Health Care Complaints Commission v Sultan

(b) developing insight and implementing strategies to maintain appropriate professional boundaries in the future; (v) authorise the Council-approved practitioner to report, in a Council approved format, to the Council every six months about the fact of contact, and to notify the Council immediately if there is any concern or issue in relation to the practitioner's compliance with any condition. (f) To forward evidence to the Medical Council of New South Wales within 14 days of this decision, that he has provided a copy of the Tribunal's decision dated 30 March 2017 and this decision to the practice manager and/or principal of practice in any place that he works (including any locum agencies and hospitals). (g) Within 14 days of a change in the nature or place of his practice, the practitioner is to forward evidence to the Medical Council of New South Wales that he has provided a copy of the Tribunal's decision dated 30 March 2017 and this decision to the practice manager and/or principal of the practice in any place that he works (including any locum agencies and hospitals). (3) The practitioner may continue to practise as a general practitioner at Gladstone Super Clinic pending the approval process set out in practice condition 2, provided there is always one other medical practitioner on site and he does not conduct home visits or nursing home visits. (4) The Medical Council of New South Wales is the appropriate review body for the purposes of Division 8 of Part 8 of the Health Practitioner Regulation National Law (the National Law). However, in circumstances where the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 inclusive of the National Law are to apply, so that a review of his practice conditions can be conducted by of the Medical Board of Australia. (5) The respondent will pay the applicant's costs of these proceedings. Catchwords: Medical practitioner - Unsatisfactory professional conduct - Conducting examinations on a social visit following surgery - Practitioner not a member of surgical team - Sexual arousal - Removal of cannula - Failure to make notes Legislation Cited: Health Practitioner Regulation National Law (NSW) (2009 No. 86a) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Aamer Sultan (Respondent) Representation: Counsel: Ms Lowson (Applicant) Mr Lynch (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) Avant Law (Respondent) File Number(s): 2016/00378622, 1620059 Publication restriction: As for Stage I Decision (30 March 2017)

INTRODUCTION

1. Following a hearing over a number of days in February and March 2017 the decision of the Tribunal was published on 30 March 2017. In that decision the Tribunal made findings of unsatisfactory professional conduct against Dr Aamer Sultan (the respondent) in respect of conduct at the Shoalhaven District Hospital in October 2013. The Tribunal was not satisfied a case of professional misconduct had been made out against him as was alleged by the Health Care Complaints Commission (the applicant).
2. On 1 March 2017, when the hearing first concluded, counsel asked that Stage II proceedings be conducted following the decision of the Tribunal becoming known.
3. The Principal Member was overseas in April and so 17 May was fixed for the Stage II hearing to suit the availability of counsel and other members of the Tribunal. However, it later emerged that counsel were not available on that date and so in April, on application to the Deputy President, that hearing was vacated and 22 June was fixed for the second stage of the hearing. On that day evidence was called and submissions made. Once again, the Principal Member was overseas and was away for the balance of June and the month of July. These matters are recited to explain the delay in giving the Tribunal's decision consequent upon the findings earlier made and accepted by the parties.
4. As is apparent from the decision published on 30 March 2017, much of the substance of the complaint against the respondent was admitted by him and the only matters considered by the Tribunal in the first stage of the proceedings were those not admitted by him, or in respect of one, admitted with qualification. These are recited in that decision.
5. So that these reasons may be understood independently of the decision in the Stage I proceedings it is appropriate to refer to some of what was there said:
6. In 2013 Patient A was a regular attendee at Shoalhaven Hospital. Relevantly, she first came under the care of the respondent on 4 October 2013. He treated her for hidradenitis suppurativa 1, a disease that causes lymph nodes to become inflamed and infected with cysts. Thereafter, she attended the Emergency Department at the hospital on 5 October, 6 October, 8 October, and 10 October 2013 to have wounds on her underarms cleaned and dressed. She was seen and treated by the respondent on each occasion. On 4 October 2013 the respondent's medical records note that she had reported "abdo aches" and earlier, in April 2012, she was admitted to the hospital with abdominal pain and vomiting.
7. On 5 October 2013 the respondent prescribed Tramadol for Patient A, and, having ascertained that she lacked sufficient funds to have the prescription filled, in the presence of a nurse, gave her $10 from his own wallet to enable her to do so. He indicated to Patient A that repayment was not expected. This was not the first time the respondent had given money to a patient to pay for filling prescriptions.
8. On 10 October 2013 Patient A was seen by the respondent in the Emergency Department and was subsequently admitted as an inpatient for surgery. The respondent was not a member of the surgical team charged with the treatment of Patient A after her admission on 10 October 2013. When he saw her in the Emergency Department, she reported an improvement in her abdominal pain.
9. In the period between 10 October and 17 October 2013 the patient had complained among other things of a cough and a dry mouth whilst an inpatient. At about 10.30 on the evening of 10 October 2013 the respondent paid a social visit to Patient A in the surgical ward following the conclusion of his shift in the Emergency Department. She was discharged from the hospital on 18 October 2013.
10. On 21 October 2013, however, she was readmitted for wound care and for further surgery. Following surgery on 24 October 2013 Patient A was allocated to a bed in the surgical ward and was under the care of a surgical team. The respondent was not a member of the surgical team. After she had been returned to the ward following surgery, Patient A took herself to the Emergency Department with the intention of thanking the respondent for his earlier assistance and care. At the time, because he was busily occupied, she was unable to see the respondent and having waited something in the order of an hour without having seen him and being unable to thank him, she returned to the ward. Before returning to the ward, she asked the receptionist in the Emergency Department to let the respondent know that she had called to thank him.
11. Having received that message, the respondent decided to pay a social visit to Patient A upon completion of his shift. He arrived at the ward sometime after 10.30pm at which time his shift finished. The ward in which Patient A was accommodated is a two bed room and another patient was present at the same time.
12. Patient A was asleep when the respondent arrived at the ward and soon woke or was woken by him. A conversation ensued following which the respondent conducted chest and abdominal examinations and later removed a cannula from Patient A's arm. In the course of examining her chest his hand came into contact with her bare breast under her gown and he developed an erection, he moved away from the patient and motioned towards his erect penis. She took herself to the bathroom and upon her return the respondent was still present. Further elucidation of what occurred appears in the background to Complaint One and in the Statement of Agreed Facts (AX 3) which is set out in full beginning on page 10 of the earlier decision.
13. Much of what occurred in the ward was not the subject of dispute and those matters that were not admitted, or admitted with qualification, were considered in the Stage I decision.
14. Following a complaint by the patient, the respondent was charged under s 61L of the Crimes Act (NSW) 1900 with committing an act of indecency. He pleaded not guilty to the charge and was acquitted by a Magistrate in the Local Court at Nowra.

