Health Care Complaints Commission v Rahman

The Applicable Law

Aspects of the relevant law are set out in our reasons for decision of 2 September 2022. Section 3 of the National Law sets out the objectives thereof, relevantly for present purposes, as follows: 3 Objectives (1) The object of this Law is to establish a national registration and accreditation scheme for - (a) the regulation of health practitioners; … (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; …
Section 3A of the National Law sets out the guiding principles of the national registration and accreditation scheme, relevantly for present purposes, as follows: 3A Guiding principles [NSW] (1) The main guiding principle of the national registration and accreditation scheme is that the protection of the health and safety of the public must be the paramount consideration. (2) The other guiding principles of the national registration and accreditation scheme are as follows: … (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.
Section 3B sets out the objective and guiding principle of the exercise of the Tribunal's functions pursuant to the National Law as follows: 3B 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 paramount consideration.
Section 149A of the National Law sets out the disciplinary powers of the Tribunal in relation to a health care practitioner. Relevantly for present purposes, the Tribunal may: 149A General powers to caution, reprimand, counsel etc [NSW] (1) … (a) caution or reprimand the practitioner; (b) impose the conditions it deems appropriate on the practitioner's registration; …
Section 149B empowers the Tribunal to impose a fine on a registered health practitioner who has been found guilty of unsatisfactory professional conduct or professional misconduct. This power is to be exercised only if the Tribunal is satisfied that "there is no other order, or combination of orders, that is appropriate in the public interest".
Section 149C empowers the Tribunal to suspend, for a specified period, or cancel the registration of a health practitioner. Relevantly for present purposes, the power of suspension or cancellation may be exercised by the Tribunal if a practitioner has been found guilty of professional misconduct.
It is settled law that the jurisdiction of the Tribunal is protective rather than punitive in nature, albeit that orders may have a punitive effect: Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83] (Basten JA). In the same case, Basten JA observed that: "… the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection".
It is well recognised that protective orders serve a general deterrence function, which was described by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] as follows: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. 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 practice including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
As noted above, the Applicant sought inter alia an order pursuant to section 149C(5)(a) that the Respondent be prohibited from providing health services for a period of twelve months. This section provides, inter alia, that: 149C Tribunal may suspend or cancel registration in certain cases [NSW] (5) If the Tribunal suspends or cancels a registered health practitioner's … registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently.
The term "health service" is defined in section 4 of the Health Care Complaints Act 1993 (NSW) as follows: 4 Definitions … "health service" includes the following services, whether provided as public or private services - (a) medical, hospital, nursing and midwifery services, (b) dental services, (c) mental health services, (d) pharmaceutical services, (e) ambulance services, (f) community health services (g) health education services, (h) welfare services necessary to implement any services referred to in paragraphs (a) - (g), (i) services provided in connection with Aboriginal and Torres Strait Island health practices and medical radiation practices (j) Chinese medicine, chiropractic, occupational therapy, optometry, osteopathy, physiotherapy, podiatry and psychology services, (j1) optical dispensing, dietitian, massage therapy, naturopathy, acupuncture, speech therapy, audiology and audiometry services (k) services provided in other alternative health care fields, (k1) forensic pathology services (l) the services prescribed by the regulations as a health service for the purposes of this Act. "health service provider" means a person who provides a health service (being a health practitioner or a health organisation).
Section 138 of the National Law contains the definition of "prohibition order" as it applies in NSW, and relevantly provides that "'prohibition order' has the meaning given by section 149C(5)". We have previously referred to section 149C(5) at [16].
Accordingly, the National Law makes clear that there are two prerequisites for a prohibition order. Firstly, there must be a determination that the practitioner should be the subject of an order for suspension or cancellation of registration. Secondly, the Tribunal must be satisfied that the practitioner poses substantial risk to the health and safety of members of the public.
The nature of the risk necessary as a prerequisite to a prohibition order has been considered in previous decisions of the Tribunal. In Health Care Complaints Commission v Kazeme [2020] NSWCATOD 25 ("Kazeme"), the Tribunal referred to the cases Health Care Complaints Commission v Brush ("Brush") [2015] NSWCATOD 120 and Health Care Complaints Commission v Choi [2017] NSWCATOD 82 ("Choi"). In Kazeme, the Tribunal concluded (at [138]) that "'a substantial risk to the health of members of the public' … [means] a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative".
In Brush, the Tribunal made a prohibition order concerning an osteopath, in relation to "(a) any form of massage therapy or therapy involving physical contact of the body; (b) any treatment or therapy involving body movement, joints and the musculoskeletal system; any (c) other alternative or healing, health care or therapies". The Tribunal concluded that there was a material risk of repetition of misconduct. That being so, the Tribunal determined that the practitioner would pose a substantial risk to the health of members of the public. The Tribunal declined to make a prohibition order in relation to "health education service", as it was not satisfied (at [97]) that the practitioner "would pose a substantial risk to the health of members of the public" (emphasis in original).
In Choi, the Tribunal made an order which prohibited a chiropractor from "providing any health care services, as defined by section 4 of the Health Care Complaints Act 1993 (NSW) whether public, private or volunteer services". The Tribunal concluded that the evidence established a risk "that is real or apparent … and not a risk that is without substance, or which is fancy or speculative: Health Care Complaints Commission v Taylor [2010] NSWNT 10; Health Care Complaints Commission v Shara [2015] NSWCATOD 99."

