NSWNSWCATOD

Health Care Complaints Commission v Selim

[2021] NSWCATOD 27

NCAT Occupational|2020-10-22

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2020-10-22

Source

Original judgment source is linked above.

Judgment (10 paragraphs)

[1]

bout each record. b. At each supervision meeting the practitioner is to review and discuss his practice with the supervisor with particular focus on: i. The 10 patient records randomly selected by the supervisor as referred to in conditions 4.a.i and 4.a.ii ii. History-taking iii. Examination iv. Diagnoses v. Clinical management vi. Prescribing vii. Follow-up viii. Professional and ethical issues ix. Documentation c. The practitioner authorises the Medical Council to provide proposed and approved supervisors with a copy of a report of the proceedings that imposed this condition. d. The practitioner is not to practise until a supervisor has been approved by the Medical Council. e. Within 7 days of the end of each month, the practitioner is to provide the Medical Council (in a Council-approved format) with a report documenting the issues discussed with the supervisor for each of the 10 patient records and a short statement about what he learnt from the supervision meeting with the supervisor. This to change to reports on a three-monthly basis after the respondent has practised for three months following the period of suspension. 5. To submit to an audit of his medical practice, by a random selection of his medical records, by a person or persons nominated by the Medical Council of New South Wales and: a. The first such audit is to be held on a date to be appointed by the Medical Council and subsequent audits are to be held as required by the Council. b. The auditor(s) is to assess the respondent's compliance with good medical record-keeping standards, legislative requirements and conditions on his registration. c. The practitioner authorises the auditor(s) to provide the Medical Council with a report on their findings. d. The practitioner is to meet all costs associated with the audits and any subsequent reports. 6. Not to undertake the following procedures: a. Circumcisions b. Intrauterine device insertions 7. To undergo a performance assessment. 8. To authorise and consent to any exchange of information between the Medical Council of New South Wales and Medicare Australia for the purpose of monitoring compliance with these conditions. (5) The conditions are to be monitored by a designated officer or officers of the Medical Council of New South Wales, who will be responsible for overseeing compliance with the conditions. The Medical Council is to have the power to vary any of the conditions and/or impose further conditions as may be necessary to continue to ensure that the respondent's practice as a medical practitioner is safe for the public. (6) The Respondent to pay the Complainant's costs as assessed or agreed pursuant to Schedule 5D, Clause 13 of the National Law. Catchwords: HEALTH - professional registration and discipline - unsatisfactory professional conduct - professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Dawson v Law Society of New South Wales [1989] NSWCA 58 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Health Care Complaints Commission v Do [2014] NSWCA 307 Law Society of New South Wales v Walsh [1997] NSWCA 185 Prakash v HCCC [2006] NSWCA 153 Sabag v HCCC [2001] NSWCA 411 Texts Cited: Medical Council of New South Wales, "Compliance Policy - Supervision" (1 February 2015) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ashraf Selim (Respondent) Representation: Counsel: N Evans (Applicant) M Hutchings (Respondent)

[3]

