Mahadik v Medical Council of New South Wales - [2024] NSWCATOD 114 - NSWCATOD 2023 case summary — Zoe

NSWNSWCATOD

Mahadik v Medical Council of New South Wales

[2024] NSWCATOD 114

NCAT Occupational|2023-07-26

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Source facts

Court

NCAT Occupational

Decision date

2023-07-26

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

to undertake any cosmetic surgery proceedings until a supervisor has been approved by the Medical Council of NSW, such approval to be provided within six weeks of the name/s of the supervisor/s being provided by the Practitioner (except for the procedures excluded by condition 2(b)); (g) no cosmetic procedure is to be performed unless the Practitioner has first discussed it with his supervisor at a supervision meeting (except for the procedures excluded by condition 2(b)). 3. Within 7 days of the end of each calendar month, the Practitioner is to provide the Medical Council of NSW with records of all procedures performed in the last month. The records must include the following: (a) the patient's full name and date of birth; (b) the date and time of each procedure; (c) all MBS/Medicare item numbers; (d) the name and nature of the surgical procedure; (e) the location of the surgical procedure; and (f) any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or post-operative infection. 4. Within 12 months the Practitioner is to have observation sessions observing 5 phalloplasties performed by a specialist surgeon registered and approved by the relevant authority in the United Kingdom or the United States of America: (a) the Practitioner must be physically or virtually present in theatres and directly observing the overseas specialist surgeon undertaking the phalloplasty surgical procedure(s) during the entire episode of surgery; (b) within 4 weeks of the completion of the observation sessions, the Practitioner is to provide a report to the Medical Council of NSW outlining the date, the name of the overseas specialist surgeon who performed the phalloplastic surgery which he observed, the location at which such surgery was undertaken, details of the surgery, its duration and any other information relevant to the surgery; (c) details of what the Practitioner learnt from his observation of the sessions, and how that will impact his practice (including how the Practitioner will incorporate his learnings into future practice); (d) the Practitioner is to authorise the Medical Council of NSW to approach the overseas specialist surgeon to provide his or her own report to the Council with respect to the surgery observed by the Practitioner and, if applicable, any concerns, discussions, feedback or other observations regarding the sessions and the Practitioner's progress with phalloplasty; (e) the Practitioner is to authorise the Medical Council of NSW to provide any overseas specialist surgeon with a copy of the Tribunal's decision imposing this condition on the Practitioner's registration and any other relevant report; (f) the Practitioner is responsible for any costs incurred in relation to the period of observation and any reports pursuant to this condition. 5. The Practitioner is 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. 6. The Practitioner is to undergo a Performance Assessment with a Council appointed assessor. (3) That the costs of these proceedings are reserved. (4) Pursuant to cl 7 of Sch 5D of the National Law, the publication of the names of any patient referred to in the proceeding is prohibited. Catchwords: OCCUPATIONS - medical practitioners - practice conditions imposed on registration - appeal of decision pursuant to s 159 of the Health Practitioner Regulation National Law (NSW) - variation of practice conditions imposed - whether surgeries performed were below the standard reasonably required - whether post-operative assessments were below the standard reasonably required Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Medical Council of New South Wales v Smithson [2021] NSWCA 53 Mohareb v State of New South Wales [2024] NSWCA 69 Category: Principal judgment Parties: Parag Jayant Mahadik (Appellant) Medical Council of New South Wales (Respondent) Representation: Counsel: R Mathur SC (Appellant) A Petrie (Respondent)

[3]

Introduction

On 14 December 2022 the Medical Council of NSW (Council) informed Parag Jayant Mahadik (Practitioner) of the reasons for its decision on 4 November 2022, to impose conditions on the Practitioner's registration pursuant to s 150(1)(b) of the Health Practitioner Regulation National Law (NSW) 2009 (NSW) (National Law). The conditions obliged the Practitioner: "1 To obtain Medical Council of NSW approval before changing the nature or place of his practice. 2 To perform all major surgical procedures in a Council approved accredited day facility or hospital approved by the Medical Council of NSW. 3 To practice under Category A supervision when undertaking or performing any cosmetic surgery procedures 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: (i) be either: ● a registered Specialist surgeon with the Medical Board of Australia who has cosmetic surgery experience; or ● a registered specialist plastic surgeon with the Medical Board of Australia. (ii) be present in theatres and directly observing the practitioner performing all cosmetic surgery procedure(s) for the entire episode of surgery or duration of procedure. (b) The practitioner is not required to be supervised when undertaking the following: (i) non-invasive procedures: injectables, laser treatment, skin treatments, threads or skin cancer treatments; (ii) upper eyelid blepharoplasties; (iii) general plastic or reconstructive surgery. (c) Prior to each weekly supervision meeting, the practitioner must forward their upcoming theatre list to the Council-approved Supervisor for review and discussion. (i) the practitioner is to discuss the upcoming theatre list for cosmetic surgery procedures with the Council-approved Supervisor with respect to patient selection and appropriateness of procedure; (ii) the details of the discussion, review and feedback are to be included in supervision reports; (iii) the theatre lists must be included with monthly supervision reports as an appendix. (d) At each supervision meeting the practitioner is to: (i) review and discuss his practice with his approved Supervisor with particular focus on: ● patient selection ● operative technique ● clinical decision making ● medical records ● post-operative care ● Complications (including unplanned return to theatres, intro-operative and post-operative complications, and infection). (e) To authorise the Medical Council of NSW to provide the approved Supervisor(s) with a copy of the decision which imposed this condition. (f) Not to undertake any cosmetic procedures until a Supervisor has been approved by the Medical Council of NSW. 4 Within 7 days of the end of each calendar month, he is to provide the Medical Council of NSW with records of all procedures performed in the last month. The records must include the following: (a) the patient's full name and date of birth; (b) the date and time of each procedure; (e) all MBS/Medicare item numbers; (d) the name and nature of the surgical procedure; (e) the location of the surgical procedure; (f) any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any postoperative infection); and (g) for Cosmetic Surgery Procedures: the full name and signature of the Category A Supervisor who observe [sic] the practitioner undertake the procedure. 5 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. 6 To undergo a performance assessment."
On 11 January 2023 the Practitioner appealed against the decision of the Council pursuant to s 159(1)(b) of the National Law, which provides (s 159(3)) that an appeal be dealt with by way of new hearing and fresh evidence, or evidence in addition to or substitution for evidence that was before the Council. The appeal was heard on 24, 25, 26 July 2023, and 5 and 6 February 2024. The Tribunal then reserved its decision. These are the reasons for our decision. The transcript of the hearing in February 2024 having not become available, over which we have no control, has delayed the delivery of the Tribunal's decision.
At the commencement of the hearing, Senior Counsel informed the Tribunal that the Practitioner sought a variation of the conditions which the Council had imposed. At the commencement of the hearing Counsel informed the Tribunal that the Council sought to maintain the conditions which it had imposed in November 2022. The jurisdictional requirement to enliven s 150 created by s 150(1)(b) of the National Law was thus satisfied. By the conclusion of the hearing, and sensibly in our view, the ambit of disagreement between the parties had been considerably narrowed, although, as will be seen, important differences in their positions remained.
A document provided by Counsel for the parties to the Tribunal during the course of final submissions (Exhibit X1) set out the competing positions. The document recorded the Council's position, and the Practitioner's response to it with respect to each condition sought by the Council. Unless opposition is recorded, the Practitioner agrees to the conditions, which provide that he is obliged: 1 To obtain Medical Council of NSW approval before changing the nature or place of his practice. [The practitioner opposed that condition and sought in lieu "To advise the Medical Council of NSW in writing at least seven days prior to changing the nature or place of business".] 2 To practice under Category C supervision when undertaking or performing any cosmetic surgery procedures in accordance with the Medical Council of NSW's compliance policy - supervision (as varied from time to time and as subsequently determine by the appropriate review body: a) The Council approved supervisor must: i. Be either: ● a registered Specialist surgeon with the Medical Board of Australia who has cosmetic surgery experience; or ● a registered Specialist Plastic Surgeon with the Medical Board of Australia. b) The practitioner is not required to be under Category C Supervision for the following: i. non-invasive procedures: injectables, laser treatment, skin treatments, threads or skin cancer treatment; ii. upper eyelid blepharoplasties; iii. general plastic or reconstructive surgery. c) Prior to each fortnightly supervision meeting the practitioner must forward their upcoming theatre list to the Council approved supervisor for review and discussion. i. the practitioner is to discuss the upcoming theatre lists for cosmetic surgery procedures with the Council approved supervisor with respect to patient selection and appropriateness of procedure; ii. a summary of the details of discussion, review and feedback are to be included in supervision reports in accordance with the Council approved format; [The practitioner opposed this condition.] iii. the theatre list must be included with monthly supervision reports as an appendix. d) At each supervision meeting the practitioner is to i. review and discuss his practice with his approved supervisor with particular focus on: ● patient selection (including preoperative assessment and consent) ● to operative technique ● clinical decision making ● medical records ● post-operative care ● Complications (including unplanned return to theatres, intraoperative and post-operative complications, and infection). e) To authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition. f) Not to undertake any cosmetic surgery procedures until a supervisor has been approved by the Medical Council of NSW (except for the procedures excluded by condition 3 b)). [The practitioner opposed that condition and sought in lieu that he was "not to undertake any cosmetic surgery procedures until a supervisor has been approved by the Medical Council of NSW such approval to be provided within 6 weeks of the name/s of the supervisor/s being provided by the Appellant (except for the procedures excluded by condition 3b))".] g) No cosmetic procedure is to be performed unless he has first discussed it with his supervisor at a supervision meeting (except for the procedures excluded by condition 3(b)). 3 Within 7 days of the end of each calendar month, he is to provide the Medical Council of NSW with records of all procedures performed in the last month. The records must include the following: a. the patient's full name and date of birth b. the date and time of each procedure c. all MBS/Medicare item numbers d. the name and nature of the surgical procedure e. the location of the surgical procedure; and f. any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or any post-operative infection) 4 Within 12 months of being approved by the Medical Council of NSW, the practitioner is to have observation sessions observing 5 phalloplasties of a registered specialist surgeon approved by the Council. a) The Council approved surgeon must: i. Be either: ● a registered Specialist Surgeon with the Medical Board of Australia who has cosmetic surgery experience; or ● a registered Specialist Plastic Surgeon with the Medical Board of Australia. ii. The Council approved surgeon does not need to be the same person as the Council approved supervisor in condition 3. b) The practitioner must be present in theatres and directly observing the Council approved surgeon undertake [sic] the phalloplasty surgical procedure(s) during the entire episode of surgery. c) Within 4 weeks of the completion of the observation sessions, the practitioner is to provide a report to the Medical Council of NSW outlining the details of each surgical procedure observed, what he learnt and how that will impact his practice (including how the practitioner will incorporate his learnings in a future practice). i. Prior to the practitioner submitting the reflective report to the Medical Council of NSW, the practitioner must submit the reflective report to the Council approved surgeon for review and discussion. d) Within 4 weeks of the completion of the observation sessions, the practitioner is to authorise the Council approved surgeon to provide their own report to the Council. ii. The report must include their comments on the content and authenticity of the practitioner's report, confirmation of the dates and details of all observed procedures, and outline any concerns, discussions, feedback or other observations regarding the sessions and the practitioner's progress with phalloplasty. e) To authorise the Medical Council of NSW to provide (the) proposed and approved surgeon with a copy of the decision which imposed this condition on the practitioner's registration and any other relevant report. f) The practitioner is responsible for any costs incurred in relation to the period of observation (and) any subsequent reports. [The practitioner opposed the imposition of any part of condition 4.] 5 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. 6 To undergo a performance assessment. [The practitioner opposed the requirement to undergo a performance assessment.]"
As is apparent from their terms, the competing contentions relate in some ways to matters which appear more matters of form than of substance (condition 1, condition 2(c)(ii) and, arguably, 2(f)), whilst the Practitioner's opposition to condition 4 proposed by the Council raises matters of obvious substance. The requirement of a performance assessment is not a purely formal matter, although, if the Council secured condition 4, it is difficult to see the necessity for condition 6.
Although the ambit of the dispute which the Tribunal must determine is comparatively narrow, determining the appropriate protective orders is less than simple or straightforward.

[5]

Background

At all material times the Practitioner had general registration as a medical practitioner, but was permitted to practice plastic surgery as a non-specialist. After completing his MBBS, the Practitioner gained entry to a general surgery program in India and qualified for his MS in General Surgery in 2002. The Practitioner then entered into a plastic surgery fellowship program which lasted 5 years and obtained his MCh Plastic Surgery in 2008.
The Practitioner continued his post-graduate training when he came to Australia in 2008, and took up a position as a Fellow in Hand and Microsurgery at Liverpool Hospital for 15 months. The Practitioner then worked at Auburn and Westmead Hospitals for 9 months in 2009 as a Senior Registrar, Plastic and Reconstructive Surgery. Thereafter the Practitioner worked at Nepean Hospital for 12 months from 2011 to 2012 in the same role. In the interim, the Practitioner was a Fellow in Facial Trauma and Reconstructive Surgery at Royal Darwin Hospital. The Practitioner then worked at Westmead and Auburn Hospitals for 2 years as a Senior Registrar, Plastic and Reconstructive Surgery.
From 2015 to 2022 the Practitioner worked at a Consultant level (employed as a Career Medical Officer) across the specialty of Plastic and Reconstructive Surgery at Westmead Hospital. The Practitioner did not have his own patients as he did not have admitting rights as a Consultant. From 2020 the Practitioner had also been working at the Esme Clinic, initially 1 day a week, increasing to 2 days a week.
At the time of the s 150 determination, the Practitioner had undertaken a significant number of penile enlargements as the primary surgeon, a lesser but significant number of breast surgeries as the primary surgeon, a greater number as assistant surgeon, several hundred faciomaxillary procedures as the primary surgeon and more than 200 such procedures as the assistant surgeon.
The Practitioner ceased working at Westmead Hospital on 16 July 2022, after which time he increased his days in private practice. From July 2022 until the s 150 determination, the Practitioner was practising 3 or 4 days a week in private practice, reportedly seeing approximate 4 or 5 new patients per week, nearly all of whom were for cosmetic surgery.
The s 150 proceedings which resulted in the present appeal arose from two complaints made by former patients of the Practitioner, and six complaints made on behalf of other patients with respect to the Practitioner's treatment of them. A further complaint was made shortly prior to the hearing of the appeal in 2023. Brief reference to the undisputed circumstances of the patients' treatment by the Practitioner by way of background is instructive. None of the nine patients whose treatment resulted in complaints gave evidence before the Tribunal. Although the nine patients have been referred to by name during the hearing of the appeal, publication of their identity is prohibited. To further protect against patients' identities becoming known, the Tribunal has not recorded the name of an interstate surgeon who complained about the Practitioner's treatment of one patient, or any details of patients' personal circumstances.
The Practitioner performed penile enlargement surgery on Patient A on 28 October 2021. Patient A returned to his interstate home on or about 30 October 2021. On 7 November 2021 Patient A was admitted to an interstate hospital where he was treated for post-operative infections. Patient A was discharged from hospital on 14 December 2021. There is no evidence that Patient A otherwise experienced post-operative complications. On 11 January 2022, a surgeon from the interstate hospital to which Patient A had been admitted made a complaint to the HCCC.
The Practitioner performed penile enlargement, length and girth, pubic lift and scrotal repair on Patient B on 31 March 2022. On 2 September 2022 Patient B made a complaint to the HCCC, alleging that "something went horribly wrong" during his surgery, as a result of which he allegedly suffered "pain post surgery', "inappropriate amounts of bruising/swelling", "wide spread infection", "occasional urine leakage", "considerable erectile dysfunction (severe twist in the penial head/shaft, difficulty maintaining erections/ejaculating" and "mental pain and suffering". On 3 August 2022, Patient B consulted the Practitioner and discussed having further surgery performed by the Practitioner. Patient B did not see the Practitioner after that date. There is no evidence that Patient B alleges that he continues to suffer from any of the conditions which he outlined in his complaint.
The Practitioner performed blepharoplasty surgery (eyelid) on Patient C and removed a basal cell carcinoma (BCC) on 27 March 2021, and performed scar revision surgery on 28 December 2021. On 5 September 2022, and 12 September 2022, Patient C emailed the Practitioner, alleging that both surgeries had not been successful, and suggested that he should pay the anticipated cost of further remedial surgery which Patient C would arrange with another surgeon. There is no evidence that Patient C underwent further remedial surgery, or that he alleges that he continues to suffer from the conditions which he alleged on 5 September 2022.
The Practitioner performed a mini face lift and blepharoplasty (eyelid) on Patient D on 5 December 2021. The Practitioner performed micro fat grafting surgery on Patient D on 9 August 2022 and 2 September 2022. The complaint to the HCCC was made anonymously, and was asserted to have involved the Practitioner performing surgery in his rooms without other staff being present. The complaint did not allege that the Practitioner's performance of Patient D's surgery was deficient in any way. There is no evidence from Patient D in support of this complaint.
The Practitioner performed browlift, blepharoplasty (mini facelift) surgery on Patient E on 7 June 2022, eyelid surgery on 26 July 2022 and upper blepharoplasty (mini fat graft) to cheeks and eyelids, temporal brow lift surgery on 26 September 2022. The complaint, made to the HCCC anonymously, alleged that, during surgery in the Practitioner's rooms, Patient E had lost consciousness, resulting in the Practitioner calling on a nearby anaesthetist to assist in restoring Patient E's consciousness. Patient E has given no evidence in these proceedings.
The Practitioner performed bilateral eyelid reconstructive surgery and upper lid blepharoplasty on Patient F on 25 February 2021, bilateral breast augmentation surgery on 30 September 2021 and breast implant exchange- larger surgery on 17 March 2022. Patient F last consulted the Practitioner on 5 October 2022. The complaint, made to the HCCC anonymously, alleged that Patient F complained of breast implants "dropping out", "sitting in funny positions" and above nipple and "suture lines" after her first surgery. Patient F has given no evidence in these proceedings.
The Practitioner performed mini facelift and brow lift surgery on Patient G on 2 October 2021. The last contact between the Practitioner and Patient G was by email on 22 August 2022. The complaint, made to the HCCC anonymously, alleged that Patient G was told to pay cash for her surgery to "avoid tax", was offered a discount for multiple procedures, that her surgery was "abandoned halfway through", and that the patient was left with scarring and "unsatisfactory results", which the Practitioner failed to address. Patient G has given no evidence in these proceedings.
The Practitioner performed mini facelift and neck lift surgery on Patient H on 7 July 2022. On 19 June 2023, Patient H made a complaint to the HCCC, alleging that she had "lots of loose skin under her neck" and "pixie ears" after her surgery, which the Practitioner failed to address. Patient H gave no evidence in these proceedings. Patient H subsequently withdrew her complaint and it was not investigated by the HCCC (Tcpt, 24 July 2023, p 97).
An additional complaint related to Patient I, on whom the Practitioner performed face/neck lift surgery in rooms at a private hospital on 7 July 2022. Post-operatively, Patient I complained of excessive bruising and swelling, "lumps" under her neck and "pixie ears". On 11 March 2023, Patient I reported that her neck swellings had subsided, but that her ear deformity had become worse, and that there was still excessive loose skin under her neck. Patient I did not see the Practitioner again after that date. Patient I did not give evidence in these proceedings.

[6]

Principles governing the proceedings

In Medical Council of New South Wales v Smithson [2021] NSWCA 53 the Court of Appeal reiterated the principles applicable to the determination of an appeal under s 159 of the National Law. The Court of Appeal said [20] that the "most important" principles were that (citations omitted): "(1) The role of a Tribunal in a s 159 appeal of the present kind is to apply s 150 standing in the shoes of the Council. A hearing is de novo and not limited to evidence before the Council. The legal standard to be applied is fixed by s 150. (2) The subject matter, scope and purpose of s 150 makes clear that it is a protective provision with two independent limbs. The touchstone for the exercise of the Council's role under s 150(1) to make an order suspending the practitioner's registration or imposing conditions on it is that the Council be satisfied that it is appropriate to do so for (i) the protection of the health or safety of any person or persons (the first limb) or (ii) that the action is otherwise in the public interest (the second limb). The two limbs may overlap but the public interest is not subsumed in the first limb. The two limbs are disjunctive; satisfaction of either will suffice to trigger the obligations imposed by s 150. (3) The proceedings are not disciplinary and not necessarily referable to a complaint. The National Law otherwise makes provision for dealing with complaints against registered health practitioners: see Div 3 subdivs 2-6. The function of a s 150 hearing is purely protective in character. By s 150D, a Council must, after taking action under s 150(1) (except in the case of impairment), refer the matter to the Health Care Complaints Commission (HCCC) to be investigated as a complaint. By s 150F, in a case of impairment, the Council must consult with the HCCC to see if agreement can be reached as to whether the matter should be dealt with as a complaint or referred to an Impaired Registrants Panel. (4) Principles relating to judicial review of administrative decisions are inappropriate to the exercise required by s 159. References by the Tribunal to the Council "taking into account irrelevant considerations" or references to the Wu Shan Liang principle … are a distraction from the task the Tribunal is required to perform in a s 159 hearing. (5) Because the circumstances in which action under s 150 may be taken include that there may be a continuing dispute as to the relevant facts and that investigations into complaints concerning the practitioner by bodies such as the HCCC may not have been completed or even commenced, the Tribunal is not required to make conclusive findings of fact based on the material before it. The s 159 hearing does not involve determination of the merits of a claim. (6) The role of the Tribunal is to make an assessment of the evidence and determine whether it is satisfied to make one of the orders referred to in s 150(1). The s 159 hearing is not the occasion to consider, let alone determine, whether a practitioner is currently a fit and proper person to carry on the role. (7) The "protection of the health and safety of any person or persons" does not require there to be actual harm suffered by any person. Because s 150 is concerned with protection, it is sufficient if it can be demonstrated that there is a potential for harm. The Tribunal's role in this case was to make an assessment of the evidence and determine whether it was appropriate, on either of the bases for which s 150 provides, that an order be made under s 150 for the protection of the health or safety of any person or persons or otherwise in the public interest. (8) As s 150 is a protective provision, it is appropriate ordinarily for the Tribunal, in deciding whether it is satisfied that it is appropriate to make an order under the first or second limb, to make an assessment about the nature and degree of risk to the health or safety of any person or persons or to the public interest (in the sense of the chance of the suggested harm being realised) and the consequences of the suggested harm being realised (in the sense of the seriousness of the harm that will ensue if the risk is realised). Reaching that state of satisfaction involves the Tribunal making an assessment of all the evidence before it. (9) The essential question which the proper conduct of a s 159 hearing de novo requires the Tribunal to address is whether allowing the medical professional to practice, or to practice with certain conditions, involves an unacceptable risk to the health and safety of the public, or otherwise involves an unacceptable risk to the public interest."
It is readily apparent that, although the Tribunal stands in the shoes of the Council, the Tribunal has heard considerably more evidence than was available to the Council, and, unlike the Council, has had the benefit of hearing that evidence tested by searching cross-examination. That does not alter the task which the Tribunal must undertake, or the principles governing the operation of s 150 of the National Law, or invite the Tribunal to venture into the areas which the Court of Appeal has clearly indicated form no part of the Tribunal's task.
As recorded earlier, there is no issue in this case that the health and safety of the public requires that conditions attach to the Practitioner's registration. Even if that had not been conceded, the evidence before the Tribunal satisfies that jurisdictional requirement. There is no issue that allowing the Practitioner to practise with "certain conditions" does not involve an unacceptable risk to the health and safety of the public, or to the public interest. If that had not been conceded, the evidence before the Tribunal would have satisfied us that that was the case. The issue in this case has been what those "certain conditions" should be.

