Medical Board of Australia v Alkazali [2017] VCAT 39 | Case summary

Medical Board of Australia v Alkazali [2017] VCAT 39 | Case summary | Zoe

[11]

On 5 September 2013, the Board referred the matter to the Immediate Action Committee of the Board for the purpose of it determining whether, because of Dr Alkazali's alleged conduct, he posed a serious risk to persons and, if so, whether it was necessary to take immediate action to protect public health and safety.[11]
On 9 September 2013, Dr Alkazali provided a submission to AHPRA in relation to the proposed immediate action.[12] This response was also sent to AHPRA on 11 September 2013[13] by Dr Alkazali's then representatives, the Medical Indemnity Protection Society (MIPS).
In that response, Dr Alkazali stated, inter alia, that he had not tried to deceive the Board. He was initially hesitant to talk about the text messages because he was trying to protect the complainant's privacy. He did not want to release to the Board initial messages deleted by the complainant in which she talked about herself privately and about having him as her boyfriend. He said that at the time of replying to her messages, he did not consider her private text messages as other than funny jokes between himself and a very close family friend. He also claimed that he did not consider the complainant's messages seriously, especially due to her state of mind.
On 12 September 2013, the Board's Immediate Action Committee decided not to take immediate action.
On 17 April 2014, AHPRA wrote to MIPS and advised that an additional issue had been identified regarding Dr Alkazali deliberately attempting to deceive and/or mislead the Board with regard to the provenance of the text messages.[14]
On 5 May 2014, Dr Alkazali provided a further response directly to AHPRA. His response included that he received 'private and sexual messages' from the complainant which he 'took as jokes' and that the complainant had deleted 'most of her messages that related to her' . He further stated that he understood the situation was bad and inappropriate but that he had no intention of engaging in sexual behaviour towards the complainant.[15]
On 8 January 2015, the Board decided to refer the matter to the Tribunal pursuant to section 193(1)(a) of the National Law on the ground that it reasonably believed that Dr Alkazali had behaved in a way that constitutes professional misconduct.[16]
On 19 January 2016, the Board referred four allegations concerning Dr Alkazali to the Tribunal, and a Letter of Referral and Notice of Allegations was filed on that date.[17]

[55]

The Board relies upon:
- (a) The oral evidence given by the complainant before the Tribunal together with her statement,[27] including an annexed extraction report setting out the text messages sent by Dr Alkazali to the complainant;
- (b) The oral evidence given by the complainant's niece before the Tribunal together with her statement;[28] and
- (c) An extraction report comprising text messages between Dr Alkazali and the complainant; and Dr Alkazali and the complainant's niece.
Dr Alkazali, who appeared in person, gave evidence before the Tribunal and also provided a written submission dated 11 December 2016.
The Tribunal acknowledges that during the hearing, Counsel for the Board extended appropriate assistance to Dr Alkazali. In addition, the Tribunal afforded Dr Alkazali extra time to consider his circumstances and the evidence upon which he proposed to rely. Dr Alkazali had previously consulted lawyers and was encouraged to do so again, prior to making further written submissions.
While English is not his first language, Dr Alkazali is a highly trained health professional who has practised as a medical practitioner in Australia for over 16 years. He understood questions asked of him; was clearly capable of answering questions; and clearly appreciated the nature and gravity of the Allegations.
In the Tribunal's view, there are a number of disturbing features which emerged from the evidence given by Dr Alkazali:
- (a) In his initial responses to the Board and subsequent written submission to the Tribunal, Dr Alkazali sought to rely upon text messages allegedly sent by the complainant to him, which he never produced;
- (b) In his oral evidence, he apparently sought to attack the credibility of the complainant by making allegations relating to her marital status and alleged tax improprieties of her and/or her niece, none of which were put to either of these witnesses;
- (c) He alleged that certain sexualised texts were intended as a joke between friends. However, putting aside his position as a treating medical practitioner, he did not explain the impropriety of such behaviour when directed toward a married albeit separated woman whom he knew to be of a different religious faith and a member of his own conservative community; and
- (d) While claiming that his initial failure to acknowledge sexualised texts to the Board was in deference to the complainant's privacy, he nevertheless alleged fabricated allegations on the part of the complainant that were a manifestation of 'another psychotic episode'.
The Tribunal acknowledges the helpful written submissions of Counsel for the Board, which have been incorporated in these Reasons, as appropriate.

