Medical Board of Australia v Abi Haila (Review and Regulation)(Determinations) [2018] VCAT 196

1. Pursuant to s 196(2)(a) of the Health Practitioner Regulation National Law Act 2009 (National Law), the respondent is reprimanded.
2. Pursuant to s 196(2)(b)(i) and s196(2)(b)(v) of the National Law, conditions are imposed upon the respondent's registration as follows:

2.1.1 The respondent must undertake and successfully complete a program of education, of at least six hour's duration, approved by the Western Australia Board of the Medical Board (WA Board) in relation to appropriate prescribing of medications, with a focus on off label prescribing.

2.1.2 Within 14 days of the notice of the imposition of these conditions (education and mentoring conditions), the respondent must, on the approved form (HPN 24), nominate for approval by the WA Board an education course, assessment or program (the education) addressing the topics required. The respondent must ensure the nomination includes a copy of the curriculum of the education.

2.1.3 The respondent must complete the education within two months of the notice of the WA Board's approval of the education.

2.1.4 Within one month of the completion of the education, the respondent is to provide evidence of successful completion of the education.

2.1.5 The respondent must not use the education undertaken in compliance with these restrictions to satisfy the respondent's CPD requirements.

2.2.1 The respondent must be mentored by another registered health practitioner in relation to appropriate prescribing of medications, (with a focus on off label prescribing), and the clinical management of patients (with a focus on understanding circumstances which warrant a referral of a patient to an appropriate specialist).

2.2.2 For the purposes of this condition, 'mentoring' is defined as a relationship in which a skilled registered practitioner (the mentor) helps to guide the professional development of another practitioner.

2.2.3 The mentoring must comprise a minimum of five sessions occurring over a two-month period, with each session being of one hours' duration.

2.2.4 Within 14 days of the notice of the imposition of these conditions, the respondent must, on the approved form (HPN16), nominate a person (s) to be approved by the WA Board to act as mentor. The respondent must ensure that the nomination is accompanied by acknowledgement, on the approved form (HPNA16), from the nominated person.

2.2.5 Within 14 days of the notice of the imposition of these conditions, the respondent must provide to AHPRA, on the approved form (HP16), acknowledgement that AHPRA may seek reports from the approved mentor on any or all of the following occasions:

1. at the conclusion of the mentoring relationship in order to confirm the outcomes of the mentoring;
2. whenever the mentor has a concern or becomes aware of a concern regarding the respondent's conduct or professional performance; and

1. when otherwise requested by AHPRA or the WA Board.

2.2.6 In the event an approved mentor is no longer willing or able to provide the mentoring required the respondent is to provide a new nomination in the same terms as previous nominations. Such nomination must be made by the practitioner within 21 days of becoming aware of the termination of the mentoring relationship.

2. 3.1 Within 14 days of the notice of the imposition of these conditions, the respondent must provide to AHPRA, on the approved form (HPC), the contact details of the Director of Medical Services, Senior Practice Manager or equivalent (senior person) at each current place of practice. In providing this form, the respondent acknowledges that:

1. AHPRA will contact the senior person and provide them with a copy of the conditions on the respondent's registration or confirm that the senior person has received a copy of the conditions from the respondent; and
2. The respondent will be required to provide the same form:
   1. Within seven days of the commencement of practice at each and every subsequent place of practice; and
   2. Within seven days of each and every notice of any subsequent alteration of these conditions.

1. All costs associated with compliance with the conditions on the respondent's registration are at the respondent's own expense
2. Pursuant to s 193(3) of the National Law, the review period for the above conditions is three months from the date of imposition of the conditions.

1. On 12 October 2017, we made findings on the allegations made by the Medical Board of Australia in respect of Dr Bassam Abi Haila's professional conduct in 2013 and early 2014, and published reasons: Medical Board of Australia v Abi Haila (Review and Regulation) [2017] VCAT 1627.
2. The allegations concerned Dr Abi Haila's prescription of testosterone and human growth hormone to adult male patients, while working at an 'anti-ageing clinic' in 2013 and early 2014.
3. We found three out of the four allegations proven, namely:

That between on or about 5 April 2013 to on or about 15 January 2014, Dr Abi Haila engaged in unprofessional conduct and/or professional misconduct within the meaning of the definitions of unprofessional conduct and/or professional misconduct in section 5 of the National Law in that he prescribed Testosterone to his patients, Patient 1 and/or Patient 2 and/or Patient 5 and/or Patient 6, without proper clinical justification.

Allegation 2: prescription of human growth hormone

That between on or about 25 March 2013 and on or about 15 January 2014, Dr Abi Haila engaged in unprofessional conduct and/or professional misconduct within the meaning of the definitions of unprofessional conduct and/or professional misconduct in section 5 of the National Law by prescribing Somatropin to his patients, Patient 1 and/or Patient 2 and/or Patient 3 and/or Patient 4 and/or Patient 5 and/or Patient 6, without proper clinical justification.