[7]

Evidence with respect to treatment of Patients A to H

The Practitioner relied on the expert reports of Dr Paul Curtin of 4 April 2023 and 16 June 2023 (A1, tabs 19, 20). The Council relied on the expert reports of Professor Anand Deva of 2 June 2023 (R1, tab 9) and 21 July 2023 (R 2, tab 5). Both experts were eminently qualified to express the opinions articulated in their reports. Both were cross-examined during the hearing. Before referring to the written and oral evidence of the experts, it is appropriate to consider a number of matters relied on by the Practitioner in support of his contention that, on all the matters about which the experts disagreed, the Tribunal should prefer the evidence of Dr Curtin to that of Professor Deva.
In cross-examination, Professor Deva was criticised for expressing his opinions "in the absence of having seen a single signed statement from a single patient save for (Patient B) in relation to discussions about medical and past surgical history, their needs and expectations of any elective cosmetic surgery and failure to both inform and educate patients as to the material risks of these procedures" (Tcpt, 24 July 2023, p 63). Importantly, as Professor Deva conceded on a number of occasions, not having seen such statements limited the extent to which he could, or did draw inferences adverse to the Practitioner.
The absence of patients' statements did not in our view materially impact on the weight to be afforded to the evidence of either expert. The standard of the Practitioner's work was able to be, and was evaluated by each expert by reference to the Practitioner's clinical records and the photographs of post, and in some instances, pre-operative photos of the relevant parts of the patients' bodies. In other instances, the absence of recent photographs of the patients potentially worked to the Practitioner's advantage. So did the absence of patients' statements.
As he made clear, Professor Deva, necessarily, based his opinions on the Practitioner's clinical records, and, although suggesting that completed consent forms did not necessarily mean that a patient had given informed consent, could not identify anything which caused him to doubt that any of the nine patients had not given informed consent prior to the Practitioner performing their surgery. We do not understand any patient to have made that complaint, but, if any did, in the absence of evidence from them, there is no reason to go behind the signed consent forms, or to reject what the Practitioner claimed he had said to the patient by way of further explanation of the potential risks and benefits of the surgery which they were seeking. Both experts considered the terms of the patient consent forms to be adequate.
Professor Deva was cross-examined at length on the opinions of "cowboy" plastic surgeons which he has consistently shared on social media, and his asserted "crusade" against such surgeons, to the intent that Professor Deva allegedly did not, at its most benign, bring an impartial and unprejudiced mind to bear on the evaluation of the standard of the Practitioner's treatment of the nine patients whose treatment resulted in the s 150 proceedings. Professor Deva did not resile from any of the previously expressed views to which he was referred. Whether Professor Deva's views are well-founded is not a matter about which we need to make findings.
We are not persuaded that any views which Professor Deva held, or holds about practitioners who do not have specialist registration performing cosmetic plastic surgery coloured his view of the Practitioner's performance. The "double might" test applied in recusal applications in judicial proceedings, though not directly applicable, is instructive for present purposes (Mohareb v State of New South Wales [2024] NSWCA 69). If Professor Deva might lack impartiality with respect to the ability of non-specialist medical practitioners to practise cosmetic plastic surgery safely, nothing to which the Practitioner has referred us establishes that Professor Deva might depart from properly and fairly discharging his duties to the Tribunal as an expert witness.
We are reinforced in rejecting the challenge to Professor Deva's impartiality by the cross-examination of Professor Deva with respect to the substance of his opinions, during which he displayed a willingness to make appropriate concessions, and was responsive to Senior Counsel's questions, without embellishment or advocacy. In what way any opinions held by Professor Deva caused, or resulted in his evaluation of the Practitioner's treatment or care of any of the nine patients being other than in reliance on his undoubted training and experience has not been demonstrated. As will be seen, although the experts remain in disagreement about aspects of the Practitioner's treatment or care of the patients, we do not consider that any such differences are referrable to the opinions of Professor Deva about which the Practitioner complains.
Professor Deva was criticised for assertedly failing to formally comply with the Expert Witness Code. In what way the alleged failure was suggested to adversely impact Professor Deva's evidence was not identified. In his answers in cross-examination on this issue, Professor Deva made clear that he had been conscious of the requirements of the Code when preparing his reports. There is no reason to reject that evidence. We are not persuaded that any failure of Professor Deva to formally comply with the Code vitiated the reliability or objectivity of his opinion evidence. The challenge to Professor Deva's impartiality which we have rejected, and the challenge which we will next consider are not dependent upon, or advanced by any failure of Professor Deva to formally comply with the Code.
In cross-examination, Professor Deva was criticised for failing to provide references in support of a number of his opinions. Professor Deva said in response to those criticisms that he was "drawing… on my clinical experience" (Tcpt, 24 July 2023, p 77) in forming his opinions, and reiterated that his opinions were "based on my clinical experience which is self-evident" (Tcpt, 24 July 2023, p 81). It has not been shown that Professor Deva lacked the training and experience to express his opinions, or that such opinions were not based on that training and experience (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21). Other than in one instance, in reliance upon 2003 articles concerned with Pixie Ear Deformity (Exhibit A4) Professor Deva was not cross-examined on any reference material which he was criticised for failing to identify in his reports. This criticism of Professor Deva is misconceived. Once it is established, as it was in this case, that a witness is qualified to give expert opinion evidence, it is for those contesting the weight which should be given to that evidence to demonstrate, whether by erroneous reliance upon assumed or disputed facts, lack of recent or particular experience, or lack of particular qualifications, or the failure to base an opinion on training and experience, that the evidence is entitled to reduced, little or no weight. Although each expert's opinions were challenged on some of those bases, other than with respect to Pixie Ear Deformity, the weight to be given to their evidence is not impacted by journal or other reference materials.

[8]

Experts' general recommendations with respect to conditions attaching to Practitioner's registration

As we have earlier recorded, the parties agree that conditions should attach to the Practitioner's registration for a period. The parties' experts each expressed views consistent with doing so. In his first report of 27 February 2023 (A1 Tab 19), Dr Curtin said: "In my view it would be reasonable to impose some conditions on Dr Mahadik's registration. Dr Mahadik qualified in both general and plastic surgery in India, and for the past 10 years has been employed Senior Registrar level in the plastic surgery unit of Westmead Hospital, the largest public hospital in Sydney. He has successfully negotiated repeated challenges posed by traumatic injury and other cancer reconstruction. In those areas, and in the management of surgical patients generally, he has considerable experience and expertise. With regard to cosmetic surgery, however, Dr Mahadik is a junior surgeon, and the documents illustrate several errors of judgement that he has made. Without doing an entire surgical audit it is not clear how representative those errors actually are. What does emerge from the documents is that Dr Mahadik is attentive to his patients and personally manages their post-operative care, something which seems to be relatively rare amongst the cosmetic surgical community. Nevertheless, it is likely that he would benefit from some level of mentoring to assist him in patient selection, and in the organisation of his records. The requirement for another registered specialist surgeon to attend his cosmetic operation sessions is really not feasible, and amounts to a de facto banning of cosmetic procedures by Dr Mahadik. For the next twelve months, he will be employed full-time in the public hospital system and there will be very little opportunity for him to work privately. Given the nature of the complaints made to the Council, in my view, a system of mentoring and reporting to the Council would provide a high level of protection to the public and would be a reasonable response to the complaints under consideration."
Professor Deva said in his report of 2 June 2023 (R1 Tab 9) that a "number of common themes have emerged" from the material made available to him, which were identified as: "• Failure to adequately assess patients; medical and past surgical history, their needs and expectations of any elective cosmetic surgery and failure to both inform and educate patients as to the material risks of these procedures. • In some cases, the use of telehealth or video consultations to assess and book patients for elective cosmetic surgery and subsequently performing physical assessment of patients the day prior to surgery is inadequate and fails to give patients and/or Dr Mahadik adequate time to consider the risks and benefits of the proposed procedure(s). • Failure to assess and inform patients at high risk of complications in the setting of obesity, diabetes, heavy smoking, weight loss following surgery and failure to inform patients of the potential impact of these conditions on outcomes. • Failing to thoroughly document information on both history and physical examination in his medical records. Lengthy consent documents should not replace good communication and documentation of the process of assessment, informed and educated consent and managing patient expectations. There is no guarantee that patients are able to fully comprehend what is set out in consent documentation. For breast implant surgery, there now is a guide to informed educated consent from NSW Health Agency for Clinical Innovation (internet reference provided). • Performing complex and lengthy procedures under local anaesthetic in rooms with, in one instance, failing to adequately prepare for resuscitation, should the need arise. • Performing surgery on interstate patients who stay for a short time (in one case 24 hours) after surgery. • A tendency to blame the patient for the complication e.g., aggressive massage, erections, smoking. It is better to ensure that patients are given clear instructions on post-operative care and how to best prepare for surgery. My practice is to decline facelift/neck lift surgery on smokers as they are at risk of both infection and skin necrosis."
The concerns of each of Professor Deva and Dr Curtin were explored with them in cross-examination. Before referring to their evidence with respect to the patients whose treatment gave rise to the s 150 proceedings, considering the oral evidence of Professor Deva and Dr Curtin with respect their general concerns are instructive.
Professor Deva was cross-examined before Dr Curtin. In cross-examination (Tcpt, 24 July 2023, p 63) Professor Deva explained his concern with respect to the Practitioner's patient consent forms and said that what "this area of practice, demands, is a real understanding of what the patient's state of mind is, their request and need for surgery in the first place. And it is really important a practitioner offering any cosmetic surgery goes through a very, very structured and thorough process of clinical assessment prior to offering elective cosmetic surgery". He added - and also "A process of step wise clinical assessment, psychological assessment before proceeding to any cosmetic surgery". Professor Deva's particular concern was "that there were voluminous pieces of paper with a patient's signature on it but there was no real documentation in the actual clinical record that there was time and space given to ensure that the patient understood what they were signing". Professor Deva agreed (Tcpt, 24 July 2023, p 66) that it was "highly subjective" as to whether a cosmetic procedure was needed.
In cross-examination of Professor Deva with respect to pre-operative patient selection and risk assessment (Tcpt, 25 July 2023, p 83) the following exchange occurred: "Q You are not suggesting, are you, that mentorship is equivalent to Category A supervision, are you? A No, I am - no, not at all. So I think these are all mechanisms which are open to whatever the decision is in terms of the level of input, right, whether that's a mentor, a - you know, level of category of supervision, ongoing reports and assessments of patients and logbooks. These are all ways in which I think, you know, the public and the doctor in question can be hopefully upskilled and brought to a standard which is - where it is okay and safe for them to offer these procedures unsupervised. So I think there's - there is a framework in place where some input can be put in. Now, what that is, it's really not up to me to suggest."
During a series of questions from the Tribunal, the following exchange ensued (Tcpt, 25 July 2023, p 84): "Q You understand the two elements of achieving your FRACS, the first is your cumulative assessment where your supervisor signs off that you are ready to sit the exam? A Yes. Q Which means that you have achieved all the goals, all the elements of the curriculum and you have done all the operations that are required of you? A Yes. Q To a satisfactory degree. The second element is your oral assessment where the court of examiners, the fellowship exam occurs to finalise that process and check that everything is alright? A Yeah. Q Once you have obtained your FRACS and you have achieved your specialist registration you are then ready to be an independent surgeon without supervision? A Absolutely. Yeah. Absolutely. Yeah."
Professor Deva clarified that: "You would certainly have to put your faith in the process that once an FRACS is obtained is that you have achieved that minimum standard. Then I completely agree with that. So should Dr Mahadik successfully get his FRACS then he would have been certified, as I have argued, by the body that does certify practitioners to perform invasive surgery. And he should be free to perform this. The difficulty here is that he commenced cosmetic surgery practice prior to achieving his certification and here we are hearing about these cases. So it is an unusual circumstance where it is almost that we have a little bit more information to consider, and for ultimately the College of Surgeons to consider if and when he presents for his certification and final step out into practice."
Professor Deva said (Tcpt, 25 July 2023, p 85) that: "Having looked through the material and with the assistance of Senior Counsel in the excruciating detail, I think all these cases have nuances and my sense, and just, you know, once again, my sense from now having looked at this material, having been questioned on it, having had a chance now to also look at things again last night, is that there is a concern in my mind, and having looked at this data and having answered questions on it, that the process of assessment, patient selection, care for patients after elective cosmetic surgery has been deficient. To correct that would require some degree of input. Now, what that level of input is, is entirely up to the Tribunal to decide. … but it is a difficult one, because if the decision is too light then my concern is that more patient(s) will continue to front up as time goes on and then, I guess, you know, we will be back here having to discuss, you know more issues related to it. So some sort of external input, whether that's anything ranging from a mentor discussing cases all the way through to level A supervision, somewhere in there is the right balance that allows both Dr Mahadik to reflect and improve on his practice to ensure that patients are being properly assessed, informed and educated, consented. Having the right procedure offered to them and carried out with a level of competence and with good aftercare."
Professor Deva reiterated (Tcpt, 25 July 2023, p 86) that "Some degree of supervision and input is really important. I think in cosmetic surgery, particularly practitioners that are working in isolation, don't have the benefit, like me, of working as part of a bigger department with regular audit M and M meetings." Professor Deva also said that plastic surgery "is a strange area of practice with many different pushes and pulls. And so anything to bring practitioners into a more structured framework where they have actively and - active structure of input and feedback around them I think is a good thing" and that "there is a great benefit of dealing with these cosmetic patients with the backing and input of trusted colleagues. And so that's where I would hope that things would end up."
In response to further questioning from the Tribunal Professor Deva said (Tcpt, 25 July 2023, p 88) that: "Ideally, I think, a combination of having someone observe you and then observing someone, having someone observe you and then operating independently, that sort of mix is the best way to pick up operative skills. But I am not a hundred per cent sure that just focusing on operative skills is adequate for cosmetic surgery training, and being able to offer safe cosmetic surgery to patients seeking it. And so what elements of education I think are important, apart from just operative skills, it is learning to talk to patients, learning to understand and communicate effectively, expectations, learning about red flags, learning about ethics of practice, learning about ethical advertising, and learning about the limitations, your own limitations in terms of what you can and can't do. And that's a journey that we are on, currently, with Ahpra looking at cosmetic surgery."
Professor Deva was asked (Tcpt, 25 July 2023, p 89) whether the Tribunal should have "confidence" in the Practitioner obtaining his FRACS qualification "to be able to assure us that he is ready to work" to which Professor Deva replied "absolutely". Professor Deva added that if the Practitioner "successfully passes the FRACS then (he) emerges fully equipped to deal with these cases going forward".
In further cross-examination with respect to the practicability of Category A supervision, it was suggested that such supervision in a public hospital "won't necessary compromise you as a surgeon; but in the private domain, which this increasingly is, or is, that's a large hurdle for (a) surgeon to achieve, isn't it?" to which Professor Deva replied "You are absolutely correct. As I said before, this focus is purely on the operative skills. So I think that within the level of supervision there are other skills in terms of assessing patients clinically, communication, explanation of risk, informed educated consent, post-operative management of patients. Those aspects could certainly be done without necessarily having to operate on patients."
Dr Curtin was the Practitioner's supervisor from 2012 to 2022 (Tcpt, 25 July 2023, p 96). When asked to describe his experience of the Practitioner over that period Dr Curtin said (Tcpt, 25 July 2023, p 97) that he "became aware" of the Practitioner in about 2009 when he thought that the Practitioner worked in the public health system at Auburn but that he: "started off at Westmead, eventually, in 2012. And we - it quickly became apparent that he was an experienced operator, was technically very good, and so he was able to fulfil that (Registrar) role for us in providing somebody on the ground who was experienced when difficult cases came through the emergency door. And so that was the background to his appointment. And he was able to undertake responsibilities that you wouldn't give to a trainee, normal trainee, because he had just done so much in the past and he built on that experience over the years. So certainly the last five or six years of his time at Westmead it was virtually acting as a consultant, although he wasn't a consultant, and patients were not admitted under his name and he had to report regularly to the consultants who were in charge. So that was his role and he - I was head of the department - I was head of the department for about 25 years at Westmead and so I was aware of who were the good surgeons and who wouldn't. Who were the ones that would struggle and who were having troubles and Dr Mahadik was not one of them."
In response to questions from the Tribunal (Tcpt, 25 July 2023, p 105) Dr Curtin said that, between 2012 and 2022 the Practitioner was "supervised, well and truly" and that he "gradually became very confident in his abilities".
In cross-examination with respect to the conditions which he considered appropriate to be attached to the Practitioner's registration (Tcpt, 25 July 2023, p 110), Dr Curtin said: "Well, the category A and B seem to be where you really need somebody, a more experienced person immediately available, would be applicable to people who might have technical deficiencies or lack surgical skills. I don't think that's quite the situation with Dr Mahadik. I think that he's technically a very capable surgeon and the cosmetic procedures are relatively minor surgical procedures from a technical point of view. They create difficulties because of the demands that patients place on surgeons and the need to make sure that complication rates are very very low or non-existent. And so, I mean, those requirements should apply to all forms of surgery, but the fact is that cosmetic surgery makes bigger demands on a surgeon in those respects, and he - as he will admit, himself, I'm sure, that he's, when it comes to cosmetic surgery, he is a beginner. But anyone who practises cosmetic surgery has got to start somewhere. There's no easy way when it comes to starting, you have got to dive in. Because you can assist, and assist, and assist, eventually you have got to do the procedure, yourself. And you can't make that step unless you have got the technical competence in your hands and those sort of technical skills and some surgical judgement. So those skills Dr Mahadik has demonstrated over many years at Westmead. He has got those basic skills. But he is a beginner with cosmetic surgery and he has made some errors in starting out. He has had some - he has made some judgmental errors in patient selection. I have outlined those in the report and we are all aware of those. He has made a few, in my view, technical errors with his surgery, which he no doubt learnt from. And anybody who starts out in cosmetic surgery is going to make a few technical errors, I can assure you. And so he would benefit from some mentorship. How that - exactly how that might be carried out or instituted, I am not sure, but I don't think he needs anything - he doesn't need anyone standing over him to watch him make an incision."
The last comments made by Dr Curtin resonate with the Tribunal. The Practitioner's evidence, particularly in view of the nature and extent of his recent surgical experience as evidenced by his surgical logs, suggest that, although there is room for improvement in the Practitioner's "technical skills", the potential risk he poses to public health and safety relates more to his pre and post operative skills.
Dr Curtin reiterated (Tcpt, 25 July 2023, p 114) that he had described the Practitioner as "a beginner cosmetic surgeon", a description from which he did not resile. As ultimately submitted by Senior Counsel for the Practitioner, that description needs to be considered in the context of the whole of Dr Curtin's evidence, and the evidence more generally, including, overall, the evidence of Professor Deva. In further exchanges between the Tribunal and Dr Curtin the following exchange ensued (Tcpt, 26 July 2023, p 39): "Q I've given thought to our previous discussion about what is manageable conditions, looking at the observership proposed in paragraph 6, Tab, or whatever of observership, observing a plastic cosmetic surgeon, say, six half day operating sessions over a twelve month period and finding two phalloplasties during that period of time to watch would not be particularly onerous for someone to achieve. A I don't think so. Q And, then, in terms of mentorship, finding someone to mentor you reasonably closely to the satisfaction of the Council shouldn't be too difficult, either. A Well, it might be. My issue - my concern - I think mentorship would be the right way to go and I think that would provide sufficient protection to the public, but the question is what is the - what is the - for the mentor, what implication has that got for his own medical insurance."
Dr Curtin further said (Tcpt, 26 July 2023, p 41) that he thought: "I think B would be extremely difficult in practical terms to set up and, you know, you've outlined some of the issues, and I agree with those. It would be difficult enough organise a proper C mentorship, but I think - I think the C mentorship would be - would rectify the problems that are present here and the C mentorship that's been put forward is - or the sort of mentorship that's been described in the conditions that have been put forward, they could also apply to a C category condition as well with the two weekly meetings and all the other issues, apart from being in the same facility, which I don't think is necessary."
In further cross-examination (Tcpt, 26 July 2023, p 11) Dr Curtin explained why he did not think it was necessary "for somebody to be on site when Dr Mahadik was operating". He clarified in response to questions from the Tribunal that he did not consider Category B supervision of the Practitioner's surgical operations necessary. Dr Curtin said (Tcpt, 26 July 2023, p 13) "I suspect there might be difficulties in finding a plastic surgeon in Sydney who was experienced and doing a lot of this sort of - I'm not saying it doesn't exist, but I don't know whether Dr Barnett has got any views about that". In response Dr Barnett replied: "I find this particular condition possibly impractical, because of the difficulty of finding such a surgeon and I think, too, to impose an impractical condition may not be in Dr Mahadik's best interests to be honest. I'm not in active practice, but I certainly know of nobody, and haven't come across anybody part from Dr Hertsch, as you mentioned, who may be doing these procedures and before actually locking Dr Mahadik into this, it might be wise is somehow we found such a person and ascertained that that person was willing to act, because otherwise I don't know whether we are if we've imposed a totally impractical condition."
There followed a discussion between the Tribunal and Counsel with respect to a number of the conditions proposed by the Council (Exhibit R4) including the imposition of conditions "that acts as a de facto suspension that make it impossible to practise" (Tcpt, 26 July 2023, p 14). From that discussion, the following exchange ensured: "Q Would you like to discuss what your understanding of the practice of plastic and cosmetic surgery is at the moment, tell us about how the private hospital system is working - or evidence? A Yes. There's quite a lot of cosmetic surgery done in private hospitals - fully accredited big private hospitals and procedures that are going to have general anaesthetics or longer anaesthetics and particularly in patients that have got maybe older or have got some risk factors are generally done in a private hospital setting. Now, there is quite a lot of cosmetic surgery that is done in day surgery units as well, and also cosmetic surgery done in doctors' rooms. That varies from place to place. We've seen with Dr Mahadik that he has done procedures under local anaesthetic and twilight anaesthesia, and I know that's done in doctors' rooms and - but I think most people would prefer not to - not to carry out - not to undertake procedures, particularly on people that are older that have got any risk factors - significant risk factors, certainly anything beyond local anaesthetic purely - I think people would prefer to do these in private hospitals or a day surgery centre."
Dr Curtin said (Tcpt, 26 July 2023, p 41) that he thought Category B supervision "would be extremely difficult in practical terms to set up and, you know, you've outlined some of the issues, and I agree with those. It would be difficult enough organising properly a proper C mentorship, but I think - I think the C mentorship would be - would rectify the problems that are present here and the C mentorship that's been put forward is - or the sort of mentorship that's been described in the conditions that have been put forward, they could also apply to a C category condition as well with the two weekly meetings and all other issues, apart from being in the same facility, which I don't think is necessary."
Dr Curtin reiterated (Tcpt, 26 July 2023, p 47) that he still described the Practitioner as a "beginner in the cosmetic surgery realm". We have earlier recorded our view that, having regard to the totality of the evidence, that comment should not be taken too literally.
In response to a question from the Tribunal (Tcpt, 26 July 2023, p 49): "Q As Dr Mahadik's mentor over the whole time - primary mentor, you would consider yourself for his whole time at Westmead? A Yes. Q Are you disappointed that he's fallen short, given your evidence in terms of his practice? A Yeah, I am a bit. I am a bit, but I'm not - I'm not surprised. Well, I think cosmetic surgery is very demanding and he - he's - he's an enthusiastic surgeon. He works hard. He's - he's an ambitious guy and I think - and his - his - in many ways his mastery of surgical techniques may have sort have led him down the wrong path a bit - you know, made him a little bit overconfident in his approach to cosmetics."

