the practitioner's registration, but submit the Complaint asserts very serious matters involving a vulnerable complainant, and "it is in the public interest to have the matter dealt with expeditiously".
The submissions conclude by noting "The Commission may reconsider its position upon receipt of further detailed evidence."
In dealing with the practitioner's request to issue a summons, the submissions note the basis on which the practitioner seeks to issue the summons is "that the complainant in her statements attests that she told her GP about the alleged inappropriate conduct at the material time." The HCCC submit that Medicare data "suggests" the complainant did not consult with the relevant practitioner until 28 February 2019. It is further asserted that there is no suggestion on the complainant's evidence that she made any disclosure to a health professional before her attendance at Tweed Heads Community Health Sexual Assault service on 23 March 2019.
The HCCC also suggest the schedule of the Summons as drafted is broad and should be limited in time to around the time of the sexual assault.

Relevant law

As noted in the HCCC submissions, I referred briefly to relevant legal principles and in particular to the Tribunal's guideline on adjournments in Health Care Complaints Commission v Mooney [2021] NSWCATOD 15 as follows: "[15] The principles relevant to an adjournment are set out in the guideline as follows: 3. The overriding principle is that when a date and time has been set for a hearing it will go ahead on that date and at that time, unless the Tribunal allows an adjournment. 4. In considering whether to allow an adjournment, the Tribunal will: a) take into account the need to manage cases and hearings fairly and efficiently. This includes making sure cases are heard as soon as possible, and b) allow an adjournment only if the party requesting it has a good reason and it is fair in all the circumstances to adjourn. [16] These principles accord with common law principles dealing with late amendments and adjournments (see Aon Risk Services Australia Limited v Australian National University [2009] HCA 27) and give emphasis to the objects of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act)."
It is also relevant to note that the overriding principle to be applied in determining an application such as the present one is where the interests of justice lie.
It is also relevant in considering this application that I take into account cl 11 of Schedule 5D of the National Law. Clause 11 provides as follows: 11 Expedition of inquiries and appeals [NSW] (1) It is the duty of a Committee or the Tribunal to hear inquiries and appeals under this Law and to determine those inquiries and appeals expeditiously. (2) Without limiting subclause (1) - (a) an inquiry or appeal related to action taken by the Council under section 150 must be listed for hearing by a Committee or the Tribunal as soon as practicable; and (b) a Committee or the Tribunal may postpone or adjourn proceedings before it as it thinks fit.

Consideration

I commence by noting that the Tribunal's orders required the practitioner to serve his Reply and material in support by 12 March 2021. There is no explanation as to why the practitioner could not have served his material when he received the HCCC's evidence by the end of January 2021 and had been aware of the complaint from December 2020. No attempt was made by the practitioner to seek an extension of time for filing his material.
I further take into account, as referred to by the HCCC in their submissions, that there is a paucity of evidence about the practitioner's visa status after 30 April 2021 although I infer from Ms Brown's affidavit that the practitioner is making an application for a partner visa which is likely to take some time to be considered by the Minister's delegate and which decision would be subject to appeal rights to the AAT if unsuccessful. I also take into account that the practitioner now has an application before the Federal Circuit Court. This again suggests his immediate deportation is unlikely before that application is heard and determined.
In the event I am wrong in my consideration of the practitioner's visa status, it appears to me that if the proceedings are adjourned and the practitioner leaves Australia indefinitely that there are likely to be difficulties in fixing new hearing dates and times with the practitioner's cross-examination having to occur by electronic means across different time zones.
I have given considerable weight in considering this application to the circumstances of the complainant as asserted in the particulars of the Complaint. I note that it is asserted the practitioner diagnosed the complainant as suffering "acute mania", that he prescribed anti-psychotic medication for her and other medications including oxycodone, naloxone and olanzapine. The inappropriate relationship complaint includes a complaint of 41 inappropriate messages via Facebook Messenger, and inappropriate behaviour of a sexual nature.
The HCCC note, notwithstanding the present condition on the practitioner's registration that the complainant's vulnerability should be taken into account as should the public interest in determining the serious allegations against the practitioner in a timely way. I agree with that submission. It would no doubt be distressing for Patient A to have the matter deferred for an indefinite period of time.
I have also taken into account Ms Brown's acknowledgment that if the matter is not adjourned Stage 1 only should be heard in the three days presently allocated. Such a course will provide the practitioner with an opportunity for further time to provide any evidence relevant to protective orders, if any, which may be contemplated after the Stage 1 hearing.
Although not mentioned in either party's submission, I note that the Tribunal has expended time and resources in requesting the Medical Council of New South Wales to nominate members, including two medical practitioners, and appointing suitable persons as occasional members of the Tribunal pursuant to s 11 of the Civil and Administrative Tribunal Act 2013 (NSW). It is essential to the Tribunal's ability to hear and determine matters in the Health List in a timely manner that professionals are prepared to make themselves available to be appointed as occasional members. To serve on the Tribunal the professionals appointed as occasional members frequently have to make alternative arrangements for their practices such as employing a locum or cancelling clinics or patient appointments. Late adjournment applications cause considerable inconvenience to the occasional members and often their patients and can be a deterrent to agreeing to serve on the Tribunal.
I also take into account that the practitioner is represented by competent and experienced solicitors familiar with this jurisdiction. I infer from Ms Brown's affidavit that a draft statement has been submitted to the practitioner. On the very limited evidence before me, I am not satisfied that the practitioner would be precluded from completing his statement at the same time as preparing any necessary material for the Federal Circuit Court and/or a partner visa application if the latter has not yet been completed.