The Complaint

The proceeding commenced with the Health Care Complaints Commission (HCCC) filing a Complaint dated 21 May 2020. That Complaint contained 4 separate complaints. On 20 August 2020 Dr Ashraf Selim (the respondent) filed a Reply to the HCCC Complaint. In that Reply document the Tribunal was advised that almost all of the Complaint was admitted. We here set out the respondent's Reply as it also contains the HCCC case. That part of the document, set out below, which contains the respondent's words in reply, are set out in bold. Background to all Complaints The practitioner obtained a Bachelor of Medicine and Bachelor of Surgery from Cairo University in 1980 and was admitted to practice medicine in Australia in 1985. The practitioner and his wife, who is a dental practitioner, co-own the "Medical and Dental Centre" ("the Medical Centre") in Punchbowl. Patient A, a female of 17 years of age, had attended the practitioner since she was approximately three years of age and would routinely attend the practitioner with a parent present. On 28 March 2018 and 31 January 2019 the practitioner prescribed Patient A Isotretinoin. Isotretinoin is classed as a Schedule 4 drug under the Poisons Standard February 2018 and is commonly known as 'Roaccutane'. Isotretinoin can only be dispensed by a specialist dermatologist or physician. Patient A became pregnant in early 2019 and had a termination at the Royal Hospital for Women on 8 July 2019. The foetus had severe dysmorphic features consistent with early pregnancy exposure to isotretinoin. I, Dr Ashraf Selim, admit and agree to the background described. Complaint One The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law as the practitioner 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. I admit Complaint One. Particulars of Complaint One 1. The practitioner inappropriately prescribed oral Isotretinoin to Patient A at the Medical Centre on 26 March 2018 ('the consultation') when she attended for treatment of facial acne in the company of her mother. I admit this particular. 2. During the consultation the practitioner failed to: a. Take a proper history from Patient A, including, but not limited to, whether she was sexually active and/or abstinent; I did ask Patient A whether she was sexually active and she informed me that she was abstinent. On reflection I can see that I should not have taken her word for this. I admit this complaint. b. Provide sufficient information to Patient A as to potential side effects of Isotretinoin, including the teratogenic (malformation of an embryo) effects of that drug; I did provide Patient A with a list of the possible side effects however, I did not record sufficient detail of this in my records. c. Recommend and/or order a pregnancy test; I admit that I did not recommend and/or order a pregnancy test. d. Consider, and/or consult with Patient A, as to whether it was appropriate that she be placed on contraception; I admit that I did not prescribe Patient A contraception. However, I did offer contraception, which she declined due to not being sexually active. I admit that accepting this was an error on my part, and I did not document these details. e. Refer Patient A to a specialist/Dermatologist. I admit that I did not refer Patient A to a specialist/Dermatologist. 3. During the consultation the practitioner failed to facilitate an appropriate follow up of Patient A when prescribing Isotretinoin, including: a. a failure to order the relevant blood tests to measure human chorionic gonadotropin ("HCG"), a hormone secreted during pregnancy; I admit that I did not order the relevant blood tests to measure human chorionic gonadotropin ("HCG"), a hormone secreted during pregnancy. b. a failure to record or plan any follow up appointments. I admit that I did not record the plan for follow up appointments. 4. During a subsequent consultation on 31 January 2019 in which Patient A presented with a 'flare up' of acne, the practitioner inappropriately: a. Prescribed oral Isotretinoin to Patient A; b. Ordered a blood test which did not include a pregnancy test; c. Recorded "warning again" but made no reference to: i. Patient A's menstrual cycle; ii. Whether Patient A was sexually active; iii. Possible pregnancy; iv. Contraception; v. The teratogenic effects of oral Isotretinoin; d. Failed to refer Patient A to a specialist/dermatologist, I admit this particular. Complaint Two Is guilty of unsatisfactory professional conduct under section 139(1)(b) of the National Law in that the practitioner has contravened the Health Practitioner Regulations (New South Wales) Regulation Part 4 clause 7 and Schedule 2. [1] 1. The practitioner's medical records with respect to Patient A on 28 March 2018, 31 January 2019 and 2 July 2019 were inadequate in that he failed to record: a. Any detailed discussion with Patient A about the potential side effects of Isotretinoin including the teratogenic effects of that drug; b. Any reference to a blood test that would detect a pregnancy; c. Any reference to a pregnancy test; d. Patient A's sexual or menstrual history in Patient A's clinical history including:- i. Patient A's last menstrual cycle and/or any contraception advice offered on either 28 March 2018 or 31 January 2019; e. The attendance of accompanying persons, namely Patient A's mother; f. Relevant examination findings including the distribution and duration of Patient A's acne; g. Mention of any specific findings referable to Patient A's presentation; h. Any communication with any other treating practitioners. I admit this complaint. Complaint Three Is guilty of unsatisfactory professional conduct pursuant to section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Particulars of Complaint Three: 1. On 2 July 201.9 the practitioner wrote a letter of referral for Patient A to the Royal Hospital for Women and deliberately failed to disclose that Patient A had been prescribed Isotretinoin. I admit this complaint. Complaint Four The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has 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. The particulars of Complaint 1 and Complaint 3 are repeated and relied upon individually and cumulatively. I admit this complaint.
In the initial stages of the hearing the HCCC informed the Tribunal that it would be seeking an order that the respondent's registration be cancelled and that the Tribunal impose an exclusion period (during which the respondent could not apply for re-registration) of 12 months.
The respondent informed the Tribunal that he would be asking the Tribunal not to cancel or suspend his registration as a medical practitioner, rather he would ask that the conditions imposed by the Medical Council of New South Wales (the Medical Council) on 29 November 2019, continue for so long as the respondent continues to practice. He informed the Tribunal that he wished to continue to practice for the next 5 years. We have set out the conditions which are currently attached to his registration later in these reasons.
When the matter was before the Tribunal for hearing, the respondent's counsel informed the Tribunal that: "The approach to be taken is that the factual matters underpinning the Complaint are not contested and therefore must be accepted as established for the purpose of Stage 1." There was no demur from the applicant in relation to that approach.
The hearing then proceeded to hear oral evidence from the respondent only. Again, the Tribunal was informed that no witness relied upon by the applicant was required for cross-examination.
The respondent currently practices subject to conditions imposed upon his registration by the Medical Council, following a hearing pursuant to section 150A of the Health Practitioner Regulation National Law (NSW) (the National Law). Those conditions were imposed on 29 November 2019.
The conditions imposed on the registration of the respondent are as follows: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise no more than 8 hours per day and 40 hours per week. 3. To treat no more than 4 patients in any one hour and 32 patients in any one day. 4. To practise under category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and determined by the appropriate review body. a. The terms of the Council's Compliance Policy - Supervision are varied to require: i. the practitioner to meet with his supervisor on a weekly basis. At each supervision meeting the supervisor is to randomly select and review 10 patient records of patients the practitioner has seen in the previous week. ii. the practitioner authorises the supervisor to provide reports to the Council (in a Council approved format) on a monthly basis. The reports are to document the details of each patient record reviewed, what was discussed about each record and the advice provided by the supervisor to the practitioner about each record. b. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. The 10 patient records randomly selected by the supervisor referred to in conditions 4.a.i and 4.a.ii. ii. History taking iii. Examination iv. Diagnoses v. Clinical management vi. Prescribing vii. Follow up viii. Professional & Ethical issues ix. Documentation c. To authorise the Medical Council of NSW to provide the proposed and approved supervisors with a copy of the report of the proceedings that imposed this condition. d. Not to practise until a supervisor has been approved by the Medical Council of NSW. e. Within 7 days of the end of each month, the practitioner is to provide the Council (in a Council approved format) with a report documenting the issues discussed with his supervisor for each of the 10 patient records and a short statement about what he learnt from the supervision meeting with his approved supervisor. 5. To submit to an audit of his medical practice, by a random selection of his medical records by a person or persons nominated by the Medical Council of NSW and: a. The audit is to be held within 6 months from 29 November 2019 and subsequently as required by the Council. b. The auditor(s) is to assess his compliance with good medical record keeping standards, legislative requirements and conditions on his registration. c. To authorise the auditor(s) to provide the Council with a report on their findings. d. To meet all costs associated with the audit(s) and any subsequent reports. 6. Not to undertake the following procedures: a. Circumcisions b. Intra Uterine Device insertions 7. The practitioner is to undergo a Performance Assessment. 8. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions.
By letter dated 25 September 2020 the Medical Council advised the HCCC that "based on current information available with the Council, Dr Selim has been compliant with his practice conditions."
On 27 August 2019, the Medical Council made the following order: "Pursuant to section 150(1)(a) of the National Law (NSW) the Medical Council suspended Dr Selim's registration on 1 August 2019 with effect from 5pm on 1 August 2019." That order was subsequently changed/discharged by the Medical Council, on 29 November 2019, following a hearing under section 150A of the National Law, and the conditions, set out above, were imposed upon the respondent's registration.
The respondent provided oral evidence before the Tribunal. He presented as contrite and evidenced shame as he answered questions from the HCCC, which questions required him to revisit events surrounding the prescription by him to Patient A of Roaccutane. He was also questioned about the circumstances surrounding his provision of a referral letter to the Bankstown Hospital on 28 October 2008 which accompanied a 17 day old baby who had been administered morphine pursuant to a prescription provided by the respondent to the baby's carer. The dosage prescribed by the respondent, to address neonatal abstinence syndrome (NAS), was grossly excessive and caused the baby to be presented to the respondent again, a few days after the respondent had issued the prescription. The baby presented narcotised. The respondent immediately arranged for the baby to be presented to Bankstown Hospital and provided a written referral to accompany the baby. The respondent also rang the hospital and spoke to a medical practitioner in the Emergency Department of the hospital, who he knew, and advised that the child had taken an overdose of morphine which dose had been prescribed by the respondent. Although advising the hospital that the child was suffering from a morphine overdose, he had not, in writing, advised the dose the baby had taken, or that it was taken exactly in accordance with his prescription and direction.
The respondent appeared, as best we could detect, to give his evidence in a manner which displayed candour and contrition. There was nothing about his oral evidence which led us to have reservations about the manner in which he gave his evidence or its veracity.
The respondent relied upon a statement which was incorporated into exhibit R1 at Tab 2. In the statement he admits the allegations of unsatisfactory professional conduct and professional misconduct. He said "I acknowledge that a finding of professional misconduct could lead to cancellation of my registration. However, given the changes that I have made to my practice, in my attitude and that I have acknowledged my conduct was not appropriate, I believe I have come a long way in changing my practice."
The statement sets out Dr Selim's background and qualifications. He is 64 years of age and obtained a Bachelor of Medicine/Bachelor of Science in Cairo in 1980.
He thereafter obtained the qualifications necessary to practice medicine in Australia and became a member of the Royal Australian College of General Practitioners in 1986. He has lived in Australia since 1984 and has practised as a general practitioner since 1987.
Dr Selim is the owner of the Medical and Dental Centre in Punchbowl which he established in 1987. The practice employs two full-time general practitioners and one part time general practitioner. The practice uses the medical software package known as Medical Director.
Although the statement from Dr Selim describes his practice as employing two full-time general practitioners and one part-time general practitioner, one of those practitioners is Dr Gamal Giurgius, who is currently supervising Dr Selim as required by the conditions imposed on the registration of Dr Selim by the Medical Council. In his oral evidence Dr Selim clarified that Dr Giurgius is not an employee of his, rather he rents space from Dr Selim in the practice rooms. There is no relationship of employer and employee between them.
Although the Medical Council suspended Dr Selim's registration on 27 August 2020 and at a later time, namely 29 November 2020, permitted him to resume practice subject to the conditions which we have set out in these reasons, Dr Selim told the Tribunal, in oral evidence, that he was out of practice for five months.
Dr Selim set out an explanation of the reason why he prescribed Roaccutane for Patient A, in his Statement. He stated as follows: "Patient A presented having already tried multiple acne treatments including antibiotics and they did not work. On 26 March 2018 Patient A presented with her mother specifically requesting Roaccutane, as she had already done some research about its efficacy. She informed me that she had already tried multiple pharmacological therapies without significant benefit. I suggested that she see a dermatologist, but she informed me that she was unable to afford it. At the time, it was my understanding that isotretinoin had become a Streamlined Authority script and it was no longer required to be prescribed by a dermatologist. By way of explanation to my point above, in approximately 2017 I contacted a pharmacy specifically about prescribing Roaccutane and was advised that General Practitioners were now permitted to prescribe Isotretinoin. After that discussion I noted on the practice software, Medical Director, the prescribing criteria for Isotretinoin was listed as Streamline Authority with criteria for severe cystic acne, unresponsive to other therapy. I consulted the PBS website, which confirmed the streamlined authority requirements. I did not see any mention of the requirement for specialist prescription only and was under the mistaken belief that I could prescribe the medication. I now have a copy of the Guide to Poisons and Therapeutic Goods legislation for medical, nurse and midwife practitioners and dentists next to me in the Practice and frequently refer to it when I am prescribing medication. I also have access to the eTherapeutic Guidelines which I use to ensure I am prescribing within current recommendations. My medical records for 26 March 2018 note "risks explained" and whilst I understand that this is not enough detail in the notes I did stress to Patient A the importance of contraception and the side-effects of the drug including its teratogenicity. I also advised that she should restrict exposure to the sun and that there was a risk of possible liver damage and increased susceptibility to depression. I counselled her about the need for contraception and Patient A informed me that she was not sexually active and that she was a virgin. At the time I took her word for that. In hindsight, I can see that the fact that she was with her mother and that her family was religious may have led her to not be open with me. I acknowledge that I should not have prescribed this medication in the first instance. However, I also acknowledge that having decided to prescribe the medication, before doing so, I should have ordered a blood test to determine if Patient A was pregnant before placing her on Roaccutane."
At Tab 17 of exhibit A3, the medical records for Patient A, kept by the respondent's practice, have been produced. Those records disclose Patient A was born in 2000 and was not yet 18 years of age when Dr Selim prescribed Roaccutane for her on 26 March 2018. In his oral evidence Dr Selim advised that the prescription he gave her would last for three months. The records further disclose that it was not until 26 April 2018 that Dr Selim ordered blood tests for Patient A.
On 31 January 2019 the medical notes for Patient A show she attended upon the respondent and obtained a further prescription for Roaccutane. In his oral evidence, Dr Selim told the Tribunal that she informed him she had been to "the Hajj" and that her acne had "flared up" as a result of heat and dust. Dr Selim did not order any further blood test to ascertain if Patient A was pregnant. His notes describe "warning again" and in his oral evidence he told the Tribunal that was his shorthand note for the extensive warnings he had provided to her.
On 2 July 2019 the respondent recorded in his notes for Patient A that she had attended at his practice for consultation and informed him that she was 19 weeks pregnant. She sought a referral to the Royal Hospital for Women.
On 10 July 2019 a notifier made a complaint to the Health Care Complaints Commission in relation to Patient A. The complainant was a health practitioner. The detail of the Complaint was recorded as follows: "Patient was a 17 year old girl with acne. The health practitioner, a GP, prescribed this medication for her. Under NSW law only specialist dermatologists can prescribe isotretinoin. Furthermore, he did not provide her with appropriate contraception as per guidelines and "accepted abstinence" as adequate contraception. The girl was sexually active and fell pregnant and took the isotretinoin until approximately 14 weeks of pregnancy when she recognised that she was pregnant. She had an ultrasound scan at around 19 weeks of pregnancy (when trying to access a termination for social reasons). At that stage major brain abnormalities were noted in the foetus and she was referred to Royal Hospital for Women for further assessment and management. The foetal brain was confirmed to be abnormal on repeat ultrasound and there was also a foetal heart defect noted. The patient requested termination of pregnancy and this was performed by induction of labour. On July 8th I saw the patient and her foetus and noted several dysmorphic features consistent with early pregnancy exposure to isotretinoin."
The referral which the respondent provided to Patient A to present to the Royal Hospital for Women provided no history of a prescription of Roaccutane. The referral was succinct and was as follows: "Thank you for seeing (Patient A), aged 18 years and 7 months. She is 19 weeks pregnant and I have not seen for 8 months. She has an abnormal ultrasound and deformed baby for abortion." Under the heading "Current Medications:" the respondent stated: "None recorded".
Although stating he had not seen her for 8 months, the respondent had last seen the patient on 31 January 2019. An accurate statement would have been "a little over 5 months".
Perhaps somewhat unusual in a case such as the present, there is no evidence from Patient A or her mother as to what occurred in the consultations Patient A had with the respondent in 2018 and 2019.
The HCCC included in its exhibit A3 a copy of the transcript of the hearing before the Medical Council on 1 August 2019. On that occasion the respondent gave evidence. Part of the evidence we have had our attention drawn to includes the following: "DR EDWARDS: So Dr Selim, I think you were, sort of, in the process of telling us that the patient, kind of, put you under pressure to prescribe. Is that what you were saying? DR SELIM: It's sort of pressure that she is can't afford it and she need the medications and you are allowed to prescribe it. So I - I moved on and I prescribed it for her. But because of her age, that's when I - I pressed hard on that birth defects. And also because when I was speaking to her, I explained to her first, "This drug causes birth defects," and she said, "I know, Doctor, I just Googled - I'm the one who bring - I know that. But I'm not sexually active, so that's the - that's not on. So we'll - we'll leave this aside." And then I said, "But what about contraception?" she said, "I don't need contraception. I'm a virgin." And then she - she was a virgin. And then we - we moved onto the other side effects, like the - the patient - because she had a history that she was depressed and explained her look (indistinct) and even her mother was there, if she started to be more depressed, I said, "Come quickly to me, because we don't want any - any problems." And also I explained to her that it might - it's a photosensitivity, it might be - if she expose her skin to the sun, she might burn herself, she needs a lot of sun creams and - we talked about all these things and also about we need to do a blood test to check her enzymes and haemoglobin as a baseline." (Emphasis added.)
When questioned about his knowledge that it was a requirement to order blood tests before prescribing Roaccutane, having consulted his medical records and having initially asserted he had ordered the blood tests on 26 March 2018, the respondent conceded that had not occurred. He said he had ordered the blood tests when he saw her again in April 2018.
We note the criticism of the respondent's prescription of Roaccutane for Patient A includes the following:

He had prescribed a drug which is restricted to being prescribed only by registered Dermatologists.
He had not ordered blood tests to ascertain if she was pregnant at the time she sought the prescription.
He had accepted her assertion that she was not sexually active as a satisfactory form of contraception during the time she was to take Roaccutane.
She had a history of depression.

In relation to the inadequacy of the referral the respondent had provided to Patient A to present to the Royal Hospital for Women on 2 July 2019, the respondent was questioned before the Medical Council on 1 August 2019. The following is an extract from his evidence on that point. "DR EDWARDS: Is there anything in that that you would change or want to - what do you think about that referral? DR SELIM: Yes. But I want to just highlight something. When I did this referral, I was in a - in a mess, of course. So - and I didn't know what to do, because it's a - I realised it's going to be a problem. When she walked in with this ultrasound and said - definitely it's going to be a problem. So here, when I - I sent it here, yeah, about that, you need to mention Roaccutane. DR EDWARDS: I'm just asking you to comment - - - DR SELIM: Yeah. DR EDWARDS: - - - on your referral. DR SELIM: Yes. 18 years and 19 pregnant, I haven't seen her for the last six months or eight months, I - and she has an abnormal ultrasound, deformed baby - for abortion. Yes. It - ideally, it should have been more detailed than that. That she was on Roaccutane from this time. And also mention that her family had Marfan Syndrome as well. DR EDWARDS: So why didn't you mention that she'd been on Roaccutane? DR SELIM: Because I was scared. DR EDWARDS: Why were you - - - DR SELIM: I'm sorry. DR EDWARDS: Why were you scared? DR SELIM: Because I know them and as soon as this happened, I know that there is a problem happen. And then I pray to God that everything will be fine. And even - even the (indistinct) because I didn't want to write it. DR EDWARDS: Sorry? DR SELIM: I didn't want to write it for her. MS LOBROVICH [sic]: The (indistinct) medication. DR SELIM: The (indistinct) medication. I'm - I'm - - - DR EDWARDS: Why not? DR SELIM: I was in a state of shock when they walked in the room and they need this. And they said, "Why you coming me now to - to give me problems?" And then I have to help them anyway. So I said, "The only place you go (indistinct) and go to the Royal Hospital for Women. They will - give them the ultrasound that you - that you showed me now and they can deal with that." DR EDWARDS: So is that a truthful referral letter? Factual and truthful referral letter? DR SELIM: It - it is not. DR EDWARDS: It is not? DR SELIM: It is not. DR EDWARDS: What aspects of it aren't factual or truthful? DR SELIM: Yes. It should document exactly what happened. This lady was put on Roaccutane on January - on January and - and then she fell pregnant in March and that - and now the baby is 18 weeks and - and there is ultrasound show deformity and all this, and please assist and manage as - as you - - - DR EDWARDS: Can I also asked you why you said you had not - have "nor," but you meant not - - - DR SELIM: Yes. DR EDWARDS: - - - seen her for eight months? DR SELIM: Yeah. I - I - that was mistake. I meant - I meant six months or seven months. That was a - - - DR EDWARDS: So how long was it that you hadn't - had not seen her - DR SELIM: Because I saw her in January and then she came in July. DR EDWARDS: So how many months is that? DR SELIM: Seven. DR EDWARDS: Sorry? DR SELIM: Seven. DR EDWARDS: I think you'd find you saw her on 31 January. DR SELIM: Yes. DR EDWARDS: So how many months is that? DR SELIM: February, March, April, June - five months. DR EDWARDS: Five months. DR SELIM: Yes. DR EDWARDS: That's a lot different to eight months. DR SELIM: Eight months. I - I didn't - probably mistake, I will - just writing - - - DR EDWARDS: There are a lot of mistakes that you've made. DR SELIM: Yeah. This - this is not like - probably typing error but it's five or eight. DR EDWARDS: A typing error? DR SELIM: I don't recall that I did it - it wouldn't make any difference, eight or five months or six months, I - I believe."

[5]

