Health Care Complaints Commission v Sallam

NCAT Occupational|2021-08-02

94, unrep) Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qidwai v Brown (1984) 1 NSWLR 100 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Atef El-Sayed Mahmoud Sallam (Respondent) Representation: Counsel: T Stevens (Applicant)

Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/00014884 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, the publication of the name of any patient referred to in the records filed in these proceedings is prohibited.

Absence of respondent

The solicitor for the applicant has been informed by the solicitors for the respondent that the respondent will not be providing evidence nor appearing before the Tribunal. The applicant has provided all documentation upon which it relies to the respondent solicitors, including its final submissions and the disciplinary sanctions sought by the applicant. The respondent solicitors have acknowledged receipt of such communications.
The respondent does not challenge any of the complaints made against him and has indicated that he will not be seeking re-registration as a medical practitioner. The respondent has subscribed a statutory declaration dated 27 May 2020 in which he states, inter alia: "1. On 26 September 2018 my name was removed from the Register of Practitioners. 2. I have no intention of returning to the practise [sic] of medicine."
Where the Tribunal is satisfied that a party who does not attend a hearing has been given notice of the hearing, the Tribunal may proceed to hear the proceedings in their absence, since the right to attend the hearing has been waived: see Ghosh v Health Care Complaints Commission [2020] NSWCA 353 at [89]-[98]; Health Care Complaints Commission v Istephan [2017] NSWCATOD 15 at [26]; Health Care Complaints Commission v XC [2015] NSWCATOD 9 at [71].
As the Tribunal is satisfied that the respondent is aware of the proceedings and of this hearing, the Tribunal will proceed in the absence of the respondent pursuant to the power provided to it under section 165J(3) of the National Law.

Background

The "Background to All Complaints" in the Complaint states: "The practitioner graduated with a Bachelor of Medicine/Bachelor of Surgery from Cairo University in 1989. In 2001, the practitioner migrated to Australia. In 2004 the practitioner successfully completed his Australian Medical Council Certificate and was registered in NSW. Between 2004 and 2008, the practitioner worked in NSW urban and rural hospitals. In April 2008, the practitioner commenced work as a general practitioner (GP) at the Medisense Practice in Taree ("the Medisense Practice"). In 2013 the practitioner gained his Fellowship of the Royal Australian College of General Practitioners. Patient A was a patient of the practitioner at the Medisense Practice. Patient A attended on the practitioner from 1 June 2018 to 31 July 2018. Patient B was a patient of the practitioner at the Medisense Practice. Between 2 February 2018 and 20 February 2018, Patient B attended on the practitioner for back pain."
The respondent worked as a general practitioner at Ahmed Attia Private Hospital between 1991 and 1994, and in rural locations in Egypt between 1995 and 2001 as a general practitioner at a clinic for government employees.
In 2001 the respondent immigrated to Australia with his family. Between 2000 and 2004 the respondent did not work while studying for his Australian Medical Council (AMC) examinations. The AMC issued a certificate to the respondent in 2004. The respondent was registered as a medical practitioner (registration number MED0001195401) on 16 August 2004. Between August 2004 and August 2005 the respondent worked at Prince of Wales Hospital and Lismore Base Hospital. During this period he worked in aged care, orthopaedics, general medicine and emergency.
Between September 2005 and August 2006 the respondent worked in obstetrics and gynaecology (for a period of five months), emergency, aged care and psychiatry at Sutherland Hospital. From September 2006 to August 2007 he worked in paediatrics and cardiology at St George Hospital, palliative care at Calvary Health Care Kogarah, and emergency and anaesthetics at Albury Hospital. From September 2007 to April 2008 he was engaged as an emergency locum mainly at Tamworth Hospital. In April 2008 he commenced working as a general practitioner at Medisense Health Care in Taree.
Between September 2006 and August 2007 the respondent worked in paediatrics, cardiology and aged care. He obtained a Fellowship of the Royal Australian College of General Practitioners in 2013.
The respondent was registered from 1 July 2010 to 14 August 2018. He was suspended from 14 August 2018 to 26 September 2018 and has been unregistered since that date.