PARTICULARS CONSIDERED IN STAGE I DECISION

1. The second particular of Complaint One was as follows: 1. (2) Sometime between 10:30pm and midnight on 24 October 2013, in circumstances where he was not part of Patient A's treating team, the practitioner woke Patient A and: 1. Informed her he wanted to check her "breathing and stomach", 2. proceeded to conduct a chest examination of Patient A; 3. . . . 4. engaged in the conduct referred to at (a) and (b) above when there was no clinical basis or need to conduct such an examination at the time it was carried out. Particular 2(d) was not admitted but the Tribunal found it established
2. Particular 3 was as follows: 1. (3) During the course of the chest examination conducted on 24 October 2013, the practitioner failed to maintain appropriate professional boundaries in that he sat on Patient A's hospital bed, positioning himself very close behind Patient A, and: 1. used his right hand to position a stethoscope under Patient A's hospital gown beneath her bare right breast; 2. brushed his hand across Patient A's bare right breast on more than one occasion and up to five times, in circumstances where it was not necessary for him to have contact with Patient A's breast to conduct the examination; 3. became sexually aroused; 4. engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions at (a) and/or (c) above alone or in any combination. Particular (3)(b) was admitted with qualification.
3. In paragraphs 36 and 37 of the Stage I decision the Tribunal gave its reasons for concluding that that particular had been established.
4. Particular (3)(d) was not admitted and the Tribunal was not satisfied that a sexual motivation had been proved but otherwise was of the view that particular (3)(d) had been established.
5. Particular 4 was as follows: 1. (4) On 24 October 2013, immediately following the chest examination and after having become sexually aroused, the practitioner failed to maintain appropriate professional boundaries in that he: 1. stood up and remained in close proximity to Patient A; 2. . . . . 3. made a movement with his hand in the area of his penis; 4. engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions at (a) and (c) above alone or in any combination.
6. The Tribunal was not satisfied that particular (4)(a) had been established.
7. The Tribunal was not satisfied that particular (4)(d) had been established, being of the view that the respondent's erection was involuntary and spontaneous.
8. Complaint Two repeated the particulars in Complaint One and the Tribunal's findings reflected those in respect of Complaint One.
9. Complaint Three was one of professional misconduct in respect of which the Tribunal was of the view that that complaint had not been established.
10. Many pages of written submissions, for which we are grateful, were made available to the Tribunal, but because of the agreement of the respondent that most of the orders sought by the applicant are appropriate it is unnecessary to refer to those submissions other than peripherally
11. The precise terms of the orders sought by the applicant are as follows: 1. The practitioner is reprimanded: 2. The practitioner's registration is subject to the following practice conditions: 1. Not to undertake solo practice for a period of 3 years from the date of these orders. 2. To practise only in a group practice approved by the Medical Council of New South Wales where there are at least 2 registered medical practitioners (excluding the subject practitioner) and: 1. Where there is always one other registered medical practitioner on site 1. Not to conduct home visits or nursing home visits 2. To nominate an experienced general practitioner to act as his professional mentor for approval by the Medical Council of NSW in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each mentoring meeting the practitioner is to include discussion of the following: 2. professional and personal development as a registered medical practitioner 3. the issues highlighted in this decision and the Tribunal's decision dated 30 March 2017 4. maintaining appropriate professional boundaries 5. communication with colleagues and patients 6. any personal and/or medical practice issues that may arise 7. To authorise the mentor to report, in an approved format, to the Medical Council of NSW every three months about the fact of contact, and to inform the Medical Council if there is any concern about his professional conduct, or personal wellbeing 8. To be mentored for a minimum period of 12 months from the date of the first mentor meeting and as subsequently determined by the Medical Council 9. To authorise the Medical Council of NSW to provide a copy of these Orders and the Tribunal's decisions dated [insert date of decision] and 30 March 2017 to the approved mentor 1. To complete within 12 months of [insert date of decision] the Medical Ethics course organised by Monash University 1. Within 4 months of [insert date of decision] he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course. 