[65]

Dr Alkazali admits that he did telephone and speak to the complainant, shortly prior to sending the texts. However, he denied that he suggested they have sex during this conversation.
During his oral evidence and subsequent written statement Dr Alkazali gave an alternative account of this phone call. The substance of Dr Alkazali's account was that he called the complainant on 25 May 2013:
- (a) to confirm details of her vaginal bleeding so that he could include it on her application for the Disability Support Pension (DSP);
- (b) to find out details with respect to her marital and intimacy status for the purpose of completing the DSP application.
He said that he was at his home when the telephone call took place, and that Saturday was a convenient time for him to complete the doctor's report supporting the patient's application. He agrees that he was told that the complainant was with her family, but says that instead of continuing to talk to the complainant, he decided to continue the communication via text messages.
He also stated that his separate 'mosque' house is in close proximity to his home; is only open on Saturdays for instruction in Arabic and the Quran 'to our new generation kids'; and that there is no chance for him to ask someone to attend the house with him to have sex.
In the Tribunal's view, the account given by the complainant is both credible and consistent with prior and subsequent events. In her evidence the complainant makes no mention of Dr Alkazali having asked her any questions relating to the completion of the DSP application.
Furthermore, the account given by Dr Alkazali is highly unlikely and lacks credibility for the following reasons:
- (a) In all of her previous consultations with Dr Alkazali, the complainant had been accompanied by her adult niece;
- (b) On the advice of Dr Alkazali, the complainant had previously attended Dr Alkazali's wife, a general practitioner in the same practice, in relation to gynaecological matters;[31]
- (c) In view of both of the above circumstances, it is highly unlikely that the complainant would have been either comfortable or prepared to speak about such a private medical matter over the phone, unaccompanied and with a male doctor;
- (d) It is also highly unlikely that Dr Alkazali would contact his patient by telephone on a Saturday afternoon solely for the purpose of discussing private and intimate medical issues. Such issues would, as a matter of course, be discussed in the privacy of a consulting room;
- (e) The complainant had previously made it clear to the medical practice that she did not wish to be telephoned regarding medical issues. Her Medical Summary printed on 23 May 2013,[32] states 'don't call';
- (f) Dr Alkazali was well aware on the day that he sent her the texts that he ought not to contact her. In a text message from Dr Alkazali to the complainant on 25 May, he wrote 'Pls keep all this secret bc [sister] told me not to contact with u wallah'.[33]
- (g) In any event, Dr Alkazali agreed that he had recently seen the complainant, on 16 May 2013, for the purposes of screening and counselling the complainant with respect to sexually transmitted diseases. She had previously complained of vaginal pain in a consultation on 23 April 2013. Given these circumstances:
  1. It is unlikely that Dr Alkazali was not already aware of the complainant's marital status; and
  2. Dr Alkazali said that as a matter of course he would have asked the complainant about recent sexual encounters in the context of an STD screen consultation;
- (h) There is no record in Dr Alkazali's clinical notes of the complainant ever complaining to Dr Alkazali or his wife about vaginal bleeding. This makes it unlikely that the vaginal bleeding was, as Dr Alkazali claimed, the reason for Dr Alkazali's call on 25 May 2013; and
- (i) Dr Alkazali elected not to cross examine the complainant about any aspect of his alternative account of the telephone conversation.
Under cross-examination:
- (a) Dr Alkazali conceded that due to his wife being the primary contact for the complainant's gynaecological issues, she would have had information regarding any vaginal bleeding that was reported; and
- (b) He explained that he did not seek the information from his wife because they did not talk about patients at home.
In the Tribunal's view, Dr Alkazali's explanation is not credible. In particular:
- (a) The complainant had already been referred by Dr Alkazali to his wife, for the purpose of a female doctor, with appropriate expertise, dealing with the complainant's gynaecological symptoms or concerns. It is most unlikely that Dr Alkazali would then seek to question the complainant separately about such matters;
- (b) It is particularly unlikely and inappropriate for Dr Alkazali to have telephoned the complainant at her home on a weekend and effectively seek to conduct a consultation about personal matters otherwise dealt with by another female doctor;
- (c) The Tribunal rejects Dr Alkazali's explanation that there was some urgency to complete the DSP application and that it was convenient for him to make the telephone call to seek additional requisite information;
- (d) It would have been more likely and appropriate to enquire of his wife, whether there is anything disclosed in the complainant's separate consultation with his wife, which could be of relevance to the DSP application;
- (e) In any event, there has been no suggestion that any gynaecological matter was relevant to the complainant's inability to work and therefore it is not apparent why such matter ought to be included in the DSP application; and
- (f) Dr Alkazali could have arranged a separate consultation with the complainant at his clinic in order to finalise the DSP application.
The Tribunal also notes that the evidence of Dr Alkazali's 'mosque house' was vague and entirely lacking in any detail or supporting evidence as to its location; ownership; daily use or accessibility.
The following series of text messages appear in the extraction report and will be variously referred to under each Allegation.[34] The complainant said in her statement that some text messages from her and Dr Alkazali were missing from her phone, which had stopped working for a period as a consequence of which only messages from 25 May 2013 were retained.

