Health Care Complaints Commission v Noor

The National Law

1. The National Law, in s 139B, defines "unsatisfactory professional conduct" to include: (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. The National Law, in s 139E, defines "professional misconduct" to mean: (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.

The Complaint

1. In Complaint One of the complaint before us, it is alleged that the practitioner is guilty of unsatisfactory professional conduct within the meaning of s 139B of the National Law, in that he: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
2. It is alleged in paragraph 1 of the particulars of Complaint One that the practitioner acted improperly and unethically in that he: a. brought alcohol and stored it at the accommodation, contrary to Ministry of Health guidelines, b. engaged in sexual activity with Person A, including watching pornography, c. invited Person A to return to the accommodation that night to sleep there.
3. Paragraph 2 of the particulars of Complaint One concerns the first telephone call. It alleges that the practitioner : …displayed a significant lack of judgment and exercised a significant lack of care in that he: a. declined to attend to examine Patient A and conduct a face-to-face clinical interview and physical examination, b. made an inadequate assessment of Patient A's mental state, c. made an inadequate assessment of Patient A's clinical state including no assessment of opioid intoxication, d. made an inadequate risk assessment of Patient A, e. did not make a temporary management plan for Patient A, f. inappropriately authorised Patient A to be given his prescribed nightly dose of Quetiapine without first conducting a physical review of Patient A, g. did not provide reasonable support and reassurance to nursing staff, h. prioritised his involvement in sexual activity that was occurring simultaneously or about to occur with Person A at the on-call DMO accommodation over Patient A's care and his clinical leadership role of the nursing staff on duty in the Hospital.
4. Paragraph 3 of the particulars of Complaint One concern the third telephone call. It alleges that the practitioner: …displayed a significant lack of judgment and exercised a significant lack of care in that he: a. declined to attend to examine Patient A and conduct a face-to-face clinical interview and physical examination, b made an inadequate assessment of Patient A's mental state. c. made an inadequate assessment of Patient A's clinical state including no assessment of opioid intoxication, d. made an inadequate risk assessment of Patient A, e. did not make a temporary management plan for Patient A, f. did not provide reasonable support and reassurance to nursing staff, g. prioritised his involvement in sexual activity that was occurring simultaneously or about to occur with Person A at the on-call DMO accommodation over Patient A's care and his clinical leadership role of the nursing staff on duty in the Hospital.
5. Paragraph 4 of the particulars of Complaint One is as follows: On September 2017 at a s 150 hearing convened by the Medical Council of NSW the practitioner deliberately misled the Council delegates in that he stated his decision not to review Patient A on 4 August 2017 was because he knew Patient A and he had previously been AWOL and taken substances in the past, and did not disclose that his decision not to attend on Patient A was influenced by his desire to remain in the on-call accommodation with Person A.
6. In Complaint Two, it is alleged that the practitioner is guilty of professional misconduct under s 139E of the National Law in that he has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in 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 the suspension or cancellation of the practitioner's registration.
7. The particulars of Complaint Three are as follows: 1. Complaints One and the particulars thereof are repeated and relied upon both individually and cumulatively. 2. In the alternative, Complaint One, Particular 4 in itself justifies a finding of professional misconduct. 3. In the alternative, Complaint One, Particular 2(h) in itself justified a finding of professional misconduct. 4. In the alternative Complaint One, Particular 3(g) in itself justifies a finding of professional misconduct.