2. Within 4 weeks of completing the abovementioned course, he is to provide documentary evidence to the Medical Council that he has satisfactorily completed the course. 3. In the event that the Medical Ethics course organised by Monash University is unavailable, he must propose to the Medical Council for approval a similar course to be undertaken in accordance with the requirements of this condition by no later than 3 months of [insert date of decision]. 1. To attend a psychiatrist or clinical psychologist approved by the Medical Council of NSW for the purpose of counselling sessions for a minimum period of 12 months from the date of the first consultation. The practitioner is to: 1. nominate a psychiatrist or clinical psychologist for Council approval within 28 days of [insert date of decision]; 2. meet the Council-approved practitioner within one month of being advised by the Council that his nominated practitioner has been approved and thereafter to meet at a frequency determined by the Council-approved practitioner; 3. provide the Council-approved practitioner with a copy of these Orders and the Tribunal's decisions dated [insert date of decision] and 30 March 2017; 4. ensure that the Council-approved practitioner is aware that the counselling sessions are to have a particular focus on: 5. identifying underlying factors including any personality and/or behavioural traits that may have contributed to conduct identified in the Tribunal's decision dated 30 March 2017 6. developing insight and implementing strategies to maintain appropriate professional boundaries in the future 7. authorise the Council-approved practitioner to report, in a Council approved format, to the Council every three months about the fact of contact, and to notify the Council immediately if there is any concern or issue in relation to the practitioner's compliance with any condition. 1. To forward evidence to the Medical-Council of NSW within 14 days [insert date of decision], that he has provided a copy of these Orders and the Tribunal's decisions dated [insert date of decision] and 30 March 2017 to the practice manager and/or principal of practice in any place that he works (including any locum agencies and hospitals). 2. Within 14 days of a change in the nature or place of his practice, the practitioner is to forward evidence to the Medical Council of NSW that he has provided a copy of these Orders and the Tribunal's decisions dated [insert date of decision] and 30 March 2017 to the practice manager and/or principal of the practice in any place that he works (including any locum agencies and hospitals). 3. The practitioner is to bear responsibility for any costs incurred in meeting these conditions 1. The practitioner may continue to practice as a general practitioner at Gladstone Super Clinic pending the approval process set out in practice condition 2, provided there is always one other medical practitioner on site and he does not conduct home visits or nursing home visits 2. The Medical Council of NSW is the appropriate review body for the purposes of Division 8 of Part 8 of the National Law. However, in circumstances where the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, section 125 to 127 inclusive of the Health Practitioner Regulation National Law are to apply, so that a review of his practice conditions can be conducted by the Medical Board of Australia.
12. Of these proposed orders all but 2(a) and 3 are consented to. In respect of 2(a) the period agreed to by the respondent is two years rather than the three years sought. We are inclined to accept the orders to which the respondent has agreed. The principal reason being that during the period the respondent has worked in Gladstone, to which he returned following the consideration of this complaint before proceedings were instituted in the Tribunal, no complaint has been made against him and Dr Bird, with whom he works closely, supervises his activity and is of the view his behaviour and conduct are exemplary.