[114]

For the above reasons, the Tribunal is satisfied that Dr Alkazali's telephone call to the complainant on 25 May 2013 was not for a genuine medical enquiry. Furthermore, the Tribunal accepts the evidence of the complainant that Dr Alkazali asked her to meet him for sex at his other house. Accordingly, the Tribunal is comfortably satisfied that Particular 1(a) has been proven.
In his oral evidence and written submissions Dr Alkazali admitted Allegation 1, except for Particular 1(a). Accordingly, in relation to Particular 1(b) it follows that Dr Alkazali admits that the texts either individually, or when taken together, amounted to:
- (a) a request that the complainant tell him about the status of her relationship with her husband; with whom she had had sexual intercourse recently; and when was the last time she had had sexual intercourse;
- (b) a request of the complainant that she engage in a personal relationship with him involving casual sexual intercourse;
- (c) a request of the complainant as to whether she had friends who would be interested in having a personal relationship with him involving casual sexual intercourse; and
- (d) a disclosure to his patient that he did not regularly have sexual intercourse with his wife and that he preferred Iraqi Christian women who are clean and make their husband happy in bed.
In view of the content of the text messages sent on 12 May and particularly 25 May 2013, and Dr Alkazali's admissions with respect to the allegations, the Tribunal finds the allegations in Particular 1(b) also proven.
Further, Dr Alkazali also admits that his conduct in relation to Allegation 1 amounts to unprofessional conduct. In the Tribunal's view, in light of the accepted standards of medical practice, (evidenced by the documents referred to in Particular (c)[36] and Particular (d)[37] of Allegation 1, there is no question that Dr Alkazali's conduct at least amounts to unprofessional conduct. However, the appropriate characterisation of the conduct will be addressed below.

[125]