Consideration of Complaint One

1. It is not disputed, and we find, that the practitioner brought alcohol to the flat and stored it there. The parties agree that no Ministry of Health Guidelines can be located which evidence a written policy against that conduct. Particular 1a of Complaint One has not been made out on the evidence, and we do not rely upon it.
2. It is not disputed, and we find, that the practitioner engaged in sexual activity with Person A, including watching pornography on a laptop. Particular 1b of Complaint One has been established.
3. We find that the practitioner, in his text to Person A subsequent to her departure from the flat, invited her to return to the flat and sleep there. In his Reply, the practitioner admitted to this particular. Particular 1c of Complaint One has been established.
4. The practitioner and Person A did not have a longstanding sexual relationship. In fact, the practitioner was seeking to have his first sexual encounter with Person A in the evening of 4 August 2017 at the flat at the Hospital after a brief acquaintance of a couple of weeks. This was not like inviting a long term partner or spouse to visit or stay in the flat. The level of ease and understanding between longstanding partners would be likely to prevent such a visit from interfering with the practitioner attending to his duties as a priority. In contrast, this was a premeditated seduction, planned by the practitioner in considerable detail to occur at a time when he was on duty. Such an arrangement had much greater potential to distract the practitioner from his duties.
5. In all of the circumstances, including the newness of the relationship between the practitioner and Person A and the changing nature of that relationship, we determine that, by engaging in sexual activity with Person A on 4 August 2017, including watching pornography, in the flat provided by the Hospital, at a time when he was on duty (as opposed to being on call) and was, in fact, the sole doctor on the Hospital campus, the practitioner engaged in improper conduct. In determining that the practitioner's conduct was improper, we do not intend to convey a moral judgment regarding his behaviour. The practitioner's conduct was improper in the context of the standard of behaviour expected of a medical practitioner because he chose to undertake an activity which was unrelated to his duties, was highly absorbing and distracting to him and took up a considerable amount of his time, at a time when he was on duty as the DMO.
6. Particulars 2a to 2h inclusive of Complaint One have all been made out on the evidence. In his Reply, the practitioner admitted to particulars 2a, 2b, 2c, 2d and 2f.
7. The practitioner also conceded in evidence that he declined to attend to examine Patient A and conduct a face to face clinical interview and physical examinations.
8. Patient A's mental state could not be adequately assessed by the practitioner without a face to face clinical interview, which the practitioner was in a position to undertake, but refused to undertake.
9. Patient A's clinical state, including the extent of his opioid intoxication, could not be adequately assessed by the practitioner without a face to face clinical interview, which the practitioner was in a position to undertake, but refused to undertake.
10. The practitioner has attempted, from time to time throughout the disciplinary process, to say that during the first telephone call, he made and communicated a temporary management plan for Patient A. RN Frakes gave an account of that telephone call to the investigator. RN Frakes was not required by the practitioner for cross examination, so her evidence has been adduced without challenge. Where her account of the first telephone call and the second telephone call differs from the practitioner's account of those calls, we prefer and rely upon RN Frakes' account. The practitioner was uncertain of who he spoke to that evening, whether the nurse he spoke to first was male or female, and how many telephone calls there were. We are satisfied that his memory of the calls is unreliable and, to some extent, self-serving. Nothing said in the course of the first, second or third telephone calls by the practitioner amounted to a temporary management plan of a kind which is appropriate for a psychiatrist to formulate for an inpatient. In all of the circumstances, given his failure to undertake a clinical interview with Patient A or a physical examination of Patient A, any directions given by the practitioner on the evening of 4 August 2017 with respect to Patient A were based upon inadequate information.
11. The practitioner conceded that he told RN Frakes that Patient A could be given his nightly dose of quetiapine, and that he did so without conducting a physical review of Patient A.
12. Both RN Frakes and RN Liu asked the practitioner to attend at the Unit and review Patient A. RN Liu told the practitioner that Patient A had asked to see him. The practitioner refused to attend in response to both nurses. The proper care of the patient, and the proper support and reassurance for the nurses, in these circumstances, would have included the practitioner attending at the Unit and conducting a clinical interview and a physical examination of Patient A, arriving at an assessment of Patient A's physical and mental state and formulating an appropriate course of action. The practitioner did none of those things.
13. The practitioner, in his Reply, admitted particulars 3a, 3b, 3c and 3d. He did not admit that he failed to make a temporary management plan for Patient A, but, on the evidence, as we have said, we find that he did not make such a plan, either during the third telephone call or at all. We further find that, in his interaction with RN Liu, the practitioner did not provide reasonable support and reassurance to nursing staff.