Oral evidence of the Respondent before the Tribunal

The respondent gave oral evidence before us. We noted the following, in particular, from his evidence in chief: 1. The respondent has conducted a medical practice at Punchbowl for 34 years. 2. The respondent has practised for 12 months in compliance with the conditions set by the Medical Council on 29 November 2019. 3. If permitted by the Tribunal, the respondent would be content to continue to practice under the same conditions for the remainder of his years practising medicine. 4. Since the conditions have been imposed the respondent claimed his record keeping has substantially improved. He is also spending a longer time with his patients in consultation. 5. Although told that the Medical Council would conduct an audit of his practice in April 2020, that has not occurred. (We note we were informed by the HCCC that the COVID-19 pandemic has caused a delay in the audit). 6. That, if permitted to continue to practice medicine, the respondent proposes to practise for another 5 years. 7. When asked what he wanted to say about patient A, the respondent said: "I am really sorry I caused this little girl harm. All could have been spared if I was careful enough not to prescribe this medication."
The respondent was cross-examined by the HCCC and also asked questions by members of the Tribunal. We noted the following in particular from that oral evidence: 1. The respondent agreed that abstinence should not be seen as a form of contraception. 2. The respondent agreed that being told that a person is not sexually active is also not contraception. Patient A had told the respondent she was a virgin and he knew she was a devout Muslim follower. He spoke to her about contraception. He offered her contraception. 3. In November 2019 the respondent was seeing 240 patients each week. 4. The respondent accepted that the notes he took for Patient A were completely inadequate. 5. Although conceding his memory of the consultations with Patient A was not completely accurate when he gave evidence before the Medical Council, the respondent was sure he had advised her of the risks associated with the drug Roaccutane. He said he always advises patients of the risks of medicine he is prescribing for them. 6. The respondent conceded that medical note-taking had been an issue for him since 2005. In 2015 he wrote notes by hand and his writing was described as illegible. Now he makes notes by electronic means on his computer. The Medical Council advised him that he needed to provide more detail in his notes. 7. The respondent had deliberately not disclosed that he had prescribed Roaccutane for Patient A in his referral letter to the Royal Hospital for Women (RHW). He was "scared" of the consequences to him of that disclosure. 8. The referral letter that the respondent wrote to the RHW stated that he had not seen Patient A for 8 months where he agreed it was actually 5 months. The respondent said that was a typing error on his part. 9. Having told the Medical Council in the hearing on 26 November 2019 that he would acquaint himself with the HEADSS information about exceptions to maintaining patient confidentiality, the respondent had not done that, however, he had watched "lots of videos about adolescent patients". 10. The respondent had learnt from his research that with adolescents he had to explain the confidentiality of the consultation ("everything we discuss is private, even from your parents") then he would talk to them about their medical problem. 11. The respondent had not disclosed to those who provided written references for this hearing, previous events which brought him to the notice of the Medical Council. 12. The respondent has engaged with a psychologist and had two sessions with that practitioner. 13. The respondent agreed it was an error to have commenced Patient A on Roaccutane before he had the results of the blood tests he had ordered. 14. The respondent has entered an Education Plan with Avant. He has had two visits from the Risk Manager. Another visit is planned. The Risk Manager has inspected the respondent's medical record keeping. The respondent has been advised to write more. 15. Since he prescribed Roaccutane for Patient A the respondent has been asked by 4 or 5 patients to prescribe the drug for them. He has declined to do that and has referred them to a dermatologist. 16. The respondent has conducted research and satisfied himself as to the types of drugs which a GP cannot prescribe. 17. The respondent described for the Tribunal members how he would treat acne in adolescent patients. 18. In relation to his access to therapeutic guidelines, the respondent said they are not available with the Medical Director software he uses; however there is a separate subscription for that information.
In its oral submission the HCCC submitted the Tribunal would be conscious of the risks attending the continued practise by the respondent, in particular:

Dangerous prescribing;
Inadequate record keeping;
Deliberate omissions from referral letters;
Lack of appropriate communication with patients.

On 22 October 2020 the Tribunal made the following directions at the conclusion of the two day hearing in this matter. (a) The applicant HCCC is to file and serve its submission on or before 30 October 2020. The submission is to be in word document form and include any submission to be relied upon in relation to any cost order sought. (b) On or before 6 November 2020 the respondent is to file and serve his submission in response to the HCCC's submission and in support of the protective orders he submits should be considered or imposed by the Tribunal. The submission is to be in word document form and address the question of costs of the proceeding. (c) On or before 13 November 2020 the HCCC is to file and serve any submission in reply. The submission to be in word document form. In the event either party requires an extension of any time specified in these directions, an applicant [sic] is to be made by email to the Registry for referral to Le Poer Trench ADCJ, the Principal Member of this Tribunal.
The HCCC provided its submission on 30 October 2020, as required by the directions made by the Tribunal. The HCCC set out the action it sought from the Tribunal in response to the establishment of its Complaint. The HCCC seeks the following orders: The Complainant seeks the following orders: i. That the Respondent's registration be cancelled: s.149C(1); ii. That an application for review of this order may not be made for a period of 12 months: s.149C(7); and iii. That the Respondent pay the Complainant's costs: Schedule 5D, Clause 13. Alternate position: 1. The Complainant presses that no order other than cancellation with non-review period of 12 months would be appropriate in the circumstances. However, should the Tribunal take a different view, it is submitted the next appropriate protective order would be a suspension pursuant to s. 149C(1) of the National Law for a period of 6-12 months, followed by the imposition of conditions. 2. The appropriate conditions following a period of suspension would in the circumstances be the conditions the Respondent is currently subject to with a further condition imposed in the following terms: "The practitioner must undertake treatment with a psychologist of his choosing. The practitioner should attend upon the psychologist at a mutually agreed frequency. The practitioner should accept the psychologist's treatment advice and recommendations. The practitioner should provide the Council with the name and contact details of the psychologist and allow reports regarding attendance, progress, insight into the conduct and overall progression attained in these sessions to be provided to the Council. The practitioner should authorise the psychologist to inform the Council of termination of treatment, serious or immediate concerns about fitness to practise, or repeated failure to attend appointments." 3. The Complainant submits that any sanction imposed that is less than a suspension in this matter would fail to reflect the risk to public health and safety that arose from the Respondent's serious misconduct in this matter.
In the HCCC submission we note the following in particular: 1. The Complaint relates to one patient only, Patient A. 2. The respondent admits the entirety of the Complaint. 3. On 1 August 2019 the respondent's registration was suspended by the Medical Council pursuant to section 150(1)(a) of the National Law. On 26 November 2019, the respondent's suspension was lifted pursuant to conditions. 4. The conduct complained of in the Complaint raises serious issues from the perspective of the protection of the public, the maintaining of standards and public confidence in the profession of medicine.

[6]