[9]

Patient A

In his first report (R1 Tab 19) Dr Curtin described Patient A as a "self-referred patient who was requesting surgical improvement of what he perceived to be an unusually small penis". After referring to the Practitioner's initial assessment of Patient A by video link on 12 July 2021, Dr Curtin referred to the operation on 28 October 2021 which was preceded by a "physical examination on the previous day". Dr Curtin referred to Patient A's blood tests prior to surgery, which showed a marginally elevated HbA1c level which "suggested a pre-diabetic state that Mahadik believed carried an increased risk of post-operative infection, but not a risk that would contraindicate surgical treatment". Dr Curtin referred to Patient A's additional risk of "surgical site infection because of his tobacco habit", but suggested that the risk thereby created was "similar" to the "risks of overall complications" experienced by non-smokers. Dr Curtin referred to the records of the Kingsgrove Day Hospital as placing Patient A "in the morbidly obese category where the risks of surgical site would infection are significantly increased". Dr Curtin suggested, accurately, that it was "likely that the extent of this man's obesity was not apparent to Dr Mahadik until the day before the scheduled surgery". By reference to the Practitioner's clinical records, Dr Curtin was of the opinion that the surgical technique "appears to have been appropriate for (Patient A's) condition".
At the s 150 hearing the Practitioner agreed that Patient A was obese, but said that he had not rejected him because he had cleared hospital admission criteria. The Practitioner accepted at that time that checking the weight of the patient and the patient's suitability for the proposed surgery was the surgeon's responsibility, not that of the hospital. The Practitioner acknowledged that, with hindsight, his approach to Patient A's surgery had "created a problem", which he said he had "learned from". The Practitioner said at the s 150 hearing that, as a result of his experience with Patient A, he excluded patients with a BMI over 38. Patient A weighed 128 kilograms and had a BMI of 41, placing him in the morbidly obese category. The Practitioner also said at the s 150 hearing that, since the complaint to the Commission, he had implemented other procedures, including a requirement that a patient have another adult accompany them, and that they be seen by a local practitioner. The Practitioner said at the s 150 hearing that he now asks patients who smoke to cease smoking for at least 6 weeks prior to the surgery, and that he would not undertake surgery for diabetics if they were over HbA1c 8, even if they were otherwise fit. The Practitioner agreed at the s 150 hearing that it would have been better for him not to have done so many different procedures on Patient A in one operation, and that staging the procedures was a better approach, which he had since adopted.
Dr Curtin referred to Patient A's post-operative review by the Practitioner on the day following his surgery, and his advice to "spend another night in Sydney resting before returning home" on 31 October 2021. Dr Curtin recorded, accurately, that a virtual follow-up visit was arranged to take place 10 days later. Dr Curtin referred to Patient A's post-operative wound infection and hospitalisation on 7 November 2021, and to the Practitioner's telephone or video consultations with Patient A on 22 November 2021, 3 December 2021 and 19 January 2022 "when the surgical wounds appeared to have completely healed and Dr Mahadik offered some advice regarding rehabilitation".
Dr Curtin was of the opinion that the risks of wound infection were "probably in the order of about 10% for this man, and likely to become manifest within 2 weeks of surgery. It appears that no surgical drains were used which might have reduced the risks of infection, although unlikely to have completely prevented that outcome. A short course of antibiotics commenced intraoperatively has been shown to be effective in reducing the risk of post-operative wound infection. It may have been Mahadik's habit to prescribe antibiotics in such cases (as he had done with Patient B) but there is no record that antibiotics were prescribed for (Patient A)."
Dr Curtin was of the view that the care and treatment provided to Patient A by the Practitioner did not fall below that expected of a competent practitioner "with the exception that it would have been desirable to advise (Patient A) that he would need to be available for regular face to face review for a period of two weeks following surgery. Had a closer review been carried then the presence of an infection might have been detected earlier, although early detection very often does not avoid the need for a surgical drainage procedure. It is obviously preferable for the original surgeon to manage any post-operative complications, but in a Country like Australia where patients may have to travel long distances to access treatment, such continuity of management is not always feasible."
In the context of his evaluation of the Practitioner's record keeping, Dr Curtin noted that the "medical history section" of the Practitioner's consultation template "carried very little information". He noted that there was "no referral letter from a general practitioner or any details as to who that might be". Overall, Dr Curtin considered that the Practitioner provided a reasonable standard of contemporaneous and legible records regarding patient care.
After referring to the matters to which Dr Curtin had referred, Professor Deva said (R1 Tab 9) that the Practitioner's response to the complaint "unfortunately, does not fully address his failure to adequately work up this patient for surgery. As a newly diagnosed diabetic, who is obese and a smoker, the material risks of poor outcomes including wound dehiscence and infection were not clearly explained and accepted by the patient prior to his procedure. The acknowledgement of his health problems was not documented in his two virtual consultations. Performing a physical assessment, a day prior to surgery does not constitute a reasonable timeframe for the patient to fully understand and accept these risks. There was also no discussion about the patient's newly diagnosed diabetes with his regular general practitioner, with the assumption made that his disease was well controlled on medication."
Professor Deva further said that "The post-operative management of a patient from interstate, who is cleared to return home at the first post-operative assessment, 24 hours following surgery shows a lack of understanding of the higher risk posed by the patient's underlying illness and the need for close post-operative monitoring and care".
Significantly, neither Dr Curtin nor Professor Deva suggested that they considered any aspect of the actual surgery performed on Patient A by the Practitioner to have been deficient. Although ultimately holding different views as to their seriousness, the concerns expressed by each of Dr Curtin and Professor Deva with respect to the deficiencies in the Practitioner's pre and post operative care of Patient A were similar in substance.
In cross-examination (Tcpt, 25 July 2023, p 16) Professor Deva confirmed that he had not ever performed penile enlargement surgery, but had been "involved on 5 occasions, the last of which was in 2018" in "some corrective procedure in relation to function post-operative to a penile enlargement procedure".
Professor Deva was cross-examined (Tcpt, 25 July 2023, pp 20-21) about his criticism of the Practitioner's post-operative management of Patient A. Professor Deva clarified (Tcpt, 25 July 2023, p 21) that "basically it is about the making of this decision to say it is okay to fly back at the 24 hour time point. It is not about saying you can fly back at 24 hours, it is saying I am seeing you 24 hours after the procedure and I am fine with you now going home. Back interstate. That is the - the decision at that time point is the issue not the decision as to when to fly home. It was making a decision so soon after the procedure and allowing this patient to return interstate. That decision was made 24 hours". It was put to Professor Deva "In circumstances where Dr Mahadik directs and the patient has the support of a nurse in the intervening hours between when he is in Sydney and when he flies back to (interstate)?" To which he replied "So even the timeframe - I did not comment on the 2 day timeframe, I am commenting on when that decision was made by Dr Mahadik, and as you say, documented in his notes very clearly. The decision to allow him to go back interstate was made at 24 hours after assessing this patient following the surgery. And that is exactly what I have written so that's what I referred to as the decision making. Assessing a patient 24 hours after surgery I don't think is sufficient time, particularly in someone with a risk of infection".
Professor Deva was cross-examined at length with respect to the difference between his statement that Patient A developed a grossly infected wound dehiscence after his return home, and the hospital discharge summary recording "no gross infection". Professor Deva's view that there were some inconsistencies and uncertainty with respect to the "timeframes" and whether he was right about that is not really the point which, as Professor Deva made clear was the time at which the Practitioner suggested that Patient A could return home, the absence of effective post-operative care which that necessarily resulted in and the conditions from which Patient A suffered pre-disposing him to post-operative infection.
In cross-examination (Tcpt, 25 July 2023, p 30) with respect to Patient A's asserted "higher risk profile" Professor Deva said "Well, I think it is summarised here in Dr Curtin's report. He referenced it. I mean, it was - obesity, smoking and diabetes, particularly if it is newly diagnosed and potentially not fully under control, do increase the surgical infection and surgical dehiscence and problems with healing". When pressed to explain "what percentages are you talking about" with respect to those risks, Professor Deva said: "In general terms if you look at published risk of all procedures in terms of smokers, obesity and diabetes, the risk is increased up to threefold but it does depend on the procedure. So if you were asking specifically about body contouring procedures, penile enlargements, any procedure which involves, you know cutting into tissue, elevating tissue, potentially degloving tissue and devascularising tissue, the risk is up to threefold but could be higher based on what those parameters are."
Although Professor Deva was criticised in subsequent cross-examination for not providing references for his opinions, nothing to which he was referred suggests in our view that his opinion with respect to these issues lacked an adequate foundation in fact or expertise.
Professor Deva was reminded (Tcpt, 25 July 2023, p 36) that there were "four separate occasions when Dr Mahadik has had a discussion with the patient about risks". He was then asked "Do you maintain your opinion as expressed in your report that the material risks of poor outcome including wound dehiscence and infection were not clearly explained and accepted by the patient prior to the procedure". Professor Deva replied "I do". When asked (Tcpt, 25 July 2023, p 37) to explain the basis on which he made that assertion, Professor Deva acknowledged that the risk was noted in the record as "increased slightly", and that the Practitioner had discussed this with Patient A's anaesthetist.
Professor Deva considered that the Practitioner's medical records were not a "good record of properly working up a patient for an elective patient less than a day after first physically examining the patient. So the two virtual consultations were going through in detail but at arm's length, as we are doing today, on a screen, but the first time Dr Mahadik actually physically assessed this patient was notes talking about, you know with his anaesthetist and medication was okay and then proceeding with surgery 24 hours later, omitting, as Dr Curtin has noted, the risk of obesity, which he seemed to be unaware of, and the risk of smoking, combined with diabetes, I don't think is an adequate workup, understanding and communication of the magnitude of the risk, and the addictive factors of these three systemic, significantly systemic combinations for an elective cosmetic procedure of which there was no urgency".
Professor Deva further submitted that Patient A's symptoms "should have necessitated potentially a pause, particularly if it was the first time Dr Mahadik was actually physically examining this patient and looking at his body habitus and checking perhaps with the GP as to his diabetic control. Proceeding with surgery in 24 hours based on what I have seen in the notes and based on the standard which now holds, as Dr Curtin says, he is an equivalent of a consultant plastic surgeon, it, to me, is not the standard you would expect from some from one of my colleagues, of someone who is an equivalent of a consultant plastic surgeon".
In response to a question from the Tribunal (Tcpt, 25 July 2023, p 40) suggesting that Patient A "was offered penis enlargement surgery on the basis of not examining the patient" Professor Deva said "That is correct."
Dr Curtin was cross-examined in relation to Patient A's surgery and reminded that, in his report, Dr Curtin had raised "issues" around Patient A being diabetic, a smoker and "morbidly obese". It was put to Dr Curtin (Tcpt, 25 July 2023, p 116): "Q Where you say the risks of surgical site wound infection are significantly increased. And it seems likely that the extent of his obesity was not apparent to Dr Mahadik until the day before the scheduled surgery. Well, saying all of that, Dr Mahadik, as a doctor, could have, having renewed all of that the date prior to surgery when he saw the patient for the first time, said to him that surgery is either not suitable or should be deferred to a later date couldn't he? A Yes. Q And he should have, shouldn't he? A Probably."
Shortly thereafter Dr Curtin said: "I think the issue that you are making is a fair one that a face to face operation would have made him aware for the first time just how obese he was and, you know, his - he would have had - all other things he would have been able to assess probably on the video conference, on the video link. But, you know, he may not have really realised just how bulky this guy was and so I think the face to face did probably put a different complexion on his assess."
Dr Curtin agreed (Tcpt, 25 July 2023, p 119) that, post-operatively, Patient A suffered a significant infection which was a "pretty serious outcome for a medical procedure". Dr Curtin agreed that, in his report, he raised a concern that there was no record of antibiotics being prescribed for Patient A by the Practitioner, and agreed that not doing so "would invite your criticism". Dr Curtin agreed (Tcpt, 25 July 2023, p 120) that he was "critical of the lack of the regular face to face review post-surgery for this patient" and also about the "continuity of treatment, given that this patient was from interstate" to which Dr Curtin replied "Yes. Yes. It is not good". Dr Curtin agreed that he had also been "critical in relation to Dr Mahadik's record keeping for the patient, including in relation to the medical history that was taken".
The Practitioner was cross-examined with respect to Patient A's surgery. The Practitioner agreed that the first time when he saw the patient's penis was the day prior to surgery (Tcpt, 5 February 2024, p 38). The Practitioner agreed (Tcpt, 5 February 2024, p 39) that the patient was obese, although he did not "have a feel for how obese he was until (he) met him" at the face to face consultation the day prior to surgery. The Practitioner said that "in hindsight" he "completely" agreed that he should have "turned this patient away after seeing him at that face to face consult".
The Practitioner agreed that the "red flags" with respect to the patient included that he suffered from depression, that he was smoking 10 cigarettes a day, having 6 drinks a day and had had a stroke or mini-stroke or a TIA 2 years prior to his surgery, suffered from chronic pain and previously had a hernia repair or scrotal surgery. The Practitioner agreed that "in hindsight" he should not have conducted surgery on this patient (Tcpt, 5 February 2024, p 40). The Practitioner agreed that "looking back on it now, you as a surgeon conducting the operation had a responsibility to assess this patient as to suitability" (Tcpt, 5 February 2024, p 40). The Practitioner reiterated that he had "erred on this occasion". The Practitioner agreed that Patient A's diabetes was not controlled at the time of his surgery and that he had a higher risk of infection than a normal patient (Tcpt, 5 February 2024, p 41). The Practitioner agreed "100% that he didn't make appropriate arrangements for the continuity of care of this patient in Victoria".
The following exchange occurred during the Practitioner's cross-examination (Tcpt, 5 February 2024, p 44): "A All interstate patients are advised to follow up with the local GPs at five to seven days and then follow me - follow up with me ten days. But this happened in between. Q Did you speak to his GP before he underwent surgery? A No, I didn't. Q Do you think looking back on it now that he [sic] should have? A Yeah, I agree. Q There is a post-operative follow up visit … and this is where the patient saw you, I think it was the day after the procedure. A Yep. Q And it was your view … that he could fly home in two days? A That's correct. Q Did you see him again before he flew home after that consultation? A No, I haven't seen him. Q Do you think, looking back on it now, the day after the procedure was an appropriate time to assess him as to suitability to return home? A Look, I mean, for surgical patients post-op follow ups are organised for two reasons. One is the post-op follow up I organise within the first 48 hours to exclude any haematoma. The second post-op follow up is usually about ten days, ten to twelve days, when you suspect any secondary infection. But it's very unlikely that in between, once you see then exclude a haematoma in the first 48 hours, in about ten days usually - so to answer your question, if I saw him again for the second time - I saw him on the first day, if I saw him on the third day before flying out, that wouldn't have avoided his infection."
The Practitioner agreed (Tcpt, 5 February 2024, p 45) that criticism of his record keeping for Patient A in relation to the medical history that was taken was justified.
The Practitioner explained (Tcpt, 5 February 2024, p 47) that "nowadays" all patients from interstate are accompanied by someone and advised not to return interstate for five nights after surgery.
The Practitioner agreed (Tcpt, 5 February 2024, p 48) that Patient A underwent four procedures at the same time. The Practitioner was asked "Looking back on it now, do you think you should have staged those procedures?" The Practitioner ultimately agreed that "If someone is this obese, you can, you can stage this procedure. I will stage this procedure first doing pubic lift alone and then the penile part".
Cross-examination of Professor Deva and Dr Curtin and of the Practitioner ultimately renders our findings with respect to the Practitioner's treatment and care of Patient A largely uncontroversial. As Professor Deva and Dr Curtin both acknowledged, their experience of surgery of the kind performed on Patient A was extremely limited. That limitation does not ultimately assume significance in view of the large measure of actual or implied agreement between them with respect to Patient A's pre and post operative treatment and care, and the Practitioner's admissions with respect to them.
We find that the Practitioner made an error of judgement in that, having become aware, at the latest, the day prior to Patient A's surgery, that proceeding with it the next day was potentially risky, he nevertheless did so. One of the risks arising from Patient A's conditions actually materialised. Having made an error of judgement in proceeding with the surgery, the Practitioner made a further error of judgement in not seeing Patient A and assessing his condition before agreeing that he could return home interstate. It was also inappropriate for the Practitioner to rely upon a virtual examination of Patient A 10 days after his surgery.
The evidence does not establish that the surgery which the Practitioner actually conducted on Patient A was itself less than competently performed. The Tribunal's concerns about the implications for public health and safety relate to the Practitioner's failure to properly assess whether surgery on the patient was appropriate, when, as he admitted before us, it was not. If, on proper assessment, some surgery on the patient was considered safe, failing to sequentially undertake and successfully complete that surgery, and failing to manage the patient's care post-operatively were significant deficiencies in the treatment and care of Patient A. Each of these criticisms is serious, and, if repeated, could have adverse, or more adverse consequences for a patient than those which Patient A suffered.
The Practitioner's evidence revealed insight into the shortcomings of his treatment and post-operative care of Patient A. The Tribunal is satisfied that the Practitioner would not consciously make those errors again. It does not mean however, and is not suggested to mean that the Practitioner does not require mentoring in relation to those aspects of his practice, given that the Practitioner, for reasons which he explained, and which the Tribunal does not criticise, does not rule out undertaking performing phalloplastic surgery in the future.