Complaint

Four complaints are made against the respondent as stated in the applicant's Amended Complaint dated 22 July 2021. They are stated as follows: "COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: 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. PARTICULARS OF COMPLAINT ONE Patient A 1. Between 1 June 2018 and 31 July 2018, in the course of treating Patient A, the practitioner failed to obtain an adequate history from Patient A including ascertaining: a. the presence or absence of symptoms of radiculopathy in Patient A's arms, including muscle weakness, distribution of pain, and sensory loss; b. details of the duration of Patient A's symptoms; c. previous treatments undertaken by Patient A to treat the pain. 2. On 1 June 2018, in the course of treating Patient A, the practitioner failed to conduct an adequate physical examination of Patient A. 3. Between 21 June 2018 and 31 July 2018, in the course of treating Patient A, the practitioner diagnosed Patient A's pain as a, "toss-up between fibromyalgia and chronic pain syndrome," which was not supported by an adequate assessment or appropriate investigations such as a CT or MRI. 4. Between 21 June 2018 and 31 July 2018, in the course of treating Patient A, the practitioner diagnosed Patient A's pain as a, "toss-up between fibromyalgia and chronic pain syndrome," and failed to consider alternative diagnoses such as pain due to spondylosis (disc protrusions or osteophyte formation) or pain of muscular origin. 5. Between 1 June 2018 and 31 July 2018, in the course of treating Patient A, the practitioner failed to develop an adequate treatment plan by: a. failing to trial non-invasive therapies; b. suggesting to perform a cervical intramuscular injection or a cervical epidural injection or a cervical nerve block without a proper basis. 6. Between 1 June 2018 and 31 July 2018, in the course of treating Patient A, the practitioner inappropriately recommended corticosteroid injections for Patient A: a. without the presence of radiculopathy; b. with no firm diagnosis that corticosteroid injections would help Patient A's pain. 7. Between 1 June 2018 and 31 July 2018, in the course of treating Patient A, the practitioner failed to recommend that Patient A undergo a trial of physiotherapy treatment for her neck pain prior to: a. recommending a corticosteroid injection; b. performing a series of corticosteroid injections into her neck. 8. On 31 July 2018 the practitioner inappropriately decided to administer a series of injections of Depo-Medrol diluted in lignocaine into Patient A's cervical spinal region in his surgery in circumstances where the practitioner did not have the requisite qualifications, clinical experience, and training to perform injections in cervical spinal region. 9. On 31 July 2018 the practitioner inappropriately decided to administer a series of injections of Depo-Medrol diluted in lignocaine into Patient A's cervical spinal region in his surgery: a. without imaging guidance; and, b. in circumstances where he had not obtained and reviewed medical imaging of Patient A's neck area such as X rays, CT, or MRI scans. 10. Between 1 June 2018 and 31 July 2018, the practitioner inappropriately used lignocaine and Depo-Medrol in the injection given to Patient A in circumstances where: a. Depo-Medrol was an inappropriate choice of drug to administer; b. Depo-Medrol was injected by the practitioner without apparent regard to the location where it was being injected; c. Depo-Medrol was used without apparent regard to potential adverse events and complications. Patient B 11. On 2 February 2018, in the course of treating Patient B for pain in the lumbar back region, the practitioner failed to obtain an adequate history from Patient B including inquiring whether: a. Patient B's pain radiated to his legs or was confined to the lower back; b. Patient B had muscle weakness, sensory change, and disturbance of bowl or bladder function. 12. On 2 February 2018 the practitioner failed to perform an adequate physical examination of Patient B in that his examination did not include testing the range of movement, power, sensation, or reflexes of Patient B's legs. 13. On 2 February 2018 the practitioner inappropriately decided on, or recommended, a treatment plan for Patient B of corticosteroid injections into the lumbar region, which did not include: a. a suitable re-assessment of Patient B's pain before proceeding to corticosteroid injections into the lumbar region; b. an adequate trial of conservative management and consideration of alternative treatments apart from… corticosteroid injections into the lumbar region. 14. On 20 February 2018 the practitioner inappropriately used lignocaine and Depo-Medrol in the injection given to Patient B in circumstances where: a. Depo-Medrol was an inappropriate choice of drug to administer; b. Depo-Medrol was injected by the practitioner without apparent regard to the location where it was being injected; c. Depo-Medrol was used without apparent regard to potential adverse events and complications. 15. On 20 February 2018 the practitioner incorrectly administered the injection of lignocaine and Depo-Medrol to Patient B in that he inadvertently performed an intrathecal injection that caused a full spinal anaesthetic, rather than an epidural or intramuscular injection. 16. On 20 February 2018, after the injections were administered, the practitioner failed to appropriately manage Patient B's spinal anaesthesia in that he failed to administer or arrange for Patient B to receive intravenous fluids. 17. On 31 July 2018 the practitioner inappropriately decided to administer a series of injections of Depo-Medrol diluted in lignocaine into Patient B's lumbar region in his surgery in circumstances where the practitioner did not have the requisite qualifications, clinical experience, or training to perform injections in the neck/cervical spinal region. 18. On 31 July 2018 the practitioner inappropriately decided to administer a series of injections of Depo-Medrol diluted in lignocaine into Patient B's lumbar region in his surgery without imaging guidance. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Regulations under the National Law. PARTICULARS OF COMPLANT TWO Patient A 1. Between 1 June 2018 and 31 July 2018, the practitioner contravened Schedule 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient A in that he failed to make detailed and adequate records for his treatment of Patient A. Patient B 2. Between 2 February 2018 and 20 February 2018, the practitioner contravened Schedule 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient B in that he failed to: a. make detailed and adequate records for his treatment of Patient B. b. record Patient B's informed consent to the procedure of corticosteroid injections into the lumbar region on 20 February 2018, including a record that risks were discussed with Patient B including alternative treatments. Patients C - O 3. Between 9 October 2014 and 15 June 2018, the Practitioner Contravened Schedule 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patients C - O in that he failed to record: a. The indication for the injection in sufficient detail. b. The target location for the injection. c. The dose of the injection. d. The type of injection. e. The size and length of needle used for the injection. f. The preparation undertaken for the procedure. g. The post procedure management. h. Any adverse effects. i. The informed consent of each patient, including in regard to the risks of the procedure and the signature of each patient in the clinical notes to indicate that consent was obtained. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the 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. PARTICULARS OF COMPLAINT THREE 1. During the period 9 October 2014 and 15 June 2018, the practitioner inappropriately administered corticosteroid injections to the spinal or neck area of Patients C to O, as set out in Annexure A, in circumstances where, for each injection the site of the injection could not have been known to the practitioner with sufficient accuracy to properly avoid a severe or catastrophic complication. [Note: for reasons of confidentiality, the names of patients A, B, C - O are not reproduced in this decision] COMPLAINT FOUR The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/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. PARTICULARS OF COMPLAINT FOUR 1. Each particular of Complaint One justifies a finding of professional misconduct. 2. In the alternative, when two or more of the particulars of Complaint One are taken together, a finding of professional misconduct is justified. 3. In the alternative, each particular of Complaint Three justifies a finding of professional misconduct. 4. In the alternative, when two or more of the particulars of Complaint Three are taken together, a finding of professional misconduct is justified."