That between on or about 29 January 2013 to on or about 15 January 2014, Dr Abi Haila engaged in unprofessional conduct and/or professional misconduct within the meaning of the definitions of unprofessional conduct and/or professional misconduct in section 5 of the National Law by failing to appropriately clinically manage certain of his patients.

1. In respect of each proven allegation we found that the conduct was un-professional conduct within the definition in s 5 of the National Law, namely professional conduct that is of a lesser standard than that which might be reasonably expected of the health practitioner by the public or the practitioner's professional peers. We refer to without repeating our reasons for making our findings set out in our published reasons at [2017] VCAT 1627, which also set out the background and evidence in detail.
2. In our orders made on 12 October 2017, we invited the parties to propose orders and directions in relation to submissions on the determinations under s 196(2) of the Health Practitioner Regulation National Law Act 2009 (National Law). The parties proposed a timetable for providing written submissions to the Tribunal instead of a further hearing. We made consent orders to that effect.
3. The Board submits that Dr Abi Haila should be reprimanded, and that conditions be imposed on his registration requiring him to complete an approved education program in relation to appropriate prescribing medications and undertake a period of mentoring in relation to appropriate prescribing of medications and the clinical management of patients.
4. Dr Abi Haila agrees that he be reprimanded, and a condition be imposed requiring him to complete an appropriate course, but submits that a mentoring condition is not required and a half day's duration is sufficient for the education course.
5. Although there was agreement that a reprimand was appropriate, Dr Abi Haila invited the Tribunal to specify that the reprimand remain on the public register (the Register) for a period of 12 months.
6. The Board submitted that any reprimand should remain on the Register for a period of five years, consistent with regulatory policy and practice, and subject to any decision by the Board under s 226(3) of the National Law to remove the reprimand from the Register if the Board considers that it is no longer necessary or appropriate for the reprimand to be recorded on the Register.
7. These are our reasons for the determinations we have made, namely, that Dr Abi Haila be reprimanded, and that education and mentoring conditions be placed on his registration in the terms proposed by the Board, with a review period for the conditions of three months.
8. We have not made any orders or directions about the length of time the reprimand is to remain on the Register for the following reasons.
9. We are not satisfied that the Tribunal has the power to make any such order under s 196(2) of the National Law. A review period for any conditions must be specified under s 196(3) but there is no equivalent requirement or power in relation to reprimands.
10. In contrast, s 226(3) of the National Law gives the Board a clear power to remove the information that the practitioner has been reprimanded from the Register, which appears to be exercisable at any time, if it considers that it is no longer necessary or appropriate for the information to be recorded on the Register.
11. In the circumstances, the Board's policy and usual practice described in its submissions is a matter of regulatory policy and in our view the decision as to when to remove the reprimand information from the Register is appropriately left to the regulator.

The principles applicable to determinations under the National Law

1. The applicable principles are well-established.[1] The primary purpose of determinations is to protect the public not to punish the practitioner. That primary purpose, together with protection of the reputation of the medical profession in the eyes of the public, is achieved by ensuring that proper ethical and professional standards are maintained.
2. As the Tribunal observed in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526, [14]:

It is of prime importance in assessing the appropriate sanction that we bear in mind that the purpose of the determination is not to punish ... Our aim must be to protect the public, and we achieve that aim by imposing sanctions aimed at regulating professional performance of the particular individual under consideration and also by way of general deterrence to the profession as a whole.

1. With that protective focus in mind, the Tribunal considers a range of factors including any need to deter the individual practitioner from repeating the conduct. Called specific deterrence, this involves an assessment of any ongoing risk posed by the practitioner such as:
   • whether they have demonstrated insight into the seriousness of the conduct and how and why it occurred;
   • whether they have shown genuine remorse and have taken independent steps to reduce the risk of repetition; and
   • whether they have any past disciplinary history, which in turn may suggest that stronger penalties may be required to deter them in future.[2]
2. The Tribunal will also consider how serious the conduct is and whether there is a need to signal to other members of the profession that adverse consequences will follow such conduct, and so deter them from the same conduct. This is called general deterrence.
3. Determinations in other cases of similar or analogous conduct will provide useful guidance. Consistency and proportionality are important. But every case is different, with its own combination of facts and relevant factors, including the degree of seriousness of the conduct, the length of time the practitioner engaged in the conduct, the number of patients impacted by the conduct, and the circumstances involved.
4. The cases the Board referred to in submissions illustrate the point:
   • Medical Board of Australia v Saykao (Occupational and Business Regulation [2011] VCAT 1338; and Medical Board of Australia v Christian (Occupational and Business Regulation) [2012] VCAT 1647, which each involved testosterone prescribing; and
   • Medical Board of Australia v Grant [2012] QCAT 285 and Health Care Complaints Commission v Epstein [2015] NSWATOD 21, which each involved human growth hormone prescribing.