The Respondent's submissions

The respondent provided his written submission on 9 November 2020.
The respondent set out the nature of the proceeding brought against him. He records that an admission has been made by him of all the substantive facts which underlie the complaints.
In relation to Complaint One the respondent concedes that the prescribing of Roaccutane to Patient A, twice, was inappropriate and ought never to have occurred. The respondent submits: Complaint 1 In part, the prescriptions were issued based upon a mistake of fact (he understood from a pharmacist that he was permitted to prescribe Roaccutane and that specialist prescribing was no longer a requirement) but Dr Selim unreservedly accepts that he alone bears responsibility for the error. The mistake of fact solely establishes that the act of prescribing cannot be demonstrated to have been conduct in wilful disobedience of a known requirement (and is not relied upon for any purpose other than that stated in this paragraph). Complaint 2 Dr Selim's clinical records in respect of consultations with Patient A were deficient. Dr Selim unreservedly accepts the above (and the objective seriousness of his failure) in light of prior failings to keep adequate records. Complaint 3 Dr Selim's letter of referral was deficient in its content and plainly misleading. It should not have been issued with an omission concerning Patient A's history of Roaccutane treatment. Dr Selim unreservedly accepts the above (and the objective seriousness of his failure). The letter of referral was created in a moment of panic and extreme anxiety. It plainly was not conduct that was the product of careful deliberation. Complaint 4 Dr Selim does not put in issue complaint 4 (other than to say that whilst the threshold has been reached to permit the exercise of powers pursuant to section 149C of the National Law, that is not say such orders are required in the particular circumstances of this matter).
The respondent concedes that the HCCC has established the alleged facts underlying the complaints. The respondent has consented to the hearing of Stage 1 (the establishment of the Complaint) and Stage 2 (the determination of the orders and/or conditions, if any, the Tribunal may impose) of the proceeding concurrently.
The respondent addressed Stage 2. He submitted the focus of this deliberation would be on his present circumstances as a medical practitioner and his prospects for the future.
The respondent submitted that he would be accepted as an honest witness who did his best to answer the questions asked of him and had readily and repeatedly acknowledged his mistakes and was genuinely apologetic in relation to same. He expressed sorrow for the harm he had brought Patient A.
The respondent's submission addressed "The relevant principles - the National Law." The provisions of sections 3 and 3A were referred to as "guiding principles". Those sections (the relevant parts of which we set out) provide as follows: 3 Objectives and guiding principles … (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; and … (3) The 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. 3A 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 the paramount consideration.
The respondent addressed the grounds in section 139 of the National Law and submitted that the Tribunal would find that the HCCC has not established the respondent is not competent to practice medicine.
The respondent addressed the requirements to fulfil the provisions of sections 139B, 139C and 139E of the National Law.
In addressing the orders sought by the HCCC in this proceeding the respondent replied to the submission of the HCCC which addressed "prior history of complaint". The respondent noted that many of the complaints set out in the summary document, relied upon by the HCCC (exhibit A3, Tab 5), resulted in no disciplinary action against the respondent. As stated earlier, there is insufficient detail about the complaints and the response to same by the respondent to be able to give those complaints meaningful weight in this determination. To the extent that there is clear evidence about the findings against the respondent in the 2011 proceeding involving the respondent having prescribed a dose of morphine for a baby, which was grossly excessive and which gave rise to the baby being presented to the respondent and a local hospital narcotised, the respondent submits it is not appropriate to take into consideration that outcome (conditions imposed for some time upon the registration of the respondent) when considering what order ought be made by this Tribunal. In relation to that submission the Respondent put: "Whilst the terms of a Complaint might fairly be said not to be pleadings - or perhaps more accurately to be an indictment (see the HCCC's submissions at 23) it might reasonably be thought that the principles in R v De Simoni [1981] HCA 31 are of assistance by way of analogy. It is submitted that the effect of an analogical application of R v De Simoni (ibid) would mean that protective orders ought only be made where necessary under the National Law only in respect of the matters the subject of the complaint filed by the HCCC."
The respondent submitted that the Tribunal ought to be comfortably satisfied that the likelihood of the respondent again engaging in conduct of the type underlying the complaint is low to non-existent. That is, the respondent submits, it cannot be demonstrated on the evidence that there is a need for orders directed toward specific deterrence.
In his submission the respondent provided the following reference to an extract from the decision of the NSW Court of Appeal in Prakash v HCCC [2006] NSWCA 153: "As to the nature of protective orders and general deterrence, in Prakash v HCCC [2006] NSWCA 153, Basten JA observed (at [91]): '…The purpose of any order consequent 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 interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognize the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal, having two members of the medical profession should, at least in relation to professional standards, be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted.'"
The respondent addressed the question of "risk to the public" which the Tribunal would consider in determining what order should be made of a protective nature. The respondent submitted: "The risk to the public (in consequence of which the HCCC seeks protective orders has not been articulated with specificity): see as to that issue, Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (26 June 2020), per Brereton J (at [97]-[101])".
The passage referred to above from the decision in Ghosh is worth repeating as a guide for the Tribunal in relation to a matter which needs to be identified by the Tribunal in this determination (footnotes omitted): [97] Reference has been made above to the approach enunciated in Karimi at [123]. It is worth restating at this point (references omitted): The Tribunal must assess whether "it is appropriate for the protection of the health and safety of any person or persons" or "is otherwise in the public interest" to make such orders as are permitted by s 159C. The Tribunal's task is in essence to consider whether, on the material before it, allowing the practitioner to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or otherwise involves a risk not in the public interest. [98] As explained in that passage, the essential task of the Tribunal is to consider whether, on the material before it, allowing the practitioner to practise, or to practise with certain conditions, involves an unacceptable risk to the health and safety of the public (or particular members of the public) or to the public interest. Although the Tribunal expressed a conclusion in terms of s 150, to the effect that it was necessary for the protection of the public's health and safety that she not be permitted to resume practice, and that it was not in the public interest that she be permitted to practise, it did not identify what was the nature or extent of the risk that Dr Ghosh posed. The only expression of any connection between her conduct and risk to patients or the public was the observation that it was difficult for the Tribunal to see how the public would be well-served by a practitioner evincing negative attitudes to Family and Community Services, and a reference to her attitude towards professionals as working colleagues. Beyond that, there was no articulation of what was the unacceptable risk to patients and/or the public, such as to require the termination of Dr Ghosh's right to practise. Insofar as the conclusion that the public would not be adequately protected if Dr Ghosh were permitted to return to practice flowed from acceptance of Dr Newnham's opinion to that effect, Dr Newnham did not herself articulate any relationship between her diagnosis and risk to patients or the public. [99] Both Dr Newnham and the Tribunal appear to have proceeded on the basis that once a diagnosis of a significant psychotic illness was made, risk followed. They appear to have assumed that if Dr Ghosh had a mental illness, she posed an unacceptable risk, but that does not necessarily follow. Whether that was so would depend on expert evidence, concerning the nature of the mental illness, its manifestations and any medication or other steps taken to control it. Assuming that Dr Ghosh had schizophrenia, it does not follow that she posed an unacceptable risk to patients or the public; whether it did would depend, amongst other things, on whether any delusions related to or impacted on her practice of medicine. However, it is not self-evident that Dr Ghosh's condition was such that she posed an unacceptable risk, and neither Dr Newnham nor the Tribunal explained why she did. [100] Essentially, the Tribunal's stated concerns amounted to concerns that Dr Ghosh had a difficult personality, responded aggressively to criticism, was contrary and recalcitrant, communicated poorly, and was sometimes offensive in her expressed opinions about others. They were not founded on deficiencies in her treatment of patients. Dr Ghosh's complaints history was not such as to suggest that she posed such an unacceptable risk to patients or the public as required her immediate suspension; in any event, it was not the basis on which the Tribunal acted - it expressly did not review the previous complaints. [101] Why those concerns posed such an unacceptable risk as to require her immediate exclusion from practising her profession was not explained. That is not to say that they could not have been: the delegates in the s 150 decision, summarised above, did identify and explain the risk. But the Tribunal was required to conduct the exercise afresh, and it did not do so.
The respondent submits that in relation to Complaints One and Three an available and appropriate order would be the imposition of a reprimand pursuant to section 149A of the National Law.
The respondent submitted the following in relation to the force and effect of a reprimand: "The force of a reprimand (and the public opprobrium that it entails) cannot be overlooked: see for example, Lindsay v Health Care Complaints Commission [2005] NSWCA 356 (8 November 2005) per Hunt AJA (at [91]). A reprimand performs an important function in publicly denouncing conduct that falls below standard. A reprimand is required to be recorded in the National Register and may be expressed to be a severe reprimand: see, Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 (16 June 2020), per MacFarlan JA (at [60]). It is submitted that in light of Dr Selim's admissions, recognition of error, and evident remorse, a reprimand - or severe reprimand (in a form of words formulated by the Tribunal) and identified to be in respect of each Complaint 1 and Complaint 3; a caution in respect of Complaint 2, together with the imposition of conditions upon Dr Selim's registration are the appropriate protective orders."
In relation to the cost order sought by the HCCC, the respondent submitted that "In light of the admissions in the Reply, Dr Selim does not seek to be heard concerning costs."
The HCCC provided a submission in reply which was filed on 10 November 2020. The submission was short in compass and addressed few matters. The HCCC replied to the submission of the respondent which addressed the "prior history" of complaints made against the respondent. The HCCC submitted "the complaint history of the Respondent has significant probative value and ought properly to be taken into account by the Tribunal. The current complaint cannot be assessed in a vacuum."
The HCCC submitted the Tribunal would not overlook the "defect in character" evident in the conduct of the Respondent. It says: "The Complainant refers to the submission it previously advanced at paragraph [66] and further submits that the defect in character relates to the dishonest (and potentially very dangerous) drafting of referral letters that withheld critical information. This conduct occurred in relation to the 2008 infant incident, and is also present in the current complaint. The Respondent admitted in oral evidence these omissions were motivated by a desire to protect his own reputation among colleagues, as opposed to placing the patient's interest above his own."
In relation to the submission by the respondent that the HCCC has not specifically identified for the Tribunal the risks which would be posed should the respondent continue to practice medicine, the HCCC identified the following risks which it says are clearly identified from the evidence before the Tribunal. It further points out that the risks were articulated in oral submissions to the Tribunal during the hearing. The risks identified by the HCCC are:

Dangerous prescribing;
Inadequate record keeping;
Deliberate omissions from referral letters; and
Lack of appropriate communication with patients.

The HCCC submits that the Tribunal would, at the date of the hearing, and notwithstanding the steps taken by the respondent to address some of the areas of complaint levelled against him by the Complaint document, find the respondent still poses all of the risks identified as risks to the public.
The HCCC submits that the decision in Health Care Complaints Commission v Do [2014] NSWCA 307 is not inconsistent with the decision of Ghosh cited by the respondent. In particular, the HCCC offers the following for the assistance of the Tribunal: "In Health Care Complaints Commission v Do [2014] NSWCA 307, the Court of Appeal held that the Tribunal had fallen into error by focusing only upon the risk of reoccurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct, nor the full implications of the findings that the practitioner's skill and judgement had fallen significantly below the standard reasonably expected: [at 39]. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by ss 3A and 4 of the National Law: [at 40]".