Conditions imposed on registration

On 15 April 2015 the Medical Council of New South Wales (the Council) imposed conditions on the respondent's registration which included directions not to possess, supply, administer or prescribe any drug of addiction (Schedule 8 drug) as defined by the Poisons and Therapeutic Goods Act 1956 (NSW) (the Poisons Act); and not to possess, supply, administer or prescribe any Schedule 4 Appendix B drug (anabolic steroids), as defined by the Poisons Act, or human chorionic gonadotropin.
On 3 August 2018 the applicant received notification from the Hunter New England Local Health District of the complaint in relation to Patient A. The complaint alleged that the patient was injected with "Depmedrol [sic] 40 milligrams x 3 diluted into 6 millilitres of lignocaine into her neck for management of pain on 31 July 2018". It was identified on examination at the Manning Base Hospital that "the injection had gone into the thecal sac resulting in a high spinal block". The patient subsequently died.
On 13 August 2018 the Council suspended the respondent's registration and on 26 September 2018 the practitioner's registration was cancelled pursuant to s 149C(1)(b) of the National Law, with a direction that the respondent may not apply for review of the cancellation for a period of 12 months from the date of such orders, pursuant to s 149C(7).
The circumstances relating to the treatment of Patient A are set out in records made available to the Tribunal. It is apparent that Patient A died in consequence of spinal injection treatment provided by the respondent. The Tribunal has been provided with statements obtained by the NSW Police Force concerning Patient A's treatment and the subsequent admission to hospital where she died.
It is also apparent from a statement provided by Patient B that the spinal injection treatment provided by the respondent was inappropriate.

