Health Care Complaints Commission v Sharrad

NCAT Occupational|2020-11-05

ii. Medical records to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. iii. Inspection of facilities. c. To authorise the auditor(s) to provide the Medical Council with a report on their findings. d. To meet all costs associated with the audits and reports. 7. 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. 8. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: i. Failure to attend for treatment. ii. Termination of treatment. iii. A significant change in health status (including a significant temporary change). b. must provide the Medical Council with the professional details of the treating practitioner. 9. To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: i. Failure to attend for treatment. ii. Termination of treatment. iii. A significant change in health status (including a significant temporary change). b. must provide the Medical Council with the professional details of the treating practitioner. (4) The respondent is to pay the costs of the Health Care Complaints Commission in the sum of $39,073.32. Such costs are to be paid within 28 days of the date of this order, or such later time as the respondent may negotiate with the HCCC. Catchwords: HEALTH - professional registration and discipline - unsatisfactory professional conduct - professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Ghosh v Medical Council of New South Wales [2020] NSWCA 122 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Lee v Health Care Complaints Commission [2012] NSWCA 80 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Sullivan v Civil Aviation Authority (2014) 226 FCR 555; [2014] FCAFC 93 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Falah Sharrad (Respondent) Representation: Counsel: S Maybury (Applicant) M Hutchings (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) Makinson d'Apice Lawyers (Respondent) File Number(s): 2019/00284973 Publication restriction: Nil

Background

By its amended Complaint filed in the Tribunal on 3 November 2020 and as set out in its submission, the Health Care Complaints Commission (HCCC) seeks the cancellation of the registration of Dr Falah Kamel Sharrad (the respondent) and a requirement that he not be permitted to seek a review for a period of two years.
The amended Complaint document contains 11 complaints against the respondent. We will detail those complaints hereafter.
The respondent, on 31 October 2020 (some 2 days before the hearing), filed an amended Reply to the HCCC Application for disciplinary findings and orders. In that document the respondent admitted almost all of the complaints and/or particulars of the complaints contained in the HCCC amended Complaint. That was a different position to that disclosed in the respondent's earlier filed Reply document, which challenged the complaints made. The amended Reply clearly was a surprise to the HCCC, as it stated on the first day of the hearing before us.
The respondent submits that the safety of the public and the deterrent aspect of protective orders would be achieved in this case by an outcome less restrictive than cancellation or suspension of the respondent's registration.
At the commencement of the hearing the HCCC sought to amend its Complaint document further by substituting in Complaint One, Particular 2(h) and all of the other complaints in the document where that Particular is repeated, the words "he failed to properly utilise his qualifications, training and clinical judgment in proceeding to perform this surgical procedure." That amendment was not opposed and the amendment was permitted by us. The amended Particular replaced that which had appeared, namely: "he was not adequately qualified to perform this surgical procedure." The respondent had denied that Particular on each occasion it was repeated throughout the Complaint document and had set out his qualifications. With the amended Particular accepted by the Tribunal, the respondent no longer sought to deny that Particular.
The respondent having amended his Reply document on the eve of the hearing also led to the advice provided to the HCCC and to the Tribunal that the respondent would not require the expert witnesses relied upon by the HCCC to be made available for cross-examination.