14. Dr Brendan Smith, Patient A's psychiatrist, wrote an email to Dr Thomas Vandeleur, the Clinical Director and Medical Superintendent at the Hospital, expressing his concern about the practitioner's refusal to see Patient A in the Unit on 4 August 2017. In that email, Dr Smith expressed concern that the reason why Patient A had taken the alcohol and the ibuprofen together on 4 August 2017 was not clarified with him. Dr Smith speculated that it could have been to get a "buzz" or it could have been done with suicidal intent. Dr Smith was concerned that the practitioner permitted the giving of "a hefty dose of 800mg of quetiapine, in spite of [Patient A's] blood alcohol level and the potential for him also to have a quantity of codeine also in his system". Quetiapine has a sedating effect and can have an adverse impact on cardiac function. Dr Smith was concerned that at no time was transfer to an emergency department discussed or suggested.
15. In his statement for these proceedings, Dr Smith said that he was concerned that Patient A could have suffered a "significant adverse event as a result of not being more assertively reviewed, investigated and treated". Dr Smith said that, in the circumstances, he would expect the DMO to review the patient face to face and conduct a clinical interview with regard to the reason for being absent without leave. Further, a mental state examination, a risk assessment and a physical examination were indicated, which should have been followed by the formulation of a temporary management plan. The temporary management plan would have addressed such matters as the leave status of the patient, a possible change in medications, a review of the care level and frequency of nursing observations and a suggested review date by the patient's treating team or a DMO.
16. Dr Smith said that the combination of disulfiram (Antabuse) and alcohol in Patient A's system put him at risk of accelerated heart rate, shortness of breath, nausea, vomiting, throbbing headache, visual disturbance, mental confusion, postural syncope and circulatory collapse. Accordingly, physical examination and close monitoring were important, and the DMO should have given consideration to transferring Patient A to the local emergency department for cardiac monitoring and, perhaps, intravenous fluids. Dr Smith said that Patient A should have been examined for signs of opioid intoxication, such as altered mental state (drowsy and less responsive), respiratory depression and nausea and vomiting. He should have been specifically reviewed regarding non-steroidal anti-inflammatory overdose, the symptoms of which include abdominal pain, muscle twitching and reduced levels of consciousness.
17. Dr Smith said, in his statement: The combination of alcohol and ibuprofen/codeine tablets in overdose is concerning for the possibility of an additive, if not synergistic, sedating effect that may cause drowsiness and potential respiratory depression which, if severe, can be lethal. Of further concern is that a non-steroidal anti-inflammatory overdose can have delayed effects including kidney and liver dysfunction if it is untreated.
18. Dr Smith, in his statement, said that Patient A should have been interviewed to see whether he was suicidal and whether he had consumed more than the 15 tablets evidenced by the empty packaging.
19. Dr Smith said that he would expect a DMO to assess whether he should withhold the quetiapine, given that its sedative effect would be cumulative upon the sedative effect of the alcohol and create a danger of respiratory depression.
20. Dr Smith said that he was aware that Patient A had failed to return to the Unit from leave on time on previous occasions, and had returned in an intoxicated state, but this did not affect his view.
21. Dr Smith's evidence was not challenged, and he was not required for cross examination.
22. The practitioner had been involved with Patient A on a prior occasion upon which Patient A had returned late from leave in an intoxicated state. This occurred on 12 May 2017. Patient A was not on disulfiram on 12 May 2017, and he had taken a different combination of intoxicants from those on 4 August 2017. It was obviously not acceptable practice on the practitioner's part to draw inferences about the appropriate course of action on 4 August 2017 based upon the incident on 12 May 2017.
23. Dr Vandeleur provided a statement and gave evidence. Dr Vandeleur is a psychiatrist who specialises in addiction.
24. In his statement, Dr Vandeleur said: I had the same concerns as Dr Smith about Dr Noor's judgment relating to his management of the patient returning intoxicated and nauseated. The disulfiram (Antabuse) - ethanol interaction is potentially life-threatening. Also a significant dose of a sedative medication like quetiapine given in the setting of intoxication with other sedatives can be life-threatening.
25. Dr Vandeleur was cross examined, but his opinion was not challenged in that cross examination.
26. We accept the opinion of Dr Smith and Dr Vandeleur.
27. Dr Patfield, who has been a medical practitioner for 35 years and a psychiatrist for 20 years, provided an independent expert report, which formed part of the evidence tendered in the practitioner's case. Dr Patfield expressed concern at the inadequate assessment by the practitioner of Patient A, on the basis of RN Frakes' account of the first telephone call. Dr Patfield was also concerned about the practitioner's failure to provide the appropriate level of support and reassurance to the nursing staff in relation to Patient A. Dr Patfield said that the practitioner's assessment of Patient A on 4 August 2017 was influenced by his prior knowledge of Patient A, which risked reliance on a false sense of confidence. Dr Patfield identified deficits in the practitioner's knowledge about Patient A on the evening of 4 August 2017, namely:

• He had no understanding of why Patient A took the overdose, and whether there was any suicidal intent,
• He made no assessment of Patient A's mental state, and Patient A has a complex mental illness which had been difficult to treat,
• He had no appreciation of Patient A's current cognitive state; whether he was alert or impaired in consciousness, which was important in the light of what he had taken,
• He had no knowledge of whether Patient A was accepting of the authority of the Hospital, or whether he was likely to abscond again.

1. Dr Patfield characterised the overdose as "modest", assuming that Patient A had taken no more than 15 ibuprofen tablets, but acknowledging that it had not been established that Patient A had not taken more than 15 tablets. Dr Patfield said that serious sequelae from the failure by the practitioner to attend and properly assess Patient A was possible but unlikely.
2. Dr Patfield said that the practitioner's decision to give Patient A his usual 800mg of quetiapine "demonstrates poor judgment about clinical priorities". The control of Patient A's symptoms of schizophrenia needed to be balanced against the maintenance of his vital functions. Dr Patfield said that the more important thing was the maintenance of vital functions, but indicated that reports of Patient A walking around the ward socialising, in practical terms, may have reasonably been taken into account.
3. Dr Patfield said: There seems little doubt that Dr Noor's behaviour during the events in question was significantly influenced by his focus on satisfying his sexual desires … This is surely the crux of the issue. His priorities were significantly misplaced in a way that was below what might be reasonably expected. Given that this focus on his own sexual gratification, taking priority over his clinical responsibility, was actually planned. His behaviour was therefore significantly below what would reasonably be expected of a doctor with his training and experience.
4. Dr Smith, Dr Vandeleur and Dr Patfield all identified ways in which the practitioner's conduct with respect to Patient A in the evening of 4 August 2017 put the patient at risk. We infer that Dr Patfield, in saying that serious sequelae to Patient A from the practitioner's failure to attend upon him and properly assess him were possible but unlikely, assessed that risk as being at a lower level from the other two doctors. In our opinion, in the circumstances, the level of risk to Patient A, assessed by Dr Patfield as arising from the practitioner's conduct, is unacceptable.
5. Dr Patfield provided, with his statement, a research article entitled A Study of Cardiovascular Complications of Disulfiram-Ethanol Reaction by Girish Kumaraswamy, Pundarikaksha HP, Vijendra Ramaiah and Jagadish Anjanappa, National Journal of Physiology, Pharmacy and Pharmacology [2013] Vol 3 Issue 1 35-42. The purpose of the study was to ascertain the possible cardiovascular changes and complications during a disulfiram-ethanol reaction (DER). The study was carried out on 60 men aged 25-45 years and involved the subjects taking disulfiram 250mg twice daily orally for 5 days, followed by a series of doses of 5ml of whiskey every 15 minutes up to between 15ml and 30ml. This was referred to as a disulfiram-ethanol challenge test. The article indicated that such a test might be carried out to demonstrate to a patient that, when taking disulfiram, the consumption of alcohol should be avoided. One of the findings in relation to the effect of the DER was that 37 of the subjects experienced cardiovascular changes during the challenge. The following are extracts from the article: Cardiovascular changes observed during the reaction included changes in the pulse rate, blood pressure and ECG. The mean pulse rate increased during the test period and returned to near baseline levels after the conclusion of the test. Both systolic and diastolic changes occurred in blood pressure readings. However, the changes in the diastolic pressures were more prominent and probably may have a predictive value in determining the reaction outcome, although not found statistically significant. In all, 16 subjects developed hypotension (26.67%) and 3 subjects hypertension (5%) with the rest being normal. Analysis of the ECG changes revealed that 22 subjects developed sinus tachycardia (36.67%), 13 subjects transient ischemic changes (21.67%) and 1 subject each developed occasional atrial ectopics and junctional rhythm (1.67%). Only 23 subjects did not show any significant ECG changes. … Cardiovascular complications of DER have been documented earlier. The most commonly reported complications were severe hypotension (occasionally hypertension), tachycardia, acute cardiac failure, myocardial infarction and cardiac arrhythmias like atrial fibrillation, atrial flutter and nonsustained ventricular tachycardia. Several deaths have also been reported during the reaction due to myocardial infarction with shock, acute cardiac failure and severe hypotension. Most of these fatal reactions were because of either excess disulfiram dosages or because of two or more drinks, but death has also been reported in a subject receiving therapeutic dose of disulfiram after just one drink. Reactions were severe and stormy when higher doses of disulfiram (up to 1-1.5g/day) were used. … The cardiovascular manifestations of the DER is the result of the overall consequence of acetaldehyde-induced myocardial depression and vasodilator action, catecholamine release, electrolyte depletion and the nonspecific cardiovascular stress during the reaction. The pattern, extent, severity and duration of the reaction may be variable depending upon the subjects' age, general condition, pre-existing cardiovascular status, electrolyte status, the maintenance dose of disulfiram and the amount of alcohol used in the challenge. In the present study, it is evident that cardiovascular complications can occur even in properly selected subjects having no baseline cardiovascular impairment, which could be serious and potentially life threatening. With higher disulfiram maintenance dose (>500 mg/day), these reactions are likely to be severe, prolonged and stormy. There are no effective rescue measures to cut short or reverse the event… Based on the results of the present study, disulfiram-ethanol challenge test appears to be a relatively safe procedure if carried out under standardized conditions and using a safe maintenance dose of disulfiram. It may be prudent to employ a more extensive and thorough pre-test evaluation of subjects by assessing their electrolyte status (potassium and magnesium) and echocardiography. Biochemical monitoring (plasma acetaldehyde, serum potassium and magnesium) during the reaction may also be useful in the assessment. The procedure should be conducted only by well-trained psychiatrists and physicians who are experienced in handling the possible emergencies and it is very important to advise the subjects against unsupervised medication or self-medication with disulfiram.