If Dr Alkazali's concern was simply that the complainant tell the psychologist (and thereby the Department of Social Security (DSS)) that she still suffers from schizophrenia, that could have been achieved by his own report to the DSS,[40] or more properly from a psychiatrist. In fact, in the report of Ms Tunny she stated that despite being told by the complainant that she did not believe that she now has schizophrenia, the psychologist was of the view that she continued to suffer from that condition.
In any event, there would have been no need for Dr Alkazali to have the patient attend with her sister and niece so that she could be 'taught' what to say or to be sent to another psychologist who would provide a better report.
In the Tribunal's view, there is a further disturbing aspect to the content of the text messages and Dr Alkazali's explanation for them, namely that there is no evidence upon which Dr Alkazali could have reasonably concluded that the complainant had ever suffered or continued to suffer from schizophrenia. Accordingly, it was improper for him to advise his patient to tell another health professional that she was suffering from symptoms associated with schizophrenia. This circumstance is relevant to Particular 2(a)(iii) and Allegation 3. The Tribunal notes in particular that at the time that the texts were sent:
- (a) There are no clinical notes of Dr Alkazali recording any symptoms of schizophrenia;
- (b) There was no mention of schizophrenia in the history taken by Ms Tunny;
- (c) There is no reference in the referral made by Dr Alkazali to Ms Tunny of any symptoms of schizophrenia; and
- (d) Dr Alkazali was not, at that stage, in receipt of a report from the complainant's treating psychiatrist [a report subsequently provided to Dr Alkazali from the complainant's treating psychiatrist makes no reference to a diagnosis of schizophrenia].
For the above reasons the Tribunal is comfortably satisfied that the conduct of Dr Alkazali, in sending the above text messages, constitutes a very serious violation of the boundary which should be maintained between a doctor and patient. Accordingly, the Tribunal finds that Particular 2(b)(iii) has been proven.
Dr Alkazali has otherwise admitted the allegations made in Allegation 2. Therefore, as to Particulars 2(a), (i) (ii) and (iv), he accepts that he sent texts that concerned matters that were not relevant to, or extended beyond an appropriate doctor / patient relationship, being concerned with:
- (a) The status of the complainant's relationship with her husband; with whom she had had sexual intercourse recently; and when was the last time she had had sexual intercourse;
- (b) Dr Alkazali's intimate circumstances touching on his marriage and his preference for Iraqi Christian women who are clean and make their husband happy in bed;
- (c) A request of the complainant that she engage in a personal relationship with him involving casual sexual intercourse;
- (d) A request of the complainant as to whether she had friends who would be interested in having a personal relationship with him involving casual sexual intercourse; and
- (e) Whether previous comments that he had made concerning whether [her niece] or she were lesbians, were in jest or otherwise;
Dr Alkazali also accepted Particular 2(b), namely that he continued to send text messages to the complainant on 27 May 2013, after it was made clear to him in a text at 7:57 pm on 27 May 2013 that she could not come to see him anymore and that she was uncomfortable with his texts. In view of the content of the text messages sent on 12 May and 25 to 27 May 2013, and Dr Alkazali's admissions with respect to the allegations, the Tribunal is comfortably satisfied that the allegations in Particulars 2(a) and 2(b) are proven.
Further, Dr Alkazali also admits that his conduct in relation to Allegation 2 amounts to unprofessional conduct. In the Tribunal's view, in light of the accepted standards of medical practice,[41] there is no question that Dr Alkazali's conduct at least amounts to unprofessional conduct. However, the appropriate characterisation of the conduct will be addressed below.

[126]

Allegation 3 alleges that Dr Alkazali inappropriately advised and/or offered to advise the complainant about how to improve her prospects of obtaining a DSP and/or what she should say to a psychologist in order to get a supportive report. Dr Alkazali denies Allegation 3 in its entirety. As indicated above in relation to Particular 2(a)(iii), Dr Alkazali says that he was doing no more than telling the patient to tell the truth to the psychologist about her condition, rather than inappropriately coaching his patient about what she should say.[42]
The primary evidence relied on by the Board in support of Allegation 3 consists of the statement of the complainant (and the medical records annexed to that statement),[43] the statement and oral evidence of [the complainant's niece],[44] together with the texts that are the subject of Particular 2(a)(iii).
In her statement, the complainant says:[45]
1. During one of my earlier consultations, Dr Alkazali said words to the effect that I had to act stupid to get the DSP. My niece ...was present at the consultation when Dr Alkazali made that remark.
2. On 18 February 2013, Dr Alkazali completed a GP Mental Health Treatment Plan so that I could consult with a psychologist for anxiety, depression and feelings of panic. This plan is at page 39 of the medical records marked AS-2.
3. I consulted with Yvonne Tunny, psychologist, on 19 (sic) and 21 March 2013. On 21 March 2013, I agreed that Ms Tunny could speak to Dr Alkazali and provide him with information in relation to my mental health. I understand that Ms Tunny diagnosed me with depression.
In her oral evidence, the complainant's niece said that the complainant had asked Dr Alkazali for a medical certificate to take a couple of weeks off work and he suggested to her that she obtain a DSP. Dr Alkazali said that he would have to send the complainant to a psychologist and that she should tell the psychologist that she had schizophrenia, 'just make up anything' as you have to have a disability or you cannot get the pension.
Under cross-examination, the niece said that:
- (a) she had no knowledge of any complaint made by any other member of the family about Dr Alkazali;
- (b) she had no recollection of any note or conversation concerning the complainant being harassed by a man at work;
- (c) she attended twice with the complainant when she consulted a psychiatrist, which concerned problems with her marriage;
- (d) she denied that Dr Alkazali called her one evening and said that her aunt took his messages seriously when he was joking; and
- (e) there has never been a diagnosis of schizophrenia discussed during consultations which she attended with her aunt.
In her statement, the complainant's niece says:[46]
1. I remember that, during one of [the complainant's] appointments with Dr Alkazali, Dr Alkazali suggested that [the complainant] try to obtain the Disability Support Pension (DSP) due to the problems she was having with her husband. I recall he said to [the complainant] words to the effect 'better for you, sit at home and get paid. I will teach you how to get the pension. You need to act dumb'. I recall that Dr Alkazali also said 'I will refer you to a psychologist'.
2. On 27 May 2013, Dr Alkazali and I engaged in the following exchange over SMS regarding [the complainant's] DSP application and the new psychologist:

[135]

Dr Alkazali did not challenge the account given by the complainant or her niece, to the effect that he advised the complainant to 'act dumb' or 'act stupid'. However, he sought to explain how such a comment might have been mistaken or misconstrued by the complainant and her niece. Dr Alkazali said that he could not recall whether he said to the complainant that she should 'act dumb' but suggested that if he did use those words, he simply meant that she should not be a 'smart arse' to the psychologist.
In relation to Particular 3(a), in the Tribunal's view, both the complainant and her niece gave consistent evidence which was not challenged by Dr Alkazali. Furthermore, the complainant's niece gave unchallenged oral evidence of a conversation between Dr Alkazali and the complainant wherein Dr Alkazali told the complainant to go to the Centrelink offices and 'act crazy' by 'throwing chairs around'.
The Tribunal is satisfied that Dr Alkazali used the words attributed to him and that by those words he was advising the complainant to act in a way that made her appear mentally deficient and unstable, when in fact she was not.
In respect of Particular 3(b), Dr Alkazali told the Tribunal that in his text communications with the complainant and her niece, regarding the psychological report, he was attempting to convey to the complainant that she should be honest about her diagnosis of schizophrenia. Dr Alkazali claimed that the text messages were not sent with an improper intent, but rather were sent with a genuine medical desire to ensure that the complainant gave herself a reasonable opportunity to obtain the DSP.
In responding to questions under cross-examination and from the Tribunal regarding how he came to the professional view that the complainant was suffering from schizophrenia, it became apparent that the only basis upon which Dr Alkazali relied to support this diagnosis was a telephone discussion with Ms Tunny and his own (undocumented) impression, which had apparently not arisen prior to the referral to Ms Tunny.
Ms Tunny made a note on 21 March: 'Spoke to Dr Alkazali - He agrees with diagnosis of Sz' (which is taken to be an abbreviation for schizophrenia). Dr Alkazali noted this conversation on 21 March and wrote 'she has ? schizophrenia, advised to come to clinic.' The complainant attended the following week (28 March) and it is apparent that on this day, Dr Alkazali was told the name of the complainant's previous treating psychiatrist, Dr Robert Chau, because on that day he contacted that doctor by facsimile and requested medical records from him.[47] It appears that Dr Alkazali received a facsimile copy of a report from Dr Chau on 19 April.[48]
The records from Dr Chau would not have provided any support for a presumptive diagnosis of schizophrenia. Dr Chau apparently treated the complainant for at least three and a half years (from 5 January 2009, when he diagnosed her with chronic anxiety and depression, until July 2012) and in relation to this period, there is no reference to schizophrenia or psychotic symptoms. Under 'History', Dr Chau recorded 'crying easily, emotional "fragile" (?), frightened easily, can't handle pressure'. Under 'current symptoms' (on 5 July 2012) he recorded 'miserable, stressed, frustrated'.[49]
The nature of the complaint reported to Dr Chau was; 'I have no complaint but only I can't sleep'.[50] Dr Chau's confirmed diagnosis was chronic anxiety and depression.[51]
Dr Alkazali conceded that a diagnosis of schizophrenia was a significant matter, however, the complainant was at no stage referred to consult a psychiatrist again. Dr Alkazali's answer that the complainant could not afford to see a psychiatrist is unconvincing in that he accepted that there were psychiatrists who bulk billed, and at the very least he could have contacted Dr Chau.
Nowhere in the clinical records of Dr Alkazali (or his wife) is there a record of an observation suggestive of psychosis, either before or after 21 March 2013. Furthermore, although Dr Alkazali prescribed an antipsychotic medication on 28 March 2013, there is no record of any subsequent discussions about the effectiveness or otherwise of the medication.
While it is not alleged by the Board that the complainant does not in fact have schizophrenia, the Board submits that it was inappropriate to advise the complainant to tell a psychologist that she had schizophrenia in circumstances where Dr Alkazali had no proper basis to diagnose that condition. The Tribunal agrees.
The Tribunal is satisfied that Dr Alkazali had no proper basis to diagnose schizophrenia on the following bases:
- (a) The absence of any psychiatric evidence confirming the diagnosis;
- (b) The absence of any record of Dr Alkazali's observations of symptoms suggesting psychosis;
- (c) The records from Dr Robert Chau, a psychiatrist who treated the complainant over a period of more than three and a half years, obtained after the diagnosis and prescription of Seroquel by Dr Alkazali, which make no mention of schizophrenia;
- (d) The fact that Dr Alkazali had not considered the diagnosis but came to the diagnosis only after speaking to a psychologist; and
- (e) Dr Alkazali's concession that he did not refer the complainant to a psychiatrist, and he did not follow up the Seroquel prescription, which suggests that Dr Alkazali did not seriously entertain the diagnosis.
For the above reasons, the Tribunal is comfortably satisfied that Dr Alkazali inappropriately advised and/or offered to advise his patient, the complainant, about how she could improve her prospects of obtaining a DSP and what she should say to a psychologist in order to obtain a favourable specialist psychological report that would be supportive of an application for a DSP.