Details of the Complaint and Reply

The background contained in the Complaint document is admitted by the respondent. That background provides as follows: "The practitioner is a general practitioner and was first registered in Australia in 2002. In July 2015, the practitioner opened his own medical practice in Windsor named "Leading Edge Family Medicine and Skin Cancer Clinic" ("the Clinic"). On 14 September 2017 section 150 proceedings were convened in relation to complaints regarding Patients B, C and D. On 24 October 2017 conditions were imposed on the practitioner's registration pursuant to section 150 of the National Law including: "1. To submit to an audit of his medical practice by a person or persons nominated by the Medical Council of NSW… 2. The practitioner's management of melanoma is limited to excisional biopsy with a maximum of 2mm margins for diagnosis. Any definite treatment of melanoma must be referred to another medical practitioner. 3. not to undertake any procedure involving skin grafts." On 13 February 2018 further section 150 proceedings took place after complaints were received in relation to Patient G and the practitioner's registration was suspended. On 29 November 2018 the suspension of the practitioner's registration was set aside pursuant to section 150A and a number of practice conditions were imposed on his registration including: "1. Must not undertake any treatment that involves cryotherapy, cautery, suturing, laser treatment or the cutting of the skin for biopsy or excision. This includes any procedure not listed above that breaks the integrity of the skin. The practitioner can administer immunisations."
The first complaint detailed in the Complaint document relates to Patient A. The complaint is: COMPLAINT ONE Patient A is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skills or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT ONE 1. On 24 July 2014 the practitioner inappropriately administered an excessively high dose of the local anaesthetic lignocaine (xylocaine) to Patient A, approximately 40mg/kg. 2. On 24 July 2014 the practitioner performed a nasal excision and skin graft on Patient A which was inappropriate in that: (a) he failed to conduct a biopsy prior to performing the surgery; (b) he failed to obtain adequate and informed consent; (c) Patient A had presented for removal of a basal cell carcinoma on her left shoulder; (d) the decision to surgically excise and skin graft Patient A's nose was made after injecting Patient A's left shoulder with local anaesthetic; (e) he failed to arrange post-operative care for Patient A; (f) a skin graft was not clinically indicated in circumstances where less invasive methods of reconstruction would have been adequate and resulted in a better cosmetic outcome; (g) Patient A ought to have been first referred for specialist review with a dermatologist or plastic surgeon; (h) he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure.
The respondent replied to Complaint One. His amended Reply details two issues. The first addresses Particular 1. The respondent denies that particular and says "(a) On 24 July 2014 he administered 4mg/kg comprising 1% xylocaine with adrenaline to Patient A". The respondent also denied in Particular 2 that he had not been appropriately qualified to perform the surgical procedure. However, that addressed the Complaint before it was amended to read "he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure". Once the amendment was made, this denial fell away.
Complaint Two is as follows: COMPLAINT TWO Patient B is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT TWO 1. On 15 March 2017 the practitioner inappropriately permitted Patient B to leave the Clinic immediately after administering a large dose of local anaesthetic and adrenalin. 2. On 15 March 2017 the practitioner excised a Clark Level II melanoma from Patient B's chest and repaired the wound with a trilobe flap which was inappropriate in that: (a) he failed to obtain adequate and informed consent; (b) he ought to have transferred Patient B to hospital or referred him to a specialist immediately after realising during the surgery that he "didn't know what to do"; (c) he failed to properly utilise his qualifications, training and clinical judgment in proceeding to perform this surgical procedure. 3. On 27 March 2017 the practitioner failed to adequately examine Patient B's wound in that he did not remove the dressing.
The respondent admits the complaint however, in relation to Particular 3(a), he provides the following explanation: "Patient B's wife requested a referral to Dr Faraj, general surgeon, for ongoing treatment and management."
Complaint Three sets out the following complaint: COMPLAINT THREE Patient C is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT THREE 1. On 12 January 2017 the practitioner inappropriately administered an excessively high dose of the local anaesthetic lignocaine (xylocaine) to Patient C, approximately 40mg/kg. 2. On 12 January 2017 the practitioner removed both a melanoma and a dysplastic naevus from Patient C's lower left leg in a single block removal of tissues using a trilobe flap to close the wound which was inappropriate in that: (a) the excision was unnecessarily large as the practitioner included both lesions in a wide excision; (b) the dysplastic naevus was incorrectly called a "pre-melanoma" and was removed without clinical indication; (c) a trilobe flap could have been avoided and primary closure used if the practitioner had made an appropriately sized excision; (d) Patient C's subsequent neuropathic pain was avoidable; (e) he failed to ensure adequate anaesthesia prior to commencing surgery; (f) he failed to obtain adequate and informed consent; (g) he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure; (h) he failed to refer Patient C to a plastic surgeon when he was unable to provide pre-operative anaesthesia. 3. The practitioner failed to advise Patient C to arrange for transportation following the 12 January 2017 surgery and inappropriately allowed her to drive home. 4. On 25 January 2017 the practitioner failed to refer Patient C to a plastic surgeon in circumstances where the practitioner was unable to remove Patient C's stitches due to her pain.
The respondent's reply to Complaint Three is to contest Particular 2(g) which, before it was amended, had stated the respondent was not appropriately qualified to perform the procedure. That denial has fallen away following the amendment to that particular which is now contained in Complaint Three as set out above. The respondent otherwise states: "As to Particular 2 the Practitioner admits that on 12 January 2017 he removed a melanoma and dysplastic naevus from Patient C's lower left leg in a single block removal of tissue using a trilobe flap to close the wound."
Complaint Four is as follows: COMPLAINT FOUR Patient D is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT FOUR 1. On 15 June 2017 the practitioner inappropriately administered an excessively high dose of the local anaesthetic lignocaine (xylocaine) to Patient D, approximately 40mg/kg. 2. On 15 June 2017 the practitioner administered local anaesthetic and adrenalin to Patient D's foot in his consultation room at the Clinic then requested that Patient D walk to the procedure room at the back of the Clinic which was inappropriate in that it increased the risk of infection. 3. On 15 June 2017 the practitioner removed acral lentiginous in situ melanoma from the sole of Patient D's foot in a wide excision using a trilobe flap to close the wound which was inappropriate in that: (a) referral to a plastic surgeon was indicated after diagnosis due to the complexity of the surgery; (b) he failed to obtain adequate and informed consent; (c) he failed to properly utilise his qualifications, training and clinical judgment in proceeding to perform this surgical procedure. 4. On 15 June 2017 at the conclusion at the surgery, the practitioner inappropriately advised Patient D that she could return to her job as a teacher the following day.
In the Reply document the respondent denies Particular 1 and states that: "(a) he administered a dose of local anaesthetic lignocaine (xylocaine) to Patient D, approximately 4.0 mg/kg". The respondent otherwise admits the balance of the Particulars set out in Complaint Four.
Complaint Five is as follows: COMPLAINT FIVE Patient E is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT FIVE 1. On 1 August 2017 the practitioner inappropriately administered an excessively high dose of the local anaesthetic lignocaine (xylocaine) to Patient E, approximately 40mg/kg. 2. On 1 August 2017 the practitioner performed a wide nasal excision on Patient E and closed the wound with a V-Y flap which was inappropriate in that: (a) he failed to conduct a biopsy prior to performing the surgery; (b) the procedure was not clinically indicated; (c) he failed to obtain an adequate medical history for Patient E; (d) he failed to obtain adequate and informed consent; (e) he failed to consider the following relevant factors prior to conducting the surgery: i. Patient E was approximately 66 years old; ii. Patient E suffered from diabetes, emphysema and coronary artery disease; (f) he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure; (g) he failed to refer Patient E to a specialist plastic surgeon or dermatologist.
In his Reply to this complaint the respondent admits he is guilty of unsatisfactory professional conduct as alleged, save for his denial in relation to Particular 1. The respondent says in relation to Particular 1 that "on 1 August 2017 he would have administered a dose of the local anaesthetic lignocaine (xylocaine) to Patient D, approximately 4.0mg/kg."
The respondent also denied Particular 2(f) which stated "he was not adequately qualified to perform this surgical procedure". That particular was withdrawn by the subsequent amended Complaint document which replaced that particular with: "he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure." That particular then was admitted by the respondent.
Complaint Six is as follows: COMPLAINT SIX Patient F is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT SIX 1. On 23 September 2017 the practitioner inappropriately administered an excessively high dose of the local anaesthetic lignocaine (xylocaine) to Patient F, approximately 40mg/kg. 2. On 23 September 2017 the practitioner performed a wide excision on Patient F's thigh using a 4 lobed transposition flap to close the wound which was inappropriate in that: (a) he failed to conduct a biopsy prior to performing the surgery; (b) the procedure was not clinically indicated; (c) Patient F was approximately 73 years old and suffered from a number of serious health issues including hypertension, stroke and ischaemic heart disease; (d) he failed to refer Patient F to a specialist plastic surgeon or dermatologist. (e) he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure.
The respondent replied to this complaint by admitting he is guilty of unsatisfactory professional conduct as is alleged, however he denies Particular 1 and says "On 23 September 2017 he administered a dose of the local anaesthetic lignocaine (xylocaine) to Patient D [sic], approximately 4.0mg/kg."
The respondent also denied a particular which alleged he was not qualified to carry out the procedure he undertook with Patient F, however that particular was withdrawn and in the amended Complaint the following ground was substituted: "he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure." That particular is not denied by the respondent.
Complaint Seven is as follows: COMPLAINT SEVEN Patient G is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT SEVEN 1. On 18 January 2018 the practitioner inappropriately administered an excessively high dose of the local anaesthetic lignocaine (xylocaine) to Patient G, approximately 40mg/kg. 2. On 18 January 2018 the practitioner performed a wide nasal and wide glabella excision and closed the wound with a large rotation flap which was inappropriate in that: (a) he failed to conduct a prior diagnostic biopsy on either the glabella or nasal lesion; (b) removal of the glabella lesion was not clinically indicated; (c) the nasal lesion was a high risk tumour in a high risk location and Patient G ought to have been referred to a plastic surgeon or dermatologist; (d) he failed to consider the following relevant factors prior to conducting the surgery; i. Patient G was approximately 88 years old; ii. Patient G suffered chronic renal impairment, hypertension and dementia; (e) he failed to obtain adequate and informed consent; (f) he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure; (g) the practitioner ought to have advised Patient G to discontinue the anticoagulant Warfarin for approximately five days prior to the surgery; (h) the practitioner failed to obtain Patient G's International Normalised Ratio ("INR") at any time.
The respondent's Reply to Complaint Seven admits he is guilty of unsatisfactory professional conduct as alleged. The respondent denies Particular 1 and states: "On 18 January 2018 he administered a dose of the local anaesthetic lignocaine (xylocaine) to Patient G, in approximately 4.0mg/kg."
The respondent also denied a particular which alleged he was not qualified to carry out the procedure he undertook with Patient G, however that particular was withdrawn and in the amended Complaint the following ground was substituted: "he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure." That particular is not denied by the respondent.
Complaint Eight is as follows: COMPLAINT EIGHT Patient H is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. PARTICULARS OF COMPLAINT EIGHT 1. On 20 February 2017 the practitioner inappropriately excised a squamous cell carcinoma from Patient H's nose using a V-Y flap in that he failed to: (a) use a dermatoscopy during the examination; (b) obtain adequate and informed consent in that Patient H was not offered: i. specialist referral; ii. biopsy of the lesion; iii. an explanation of surgical risks; (c) perform a pre-operative biopsy; (d) orient the specimen; (e) use dermal and epidermal absorbable sutures as a layered closure; (f) apply appropriate margins during the excision. 2. On 27 February 2017 the practitioner failed to obtain an acne related history and conduct a relevant examination of Patient H in circumstances where acne was the reason for the consultation. 3. On 27 February 2017 the practitioner performed a full body skin examination on Patient H without clinical indication in circumstances where the practitioner had performed such an examination seven days prior. 4. On 27 February 2017 the practitioner inappropriately excised a basal cell carcinoma from Patient H's right eyelid in that he: (a) failed to perform an adequate clinical assessment as he: i. did not assess the clinical mobility of the lesion; ii. made a preliminary diagnosis of squamous cell carcinoma without noting any tenderness of the lesion; (b) failed to perform a pre-operative biopsy; (c) failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure; (d) failed to refer Patient H to a specialist surgeon; (e) failed to obtain adequate and informed consent in circumstances where the consent sought did not accurately reflect the procedure performed and Patient H was not offered: i. specialist referral; ii. biopsy of the lesion; iii. an explanation of surgical risks. 5. On 6 March 2017 the practitioner inappropriately excised a superficial multifocal basal cell carcinoma from Patient H's posterior neck using a bilobed flap in that: (a) he failed to perform an adequate clinical assessment; (b) he failed to implement an adequate treatment plan; (c) he failed to consider alternative treatments including: i. serial curettage; ii. diathermy; iii. use of imiquimod cream post biopsy; (d) use of a bilobed flap as opposed to direct closure was not clinically indicated and increased the risk of complications and scarring; (e) he failed to use dermal and epidermal absorbable sutures as a layered closure; (f) failed to obtain adequate and informed consent in circumstances where consent was not discussed with Patient H and he was not offered: i. biopsy of the lesion; ii. alternative treatment options. 6. On 16 March 2017 the practitioner performed a full body skin examination on Patient H without clinical indication in circumstances where the practitioner had performed two such examinations within the previous four weeks. 7. On 16 March 2017 the practitioner inappropriately excised an intraepidermal squamous cell carcinoma from Patient H's mid-back using a bilobed flap in that: (a) he failed to consider alternative treatments including: i. serial curettage; ii. diathermy; iii. use of imiquimod cream post biopsy; (b) he failed to obtain adequate and informed consent in circumstances where consent was not discussed with Patient H and he was not offered: i. biopsy of the lesion; ii. alternative treatment options; (c) use of a bilobed flap instead of direct closure was not clinically indicated and increased the risk of complications and scarring; (d) he failed to use dermal and epidermal absorbable sutures as a layered closure; (e) the suture removal interval of 7 days was too short for single layer closure of trunk wounds and ought to have been 10 - 14 days. 8. On 16 March 2017 the practitioner inappropriately excised a benign compound naevus from Patient H's left breast using a bilobed flap in that: (a) use of a bilobed flap instead of direct closure was not clinically indicated and increased the risk of complications and scarring; (b) he failed to use dermal and epidermal absorbable sutures as a layered closure; (c) the suture removal interval of 7 days was too short for single layer closure of chest wounds and ought to have been 10 - 14 days. 9. On 24 March 2017 the practitioner inappropriately performed a biopsy on a benign compound naevus on Patient H's mid-back in that: (a) he failed to perform an adequate clinical assessment; (b) he failed to implement an adequate management plan; (c) he failed to obtain adequate and informed consent; (d) the suture material used was too thin for back wounds; (e) he failed to use dermal and epidermal absorbable sutures as a layered closure. 10. On 31 March 2017 the practitioner performed a full body skin examination on Patient H without clinical indication in circumstances where the practitioner had performed three such examinations within the last two months. 11. On 31 March 2017 the practitioner inappropriately excised a lichenoid solar keratosis from Patient H's left neck using a bilobed flap in that: (a) he failed to implement an adequate management plan; (b) he failed to consider alternative treatments including: i. cryotherapy; ii. use of fluorouracil cream post biopsy; (c) he failed to perform a pre-operative biopsy; (d) he failed to obtain adequate and informed consent in circumstances where Patient H was not offered: i. biopsy of the lesion; ii. alternative treatment options. (e) the use of a flap instead of direct closure was not clinically indicated and increased the risk of complications and scarring; (f) he failed to use dermal and epidermal absorbable sutures as a layered closure. 12. On 11 April 2017 the practitioner inappropriately re-excised a squamous cell carcinoma from Patient H's nose in that: (a) he failed to conduct an adequate clinical assessment; (b) he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure; (c) he failed to refer Patient H to a specialist surgeon; (d) he failed to obtain adequate and informed consent in that he did not offer Patient H referral to a specialist surgeon; (e) there was an excessive seven week delay between the re-excision and the original procedure; (f) clinical margins of at least 4mm were not taken; (g) he failed to use dermal and epidermal absorbable sutures as a layered closure. 13. On 11 April 2017 the practitioner inappropriately treated an actinic keratosis on Patient H's left temple by electrocautery under local anaesthetic in that: (a) electrocautery is not a suitable treatment for actinic keratosis; (b) he failed to offer alternative treatments including: i. liquid nitrogen cryotherapy; ii. topical fluorouracil cream. 14. On 15 May 2017 the practitioner inappropriately performed three biopsies on Patient H's right thigh in that: (a) he failed to conduct an adequate clinical assessment; (b) he ought to have monitored the lesions prior to excisional biopsy; (c) he inappropriately performed one shave biopsy when all three biopsies ought to have been punch or ellipse biopsies; (d) the suture material used was too thin for thigh wounds; (e) the suture removal interval of 7 days was too short for single layer closure of thigh wounds and ought to have been 10 - 14 days. 15. On 15 May 2017 the practitioner inappropriately excised a superficial basal cell carcinoma from Patient H's left leg using a trilobed flap in that: (a) the procedure was not clinically indicated; (b) use of a trilobed flap instead of direct closure was not clinically indicated and increased the risk of complications and scarring; (c) he failed to use dermal and epidermal absorbable sutures as a layered closure; (d) he failed to perform a pre-operative biopsy; (e) he failed to consider alternative treatment options including: i. ablative therapies; ii. topical therapies; (f) he failed to obtain adequate and informed consent in circumstances where Patient H was not offered: i. biopsy of the lesion; ii. alternative treatment options. 16. On 26 June 2017 the practitioner inappropriately excised a dermal fibrosis and sebaceous hyperplasia from Patient H's forehead using an O to Z flap in that: (a) he failed to undertake an adequate clinical assessment; (b) he failed to perform a pre-operative biopsy; (c) he failed to refer Patient H to an appropriate specialist; (d) use of an O to Z flap instead of direct closure was not clinically indicated and increased the risk of complications and scarring; (e) he failed to obtain adequate and informed consent in circumstances where he: i. obtained consent for a V-Y flap but performed an O to Z flap; ii. did not offer biopsy of the lesion; iii. did not offer referral to a specialist; (f) removal was not clinically indicated; (g) he failed to use dermal and epidermal absorbable sutures as a layered closure. 17. On 26 June 2017 the practitioner inappropriately treated an actinic keratosis on Patient H's left temple by electrocautery under local anaesthetic in that: (a) electrocautery is not a suitable treatment for actinic keratosis; (b) he failed to offer alternative treatments including: i. liquid nitrogen cryotherapy; ii. topical fluorouracil cream. 18. On 3 July 2017 the practitioner inappropriately excised four biopsies from Patient H's right knee posterior, right posterior thigh, mid-back and right posterior arm in that: (a) he failed to perform an adequate clinical assessment; (b) he failed to obtain adequate and informed consent; (c) he closed the wounds from the right knee posterior and the right thigh posterior with 4 sutures each in circumstances where only one suture was required as a punch biopsy had been taken; (d) the suture material used was too thin for leg and trunk wounds; (e) he failed to use dermal and epidermal absorbable sutures as a layered closure; (f) he failed to monitor the lesions prior to excision; (g) the lesions had no concerning features or any concerning clinical history. 19. On 3 July 2017 the practitioner inappropriately prescribed topical Efudix for actinic keratosis on Patient H's face in that he failed to: (a) perform an adequate clinical assessment; (b) consider the duration of treatment with Efudix. 20. On 24 July 2017 the practitioner inappropriately excised scarred skin from Patient H's right arm using a bilobed flap in that: (a) he failed to perform an adequate clinical assessment; (b) use of head and neck nerve blocks were not an appropriate form of anaesthesia; (c) he failed to obtain adequate and informed consent in circumstances where he did not discuss the reason for re-excision of a previously biopsied benign lesion; (d) the procedure was not clinically indicated as a pathology report dated 3 July 2017 stated that there was no malignancy in the lesion; (e) use of a bilobed flap was not clinically indicated and increased the risk of complications and scarring; (f) he failed to use dermal and epidermal absorbable sutures as a layered closure. 