Consideration of Complaint Three

1. We determine that, cumulatively, the conduct described in particulars 1b and 1c, 2a to 2h inclusive, particulars 3a to 3g inclusive and particular 4 amount to professional misconduct on the part of the practitioner pursuant to s 139E(b) of the National Law. Considered together, the conduct is sufficiently serious to justify the suspension or cancellation of the practitioner's registration. The practitioner chose to engage in an activity, namely the sexual pursuit of Person A, which was wholly unrelated to his duties as DMO, at a time when he was on duty as well as being the sole medical practitioner present on the Hospital campus. That activity was highly absorbing and distracting to him, and took up a considerable amount of his time. He planned it days in advance. He chose to continue to pursue it in preference to performing his duties as DMO and, as a result, placed Patient A at unnecessary risk.
2. We further determine that the conduct described in particular 4, taken alone, amounts to professional misconduct on the part of the practitioner. The Medical Council has a very important role to play in protecting the public by responding to complaints, in accordance with the statutory scheme, to ensure, as far as possible, that medical practitioners are practising in a competent and ethical manner (see s 3 of the National Law). By misleading the Medical Council in the course of a s 150 hearing, the practitioner undermined the Medical Council's ability effectively to perform its statutory role in relation to the practitioner. This undermines the system for the regulation of medical practitioners and shows a lack of integrity in the practitioner.
3. For the same reasons as we have set out in [97], we further determine that the conduct described in particular 2h of Complaint One, taken alone, amounts to professional misconduct on the part of the practitioner.
4. For the same reasons as we have set out in [97], we further determine that the conduct described in particular 3g of Complaint One, taken alone, amounts to professional misconduct on the part of the practitioner.