[10]

Patient B

Dr Curtin (R1 Tab 19) referred to the surgery which the Practitioner performed on Patient B on 31 March 2022 at the Kingsgrove Day Hospital. Dr Curtin did not suggest that the surgical technique utilised by the Practitioner was inappropriate, or warranted criticism. Dr Curtin referred to Patient B's post-operative complaints, and expressed his view that, having regard to the patient's statements and photographs he had seen, the Practitioner's care and treatment in the post-operative period was satisfactory.
Dr Curtin suggested that it "would have been desirable for (Patient B) to have lost weight before proceeding with this elective surgery, but clearly he had experienced difficulties with weight loss, and had remained obese despite undergoing a gastric sleeve procedure in 2012". In addition, Patient B had undergone cervical discectomy in 2020, and hip replacement in 2015.
Professor Deva (R1 Tab 9) referred to the patient's post-operative complaints and noted that the patient had an elevated BMI of 36 which was "technically obese" and that the Practitioner's records did not reveal any "preoperative blood workup". Professor Deva referred to the patient's history of gastric sleeve surgery, and absence of documentation of any previous or intended weight loss.
Professor Deva noted that the Practitioner's records did not document a "clear discussion of the risks of surgery for patients who are obese or the need for post-bariatric patients to attain and maintain a stable weight prior to any skin/fat resection and/or liposuction. The timing of skin excision/liposuction (pubic lift) surgery on this patient prior to his weight loss and maintaining a stable weight does not constitute acceptable practice in the treatment of post-bariatric patients". For those reasons Professor Deva considered that the Practitioner's care and treatment of Patient B showed "significant failing in proper preoperative assessment and proper informed educated consent as to the risks of surgery".
In view of the Practitioner's evidence with respect to advice given to the patients whose complaints gave rise to these proceedings, and the absence of evidence from the patients, we cannot be satisfied that the Practitioner failed to explain the risks to the Patient B. Nothing turns on that, given that it was ultimately the Practitioner's responsibility to either refuse to operate until the particular risks of the patient were addressed or alleviated or, if he was to proceed, to obtain a clear written acknowledgement from the patient that he had pointed out the particular risks which the patient faced, and particularly the post-operative risks which the patient faced because of his circumstances. The evidence does not establish that the practitioner did that with respect to Patient A or Patient B.
As Professor Deva was cross-examined first, we will refer first to that cross-examination. It was suggested to Professor Deva (Tcpt, 25 July 2023, p 43) that his "criticism in global terms of Dr Mahadik was that you say there was an insufficient educated consent on the issue of obesity, and that the preoperative assessment was significantly below as he needed to stabilise his weight preoperatively, correct?". Professor Deva replied "Yes". Professor Deva was asked whether "After penile enlargement surgery or the corrective surgeries that you have been a party to, it is common, isn't it, to have bruising and swelling post-operatively?". Professor Deva replied "Yes".
Professor Deva said that in surgery he had "been involved in replanting penises that have been amputated" it was important to "reattach a penis to prevent erections using - usually using Valium" but that anti-erection medication was not 100% effective to prevent erections. That concession was consistent with the Practitioner's evidence, and militates against adverse findings with respect to issues with Patient B's stitches post-operatively as a result of erections.
Professor Deva was asked (Tcpt, 25 July 2023, p 44) "and noting that this patient was obese at the time of his surgery in 2021, and noting his sleeve gastrectomy was some 12 years earlier, it would be fair to say … 12 years after sleeve gastrectomy is a sufficient amount of time, isn't it, to allow a patient to stabilise their weight?". Professor Deva replied "It depends on whether other treatments the patient has had, whether they are adherent to diet and exercise, whether they are on injectable, such as Ozempic, so there are many facts that then control weight post-sleeve gastrectomy. Most of the weight is lost early but it is important in anyone who has had bariatric surgery or weight loss surgery to get a clear understanding of what their weight gain and weight loss history is and to ensure that their weight has been stable for some time prior to offering any sort of body contouring surgery".
It was put to Professor Deva that "Nowhere in this patient's complaint does he state that he was not on a stable weight at the time that he presented in Dr Mahadik's rooms?" Professor Deva replied "It is difficult to say. It was not documented. The weight history was not documented in the material that I looked at". Professor Deva agreed (Tcpt, 25 July 2023, p 45) that the patient had not given any "indication as to an instability of weight prior to presenting to Dr Mahadik". Professor Deva added that "This is not so much from the patient, it is from the doctor assessing the timing of surgery so I don't understand the - I don't understand why that is an issue". It was suggested that it was "not a question of complaining, it is just about giving an accurate history, isn't it, you'd agree with that?". Professor Deva replied "True. So in the list of complaints that I have in front of me, pain, bruising, swelling, poor surgical technique, widespread infection, atrocious scarring, urine leakage, erectile dysfunction and pain and mental suffering. These are the lists from the patient complaint. It is true to say it is nothing about weight loss or gain". In the absence of evidence from the patient, and in view of the number of complaints he raised, it is difficult to criticise the Practitioner on this issue in isolation.
Professor Deva was referred to the consent form signed by the patient on 28 February 2022 in relation to pubic lift and liposuction which noted "Obese individuals who intend to lose weight should postpone all forms of body contouring surgery until they have been able to maintain their weight loss". It is not in doubt that Patient B signed that document. There is no evidence suggesting that the patient did not, or should not have understood what the form said about weight issues.
Professor Deva subsequently agreed (Tcpt, 25 July 2023, p 47) that the documentary evidence was that Patient B understood that an obese individual who intends to lose weight should postpone all forms of body contouring surgery until they have been able to maintain their loss. Professor Deva accepted that the "documentary evidence" supported the Practitioner's contention.
Professor Deva was referred (Tcpt, 25 July 2023, p 48) to the Practitioner's account of seeing Patient B 5 months after his last review, when he presented as "a completely different man, exuberating confidence and energy" having, he told the Practitioner, lost 13 to 15 kilos in weight in the previous 3 months. There is no reason to doubt that the Practitioner accurately recorded what Patient B reported to him. Professor Deva disagreed with the suggestion that it could be implied that Patient B did not intend to lose weight prior to his surgery. Whether he did or not is not relevant for present purposes- Patient B's weight was what it was when he had his surgery. Professor Deva accepted (Tcpt, 25 July 2023, p 49) that one of the "driving forces for men in having that procedure done is that it proves their self-confidence and that can have a positive effect on their motivation to either lose weight, eat well, exercise, be pro social, seek intimate partners".
Professor Deva suggested that "To protect the practitioner there has to be mirroring of not just prior, initial, lengthy consent paperwork but a reflection of that in the medical record, and ultimately, as we both agreed, a corroboration from interviewing these patients directly and finding out what process, did they have time and space to actually understand what they were initialling and signing. And I think that's a very important step in the elective cosmetic surgery".
In subsequent cross-examination Professor Deva reiterated his contention that there needed to be more than "paperwork" to establish that patients understood the risks of their proposed surgery and were thereby able to give an informed consent to such surgery. When asked to "point" to a document which stated that the consent forms that Dr Mahadik was using at the time of the surgery which gave rise to the complaints were "not within the standards expected", Professor Deva agreed that he was unable to point to any such documentation. Professor Deva subsequently agreed (Tcpt, 25 July 2023, p 53) that there was "no aspect of the written documentation that Dr Mahadik was relying upon" at the time of the surgery which gave rise to the complaints that was "anything other than consistent with the requirements for consent under the guidelines" which have come into place.
Professor Deva reiterated (Tcpt, 25 July 2023, p 54) that he "had no issue with the content of the paperwork provided, it is the manner in which it was used and the effectiveness of whether informed educated consent was achieved for each of these patients that have lodged complaints. That's the view that I think we need to address rather than whether or not the documentation was compliant or adequate". The Practitioner's evidence in cross-examination suggests that he now has a much better appreciation that patient selection involves more than merely relying on patients having signed consent forms.
Dr Curtin was cross-examined briefly in relation to Patient B's care and treatment. Dr Curtin was reminded of the concern he recorded in his report with respect to Patient B's obesity, and the following exchange occurred (Tcpt, 25 July 2023, p 122): "Q It was not your view that it would have been desirable for him to have lost weight? A Yes. Q And it would have been better for that to have occurred prior to proceeding with the surgery, wouldn't it? A M'hmm. Q And are you aware that Dr Mahadik says that he later did lose a lot of weight after the surgery? A Oh, did he? Yes, well, I'm sure it would have been desirable - as I said, it would have been desirable for him to have lost weight before the surgery."
Dr Curtin nevertheless remained of the view that Patient B being "borderline morbidly obese in and of itself raises issues around his (the Practitioner's) decision making for that surgery". Dr Curtin remained of the view which he had expressed in his report, and reiterated however that it would have been "preferable" for the Practitioner to have proceeded with the surgery after the patient lost weight. Dr Curtin properly conceded that he was "not in a position to comment on the appropriateness of the actual surgery technique itself".
As with Patient A, neither Professor Deva nor Dr Curtin suggested that he had sufficient experience or expertise to express views about the Practitioner's actual surgical technique with respect to Patient B. The evidence does not reveal defects in the Practitioner's technical skills with respect to Patient A or Patient. In the cases of other patients, the criticisms relate more to the Practitioner's choice of surgical technique than to the manner in which he employed the chosen technique. In the cases where the Practitioner was considered to have, or admitted that he had made mistakes, and his technical skills were below the expected standard, the expert evidence suggests that the Practitioner's mistakes were indicative more of inexperience than incompetence. In some instances, the evidence suggests that the Practitioner may not have used the preferred surgical technique, but falls short of establishing that the technique he employed fell below the expected standard.
In cross-examination of the Practitioner (Tcpt, 5 February 2024, p 53) with respect to Patient B the following exchange occurred: "Q He, in his complaint, said that he did (had) an extreme amount of pain and an unusual amount of swelling, bruising after the surgery. Do you accept that that was the case? A So I accept that he had pain which was more than what he expected, but the swelling and bruising were just consistent with what he had, the procedure he had. Q Did you explain to him prior to the procedure that that was a potential risk? A Yes, I did. Q He also says that he had an infection within the first 24 hours after surgery, do not accept that that was the case? A No, not at all. Q So it's your evidence that there was no infection? A Yeah, not in the first 24, 48 hours. Not in the first - not until the eighth day after the surgery. Q On the eighth day there was an infection? He also says that there was an issue with his stiches separating, leaving a large gaping hole at the wound site? A Yep. Q Do you accept that that happened. A Yes, that did happen. Q The stitches in the pubic region began to separation? A So the, the only stiches which came apart were the stitches at the junction of the penis and the scrotum underneath the penis. So we call this the penoscrotal junction. There were … two to three stiches which came apart. They started coming apart on the sixth post-operative day and on the eighth post-op day they had dehisced to leave a wound the size of a one dollar coin. So out of all the suture lines he had, one suture line dehisced at the junction of the penis and the scrotum which was of a one dollar coin size. Q He also underwent a circumcision with you? A Yeah. Q Did he have stiches for the circumcision? A Yeah. Q Do you accept that the stiches of the circumcision also came apart? A No, not the circumcision, it didn't come apart. Q He also says that he contacted you as he was concerned about the amount of pain and was worried about needing a skin graft and IV antibiotics did that happen? A Yes, he did. Look, my practice - it's a standard of my practice that I call patients on the evening of the surgery and the day after the surgery. So on the evening he didn't pick up the phone, on the next day I spoke to him when he has complained about pain. The pain eased from day 2 to 3 and it is significantly after day 4, but when I spoke to him on day 1 a couple of things - he had a pubic lift, so the lower skin flap was sutured to the rectus muscle and he was advised not [sic] complete bed rest with toilet privileges at all, but he was coming on and off in the bed wanting to go for a walk, number 1. So that suture did hurt him and the second is the pain relief he was taking, he wasn't taking - I think there could have been a communication gap that - with the nurses and him. He wasn't taking the appropriate amount of pain relief which was advised to him again and from day 2 the pain started easing off, but it's right to say that he didn't expect that, that much of pain."
The Practitioner agreed (Tcpt, 5 February 2024, p 55) that Patient B had a BMI of 35 and had undergone gastric sleeve surgery in about 2010, after which the Practitioner understood that the patient "lost his weight significantly and over the last 4 to 5, 4 to 5 years he had - he did a lot of exercises and all and in spite of that he wasn't able to reduce his weight any further. So roughly 5 to 6 years on he was on his same weight when he came in and then later on, obviously for other reasons, he opted to go for the procedure".
The Practitioner rejected a suggestion that, given the patient's weight, at 110 kilograms, he should have deferred surgery until the patient lost weight. The Practitioner said (Tcpt, 5 February 2024, p 56) that, in response to his suggestion that he should reduce his weight, the patient had said to him "Look, no matter what I do, I'm not, I'm not able to lose more weight and I have this other problem which I want to get rid of". The other problem related to his wish to "start a new life" and undergo the phalloplastic procedure which could improve his "level of confidence". There is no reason to doubt that evidence. The practitioner reiterated that, notwithstanding his BMI index, Patient B was "without any medical comorbidities" and had "hypertension which was well controlled" and was thus "the right candidate".
The Practitioner agreed (Tcpt, 5 February 2024, p 57) that the patient underwent "length and girth" phalloplasty, a pubic lift and pubic liposuction with an aesthetic circumcision and scrotal repair, the surgery being estimated to be of five and a half hours duration. The Practitioner said that he had asked the patient about his blood pressure and had been told that it was normal and that the patient had "checked it with my GP". The following exchange occurred: "Q Do you think, looking back on it now, that you should have staged the surgery for this patient? A Look, in hindsight - so this - I'm operating on a single area. Recovery remains the same. Now, the problem which he had, which is the dehiscence at the site of his scrotum and his penis, as I did mention, this will happen even if I did that one single procedure because of the nature of the procedure so the answer to your question is yes and no that henceforth if I have to operate on them, I would stage them into first I do a pubic liposuction lift and then go to the penis. But in particular for him, I don't think doing these procedures together has caused the wound dehiscence. Q The bruising is greater doing multiple procedures, isn't it? A Look, liposuction will cause bruising. So if I did not do a liposuction, he would have - he wouldn't have had much bruising at all. So the bruising which he was taken aback by was from the liposuction of his pubic area because before the pubic lift I have to liposuction. The lift can't reach on the sides, so the sides were liposucked and that caused the bruising. So the bruising is in the skin. So there's no - so the bruising necessarily does not cause complications, neither did it cause any complications in him. Q The pain is greater with multiple procedures as well, isn't it? A So the pain he had - look, the site - the incident site, as long as the patient is taking regular pain relief as recommended and there is no haematoma and other things the pain is - I wouldn't say there is no pain, because every surgery there is pain - but pain is not intolerable."
The Tribunal asked the Practitioner (Tcpt, 5 February 2024, p 58) whether he had read the recent cosmetic plastic surgery guidelines from 1 July 2023. The Practitioner replied that he had not. The Tribunal then informed the Practitioner "In terms of a future practise, if we envisage one in the future, with you performing phalloplasties on a lot of patients from interstate, and the guidelines state that you must see the patient twice, or there must be two preoperative consultations, one of those at least must be in person with the practitioner who will perform the surgery. Following that, there must be at least a seven day cooling off period." The Practitioner was asked whether he thought in those circumstances he "may change your practise". The Practitioner replied that such regime was "already in place". The Practitioner conceded (Tcpt, 5 February 2024, p 59) that first seeing the patients the day prior to surgery was "not ideal" and that in future he would "need to get them up at least once and at least 7 days" prior to surgery.
As became apparent later in the Practitioner's evidence, the Practitioner is probably more experienced in performing surgery of the kind performed on Patients A and B than all but a handful of Australian surgeons. The evidence does not enable the Tribunal to be satisfied that the surgical skill employed by the Practitioner with respect to Patient B was deficient, although, as with Patient A, his pre and post-operative management of Patient B's care was lacking. The Practitioner's decision, in Patient B's circumstances, to perform all of the procedures which he did on Patient B in one operation was, as the Practitioner effectively acknowledged, not in Patient B's interests. The Practitioner's judgment in doing so was lacking. The Tribunal accepts that the Practitioner is unlikely to err in that way in the future.
As with all other patients, the Tribunal has not heard evidence from Patient B. There is no reason to reject the Practitioner's evidence that the Practitioner raised the matters which he says he did with Patient B, or to reject the Practitioner's account of what Patient B said in response to those questions. As the evidence with respect to all of the patients in these proceedings confirms, drawing a bright line between surgical skill and patient satisfaction is not necessarily easy. The Tribunal's findings with respect to Patient B are largely in the nature of those previously recorded with respect to Patient A. There is a need for the Practitioner to undergo further mentoring with respect to assessment of patients pre-operatively. Such mentoring should involve improving the Practitioner's skill in determining the appropriateness of performing any surgery, and, if surgery is considered to involve no avoidable risks, performing in one surgical intervention only those procedures which can be performed safely and without avoidable pain or suffering for the patient and appropriately managing the post-operative care of patients.

[11]

Patient C

Dr Curtin said in his report (A1 Tab 19) that the Practitioner's operation note did not "entirely explain where the skin lesion (which he removed from Patient C's left lower eyelid) was located on the eyelid and what measures were taken to ensure that the additional excision did not compromise the blepharoplasty procedure, where judging the correct amount of skin to be excised is critical in obtaining a good result". He further observed that "In any event, post-operatively there was some persistent ectropion evident in the left lower lid following surgery, and eventually, corrective surgery was carried out on 28/12/21. The left lower eyelid surgery on that day was also combined with a right sided forehead lift. The forehead lift appears to have been successful but it appears that the left lower eyelid corrective surgery did not completely correct the ectropion deformity."
Dr Curtin's opinion was that the Practitioner "appears to have provided a satisfactory level of care to (Patient C), but unfortunately the end results of surgery to the left lower eyelid were unsatisfactory. The initial surgery was probably compromised by the excision of the skin lesion, and the resulting ectropion was not corrected by the second procedure". Dr Curtin considered that the Practitioner's records were "complete and satisfactory". Dr Curtin's opinion was that "the lower lid blepharoplasty procedure is a particularly demanding one but unfortunately the treatment provided by Dr Mahadik in this case fell below that expected of a competent medical practitioner".
After referring to the details of Patient C's treatment emerging from the Practitioner's clinical records, and pre and post-operative photos of the patient, Professor Deva said in his first report (R1 Tab 9) that he had "concerns as to the technique of lower lid blepharoplasty performed by Dr Mahadik. The procedure of canthopexy and then subsequent canthoplasty is poorly documented. I could not see an additional upper lid incision in any of the post-operative photographs, which is necessary for canthal fixation. This is to ensure that the canthus is pulled superiorly, which protects the lower lid from retraction and/or ectropion. My concerns are that the fixation of his left lateral canthus was not performed adequately and/or in the correct position in both his primary and revision surgery. This would explain why the patient's deformity has persisted in spite of Dr Mahadik's attempt at revision". Professor Deva added that "The additional excision of what turned out to be a benign skin lesion at the time of lower lid surgery significantly contributed to a shortage of skin on this left side. With a less than adequate canthal suspension procedure, the ectropion remains uncorrected. It will be difficult to correct this longstanding deformity after both failed primary and revision surgery".
In cross-examination of Professor Deva the following exchange occurred (Tcpt, 25 July 2023, p 59): "Q Would you agree that giving an opinion as to whether or not revision surgery has been successful or not in the absence of the actual paragraphs [sic] is not the ideal position to take for an expert witness? A I would say that's, at this stage, putting - looking at the information I had in front of me, which is this patient presented for a procedure, underwent a procedure, underwent a revision procedures, had an additional skin lesion excised, which turned out to be benign, and who was still unhappy and now is complaining about the need for further revision surgery is what I have commented on. As I said at the beginning, and we both agreed, it would be really good to see this patient face to face and assess what the actual outcome has been and whether or not revision surgery was necessary. So I think a lot of material would - and important information - would be feigned [sic] from actually having these patients examined face to face."
As is not in doubt, and unsurprising in the circumstances, neither Professor Deva nor Dr Curtin had the opportunity to see any of the patients with whom these proceedings are concerned in person, and only saw photographs of them taken some time ago. To the extent that the absence of that opportunity impacts upon their evidence, we do not perceive that it ultimately impacts more upon the evidence of one expert than the other- more detailed and up to date information may have assisted either party's case. Given their expertise, and the thoroughness of their consideration of the issues presented for their opinions, the Tribunal's determination of the proceedings is not adversely impacted by the limitation to which Professor Deva referred.
In cross-examination, it was suggested to Professor Deva (Tcpt, 25 July 2023, p 59): "A When you see a patient who has had multiple revision surgery or one revision surgery and still a poor outcome then it usually means that the initial was - may have been compounded and not adequately addressed. Q And do you … A And certainly patients requiring a third or a fourth revision, in my experience, it is very difficult because now you are dealing with initial procedure and a subsequent revision procedures that failed to fix the problem and potentially could make revision surgery worse and more unpredictable."
Professor Deva reiterated (Tcpt, 25 July 2023, p 60) that his evidence would have been "strengthened significantly" if he had been "given the chance to see each of these patients in person". As we have earlier recorded, that was a limitation with which both Professor Deva and Dr Curtin had to contend. It was suggested to Professor Deva that "In many instances, you simply don't have post-operative photos of the procedure", or "or the revision" to which Professor Deva replied (Tcpt, 25 July 2023, p 61): "A photo of the result after the first procedure, so there was - there was an expected outcome and in terms of the expected outcome from his first procedure. I think this patient did show quite significant ectropion as a result of Dr Mahadik's first procedure. Q Yes, but --- A And so the correction of that significant ectropion, as a result of technique and additional excision of a benign skin lesion from the lower lid, does point, I think, to some significant technical failures."
It was put to Professor Deva (Tcpt, 25 July 2023, p 64) that it was "correct to say that the difference between the first post-op and the subsequent post-op image suggests that the conduct of the patient may explain what ended up as a left eye droop". Professor Deva replied "I disagree with that. In my experience, I ask all patients to massage their scar, and I give them clear instructions on how to do it. And I don't think aggressive massage alone would result in the droop of the eyelid of that magnitude."
In cross-examination of Dr Curtin (Tcpt, 25 July 2023, p 122) he was asked "Do you have an understanding now of where the additional excision was carried out?" Dr Curtin replied: "A Well, I think the extra excision must have been either in the eyelid or very close to it and so it would have, to a degree, comprised [sic] the operation. Q And led to the complications afterwards, potentially? A I'm not sure that I ever saw photographs of this chap so I - I mean, there's all sorts of reasons why you can get ectropion after a lower lid blepharoplasty, there's a whole range of reasons. Loss of - excessive skin excision is just one of them. But that's one that is a concern. So I don't - I'm not quite sure why he got an ectropion but he got it. And it is a poor result."
Dr Curtin reiterated his "view that Dr Mahadik, in this case, fell below the (standard) expected of a competent medical practitioner?" replying "Yeah, I think that's probably right". When asked why he was of that view Dr Curtin said (Tcpt, 25 July 2023, p 123): "A Well, the result speaks for itself. It's a tricky operation, you have to be very careful doing it and you have got to be conservative and it's just the sort of operation that happens to people when they are starting off in cosmetic surgery. Q And was that surgery something that he was doing at Westmead, or? A Well, not precisely but indirectly because he would have been taking out skin cancers from eyelids and having to deal with those issues, very similar issues, and he would have known about canthoplasty procedures and ways of supporting the lower lid after surgery, after you have operated on it. So he would have understood the principles behind the procedure, and I'm sure he had seen the operation carried out lots of times. So I just think there are some judgemental errors, technical errors probably during the procedure."
In cross-examination of the Practitioner the following exchange occurred (Tcpt, 5 February 2024, p 64): "Q (Patient C) was the one who had surgery in relation to his eyes, the blepharoplasties. Do you say for this patient that part of his complication, that is, complications were caused by over massaging, is that right? A Possibly, that's what he says. Q Do you think that there could have been any other causes? A I don't believe there could be any other cause in his situation. Q It was Dr Deva's evidence that he did not think that aggressive massage alone would result in a droop of the eyelid of that magnitude. Do you agree or disagree with that? A I disagree with it. Q He also raised an issue about the placement of the scar and the scar being normally going under the eyelashes to try and hide it? A Yep. So, look, there are 2 types of incisions. The most common incision for a lower blepharoplasty is subciliary, which is under the eyelash. In (Patient C), since there was a lesion - a lesion is a - it's a cancer, a small suspicious cancer lying underneath that line of incision, I decided to opt for the second option, which is a mid lid incision. So what I usually do in a mid lid incision there is a very fine line running between the eyelash and the (not transcribable). You ask the patients to smile as well and the crease, you mark the crease. So his procedure was done by a mid lid incision and the incision, regardless what incision you do, is not known to cause ectropion, which is the upturning of the eyelid. The choice of the incision is not known to give - is not one of the reasons why patients can have an ectropion. So that choice of the incision was tailored to accommodate the excision of the skin cancer sitting at the lower lid, eyelid. Q Dr Curtin was of the view that it was a tricky operation, do you agree with that? A Look, I agree because lower eyelid lesions are a very - I've commonly done these procedures for skin cancer excision is of the lower eyelids. How they work, for the context of what he's, what he's talking, this is trickier than a breast augmentation, I agree."
The Practitioner referred (Tcpt, 5 February 2024, p 65) to having done "more than maybe fifty, if not one hundred, ectropion, treating the complications" a number of which resulted from surgery undertaken by other surgeons. The Practitioner suggested however that for blepharoplasty for eyes he was "pretty confident and I am very confident about blepharoplasties". The following exchange also occurred (Tcpt, 5 February 2024, p 66): "Q Dr Curtin was of the view that your conduct with this patient fell below the expected standard. Do you disagree with that? A I disagree with it, yeah. Q Dr Deva was of the view that the fixation of the left lateral canthus was not performed adequately and/or the correct position in both the primary revision surgery. Do you agree or disagree with that? A I disagree with it. Q He was also of the view that the additional excision of the known skin lesion contributed to a shortage of skin on the left side. A Look, as I said, anything you excise is going - there will be, there will be a loss of tissue. The tissue has to (be) brought from somewhere else which has to be wart [sic] from somewhere else which, which was done. Now both Dr Curtin and Dr Deva in their opinions - the opinions are based on the assumption that … that the patient still has the same problem. So he had a procedure which the - I believe the canthoplasty suture fell off. He had a revision ectropion repair which was done which I have performed many of them. The procedure went very well."
The Practitioner referred to the absence of complaint by the patient for 9 months and to the request for money which he subsequently made. Patient C did not give evidence in the proceedings. It has thus not been possible for his version of events to be tested, or for the Tribunal to have evidence of the ultimate outcome of the surgery which the Practitioner performed on him.
The evidence of Professor Deva and Dr Curtin does not in our view give rise to any difficulty in making findings with respect to Patient C's treatment. The passages of the cross-examination of Dr Curtin to which we have referred comfortably satisfy us that, probably for the reasons suggested by Dr Curtin, and presumably in part by reason of attempting multiple procedures and inexperience, the Practitioner secured a "poor result" for Patient C. Whether these were "judgemental errors" or "technical errors" during the procedure is not a matter about which we can or need to make findings. It is sufficient to find that, as with Patients A and B, had the Practitioner not attempted to do as much as he did during Patient C's initial surgery the patient's subsequent complications, and potential need for revision may have been obviated.
The evidence highlights the importance, until he is a more experienced cosmetic and plastic surgeon, in the Practitioner being mentored with respect to pre-operative procedures or, as Professor Deva described it in his oral evidence "working up" the patient for surgery. Unlike the surgery performed on Patients A and B, the surgery performed on Patient C, as Dr Curtin suggested, probably involved "technical errors" on the part of the Practitioner, and fell below the standard expected of a surgeon. The evidence suggests that the Practitioner's post-operative management of Patient C was also less than optimal. The Practitioner's inability to acknowledge the opinion of his own expert with respect to the technical skills he demonstrated in the surgery on Patient C was disappointing, and not consistent with his willingness to acknowledge shortcomings with respect to the care or treatment of other patients. The Practitioner would be il-advised to adopt a similar approach to advice given to him by any mentor appointed pursuant to the conditions which the Tribunal will attach to the Practitioner's registration.