21. On 24 July 2017 the practitioner inappropriately performed an excisional biopsy of an intradermal naevus from Patient H's upper back in that: (a) he failed to perform an adequate clinical assessment; (b) he used six sutures in circumstances where no sutures were required as a shave biopsy was performed. 22. On 24 July 2017 the practitioner inappropriately treated an actinic keratosis on Patient H's left temple by electrocautery under local anaesthetic in that: (a) electrocautery is not a suitable treatment for actinic keratosis; (b) he failed to offer alternative treatments including: i. liquid nitrogen cryotherapy; ii. topical fluorouracil cream. 23. On 4 September 2017 the practitioner inappropriately excised scarred skin from Patient H's mid-back using a bilobed flap in that: (a) he failed to perform an adequate clinical assessment; (b) he failed to obtain adequate and informed consent in that he did not discuss the reason for re-excision of a previously biopsied benign lesion; (c) the suture removal interval of seven days was too short and ought to have been 10 - 14 days; (d) use of a bilobed flap instead of direct closure was not clinically indicated and increased risks of complications; (e) he failed to use dermal and epidermal absorbable sutures as a layered closure; (f) the procedure was not clinically indicated as a pathology report dated 3 July 2017 indicated there was no malignancy in the lesion. 24. On 18 September 2017 the practitioner inappropriately excised four biopsies from Patient H's mid-back in that: (a) he failed to perform an adequate clinical assessment; (b) the three lesions the practitioner suspected were squamous cell carcinomas were not raised and tender; (c) he failed to perform pre-operative biopsies; (d) he failed to obtain adequate and informed consent; (e) the suture material was too thin for use on the trunk; (f) he failed to consider other differential diagnoses; (g) the procedure was not clinically indicated. 25. On 20 November 2017 the practitioner inappropriately excised a squamous cell carcinoma from Patient H's left hand using a trilobed flap in that: (a) he failed to perform an adequate clinical assessment; (b) the suture removal interval of 7 days was too short for single layer closure of hand wounds and ought to have been 10-14 days; (c) he failed to conduct a pre-operative biopsy; (d) he failed to consider any differential diagnoses; (e) he failed to use dermal and epidermal absorbable sutures as a layered closure; (f) use of a trilobed flap instead of direct closure was not clinically indicated and increased the risk of complications and scarring. 26. On 13 December 2017 the practitioner inappropriately excised a focal acantholytic dyskeratosis from Patient H's anterior chest wall using a bilobed flap in that: (a) he failed to perform an adequate clinical assessment; (b) he failed to perform a pre-operative biopsy; (c) he failed to obtain adequate and informed consent as Patient H was not offered: i. specialist referral; ii. biopsy of the lesion; (d) the procedure was not clinically indicated; (e) he failed to consider differential diagnoses; (f) use of a bilobed flap instead of direct closure was not clinically indicated and increased the risk of complications and scarring; (g) he failed to use dermal and epidermal absorbable sutures as a layered closure. 27. On 5 February 2018 the practitioner inappropriately prescribed Nexium HP7 to Patient H in circumstances where: (a) he failed to perform an adequate clinical assessment in that he did not: i. consider dietary history; ii. perform a physical examination; (b) he failed to implement an adequate management plan. 28. On 5 February 2018 the practitioner inappropriately excised a basal cell carcinoma from Patient H's right upper back using a bilobed transposition flap in that: (a) he failed to perform an adequate clinical assessment; (b) use of a bilobed flap instead of direct closure was not clinically indicated and increased the risk of complications and scarring; (c) he failed to perform a pre-operative biopsy; (d) he failed to consider alternative treatment options including: i. ablative therapies; ii. topical therapies; (e) he failed to obtain adequate and informed consent as Patient H was not offered: i. specialist referral; ii. biopsy of the lesion; iii. alternative treatment options; (f) the suture material used was too thin for trunk wounds; (g) he failed to use dermal and epidermal absorbable sutures as a layered closure.
The respondent's Reply to Complaint Eight contains an admission as follows: "The Practitioner admits that he is guilty of unsatisfactory professional conduct as alleged". The respondent denied a particular which alleged he was not qualified to carry out the procedure he undertook with Patient H, however that particular was withdrawn and in the amended Complaint the following ground was substituted: "he failed to properly utilise his qualifications, training and clinical judgement in proceeding to perform this surgical procedure." That particular is not denied by the respondent.
Complaint Nine is as follows: COMPLAINT NINE Patient H is guilty of unsatisfactory professional conduct under 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 NINE 1. On or around 10 April 2017 the practitioner inappropriately billed Medicare for procedures performed on Patient H in relation to: (a) a two flap surgery (items 45201 and 45202) when he ought to have billed for a single flap surgery; (b) excision of a malignant lesion (item 31363) when he ought to have billed for excision of a benign lesion. 2. On or around 16 May 2017 the practitioner inappropriately billed Medicare for procedures performed on Patient H in relation to a three flap surgery (items 45201, 45202 x2) when he ought to have billed for one flap. 3. On or around the following dates the practitioner inappropriately billed Medicare for flap procedures (item 45201) performed on Patient H in circumstances where direct closure was clinically indicated: (a) 10 April 2017 (item 31363); (b) 16 May 2017 (items 31363, 31366 x3)); (c) 23 November 2017 (item 31358); (d) 17 January 2018 (item 31370). 4. On or around the following dates the practitioner inappropriately billed Medicare for excisions performed on Patient H in circumstances where he did not perform or offer a biopsy: (a) 10 April 2017 (item 31363); (b) 16 May 2017 (items 31363, 31366, 31366, 31366); (c) 3 July 2017 (item 31463); (d) 19 October 2017 (items 31366, 31368 x3)); (e) 23 November 2017 (item 31358); (f) 17 January 2018 (item 31370); (g) 7 February 2018 (item 31367). 5. On or around the following dates the practitioner inappropriately billed Medicare for a Level B consultation (item 00023) in circumstances where such a consultation with Patient H did not occur independent of the procedures performed: (a) 27 March 2017; (b) 24 July 2017; (c) 18 October 2017. 6. On or around the following dates the practitioner inappropriately billed Medicare for a Level B after-hours consultation (item 05020) in circumstances where such a consultation with Patient H did not occur: (a) after-hours: i. 16 May 2017; ii. 1 July 2017; iii. 5 July 2017; iv. 17 January 2017. (b) independent of the procedure performed; i. 16 May 2017; ii. 1 July 2017; iii. 5 July 2017; iv. 17 January 2017. 7. On or around 24 July 2017 the practitioner inappropriately billed Medicare for a large excision from the arm of Patient H (item 31368) when the excision was not clinically indicated. 8. On or around 24 July 2017 the practitioner inappropriately billed Medicare for an excision of a benign lesion from the back of Patient H (item 31366) in circumstances where he only performed a shave biopsy. 9. On or around 19 October 2017 the practitioner inappropriately billed Medicare for excisions of three benign lesions with defects of 15-30mm performed on Patient H (item 31368 x3) in circumstances where none of the four lesions excised were over 15 mm in diameter. 10. On or around 23 November 2017 the practitioner inappropriately billed Medicare for procedures performed on Patient H, including: (a) an excision over 6mm in diameter in circumstances where the excision was less than 6mm in diameter (item 31358); (b) a flap operation, which cannot be claimed on excisions of 3mm without additional justification (item 45201). 11. On or around 17 January 2018 the practitioner inappropriately billed Medicare for procedures performed on Patient H, including: (a) excision of a non-malignant excision over 30mm in diameter in circumstances where the excision was smaller than 30mm in diameter (item 31370); (b) a flap operation, which cannot be claimed on non-malignant excisions less than 30mm in diameter without additional justification (item 45201). 12. On or around 7 February 2018 the practitioner inappropriately billed Medicare for a procedure performed on Patient H, namely, excision of a malignant skin lesion of at least 15mm in diameter in circumstances where the lesion was less than 15mm in diameter (item 31367).
The respondent's Reply to Complaint Nine includes an admission that he is guilty of unsatisfactory professional conduct as alleged in the complaint.
In relation to Particular 5, the respondent admits that on 24 July 2017 he inappropriately billed Medicare for a Level B consultation (item 00023) in circumstances where such a consultation with Patient H did not occur independent of the procedures performed, but the respondent otherwise denies Particular 5.
As to Particular 6 the respondent admits that on or around the following dates he billed Medicare for a Level B after-hours consultation (item 05020) as follows: (a) after-hours (i) 16 May 2017, (ii) 1 July 2017; (b) independent of the procedure performed (i) 16 May 2017, (ii) 1 July 2017, (iii) 5 July 2017, (iv) 17 January 2017. The respondent otherwise denies the allegation and says that: (c) the consultations did occur and (d) the consultations were commenced 'before-hours', by the administration of anaesthetic, and the procedure was undertaken and completed after hours. The respondent otherwise admits all the other Particulars set out under this complaint.
Complaint Ten is as follows: COMPLAINT TEN is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2016 ("the Regulation") under the National Law. PARTICULARS OF COMPLAINT TEN 1. On or around 15 March 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient B's medical records: (a) the type of anaesthetic used; (b) the dose of anaesthetic used; (c) the correct type of lesion that was removed; (d) the administration of Penthrax. 2. The practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient C's medical records: (a) the dose of lignocaine administered on 12 January 2017; (b) the attendance of Patient C for removal of stitches on 25 January 2017; (c) the presentation of Patient C presentation with post-surgical complications on 25 January 2017. 3. On or around 15 June 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient D's medical records: (a) the dose of lignocaine and adrenalin used; (b) the correct location of the operation site; (c) the exact location of the biopsy specimen. 4. On or around 1 August 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient E's medical records: (a) the dose of anaesthetic administered; (b) any risks of surgery; (c) alternative options to surgery. 5. On or around 18 January 2018 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient G's medical records: (a) alternative options to surgery; (b) any discussion he had with Patient G and/or Patient G's husband in relation to Patient G's Warfarin; (c) Patient G's chronic renal impairment and hypertension and consideration of the same prior to surgery. 6. On or around 20 February 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient H's medical records: (a) the specific site, identification, clinical diagnosis, different diagnosis, plan of action for the lesions recorded photographically; (b) the presence of an eyelid tumour; (c) accurate size of the lesion removed. 7. On or around 27 February 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient H's medical records: (a) accurate size of the lesion removed; (b) the local anaesthetic dose administered; (c) the suture material type. 8. On or around 6 March 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to make any records regarding the procedure he performed on Patient H, namely, excision of a superficial multifocal basal cell carcinoma from Patient H's posterior neck. 9. On or around 6 March 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he incorrectly recorded the location and size of the lesion in Patient H's medical records. 10. On or around 16 March 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient H's medical records: (a) results of the skin examination; (b) history or examination of the lesions removed; (c) accurate size of the lesions removed; (d) accurate location of the back lesion; (e) the local anaesthetic dose administered; (f) the suture type. 11. On or around 24 March 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient H's medical records: (a) the exact location of the lesion biopsied on Patient H's back; (b) pre-operative size of the lesion biopsied; (c) biopsy type; (d) the suture material used; (e) planned suture removal date. 12. On or around 31 March 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the following in Patient H's medical records: (a) the results of the skin examination; (b) accurate size of the lesion removed; (c) the local anaesthetic dose administered; (d) the suture material used. 13. On or around 11 April 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the accurate size of the lesion removed in Patient H's medical records. 14. On or around 15 May 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the accurate size of the lesion on Patient H's lower left leg in Patient H's medical records. 15. On or around 26 June 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document in Patient H's medical records: (a) the suture material used; (b) the local anaesthetic dose administered. 16. On or around 24 July 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document in Patient H's medical records: (a) the size of the back lesion; (b) accurate location of the back lesion. 17. On 4 September 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document in Patient H's medical records: (a) the suture material used; (b) the local anaesthetic dose administered. 18. On 18 September 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document in Patient H's medical records: (a) the suture material used; (b) the local anaesthetic dose administered. 19. On 20 November 2017 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document the local anaesthetic dose administered in Patient H's medical records. 20. On 5 February 2018 the practitioner contravened Schedule 4 Clauses 1 and 3 of the Regulation in that he failed to document in Patient H's medical records: (a) the local anaesthetic dose administered; (b) accurate size of the lesion.
The respondent's Reply to Complaint Ten admits that he is guilty of unsatisfactory professional conduct as alleged. The respondent denies/explains Particular 3. He (a) admits he did not record the dose of lignocaine and adrenalin used and; (b) admits the records contain an erroneous reference to the left foot instead of the right foot.
In answer to Particular 4, the respondent (a) admits he did not record the dose of lignocaine and adrenalin used; (b) says that the record did include notes as to information and advice to the patient about the risks of surgery; and (c) admits he did not record his advice to Patient E about alternative options to surgery.
In relation to Particular 5, the respondent admits he failed to document in Patient G's medical records alternative options to surgery.
In answer to Particular 6, the respondent says "the presence of an eyelid tumour was not discovered on that date."
In relation to Particular 9, the respondent states: "in the context of the allegation made in Particular 8 this part of the pleading is inconsistent and embarrassing and he objects as to form".
In relation to Particular 12, the respondent: (a) says that the clinical notes contained relevant details; (b) admits he did not record in Patient H's medical records the local anaesthetic dose administered; and (c) says the Regulations Schedule 4 clauses 1 and 3 did not require him to record the suture material used.
In answer to Particular 15, the respondent says: "(a) the Regulations Schedule 4 Clauses 1 and 3 did not require him to record the suture material used; (b) but admits that he did not record in Patient H's medical records the local anaesthetic dose administered."
In answer to Particular 17, the respondent says: "(a) the Regulations Schedule 4 clauses 1 and 3 did not require him to record the suture material used; and (b) admits that he did not record in Patient H's medical records the local anaesthetic dose administered."
In relation to Particular 18, the respondent says: "(a) the Regulations Schedule 4 clauses 1 and 3 did not require him to record the suture material used; (b) but admits that he did not record in Patient H's medical records the local anaesthetic dose administered."
The respondent otherwise admits the Particulars set out in Complaint Ten.
Complaint Eleven states as follows: COMPLAINT ELEVEN is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. PARTICULARS OF COMPLAINT ELEVEN 1. Complaints One, Two, Three, Four, Five, Six, Seven, Eight, Nine and Ten and the particulars thereof are repeated and relied upon individually. 2. Complaints One to Ten and the particulars thereof are repeated and relied upon cumulatively.
The respondent's Reply to Complaint Eleven admits he is guilty of professional misconduct but denies that, when the instances as alleged are considered together, they amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration.
The respondent repeats his responses to Complaints One to Ten inclusive and the particulars set out. He also repeats what he says in "his responses to Complaints One to Ten and the Particulars thereof are repeated and relied upon cumulatively".
The HCCC relied upon the "Evidentiary Certificate" provided by Ahpra & National Boards dated 27 October 2020. The Certificate formed part of the evidence tendered in the hearing. The Certificate evidenced that the respondent was first registered on 14 June 2002. The document also shows that the respondent was suspended from practice between 13 February 2018 and 19 November 2018. Between 14 September 2017 and 13 February 2018 the respondent practised subject to conditions imposed by the Medical Council of New South Wales (the Medical Council). Further, between 19 November 2018 and 15 January 2019 the respondent practised subject to conditions imposed by the Medical Council. Further conditions were imposed by the Medical Council on 15 January 2019 and those conditions are still current. The respondent otherwise remains registered as a medical practitioner.
The conditions imposed on 15 January 2019 are very restrictive and probably onerous upon the respondent and those he has engaged to participate with him in complying with the conditions. The conditions are as follows: Dr Sharrad: "1. Must not undertake any treatment that involves cryotherapy, cautery, suturing, laser treatment or the cutting of the skin for biopsy or excision. This includes any procedure not listed above that breaks the integrity of the skin. The practitioner can administer immunisations. 2. To treat no more than 30 patients in any one day. 3. To practise no more than 5 days per week. 4. To practise only in a group practice approved by the Medical Council of NSW where there is at least one other registered medical practitioner (excluding the subject practitioner): a. Where there is always one other registered medical practitioner on site. 5. 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 as subsequently determined by the appropriate review body. a. The Council-approved supervisor must have Specialist General Practitioner registration. b. The terms of the Council's Compliance Policy - Supervision are varied so that supervision reports are to be provided to the Council on a monthly basis. c. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Communication with patients ii. Clinical Performance iii. Medical Records reviews. d. To authorise the Medical Council of NSW to provide the proposed and approved supervisors with a copy of the written decision which led to the imposition of this condition. e. Not to practise until a supervisor has been approved by the Medical Council of NSW. 6. To submit to an audit of his medical practice, by a person or persons nominated by the Medical Council of NSW and: a. The audit is to be held within 3 months from 11 January 2019 and subsequently as required by the Council. b. The auditor(s) is to examine and assess the following aspects of his practice including: i. infection control standards ii. medical records to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions iii. inspection of facilities. 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 and any subsequent audits and reports. 7. 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. 8. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: i. Failure to attend for treatment; ii. Termination of treatment; or iii. A significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner. 9. To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of NSW of any of the following: i. Failure to attend for treatment; ii. Termination of treatment; or iii. A significant change in health status (including a significant temporary change). b. must provide the Council with the professional details of the treating practitioner."
In the submissions provided by the HCCC, it says: "9. On 31 October 2020, the Saturday 2 days before the commencement of the hearing, the Respondent served an Amended Reply which significantly altered the position previously adopted by him in that he made substantial admissions. Further admissions were made when a "Particular" regarding his qualifications was amended during the hearing to clarify this related to his exercise of clinical judgment. 10. The result of that is that only a limited number of particulars remain contested. The Respondent has admitted, belatedly, multiple instances of unsatisfactory professional conduct which he admits amounted to professional misconduct. 11. It is unnecessary to deal with the admitted misconduct in detail, but it is necessary to discuss aspects of the misconduct in the context of protective orders that should be made. Before returning to that issue it is appropriate to address those factual matters which remain in issue."
Notwithstanding the submission of the HCCC that it is unnecessary to examine the admitted misconduct in detail, we do have a responsibility to satisfy ourselves that the admissions made by the respondent do amount to conduct which is unsatisfactory professional conduct and/or professional misconduct as specified by the Health Practitioner Regulation National Law (NSW) (the National Law). That examination does not need to be extensive given the admissions made, however we will consider the expert evidence relied upon by the HCCC and refer to it in a summary manner.
In relation to the outstanding areas of dispute, identified by the denials in the Amended Reply document set out above, the HCCC says the particulars identified as Particular 1 in Complaints One to Seven relate to the dosages of anaesthetic administered by the respondent to his patients and identified by the respondent in his evidence in the section 150 hearing on 11 September 2017. In that hearing the respondent said the dose he used was 40mg/kg of the anaesthetic he chose. He said he would use lignocaine (xylocaine). Sometimes he used a premix with adrenalin.
In the hearing before us the Respondent said he had misspoken about the dosage when he was before the Medical Council at the section 150 hearing. He told us the dosage he applied was in fact 4mg/kg and not 40 mg/kg.
The HCCC, in its submission, says they do not press for the Tribunal to find those particulars proven.