First report of Dr Parker: 21 March 2020: Patient B

Dr Geoffrey Parker, neuroradiologist, provided a report dated 21 March 2020. Dr Parker's curriculum vitae establishes that he has eminent qualifications and has served in numerous senior positions including an appointment as the Staff Specialist in Radiology at Royal Prince Alfred Hospital, Sydney and later principal of the Interventional Neuroradiology at that hospital. During such period he has been involved in teaching spinal injection techniques to registrars and fellows in Radiology at that hospital. Dr Parker has had more than 20 years' experience in performing spinal injection procedures including interlaminar epidural injections, perineural injections, transforaminal epidural injections and facet joint injections. This report mainly addresses Patient B.
As to the circumstances and conditions under which a medical practitioner may administer/inject corticosteroids in the vertebral region, Dr Parker stated: "In my opinion, a medical practitioner may administer/inject cortico-steroids into the vertebral region when the following prerequisites have been satisfied: • the practitioner has adequate training and experience in spinal injection techniques with an understanding of potential side effects, complications and management of complications. • the patient has severe persisting symptoms that cannot be adequately managed by conservative methods. • the practitioner believes that the cortico-steroid injection is likely to be beneficial for the patient's symptoms. • there is an adequate diagnosis of the patient's pain syndrome sufficient to allow targeting of the injection, for example does the patient require an epidural steroid injection for severe persistent low back pain, or a perineural injection for a severe radicular pain in the distribution of one or two spinal nerves, or a transforaminal epidural injection or a facet joint injection for painful facet joint osteoarthritis. • there are adequate facilities for injection including facilities for sterile procedures and imaging guidance, if required. • that adequate informed consent has been obtained."
Dr Parker stated there are no requisite qualifications required for a general practitioner to administer injections in the vertebral region, but observed: "General practitioners very frequently perform injections of corticosteroids and local anaesthetic joints and soft tissues elsewhere in the body however I do not believe that general practitioners are usually trained in or commonly inject local anaesthetic and steroid into the spine."
Dr Parker continued: "I do not believe that typical general practitioners training in Australia have sufficient training or experience to perform spinal nerve block/perineural injection procedures, and I believe that further training and access to facilities would be required for a general practitioner to safely perform a range of spinal injection procedures."
Dr Parker stated: "General practitioners very frequently perform injections of corticosteroids and local anaesthetic joints and soft tissues elsewhere in the body however I do not believe that general practitioners are usually trained in or commonly inject local anaesthetic and steroids into the spine."
Dr Parker considered the qualifications of the respondent and stated that it is unlikely that the respondent's training and experience was adequate for performing spinal nerve block injections at the relevant time in 2018.
Dr Parker observed that: "Injection of corticosteroids as a nerve block injection is indicated where there is clinical evidence of persisting severe radicular pain (i.e. pain referred to the legs) in the distribution of the nerve that is proposed to be blocked (as opposed to back pain); and where a need for such an injection exists either as an alternative to surgery, or as a way to delay or potentially avoid surgery. By contrast, epidural injections are typically indicated for severe and prolonged (chronic) back pain that may or may not go down into the leg or buttock on one or both sides."
Dr Parker referred to techniques which are practised by anaesthetists performing interspinous epidural anaesthetic and steroid injections, where non-image-guided techniques, placing needles with reference to palpable landmarks, are adopted. He commented: "Considerable training would be required to safely and accurately perform such injections without image guidance…"
With respect to Patient B, having considered the medical records of the respondent, Dr Parker stated: "In my opinion, the history as documented by Dr Sallam is very brief and does not record whether the pain radiates to the patient's legs or is confined to the lower back and does not address the questions of muscle weakness, sensory change and disturbance of bowel or bladder function. The history disagrees with [Patient B]'s statement with regard to the duration of symptoms and the effects of analgesia. If I assume that Dr Sallam's history is correct, then the history falls below the standard reasonably expected of a practitioner with similar training or experience."
Dr Parker observed that the respondent did not appear to have examined Patient B's legs with respect to range of movement, power, sensation or reflexes. In this respect, the respondent's conduct fell below the standard reasonably expected of a practitioner with similar training or experience. He considered further that the clinical assessment appears to have been brief and limited, with no apparent diagnosis apart from back pain. He considered such conduct again fell below the standard reasonably expected of a practitioner.
Dr Parker considered that the respondent's treatment plan was unsatisfactory, firstly because it did not involve a suitable reassessment before considering whether to proceed with a spinal injection and secondly because it did not involve an adequate trial of conservative management or consideration of alternative treatments apart from nerve block injection. In this respect he considered that the respondent's conduct fell significantly below the standard reasonably expected of a practitioner. There was also no written record of consent obtained from the patient, and in this respect the respondent's conduct fell below the standard reasonably expected of a practitioner.
With respect to the procedure performed by the respondent on Patient B, the respondent observed, immediately after the procedure, that Patient B's pain had disappeared, but he had numbness in his legs. Dr Parker states: "In my opinion, accounts of the procedure indicate that a full spinal anaesthetic (rather than an epidural or intramuscular injection) was actually performed causing rapid and complete loss of power and sensation in the legs and momentary stimulation of lumbar and sacral nerve roots. Mixed lignocaine and Depo-Medrol must have been injected intrathecally by at least one of the six needles, causing a spinal anaesthetic and irritation of the lumbar and sacral nerve roots leading to severe persisting pain. The presence of polyethylene glycol and benzyl alcohol as additives in the Depo-Medrol formulation is most likely to be responsible for the prolonged pain as both agents are said to be neurotoxic…"
Dr Parker considered that the respondent's conduct fell significantly below the standard expected of a practitioner with similar training or experience for several reasons, including that Depo-Medrol was an inappropriate choice of drug to administer and was injected without apparent regard to the location where the drug was being injected, or the potential adverse events and complications of the injection.
Dr Parker provided the following opinion: "In my opinion, [Patient B]'s description indicates that Dr Sallam first palpated the spinous processes of the lower lumbar spine to identify the anatomical surface markings of the points to be injected, anaesthetised the skin and then inserted a longer needle which passed into the thecal sac irritating nerves within the thecal sac and then performed an intrathecal injection with lignocaine and Depo-Medrol that caused a full spinal anaesthetic with complete numbness and paralysis of the legs and numbness of the testes. Intrathecal injection of Depo-Medrol caused the pain during and after the injection by irritation of the lumbar and sacral nerves - this is said to be due to the polyethylene glycol and benzyl alcohol in the Depo-Medrol formulation, both of which are said to be neurotoxic [Ref Nelson DA]. I believe that Dr Sallam's conduct fell below significantly below [sic] the standard reasonably expected of a practitioner with similar training or experience."
Dr Parker considered that on the information available, the respondent did not have adequate qualifications and training to conduct corticosteroid injections in the vertebral region. The respondent's conduct fell significantly below the standard reason expected of a practitioner with similar training or experience. Dr Parker also considered that the respondent's patient management after inadvertent spinal anaesthesia fell below the standard reasonably expected of a practitioner.