ORDERS

1. The orders which we make are not to be punitive. We are required to consider the protection of the community and the reputation of the medical profession, as well as the maintenance of public confidence in the profession.
2. Accordingly, the orders we make are these: 1. The practitioner is reprimanded. 2. The practitioner's registration is subject to the following practice conditions: 1. Not to undertake solo practice for a period of two years from the date of these orders. 2. To practise only in a group practice approved by the Medical Council of New South Wales where there are at least two registered medical practitioners (excluding the subject practitioner). 3. To nominate an experienced general practitioner to act as his professional mentor for approval by the Medical Council of New South Wales in accordance with the Medical Council of NSW's Compliance Policy - Mentoring (as varied from time to time) and as subsequently determined by the appropriate review body. 1. At each mentoring meeting the practitioner is to include discussion of the following: (a) professional and personal development as a registered medical practitioner; (b) the issues highlighted in this decision and the Tribunal's decision dated 30 March 2017; (c) maintaining appropriate professional boundaries; (d) communication with colleagues and patients, and (e) any personal and/or medical practice issues that may arise. 1. The practitioner will authorise the mentor to report, in an approved format, to the Medical Council of New South Wales every three months about the fact of contact, and to inform the Medical Council of New South Wales if there is any concern about his professional conduct, or personal well being. 2. The practitioner will be mentored for a minimum period of 12 months from the date of the first mentor meeting and as subsequently determined by the Medical Council of New South Wales. 3. The practitioner will authorise the Medical Council of New South Wales to provide to the approved mentor a copy of the Tribunal's decision dated 30 March 2017 and this decision. 1. The practitioner will complete within 12 months of this decision the Medical Ethics course organised by Monash University. 1. Within 4 months of this decision the practitioner will provide evidence to the Medical Council of New South Wales of his enrolment in the abovementioned course. 2. Within 4 weeks of completing the abovementioned course, the practitioner will provide documentary evidence to the Medical Council that he has satisfactorily completed the course. In the event that the Medical Ethics course organised by Monash University is unavailable, he must propose to the Medical Council of New South Wales for approval a similar course to be undertaken in accordance with the requirements of this condition no later than 3 months of this decision. 1. To attend a psychiatrist or clinical psychologist approved by the Medical Council of New South Wales for the purpose of counselling sessions for a minimum period of 12 months from the date of the first consultation. The practitioner is to: 1. nominate a psychiatrist or clinical psychologist for Council approval within 28 days of this decision; 2. meet the Council-approved practitioner within one month of being advised by the Council that his nominated practitioner has been approved and thereafter to meet at a frequency determined by the council-approved practitioner; 3. provide the Council-approved practitioner with a copy of the Tribunal's decision dated 30 March 2017 and this decision; 4. ensure that the Council-approved practitioner is aware that the counselling sessions are to have a particular focus on: (a) identifying underlying factors including any personality and/or behavioural traits that may have contributed to conduct identified in the Tribunal decision dated 30 March 2017 (b) developing insight and implementing strategies to maintain appropriate professional boundaries in the future; 1. authorise the Council-approved practitioner to report, in a Council approved format, to the Council every six months about the fact of contact, and to notify the Council immediately if there is any concern or issue in relation to the practitioner's compliance with any condition. 1. To forward evidence to the Medical Council of New South Wales within 14 days of this decision, that he has provided a copy of the Tribunal's decision dated 30 March 2017 and this decision to the practice manager and/or principal of practice in any place that he works (including any locum agencies and hospitals). 2. Within 14 days of a change in the nature or place of his practice, the practitioner is to forward evidence to the Medical Council of New South Wales that he has provided a copy of the Tribunal's decision dated 30 March 2017 and this decision to the practice manager and/or principal of the practice in any place that he works (including any locum agencies and hospitals). 1. The practitioner may continue to practise as a general practitioner at Gladstone Super Clinic pending the approval process set out in practice condition 2, provided there is always one other medical practitioner on site and he does not conduct home visits or nursing home visits. 2. The Medical Council of New South Wales is the appropriate review body for the purposes of Division 8 of Part 8 of the Health Practitioner Regulation National Law (the National Law). However, in circumstances where the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, sections 125 to 127 inclusive of the National Law are to apply, so that a review of his practice conditions can be conducted by of the Medical Board of Australia. 3. The respondent will pay the applicant's costs of these proceedings.

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

Amendments 21 August 2017 - Spelling of Respondent's given name corrected under the 'Slip Rule' from 'Ammer' to 'Aamer' 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: 21 August 2017