[7]

Determination

This is in many respects a very sad case. The Complaint details a tragic set of circumstances for a young female patient of the respondent. The respondent, in response to a request from Patient A, prescribed Roaccutane, a trade name for the drug Isotretinoin. He prescribed the drug on two occasions. On both those occasions he was not permitted as a GP to make such a prescription. He failed to carry out necessary blood tests and he failed to ensure Patient A was using two kinds of contraception. The consequence of that failure was catastrophic for Patient A when she became pregnant.
When confronted with the horror of a deformed foetus, which Patient A was carrying, the respondent chose self-protection rather than the best interests of Patient A, who required, at that time, that the Royal Hospital for Women be provided with accurate and important information. That information, if it had been provided by the respondent, would have immediately alerted the medical practitioners, who attended to Patient A at the Hospital, as to the cause of the foetal abnormality and dysmorphic appearance, and at the same time condemn the respondent.
Unfortunately for another patient (a newborn infant) this is not the first time that the respondent has sought to hide from the consequences of his incompetent and/or negligent actions as a medical practitioner. On that earlier occasion in about 2008, he failed to reveal in a referral letter to a hospital that the narcotised infant he was referring was in that condition because the respondent had prescribed a dose of morphine grossly in excess of that which should have been prescribed for a baby born to a mother addicted to narcotics.
The respondent did not seek to obfuscate what had happened in each of the two cases above referred to, when he gave evidence before us. In relation to the 2008 incident, action was taken by the Medical Council and the respondent had conditions imposed upon his registration for a time.
Another aspect of the tragic circumstances of this case is the impact upon the respondent. He is now 65 years of age and he informed the Tribunal that he would like to practice medicine for another five years. The respondent has practised medicine in the same community in Sydney (Punchbowl) for 34 years. The referees he has relied upon in the evidence tendered to the Tribunal speak highly of him and the respect he holds in his community. The range of possible orders which the Tribunal has to consider making, in this case, includes cancellation of the respondent's registration for a period of 12 months or more. If such an order were made the respondent would have to convince the Tribunal, following that time, that he should again be allowed to practice medicine. It must be recognised that given his age and circumstances, disclosed in the Complaint now under consideration, he may never practice medicine again. These are matters which ordinary citizens may recognise with sympathetic ear, however, the National Law and the jurisprudence which has grown from same makes clear that, for the Tribunal, such considerations either have no place, or very insignificant place, in the determination we are to make.
The matters which the Tribunal needs to have foremost in its consideration of this case are: the protection of the public as users of the medical services provided by the respondent; deterrence for the medical profession at large; maintenance of the confidence the public needs to have in the medical profession; and the need to ensure medical practitioners practise in a competent and ethical manner (sections 3 and 3A of the National Law).
It is trite to say that the public requires and expects from a medical practitioner transparently honest conduct in every aspect of their dealing with the public, a patient and with other sections of healthcare organisations/structures. Every aspect of the medical practitioner's actions, undertaken on behalf of a patient, must be shrouded in transparent honesty. This is so fundamental to the trust the public needs to have in a medical practitioner, that a failure in this aspect of the patient/practitioner relationship will, in our view, generally satisfy the requirement of section 139E(a) of the National Law. There could be no argument, which we can envisage, to contradict the proposition that the public need to be protected against exposure to medical practitioners who lack integrity. That proposition, in our view, includes a medical practitioner who deliberately omits relevant facts or information in a referral letter, written for a patient, in order to hide incompetence, mistake or misjudgement on his or her part or otherwise. In this case we are satisfied the respondent deliberately chose not to include the fact that he had prescribed the drug Isotretinoin to Patient A in the referral letter he wrote to the Royal Hospital for Women for her.
Whilst we are charged with the task of considering the Complaint currently before the Tribunal, we agree with the HCCC that, when considering what order is appropriate to address the established complaint, we can consider that this aspect of the respondent's conduct has been the subject of earlier consideration by the Medical Council. On an earlier occasion, as we have detailed in these reasons, the respondent did not include in a referral letter to a hospital that he had excessively misprescribed the dose of morphine which was given to a newborn, which then gave rise to the baby being presented to him and then the hospital, narcotised. The impact of the earlier similar behaviour is that the protective orders made on that occasion, did not serve to prevent repetition of that same unacceptable conduct.
Whilst the lack of candour and self-protective conduct of the respondent, in the two referral letters which have been addressed by us above, did not lead to action being taken by the hospital medical staff which was different to the action which may have been taken had they been fully informed of the respondent's role in the presentation to the hospital of each patient, that may not be the case in the future, should there be another incident in which the respondent hides his role in creating the medical crisis the subject of the referral.
We are satisfied there is an identifiable risk to the public in allowing the respondent to continue to practice medicine. That risk is that he will, in a crisis, probably act in his own interests ahead of the interests of the patient.
The risk above identified is not the only risk to the public which we have identified in this case. We agree with the HCCC that the continued practice of medicine by the respondent carries with it, at this time, the risk that the respondent will inappropriately prescribe a drug or medication for a patient; that he will fail to properly communicate to his patients information which is crucial to their wellbeing when taking the drug/medication he has prescribed for them; that he will inappropriately accept a patient's assurances about the way they intend to use the drug prescribed; and that he will fail to make proper medical records for his patients.
In determining the orders to be made we also need to consider the requirement that the orders need to serve as a deterrent to other medical practitioners.
The respondent seeks an order that he be able to continue practicing subject to the conditions which are currently attached to his registration. He would be prepared to practice, until he retires, subject to those conditions. The evidence shows that he has been able to practice in an acceptable manner since the conditions were imposed, subject to the knowledge that an audit of his practice, which was due to occur in April 2020, had yet to be undertaken by the Medical Council at the time of the hearing before us.
When pressed by us, the HCCC, we accept reluctantly, provided an alternate proposal for orders, in the event the Tribunal determined that it would be an appropriate protective order to suspend the respondent's registration for a time and then impose conditions.
In order to consider if that proposal might be appropriate in this case, we need to consider the effectiveness of the conditions operating for the safety and benefit of the public for the next five years or more. We have been informed by the respondent that he only intends to continue to practise for another five years, however, we need to consider a period which may exceed that time should the respondent chose to continue working after reaching that milestone.
Although the respondent's practice has not been the subject of a full audit since the current conditions were imposed, there is in evidence a letter from the Medical Council dated 25 September 2020 advising the HCCC that the information obtained by the Medical Council shows that the respondent has complied with his practice conditions. That would suggest the possibility that he would be compliant with those conditions in the future. The conditions, inter alia, restrict the number of patients the respondent can see in each hour and day of practice. The conditions restrict the number of hours the respondent can work in any one day and week. The conditions require category B supervision. The conditions forbid the respondent undertaking circumcisions and intrauterine device insertions. The respondent is also to undergo a performance assessment. There are other conditions which enable the Medical Council to monitor compliance with the conditions.
We would also need to consider what period of time would need to be imposed as a period of suspension should we impose same. That period would need to fulfil the requirement of deterrence to other medical practitioners and allow for a period during which the respondent might undergo further training and attend upon a psychologist of his choice, to assist him with addressing aspects of his conduct which have been the subject of findings and comment in these reasons.

[8]