Second report of Dr Parker: 27 March 2020: Patient A

Dr Parker provided a second report dated 27 March 2020 which addresses the treatment provided to Patient A. In respect of the clinical indications for administering a nerve block injection of corticosteroids, Dr Parker states: "Injection of corticosteroids as a nerve block (i.e. perineural) injection is indicated where there is clinical evidence of persisting severe radicular pain (i.e. pain referred to the arms) due to a disc protrusion or degenerative disease with osteophytes narrowing the neural foramen, in the distribution of the nerve that is proposed to be blocked as an alternative to surgical decompression [Ref Khangure, Wenderoth]. A cervical nerve block injection is not indicated for localized neck pain, although in patients with severe or prolonged pain, a cervical epidural injection may be performed to relieve pain associated with inflammation around more than one nerve in the neck. Cervical epidural injections are not indicated for treatment of pain of muscular origin. There are a few references in the literature to lower cervical intramuscular injections for headache relief [ref Mellick]. I have no experience of this indication for cervical injections but to my knowledge, these are not commonly performed."
Dr Parker states that in his training and experience in interventional radiology, he has always used imaging guidance for needle placement for cervical nerve block injections and other spinal injections. He considers that imaging guidance is necessary for accurate needle placement for all cervical injections, and that it is necessary for injections of such nature to be given with fluoroscopic imaging guidance or using a CT scanner either with CT fluoroscopy or intermittent CT imaging during needle placement.
Dr Parker noted that at the first consultation on 1 June 2018, the respondent recorded that Patient A's pain had been misdiagnosed as spinal in origin and that her symptoms were consistent with fibromyalgia. He prescribed Tramal and Cymbalta. Another consultation occurred on 15 June 2018, where the respondent recorded a history that the patient was feeling better on medications but still stiff and sore. He increased the Cymbalta to "60".
Further consultation occurred on 6 July 2018, where the respondent recorded that Patient A had "neck pain and spasm causing cervicogenic headache, happy to try cortisone injection will come back".
Dr Parker considered that the history recorded by the respondent was extremely brief: there is no record of the presence or absence of symptoms of radiculopathy in the arms including muscle weakness, distribution of pain and sensory loss. Dr Parker considers that answers to these points of enquiry should have been included together with details of duration of symptoms and previous treatment. He considered that the conduct fell below the standard reasonably expected.
Dr Parker noted that there was no record of the respondent conducting a physical examination and considered that in the absence of such, the respondent's conduct fell below the standard reasonably expected.
Dr Parker noted the respondent's answer provided during the s 150 proceedings on 13 August 2018, that Patients A's diagnosis was a "toss-up between fibromyalgia and chronic pain syndrome" and that he favoured fibromyalgia because "the pain was wider spread" and the patient had exhibited "18 tender points". Dr Parker stated that, on the information available, he is not able to reach a diagnosis. He noted that no diagnostic image studies, such as CT or MRI scans, appear to have been obtained in order to assist with diagnosis. He considered the respondent's assessment was inadequate and that no firm diagnosis had been reached. In this respect the respondent's conduct fell below the standard reasonably expected.
Dr Parker considered that if the respondent's diagnosis was either fibromyalgia or chronic pain syndrome, there was no indication for suggesting or attempting to perform a cervical intramuscular injection, cervical epidural injection, or cervical nerve block. The treatment plan should have included an adequate trial of non-invasive therapies. In this respect the respondent's conduct fell significantly below the requisite standard. Dr Parker's stated: "I believe Dr Salam's assessment was inadequate and that no firm diagnosis had been reached."
Dr Parker stated he did not believe the respondent's decision to recommend corticosteroid injection was appropriate given the absence of any record concerning the presence or absence of radiculopathy as a component of Patient A's pain, or any firm diagnosis or reasonable belief that corticosteroid injection would help her. In this respect he considered the respondent's conduct fell significantly below the standard.
Dr Parker considers that the respondent's referral of Patient A for physiotherapy treatment was appropriate. However it appears that Patient A had not attended physiotherapy before the respondent recommended corticosteroid injection. It did not appear that the respondent considered other forms of treatment. In this respect his conduct fell significantly below the standard reasonably expected.
Dr Parker considered that Patient A suffered a respiratory arrest due to injection of local anaesthetic into the subarachnoid space. Whilst Dr Parker could not determine whether the patient's cardiac function was also impaired by the local anaesthetic or whether her cardiac arrest was a consequence of inadequate treatment of respiratory arrest, Dr Parker stated: "In my opinion, it is most likely that [Patient A] suffered a respiratory arrest due to injection of local anaesthetic into the subarachnoid space, causing a high cervical spinal anaesthetic and paralysis of the muscles of the diaphragm."
Dr Parker considered the respondent's conduct fell significantly below the standard expected.
Dr Parker considered that the technique as described in the clinical records fell significantly below the standard reasonably expected. He considered that administration of a corticosteroid and local anaesthetic in Patient A's spinal region without the benefit of imaging guidance cannot be supported. In this respect the conduct of the respondent fell significantly below the standard.
In Dr Parker's view, the respondent's qualifications, experience and training were insufficient to conduct corticosteroid injections in the spinal region, and the respondent's conduct fell significantly below the requisite standard. Further, he considered that the medical records for Patient A were inadequate and fell below the standard reasonably expected of a practitioner with similar training or experience.
Dr Parker concluded: "In summary, it appears that Dr Salam recommended and performed what was intended to be an intramuscular injection (similar to those he performed elsewhere in the body) in [Patient A's] cervical spine without the necessary knowledge or training in these techniques and this resulted in injection of local anaesthetic into the subarachnoid space and a high cervical spinal anaesthetic, respiratory and subsequent cardiac arrest, hypoxic brain injury and the death of [Patient A].