Protective Orders

1. The orders which may be made by the Tribunal upon the making of a finding that a complaint against a practitioner has been proven are set out in Subdivision 6 of Division 3 of Part 8 of the National Law. They include the power to caution or reprimand, to impose conditions upon the practitioner's registration, to require the practitioner to undertake an educational course or to require the practitioner to be supervised. The Tribunal may fine a practitioner or may suspend or cancel a practitioner's registration.
2. In considering what order to make in relation to the practitioner, following our determination above in relation to the Complaints, we bear in mind that the purpose of the making of an order in these circumstances is the protection of the community. The order does not have a punitive purpose, although, of course, it may be experienced by the practitioner as punitive.
3. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said, at [20]-[22]: 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). 21. Finally, in determining whether to suspend the practitioner's registration or cancel it, it is entirely appropriate for the Tribunal to take into account the consequences of the order being considered. Unless a period of suspension is made conditional, renewal of the practitioner's registration will occur automatically on completion of the period of suspension. By contrast, an order of cancellation will require the practitioner to justify re-registration. Uncertainty as to the future may lead the Tribunal to cancel a registration rather than suspend it. 22. The fixing of a period within which re-registration may not be sought may be seen to have a twofold operation. On the one hand, it indicates the minimum period within which the Tribunal considers the person should not be able to practise his or her profession; on the other hand, it holds open the possibility that an application for re-registration thereafter will at least be considered. It is entirely proper for the Tribunal to consider all aspects of the possible orders available to it in determining what order to make. The suggestion that there must be a two-stage process in undertaking that function was misguided.
4. We have been provided with a considerable amount of information about the impact that the events of 4 August 2017 and their sequelae have had upon the health of the practitioner and his wife, their financial circumstances and their relationship. We accept that evidence. We also understand that the practitioner has experienced strong feelings of grief and anxiety in the wake of the events of 4 August 2017 and has been, and remains, acutely embarrassed about those events. However, given that our order under s 149A of the National Law will be made for protective purposes and not punitive purposes, that evidence is only peripherally relevant as part of the context in which our order is made.
5. We take into account the evidence that the practitioner received positive performance reviews of his medical work at the Hospital. The adequacy of the practitioner's technical knowledge and skill is not in issue in these proceedings. Rather, it is the practitioner's judgment as to when and how to apply that knowledge or exercise that skill, and the degree of care exercised by the practitioner which is in issue.
6. We take into account the content of the letter of 27 August 2019 from Dr Verma, who has a high opinion of the practitioner both personally and as a medical practitioner.
7. The practitioner gave evidence that he was under significant personal stress at the time of the events of 4 August 2017, particularly with respect to his marriage. We have had regard to all of that evidence.
8. The practitioner had faced a number of challenges whilst working at the Hospital. On the in-training assessment form dated 3 August 2017, one day prior to the events the subject of these proceedings, and signed by the practitioner, Dr Miao, the practitioner's supervisor, noted, as an area needing further development by the practitioner: work on more skills in dealing with challenging situations/ conflicting team members.
9. During the second hearing by the Medical Council under s 150 of the National Law, on 17 January 2018, an incident involving the practitioner which occurred on 18 April 2016, (16 months prior to the incident the subject of these proceedings) was explored in some detail. The incident involved the practitioner, one evening, making unwelcome physical advances to a female nurse with whom he had been working. The practitioner was not then working at the Hospital the subject of these proceedings, but was working at a different hospital.
10. The practitioner represented this incident to the Medical Council on 17 January 2018 as a misunderstanding and lapse of judgment on his part.
11. The Local Health District investigated the incident. The investigators said, in their report of 19 May 2016, that the practitioner, by his actions and statements, confirmed the essential facts of the allegations. The Medical Council, in its decision following the s 150 hearing on 17 January 2018, said: In his response to the investigation dated 30 May 2015 [sic] [Actually 2016], Dr Noor stated that he was "under terrible personal stress at the time of the incident" including "marital and family issues" and he was seeking "help by organising to see a clinical psychologist".
12. The Medical Council noted that the practitioner's version of events given in the s 150 hearing in relation to the 18 April 2016 incident differed from the events outlined in the investigation report.
13. The practitioner was required to comply with a performance improvement plan (PIP) as a consequence of the 18 April 2016 incident. The PIP commenced on 27 July 2016 and was designed to be in force for 12 months.
14. The Medical Council, in its decision with respect to the s 150 hearing on 17 January 2018, said that the PIP addressed the importance of professional boundaries, cultural aspects of male-female and workplace relationships, supervision, mentorship and support.