Oral evidence of the respondent

The respondent gave evidence that clarified prior evidence he had given before the Medical Council as to the dosage of anaesthetic he had administered to the patients who are the subject of the eleven complaints set out in the Complaint document. The HCCC in its submission accepts the evidence of the respondent that he did not administer lignocaine at the rate calculated on 40mg/kg. The respondent explained that he had misstated the dose probably because he was nervous about being in a circumstance of a hearing before the Medical Council.
The respondent agreed that part of the complaints levelled against him related to his Medicare billing. The respondent said he only made claims for billing he believed he was entitled to make. He conceded there may have been some errors. He conceded he did not include in his clinical notes the time he spent attending to his patients. That was important in relation to the claims he made for after-hours billing.
When asked what he would like to say to the Tribunal about the complaints made against him, the respondent said: "I try to do the best for people but eight complaints and people suffering because of it. Each case in the complaints was different but there was a failure on my part. I was below standard. I should have done it another way".
Asked what he would change if permitted to continue to practice the respondent said: "The long hours, you could make a mistake. I need to have a work/life balance. I want to balance life and work and that will lead to better outcome for my patients. When you work 12 to 15 hours outcomes can suffer."
The respondent said he would "work less hours, avoid high risk procedures and refer patients to specialist surgeons. The lady with the sole of foot procedure should have been referred to a specialist. She would have been treated in a hospital. I did it after hours because I wanted to do the best for her."
The respondent is now working as a GP at Wetherill Park, a Sydney suburb, in a multiple GP clinic. The clinic hours are 8am to 7.30pm. His supervisor is a GP in the practice. He sees a maximum of 30 patients per day. The respondent said he has less pressure and has more time to record his notes. If permitted to continue practice he would like to continue as a GP in the practice where he is now. Many of the patients are refugees and the respondent said he would "not do skin". Half of his patients speak to him in the Arabic language.
Before he was restricted by conditions, the respondent undertook between 150 and 180 procedures each month and some patients complained and suffered as a result of his work. He felt he had contributed to the demise of one of his patients.
In the future the respondent would not undertake procedures on patients' skin. He would refer them to specialists. He said some patients don't like being referred.
The respondent is a married man and lives in the Hills District of Sydney. He has 3 children living with him and he has 16 and 18 year-old daughters from a prior marriage. He was very concerned about the consequences for one of his daughter's health should there be publication of this proceeding.
When asked if he had anything else he wanted to say to the Tribunal the respondent said: "All the complaints indicate my failure to treat patients optimally. I treat patients as my family. I am really sorry and if you allow me to practice I could do community work. When I worked in Windsor I used to treat the homeless however I cannot do that now as it requires supervision. I was angry to start with when I was suspended and then had conditions. Now I realise I need to have a work life balance. I like participating in medical education and helping medical students."
The respondent was cross-examined by counsel for the HCCC.
The respondent said that in 2017 and 2018 he was working at the Leading Edge Family Medicine and Skin Cancer Clinic. He agreed he worked excessive hours. He said he did so because of the demand.
The respondent was questioned about the procedure he had undertaken on the sole of a patient's foot. He readily acknowledged the errors in that procedure.
The respondent was asked when he realised he had made mistakes with the procedures he had performed on his patients. The respondent said that when he was suspended he was "in shock". He said: "It took months for me to see that. One of the triggers was my boys. My son said 'Dad I don't want to grow up because I don't want to get sacked.' That was a big wake up for me. I was really angry. I thought I had done a good job to diagnose Patient B. I was focusing on the work I had done rather than the harm I had done my patients. The change in my thinking was gradual. I was unable to use the word failure. The other day I spoke to my wife and children. I said 'I have failed with eight of my patients'. I told them I failed in the form of my practice. I have been helped by talking to my friends, my GP and my counsellor."
The respondent said he had seen a psychologist. He had attended nearly every month.
The respondent was questioned about the anaesthetic he had used in his practice and in particular the inclusion of adrenalin.
The respondent acknowledged there was a Clinical Practice Guide dated November 2008 concerning clinical management of basal cell and squamous cell carcinoma. He thought it had been updated in 2017. He did not really know what guide was in force when he practiced between 2014 and 2018. He was however aware that there was a guide. He had been made aware of the guide during training.
The respondent was shown a copy of the guidelines. The first paragraph, he acknowledged, referred to the revision of the 2002 guidelines.
The respondent was asked to look at the "Clinical Practice Guide" which was included at Tab 150 of exhibit A1. The date on the front cover is November 2008 as the respondent had earlier stated. He was then asked to look at Tab 151 which addressed melanoma. In relation to Tab 150 and the guidelines set out there, the respondent conceded that he had not followed some of the guidelines. He said that the college he attended trained him to undertake "flaps and procedures on the nose" where the guidelines said not to do that (i.e. GPs). He said the training was to the effect that "if you feel comfortable doing the procedure then do it".
The respondent was questioned about the "margins" he used when excising a melanoma. It was put that he excised a larger portion than recommended. He said that depended on the particular case. He agreed a larger excision required either a graft or flap. He agreed a larger incision increased the risk of infection.
The respondent said he had not followed the incision margin guidelines for melanoma in the best interests of his patients. He wanted to give them the best protection.
It was put that the respondent had removed lesions from some patients' noses without first obtaining biopsy and testing results. He agreed that was so. He agreed that what he removed were not melanomas. He agreed now that it was not appropriate to remove lesions from the nose without a biopsy.
In 2017 the respondent said he was working five and a half days a week. He was working long days. Sometimes he did not finish work until 11pm. He eventually stopped opening on Saturday because the workload was too much for him. He worked long hours for the benefit of his patients.
The respondent was questioned about his note taking for his patients' records. He conceded his notes were poor and inadequate. He said he did take notes sometimes when the patient was there, but frequently took notes later in the day or later than that.
The respondent was taken to the records of his Medicare billings. The respondent was questioned about a number of his billings for after-hours work and counsel for the HCCC sought to ascertain whether the respondent knew when he could charge for after-hours work. The respondent was able to explain that.
The Medicare billing was also the topic of questions about the remuneration for excisions from different parts of the body. In relation to one patient who attended to have a basal cell carcinoma (BCC) removed from her shoulder, whilst being prepared for that procedure the respondent noticed the patient had a larger BCC on her nose. He spoke to her about removing that lesion first rather than the one she had attended to have removed. The respondent agreed there was a larger Medicare payment for removal of a BCC from a nose as opposed to removal of a BCC from a shoulder. He denied it was the larger remuneration which motivated him to proceed on the nose in priority to the shoulder.
The respondent agreed that following a complaint by a patient he was required to attend before a Professional Review Committee (PRC) of the Medical Council. He could not recall if he was spoken to about his record keeping at that review.
The respondent attended before the Medical Council for a section150 hearing on 11 September 2017. The respondent agreed that one of the concerns addressed in that hearing was his record keeping. He also agreed he was challenged for not following skin care guidelines.
The respondent was questioned about a procedure he carried out upon an elderly patient in January 2018. The respondent said that at that time he was still on conditions set by the Medical Council. Those conditions prevented him from excising melanoma or preforming skin grafts. The respondent agreed he performed a wide local procedure on her nose without first taking a biopsy. He knew at the time the Guidelines said a biopsy was to be undertaken prior to excision. He agreed the procedure was closely proximate to the PRC review and the section 150 hearing he had participated in and where the requirement to work within guidelines was emphasised.
The respondent said he couldn't recall if he looked at the Guidelines again before he undertook the procedure on that elderly lady. He said he had her sign two lengthy disclosure/consent forms. He saw her twice to give advice. He told her she was a high risk patient. He asked her if she would like to have the procedure in a hospital however she said "No I trust you". After the procedure she was bleeding. She went to the hospital. She developed a clot and she died. The respondent said "From that day I decided surgery is not for me."
The respondent agreed he should not have performed wide incision on that patient.
The respondent was questioned about procedures he carried out on a patient in both February 2017 and February 2018. It was put that those procedures involved removal of lesions which were not clinically indicated. The respondent agreed that was the case. He agreed it was not appropriate to have performed the procedure. He said "What I did was wrong."
The respondent denied that he performed surgery largely motivated by the size of remuneration which each procedure attracted from Medicare such that he would opt to perform the procedure which provided the greatest return.
Dr Cooper (Senior Member) asked the respondent some questions. In answer to those questions the respondent said he had learned about the correct Medicare numbers to charge through "the College".
The respondent was asked about biopsy procedure. He said "I don't do punch biopsy". He explained he makes an incision to obtain material to biopsy. He then stitches the incision.
It was put that in the eight patient complaints which the HCCC has proceeded with the average billing by the respondent was $660. The respondent did not know. He was asked if he thought $660 was an unusually large fee charged for the work he undertook and he agreed it was.
Senior Member Dr Yeo pointed out that the respondent had admitted inappropriate charging for his services. Dr Yeo asked the respondent if he had repaid any money because of that. The respondent said he had not. Further he said he has not been asked to repay any money. He had not told Medicare he had applied wrong item numbers which meant he received a greater remuneration than he should have.