[12]

Patient D

In his first report, Dr Curtin did not refer to Patient D's surgery. Professor Deva did in his report, to which Dr Curtin responded. It is convenient in those circumstances to refer to Professor Deva's report with respect to this patient first.
Professor Deva referred (R1 Tab 9) to the history of Patient D's treatment and noted that, when assessed post-operatively on 17 December 2021 the patient presented with "swelling as expected". Professor Deva referred to the patient's further follow up on 19 April 2022 when the Practitioner "documented looser skin and scarring to her left earlobe with marionet lines on the left side". Professor Deva expressed the opinion that "From her early post-operative photographs, I do have concerns about the operative technique utilised. The operation report documents a release of the mandibular ligament through a submental incision. This would be difficult and dangerous potentially placing the marginal mandibular branch of the facial nerve at risk. There are also prominent lower lid blepharoplasty scars which are at the lower lid cheek junction. It is more usual to site the scar either subciliary or mid lid".
In his second report (A1 Tab 20) Dr Curtin said that it: "seems odd that Dr Deva objects to a submandibular incision, a procedure often used in facelifts to remove submental fat and also to divide prominent bands of the platysma muscle. The short incision is made in the midline of the anterior neck and does not place the marginal mandibular branch of the facial nerve at risk. I would agree that the noticeable scars in the lower eyelids are unsatisfactory, but possibly the post-op photographs were taken within a few weeks of surgery when the scars were more noticeable. The skin of the lower eyelids is very tolerant to surgical incisions and noticeable scars in the long term are quite unusual. It is not known when these particular photos were taken but any images taken within 3 or 4 months of surgery are unlikely to give an indication of the final result. Some scars however can take 12 months to completely settle."
In cross-examination (Tcpt, 25 July 2023, p 65) Professor Deva was asked whether he would "agree that the photographs that you reviewed, you had no information as to the date?" to which Professor Deva replied "I know, once again, these were not time stamped so, you know presumably, one has pre-op and one has post-op" photos indicating scarring. Professor Deva acknowledged that there had been no complaint by the patient.
It was suggested to Professor Deva (Tcpt, 25 July 2023, p 66): "Q It would be correct to say isn't it, that you can't comment on scarring in the absence of knowing what date and time these photos were taken post-operatively because scarring resolves with time, doesn't it?"
Professor Deva replied: "It is not so much about the scar appearance, it is the placement of the scar, that's what I was commenting on. So in lower lid blepharoplasty generally speaking you would put the scar under the eyelashes just to try and hide it, or through the mid lid, but this appeared to be a lot lower, and in fact, looking at the previous patient, the scar also sits at the junction between the eyelid and the cheek. Now there's two problems with that position. This is talking purely technically, as someone who does a reasonable number of upper and lower lid blepharoplasty surgery, that the placement of that scar is the issue I have. So it is not that the patient is complaining that the scar is (indistinct) and I can see there's no timeframe, it is the technical aspect of where that scar was placed. And this, in line with the previous eyelid surgery, makes me concerned about the technique that has been utilised. That was a point, not just that was bad or good or make any comments about the timeframe. There's an additional technical point here where in the operation report he says the mandibular ligament was divided through a submental incision and I pick up this again on my response to Dr Curtin's report. So once again, for the benefit of the Tribunal, if I can explain. A submental incision, if you can see on the screen is here under the chin. The mandibular ligament sits at the corner of the jowl so generally speaking, if you are dividing the mandibular ligament it is much safer to come from this direction rather than from this direction. And the mandibular ligament is an important structure because you need to release that, as we all know, to create a good jawline and contour but it sits very close to the marginal mandibular nerve that can be at risk from their surgery. So it was more a comment on the technical aspects of the surgery as based on the operation record and based on the photograph. Not to say that the scars were good or bad, or that the patient should be complaining about them."
Professor Deva was then referred to Dr Curtin's differing view in relation to that issue, to which he replied (Tcpt, 25 July 2023, p 67) that Dr Curtin "took that as submandibular incision as opposed to a submental incision so I stick to the fact that having performed a lot of facelifts, having been trained in this, that the submental incision should not need to go all the way (indistinct) divide the - could well be an error in the operation report, so I give the benefit of that doubt, but that in addition to the placement of the lower lid scars in this patient and the last patient does make me concerned about the technique and the training that is on display".
Dr Curtin agreed in cross-examination (Tcpt, 26 July 2023, p 27) in response to the suggestion that "You yourself raised concerns about the noticeable scars in the lower eyelids being unsatisfactory" that he had done so. The surgical procedure which the Practitioner had utilised, which Professor Deva explained in some detail in the passage we have recorded above, as a procedure, was said by Dr Curtin to be "not dangerous, but it's just a bit awkward" (Tcpt, 26 July 2023, p 28). It was suggested that the procedure "potentially places the marginal mandibular branch of the facial nerve at risk, doesn't it?" to which Dr Curtin replied "Not, if you're in the right plane".
In response to further questions about the risks asserted by the Council to have been inherent in the procedure adopted by the Practitioner, Dr Curtin refused to accept that the procedure potentially placed the marginal mandibular branch of the facial nerve at risk, and said (Tcpt, 26 July 2023, p 30): "I think you would need to get Dr Mahadik to explain exactly, because I'm not quite sure how you would release the mandibular ligament through that incision. I have to say that, you know, people talk about the mandibular ligament and the maxillary ligament. That was never something that I really ever considered doing, facelift surgery, but then facelifts may have been done in a whole lot of different ways for many years and they can be done at different levels, sometimes getting right up against the bone and - so that's where some of these ideas about mandibular and maxillary ligaments have come in. I suspect that - that this has been wrongly - Dr Mahadik has made a mistake in his terminology here, but, as I said, you'll have to ask him about that."
In cross-examination of the Practitioner (Tcpt, 5 February 2024, p 68) with respect to Patient D's surgery the following exchange occurred: "Q It was Professor Deva's view that there's a prominent lower lid blepharoplasty scars which are at the lower cheek junction. Do you agree with that? A Look, so, so again these, these photos - they were taken at a - roughly at a 10 week mark. And with any scarring, first of all facial scars - they take time to mature, more longer than scars anywhere in - scars over the body. And the reason being the face is very dynamic. You can't stop the muscles from acting. So the scars, the scars take a little bit longer than a scar on your body. Scars are worse at 3 month mark and in all my consultations, each of it lasts for 1 hour and 10 minutes. Ten minutes are spent because I chose to do facial and aesthetic surgery. That 3 month mark, your scar will be worse because the build up of collagen is maximum and the scar vascularity is maximum. After 3 months, it slowly starts settling down. So this photo is actually at a, at a 10 week or 12 week mark which is at the time where the scar is worse. I have followed her up afterwards. The patient has no complaints. Patient - now she has moved to Bali permanently. She wanted to come back for a procedure but she knows now that I don't practice. But I, I called them at 6 week mark - sorry, 6 month mark as well. But the scars have faded now. Q It was also Professor Deva's view that it is more usual to site the scar, either subciliary or mid lid? A It's a mid lid scar. That's correct."
The Practitioner was shown the pre and post-operative photos of Patient D. When asked to "point to where the scar is" the Practitioner indicated "just under the eyelash. We are talking about the eyelid, aren't we? Because the comment was on the eyelid scar". The Practitioner was reminded that Professor Deva had said that there were "prominent lower lid left blepharoplasty scars" and scars at the "lower lid cheek junction". The Practitioner acknowledged that Professor Deva had said that but suggested that "If you look at the photos, this is a mid lid scar so it's not at the lid cheek junction. It's above. So this is the - you know, when you talk about two options, subciliary and mid lid, this is the second option".
Patient D did not give evidence. There is no rational basis for rejecting the Practitioner's evidence about his post-operative contact with her. Similarly, in the absence of more recent photographs, it is difficult to reject the Practitioner's explanation for either the procedure he adopted with respect to Patient D or its success. Objectively, as Professor Deva fairly conceded, the procedure undertaken by the Practitioner raised "concerns" about the technique and the training that was on display.
Having regard to the gravity of the finding sought by the Council, and the matters to which we have referred, we are unable to be comfortably satisfied that Patient D's treatment or care advances the Council's case, or does so with respect to the proposed conditions which are in dispute. At its highest, and as Professor Deva properly acknowledged, the evidence raises some "concerns" about the technical skills employed during Patient D's surgery.

[13]

Patient E

Dr Curtin said in his first report (A1 Tab 19) that the Practitioner's records with respect to this patient did not reveal any "contradictions to proceed" with the "mini facelift" procedure which the Practitioner perforEmed on her. Dr Curtin considered the appropriateness of the surgical technique used by the Practitioner, and recorded that, during the course of additional surgery the operation was "halted" and the patient was "propped up". Dr Curtin said that an Anaesthetist (Dr A) "apparently was available and attended within 5 to 7 minutes. He administered small doses of a benzodiazepine antagonist and vasopressor together with intravenous fluids and the patient quickly recovered so that the operation could be completed". Dr Curtin recorded that the patient's progress following the surgery was uneventful. Dr Curtin suggested that "Some patients appear to be prone to vasovagal episodes when undergoing minor procedures under local anaesthesia, whether it is the removal of the skin lesion or just a tooth extraction. In a fit person it is no cause for alarm and resolves quickly with simple postural manoeuvres".
From the information provided to him, Dr Curtin was of the opinion that Patient E's care and treatment by the Practitioner was satisfactory. He observed that it "seems likely in this case, that the procedure was somewhat more prolonged than anticipated this probably led to an increased level of anxiety on the part of (Patient E). Considering the type of infiltration local anaesthetic that was used, it is unlikely that pain was an issue, and in fact (Patient E) returned for further surgical treatment a couple of months later." Dr Curtin considered that the Practitioner's medical reports with respect to Patient E's treatment were satisfactory.
Dr Curtin did not add to those comments in his second report (A1 Tab 20).
Professor Deva said in his report (R1 Tab 9) that the Practitioner's "operation report records a skin only excision of pre-auricular skin. At the procedure, Dr Mahadik was first informed that (the patient) had multiple thread lifts prior and encountered thick scar tissue. During the procedure, a right cheek haematoma formed and required drainage. During this time, the patient began to feel dizzy and hypotensive. Dr Mahadik called in his anaesthetic colleague, Dr A, into rooms who administered resuscitation with intravenous fluids." Professor Deva referred to a further procedure performed by the Practitioner on the patient, a little over a month after her initial surgery.
Professor Deva said that as photographs of Patient E's outcomes were not dated, it was difficult to ascertain scarring, which "does appear very hypertrophic and visible". He suggested that there also "appears to be long term swelling to the right hemiface, consistent with a resolving haematoma/seroma". Professor Deva said that "Any lengthy facial surgery should not be performed in rooms. Failure to elicit history of previous thread surgery prior to operating on this patient also represents a failure of adequate assessment of this patient. Finally, there appears to have been inadequate preparation for support and resuscitation of patients in place prior to undertaking this procedure. It is fortunate that Dr Mahadik was able to call on his colleague to assist".
The Practitioner's operation report (A1 p 408) records that "Patient says she has done threads before? Multiple times". Professor Deva was thus in error in suggesting that the Practitioner had failed to elicit the history of previous thread surgery prior to operating.
In cross-examination (Tcpt, 25 July 2023, p 67) Professor Deva agreed that, as with earlier opinions, he could not "comment on photographs where the date, or whether the photographs are taken 6 to 12 months post-operatively which gives the best indication as to result". Professor Deva added that, as the photographs were not dated "it is difficult to assess scarring" and that he would "dearly love to assess today to look at the medium to long term outcome following the surgery" by either examining the patient or having available dated pre and post-operative photos. Professor Deva agreed with respect to the swelling of the patient's face that "Once again, I don't have a timeframe and I agree with you that a formal assessment of this patient face to face would be of great value".
After being referred to the images of Patient E (A1 pp 351 - 372) Professor Deva conceded that he could not comment on whether the photographs provided evidence of long term swelling to the right hemiface (Tcpt, 25 July 2023, p 68). When reminded of his opinion that "there appears to be long term swelling to the right hemiface consistent with a resolving haematoma seroma", Professor Deva reiterated that there was "some swelling to the right hemiface apparent from the photographs" but that, to say more he would need access to further dated photographs.
Professor Deva agreed (Tcpt, 25 July 2023, p 69) that the swelling was on the left not the right side of the hemiface after looking at the Practitioner's clinical records (A1 p 410). In fairness, Professor Deva readily acknowledged that he had been in error and reiterated that he needed to look at the patient or have timestamped photographs to express opinions about the Practitioner's treatment of Patient E.
It was put to Professor Deva (Tcpt, 25 July 2023, p 70) "Can you see the problem with your expert opinion in relation to it reflecting impartiality, when you have said that you can see on photos right hemisphere swelling and the actual facts are that there was never a haematoma on the right cheek". Professor Deva replied "Well, at this stage, swelling post-surgery is difficult to assess if you don't know the date of surgery. So I don't think - I made the concession, right at the beginning of 70, that the photographs were included but I can't really make any (indistinct). Now, there appears to me in this photograph there is swelling on the face and that could be (indistinct)." The reference "indistinct" indicates when the quality of the audio link with Professor Deva failed.
Professor Deva was asked (Tcpt, 25 July 2023, p 71) "You will recall that Dr Mahadik's evidence was that (Patient E) apologised for not telling Dr Mahadik about her relevant medical history of having threads done. Correct, you recall that evidence?" Professor Deva acknowledged that he did. Professor Deva was then asked "Where is the evidence that this patient was resuscitated?" He replied "I have a note here that the patient became dizzy and hypotensive and the patient called - Dr Mahadik called his anaesthetic colleague, Dr A, into rooms to administer intravenous fluid." Professor Deva explained that Patient E was someone who became "hypotensive and dizzy and required intravenous fluids".
Professor Deva was referred to Dr Curtin's opinion that it was quite common for a vasovagal event of the kind experienced by Patient E to occur in surgery of the kind which the Practitioner was performing on her. Professor Deva replied that "Once again, it is difficult to know what caused the hypotension. Was it a vasovagal, was a hypovolemia, was it a reaction to the anaesthetic? There are many causes of hypotension during a surgical procedure so we can't be sure what caused it. But the patient did require another colleague to come in and administer the fluids intravenously". It was suggested to Professor Deva (Tcpt, 25 July 2023, p 72) "That doesn't mean the patient was resuscitated" to which Professor Deva replied "For hypotension requiring intravenous fluids, in my mind, that is resuscitation". When reminded that Dr Curtin took a different view with respect to this issue, Professor Deva said "Well, I concede that, but once again, the type of the hypotension we can argue and speculate, but the facts remain that this patient was hypotensive, required intravenous fluids, and by definition if someone is hypotensive requiring intravenous fluids you are resuscitating the patient to raise their blood pressure".
Professor Deva rejected the suggestion that there was no evidence to establish that the Practitioner's clinical private rooms did not have adequate facilities to resuscitate a patient, saying: "The fact that he had to call an anaesthetic colleague to help during a prolonged procedure means that he didn't have adequate personnel for that eventuality. If he was able to resuscitate the patient himself with the equipment that was provided then presumably he would have allowed for that contingency. So, as I said, it was fortunate that his colleague was available to come and help and resuscitate and provide fluids to this patient".
It was suggested to Professor Deva that it was quite common for surgeons to call on the greater expertise of other surgeons in other specialties. Professor Deva replied: "It is, but usually in a setting of a facility where you are performing a prolonged procedure in a licensed facility where there are other doctors, staff around in the eventuality that a patient does become hypotensive. So, you know, the performance of a long invasive procedure in rooms requiring a colleague to come in and help to give the patient fluids is something that I think raises a question in my mind as to the adequacy and safety of this - of ah with this procedure was carried out."
In cross-examination of Dr Curtin (Tcpt, 26 July 2023, p 32) Dr Curtin was asked: "In relation to this patient, Dr Mahadik did not find out until after he commenced the procedure that she'd had threading previously. That's something that he should have questioned. Assuming for one moment that he didn't question the patient about that beforehand, that is something that he should question about."
Dr Curtin replied "I think he asked her whether or not she'd had facial surgery and she said she had not had facial surgery. That should have included having threads". As noted earlier, the Practitioner's clinical records suggest that the Practitioner at least directed his mind to whether Patient E had reported prior facial surgery and referred to threads.
Dr Curtin was asked (Tcpt, 26 July 2023, p 32) "Do you think he could have - if he'd done the clinical examination of the patient's face, felt that she had threads?" Dr Curtin replied "I don't know. I can't - I can't comment. I can't say that I - I've ever dealt with patients that have had threads, so whether they can be felt - I shouldn't think they could be felt, but I've never felt threads in somebody's face." The Tribunal asked whether, for non-plastic surgeons, Dr Curtin could clarify what "threading" is. He replied: "Well, I've never done it, so my understanding of it is fairly limited, but the idea is that you can lift the ageing face by putting threads down and anchoring them up here somewhere in the temple and you pass the threads down and pull them up and tighten them up and, of course, you do get an instant improvement if you do it the same on both sides, but you've got suture material sitting in the soft tissues and they eventually pull through, so I don't know how permanent they are, but … I wouldn't have thought they caused a lot of scarring."
When asked (Tcpt, 26 July 2023, p 33) whether they would "get in the way of a cosmetic surgery procedure that you're going to subsequently do" Dr Curtin said "I shouldn't have thought so. You've got 3 or 4 long suture - pieces of suture material sitting in the soft tissues".
It was suggested to Dr Curtin that using a "pinch technique", which was suggested not to be a present day technique, had the potential to result in poor scarring. Dr Curtin said that it was "not something I've ever done" and that he could not comment, adding that "Whichever way you do a facelift, you've got to get the right amount of skin off and the right tension at the right places, so - I can't really tell much from looking at this operation report. It's some sort of pinch technique and it looks like an estimate of how much skin is going to be removed and that's excised and then sutured, but it's not - I really can't make much comment on it". Dr Curtin reiterated that the technique apparently used was not one he had ever used or was familiar with.
Dr Curtin was asked (Tcpt, 26 July 2023, p 34) "Do you think that Dr Mahadik would benefit from some training in modern mini facelifts", a question predicated on Dr Mahadik having said at the s 150 hearing that he had learned the pinch technique in India, Dr Curtin replied: "Well, I'm sure he'd benefit from seeing maybe a selection of other people do facelifts, but I think - I'm quite sure that whatever he - you know, facelift techniques have been around for a long time, well over a hundred years, and probably before that as well, and the - Dr Mahadik was trained at a big plastic surgery unit in India. It's in the centre of India. He was a 1500 bed hospital. It was the first plastic surgery unit set up in India - a plastic surgery training unit set up in India and when it was established after the war, one of our leading surgeons, Benjamin Rank, went over and spent a couple of weeks there and helped them set it up and they set up a big unit with multiple surgeons, so this wasn't some little ramshackle place. This was a major centre, and he was trained by some good plastic surgeons."
Dr Curtin was asked, and eventually permitted to respond to a suggestion that Patient E's surgery should not have been performed in Dr Mahadik's practice rooms, but in a day surgery facility. Dr Curtin said (Tcpt, 26 July 2023, p 339): "If I could just make a comment. I was a dentist before I was a doctor. We have people fainting in the chair from going to get a tooth pulled or a tooth filled. I used to do minor procedures in my room - I'd only do things under local anaesthetic, mainly moles and small skin lesions, and occasionally you'd have people that would faint like that. I think the whole business of having something cut off, even if something small, was intimidating, and so it happens. I think the fainting was probably not related to the procedure that was being done. The whole question of whether mini facelifts should be done in the rooms is another issue. I suppose it's a question of how many it is, how long it takes, and what sort of anaesthesia you're going to require to do it and whether the anaesthesia is safe. Those are issues. I think the fainting business is a red herring."
Dr Curtin conceded that he had no knowledge of what resuscitation equipment Dr Mahadik had in his private practice.
With no intended disrespect, Patient E was referred to in cross-examination of the Practitioner as "the hypertensive woman" (Tcpt, 5 February 2024, p 71). The following exchange occurred during his cross-examination (Tcpt, 5 February 2024, p 71): "Q You called a friend of yours who was an anaesthetist to insert a cannula and administer IV fluids to her. Is that right? A I called my colleague for help, basically. Not necessarily to do an IV cannula, no. Because as a surgeon - I mean, let's say, you know, I'm operating, I'm operating in a public hospital full fledged, well equipped tertiary care centre. Sometimes I listen an alarm bell. When the alarm bell goes on, a lot of anaesthetists, nurses - they run to the operation theatre from which the alarm bell has come. Not all of them can do everything. But what it's meant for is if there is a problem, any help is appreciated. So a lot of people go, not all of them, not - doesn't mean that the anaesthetist is there, can't control things and all. So in this situation, she went into vasovagal. The patient went into vasovagal shock. Typically, towards the end of the procedure and most possibly due to pain because the anaesthetic was wearing off. So I stopped. Put her bed down. Propped her up. Gave her calf massages. The BP went 100 over 60. And it was typical rolling up of the eyelids and all, of the eyeballs and all. And I knew that my colleague lives next - in the next street and every Tuesday we go for a coffee at 5 and this was delayed. So I knew that he was at help. He, he was just 5 minutes away. And then I gave him a call, saying that "Look, are you available?" and he came in 2 minutes - in 5 minutes. Q Did she stop breathing? A No, she never stopped breathing. Q Did she lose consciousness? A Never. … she never lost consciousness, she never stopped breathing. All what happened was the BP dropped, blood pressure dropped. She was talking to us all the time and it was a typical vasovagal. Now in addition to that, the anaesthetist who came - because the rooms are equipped with everything, he had those drugs. And if you look at the drugs, he has written his, his notes on the operating board so there was no anaesthetic reversal and all which was given to her. So he gave her hydrocort, metaraminol to get the blood pressure up and she was fine. Q Her eyes were rolling. She must have lost consciousness? A No, it's a sign of a vasovagal. So it's a sign of a typical vasovagal attack which can happen to anyone who is having a small skin cancer cut out or dental procedure. An exaggerated response to pain or any unusual stimuli can cause a vasovagal. Q It was Professor Deva's view that he was critical of your decision to conduct the surgery for that fashion in your practice. Looking back on it now, do you agree with that? A Look, as I did mention that if I knew the patient - and in my consultation you can see there is a specific "? have you had any procedures, fillers, threads done?"- and she has marked "no". I asked her, she has marked no. If the patient has done - had some threads done before, guaranteed she was a patient to be done in the hospital. But the patients also - and this - I don't think is uncommon in cosmetic surgery. That they go to a couple of doctors, they know "Okay, so this is the reason why I have to shell out more money for general anaesthetic in the hospital". So they try to hide it from us. So this was hidden from me. And in hindsight, I thought if I knew this - so post-operatively on the second day, I followed the policy of open disclosure and she apologised for not disclosing it. And this was a situation where we discussed earlier that this is something which I have no control on. So this can happen again. And I started performing all mini facelifts in the hospital."
The Practitioner was asked (Tcpt, 5 February 2024, p 72) the "exact completion time of the procedure" which was noted to have commenced at 2:00 p.m. but not to have a "finish time". The Practitioner was unable to recall the exact time, although he said that the actual procedure "went for roughly about 3 hours" (p 73). The Practitioner stated that the procedure "usually takes about one and a half hour" but that the procedure was prolonged because of the patient's "episode of vasovagal".
It was suggested to the Practitioner that he used a "pinch technique" for the patient, to which he replied that the pinch technique was "not necessarily used in every patient" but that "the pinch is done to just estimate whether when you stitch the skin whether the skin is going to come along. So that pinched area can be taken off and what's in your fingers can be excised and the other, other two edges can come together. So it's not a, it's not a different technique per se". The Practitioner agreed that he "would have" done that with Patient E.
The Practitioner was asked whether he learnt the pinch technique in India. The Practitioner did not directly respond to that question, but said that "if I have to take a skin cancer out and I have to close the, the skin after cutting the skin cancer and I were to choose a direction in which I were to put a scar, so I'll pinch the skin to make sure that okay, this is coming together easily [sic] than that. So in this instance or this situation, before marking, I mark the incision lines. And before marking how much of the skin has to be excised, I just do a pinch, saying "Okay, this can be comfortably excised and this is the mark so I, I am conservative. I don't excise more. So it's not a technique". It was suggested to the Practitioner (Tcpt, 5 February 2024, p 74) that during his s 150 hearing the Delegates of the Council "expressed concern to you that that was an out of date technique". The Practitioner disagreed that it was.
The Tribunal asked the Practitioner (Tcpt, 5 February 2024, p 74) whether he had "seen any of the surgeons you have assisted do facelifts and use that pinch technique or whatever you'd like to call it?" The Practitioner replied "In the facelifts, you undermine right up to the mid (not transcribable) line, even sometimes further. You have to go much more medially to, to cut the mandibular ligaments and all. So in the facelifts even I don't do. But to answer your question, I haven't".
The Practitioner was asked about the concern raised by the Delegates of the Council at the s 150 hearing that, as a result of using the pinch technique there was too much tension on the patient's scars. The Practitioner disagreed with that concern. The Practitioner was shown a post-operative photograph of the patient and it was suggested, having regard to the photograph (Tcpt, 5 February 2024, p 75) that there was "tension on that scarring". The Practitioner replied that "whether or not this is a tension on the scar is - how do you define - how do you, how do you say that there is tension on the scar? One is if the scar is hypertrophic. In this situation, if the earlobe is pulled down. These are the only two ways you can say that the scar is under tension. Now this is a four week old scar. Because she has - this photo is taken because I have staged her procedure. I did the - she wanted to do this combined, a mini facelift and eyelid. I said "Look, no. We'll just finish one first. See if you're happy"."
The Practitioner was reminded of Professor Deva's suggestion that there appeared to have been inadequate preparation for support and resuscitation of patients in place prior to undertaking the procedure on this patient. In the course of his less than directly responsive answer, the Practitioner for less than convincing reasons rejected that suggestion, although he said that "Going forwards, I tidied them up even more, even better from the - from the anaesthetic college guidelines".
Although the evidence does not enable us to be comfortably satisfied that anything done by the Practitioner in the course of the surgery performed on Patient E itself created a risk to the health and safety of the patient. Dr Curtin suggested that, whatever definition one applies to "resuscitation", the "fainting business" was a "red herring". We disagree. The evidence establishes that the Practitioner did not have adequate arrangements in place to deal with the situation which developed with Patient E. It is difficult to resist concluding that, on the Practitioner's evidence, it was fortuitous, and fortunate that Dr A was readily available, attending within 5 minutes of Patient E's difficulties materialising, and that Dr A happened to be an anaesthetist.
The evidence does not establish that the Practitioner employed technical skills which fell below the level expected of him. The evidence also suggests that the technique which the Practitioner employed was potentially not the optimal technique to have employed, and that further training and mentoring would be advisable.
The evidence suggests that surgery of the kind performed on Patient E should not have been undertaken in the Practitioner's practice rooms but, if not in a hospital, at a day surgery facility at which an anaesthetist was available. The Practitioner's evidence suggests that he would not in future undertake surgery of the kind performed on Patient E in rooms at which an anaesthetist was not present throughout the surgery.