15. The practitioner told the Medical Council on 17 January 2018 that the PIP had been brought to an end after 6 months by a supervising medical practitioner at the hospital where he was working at the time who was satisfied that he had "learnt his lesson". The practitioner then moved to the Hospital.
16. We make it clear that the incident of 18 April 2016 is not before us as a complaint. It does, however, form part of the context for the complaints which are before us, and it is relevant to an assessment of what protective order is appropriate. The Medical Council, in its decision following the s 150 hearing on 17 January 2018, said: Following this incident [ie of 18 April 2016], Dr Noor claimed that he was under great personal and marital stress and would seek help by seeing a clinical psychologist. At the hearing, however, Dr Noor stated that he only saw a psychiatrist after the Council hearing. A comprehensive PIP was instituted after the investigation. Dr Noor stated that he followed the PIP for 6 months at which point he was advised by Dr X that he was no longer required to follow it. No additional documentary evidence relating to why the PIP ceased after 6 months was provided to us. While Dr Noor gave evidence stating that he learnt much after following the PIP under the guidance of Dr X, his evidence, particularly in relation to professional behaviour and boundaries, was again vague. What is of great concern to us, however, is that less than one week after the PIP formally ended (1 August 2017), the events of 4 August 2017 occurred, suggesting that Dr Noor did not learn as much as claimed.
17. The practitioner saw a psychiatrist after the first s 150 hearing in September of 2017. In evidence, the practitioner said that he last saw that psychiatrist in "late 2017". That psychiatrist died in early 2018.
18. The practitioner did not seek or receive any psychiatric advice during 2018. He said, in evidence, that he could not afford it.
19. The practitioner next saw a psychiatrist in March of 2019. By the time of the hearing in this matter, he had seen that psychiatrist approximately weekly since his first visit.
20. The practitioner has not sought or received any psychological counselling.
21. The only information put forward in the practitioner's case from his psychiatrist was factual information in a brief letter dated 30 August 2019 supporting an application for an adjournment.
22. It is concerning that the practitioner attributed his actions on 4 August 2017 partly to stress arising from his marital difficulties, when he had given the same explanation for his behaviour on 18 April 2016. It is also concerning that the practitioner told the Medical Council on 17 January 2018 that he was "organising to see a clinical psychologist" and then omitted to see a clinical psychologist.
23. The practitioner, in evidence, tended to attribute blame for the situation in which he finds himself to other people, including his wife and to his personal circumstances. Whilst he acknowledged that he bears a degree of responsibility for the events of 4 August 2017, we do not consider that he has fully appreciated the extent to which his behaviour diverged from the standard expected of a medical practitioner with respect to the exercise of judgment, and the giving of care in a professional, ethical and trustworthy manner.
24. At present, the practitioner is very focussed upon himself, the challenges he is faced with in his personal life, and the adverse consequences to him and his family of the events of 4 August 2017. He is less focussed upon the risk his behaviour posed for Patient A.
25. Apart from the practitioner's own evidence and some largely illegible handwritten notes which may have been made by the practitioner's first, now deceased psychiatrist, no other evidence of any kind (orally or by way of a report) was put before us with respect to the practitioner's progress with addressing the aspects of his personality, his ways of thinking, his behaviour or any other factor at play in the events of 4 August 2017.
26. We consider that the practitioner has a considerable amount of work to do to address those aspects of his personality, his ways of thinking and his personal circumstances which played a part in the events of the evening of 4 August 2017. At present, we believe that the practitioner cannot practise psychiatry or any other branch of medicine without posing an unacceptable risk to vulnerable patients.
27. We have considered the question of whether we should specify a period within which the practitioner may not apply to be re-registered as a medical practitioner. We acknowledge that the specification of such a period plays a part in the general deterrence reflected in the order (see Chen v Health Care Complaints Commission [2017] NSWCA 186 at [88] per Payne JA). However, in this matter, we are unable to assess how long it will take the practitioner to engage in and undertake the therapy necessary to bring about the insight into his behaviour and the changes to his thinking and approach to patients and workmates which would render him fit to practise. In these circumstances, we have decided not to specify a period within which the practitioner may not apply to be re-registered.
28. Having found that the practitioner's behaviour amounts to professional misconduct, we indicate, pursuant to s 149C(4) of the National Law that, had the practitioner been registered as a medical practitioner, we would have cancelled his registration. In view of the fact that the practitioner voluntarily surrendered his registration earlier this year, we make the following order: (1) The Australian Health Practitioner Regulation Agency is required to record the fact that, had the practitioner been registered, the Civil and Administrative Tribunal of NSW would have cancelled the practitioner's registration on account of professional misconduct.

Costs We make the following directions with respect to costs: (2) Any application for an order for costs must be made within 21 days of the date of this decision. (3) Any response to an application for costs must be made within 14 days after the receipt of the application by the party.

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 November 2019