Third report of Dr Parker: 15 April 2020: Patient A

Dr Parker provided a supplementary report concerning the treatment of this patient. This report relates directly to the respondent standard of care fell below that which could be reasonably expected, and especially following the administration of the injection. Dr Parker stated that given the conflicting information concerning the events immediately following the development of a vasovagal attack needing resuscitation, he was unable to be sure of the respondent's clinical judgement or indeed if the respondent had in fact formed a clinical diagnosis. Dr Parker confirmed his opinion that whilst Depo Medrol was suitable for injection into joints or muscular tissues, such drugs should not be used for spinal injections. Dr Parker stated: "Depo- Medrol is a particulate steroid, and when used for spinal injections can be associated with complications such as: (1) inadvertent intra-arterial injection an impairment of blood supply to the spinal cord leading to spinal cord ischaemic injury. (2) inadvertent intra - arterial injection with embolisation of particles due to the vertebro-basilar circulation and ischaemic injury involving the posterior circulation territory including the brain stem, cerebellum and occipital lobes and basal ganglia. When Dr Salam injected lignocaine and Depo- Medrol into [Patient A's] neck, he should have been aware of the potential complications if the injection was placed too close to the spine (a spinal injection rather than a muscular tissue injection)."

Fourth report of Dr Parker: 18 July 2021: Patients C - O

Dr Parker has provided a fourth report relating to patients C to O. In respect of the 57 episodes in which the respondent administered a spinal neck injections to a patient, Dr Parker was requested to state whether such treatment was below the standard reasonably expected of a practitioner of similar training and experience, and whether such conduct fell significantly below the standard.
Dr Parker observed that with respect to patients B and A, the intrathecal injections were performed and lumbar spine and in the cervical spine and that the respondent injected deeply into the intrathecal compartment of the spine in both patients.
Dr Parker defined "significantly" as a significant threat to life or well-being of a patient, as opposed to merely a technical breach of the standards. Dr Parker considered that all of the 57 treatments episodes where the respondent did not know where his injections were being placed fell significantly below the standard reasonably expected of a practitioner with similar training and experience. Dr Parker stated that in all the cases, the respondent did not have sufficient information to determine where his injections were being placed and considered that it is possible "that any of the patients above could have suffered a similar complication to [Patient A] (with neck injections) and [Patient B] (with the lumbar spine injections)". Dr Parker said: "It is my opinion that all of the treatment episodes above fell significantly below the standard expected of a practitioner, because the site of the injection cannot have been known to Dr Salam with sufficient accuracy to avoid a severe or catastrophic complication. Furthermore, in all cases, the indication for the injection is not apparent from the clinical notes in sufficient detail and the target location of the injection cannot be determined. The dose and type and, in some cases the number of injections has not been recorded. The only record of the drug used is in terms of the prescription given to the patient to fill at a pharmacy and bring along to the appropriate consultation. There is no record of the actual drug injected, the actual - injected, or the number and site of injections."
Dr Parker was asked to comment on the record keeping of the respondent. Dr Parker considered that the dose and type a number of injections; the size and length of the needle use; the preparation undertaken for the procedure; and the effects, including any adverse effect of injections should have been recorded. However, no such detail had been adequately recorded by the respondent. Dr Parker observed that very occasionally side-effects such as "nausea, dizziness, giddiness" had been recorded. Occasionally the therapeutic effect of the injection procedure had been recorded at the next consultation. Dr Parker considered that there was no detail adequately recorded of post procedure management and adverse effects.
As to informed consent of the patient, Dr Parker stated: "Informed consent was required from the patient in regard to the injection by Dr Salam in my opinion all cases in this informed consent should be documented in the clinical notes in my opinion. It is not sufficient to say, "informed consent obtained" without further details of the consent including documentation of the risks of the procedure and a patient or agent signature indicating that consent has been obtained."