[148]

In the circumstances, the Tribunal agrees with the Board's submission that Dr Alkazali's denial of Particular 4(b) is untenable. He claims that he misunderstood what was being asked of him, or alternatively, his response did not carry the meaning he intended. In his written submission, Dr Alkazali also claims that when typing the response to the Board, from his handwritten notes, his typist made some changes to his initial hand written letter that made substantial changes to the meaning of his answer to the Board. Dr Alkazali did not clarify what in fact his response was meant to state or in what way his meaning had been changed. In the Tribunal's view, it was apparent that Dr Alkazali understood the issues and he responded accordingly.
In relation to the provenance of the text messages, Dr Alkazali stated in his 26 August 2013 response that his original messages had been deleted and replaced by other messages. During the hearing, Dr Alkazali admitted to sending the text messages in the form in which they appeared in the extraction report. Accordingly, the Tribunal takes from Dr Alkazali's admission that the text messages had not (as he claimed in his response) been 'replaced' by other messages.
The Tribunal accepts that there was no doubt about the questions being asked by the Board and it is clear from his response that Dr Alkazali was asserting that the text messages were fakes, that they had been manipulated by the complainant and that he had never asked for sex. He now admits that he did send the text messages, that they are not fakes and he had in fact sent them.
The Tribunal accepts the Board's submission that, on any reasonable interpretation of these text messages, it is clear that Dr Alkazali was asking the complainant if she would have sex with him and if she knew any women who would have sex with him. His denials referred to above were deceptive in the same manner as the response referred to in Particular 4(a), which Dr Alkazali admits.
Accordingly, there is clear evidence that Dr Alkazali's responses to the Board and/or AHPRA contradicted the documentary record of the text messages (of which he was aware), which Dr Alkazali has now admitted. The Tribunal is comfortably satisfied that the Particulars under 4(a) and 4(b) are proven.