[14]

Patient F

In his first report (A1 Tab 19) Dr Curtin referred to the two surgical procedures which the Practitioner performed on Patient F, who had first consulted the Practitioner about her breasts on 3 September 2021. Earlier in 2021 Patient F had undergone upper eyelid reduction by the Practitioner, apparently without complications.
Dr Curtin referred to preoperative photographs of Patient F, which he described as showing "a slim woman with small, slightly ptotic breasts, the left hanging marginally lower than the right". Dr Curtin referred to the "bilateral breast augmentation with 245mL implants" which the Practitioner carried out at Kingsgrove Day Hospital on 30 September 2021 "via a standard infra mammary approach". The clinical notes suggested that there were no complications with regular post-operative visits. The Practitioner's clinical records noted that on 5 November 2021 the "breasts did not drop". A photograph showed the post-operative result, which Dr Curtin described as "reasonably aesthetic, but the implants are not located immediately behind the nipples which are located in the lower pole of the breasts".
The Practitioner's records noted that in March 2022 the patient indicated that she would like to have larger implants. The Practitioner carried out such surgery on 17 March 2022, according to his records using implant size 375mL at the Kingsgrove Day Hospital. The last clinical record entry stated that the patient was "happy with outcome". Dr Curtin considered that with respect to both operations, "the recommendations to proceed with surgery were entirely reasonable". Dr Curtin was of the opinion that appropriate surgical techniques were used for both operations. Dr Curtin considered it as "of interest that there is no record of any complaint by the patient regarding the implant position beneath the breasts". He further observed that "As is sometimes the case however, once the breasts have been augmented with carefully chosen implants, the patient is gradually persuaded that larger would be better, and she came back to Dr Mahadik requesting larger implants." Dr Curtin considered the care and treatment of Patient F by the Practitioner to have been satisfactory.
In his subsequent report (A1 Tab 20), by reference to Professor Deva's report, Dr Curtin said that he would "agree that after the first procedure the implants ended up lying in a position that was too high relative to the nipple areola complex (NAC). This is a result that sometimes happens in breast augmentation, and one of the causes can be a failure to create a pocket in the right place behind the breast. However, the implants cannot be sutured into place, and even if a satisfactory pocket is created, the implants may drift into a higher position under the influence of bandaging, and a bra. It is important during the surgery to ensure that the implant is lying in the correct position relative to the NAC, and that subsequent bandaging supports the implants in this position."
Dr Curtin also referred to Professor Deva's concern that there was no mention of the anti-infective techniques which he described "and about which he has himself published in the literature on several occasions". Dr Curtin said that the "initial operation report" indicated that post-operative antibiotics were prescribed and concluded that it was "highly likely that this would have been done for the second procedure, although there is no record of that".
Dr Curtin considered: "The fact that nipple shields, pocket irrigation and glove change do not receive a mention on the operation record is not a definite indication that such measures were not implemented. A record of anti-infective techniques is not something you would necessarily expect on an operation record. If the patient was given antibiotics either during or before the surgery it is likely to have been recorded on the anaesthetic file but probably not of the operation record."
Professor Deva said in his report (R1 Tab 9) that the Practitioner's operation report erroneously described the implants used as "tear drop" when the implant stickers noted that they were "round" implants. Professor Deva's concern with respect to the absence of mention of anti-infective techniques such as nipple shields, intravenous antibiotics, pocket irrigation or glove change was on the basis that "these intra operative strategies have been shown to reduce the risk of breast implant contamination and subsequent capsular contracture". Neither expert suggested that either of those complications had occurred.
With respect to the revision augmentation and implant exchange performed on 17 March 2022, Professor Deva said that the Practitioner's clinical records "once again (made) no mention of any anti-infective strategies reported to reduce the risk of implant contamination". Professor Deva said that the post-operative photographs showed "persistent waterfall deformity and asymmetry in implant placement and nipple position. There may also appear to be rotation of the implant position with lateral displacement of the nipple/areola". Professor Deva's opinion was that: "This case outlines serious deficiencies in patient assessment, informed consent, implant selection and operative technique. I note that Dr Mahadik on questioning at the s150 hearing confirmed that he had missed a mild tubular breast deformity. He also admitted to anchoring the skin flap to the chest wall. He failed to properly size and position the implant in the first procedure. For tubular breast deformity, the use of a pre-pectoral tear drop implant with internal parenchymal dissection to allow the implant to fall should have been utilised."
Professor Deva said of the revision surgery that the Practitioner had failed "to address the original problem of a tight and inadequate lower pole. The bigger implants also appear to have now filled the upper pole and accentuated the waterfall deformity. There is now significant asymmetry in position of the implants with resultant asymmetry in nipple position. There also appears to be in one of the post-operative photographs, possible rotation of the anatomic implants. Securing the pocket to ensure that the anatomic implants are well positioned and do not rotate is difficult in revision surgery, especially in the setting of a total capsulectomy".
Professor Deva's ultimate comment was that "This highlights serious deficiencies in Dr Mahadik's capacity to safely perform breast implant surgery and are well below the acceptable standard of practice to doctors who perform elective and revision breast augmentation surgery."
In his commentary on Dr Curtin's reports (R3) Professor Deva reiterated his concern that anti-infective procedures were not documented.
Professor Deva was cross-examined with respect to the "consent process" adopted by the Practitioner (Tcpt, 25 July 2023, p 73). As we have earlier recorded, in the absence of any evidence from the patient to suggest that she did not understand the nature of the surgery which she wished to have performed, or the risks associated with it, and in view of the evidence with respect to the adequacy of the "paperwork" used by the Practitioner, the matter to be considered is the quality of the Practitioner's care and treatment of this patient.
In the course of cross-examination with respect to the appropriateness of the techniques adopted by the Practitioner and the outcomes, Professor Deva did not resile from, and amplified in detail why he had expressed, and adhered to his opinions. During the course of that cross-examination, Professor Deva was asked (Tcpt, 25 July 2023, p 78) whether he was aware that the patient "makes no complaint at all in relation to the end results" of her surgery, it being suggested that, if anyone was likely to have complaints it would be the patient. Professor Deva replied: "Well, this was information only passed onto me earlier this week so I went on the basis that these were the patient's records that I needed to look at and so the complaint - if there was no complaint, well, that's good. We can only look at the result and look at the technique used and the way of preoperative assessment and the position and (indistinct) devices of the first and second operation and (indistinct) devices of the first and second operation and (indistinct) the outcome is optimal, where the (indistinct) is happy with a moderate to poor outcome is not necessarily something that we can predict."
Later in his cross-examination, Professor Deva said (Tcpt, 25 July 2023, p 87) that he thought "the best type of education in cosmetic surgery is a cosmetic surgery fellowship. So where you are working as a fellow in - under the care of a - you know, experienced clinicians, you get to see them in rooms. So I think cosmetic surgery is not just about assisting in operations. I mean, there are - there is a whole degree of education in terms of communicating, understanding patient expectations, understanding, you know, red flags and trying to pick certain patients you don't operate on. And I think those things could certainly be gained by a period of fellowship training". The Practitioner is undergoing fellowship training.
In cross-examination (Tcpt, 25 July 2023, p 128) Dr Curtin acknowledged that the last time he did breast implant surgery was 10 or 12 years ago. After being referred to the transcript of the Practitioner's statements at the s 150 hearing, Dr Curtin was asked whether that in any way changed his view. Dr Curtin replied (Tcpt, 25 July 2023, p 129): "Well, I don't know about that about the - this business of the lower skin flap anchoring to the chest wall. I'm not quite sure - I don't think that, in itself - I am not quite sure exactly what that means and I assume that means that an attempt has been made to limit the lower extent of the pocket that has been made. Now, it's, as I said, it's possible that all of this was quite correct and that a correct pocket was made and the implant was put in exactly the right position. It is possible that's all true. But at the end of the day the implant has ended up further up the pocket than it should have been. Now, why that is I can't say. It may have been due to a technical problem on behalf of Dr Mahadik, it may not have been. It may have been due to the bandaging or something else."
Dr Curtin agreed (Tcpt, 25 July 2023, p 131) that the follow up appointment with the patient after the first procedure recorded that the "implants did not drop and he recommended massage". Dr Curtin agreed that the photos in front of him "show a deformity with the implant sitting high in the breast" and "ptosis of the breast tissue bilaterally". It was suggested to Dr Curtin that those suggested issues with respect to the Practitioner's surgical technique. Dr Curtin replied that it "may or may not have been due to his surgical technique" reiterating that it could have been. It was suggested to Dr Curtin that after reading what the Practitioner told the Medical Council at the s 150 hearing "that raises some concern around his surgical technique, doesn't it?" Dr Curtin replied "Well, he - he had an explanation for it which may or may not have been correct. He was speculating as to what the cause was. He may have been right or wrong. Look, the end result is of that operation, it wasn't satisfactory. There's no argument about that. And she needed to have a revision". Dr Curtin said that further speculation about how that came to be would not be productive.
In further cross-examination (Tcpt, 26 July 2023, p 13) Dr Curtin was asked further questions about Patient F's surgery. It was suggested that at the first surgery the Practitioner "failed to properly size the implant" (Tcpt, 26 July 2023, p 22). Dr Curtin replied: "Well, the lady came back and wanted a larger implant, so maybe the discussion hadn't been adequate to start with, but, look, that happens, that ladies get a breast implant put in, they have an adequate discussion, they would decide that a particular size implant is just fine for what they want. I mean, there's various ways of doing that. You've got trial implants they can put inside their bra before they have the operation. There's various ways of doing it and we usually get a good friend to come in with the interview so that they can go through this process together. I think surgeons are very keen to try and see that ladies are satisfied with the right size of implant before they start, but even with all those measures, once a lady has had their operation, they can look at the result and say "Well, it's still not big enough". Now, I don't know why that is, but that's what happens and just because this lady has decided after the surgery that she wasn't happy with the size doesn't mean that an error had been made in the original decision."
Dr Curtin added that there were "two consultations prior to the surgery in connection with making the right choices prior to the surgery, so, you know, I can't comment further. Dr Deva has got his opinion about that. I'm just saying that it doesn't follow that the lady wanted a larger implant, that an incorrect decision was made initially". It was suggested that the Practitioner had "failed to position the implant properly in the first procedure", a proposition with which Dr Curtin appeared to agree, adding (Tcpt, 26 July 2023, p 23): "I'm not saying he was right. I'm just saying he might be right. We spoke about this yesterday and I said that there are other reasons for why the implants might have ended up in a high position, but a common cause for that is not making the pocket low enough - the pocket for the implant at the right place and, therefore, the implant sits up high and is always going to sit up high, but there are other reasons. As I said, you could make a huge pocket and the implant could still slip up because of bandaging or other factors."
Dr Curtin suggested that the Practitioner's "idea that the lady had a tubular deformity" was not an opinion he shared, for reasons which Dr Curtin explained. Dr Curtin considered (Tcpt, 26 July 2023, p 24) that "The second operation looked pretty good", although he conceded (Tcpt, 26 July 2023, p 24) that the first post-operative photos showed that the implants were "still sitting too high".
In later cross-examination (Tcpt, 26 July 2023, p 26) it was suggested that the case of Patient F "raises concerns about whether or not Dr Mahadik can perform effectively implant breast surgery, doesn't it?" Dr Curtin replied: "Well, it's not - the fact that a revision occurred means that it wasn't a good result. Looking at these photographs, I think there is some - there could well be some pre-existing minor breast asymmetry before her surgery started. The photographs we have are a bit oblique, so you can't exactly tell that. But that's a very common issue and - look, whenever a case hasn't gone according to plan, you've got - you know, the question is what has happened here; has a mistake been made? But you can't extrapolate necessarily from one case and say: well, the guy who did this is totally incompetent when it comes to breast surgery."
The Practitioner rejected (Tcpt, 5 February 2024, p 59) Professor Deva's suggestion that, in performing the first breast implant on Patient F, he "missed a mild tubular breast deformity". The Practitioner was shown the pre and post-operative photographs of Patient F and asked (Tcpt, 5 February 2024, p 60) whether he thought that "the first surgery created a further asymmetry and displacement of the nipples?" to which the Practitioner replied that he disagreed "because breast augmentation is a procedure which enhances the existing anatomy and all patients should know this … and I make an effort that every patient understands this. So it's a very simple procedure where implants are put behind the breast, either behind the breast tissue or the muscle and it only enhances the existing anatomy. So it doesn't interfere with where the nipples are sitting".
The Practitioner disagreed with Professor Deva's suggestion that "The implants are not placed in the right position or they may have rotated", and said that "The implants are put either under the breast or there is a muscle under the breast, they go under the muscle. So in both instances - in the first instance they were put under the muscle and they were not rotated, but they were high riding. For that reason she had a second procedure. When I say "high riding", that doesn't mean that the implant is rotated, it means that the implant is sitting at a higher position than it should".
The Practitioner accepted that "The first surgery didn't result in an ideal outcome … which necessitated the need for a second surgery". The Practitioner agreed (Tcpt, 5 February 2024, p 61) that "could have been prevented" and reiterated that the first surgery did not give "an ideal outcome". The following exchange occurred (Tcpt, 5 February 2024, p 61): "Q In relation to Dr Curtin's evidence it was his view that once the implants are inserted and they are in the pocket, if the pocket is not in the right place, then they are never going to drop. Do you agree that that - A It's all, it's all about the pocket. If the pocket is correct, the implant will be fine. Q The pocket wasn't correct for the first procedure, was it? A That's right. Q Do you accept that it wasn't correct because of surgical error on your part? A Rather than an error I would say judgement. So I did the necessary - because the lower pool was deficient, I dropped the IMF by 2 centimetres because I wanted it to be expandable. When I made the pocket I thought that I had made it too low, so I sutured my lower flap and IMF and I think it was right, but I was proved wrong because when I saw her post-operatively the lower pool, since I had sutured to the IMF to the chest wall, that probably was sutured a centimetre higher, which was an error, which meant that the pocket was not one hundred percent right to what I wanted to - so that was a judgement or error which had happened which straightaway came to my notice and at the 6 week mark I advised her that - it's in my - I don't remember the exact wording is - they are there - that, "I have to release my sutures to expand your lower pool to make it right" and the patient, the patient is a very smart architect and she, she realised that this is an error and I apologised for her and I say to her, "Look, I'm going to do this. I can't charge you for this because this is my error" and then after that she took a second opinion before proceeding for the second surgery for the revision."
The Practitioner agreed (Tcpt, 5 February 2024, p 62) that he made the pocket "too small" for the first surgery, resulting in the implants ending up "marginally in a position that was too high relative to the nipple". The Practitioner was asked by the Tribunal whether he sat the patient up during the surgery. The Practitioner replied that he did, but that having done so he was "in the double mind" about the positioning of the implant and, as he realised later, "erred on the wrong side" in the manner alleged by the Council.
The patient did not give evidence in the proceedings. There is no reason to reject the Practitioner's evidence of the events which followed the first surgery. As Senior Counsel for the Practitioner made clear during the course of the Practitioner's evidence with respect to this patient, drawing a clear line between the technical aspects of the procedure and the patient's subjective view of its success is not necessarily simple or easy. Although we would not express it in quite the terms Dr Curtin did in the passage of his evidence which we have cited above, the evidence does not establish that the Practitioner's performance of Patient F's initial surgery was below the standard reasonably expected, although, as he clearly conceded, he made an error or judgement during the course of it. The evidence does not comfortably establish that errors of that kind were referable to an absence of skill or competence. To his credit, the Practitioner immediately recognised that he had made an "error" and rectified the error, to the evident satisfaction of the patient. Our findings with respect to Patient F do not assist the Council's case with respect to disputed conditions.