Issue of Summons

The practitioner seeks to issue a summons for the production of documents from a general practitioner whom it is asserted Patient A consulted. In an email addressed to the Registrar in support of the Summons it is noted that the application for the issue of a summons was filed on 14 April 2021 and the application was refused on 19 April 2021. The practitioner's solicitors assert that Patient A attended the general practitioner and that she has stated she disclosed the practitioner's alleged misconduct. The email notes clinical notes from February 2018 to date are sought.
The draft Summons in the file seeks the production of the following from the general practitioner: "A copy of your complete file and all other records, including but not limited to clinical/treatment notes, nurses' notes, prescriptions, imaging reports, pathology requests, pathology reports, operation reports, discharge summaries and reports, referrals, specialist reports, record of payment, letters, Memoranda, emails and reports in relation to any advice or treatment in respect of injury, medical condition or disease concerning the complainant."
The Summons was refused on the basis that the "Scope of documents requested is not apparent to the issues in dispute".

Consideration - issue of Summons

I note from Complaint Four of the Complaint the asserted inappropriate sexual conduct and boundary violations are said to have commenced in January 2019 and the sexual conduct is asserted to have occurred on 13 February 2019.
I discern that the schedule in the draft Summons is a "generic" request and the documents sought are wider than that stated purpose for the issue of the Summons. I am not satisfied that the general practitioner should be put to the time and expense of producing all his records and without time limitation given the stated purpose for the issue of the Summons.
I accept however there is a legitimate forensic purpose for the practitioner to seek the issue of a summons directed to the general practitioner (see Council of the NSW Bar Association v Lott [2016] NSWCATOD 159; Lott v Council of the New South Wales Bar Association [2017] NSWCA 145) for his clinical records, referrals and correspondence from January 2019 to date. Subject to that amendment the Summons may be issued.
The HCCC seeks, when records are produced, that it should be granted first access. I infer this is sought to enable the HCCC to consult, if appropriate, with Patient A as to the accuracy of the recording in the clinical notes, if any.
I find it is reasonable that the HCCC should have first access to any material produced, and thereafter unless there is objection the practitioner may inspect any material produced. If there is a dispute about access, it may be referred to me as List Manager, or to the presider, the Hon A/Judge Cowdroy AO QC.

Orders 1. The application by Dr Jamal Moussa for adjournment of the disciplinary proceedings listed for hearing commencing 17 May 2021 is refused. 2. Dr Jamal Moussa is to serve on the Health Care Complaints Commission a Reply and all material on which he seeks to rely in respect of Stage 1 proceedings by 12 May 2021. 3. Health Care Complaints Commission is to serve on Dr Jamal Moussa any material in reply if any by 14 May 2021. 4. Dr Jamal Moussa is to provide to the Registrar, Occupational Division five copies of all material on which that party relies together with four USBs containing the material by 14 May 2021. 5. Leave is granted to Dr Jamal Moussa to issue a summons to Dr Glastonbury for production of clinical records from January 2019 to date. 6. Health Care Complaints Commission is to have first access to inspection of any documents produced by Dr Glastonbury. If access to Dr Jamal Moussa is not opposed by the Health Care Complaints Commission he may inspect any documents after access by the Health Care Complaints Commission. 7. In the event that access to any documents produced by Dr Glastonbury is opposed by the Health Care Complaints Commission the question of access may be determined by the List Manager or The Hon Cowdroy AO QC ADCJ at the commencement of the hearing. 8. The hearing listed to commence on 17 May 2021 for three days is confirmed and will be a Stage 1 hearing only.

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: 07 May 2021

At a glance

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Judgment (10 paragraphs)

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Cases Cited (5)