[159]

Furthermore, it appears that Dr Alkazali sought to 'tie' the question of his providing support for her DSP application with suggestions of intimacy between him and the complainant:
- (a) In the exchange on 12 May 2013, the complainant made it clear that she wanted to know when Dr Alkazali's letter in support of the DSP pension would be completed. Dr Alkazali's response was non-committal - 'God knows'. The complainant replied 'What do you mean god knows if you fill good it will get approved cos u are a good dr.' Dr Alkazali then raised the suggestion of intimacy - 'But good dr needs good girl to play with'; and
- (b) Similarly, on 25 May 2013, Dr Alkazali initiated the text communication following the telephone call and raised the question of the DSP form in his first text at 3:40:53pm. In that text and the following texts, he asked the complainant about her marital and sexual status, before asking her at 3:46:56pm, 'Do you want to be mine?' Clearly, Dr Alkazali had in mind the connection between the question of intimacy with the complainant and the provision to her of his support for her DSP form, because she asked about that text, 'What do you mean?' to which he replied: 'You will get u form done perfectly good regardless u answer.' The complainant again asked what he meant, and Dr Alkazali replied 'yes or no', then 'U will get pension for sure', then: 'In sha allah, i am asking if you want nice guy for casual sex very secretly'.
In the Tribunal's view, Dr Alkazali's conduct is aggravated by two further circumstances:
- (a) By linking his propositioning of the complainant for sex with his completion of the DSP application, he has sought to use the latter as a means of 'leverage' to procure sexual favours from the complainant; and
- (b) If Dr Alkazali in fact believed that the complainant suffered from a recognised mental health illness (whether that be schizophrenia, or depression and anxiety), his conduct in taking advantage of such a vulnerable patient is more serious.
Taking all of the above matters into account, the Tribunal is comfortably satisfied that Dr Alkazali's conduct with respect to Allegation 1 fell substantially below that expected of a general practitioner of like training and experience and properly amounts to professional misconduct.

[161]

Allegation 3 is denied by Dr Alkazali. For the reasons set out above, the Tribunal finds that Allegation 3 has been proven.
In Re Marta Balan,[61] the Psychology Board of Victoria found that Ms Balan, a psychologist, engaged in professional misconduct by providing her client with a misleading report for the purposes of a WorkCover claim, rather than providing an impartial assessment based on evidence.
While in that case Ms Balan was responsible for actually preparing a misleading report to WorkCover, the same ethical considerations apply to a medical practitioner who either knowingly assists a patient to obtain a misleading psychological report to support a claim for a pension, or alternatively, has no proper basis to advise his patient to tell the psychologist that she suffers from schizophrenia, because he has insufficient evidence.
In assessing the gravity of the impugned conduct, and whether it amounts to a substantial departure from expected standards, the Tribunal must look at the surrounding circumstances.
The Board submitted that if the Tribunal concluded that Dr Alkazali's conduct arose from a misguided but genuine concern to ensure his patient (who he actually believed was suffering schizophrenia) obtained a report and a pension that she deserved or was entitled to, then the Tribunal might not regard the conduct as professional misconduct, but merely unprofessional conduct. The Tribunal is satisfied that the facts and circumstances do not permit such a conclusion.
The Code of Conduct provides that doctors have a responsibility to 'communicate clearly, effectively, respectfully and promptly with other doctors and healthcare professionals caring for the patient' as well as an obligation to 'contribute to the effectiveness and efficiency of the healthcare system.' In the Tribunal's view, the conduct of Dr Alkazali seriously failed to meet these responsibilities and obligations.
For the reasons set out above, the Tribunal is comfortably satisfied that:
- (a) Dr Alkazali had no reasonable basis to conclude that his patient was suffering from schizophrenia;
- (b) Dr Alkazali was willing to overlook the absence of evidence because he was more interested in pursuing an inappropriate relationship with his patient; and
- (c) In advising and/or offering to advise the complainant in what to say to her psychologist, Dr Alkazali not only disregarded his professional obligations to another healthcare professional, but also compromised the effective administration of a key part of the healthcare system, namely government-funded financial support for people with disabilities.
Individually and collectively these above circumstances undermine Dr Alkazali's integrity as a medical practitioner, in that they each disclose Dr Alkazali's willingness to encourage his patient to deceive another healthcare practitioner, and ultimately DHHS.
The Tribunal is comfortably satisfied on the evidence for Allegation 3, which it has accepted, that the impugned conduct fell substantially below that expected of a general practitioner of like training and experience and properly amounts to professional misconduct.

Medical Board of Australia v Alkazali

At a glance

Court

Decision date

Source

Judgment (189 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (2)

Medical Board of Australia v Alkazali (Review and Regulation) [2017] VCAT 39 (11 January 2017)