[15]

Patient G

Dr Curtin said in his first report (A1 Tab 19) with respect to Patient G that: "This lady had a mini facelift procedure under local anaesthesia in Dr Mahadik's rooms. I agree with his comments that this procedure is unable to offer the range of cosmetic improvements provided by the full facelift operation. There was some commentary from the Medical Council that the mini facelift operation should not be carried out in doctors' rooms, but I think that there would be disagreement amongst plastic surgeons about this. Provided the facilities are properly equipped and patients are carefully selected it would be reasonable to carry out this limited facial surgery under local anaesthesia in an office facility."
Professor Deva referred to the patient consulting the Practitioner on 19 May 2021 for assessment of facial ageing to the Practitioner, and noting, "saggy jowls" and an ageing face, and that the patient wanted a brow lift. The notes recorded the patient's history of smoking, and the Practitioner's advice that a mini facelift and brow lift could be performed in the rooms, but that "performing a neck lift in rooms was not legal". The Practitioner recorded his recommendation to consider a mini facelift and temple brow lift. The Practitioner noted during his second consultation with the patient on 20 September 2021 that her history of smoking gave rise to a higher risk associated with the proposed surgery, and that she should stop smoking 6 weeks prior to surgery.
The Practitioner's operation report with respect to the surgery he performed on 2 October 2021 referred to "standard mini-FL incision" and exposure of the "SMAS", the skin flaps were mobilised and excess skin excised. The brow lift was recorded as "abandoned as the patient had understood that it was a full brow lift rather than a temple skill excision".
The Practitioner's clinical records of the patient's second post-operative consultation noted that the patient presented with "left ear and cheek swelling" which he considered to involve partial dehiscence which was treated with topical and oral antibiotics. The patient was also advised to stop smoking.
Professor Deva's review of photographs of the patient's outcome and scarring were suggested by him to "show significant stretching of the superior preauricular scar and multiple inclusion cysts with an expected lack of correction of the nasolabial area and jowls from a skin only excision. The surgery was considered to be well below the standard expected of doctors performing cosmetic facial surgery."
In cross-examination (Tcpt, 5 February 2024, p 69) the Practitioner was referred to Professor Deva's concerns "in relation to the scarring, the significant stretching of the superior preaurical scar and multiple inclusion cysts with an expected lack of correction of the nasolabial area and jowls from a skin only excision" and asked whether he agreed that that was an issue. The Practitioner replied that: "In a facelift that's an issue. However, mini facelift, mini facelifts are completely different procedures. They are - so these are - like I wouldn't say new but they are relatively - there is a new demand for mini facelifts where women who are roughly between 40 and 45 who find that non-surgical injectables and fillers are not working, and who have just minimal lower face ageing where they say "Look, facelift is an overkill" - they specifically come for a mini facelift. The enquiry isn't - doesn't say that "Doctor, what do I want?" so the enquiries come for mini facelift because they are thoroughly researched and these are surgeons who do facial aesthetics. They routinely do these procedures. So this only caters to, to the, to the jowls and jawline and upper one-third of the neck if there is loose skin. They do not cater to the mid, mid face as Dr Deva suggests, that it does not address it. They do not address mid face. Not much improvement into the nasolabial folds and all. And it's actually what the patient wants and they are told that this is a minor procedure, it goes on for one to one and a half hour. And these are only the three areas which she will benefit from. So nasolabias, middle one-third of the face is not an indication about this procedure."
The Tribunal asked the Practitioner "About that mini facelift technique, is this purely a skin lift or do you - are you under this mass at any point?" to which the Practitioner replied, "I am not under this mass." The Practitioner was asked "So it's purely a skin stretch?" The Practitioner replied "Yeah, correct. So it's undermine for 5 to 7 centimetres. I am not under this mass. But before closing - skin excision obviously but before the skin excision, I take 2 sutures, one at the jawline, yeah and one slightly above, plicating the 2 sutures which plicate this mass and then excess skin is taken out. But we're not under the - I [sic] not under this mass."
The Practitioner was asked where he learnt the technique. In the course of his response, the Practitioner said that he previously assisted a doctor who was previously "the main facelift surgeon" who he had observed on a couple of occasions to perform mini facelifts. In summary, the Practitioner stated that he learnt the technique which he employed from "2 or 3 surgeons here and plus extensive resource of online or digital media".
The patient did not give evidence in the proceedings. The Tribunal does not have the benefit of up to date photographs of the patient. We are not able to be comfortably satisfied that the surgery on Patient G was below the standard reasonably required of him or that any aspect of the Practitioner's treatment of the patient advances the Council's case with respect to disputed conditions.

[16]

Patient H

On or about 19 June 2023 Patient I, who attended Kingsgrove Hospital on 7 July 2022 for facelift surgery, complained that when she was in recovery, something "didn't feel right" and that she felt "a lot of pressure on her face". The patient reported that the Practitioner determined that she had a blood clot in her face which he immediately rectified surgically. The patient saw the Practitioner 2 to 3 weeks post-operatively, at which time she reported that there was "still lots of swelling and bruising". The patient said that at her next appointment she had "lumps under her neck and the Practitioner didn't really know what they were" but that they "should go down". The patient said that she told the Practitioner during that consultation that she had "pixie ears" but that the Practitioner said that she did not. The patient complained that about 11 months later "the lumps are still going down" but that her ears were "worse" and that she has "lots of loose skin under her neck".
The patient complained that at the end of 2023 the Practitioner was in India and it was "months until she was able to get hold of him" and that, when she saw the Practitioner he agreed that she had "pixie ears" and "advised that it was no big deal and he could fix it in surgery, however he couldn't do it until the end of the year because he had 'a lot of training to do'". The patient complained that she had tried calling the Practitioner 2 weeks previously but, after multiple attempts, had been unable to speak with the Practitioner.
On 12 July 2023 the Practitioner's solicitors provided a detailed response to her complaint, in the course of which the Practitioner confirmed the history of the patient's treatment. In his response the Practitioner said that he had a "detailed consultation" with the patient regarding a facelift and neck lift procedure on 24 May 2022 during which the Practitioner said that he explained in detail "with the aid of diagrams" the "relevant risks and recovery" and discussed "expectations and outcomes" and the "goal" of the surgery being to provide the patient with a "more youthful and pleasing contour". The patient was 52 years of age at the time of her surgery.
The Practitioner referred to his second consultation with the patient on 22 June 2022 during which the Practitioner said that he addressed "more specific questions, concerns and expectations", including "the advanced nature of the neck fat and skin (turkey neck) and the need for a platysmaplasty with neck life" and the "limitations of the outcome in such situations". The patient then signed the relevant inform financial and consent forms, copies of which were provided.
On 7 July 2022 the patient underwent a full facelift and neck lift under general anaesthetic at Kingsgrove Day Hospital. Post-operatively the small blood clot to which the patient referred was "evacuated and washed from right cheek in the operating suite". The patient was then discharged and, the Practitioner asserted, had an "uneventful" recovery. The patient attended post-operative follow up appointments with the Practitioner on two occasions in July 2022, and in September 2022, October 2022 and March 2023. The Practitioner alleged that on each occasion the patient was "mostly quite satisfied with the outcome of the surgery" but was "however concerned about her right submandibular area swelling and redness over her right neck as compared to the left neck" which would "come and go and would be normal at times in between". The Practitioner said that he "reassured" the patient that a "myriad of factors" could have caused or contributed to those symptoms which were "treated conservatively with anti-inflammatory antibiotics and scheduled follow ups". The Practitioner said that at the patient's nine month follow up on 11 March 2023 she "confirmed that the neck swellings had almost subsided and was thankful that a wait and watch approach had been adopted", "asked for more advice about her right ear lobule which seemed to be slightly stretched more on the right ear lobule than the left". The Practitioner said that he explained that "this probably could lead into a pixie ear due to the pull of the neck skin from the repaired turkey neck". The Practitioner said that prior to undergoing the surgery the patient was advised: "(a) about the possibility of pixie ears as the scars matured over time and that patients with heavy turkey necks had more propensity to develop late stretch issues; (b) these could be addressed electively at a second stage after 12 to 18 months once the scars matured; (c) pixie ear correction (if she needed and decided to have it) is a minor procedure which can be performed under local anaesthesia and takes 25 to 30 minutes of procedure time."
In conclusion the Practitioner acknowledged that the patient's complaint "may well have arisen as a result of his inability to meet with patients face to face and inadequate communication regarding follow up consultations" and further acknowledged that "the uncertainty in relation of [sic] his conditions, has resulted in a deficient system in responding and dealing with former patients who may be seeking follow up consultations".
In his second report (R2 Tab 5), by reference to the Practitioner's operative and clinical records Professor Deva noted that Patient H was a 52 year old female who attended the Esmee Clinic on 24 May 2022 enquiring about facial rejuvenation, that the Practitioner advised that she undergo a face and neck lift and was taken through the "relevant risks and recovery" with the aid of diagrams. The aim of Patient H's surgery was recorded as being to provide her with a more "youthful and pleasing contour". After a second preoperative consultation on 22 June 2022 the patient was admitted to Kingsgrove Day Hospital for her procedure on 7 July 2022. Although Professor Deva was critical of aspects of it, there is no suggestion that Patient H did not complete appropriate consent "paperwork" prior to her surgery. There is no evidence that the Practitioner failed to advise her of any relevant risks associated with the surgery.
Professor Deva referred to the surgery which was performed by the Practitioner, and said that the patient "developed an acute right post-operative haematoma during her recovery and returned (to) the operating theatre later that day". The patient complained that "something didn't feel right", and that she felt "a lot of pressure on her face". The Practitioner's clinical records record that the patient's second procedure occurred later that day and that right facial swelling commenced one and a half hours after the procedure. The Practitioner reopened the patient's right facial incision, and two bleeding vessels were found in the "subauricular" neck flap. The haematoma was evacuated, and the wound closed in layers.
The patient's post-operative course, from July 2022 to March 2023 featured alleged excessive bruising and swelling, "lumps under neck" and "pixie ears". Professor Deva described "pixie ears" as "an uncommon complication following face/neck lift surgery where the earlobe, neck junction is distorted and pulled downwards". On the following page of his report, Professor Deva attached a picture showing what he considered to be a "pixie ear".
Professor Deva recorded that "at the last post-operative consultation on the 11th of March 2023, the patient reported that the neck swellings had subsided but that her ear deformity had become worse and that there was still excessive loose skin under her neck". Professor Deva considered that Patient H's treatment "reinforces" two of the "common themes" that arose from review of Dr Mahadik's other complaints, they being "deficiency in post-operative care" and "deficiency in operative technique related to specific cosmetic procedures".
Professor Deva said that "As Dr Mahadik has now returned for further training and is no longer available to care for the patients treated at the Esmee Clinic, access to other practitioners for assessment and treatment should be put into place." Under the heading "Pixie Ear Deformity" Professor Deva recorded his understanding of the nature and cause of pixie ear deformity. Relevantly for present purposes he suggested that practitioners who "perform face/neck lift surgery should be familiar with the surgical techniques to reduce the risk of this deformity as prevention is better than cure". Professor Deva considered that factors which lead to pixie ear deformity included: "1 Over resection of skin 2 Incorrect vector of pull for SMAS placation or Platysmaplasty 3 Disruption of the earlobe neck junction by incorrect placement of the scar 4 Failure to reduce tension on the ear/earlobe through use of deeper plane sutures and suspension of the neck skin flap and postauricular incisions".
In a statement which became controversial during cross-examination, Professor Deva said that the "treatment of pixie ear deformity is not simple and may require extensive re-dissection of the face/neck lift flap to correct abnormal tension/vectors arising from previous facelift surgery. The use of local flap should only be used if there has been excessive over resection of skin as this can result in further visible and unsightly scarring". Professor Deva concluded his report by saying that "It would be important to examine the clinical record and consent documents from the Esmee Clinic as well as pre and post-operative photographs to assess the degree of pixie ear deformity and the patient's concern about excessive loose skin of her neck following her procedure".
Professor Deva was cross-examined at length with respect to Patient H's surgery. Professor Deva acknowledged (Tcpt, 24 July 2023, p 97) that he had not been informed that Patient H had withdrawn her complaint. He also confirmed that, when he prepared his report he had not been informed that the Practitioner had sent his full clinical records in relation to the patient to the Council. Professor Deva was asked "Did you ask for them, when it came to your attention that you did not have them?" Professor Deva replied "I did make a note saying that it would be important to examine the clinical record consent documents from the Esmay Clinic as well as - so that is my last sentence asking for those".
Professor Deva was asked (Tcpt, 24 July 2023, p 98) with respect to his report "You are prepared to give an opinion as to 'themes and/or deficiencies' even in terms of deficiency of post-operative care in the absence of having Dr Mahadik's clinical records?". Professor Deva replied "So what I did have was the patient complaint which detailed - her main issue was the ears and also the fact that she couldn't get onto his office and was concerned about the cost of revision surgery with another practitioner so I focused on those things. But also tied to the back of the previous report in terms of themes. So there was sufficient information in front of me based on what was given to be able to write this with the proviso that it would be important to look at the clinical notes".
Professor Deva confirmed (Tcpt, 24 July 2023, p 100) that he prepared his report without "any clinical notes or clinical photographs". Professor Deva was asked (Tcpt, 24 July 2023, p 102) "You say that pixie ear is an uncommon complication following face surgery what do you mean by uncommon?" Professor Deva replied: "Well, it can occur and I have gone through in the rest of the report to give you more context and the references as to what pixie ear is how it can arise. And so if you have read through that, I have given the facts that lead to the pixie ear deformity, usually related to technical issues. And it can be minimised. So - and those of us that perform a reasonable number of facelift procedures, we are aware of those specific things to try and reduce that from occurring, which is why it is uncommon."
Professor Deva was referred to the expression "ear deformity" in his report and asked "And that is an expression you say to describe what has occurred with the patient?" Professor Deva replied "I have said in my last sentence that I would need to look at photographs. I don't have access to any photographs so it is very hard to know - this is relying on the patient complaining of pixie ears and Dr Mahadik's response saying yes they were pixie ears, but I hadn't seen the photographs so it is very hard for me to comment on."
Professor Deva was asked (Tcpt, 24 July 2023, p 103) "Why did you use the word "ear deformity" in the absence of having seen any images post-operative or pre or post-operatively of this woman?" Professor Deva replied "This was taken directly from the patient's complaint".
In reliance upon the articles tendered by the Practitioner (A4) it was suggested to Professor Deva (Tcpt, 24 July 2023, p 104) that "Pixie ears or pixie ear deformity has not been objectively defined". Professor Deva replied that he had given a description "quoted and referenced" in his report, the reference being to the article "Pixie Ear Deformity Following Facelift Surgery Revisited". Professor Deva said that: "All three references describe what the pixie ear deformity is and so I quote from that paper. Pixie ear deformity, just as a summary, to say that the ear and earlobe are not fixed anatomic structures so when you are performing a facelift, if there is excessive tension, traction or scarring, the junction between the earlobe and the neck can be distorted. And that specific deformity, pixie ear deformity arises when the normal junction of earlobe and neck is pulled downwards, distorted and disappears resulting in a stuck on or upward appearance. And I give you a photograph of what a pixie ear deformity looks like."
Professor Deva was referred to the article upon which he relied and the statement in it that (Tcpt, 24 July 2023, p 105) "Although this deformity has been described clinically it has yet to be objectively defined". Professor Deva said "So the purpose of this paper was to come up with a classification system. And essentially when you are talking about objective definition in clinical terms, it is measuring anatomic features. So they were coming up with a classification of various degrees of pixie ear, but to say it has not been objectively defined, I think confuses the objective of this paper." Whether pixie ear deformity had been "objectively defined", and whether "to date no objective criteria have been reported for its diagnosis" further explored during cross-examination of Professor Deva.
Professor Deva was referred (Tcpt, 24 July 2023, p 109) to the statement in one of the papers upon which the Practitioner relied that "pixie ear deformity is an unsightly though thankfully uncommon complication following rhytidectomy procedures", a proposition with which Professor Deva agreed. Cross-examination of Professor Deva (Tcpt, 24 July 2023, p 110) revealed that quantifying the incidence of pixie ear deformity was "a matter of subjective opinion".
It was suggested to Professor Deva (Tcpt, 24 July 2023, pp 111, 120) that "pixie ear deformity is not simple and may require extensive re-dissection of the face, neck lift flap etc?", a proposition which Professor Deva appeared to agree with, stating "Mmm - hmm". It was suggested to Professor Deva that there was an inconsistency in his evidence with respect to whether it is a "straightforward and simple procedure to correct pixie ear deformity". Professor Deva replied (Tcpt, 24 July 2023, p 112) "So I think that it depends on what the cause is and the degree of the pixie ear deformity. So obviously for the milder deformity, the correction is simple. So for the more severe deformities, which may well be defined by their staging system, the treatment can be difficult and may require extensive re-dissection of the skin flap. It goes back to one of those - which of those four factors were volumed in generating the pixie ear deformity in the first place".
On the second day of his cross-examination Professor Deva was referred to a number of photographs of Patient H's surgery. It was suggested to Professor Deva (Tcpt, 25 July 2023, p 14) "You say, in essence, don't you, that it is very difficult to comment in the absence of a clear photograph and in the absence of knowing the dates of the photograph, correct?" Professor Deva replied: "A So - exactly. So the first point was that these photographs are not adequate for me to make (indistinct) because the fact that the hair is obscured? Q But it is correct to say, isn't it, Dr Deva that you were prepared in your report to give an opinion that Dr Mahadik has [sic] deficient in operative techniques related to this cosmetic - specific cosmetic procedure, you gave that opinion in the absence of seeing any photographs dated or otherwise, correct? A Correct. Q And do you stand by your evidence yesterday, Dr Deva that you have the capacity to act as an impartial expert witness in these proceedings? A I do stand by that."
Dr Curtin was not cross-examined in relation to his opinions with respect to Patient H's treatment.
The Practitioner agreed (Tcpt, 5 February 2024, p 75) with Dr Curtin's evidence that brow lifts "need to be approached with caution because the long term results can be unsatisfactory". The Practitioner was asked what training in brow lifts he had received (Tcpt, 5 February 2024, p 76), to which he replied "I haven't performed brow lifts in the public hospital apart from a variant called direct brow lift is [sic] doing a facial (not transcribable). The cosmetic brow lifts I have observed and assisted many of them with different surgeons, as I was assisting them over my time at Westmead if not before." The Practitioner was not otherwise cross-examined with respect to his treatment of Patient H.
On the evidence before the Tribunal, and particularly having regard to the concessions made by Professor Deva in the cross-examination to which we have referred earlier, the Tribunal is unable to find that the surgical skills employed by the Practitioner with respect to Patient H were deficient. They may have been lacking, but the Council has not proved that they were. The Practitioner's post-operative care of Patient H may also have been deficient, but the Tribunal does not find that it was.
Cross-examination of the Practitioner in relation to Patient H was limited. The Practitioner was asked (Tcpt, 5 February 2024, p 76) whether in his view Patient I had any "form of ear deformity or pixie ear". The Practitioner reiterated his view that she did not and said that the "only hiccup" which the patient had after her surgery was that she had "some swelling which flared up and down in the, in the submandibular area on the right side" which lacked "systemic signs" just coming and going. The Practitioner said that when he saw the patient in March 2023 she said to him "Doctor, thanks for not doing anything. Everything has resolved".
The patient did not give evidence in the proceedings. Other than making her complaint, all the patient has said was what was contained in her complaint the substance of which we have set out earlier. The Practitioner added that the patient then said "Look, what do you think about my right ear? It's not the same here" after which, having looked at the ear, the Practitioner said "Lisa, it was me who started this term" and "This is a deformity some people can get after a facelift. I don't think you will have that because it has already been 9 months. But keep an eye. If that happens, then we will have to fix it. It's a very minor procedure which takes about half an hour". The Practitioner said that the patient said "I'm not even thinking in those lines" but that "just in case if you think, then we can do it".
The evidence before the Tribunal is insufficient to enable us to make an adverse finding with respect to Patient H's surgery. The Practitioner may have displayed less than the required level of surgical skill, but the evidence, or lack of evidence to which we have referred, establishes that to have been the case. If Dr Mahadik's conduct with respect to Patient H was deficient, it was in relation to his inability to be contacted after March 2023. Why that was so is not difficult to understand having regard to the Practitioner's professional status at that time. The Practitioner's conduct with respect to Patient H does not advance the Council's case with respect to the disputed conditions.