Assessment of the respondent as a witness

We carefully observed the respondent as he gave his oral evidence. We considered both the manner in which he gave that evidence and the content of same.
We were impressed with the candid manner in which he gave his evidence and the regret expressed therein. He appeared to us to be genuinely contrite for and concerned about the harm he had inflicted upon his patients whilst he was endeavouring to care for their medical needs to the best of his ability. We did not conclude that he was being untruthful in his evidence nor did we consider that he was attempting to avoid blame for his conduct.

The HCCC's expert evidence

The material relied upon by the HCCC includes expert evidence from different medical practitioners. In the case of Patient C the evidence discloses that in January 2017 the respondent operated upon her leg to remove a melanoma. The statement from Patient C sets out that she had a large incision on the back of her leg performed by the respondent to remove a melanoma. Following the procedure Patient C experienced severe pain and discomfort at the site of the incision and around it. The pain persisted for days and eventually she was able to see a specialist medical practitioner, Professor Michael Hughes. Following investigation Patient C was diagnosed with a deep vein thrombosis. She received treatment for that over three months. She also was prescribed medication for nerve pain which had unpleasant side effects.
Professor Hughes was asked by the HCCC to provide an expert opinion about the work undertaken by the respondent on Patient C. He opined that the procedure performed by the respondent was excessive for the patient's condition. He was critical of the manner of incision and the size of same. He said the procedure was not in keeping with the Guidelines applicable at the time of the surgery. He said the depth of the incision was excessive at 13mm, where all that was required was 6-7mm. He opined that the depth of the incision may have increased the risk of nerve damage or irritation.
The HCCC relied upon the evidence of Dr Peter Lye contained in a report received 12 February 2019 (Tab 83 in exhibit A1). We have considered the evidence of this witness, who was not challenged as to qualification or opinion expressed. We noted the following matters in particular.
Dr Lye said that "to be qualified to perform skin cancer procedures, or in other words achieve competence in performing said skin cancer procedures, it requires both training and experience. Because of the variety and multitude of pathways, there is no set 'one way' to obtain qualification and competence. From the information provided, I am unable to assess the doctor's level of experience, however he appears to have had adequate training."
Dr Lye was asked about the need to remove dysplastic naevi on the stated reason that the lesion is pre-melanoma. He said "Dysplastic naevi are benign lesions. Dysplastic naevi are not pre-melanomas." Informing patients their benign dysplastic naevi are 'pre-melanoma' suggests impending malignancy which is incorrect and unnecessarily distressing. Removal of dysplastic naevi for melanoma prevention merely causes surgical morbidity and for no clinical benefit whatsoever. This standard of conduct is below what is reasonably expected."
Dr Lye opined that the use of a "hot key" by the respondent as part of his medical record documentation in place of a signed consent form by the patient or individual documentation of each consenting process for highly invasive procedures with potential for significant surgical morbidity was conduct by a medical practitioner which was significantly below what is reasonably expected and invites strong criticism.
Dr Lye was asked to provide his opinion in relation to the conduct and professional standard exhibited by the respondent in respect of each of the eight cases the subject of the Complaint brought by the HCCC.
In relation to Patient A, Dr Lye said "the nose is a high risk (cosmetic and therapeutic) location for BCC. However, it does not require urgent immediate surgical intervention as portrayed by the doctor." Dr Lye said there was necessity for biopsy confirmation before planning wide excision and skin grafting the nose. "The standard of conduct was significantly below what is reasonably expected and invites strong criticism".
Dr Lye said: "A skin graft is not 'a small scar', this was not a 'very urgent' clinical situation, other treatment options presented by the patient were turned down by the doctor, the option of referral to a plastic surgeon was neither considered or discussed, but eventually required. No entry was made in the clinic's medical records regarding consultation, consent, diagnosis, anaesthetic administered, planned procedure or change of procedure on the day. Informed consent was not adequately obtained. The standard of conduct was significantly below what is reasonably expected and invites strong criticism".
In relation to whether the procedure performed by the respondent for Patient A was indicated, Dr Lye said "a skin graft is only indicated if other methods of reconstruction such as skin flaps are inappropriate, unavailable or would result in functionally or aesthetically unsatisfactory results. Dr Preketes, plastic surgeon, describes 'an obvious cosmetic deformity' and 'the best procedure to be performed on the area would have been a local flap repair' for 'a much better cosmetic result'. A skin graft was not indicated. The standard of conduct was significantly below what is reasonably expected and invites strong criticism."
In relation to the circumstance where Patient A attended upon the respondent on 24 July 2014 for a planned treatment of her left shoulder, had anaesthetic injected into her left shoulder and then was advised to undergo a skin graft to her nose rather than the anticipated shoulder procedure, Dr Lye was asked to give his opinion.
Dr Lye said "Appropriate standard of care is not limited to a procedure. It involves planning for whole-of-patient concerns, not just the lesion, prior to and following surgery. The patient was mentally prepared for and received a local anaesthesia to the shoulder when a rushed consent was obtained to skin graft the nose, a questionable procedure that was made to appear more urgent then in reality. The doctor knew this would be his last day at the clinic, yet the option of biopsy or referral to a specialist surgeon or other doctor at the clinic who would be able to provide appropriate follow-up and after care was not offered. The standard of conduct was significantly below what is reasonably expected and invites strong criticism."
Dr Lye was asked to provide his opinion on the knowledge, skill, care and judgment exercised by the respondent during the procedure performed on Patient A on 24 August 2014. He opined as follows: "Histology confirms a sizeable defect was left on the nose. The doctor correctly diagnosed BCC, however a correct diagnosis does not infer the most appropriate course of action taken. Including:

Nose biopsy prior to wide excision (not done). Confidence in diagnosis does not replace confirmation of diagnosis.
Referral to a specialist surgeon offered (not done). Confidence in the skill does not replace superior skills and training.
Referral to a hospital offered (not done). Confidence in practice does not replace superior operating environment.
Informed consent for skin grafting (Not done). Confidence in procedure does not replace superior treatment options. The standard of conduct was significantly below what is reasonably expected and invites strong criticism."

Dr Lye was asked to provide his opinion as to whether the respondent was adequately qualified to perform the surgical procedure on 24 July 2014. Dr Lye opined as follows: "The doctor's lack of understanding for the importance of diagnostic confirmation prior to invasive surgery in a cosmetic and functionally important location, the lack of insight into the limits of his ability, his lack of care and concern in performing major procedures in a suboptimal environment, and his minimal regard for consent and medical record keeping as part of good patient management lead me to believe that he was not adequately qualified to perform the surgical procedure. The standard of conduct was significantly below what is reasonably expected and invites strong criticism."
Dr Lye expressed strong criticism of the respondent's failure to refer Patient A for specialist review or to a hospital. He was critical of the respondent's medical records and the manner of retrospectively completing the records. Dr Lye further said: "In addition to the shortcomings of his consenting process, the doctor created a false sense of emergency (ie needing immediate attention) for a procedure where no emergency was present. Disorientation of the patient was furthered by the doctor moving from the shoulder, where the procedure had already commenced with local anaesthesia, to the nose without time for written consent or indeed any medical record taking. The false presentation of emergency, the shock of moving the surgical field, and the little time offered to consider to what was actually happening, materially affected the patients' response in allowing the surgery to proceed. The only true urgency being that it was the doctor's last day at the clinic. The standard of conduct was significantly below what is reasonably expected and invites strong criticism."
We have set out above the criticism Dr Lye has provided for the conduct of the respondent in relation to Patient A. We have done so to demonstrate the seriousness of the conduct. Dr Lye has also addressed each of the complaints made by Patients B through to Patient G (seven in all). A summary of the opinion expressed by Dr Lye for Patients B to G is that in consideration of each complaint, he has expressed an opinion that the standard of conduct was significantly below what is reasonably expected and invites strong criticism.
In relation to Patient B, Dr Lye said: "During the procedure, the doctor states that he 'didn't know what to do' and 'he considered transferring [Patient B] to the Hospital' however he was concerned an 'open wound made him susceptible to infection' and continued that this was 'possibly one of the challenging job [sic] I have in my entire life.' A doctor must practice within the limits of their ability and have the wisdom to know what those limits are. Clearly, he was practising out of his depth and the doctor acknowledged this. The patient should have been transferred to the hospital, open wound or no open wound, and the risk of infection would have been managed responsibly by the surgical team at the hospital."

The respondent's expert evidence

The respondent relied upon a report prepared by Professor Anthony Dixon of the Australasian College of Cutaneous Oncology (exhibit R2). The report addressed the eight skin cancer patients who were the subject of complaints brought by the HCCC against the respondent.
We note that the respondent obtained a certification in skin cancer surgery from the Australasian College of Cutaneous Oncology.
As a summary, Professor Dixon said he had examined the reports of the management by the respondent of eight patients. He said "I consider that several aspects of Dr Sharrad's management are below a reasonable standard of care. Dr Sharrad's informed consent process, medical record details and communications with his [patients] are repeatedly below a reasonable standard. His accuracy of clinical diagnosis of skin lesions is insufficient to be managing uncertain lesions without prior histology. His knowledge of the theory of cutaneous oncology is at a standard I would expect of a General Practitioner (GP) working in this subspecialty field. His management of cutaneous malignancies is generally sound. He has excised benign lesions and indolent SCs at times that such management was not necessary. Other alternatives should have been discussed and recommended on occasions. Dr Sharrad's surgical skills have been unfairly criticised in the complaints. Frequently I disagreed with an assessment that he should not have performed a given procedure himself and outside of a hospital."
Professor Dixon then addressed, in detail, the summary he had provided.
It is clear that Professor Dixon was not as critical and condemning of Dr Sharrad's conduct toward the patients the subject of the complaints, however, he certainly did not support the removal of lesions or other skin growths which did not require such a procedure.
We did not have the opportunity to see any of the expert witnesses who had been asked to provide reports. However, given the fact that the respondent has conceded the complaints against him are established, we need to place more weight upon the evidence of the expert which supports all of the complaints made by the HCCC as opposed to that called by the respondent, where that expert was less critical of some of the procedures the subject of the complaints.
The respondent has not attacked any of the opinions of Dr Lye nor has he submitted that the evidence of Professor Dixon should be preferred in any area of the complained of conduct by the respondent.