Background to events relating to Patient A

The respondent had conducted a practice as a general practitioner for more than 10 years. His practice consisted of two general practitioners, four nurses and six reception staff. He asserted before the hearing convened by the Medical Council on 13 August 2018 pursuant to section 150 of the National Law that he cares for patients of all ages and performs minor procedures including cortisone injections, skin cancer removals, suturing and removal of foreign bodies. The respondent informed the hearing that he had a particular interest in muscular skeletal problems such as chronic arthritis, inflammation of the bursa, tendinitis and chronic pain such as myofascial pain and fibromyalgia. He had also worked in the area of women's health including antenatal and post-natal management and menopause. He had had some training in emergency and some surgical training in Egypt.
During his evidence it was apparent that the respondent was never assisted by any radiological imaging before he performed his injections. Further, it is concerning that the respondent displayed a lack of insight into the risks of the procedures which he was undertaking. His source of knowledge was concerning when he stated: "Some doctors (indistinct) cortisone injections into some tender points like I read in the (indistinct) book goes back to 2011 I can't remember the time (indistinct) it was an American book, very small text about general medicine and it mentioned something about the cortisone That injection to the tender points on the (indistinct) Webmet website".
During the hearing it became apparent that much of the information relating to Patient A was absent from the clinical notes. However the respondent stated he had often given steroid injections. He had not been trained in reading ultrasounds but had given injections in the neck to approximately 12 patients in the past, with no unforeseen outcomes. The respondent stated that he had reassured Patient A that he had carried out such procedure many times with no adverse effects. The respondent then provided two injections, one above the other, with no adverse effects. However when he administered the third injection, Patient A complained of pain, moved her head and thereafter stated she couldn't breathe. She became unresponsive and an ambulance was called to take her to hospital, where she later died.

Section 150 Hearing

On Monday, 13 August 2018 a hearing was convened by the Medical Council of New South Wales under section 150 of the National Law. The delegates formed the view that the respondent's decision to undertake to inject a patient in the neck was wrong and, without additional technological or nursing support, reckless. The delegates formed the view that the respondent posed a danger to the public. They accordingly suspended the respondent's registration at 2:30pm on 13 August 2018 pursuant to s 150(1)(a) of the National Law.

Findings

The Tribunal must be satisfied, commensurate with the gravity of the charges, that the conduct complained of is established, namely the standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Whilst it is a misnomer to speak of a burden of proof in a tribunal where the rules of evidence do not prevail, (see FTZK v Minister for Immigration and Border Protection [2014] HCA 26 at [33]-[36]), it is convenient to adopt the Briginshaw standard of proof. For further authority see Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14] and the observations of the NSW Court of Appeal in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41.
The unchallenged evidence provided by the applicant satisfies the Tribunal that the conduct of the respondent as alleged in Complaints One, Two and Three is established.
The applicant submits that the conduct complained of constitutes professional misconduct. Section 139D of the National Law defines "professional misconduct" including unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners regulation (see section 139E (a)); 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 practitioners registration.
In Qidwai v Brown (1984) 1 NSWLR 100, the New South Wales Court of Appeal observed (in relation to the provisions of the Medical Practitioners Act 1938 (NSW)) referred to the fact that misconduct in a professional respect under that Act required proof that there had been departures from accepted procedures and that those departures had been the subject of professional reprobation by fellow practitioners of good repute and competence: see pages 101, 102 and 105. The Tribunal is satisfied that under the National Law, the respondent has departed from accepted standards.
Section 139E of the National Law defines "professional misconduct" as follows: For the purposes of this Law, professional misconduct of a registered health practitioner means - (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 conduct of the respondent in respect of the patients referred to in the complaint satisfy the definition of professional misconduct under section 139E of the National Law.
The respondent was not properly trained to perform injections of the kind performed on his patients. Further, the failure of the respondent to use radiological imaging meant that his conduct was fraught with danger when injecting his patients in the cervical area, including the neck area. The respondent's treatment of his patients was incompetent. Further, the answers provided by the respondent during the section 150 hearing suggest that the respondent has no real insight into the risks that he was undertaking. The Tribunal is not satisfied that the respondent appreciates the risks which he took in respect of the conduct towards the patients the subject of these proceedings. There has been no real expression of remorse.

Background of Respondent

The evidentiary certificate issued under section 244 of the National Law by the Australian Health Practitioner Regulation Agency records that the respondent graduated with a degree of Bachelor of Medicine/Bachelor of Surgery, Cairo University, Egypt in 1989. The respondent was suspended from practice on 14 August 2018 until 26 September 2018. His registration was cancelled on 26 September 2018. The respondent's current status as recorded by the Australian Health Practitioners Regulation Agency is "Unregistered (cancelled)".
It should also be observed as recorded in the certificate issued under section 244A of the National Law by the Medical Council of New South Wales that from 16 August 2004 to 13 September 2005 the respondent was granted conditional registration to undertake supervised training under section 7(1)(A) of the Medical Practice Act 1992 (NSW); from 14 September 2005 to 30 June 2010 the respondent was granted general registration; from 15th of April 2015 to14 August 2018 conditions were imposed upon his practise by the Medical Council of New South Wales.