Consideration

Pursuant to clause 5(1)(e) of Schedule 5D of the National Law, "evidence of a decision of a performance and professional standards panel" is admissible in these proceedings. The Applicant tendered two performance interview reports dated 20 May 2009 and 24 June 2010, a performance assessment dated 23 February 2011, and a performance counselling report dated 3 November 2011 in relation to the Practitioner. Pursuant to clause 5(1)(c), the Applicant tendered also Reasons for Decision of the Tribunal dated 11 March 2021 and18 May 2021 concerning the Practitioner. These proceedings arose from a Complaint dated 19 September 2019 in relation to prescribing practices.
The performance interview in 2009 concerned prescription of narcotic medications to a patient who showed signs of drug dependency, as well as inadequacy of medical records. The Panel considered that the Practitioner had taken steps to prevent a recurrence of similar incidents and had regard to his inexperience as a general practitioner at the relevant time. The Panel counselled the Practitioner and concluded that no further action was necessary.
The 2010 performance interview concerned prescription by the Practitioner of Schedule 4D and Schedule 8 drugs in relation to four patients, as well as medical record keeping. The Practitioner informed the Panel that he had disclosed his prescribing problems to a pain management specialist, who assisted him with mentoring and further education. The Practitioner indicated that he felt more confident in dealing with patients with chronic pain, as a result of this further training.
This Panel recommended a performance assessment with focus on record keeping and prescribing practices. The Practitioner was commended for his disclosure of prescribing problems and undertaking mentorship and education.
The recommended performance assessment was conducted on 23 February 2011. This Panel concluded that the Practitioner "was clinically sound" and that he "demonstrated good rapport and good management skills". The Panel considered that the general standard of his records was unsatisfactory but noted that the four doctors in the practice used different systems, which resulted in fragmentation. This Panel recommended that the Practitioner be counselled in relation to "improved record keeping and computerisation". The Panel recommended also that the Practice be provided with feedback as to the unsatisfactory standard of its records.
The performance counsellor met with the Practitioner on 3 November 2011 and provided a report of the same date. The discussion at this counselling session centred around changes to medical record keeping at the practice and the use of software. The counsellor noted that the Practitioner informed him that he had addressed most of the issues identified by the performance assessment panel and concluded that no further action was necessary.
As noted above, on 11 March 2021 the Tribunal found the Respondent guilty of unsatisfactory professional conduct and professional misconduct. On 18 May 2021, the Tribunal cancelled his registration and ordered that he may not apply for a review for a period of twelve months. The Tribunal made these observations in the Stage 2 Reasons for Decision (Health Care Complaints Commission v Rahman (No 2) [2021] NSWCATOD 65 at [46]): "The Tribunal observes that the matters which have been the subject of complaints focus upon continued inappropriate prescribing on a vast scale, prescribing without authority S8 and S4 drugs, and poor record keeping. Further, the need for proper prescribing was clearly brought to the attention of the respondent, as he acknowledged, in 2009, and on a recurring basis until 2015."
The Practitioner gave oral evidence at this hearing. He said that he hopes to return to the Miranda practice and expects that conditions will be placed on his registration. The practice manager, Mr Brett Hudson, gave unchallenged evidence that the Respondent is able to resume work and that he will receive support, particularly in regard to compliance with any conditions which may be placed on his registration.
Evidence of the good character of the Respondent was given by Dr Rodney Marks, Mr Zaiko Mikulic and Mr Daniel Marjanovic. Dr Marks was aware of the present complaint and had some knowledge of the previous Decision in relation to prescribing issues. Mr Mikulic and Mr Marjanovic both were aware of the prescribing Decision but none of the three referees had read those Reasons.
Dr Marks indicated that he has encouraged the Respondent to practice in the area of skin cancer and is willing to "help and supervise him". Mr Mikulic and Mr Marjanovic have worked with the Practitioner in the past and spoke favourably of his care for patients.
In 2021 and 2022, the Practitioner completed courses in "Health Care Law and Ethics" and "Practical Solutions to Patient Boundaries". He indicated that he has "read and considered" the Medical Board of Australia's code of conduct, 'Good Medical practice: A Code of Conduct for Doctors in Australia'. He said that he had not seen the Australian Medical Association's Code of Ethics, until his attention was drawn to this document in cross-examination. He said he would read and have regard to this Code in his future practice.
In his oral evidence, the Practitioner described his actions with regard to Patient A as "a terrible mistake" and "an appalling judgment call". He said: "I have learned from my mistakes, I have improved my knowledge, I can help the community".
In our view, the Practitioner's involvement of Person A in his dealings with Patient A exceeded the bounds of "a terrible mistake" or "an appalling judgment call". We consider that his actions involved a real potential of risk to the physical and/or mental wellbeing of a vulnerable person. The Practitioner had concerns for the mental health of Patient A, yet he elected to involve a stranger with no qualifications whatsoever in that field.