The HCCC's submissions

The HCCC addressed the standard of proof required to satisfy the Tribunal that a fact is established. The HCCC submitted that the civil standard of proof is to be applied and that the Tribunal has approached the balance of probabilities standard by having regard to the requirements of Briginshaw v Briginshaw (1938) 60 CLR 336. The HCCC also referred to the decision in Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, where Leeming JA with whom Gleeson JA agreed, held at [127] that whilst it was "strictly correct" that "neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT". See also Sullivan v Civil Aviation Authority (2014) 226 FCR 555; [2014] FCAFC 93. We will embrace the approach set out in that decision. There is no submission to the contrary made by the respondent.
The HCCC addressed those issues of fact which remained outstanding after the admissions made by the respondent were considered.
Complaint Nine raised the allegation that the respondent had inappropriately billed Medicare for procedures performed on named patients. The HCCC set out 12 particulars addressing the complaint.
In his Reply document, the respondent admitted Particulars 1 to 4 and 10 to 12. He challenged Particulars 5, 6, 7, 8 and 9.
In relation to Particular 5, the respondent said "As to Particular 5 the Practitioner admits that on or around 24 July 2017 he inappropriately billed Medicare for a Level B consultation (item 00023) in circumstances where such a consultation with Patient H did not occur independent of the procedures performed, but otherwise denies Particular 5."
The HCCC in its submission says the following: "18. Complaint 9 particulars 5(a) and (c) are denied, whereas 5(b) is admitted. These particulars relate to charging a level B consultation where it did not occur independent of a procedure or procedures performed. It is not appropriate to bill for a consult and the procedure in such circumstances, as indicated by the Respondent's partial admission. The dates in particular (a) is [sic] incorrect. It should read 1 or 10 April 2017 for particular (a), the former being the date of the consultation and the latter being the date Medicare was charged. For particular (c) the consultation was on 18 September 2017 and the Medicare fee was processed on 18 October 2017 for particular (c). The Applicant seeks leave to amend the complaint to bring particular 5(a) into line with that evidence, but accepts that if such leave is not given, nothing particularly turns on whether that particular is included and proven or not. The Applicant submits that on the Medicare charging records referred to, Complaint 9 particular 5(c) is clearly proven."
In the circumstances we are not prepared to grant the HCCC leave to amend its Complaint Nine further given that the hearing has concluded, the respondent did not specifically respond to the submission of the HCCC on Complaint Nine and given that the admissions by the respondent are so extensive that this further allegation, even if established, is likely to have a minimal impact on the determination we are required to make.
We accept the submission that the HCCC has established the alleged conduct by the respondent in relation to Particular 5(c).
The HCCC does not press for a finding in relation to Complaint Nine Particular 6. The particular was framed at a time when evidence from the respondent about after-hours billing was not available.
In relation to Complaint Nine Particulars 7, 8 and 9, the HCCC submits: "20. The Respondent denies Complaint 9 particulars 7, 8 and 9. No explanation is given regarding the denials. 21. Complaint 9 particular 7 alleges inappropriately billing for an arm excision procedure that was not clinically indicated. By admission to Complaint 8 particular 20 the Respondent has admitted the procedure was not clinically indicated. It is unclear why this particular is denied but the Applicant submits it is clearly factually made out and that the Tribunal would find it is inappropriate to bill for a surgical procedure that was not clinically indicated. 22. Complaint 9 particular 8 relates to charging for an excisional biopsy on 24 July 2017, item 31366 in circumstances where only a shave biopsy was taken. It is unclear the [sic] basis this is denied, however, it is clear from the histopathology report that the upper back sample was a skin shave. The Applicant therefore submits that it was inappropriate for the Respondent to charge for an excisional biopsy for that procedure. 23. Complaint 9 particular 9 relates to the procedures performed on 18 September 2017 and billed on 19 October 2017. The Respondent charged for 3 excisions of benign lesions with defects 15-30mm. The allegation is that this was inappropriate due to the excision sizes being under 15mm. Even allowing for accepted shrinkage the excision sizes were clearly below the range charged for as shown by the size of the samples reported on. Indeed, the Respondent's notes record the excisions as 10x10, 8x8 and 8x8mm. The Respondent clearly charged for larger excisions than were performed, and this was clearly inappropriate. At best it was reckless and at worst it was dishonest."
We have considered the evidence referred to and the submission of the HCCC in relation to Particulars 7, 8 and 9 of Complaint Nine and we accept the submission and find the facts in those particulars established.
The respondent did not admit Complaint Ten Particular 4(b) and provided an explanation for Particular 6(b). The HCCC does not press for a finding on either of those asserted facts. The HCCC further accepts the respondent's case in relation to Complaint Ten Particular 9 and accepts that particular should be found "not proven". In relation to the balance of the contested particulars in Complaint Ten the HCCC says: "In relation to Complaint Ten Particulars 12(d), 15(a), 17(a) and 18(a) the Respondent accepts his clinical records do not record the type of suture material used but says this is not required by the Regulations. In the circumstances the Applicant accepts those matters do not amount to unsatisfactory professional conduct."
The HCCC then provided submissions which addressed relevant principles. We have taken note of those submissions.
Under the heading "Analysis of Respondent's Conduct" the HCCC made the following submission: "41. The conduct of the Respondent in relation to these 8 patients is highly concerning. 42. The Respondent clearly has adequate technical skill and training to have appropriately treated, or diagnosed and referred, each of the patients the subject of the complaint. Despite having those skills and training, the admitted conduct includes: (a) Not advising regarding alternatives to surgical treatment; (b) Not referring or offering referral to a specialist surgeon; (c) Not obtaining informed consent; (d) Inappropriately not obtaining diagnostic biopsies prior to surgical treatment especially in cosmetically sensitive areas; (e) Inappropriately performing surgical procedures that were not clinically indicated, on a large number of occasions; (f) Performing surgical excisions which were larger than required by good clinical practice and accepted guidelines; (g) Using flap closures or grafts in circumstances where they were not indicated or appropriate; (h) Failing to perform adequate clinical assessments; (i) Inappropriate billing practices, which resulted in overbilling on a number of occasions; and (j) Poor record keeping. 43. It is almost difficult to imagine a more comprehensive list of shortcomings having regard to the nature of the Respondent's practice at that time. 44. A number of the areas of inappropriate practice had a real capacity for significant impact on patient welfare, especially where procedures that were not indicated were performed, larger than required excisions were taken and flap closures were utilised over direct layered closure. 45. The Respondent's position is that whilst he (now) accepts his conduct was not appropriate, it was well intentioned with patient welfare in mind. The Tribunal would have difficulty accepting that explanation. 46. Rather than a benevolent and well intentioned approach to patient care, the Tribunal should find that the Respondent's attitude to treatment of the patients the subject of the complaint was largely dictated by financial motives. The Respondent denied in cross examination that any of his treatment of any patients was motivated by financial motives, however, there is an overwhelming inference available that that was the case. This inference is powerfully supported by the following matters: (a) The breadth of the apparent clinical ineptitude or misconduct being significantly inconsistent with the Respondent's technical skill and training; (b) The gross overtreatment of patients where surgical treatment, which is more highly remunerated, was undertaken, in particular but not limited to Patient H; (c) The failure to inform of non-surgical options and obtain proper informed consent, which may have caused patients to proceed with non-surgical treatment and cost the Respondent procedure fees; (d) The failure to refer to other clinicians where appropriate, which would have deprived the Respondent of fees; (e) The fact that the Respondent attributed some of his conduct to being too busy. This is consistent with his evidence that he would finish procedures well after closing time of the practice. The fact is the Respondent was working in his own practice over which he had control of working hours and patient numbers in relation to nearly all of the conduct the subject of the complaint. If he was working too much it was because he chose to do so, and his remuneration would have been higher for it; (f) The fact that there are a number of instances of inappropriate billing of Medicare, including claiming consultations additional to the surgical procedures and charging for larger excisions than took place; (g) The treatment of Patient A. Patient A was treated on the last day of the Respondent's placement as a locum at another practice. She attended for excision of a BCC on her shoulder. After administering local anaesthetic for that procedure the Respondent advised Patient A she had a lesion on her nose (also a BCC) which should be operated on in priority to the shoulder lesion. There was not any urgency or priority for the nose to be treated. It was the same type of lesion, anaesthetic had already been injected for the shoulder and the nose is a cosmetically sensitive area. The Respondent was unable to proffer any meaningful explanation in cross examination for why he acted in the manner he did on this occasion, but denied it was because removal of the lesion from the nose attracted a higher fee. In reality, that is by far the most likely explanation for his conduct, with the Respondent being remunerated for his locum work by way of a percentage of his billings. 47. If, contrary to that submission, the Respondent's intentions were purely in the interest of patient welfare, then he failed miserably in giving effect to that intention. Instead, he caused patients harm and potential harm, and deprived them of proper informed autonomy. He substituted his own views and preferences for proper patient autonomy and welfare, disregarding evidence-based guidelines in the process."
We have included the above extract from the submission of the HCCC because we consider it concisely summarises the complaints against the respondent and then sets out the HCCC's submissions as to why the Tribunal would consider that the respondent was motivated by financial gain, rather than the best interests of his patients.
In relation to the submission that the respondent's attitude to the treatment of the patients the subject of the Complaint was largely dictated by financial motives, we are unable to find so on the evidence.
Whilst the submission of the HCCC on this point is well argued, we do find that such a finding, as urged by the HCCC, would not accord with the presentation before us of the respondent. The respondent did deny such a proposition. Whilst it is clear from his own admission he was not competent at the procedures which have been the subject of the Complaint, he was in our view genuine in his desire to help his patients as best he could. Clearly he lacked expertise and insight however that is a different thing to being motivated by greed.
We are left to consider therefore the content of paragraph 47 of the HCCC submission as set out above. We will consider that possibility when we have detailed the respondent's submission.
The respondent in his written submission included the following: "6. Dr Sharrad acknowledges that in seeking to manage skin cancer(s) in patients (and that which he suspected to be skin cancer(s)) he was over-zealous, over-ambitious, failed to observe the boundaries of the doctor/ patient relationship (he failed to say "no" to patients or to frankly concede that a problem might be better treated elsewhere) and created circumstances that led to adverse patient outcomes. 7. He deeply and genuinely regrets those shortcomings which he describes to have been failures by him. 8. He attributes his failures to a combination of his genuine desire to help and to solve the problems of patients and the role of unrecognised ego driven decision-making. He accepts in addition, that he burdened himself with an excessive workload. 9. He now unreservedly accepts that his decision-making led, in the circumstances the subject matter of the HCCC's complaints, to poor patient outcomes rather than the positive patient outcomes he keenly desired."
Further, the respondent submitted: "13. That the Reply was amended shortly before the hearing should be regarded to be of little moment (despite what is said on the topic in the HCCC's submissions). It is uncontroversial that Dr Sharrad was overseas in Iraq for a significant period preceding the hearing. 14. Further, [in] the circumstances of the Covid-19 pandemic, ordinary hearing preparation was not without difficulty. 15. The important matter for the Tribunal is that at the time of the hearing the issues for determination were few as a result of the admissions made by Dr Sharrad. That the admissions were made by Sharrad shows that he is possessed of significant insight and is an important matter for consideration by the Tribunal. 16. Of the particulars which were denied by Dr Sharrad, the HCCC does not press for findings (illustrating the correctness of his position). 17. In light of the admissions in the Reply, (and notwithstanding the above) Dr Sharrad does not seek to be heard concerning the HCCC's proposed order for costs."
The respondent acknowledges that the expert evidence relied upon by the HCCC has not been challenged. The respondent accepts that the HCCC has established the alleged facts underlying each complaint. The respondent consented to the Stage 1 and Stage 2 hearings proceeding concurrently. Stage 1 is where the alleged conduct, the subject of the complaint, is either established or otherwise. Stage 2 considers what protective orders are to be made by the Tribunal, if any. The admissions having been made by the respondent, it is his submission that this hearing will principally concentrate upon the Stage 2 aspect of the case.
In relation to the exercise involved in considering the Stage 2 part of this case, the respondent submitted: "21. The proper focus of Stage 2 of the proceedings is Dr Sharrad's present circumstances as a medical practitioner and prospects for the future. 22. That focus is informed by the admissions contained in Dr Sharrad's Reply, and the evidence relied upon by Dr Sharrad (most particularly, his oral evidence). 23. Dr Sharrad presented in evidence - particularly under cross-examination by Counsel for the HCCC, as a truthful witness doing his best to candidly answer the questions put to him. He plainly endeavoured to be a responsive witness. He repeatedly acknowledged the error of his conduct - his failings - the subject of the complaints. 24. The question that arises in the proceedings is what formulation of protective orders is appropriate (particularly in light of the admissions contained in Dr Sharrad's Reply, the evidence relied upon in answer to the complaint - predominantly, his oral evidence before the Tribunal."
The respondent then set out a number of submissions addressing "The relevant principles - The National Law". We will consider those stated principles, along with a similar subject of submission provided by the HCCC, shortly.
In addressing the appropriate orders the Tribunal may consider the respondent's submissions as follows: "62. The Tribunal has a wide discretion and general powers under section 149, section 149A and section 149C of the National Law to make any one or a range of protective orders upon finding the subject matter of a complaint has been proved. 63. 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]). 64. The HCCC primarily seeks an order of cancellation of registration in respect of the complaints. As an alternative, the HCCC seeks a reprimand with a period of suspension of between 6 and 12 months. 65. Whilst the latter is plainly a fallback position, that does not detract from the force of the observation that to the HCCC's estimation there are plainly a range of appropriate orders that could be made. 66. It is submitted that the making of an order under section 149A of the National Law of reprimand is appropriate. 67. 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]). 68. 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: see, Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111, per MacFarlan JA (at [60]). 69. It is submitted that a reprimand (in a form of words formulated by the Tribunal) and identified to be in respect of each complaint, together with the continuation of existing conditions upon Dr Sharrad's registration are the appropriate protective orders. 70. The continuation of existing conditions (which include supervision and limits upon the number of patient interactions is appropriate). Further, a condition requiring ongoing psychological counselling, and a condition specifying ongoing education that to the assessment of the medical practitioner members of the Tribunal (and all members of the Tribunal) would no doubt assist Dr Sharrad (and are conditions that Dr Sharrad would embrace). 71. It ought not be doubted that Dr Sharrad recognises the failings identified in the Complaint. However, ongoing engagement with a psychologist would also undoubtedly assist Dr Sharrad (and is also a condition that Dr Sharrad would embrace to address the continuing challenges of practice - and notwithstanding Mr Ramsay Andrews opinion that Dr Sharrad does not require further psychological intervention in respect of the subject matter of the complaints). 72. The orders concerning conditions may also include orders as to their minimum duration (see section 149A(1)(b)) before they could be the subject of any application for review pursuant to section 150A of the National Law. 73. If it is felt by the Tribunal that an order for reprimand is insufficient, then Dr Sharrad submits that a reprimand together with a period of suspension of his registration for a period of 6 months would be appropriate."
The HCCC addressed the question of protective orders in its submission. The submission was comprehensive and well argued.
By way of summary of the HCCC submission we note the following:

Orders are for the health and safety of the public.
General deterrence and confidence in the medical profession in the eyes of the public are necessary considerations in the formulation of protective orders.
The respondent has admitted professional misconduct. Such an admission must acknowledge the possibility of cancellation or suspension of his registration (see s 139E of the National Law).
An order for the cancellation of the respondent's registration is an appropriate protective order in this case.