Protective Orders

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 the conduct of a practitioner. That is, the Tribunal must be satisfied that a practitioner is a "fit and proper person" to be registered as a medical practitioner. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [36], Toohey and Gaudron JJ said: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
Whilst such authority was more pertinent to character as opposed to professional competence, it is nevertheless a useful guide in assessing whether a person is a fit and proper person to be a member of the medical profession.
The authorities listed hereunder comprise examples of the assessment that the Tribunal must make.
In Pillai v Messiter (No 2) (1989) 16 NSWLR 197, Kirby P (as His Honour then was) described the test for professional misconduct under the Medical Practitioners Act 1938 as follows at 200: Departures from elementary and generally accepted standards, of which a medical practitioner could scarcely be heard to say that he or she was ignorant could amount to such professional misconduct. But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards of such serious negligence as, although not deliberate, to portray indifference and an abuse of privileges which accompany registration as a medical practitioner.
At 201 His Honour said: The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant role of practitioners, at least until they can demonstrate that they're disqualifying imperfections have been removed.
In Prakash v Health Care Complaints Commission [2006] NSWCA 153, Basten JA said (inter alia) at [91]: The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interest include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical 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.
Although His Honour's observations related to previous legislation, it is apparent that the purpose of the National Law and its predecessor legislation is the protection of the public, to ensure that as far as possible, the public is protected from incompetent or unfit practitioners.
In Crickitt v Medical Council of NSW (No 2) [2015] NSWCATOD 115 the following appears at [56]: A consideration of the public interest will always include the need for patients to have confidence in the competence of medical practitioners and that the medical practitioners will exhibit traits consistent with the honourable practice of an honourable profession…. The public must have confidence that medical practitioners who treat them exhibit these traits.
In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA at [35] referred to the objective of protecting the health and safety of the public saying: "… [It] 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 practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as 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."
The incompetence demonstrated by the respondent is sufficiently serious to justify an order that his registration be cancelled, as was considered by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186. At [19] His Honour said, inter alia: The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation.
However, such orders are wholly protective in the public interest: there is no element of punishment of the individual although the effect of them may be punitive: see Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [83] (Basten JA). Nevertheless, it has been held that a pre-requisite for the making of an order cancelling registration of a practitioner carries with it "a finding that the practitioner is probably currently unfit to practice [sic] and is likely to remain so for a significant or indefinite period…": See HCCC v Iskander [2015] NSWCATOD 30 at [174].
The Tribunal was referred by the appellant to the decision in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 especially at 637 where the court stated: Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.
It should be observed that the circumstances in Litchfield related to impropriety between the practitioner and patients, rather than a question of professional incompetence.
The Tribunal will order that, had the respondent been registered, the Tribunal would have cancelled his registration and that he not be eligible to apply for registration for a period of five years from the date of the Tribunal's orders. The Tribunal notes the statutory declaration provided by the respondent that he has no intention of applying for registration as a medical practitioner in the future.

Costs

The applicant seeks an order that the respondent pay its costs of these proceedings. In accordance with the principles in Health Care Complaints Commission v Philipiah [2013] NSWCA 342, and as provided by clause 13 of Schedule 5D of the National Law, it is appropriate that an order be made that the respondent pay the costs of the applicant. In making such order, the Tribunal emphasises that the making an order for costs is intended to compensate a successful party and is not to be regarded as punitive of the unsuccessful party: see Latoudis v Casey (1990) 170 CLR 534 at 543.

Orders

The Tribunal makes the following orders: 1. Had the respondent been registered as a medical practitioner, the Tribunal would have cancelled such registration pursuant to section 149C(4)(a) of the National Law. 2. Pursuant to section 149C(4)(b) the respondent is disqualified from being registered in the health profession for a period of five years from the date of these orders and is not eligible to apply for reregistration until the expiration of five years from the date of these orders. 3. The National Board with which the respondent is registered is to record the fact that the Tribunal would have suspended or cancelled the respondent's registration in the National Register kept by the Board as provided by section 149C(4)(c). 4. The respondent is to pay the costs of and incidental to the applicant of these proceedings as agreed and failing agreement, liberty to restore before the Tribunal for assessment. 5. Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, the publication of the name of any patient referred to in the records filed in these proceedings is prohibited.

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: 23 August 2021

Medical Practice Act 1992(NSW)

Poisons and Therapeutic Goods Act 1956(NSW)

Medical Practitioners Act 1938(NSW)

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Judgment (19 paragraphs)

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Legislation Cited (4)

Cases Cited (24)