Conclusion and Orders

The Respondent has been found to be guilty of three counts of unsatisfactory professional conduct as set out in the Complaint in this matter. He has been found guilty of professional misconduct under section 139E of the National Law as alleged in the Complaint. Section 139E defines "professional misconduct" as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The other limb of section 139E defines professional misconduct as 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.
We are satisfied that the respondent is guilty of professional misconduct, as defined in section 139E of the National Law. The conduct exhibited by the respondent in failing to advise the Royal Hospital for Women that he had prescribed Isotretinoin for Patient A is, in our view, "conduct of a sufficiently serious nature to justify suspension or cancellation".
We are satisfied that the three conceded complaints of unsatisfactory professional conduct, "when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation" of the respondent's registration.
If the Tribunal were to make an order for suspension and then the permanent imposition of conditions to follow same, we consider a suspension of three months would be necessary to fulfil the requirement for the respondent to commence therapy with a psychologist; and to ensure that he continues to refine his skills in note-taking and record keeping for his patients and has a system in place to make sure he understands which drugs he is permitted to prescribe and clear information as to warnings to be given to patients receiving a prescription for same. That length of suspension would also, in our view, fulfil the obligation of deterrence to other medical practitioners.
If the order made is to be cancellation of registration, we consider a period of six months before the respondent could apply for re-registration would be required.
This is a difficult decision for us to make. We are conscious of the fact that the order we are to impose is not designed to be punitive but rather protective of the public and a deterrent to the medical profession at large.
Having considered at length the orders which this determination requires to be imposed, we conclude that a period of suspension of three months should be imposed upon the respondent's registration and then the imposition of conditions which are to remain for so long as the respondent continues to practice medicine, such conditions to be varied, to the extent that is absolutely necessary, during that time and only by the Medical Council. Such a period of suspension, we find, would enable the respondent to engage with his psychologist, as we will order, and engage in further tuition with Avant (the organisation he has already worked with) or some other like body, so that at the conclusion of the suspension period the respondent may practise again in compliance with rigorous conditions and thus change the balance in favour of the public such that he will no longer pose an unacceptable risk to them.
In reaching this decision we have considered differing lengths of suspension and in relation to each considered whether or not such a period would be too short or unnecessarily lengthy to reasonably achieve the aims we seek to facilitate in relation to the ongoing practice of medicine by the respondent. We are satisfied that the proceeding itself has had a reforming impact upon the respondent to a significant extent. The imposition of the conditions by the Medical Council has served to provide evidence of compliance with the conditions since the imposition of same in November 2019. Although a full audit of the respondent's practice has not been conducted there is nothing to suggest at the time of the hearing before us that such an audit, when completed, will disclose matters of concern about the respondent's practice.
We consider the fact of the imposition of a suspension of the registration of a senior and well respected GP will itself serve to illustrate to the profession and the public at large that the Tribunal has regarded the established complaints seriously and not sought to disregard the respondent's unsatisfactory professional conduct and professional misconduct.
We have further considered the conditions which currently apply to the registration of the respondent and how those conditions should continue after the period of suspension has been served by the respondent. We consider that after a period of three months, following the respondent recommencing his practice, the conditions requiring him to meet with his supervisor weekly, the requirement for his supervisor to provide reports to the Medical Council monthly and the requirement of the respondent to provide his own reports to the Medical Council monthly, should be extended to requiring the respondent to meet with his supervisor monthly and for the reports to be provided by the supervisor and the respondent on a three-monthly basis.
The HCCC, when putting the alternate position, submitted that if the Tribunal was to take that path then an additional condition should be imposed. That condition is: "The practitioner must undertake treatment with a psychologist of his choosing. The practitioner should attend upon the psychologist at a mutually agreed frequency. The practitioner should accept the psychologist's treatment advice and recommendations. The practitioner should provide the Council with the name and contact details of the psychologist and allow reports regarding attendance, progress, insight into the conduct and overall progression attained in these sessions to be provided to the Council. The practitioner should authorise the psychologist to inform the Council of termination of treatment, serious or immediate concerns about fitness to practise, or repeated failure to attend appointments."
We agree that the additional condition submitted by the HCCC should be imposed and we propose to so order.
The orders of the Tribunal are as follows: 1. The respondent's registration as a medical practitioner be suspended for a period commencing seven days after the date of this order until the day that is three months after that date. 2. During the period of suspension the respondent must engage with Avant or some other similar provider of medical education or training (the educator) and attend upon any further education and/or training with the educator which is recommended by the educator to assist the respondent in his practise of medicine when he resumes that practice. The respondent is to provide the educator with a copy of this decision and is to provide the Medical Council of New South Wales with monthly reports of the further education or training he has undertaken in that month. 3. The respondent must undertake treatment with a psychologist of his choosing. The respondent is to attend upon the psychologist at a mutually agreed frequency. The respondent is to accept the psychologist's treatment advice and recommendations. The respondent is to provide the Medical Council of New South Wales with the name and contact details of the psychologist and allow reports regarding attendance, progress and insight into the conduct, and overall progression attained in the sessions, to be provided to the Medical Council. The respondent is to authorise the psychologist to inform the Medical Council of termination of treatment, serious or immediate concerns about fitness to practise, or repeated failure to attend appointments. The respondent is to provide the psychologist with a copy of this decision. 4. The respondent will have the following conditions imposed upon his registration as a medical practitioner for so long as he may continue to practise medicine: 1. To obtain the approval of the Medical Council of New South Wales prior to changing the nature or place of his practice. 2. To practise no more than 8 hours per day and 40 hours per week. 3. To treat no more than 4 patients in any one hour and 32 patients in any one day. 4. To practise under category B supervision in accordance with the Medical Council of New South Wales' "Compliance Policy - Supervision" (as varied from time to time) and as determined by the appropriate review body. a. The terms of the Medical Council's "Compliance Policy - Supervision" are varied to require: i. the practitioner to meet with the supervisor on a weekly basis. This frequency to change to monthly after the respondent has practised for three months following the period of suspension. At each supervision meeting the supervisor is to randomly select and review 10 patient records of patients the practitioner has seen in the previous week. ii. the practitioner to authorise the supervisor to provide reports to the Medical Council (in a Council-approved format) on a monthly basis. This to change to three-monthly after the respondent has practised for three months following the period of suspension. The reports are to document the details of each patient record reviewed, what was discussed about each record and the advice provided by the supervisor to the practitioner about each record. b. At each supervision meeting the practitioner is to review and discuss his practice with the supervisor with particular focus on: i. The 10 patient records randomly selected by the supervisor as referred to in conditions 4.a.i and 4.a.ii ii. History-taking iii. Examination iv. Diagnoses v. Clinical management vi. Prescribing vii. Follow-up viii. Professional and ethical issues ix. Documentation c. The practitioner authorises the Medical Council to provide proposed and approved supervisors with a copy of a report of the proceedings that imposed this condition. d. The practitioner is not to practise until a supervisor has been approved by the Medical Council. e. Within 7 days of the end of each month, the practitioner is to provide the Medical Council (in a Council-approved format) with a report documenting the issues discussed with the supervisor for each of the 10 patient records and a short statement about what he learnt from the supervision meeting with the supervisor. This to change to reports on a three-monthly basis after the respondent has practised for three months following the period of suspension. 5. To submit to an audit of his medical practice, by a random selection of his medical records, by a person or persons nominated by the Medical Council of New South Wales and: a. The first such audit is to be held on a date to be appointed by the Medical Council and subsequent audits are to be held as required by the Council. b. The auditor(s) is to assess the respondent's compliance with good medical record keeping standards, legislative requirements and conditions on his registration. c. The practitioner authorises the auditor(s) to provide the Medical Council with a report on their findings. d. The practitioner is to meet all costs associated with the audit(s) and any subsequent reports. 6. Not to undertake the following procedures: a. Circumcisions b. Intrauterine device insertions 7. To undergo a performance assessment. 8. To authorise and consent to any exchange of information between the Medical Council of New South Wales and Medicare Australia for the purpose of monitoring compliance with these conditions. 1. The conditions are to be monitored by a designated officer or officers of the Medical Council of New South Wales, who will be responsible for overseeing compliance with the conditions. The Medical Council is to have the power to vary any of the conditions and/or impose further conditions as may be necessary to continue to ensure that the respondent's practice as a medical practitioner is safe for the public. 2. The Respondent to pay the Complainant's costs as assessed or agreed pursuant to Schedule 5D, Clause 13 of the National Law.

The HCCC submission on applicable principles to be followed by the Tribunal in the consideration of this case included the following: "(a) The paramount consideration in proceedings such as this is protection of the public. Accordingly, the Tribunal's jurisdiction must be exercised bearing in mind the need to place to the fore, issues of public safety. It has also been held that in addition to the protection of the public being the paramount consideration, other relevant purposes of such proceedings include the need to maintain the standards of the relevant profession, and to deter others from engaging in like conduct: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201, 202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. (b) In NSW Bar Association v Meakes [2006] NSWCA 340 at [114], Basten JA set out the following as the important but indirect effects of a disciplinary order in respect of a professional which must be considered when determining the appropriate protective order: i. The order reminds other members of the profession of the public interest in the maintenance of high professional standards; ii. The order may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence; and iii. By speaking to the public at large, the order seeks to maintain confidence in the high standards of the profession. (c) Those statements of principle were further refined by Meagher JA in the context of the National Law in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]: the objective extends to protecting the public from not only the practitioner's misconduct but also similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession, "by setting and maintaining standards and, where appropriate, 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". (d) Section 3A of the National Law affirms that the protection of public safety and health is the paramount consideration. Public protection is achieved via registration, "ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner" are registered."