The HCCC included the following passage in their submission which we include in these reasons: "57. At best, the Respondent's conduct was misguided but seriously wrong. It caused real harm to patients. It demonstrated a range of shortcomings, from diagnostic issues to surgical management, billing practices, record keeping. It deprived patients of the right to choose the best treatment for them. Concerningly, it demonstrated a willingness to act on his own views outside of clear evidence based guidelines, without informing patients of same as well as poor clinical judgment on a large number of occasions. 58. Conduct of such a broad nature, revealing amongst other things deficiencies with clinical judgment, cannot properly be dealt with by the Respondent not practising in skin cancer treatment. Firstly, that would send a poor message to the profession and the public as to responsibility and accountability. Secondly, it does not address the underlying issues which caused the Respondent to engage in the conduct he has. 59. The Respondent made very late admissions. Prior to the Amended Reply, his Reply reveals that he accepted very little wrongdoing or criticism in relation to his conduct. The lack of insight given the nature of the conduct and the overwhelming evidence in relation to it is, frankly, astonishing. The Respondent was unable to give clear evidence regarding the development of insight. The Tribunal would have concerns about the depth of insight shown and how truly remorseful the Respondent is for his patients and the reputation of the profession, as opposed to his own circumstances."
We consider that the above portion of the submission from the HCCC succinctly encapsulates the seriousness of the conduct of the respondent as he conducted surgery upon the patients the subject of the Complaint under consideration here. The evidence we have considered in the hearing, as to the suffering of the patients and the inflicting of unnecessary procedures by the respondent in the mistaken belief he was doing well by his patients, places this case in a category of cases which warrant consequences for the protection of the public and the respondent which will maintain the confidence of the public in the medical profession, serve as a deterrent to other medical practitioners and protect the public from further harm at the hands of the respondent.
The HCCC directed our attention to the reports of psychologist Mr Ramsey Andrews. The first report is contained in exhibit A1 at Tab 27A. The report is dated 6 July 2018. The report focused upon an event where one of the respondent's patients died in January 2018 following a skin cancer operation. The respondent had been a patient of Mr Andrews since June 2018. By that time he had been suspended since February that year following a section150 hearing.
In the report Mr Andrews said: "Dr Sharrad reports that at the time of the incident, he was unaware that certain behaviours towards patients was [sic] unprofessional. After having received counselling, Dr Sharrad has gained significant insight into his behaviours as a General Practitioner and he also recognises that there is a need to address personality and emotion based on factors that may lead to an unprofessional manner of dealing with patients. Dr Sharrad is remorseful for his behaviours leading up to his suspension and has looked upon this incident as an opportunity to make constructive changes to the approach he uses with patience [sic] as a General Practitioner."

Relevant principles

Both the HCCC and the respondent addressed matters of principle in order to assist us with this determination. From those submissions we draw the following.
The jurisdiction is protective and not punitive. There is however a requirement for general deterrence in the orders made and the outcome reached by the Tribunal. The decision and orders made have a function in upholding public confidence in the standards and reputation of the medical profession: see Health Care Complaints Commission v Do [2014] NSWCA 307.
In Chen v Health Care Complaints Commission [2017] NSWCA 186 Basten JA, with whom Leeming JA agreed, said at [20]: "… Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct." See also Lee v Health Care Complaints Commission [2012] NSWCA 80 at [34] and Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] per Basten JA.
The HCCC provided reference to other decisions of the Tribunal and the NSW Court of Appeal, at our request, so that we may see the outcome for other cases with perhaps similar facts. However, our request was an error on our part, in that the comparison with other determinations is not a pathway to be followed as determinations of the Tribunal and the Court of Appeal have directed.
In Lee v Health Care Complaints Commission the court cautioned against adopting an approach of considering a "sentencing range". At [34] the court said: "… (a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern; (b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct"; (c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers; (d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle; (e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and (f) the [Tribunal], as a specialist tribunal, brings special skill and experience to the task of formulating protective orders."
In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 ("HCCC v Litchfield") the Court of Appeal referred to and adopted the words of Priestley JA in Richter v Walton. The Court said at 638: "In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (Court of Appeal, 15 July 1993, unreported) at 8-9: 'The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest.'"
The HCCC submitted: "The principles to be applied in determining the appropriate protective order are not controversial and are set out in, amongst other decisions, HCCC v Litchfield (1977) 41 NSWLR 630; Gayed v Walton 31/7/1997 NSWCA unreported; Bannister v Walton (1993) 30 NSWLR 699. They include the following considerations: 1. The protection of the public, which is of paramount consideration; 2. The maintenance of the high standards of the profession; 3. Deterring not only the particular practitioner but others who may stray from the appropriate standards; a reminder to the profession; and 4. To emphasise the unacceptability of the conduct involved."
We accept that submission.
The HCCC also submitted: "No order should be made which has more serious consequences for the practitioner than is reasonably necessary to promote the protective purpose. However, as Basten JA observed in NSW Bar Association v Meakes [2006] NSWCA 340 at [114] that purpose may operate in different ways: either by its direct effect on the practitioner in preventing a practitioner from practising (deregistration or suspension) or by acting as a deterrent to repetition (fine or reprimand)". We also accept that submission.
The respondent submitted that the role of the Tribunal is to act in accordance with the objects and guiding principles of the National Law. Sections 3 and 3A of the National Law identify those objects and guiding principles. We accept that submission. The respondent included the following extract from those named sections in his submission as follows: "27. Section 3 is (relevantly) in the following terms: Section 3 - Objectives and Guiding Principles (1) The object of this Law is to establish a national registration and accreditation scheme for-- (a) the regulation of health practitioners… … (2) The objectives of the national registration and accreditation scheme are-- (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; and … (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; … (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. … 28. The Tribunal in exercising a function under the National Law is bound to have proper regard to the objectives and guiding principles: Section 4 - How functions to be exercised An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in section 3. 29. Section 3A (which is unique to the NSW version of the National Law) is in the following terms: Section 3A - Objective and guiding principle [NSW] In the exercise of functions under an NSW provision, the protection of the health and safety of the public must be the paramount consideration." …
The respondent addressed ss 139 (competence to practice), 139B(1)(a) and (l) (unsatisfactory professional conduct) and 139E of the National Law (professional misconduct). The respondent submitted the evidence did not establish the respondent was not competent to practice medicine, outside of skin cancer management by surgery. There is in that submission a clear admission. The respondent has, by his Reply document, admitted he is guilty of unsatisfactory professional conduct and professional misconduct.
The respondent referred to the decision in HCCC v Litchfield in support of his submission that the jurisdiction exercised in making orders is protective and not punitive. We accept that as a broad statement. The respondent directed us to the decision of the Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307. In relation to that decision, the respondent said: "The Court considered the objects and guiding principles of the National Law, Meagher JA held (at [35]): 'The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to 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.'..."
We accept the submission put by the respondent in the prior paragraph.
The respondent further submitted: "43. In Chen v Health Care Complaints Commission [2017] NSWCA 186, the Court identified (Payne JA - with whom Basten JA and Leeming JA agreed) (at [77] and [86]), that the correct approach to the question as to whether a health practitioner's registration should be cancelled involved two-stages of decision making. 44. Firstly, the Tribunal was required to determine whether it could be demonstrated that at the time of the making of the decision that the medical practitioner is unfit to practice medicine safely (whether in respect of current conduct or former conduct). 45. Secondly, the Tribunal was required to determine whether the practitioner would likely remain unfit so for [sic] a significant indefinite period. 46. A determination that there is a demonstrated current unfitness (rather than a probable permanent unfitness) is required to justify cancellation of registration. 47. In Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56 (at [102], it was held: The expression used by the High Court in Ex parte Lenehan was "probable permanent unfitness" and referred to the finding which usually underlies an order striking off a solicitor. It serves to indicate that striking off a lawyer or deregistering a medical practitioner will generally only be appropriate if he or she is unfit to practise at the time of making the order and is likely to remain so for a significant or indefinite period. 48. See also, HCCC v Della Bruna [2014] NSWCATOD 31 (at [90- 91])."
We accept that the determination we have to make as to the fitness of the respondent to practice medicine safely is to be considered at the date of the decision. That in practice means our determination is to be based upon the evidence accepted in the hearing before us, together with our understanding that the respondent has continued to practice medicine subject to the conditions which currently attach to his registration.
We accept, as submitted by the respondent, that the degree of seriousness of conduct is the determinant of whether cancellation or suspension of registration is required, or some other order, and this is a matter of judgment.
The respondent further submitted: "50. It is submitted that although Dr Sharrad's conduct is serious, there are appropriate alternatives to an order for cancellation (and a period of non-review). 51. In making a finding of professional misconduct the Tribunal must determine whether "when the respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration": HCCC v Perroux [2011] NSWDC 99 at [18]. 52. It is accepted that the matters are sufficiently serious to justify suspension or deregistration (cancellation). However, recognition of the seriousness of the conduct does not axiomatically require the making of orders for the suspension or cancellation of Dr Sharrad's registration."
The respondent submitted that "the Tribunal ought to be comfortably satisfied that the likelihood of Dr Sharrad again engaging in conduct of the type underlying the complaints is non-existent". The respondent says that in the circumstance where the respondent will no longer practice skin cancer surgery there is no evidence to show there is a need for a specific deterrent as opposed to a general deterrent.
We accept the submission of the respondent directed to the protective nature of orders to be made and the reference to the following passage from Prakash v Health Care Complaints Commission [2006] NSWCA 153, per Basten JA, at [91]: "…The purpose of any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to 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 submitted that the HCCC had not specifically identified "the risk to the public" which the respondent might pose should he be permitted to continue to practise, as was specified by Brereton JA at [97]-[101] in Ghosh v Medical Council of New South Wales [2020] NSWCA 122. There Brereton JA said: "[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." (Emphasis added and footnotes omitted.)
In the current case we are not dealing with a practitioner said to be suffering from a mental illness. We are considering what protective orders are necessary to protect the public from the respondent practising and to act as a deterrent to others and to maintain the public's confidence in the medical profession as a whole.
In this case the respondent says the risk to the public from further medical practice by the respondent has been practically eliminated because he will no longer practise surgery on patients' skin. As such, he can do none of the harms he inflicted on his patients through his former method of practice.
We need to consider whether there is still a risk to the public from the continued practice of the respondent where he will carry out no surgery.