1. Dr Abi Haila does not have any prior disciplinary history and there have been no other notifications in relation to his conduct in the years since. The length of time since the offending conduct and the absence of any repetition of the conduct are in his favour.
2. We found that Dr Abi Haila's conduct was of a lesser standard than that which might be reasonably expected of a medical practitioner by the public or his peers[3] but not at the extreme end of irresponsible prescribing.[4] He did not prescribe without seeing the patient. He had blood test results, although not repeated test results. He prescribed low starting doses. Despite the pressures he was under from the expectations of the clinic owners and the patients referred to him, he refused to prescribe to a number of patients. He recognised the pressure he had come under and eventually left the clinic.
3. This is not a case where suspension or cancellation of the practitioner's registration is warranted in the interests of specific or general deterrence,[5] but a reprimand and targeted conditions are warranted in our view for the following reasons.
4. In finding that the conduct was unprofessional conduct rather than professional misconduct, we took into account Dr Abi Haila's level of training and experience at the time of the conduct. He was a junior doctor still in training, in his third year post-graduation, working as a medical registrar. He had not started the four year general practitioner training which he has been undertaking in the intervening years. He did not yet have a Medicare provider number.
5. We were concerned, however, about Dr Abi Haila's lack of insight into the inappropriateness of his conduct; the discrepancy between his own opinion of his expertise and experience and the actual levels of his expertise and training; and his failure to recognise that he was well outside the limits of his training and experience and out of his depth.[6] Lack of insight is a relevant factor in the decision about determinations in this case.
6. We were also concerned by Dr Abi Haila's continued justification of his prescribing practices in his evidence at the hearing before us, which indicated a lack of genuine remorse in our view.
7. As submitted on his behalf, he was entitled to explain the process by which he made his clinical decisions. He was entitled to defend the allegations made against him. He was ultimately successful in defending a fourth allegation to do with his record-keeping. Defending the allegations made does not necessarily indicate lack of remorse, although a plea of guilty to appropriate allegations will usually be an indication of genuine remorse and understanding.
8. We were concerned, however, by the fact that Dr Abi Haila continued to justify his prescribing as evidence-based, in circumstances where the evidence he provided, which supposedly supported the prescribing, was to the contrary.[7]
9. He gave us a strong impression of a lack of understanding of the clinical inappropriateness of the prescribing and an apparent inability to properly evaluate the evidence concerning the prescribing of testosterone and human growth hormone to adult patients with hormone levels within the normal range.
10. We were also concerned by his asserted belief that he was sufficiently experienced and knowledgeable at the time to prescribe hormone treatment to the patients concerned without obtaining specialist opinion.
11. We have taken into account the submission on his behalf that Dr Abi Haila accepts his view is not shared by the Board and that he has not prescribed testosterone or human growth hormone since 2014, which reduces the risk of repeating the conduct, but we were not satisfied that Dr Abi Haila demonstrated genuine understanding and remorse for engaging in the conduct itself.
12. In our view, the mentoring condition proposed by the Board is warranted to address these concerns.
13. A period of mentoring will protect the public by ensuring that Dr Abi Haila has the benefit of one-on-one discussion and exploration on the proposed topics, with a skilled practitioner approved by the Board, with the outcomes able to be confirmed by formal reports at the request of AHPRA or the Board.
14. Mentoring is likely to be an effective way of addressing any remaining lack of understanding about the requirements of responsible prescribing, and what we saw in this case as a concerning over-confidence on the part of a junior doctor.
15. The combination of determinations considered necessary in this case will also meet the need to signal to other practitioners who may be minded to engage in similar conduct, whether in 'fringe' clinics or elsewhere, that inappropriate prescribing will attract adverse consequences.

[1] See for example Ha v Pharmacy Board of Victoria [2002] VSC 322, [97]; Medical Board of Australia v Janz [2011] VCAT 1026, [358]-[373]

[2] See for example Medical Practitioners Board of Victoria v Grolaux (No 2) [2009] VCAT 978 in relation to assessment of insight.

[3] Reasons [108]-109], [160]-[161], [183]-185]

[5] See the discussion in Honey v Medical Practitioners Board of Victoria [2007] VCAT 526 at [41]-[61], of the purposes of and the differences between the determinations of suspension and cancellation.

[6] Reasons [55]-[60], [183]-[185], [200]-[201].

[7] Reasons [73]-[83], [137]-[138]