[18]

Submissions of the parties

Having regard to the limited ambit of ultimate dispute between the parties, it is unnecessary to refer in full, or extensively to the submissions of the parties. That is not said critically of either party. On the contrary, the Tribunal commends Counsel for both parties on their successful endeavours to identify and refine the real issues which ultimately require determination in these proceedings.
Counsel for the Council submitted that proposed condition 1 requiring its approval before the Practitioner change the nature or place of his practice was appropriate in view of the Practitioner's asserted uncertainty as to "precisely the nature of his practice that he is seeking to engage in in the future" and, not surprisingly perhaps "some uncertainties in his evidence, including his lack of familiarity with the new guidelines notwithstanding that they have been in place since July of last year". Proposed condition 1 was submitted to go "hand in hand" with a Category C supervision condition, and also enable the Council to monitor where the Practitioner is working and to be on notice of that "particularly when his own evidence is is he is not exactly sure of what he will be doing".
The Practitioner sought in lieu of the condition proposed by the Council that he be required "to advise the Medical Council of NSW in writing at least 7 days prior to changing the nature or place of business" of his practice. It ultimately emerged that the real issue relating to proposed condition 1 related more to the time implications than the substance of the condition proposed by either party. Inherent in either version of the condition is that the Practitioner will in future be lawfully practising his profession. In those circumstances, it is difficult to see on what basis the Council could reasonably refuse to approve any change in the nature or place of the Practitioner's practice, unless they were changes which would be likely to excite the Council to invoke s 150 of the National Law.
The absence of any time constraint on the Council granting approval is also, as Senior Counsel for the Practitioner submitted, a matter which has potential practical implications. On balance, in all the circumstances, and particularly having regard to the findings which we have earlier recorded, the Tribunal is of the view that the Practitioner should be required to advise the Council in writing prior to changing the nature or place of his business, rather than first obtaining such approval. However, in order for the Council to consider whether it wished to take any action, pursuant to s 150 or otherwise, in response to the proposed changes, rather than 7 days, a period of 28 days prior notice would in the Tribunal's view be reasonable, both for the Practitioner and the Council. It is difficult to imagine the Practitioner changing the nature or place of his practice on as little as 7 days' notice, in any event. Conversely, a period of 28 days prior notice of such intended changes would provide the Council with a reasonable period in which to make any enquiries it wished to, or take any steps which it felt obliged to in the light of such enquiries.
With respect to condition 4 sought by the Council, which required the Practitioner to observe 5 phalloplasties performed by a registered specialist surgeon approved by the Council, it was submitted that the Practitioner's evidence that there were only 2 such surgeons in Australia was based on the Practitioner having "only made limited enquiries" which were not recent in any event. Whilst that may be so, the absence of the names of any other Australian surgeons suggested to be potentially available for that purpose supports the Practitioner's assertions.
It was submitted on behalf of the Council that there was a "clear need" for the Practitioner to have some observation with a surgeon who is conducting phalloplasties. The Council submitted that observation with a surgeon overseas would be very difficult for the Council to determine, either in terms of qualifications and experience or appropriateness whereas the Council has "access to greater understanding of surgeons within the Australian jurisdiction".
Not surprisingly, the Practitioner relied significantly on his performance assessments and logbooks as well as his experience and demonstrated competence with respect to phalloplastic surgery. Senior Counsel for the Practitioner submitted with respect to disputed proposed condition 4 that the Tribunal should accept that there are "only really two surgeons in this country who do phalloplasties", particularly on the basis that the Council has put forward no names or otherwise provided evidence to the contrary, other than as emerged from Exhibit R5 which recorded a search revealing names of surgeons who perform "penile surgery", noting that such surgery can, but does not necessarily include and is not limited to cosmetic phalloplasty of the kind which the Practitioner has performed. The evidence before the Tribunal makes clear that, although potentially arguably best qualified to provide it, urologists tend not to perform phalloplastic surgery.
The Practitioner relied on his evidence, which the Tribunal accepts, that he has performed 80 cosmetic phalloplasties, 72 of which are confirmed by logbook evidence before the Tribunal. The Practitioner submitted that, in reality, he may have had as much, or more experience in phalloplasty as any surgeon currently practising in Australia. He may be right about that.
Senior Counsel for the Practitioner raised the question of "What precisely is it that Dr Mahadik would learn from the expert proffered in this appeal hearing?" and challenged the "utility and practicalities" of the proposed condition. Reliance was placed upon the absence of evidence of any "functional compromise post-operatively" on the part of Patients A and B, the phalloplastic surgery patients. The Practitioner submitted that a "more responsive condition would be that Dr Mahadik observe a Board certified plastic surgeon undertaking 5 cosmetic phalloplasties and provide the Medical Council with the name of the surgeon, registration status, date, time, place of surgery, details of procedure and reflections on each procedure observed, thereby enabling the Practitioner to fulfil the observation requirement sought by the Council in reliance upon surgery performed in the UK or the US". It was submitted that the Council approving the overseas surgeon would be unnecessary, verification that the surgeon is a Board certified plastic surgeon in another country and/or in Australia being submitted to be sufficient to address the issue. That was particularly submitted to be so "because in large part the concern has been around preoperative assessment and the suitability and post-operative care and category supervision in the terms outlined in our submission would meet those concerns and the health and safety and protection of the public".
In the course of exchanges between the Tribunal and Senior Counsel for the Practitioner the following occurred. The "chase" to which Dr Sheridan referred was a reference to exchanges with Counsel for both parties and the Tribunal during the course of the Practitioner's cross-examination. Senior Member Sheridan said (Tcpt, 6 February 2024, p 58): "SENIOR MEMBER SHERIDAN: So cutting back to the chase, what we're here for, the conditions, I'd just like to say a few things and you could perhaps help my thinking. What I'm saying is my thoughts, it's still in (the) process of happening and it's not my final views or the views or my colleagues, but nevertheless, in terms of the issue you've raised with regard to timeliness of Council decisions, I agree that delay may potentially be procedurally unfair and even verging in [sic] punitive to a practitioner if it takes too long and prevents them from earning a reasonable income or practising their career. So I'm of the mind that maybe we should (be) looking at timeframes for various decisions to be made or various points of contact with the Council to happen. MATHUR SC: There's no argument against that and we take no issue with time periods. SENIOR MEMBER SHERIDAN: The other issue is we definitely do not want to go anywhere near the general versus specialist registration for performance of cosmetic procedures or make any comment whatsoever on the need for an FRACS to perform cosmetic procedures that would be a bad place for us to go. MATHUR SC: And I think we are on all fours on that point. SENIOR MEMBER SHERIDAN: We would laude the attempts to obtain an FRACS as an indication of making effort. MATHUR SC: And I think for Dr Mahadik it's not - SENIOR MEMBER SHERIDAN: And that's as far as we would ever go. MATHUR SC: Yes and SENIOR MEMBER SHERIDAN: It would be wrong of us to do otherwise. MATHUR SC: And you have evidence before you that it has been Dr Mahadik's desire to take that path as far back as 2016. SENIOR MEMBER SHERIDAN: The other issue is what area we need to focus on in terms of safety of the community and performance improvement with Dr Mahadik. My understanding of the evidence we have received points not to technical skills but to non-technical skills of surgery. Therefore the issue of learning how to do phalloplasties better may be quite mute [sic] now. … Indeed we need to concentrate on improvement and being sure that an improvement has stuck in these non-technical skills such as preoperative assessment, post-operative care, all the stuff we talked about. I'm not seeing a lot of evidence. Even though we're not experts on that particular procedure we are surgeons and we can see where the technical issues are or are not in play and I don't think they're in play. MATHUR SC: No and the preoperative care can come from any surgical practice. SENIOR MEMBER SHERIDAN: So I think an assessment, cumulative with a performance review for a Category C supervision by an appropriately trained and approved surgeon is enough. But, and this is where I take some exception, I think there is a need for a timeframe around that so we don't leave an open ended supervision order forever and that we do say that, you know, there is a time period involved with that and also I do think that a summit [sic] of assessment, which would be a Council based assessment, performance assessment, still remains a very reasonable thing to suggest, notwithstanding what you've told us. We can say that we want a Council based assessment and the Council based assessments can be very specific as to what the assessors, the panel is asked to look at. So we would be asking the panel to look at non-technical skills for a review of note taking, management, preoperative management, evidence that things have improved and that they are continuing to improve and there's a really big effort has been made so that the Council can be comfortable that the areas that have been of concern have now been addressed and that would be the end of the process. And again we could put a timeframe around that."
Senior Counsel for the Practitioner replied: "And in response to both, the timeframe in relation to Category C supervision we would submit should be for a period of 12 months. That seems to be a reasonable period in which to assess a practitioner's practice however the Tribunal could give consideration to a lesser period of time given that --- SENIOR MEMBER SHERIDAN: Or a longer period of time. MATHUR SC: Or a longer, but 12 months is certainly in our submission at least a point in time where, as a first starting point. If at the end of 12 months and in the context of 12 months of supervision reports there really is a need for an additional period of time, that will be clear, but it may also be to the contrary. SENIOR MEMBER SHERIDAN: That may be clear at a performance assessment or it may be clear from the supervisor's reports, hopefully not. MATHUR SC: Yes if the Tribunal is minded to impose a performance assessment we would welcome a time period around that. … SENIOR MEMBER SHERIDAN: But we can dictate Council based versus performance based practice based I should, couldn't we? MATHUR SC: Yes."
In subsequent exchanges with the Tribunal (p 61) Senior Counsel for the Practitioner appeared to accept that the imposition of Category C supervision from the time the Practitioner commences private practice, in any capacity, would be appropriate.
In submissions in reply (Tcpt, 6 February 2024, p 63) Counsel for the Council reiterated that the Council did not accept that the evidence did not give cause for concern about the Practitioner's skills, referring to the evidence with respect to particularly Patients A, B, C and F in that regard. It was submitted that the

[19]

Consideration

As we have indicated at the outset of these reasons, the issues which ultimately require the Tribunal's determination are limited in number, but not in complexity. Exhibit X1 recorded the final position of each party. We have earlier set out the substance of that document.
The first contentious condition requiring determination is whether, as the Council seeks, the Practitioner should obtain its approval before changing the nature or place of his practice, or whether, as the Practitioner sought, the Practitioner must advise the Council in writing prior to changing the nature or place of his practice. Although, as recorded earlier, it is difficult to see how the Council could reasonably refuse to grant approval to such changes, other than in circumstances which would be likely to incline it to take action pursuant to one or more provisions of the National Law, no timeframe is suggested to attach to the approval process. Nor are the criteria for granting or refusing approval identified.
On balance, and having regard to the Tribunal's findings with respect to the nine patients whose surgery gave rise to these proceedings, it is in our view adequate to protect the health and safety of the public, which consideration overarches the exercise of the Tribunal's functions, and having regard to the restraint which is appropriately invoked when the power conferred by s 150 of the National Law is exercised, to require the Practitioner to advise the Medical Council in writing at least 28 days prior to changing the nature or place of his practice. Such a condition is unambiguous and requires the Practitioner to reveal information which would enable the Council to determine whether it perceives there to be a risk to the health and safety of the public if the Practitioner changes the nature or place of his practice, and, if it does, take such action as it considers appropriate.
The next issue requiring determination relates to proposed condition 2(c)(ii). The condition relates to the information to be contained in supervision reports which, it is agreed are appropriate, to be provided. The Council sought that "a summary of the details of discussion, review and feedback are to be included in supervision reports in accordance with the Council approved format". The Practitioner opposed any condition of that kind.
It is not in contest that the Practitioner should discuss upcoming theatre lists for cosmetic surgery procedures with his Council approved supervisor, and confer with respect to patient selection and appropriateness of procedures, and include theatre lists with the monthly supervision reports as an index. It is not in contest that at each supervision meeting the Practitioner review and discuss his practice with his approved supervisor, with particular emphasis on patient selection, operative technique, clinical decision making, medical records, post-operative care and complications. In those circumstances, the need for supervision reports providing the detail sought by the Council is questionable. It is relevant that any supervisor approved by the Council will have read the Tribunal's reasons for its decision. As suggested during the hearing, it is unlikely that a supervision report would not contain information about any aspect of the review and discussion of the Practitioner's practice which his supervisor considered gave rise to any concerns.
We are inclined to agree with the Practitioner that the disputed reporting condition would potentially impose a heavy onus on any supervisor and potentially disincline appropriate supervisors from agreeing to fulfil that role. In view of the Tribunal's findings with respect to the particular areas in which the Practitioner's skills require improvement, it is likely that only a limited number of specialist practitioners might assume that role in any event. As was discussed during the hearing, the potential for a report in the terms sought by the Council being so brief as to be meaningless on the one hand, or becoming an "essay" on the other militates against imposing this condition. Conversely, the condition sought by the Practitioner provides no requirement for reporting on the extensive conditions which are agreed should attach to the Practitioner's registration unless the supervisor considers it necessary to do so.
In our view, an appropriate condition would provide that a statement that the Practitioner is adequately complying with the conditions attaching to his registration, expressing any concerns which the supervisor has in that regard should be provided in supervision reports. That condition would not operate in isolation in view of the ambit of the requirement for mentoring and the clinical records which must be included in supervision reports.
The Council sought as a condition of the Practitioner's supervision that he not undertake any cosmetic procedures until a supervisor has been approved by the Council. The Practitioner did not oppose that condition in substance but, reasonably in our view, sought that it be qualified so as to provide that approval be provided within a specified time i.e., 6 weeks after the names of proposed supervisors being provided by the Practitioner.
Essentially for the reasons advanced by Senior Counsel for the Practitioner, the Tribunal is satisfied that a condition in the terms sought by him would be appropriate and avoid, as was discussed during the hearing, the risk of the Practitioner being unable to practice and earn an income for a potentially lengthy time. That is not to suggest bad faith on the part of the Council, but simply the reality that, in the absence of any time constraints with respect to approval of a supervisor, the potential for the process to drag on is considerable, and can readily be avoided by the imposition of a six week period. We do not understand the Council to suggest that compliance with such a timeframe would not be achievable, or be unduly burdensome for the Council.
Condition 4 sought by the Council, which relates to the Practitioner observing 5 phalloplasties performed by an Australian registered specialist surgeon or specialist plastic surgeon requires consideration in the light of the evidence and the exchanges with Counsel for the parties in closing submissions. The Tribunal accepts that the condition sought by the Council with respect to observation of phalloplasties may not be able to be complied with, or be unable to be complied with within a reasonable timeframe.
Notwithstanding the criticisms of the evidence of the Practitioner in that regard, it is not insignificant that the Council was unable to suggest the name of any Australian registered surgeon who performs cosmetic phalloplastic surgery. The Tribunal's findings with respect to the deficiencies in the Practitioner's care of the two patients whose phalloplastic surgery was considered in these proceedings are relevant in this context. The Tribunal has not found the Practitioner's phalloplastic surgical skills to have been deficient. The concerns related to the selection, pre-operative procedures and post-operative care of the patients. Observation of phalloplastic surgery would potentially have limited likelihood of addressing those issues. Mentoring is likely to have greater utility in that context.
The Tribunal considers the most effective practical resolution of this disputed condition to be the imposition of a condition that, within 12 months of the Tribunal's orders the Practitioner observe 5 phalloplasties performed by an accredited specialist surgeon or plastic surgeon, during which the Practitioner actually or virtually fully observes the surgeon undertake the phalloplastic surgical procedures during the entire episode of the surgery and, within 4 weeks of completion of the observation sessions, provides a report from the surgeon to the Medical Council of New South Wales outlining the details of each surgical procedure he observed, the time taken by such procedure and the Practitioner's observations of and learning from the surgery. The Practitioner having suggested that he observe UK or US registered surgeons performing phalloplastic surgery addresses most, if not all, of the Council's legitimate concerns, and, in the Tribunal's view, best deals with this issue.
The Medical Council of NSW should be authorised to provide to any surgeon nominated by the Practitioner a copy of the Tribunal's decision and the conditions which are imposed on the Practitioner's registration. The cost of observation and provision of the surgeon's report being borne by the Practitioner.
The last condition sought by the Council, that the Practitioner "undergo a performance assessment" is in the Tribunal's view, largely for the reasons discussed with Senior Counsel for the Practitioner and Counsel for the Practitioner in final submissions, an order that the Practitioner undergo a Medical Council based assessment. As we understand to ultimately emerge, uncontroversially, the conditions to be attached to the Practitioner's registration should commence from the date on which the Practitioner commences private practice, and continue for 12 months thereafter.

[20]

Orders 1. That the appeal is allowed. 2. That pursuant to s 159C(1)(c) of the Health Practitioner Regulation National Law (NSW) (National Law) the decision of the Medical Council of New South Wales of 4 November 2022 is set aside and it is ordered that the registration of Parag Jayant Mahadik (Practitioner) be subject to the conditions hereunder for twelve (12) months commencing on the date on which the Practitioner commences private practice on a full or part-time basis: 1. To advise the Medical Council of New South Wales in writing at least twenty-eight (28) days prior to changing the nature or place of the Practitioner's practice. 2. To practice under Category C supervision when undertaking or performing any cosmetic surgery procedures 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's approved supervisor must be either: (i) a registered Specialist surgeon with the Medical Board of Australia who has cosmetic surgery experience; or (ii) a registered Specialist Plastic Surgeon with the Medical Board of Australia; (b) the Practitioner is not required to be under category supervision for the following: (i) non-invasive procedures: injectables, laser treatment, skin treatments, threads or skin cancer treatments; (ii) upper eyelid blepharoplasties; (iii) general plastic or reconstructive surgery; (c) prior to each fortnightly supervision meeting the Practitioner must forward their upcoming theatre list to the Council approved supervisor for review and discussion: (i) the Practitioner is to discuss the upcoming theatre lists for cosmetic surgery procedures with the Council approved supervisor with respect to patient selection and appropriateness of procedure; (ii) a statement that the Practitioner is adequately complying with the conditions attaching to his registration and any concerns which the Council approved supervisor has in that regard are to be included in supervision reports; (iii) the theatre list must be included with monthly supervision reports as an appendix; (d) at each supervision meeting the Practitioner is to review and discuss his practice with his approved supervisor with particular focus on: (i) patient selection (including preoperative assessment and consent); (ii) operative technique; (iii) clinical decision making; (iv) medical records; (v) post-operative care; (vi) complications (including unplanned return to theatres, intraoperative and post-operative complications, and infections); (e) to authorise the Medical Council of NSW to provide the approved supervisor(s) with a copy of the decision which imposed this condition; (f) not to undertake any cosmetic surgery proceedings until a supervisor has been approved by the Medical Council of NSW, such approval to be provided within six weeks of the name/s of the supervisor/s being provided by the Practitioner (except for the procedures excluded by condition 2(b)); (g) no cosmetic procedure is to be performed unless the Practitioner has first discussed it with his supervisor at a supervision meeting (except for the procedures excluded by condition 2(b)). 3. Within 7 days of the end of each calendar month, the Practitioner is to provide the Medical Council of NSW with records of all procedures performed in the last month. The records must include the following: (a) the patient's full name and date of birth; (b) the date and time of each procedure; (c) all MBS/Medicare item numbers; (d) the name and nature of the surgical procedure; (e) the location of the surgical procedure; and (f) any complications arising as a result of the procedure (and specifically advising of any unplanned return to theatre and/or post-operative infection. 4. Within 12 months the Practitioner is to have observation sessions observing 5 phalloplasties performed by a specialist surgeon registered and approved by the relevant authority in the United Kingdom or the United States of America: (a) the Practitioner must be physically or virtually present in theatres and directly observing the overseas specialist surgeon undertaking the phalloplasty surgical procedure(s) during the entire episode of surgery; (b) within 4 weeks of the completion of the observation sessions, the Practitioner is to provide a report to the Medical Council of NSW outlining the date, the name of the overseas specialist surgeon who performed the phalloplastic surgery which he observed, the location at which such surgery was undertaken, details of the surgery, its duration and any other information relevant to the surgery; (c) details of what the Practitioner learnt from his observation of the sessions, and how that will impact his practice (including how the Practitioner will incorporate his learnings into future practice); (d) the Practitioner is to authorise the Medical Council of NSW to approach the overseas specialist surgeon to provide his or her own report to the Council with respect to the surgery observed by the Practitioner and, if applicable, any concerns, discussions, feedback or other observations regarding the sessions and the Practitioner's progress with phalloplasty; (e) the Practitioner is to authorise the Medical Council of NSW to provide any overseas specialist surgeon with a copy of the Tribunal's decision imposing this condition on the Practitioner's registration and any other relevant report; (f) the Practitioner is responsible for any costs incurred in relation to the period of observation and any reports pursuant to this condition. 5. The Practitioner is 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. 6. The Practitioner is to undergo a Performance Assessment with a Council appointed assessor. 1. That the costs of these proceedings are reserved. 2. Pursuant to cl 7 of Sch 5D of the National Law, the publication of the names of any patient referred to in the proceeding is prohibited.

Mahadik v Medical Council of New South Wales

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Judgment (21 paragraphs)

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Legislation Cited (1)

Cases Cited (4)