In the submission of the HCCC the following was provided to assist the Tribunal with its determination. A. THE COMPLAINT … 4. Part 8 of the National Law deals with complaints concerning health practitioners. 5. Specifically, s.144 outlines the possible grounds of complaint against a health practitioner. They include a complaint that the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct. Unsatisfactory professional conduct 6. Unsatisfactory professional conduct is relevantly defined in s. 139B of the National Law to mean: a. 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; and/or b. A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention; and/or … l. any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. Section 139B (1)(a): 'conduct below the standard expected of an equivalent practitioner' 7. Determining whether a practitioner is guilty of unsatisfactory professional conduct, as considered in s. 139B (1)(a) of the National Law, involves an objective assessment of the practitioner's conduct against the standards of conduct expected of an equivalent practitioner. As held in Ahmad, Dr Firoz Uddin [2013] NSWMPSC 8 at [171]: '[I]n assessing what constitutes unsatisfactory professional conduct reference is made to the views of professional brethren of good repute and competency.' Section 139B (1)(l): 'improper' and 'unethical' 8. This requires an examination of the meaning of these words, which are not defined in the National Law. Assistance in determining what is meant by 'improper' can be gained from what the High Court of Australia said of the word 'impropriety' in R v Byrne (1995) 193 CLR 501 at 514-515 (see HCCC v Phung (No. 1) [2012] 1 NSWDT at [68] and HCCC v Elliott [2017] NSWCATOD 20 at [55]). If the Respondent's conduct, as found by the Tribunal, was not in conformity with standards of professional conduct and practice it may be regarded as improper. [2] 9. In Health Care Complaints Commission v Little [2016] NSWCATOD 146 at [59], the Tribunal held that s 139B(1)(l) is directed at a broader range of conduct than s. 139B(1)(a). Sub-paragraph (l) refers to conduct "relating to the practice or purported practice of the practitioner's profession", whereas (a) refers to conduct "in the practice of" a person's profession". Nevertheless, the Tribunal noted at [60] that the same conduct can contravene both sections, and noted that there are several decisions by the Tribunal and the Court of Appeal in which findings under both s 139B(1)(a) and (l) have either been made or affirmed. 10. The words 'unethical conduct' bear no special or technical meaning but are to be understood in their ordinary meaning. The construction of a statutory provision will usually involve a consideration of words in their context and the adoption of a construction that promotes the purpose underlying the statute, which usually involves a question of law. Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to a contravention of a professional code of conduct. In Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [41] the Tribunal held that there is no reason to suppose that the words should be given a different meaning in the National Law. See also Slezak, Dr Peter [2011] NSWMPSC 10 at [80] and [83] and [87], suggesting that the assessment of what constitutes improper or unethical conduct is also made by reference to the views of reasonable members of the profession. 11. The words 'improper' and 'unethical' were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes & Hopwood, noted: "Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v iiNet Limited (No 3) [2015] FCA 422 at [5], Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical conduct." 12. The Complainant primarily relies upon the expert report of Dr Anoop Jalota [3] to support a submission that the Respondent's conduct as particularised in the complaint fell significantly below the standard expected. Dr Jalota was asked to comment on each particular in the complaint and was critical of the Respondent and his actions in respect of each particular. This opinion was not in any way challenged by, or on behalf of, the Respondent in these proceedings. Professional misconduct 13. Section 139E of the National Law defines "professional misconduct" as either: 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. 14. The Complainant relies upon both limbs of s.139E in these proceedings. 15. Given the absence of any comprehensive exploration as to the precise boundary between unsatisfactory professional conduct and professional misconduct, the concept of 'professional misconduct' should be given a purposive interpretation. Some guidance can be obtained from the remarks of Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 (another decision concerned with prescribing), at paragraphs [18]-[20], including that: "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." 16. The Tribunal is required to consider both the objective of public protection, but also to recognise the corollary objectives of deterring practitioners, either specifically or generally, from repeating the same misconduct (see HCCC v Saedlounia [2013] NSWMT 13 at [43]-[50]). 17. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the Respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638). 18. Having regard to the expert opinion of Dr Jalota, coupled with the expertise of the Tribunal, the Complainant submits the Respondent's conduct as particularised in Complaint One and/or Complaint Three would properly be characterised as professional misconduct. STAGE TWO: EXERCISE OF POWERS 19. The Tribunal may exercise any power in Subdivision 6 Division 3, Part 8 of the National Law if it finds the subject matter of a complaint proved, or as is the case in these proceedings, the practitioner admits it in writing: s. 149 National Law. 20. Relevantly, under s 149C the Tribunal may suspend or cancel registration if the Tribunal is satisfied that the practitioner is guilty of professional misconduct: s. 149C(1)(b). 21. If suspension or cancellation is ordered, it may "provide that an application for review… may not be made until after a specified time": s 196(7). Whether offence(s) are sufficiently serious to warrant suspension or cancellation is a matter of degree and judgment: Sabag v HCCC [2001] NSWCA 411 at [82]. 22. The Complainant contends that a sanction less than cancellation for a 12-month period would be inadequate in this case given the seriousness of the Respondent's conduct and the dire consequences for both Patient A and the foetus she was carrying. What is also of significance in this case is the Respondent's history of complaints dating back to 2003. That is, it is certainly not the first time the Respondent has come under notice for a serious incident. This issue looms large in these proceedings and should inform the Tribunal when making a determination as to appropriate protective orders. 23. In relation to the appropriate period of cancellation, relevant matters to be considered by the Tribunal include the period of time likely to be required for the practitioner to change his conduct so that he is to practise without risk to the health and safety of the public. To address that question, the Respondent's insight into his conduct is relevant as is his progress since the offending. However, in exercising its discretion to make such an order, the Tribunal is not required to take into account the fact that the Respondent has been suspended from practice for a period: Qasim v HCCC (2015) NSWCA 282 at [73]. 24. Similarly, the Complainant submits that in these proceedings, the Tribunal would be in error if it considered practical realities of when the Respondent may be able to obtain a hearing for the reinstatement of his registration at such time after his period of non-review has lapsed. That is, such a consideration would be grounded on a wrong view as to the purpose of the disciplinary powers of the Tribunal. That purpose is not to punish the practitioner concerned but rather to protect the public and maintain proper professional standards. [4] 25. In Chen, Basten JA (at [22]) said that 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. As noted in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], the purpose of protective orders, including a non-review period, also has a deterrence purpose and the purpose of upholding standards.

In relation to section 139E and whether the conduct of the respondent amounts to professional misconduct, the HCCC provided the following submission: "Given the absence of any comprehensive exploration as to the precise boundary between unsatisfactory professional conduct and professional misconduct, the concept of 'professional misconduct' should be given a purposive interpretation. Some guidance can be obtained from the remarks of Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 (another decision concerned with prescribing), at paragraphs [18]-[20], including that: "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." The Tribunal is required to consider both the objective of public protection, but also to recognise the corollary objectives of deterring practitioners, either specifically or generally, from repeating the same misconduct (see HCCC v Saedlounia [2013] NSWMT 13 at [43]-[50]). The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the Respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630, 638). Having regard to the expert opinion of Dr Jalota, coupled with the expertise of the Tribunal, the Complainant submits the Respondent's conduct as particularised in Complaint One and/or Complaint Three would properly be characterised as professional misconduct."

The HCCC referred to the oral evidence of the respondent before the Medical Council and submitted the following: "When asked about this issue by the Medical Council on 1 August 2019 the following exchange occurred on page 49 of the transcript: Dr Edwards: so why didn't you mention that she'd been on Roaccutane? Dr Selim: Because I was scared Dr Edwards: Why were you… Dr Selim: I'm sorry. Dr Edwards: Why were you scared? Dr Selim: Because I know them and as soon as this happened, I know that there is a problem happen. And then I pray to God that everything will be fine. And even- even the (indistinct) because I didn't want to write it. …………. Then at page 53 of the transcript: Dr Selim: I realised that it was- there is a mistake here. And then if you - if I write, "I just give her Roaccutane," all the hospital staff would jump on me. Dr Edwards: So you were trying to cover up? ……. Dr Selim: Yes. Because --- This dishonest conduct needs to also be viewed in the context of the Respondent engaging in similar conduct in 2008 concerning a 17-day old infant. In that instance, the Respondent had prescribed the infant 100 times the dose of oral morphine that was appropriate and when completing a referral letter for the infant, deliberately removed from the letter the strength/dose of morphine that he had prescribed for the infant. The Respondent admitted in oral evidence at the hearing that he excluded something (ie: the prescribed dose of morphine) that would have otherwise been included. That is, he admitted that when prompted by the computer system to include current medications he 'most likely' selected 'no' as opposed to 'yes'. This was in circumstances where he was being presented with an infant who was narcotised. The Respondent admitted that he did not include the dose of morphine prescribed in the referral letter as he is well known at Liverpool Hospital and he "didn't want to look silly in front of the hospital". The Respondent claims that even though he did not include this critical fact in the referral letter, he phoned the hospital and disclosed the fact of the overdose. Even if one accepts this occurred, this conduct highlights the fundamental flaw in the Respondent's character and integrity. That is, he appears to be more concerned about how others may perceive him instead of ensuring appropriate and accurate care for patients. Similar conduct was repeated with respect to Patient A in July 2019 and it is submitted this would be of significant concern to the Tribunal".

The HCCC addressed the order it seeks that the respondent pay the applicant's costs. The submission provided by the HCCC on costs is succinct and we include same here: "Pursuant to Schedule 5D, Clause 13 of the National Law, the Tribunal has the power to require the Complainant, registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another, where so decided by the Tribunal. In Qasim v HCCC [2015] NSWCA 282, the Court of Appeal (per Meagher JA, McColl JA and Ward JA agreeing) has set out the principles to be applied by Tribunals in relation to the issues of costs: [84] Clause 13 in Sch 5D of the applicable National Law relevantly provided: (1) A Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or any other person entitled to appear (whether as of right or because leave to appear has been granted) at an inquiry or appeal before the Tribunal to pay costs to another person as decided by the Tribunal. [85] In Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [46]-[48] this Court (Basten JA, McColl JA and Sackville AJA agreeing), following Ohn v Walton (1995) 36 NSWLR 77, held that a power in substantially the same terms was to be exercised for the purpose of indemnifying or compensating the person in whose favour a costs order was to be made, and not for the purpose of punishing the person against whom it is made. That being so, ordinarily costs should follow the event unless there are reasons to conclude otherwise. Lucire was followed in Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. (This position is in contrast to that under s 60 of the CAT Act which provides by subs (1) that each party to proceedings in the Tribunal is to pay its own costs and that the Tribunal may award costs in relation to proceedings "only if it is satisfied that there are special circumstances warranting an award of costs".) It is submitted that the Commission has acted properly in the prosecution of the Complaint in these proceedings and that there has been no disentitling conduct. The complaint was admitted in writing. It follows that the Tribunal ought to make an order that the Respondent pay the Complainant's costs."

Health Care Complaints Commission v Selim - [2021] NSWCATOD 27 - NSWCATOD 2020 case summary — Zoe

Health Care Complaints Commission v Selim

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