Determination

We here list what we consider the risks to the public were when the respondent last performed surgery and which of those risks, if any, still remain real or potential.
We consider the risks to the public at the time the respondent last practised surgery were as follows: 1. The lack of competent skill to carry out the surgery in a way which was at the standard reasonably expected of a practitioner with comparable training and experience to that of the respondent. 2. A demonstrated lack of concern for the care of his patients to an acceptable level. This was indicated by: 1. having patients wait an hour or more after injecting local anaesthetic into the site of the procedure about to be undertaken; 2. having his patient walk bare foot from one part of his rooms to another after having local anaesthetic injected into the foot; 3. allowing patients to drive a motor vehicle a short while after a procedure; 4. not obtaining proper and informed consent to a procedure; 5. removing lesions which did not require removal; 6. making incisions which were much wider and deeper than was necessary or appropriate; 7. failing to obtain a biopsy before procedures were carried out to remove lesions; 8. failing to refer patients for specialist treatment; 9. failing to have some patients undergo their surgery in a hospital. 1. Failure to make proper recordings in a patient's medical notes. 2. Making claims for Medicare payments which were not undertaken or wrongly numbered. 3. Failure to recognise his own ability to undertake some procedures because of his lack of knowledge or experience or both. 4. Failure to call upon expert medical services to care for some patients. 5. Failure to inform patients that they could be referred to a specialist. 6. Failure to diagnose which lesions needed to be removed and which were benign and did not require medical attention. 7. Failure to inform patients that some procedures were not urgent thus enabling them to consider when and if they actually required the procedure. 8. Failure to obtain properly informed consent to procedures he was to undertake. 9. Failure to communicate clearly with his patients.
The above list is not exhaustive. It does however, set out the major problems which were created by the respondent's practice.
As can be seen, the list of identified failures is not confined to the performance of surgical procedures. There are a number of identified risks which could still be engaged in by the respondent if he continues to practise outside of a surgery. The manner of practice formerly engaged in by the respondent was hallmarked by his supreme confidence in his own abilities and what seems to be a concerted effort to keep the patients within his own surgical practice rather than refer those patients, who were in need of surgical skills above those which the respondent reposed. We identify the following aspects of the respondent's former practice which would still, in our view, remain a risk to patients who might seek his services: 1. Poor record keeping; 2. Reluctance to refer patients to specialist treatment where that is clearly what they need; 3. Over-confidence in his own ability as a medical practitioner; 4. Failure to provide adequate and sufficient medical advice to patients so that they can be properly informed about their medical conditions the subject of consultation; 5. Poor communication skills with his patients; 6. A degree of care for his patients which is below an acceptable standard; 7. A failure to make the proper numbered claim for a fee to Medicare; 8. The making of claims for Medicare item numbers which were not undertaken.
Having identified the risks which continue, the question is whether those risks are such that a cancellation or suspension of registration is required to protect the safety of the public, or whether the imposition of conditions would provide that safety net.
The risks which are identified as ongoing risks can, in our view, be reduced to an acceptable level and probably overcome as concerns through the imposition of strict conditions on the respondent's registration. We are also satisfied that the events which gave rise to the section 150 hearing and consequent orders have had a profound effect upon the respondent. We accept he has displayed contrition for his conduct, which reflects genuineness and a desire to ensure he practises medicine safely in the future and does not cause harm to his patients. He has sought out psychological services and will in the future continue to engage with same, thus allowing for the further development of insight and a deeper understanding of the requirements for practice as a medical practitioner. We accept he is very motivated to be a good and safe medical practitioner.
The HCCC has submitted that conditions 1, 2, 3 and 4 of the conditions which are currently imposed on the registration of the respondent should be made "critical compliance conditions" pursuant to s 149A(4) and (5) of the National Law. Section 149A is as follows: 149A General powers to caution, reprimand, counsel etc [NSW] (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal. … (4) If the Tribunal makes an order or imposes a condition on the registered health practitioner's or student's registration, the Tribunal may order that a contravention of the order or condition will result in the practitioner's or student's registration being cancelled. (5) The order or condition concerned is then a critical compliance order or condition.
We have considered this application by the HCCC. The respondent has not made any submission which directly addresses the application. We would not want the Medical Council, as the "relevant body" overseeing the respondent's compliance with the conditions we will impose, to have no discretion in that role. There may be an occasion where there has been a breach of the conditions which is attended by a reasonable and quite acceptable reason. We would not wish to have such a circumstance give rise to further proceedings in one forum or another, which would incur unnecessary expense for all concerned. As a result we will not make compliance with the conditions "critical compliance conditions" as requested.
If the imposition of conditions upon the registration of the respondent will keep the public safe in the future, so far as his practise of medicine is concerned, what then should the Tribunal do to address matters of general deterrence for medical practitioners and the public confidence in the medical profession as a whole?
The HCCC says only cancellation or suspension of registration will serve those ends. The respondent says the imposition of a "reprimand" will also serve that end. The respondent says a reprimand is shown on the registration details of a practitioner who has such an order. The registration details are kept by Ahpra and as such is a public record. Further, the mandatory constraint upon his ability to practise surgery and to otherwise curtail his work hours and patient numbers will also serve as a deterrent to the profession as a whole.
Part of the evidence relied upon by the HCCC is a letter dated 7 January 2020 to the respondent from the Medical Council. The letter advises that a Medicare Australia data compliance review has taken place and that those records show the respondent had seen 31 patients on both 1 July and 22 July 2019. He had also worked more than five days in any one week on one occasion (the week of 11 March 2019). The Medical Council called for a response from the respondent by 21 January 2020. No further action was taken against the respondent by the Medical Council which has been brought to our attention.
The "Summary of Specific Audit Findings" dated 6 November 2019 advised that there was no evidence the respondent had breached the conditions numbered 1 to 4. The conclusion stated as follows: "Dr Sharrad is an experienced GP, so his records are assessed against a standard expected of an experienced practitioner. His records meet the standard expected by the Medical Board of Australia's Code… and the Health Practitioner Regulation (NSW) Regulation 2016. All the records contain enough information to allow another medical practitioner to continue management of the patient."
This report illustrates that after 11 months of working under the conditions imposed on his registration, the respondent's compliance with the conditions was seen as satisfactory. There is nothing further from the Medical Council to suggest that has changed.
We are not satisfied the respondent's insight to the problems he faced in the conduct of his practise of medicine is yet at a stage where we could be satisfied no further counselling and education is necessary, however, those are matters which can be undertaken as the respondent continues to practise in the restricted manner he currently does. His practise is supervised, with the supervisor(s) alerted to the particular areas of concern for the Medical Council and the Tribunal regarding his past conduct.
We have considered whether a reprimand alone would be an adequate protective order in this matter. On one level the reprimand would serve a purpose required in relation to deterrence and maintaining the confidence of the public in the medical professional generally. The question we have struggled to answer is whether it is a sufficiently strong message given the conduct of the respondent that we have heard about in this hearing. The conduct of performing unnecessary surgery on a patient is a matter of grave concern to us. That action not only evidences ignorance in relation to identification of skin lesions, but also raises for consideration the impact upon a patient of having to undergo an invasive procedure about which they may have been traumatised. It also raises as a concern about the possibility of infection following the procedure and the bearing of pain and further medical procedures/attention in order to address that issue if it arose.
On balance, we are of the view that a reprimand alone is not a sufficient protective order given the particular facts of this case. We are of the view that a period of suspension should also be imposed.
Both the HCCC and the respondent have submitted that, should the Tribunal consider suspension rather than cancellation is an appropriate order, then the period the Tribunal should consider imposing is six months along with a reprimand and the imposition of conditions.
We have considered the appropriateness of a three-month, six-month and/or twelve-month period of suspension. We consider that three months is not really sufficient in length to meet the required outcome of real deterrence and protecting the public interest. We consider that 12 months is excessive in the circumstances of this case. Whilst we are predisposed to accept each of the parties' suggestions that the period of suspension should be six months, we consider a time just short of that to be the limit of what is necessary and appropriate. We propose the suspension period be five months.
The period of suspension, along with a requirement that the respondent continue to have conditions placed upon his registration in the nature of those currently in operation, where the Medical Council is to have ongoing oversight of the conditions and compliance with same, are sufficient to act as a deterrent and also uphold the confidence of the public in the medical profession.
We note from the Ahpra & National Boards Evidentiary Certificate dated 27 October 2020 that the respondent's registration was suspended on 13 February 2018 and that suspension was not lifted until 19 November 2018, when conditions were imposed which operated until 15 January 2019. That information is important because it must be seen as part of the process of upholding the public confidence in the medical profession. It is hard to see how the public at large would not have seen that action by the Medical Council as timely and appropriate. That action also bolsters the deterrent requirement. Medical practitioners in NSW will know by that action and these reasons that conduct of the nature exhibited by the respondent will be dealt with seriously by the Medical Council (the controlling body) and that conduct of that nature will be responded to with swift and significantly impactful orders.
On 15 January 2019 the Medical Council revoked the earlier imposed conditions and imposed conditions, included at [46], which are still operative at the date of the hearing before us.
The respondent had asked that the Tribunal make a suppression order of his name because of the possible adverse impact upon his children, in particular his daughters, who he said had been very concerned about the publicity of the action taken against the respondent by the Tribunal.
The final submission of the respondent does not address a request to ask for such an order and we conclude it has been abandoned.

Costs and Orders

The HCCC provided a submission which addressed their costs application. The respondent specifically said no submission would be made opposing the costs submission of the HCCC.
The submission of the HCCC in relation to their costs is as follows: "79. The Applicant seeks its costs. 80. Under Schedule 5D, clause 13 of the National Law, the Tribunal has the power to require the Commission, a registered health practitioner or any other person entitled to appear before the Tribunal to pay the costs of another party, where so decided by the Tribunal. 81. It is commonly held that costs will follow the event (HCCC v Dinakar [2009] NSWMT 8; HCCC v Dr Mazzaferro [2011] NSWMT 9 at [67]). 82. In HCCC v Dr Mazzaferro, the Tribunal affirmed the principles governing the award of costs by reference to the High Court's comments in Latoudis v Casey (1990) 170 CLR 534. Indeed, at 543, Mason CJ set out that costs are not "awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which they have been put by reason of the legal proceedings". The Tribunal in Mazzaferro also noted (at [69]) that the Court of Appeal has held that the principles in Latoudis v Casey "should be applied by all Tribunals such as the Medical Tribunal" (see Ohn v Walton (1995) 36 NSWLR 77). 83. In Health Care Complaints Commission v Dr Perroux (No 2) [2011] NSWMT 15 at [10], affirmed in Barratt v Medical Board of Australia [2012] NSWMT 22 at [180], held that a respondent's impecuniosity "is generally no reason to deny a successful complainant a favourable costs order". 84. Accordingly, not only is the onus on the losing party to establish a basis for any departure from the usual rule (Waterman v Gerling Australia Insurance Co Pty Ltd (No 2) [2005] NSWSC 1111 at [10]; NSW v Stanley [2007] NSWCA 330 at [24]) but, given an order for costs operates to compensate the successful party, this general presumption will only be displaced where there has been some sort of disentitling conduct on the part of the successful party (Arian v Nguyen [2001] NSWCA 5 at [36]). 85. The Applicant submits that there is no disentitling conduct on its part. The usual rule should be followed. The Respondent should be ordered to pay the Applicant's costs in these proceedings. 86. The Tribunal has power to make a lump sum costs order. The Applicant submits this is an appropriate case for such an order and that it is the most efficient and desirable way of dealing with costs. 87. Attached to these submissions is a schedule of costs calculated for work done by the Applicant. In addition, counsel's fees for conferences, preparation, the hearing and preparation of submissions amount to $11,990 inclusive of GST. Counsel's fees are calculated at the very modest rates of $240 per hour plus GST and $1,700 per day plus GST paid by the Applicant. 88. Having regard to the rates charged and the overall quantum of the costs, compared to the amount of material, the breadth of the issues and the length of the hearing, the Applicant submits its costs are entirely reasonable and should be ordered to be paid in full by the Respondent. The total sum sought is $36,433.32"
The HCCC provided a supplementary submission which addressed additional costs which had been omitted from the earlier submission. In the latter submission the HCCC said: "After the filing of the original submissions dated 30 November 2020 a further invoice from Dr Keir was received in relation to the preparation for hearing before the Tribunal. Therefor the original sum for costs is now incorrect. The applicant submits an amended sum of $39,073.32 along with a supplementary costs Annexure to reflect the updated total."
We have considered the submission of the HCCC on costs and we accept that the HCCC is entitled to a costs order in the circumstances of this case. There is no challenge to the quantum claimed and accordingly we will make an order for the payment of costs in the amount sought.
We make the following protective orders: 1. The respondent's registration as a medical practitioner be suspended for a period of five months, such period to commence seven days after the date of this order. 2. The respondent is reprimanded for his conduct in the practice of medicine in relation to each of the complaints made by the Health Care Complaints Commission against him. 3. The following conditions are imposed upon the respondent's registration. Such conditions are to be permanently attached to his registration and may only be varied by the Tribunal or the Medical Council of New South Wales. The Medical Council is to have the responsibility of overseeing the operation of the conditions and the compliance with same. 1. To not undertake any treatment that involves cryotherapy, cautery, suturing, laser treatment or the cutting of the skin for biopsy or excision. This includes any procedure not listed above that breaks the integrity of the skin. The practitioner can administer immunisations. 2. To treat no more than 30 patients in any one day. 3. To practise no more than 5 days per week. 4. To practise only in a group practice approved by the Medical Council of New South Wales where there is at least one other registered medical practitioner (excluding the subject practitioner) and where there is always one other registered medical practitioner on site. 5. 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 subsequently determined by the appropriate review body. The appropriate review body is the Medical Council of New South Wales. a. The Council-approved supervisor must have Specialist General Practitioner registration. b. The terms of the Medical Council's "Compliance Policy - Supervision" are varied so that supervision reports are to be provided to the Medical Council on a monthly basis for the first three months and then every three months. c. At each supervision meeting, which is to take place monthly for three months from the date hereof and then every three months, the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: i. Communication with patients. ii. Clinical performance. iii. Medical records reviews. d. To authorise the Medical Council to provide the proposed and approved supervisor(s) with a copy of the written decision which led to the imposition of this condition. e. Not to practise until a supervisor has been approved by the Medical Council. 6. To submit to audits of his medical practice, by a person or persons nominated by the Medical Council of New South Wales and: a. The audits are to be held as required by the Medical Council. b. The auditor(s) is to examine and assess the following aspects of his practice including: i. Infection control standards. ii. Medical records to assess his compliance with good medical record keeping standards and legislative requirements and compliance with conditions. iii. Inspection of facilities. c. To authorise the auditor(s) to provide the Medical Council with a report on their findings. d. To meet all costs associated with the audits and reports. 7. 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. 8. To attend for treatment by a general practitioner of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: i. Failure to attend for treatment. ii. Termination of treatment. iii. A significant change in health status (including a significant temporary change). b. must provide the Medical Council with the professional details of the treating practitioner. 9. To attend for treatment by a psychologist of his choice. The frequency of treatment is to be determined by the treating practitioner. The practitioner: a. is to authorise the treating practitioner to inform the Medical Council of New South Wales of any of the following: i. Failure to attend for treatment. ii. Termination of treatment. iii. A significant change in health status (including a significant temporary change). b. must provide the Medical Council with the professional details of the treating practitioner. 1. The respondent is to pay the costs of the Health Care Complaints Commission in the sum of $39,073.32. Such costs are to be paid within 28 days of the date of this order, or such later time as the respondent may negotiate with the HCCC.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2021

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Cases Cited (24)