Regrettably, this decision of the Practitioner was not his first demonstrated failure to exercise an appropriate level of care in his decision making for patients. We have set out above in these reasons his history of involvement with the Medical Council and the Tribunal. While we have regard to this history, we are acutely aware of the need to avoid orders which would amount to a second exercise in discipline of the Practitioner for the same misconduct.
The Applicant made an entirely appropriate submission on this question as follows: "To be clear, the Respondent is not to be disciplined again by way of further protective orders for that past misconduct, but rather it informs the Tribunal's approach to the appropriate protective order in the present matter, including an assessment of fitness, character and reform an insight." (emphasis added)
Counsel for the Respondent cited the following passage from Dawson v Law Society of New South Wales [1989] NSWCA 58 at pp 12-13 (per Mahoney JA): "In judging whether an applicant will, in the future, act differently from the past, the Court is not required to act on psychological theories or analyses …. As I have said, it is difficult to decide what a man will do and the decision in a particular case is, to a greater or lesser extent, dependent on the Court's assessment of the applicant. And in making that assessment it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the roll. An understanding of that may assist the Court to determine what are his standards and his understanding of [his] responsibility and, from this, what he is apt to do in the future."
We observed above that the involvement of Person A in communication with Patient A was not the first failure of the Practitioner to make appropriate decisions for patients. Regrettably, the assurances which he offered in these proceedings echo similar statements made previously to performance assessors and the Tribunal, to the effect that he has learned from his mistakes and would modify his behaviour.
In June 2010, a Performance Interview Panel observed that the Respondent had indicated in 2009 that he was undertaking courses to improve his prescribing practices, yet he continued with this problematic behaviour. The Practitioner told the Panel in 2010 that he now realised that there were medications and therapies in addition to Schedule 8 and Schedule 4D drugs for control of chronic pain. He told this Panel that he had arranged for counselling and mentoring with a pain management specialist.
In 2015, the Pharmaceutical Services Unit informed the Medical Council of inappropriate prescribing of Schedule 8 and Schedule 4D drugs by the Practitioner. After a s150 hearing on 28 October 2015, the Council concluded that: "… Dr Rahman had prescribed or supplied s8 and s4D drugs, growth hormones, steroids, and other substances for purposes that were not medically indicated, and in contravention of accepted standards and limitations. This was at considerable risk to some of his patients and to others who may be offered those drugs through trafficking … He had continued to do so over a long period of time, in spite of warnings he had received from relevant authorities."
As noted above, the Council imposed conditions on the registration of the Respondent following this hearing.
We have set out earlier in these Reasons, the relevant observations and findings of the Tribunal in the proceedings in 2021 related to prescribing issues. These proceedings resulted in cancellation of the registration of the Respondent.
We emphasise that we have regard to this history with no intention to discipline the Respondent a second time for the same conduct. The issue, ultimately, is the nature of the protective order required here to provide the necessary level of public protection. We consider that the past conduct of the Respondent to be one of several valid indicators of his probable future behaviour.
Counsel for the Respondent submitted that a further period of cancellation "would be oppressive, counterproductive and not in the interests of the public". It was contended that a reprimand would suffice in all of the circumstances.
We cannot agree with these submissions, in light of the past failures of the Practitioner to exercise sound judgment in the care of patients. The reality is that he has expressed an intention to improve his behaviour, yet failed to act on warnings from authorities and bring about these desirable changes.
We are satisfied that a short period of cancellation of registration is necessary to ensure that the Practitioner reflects seriously and in depth upon the gravity of the behaviour which led to the finding of professional misconduct. On the other hand, we can identify no good purpose in delaying his opportunity to apply for a re-registration for a further period of 12 months as sought by the Applicant. We have regard to the general deterrence function of protective orders and consider that a short period of cancellation is sufficient to warn other practitioners of the dangers of similar conduct. We conclude that cancellation with a disqualification period of three months will be sufficient in all of the circumstances.
We are satisfied that the Applicant failed to establish the second prerequisite for a prohibition order, that being that the Respondent poses a substantial risk to the health and safety of members of the public. We note that the Applicant sought a prohibition order in the widest possible terms, which would effectively prevent the Practitioner from using his medical knowledge and experience for any purpose. We decline to make a prohibition order as sought by the Applicant.

At a glance

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Before

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Judgment (7 paragraphs)

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Legislation Cited (2)

Cases Cited (10)