Qasim v Medical Council of NSW

NCAT Occupational|2020-11-23

SWCATOD 75 Zepinic v Health Care Complaints Commission [2020] NSWSC 13 Texts Cited: Nil Category: Principal judgment Parties: Shaheen Qasim (Applicant) Medical Council of NSW (Respondent) Representation: Counsel: I Fraser (Respondent)

Solicitors: Applicant (Self-represented) Medical Council of NSW (Respondent) File Number(s): 2019/00375231 Publication restriction: Nil

Orders for Review

The applicant seeks a review of orders made by this Tribunal on 2 May 2014 ("2014 Tribunal"): see Health Care Complaints Commission v Qasim [2014] NSWCATOD 42. The orders made by the Tribunal included the following: 1. Dr Qasim's health practitioner's registration be cancelled as of today. 2. Dr Qasim is not permitted to make an application for re-registration or review for a period of four years from today.
In summary, the 2014 Tribunal made the following findings concerning the applicant: 1. The Tribunal accepted that there was a serious psychiatric disorder and accepted comments about the difficulties and uncertainties about an exact diagnosis on a paranoid spectrum. The Tribunal was of the view that the psychiatric disorder constituted an impairment and specifically causes impairment in interactions with patients, colleagues and with the community in general. 2. The Tribunal found that Dr Qasim had limited insight into her impairment and did not accept that the advice she gave to general practitioners was contrary to the advice a specialist endocrinologist should give. 3. The Tribunal was of the view that Dr Qasim did not accept that she had a mental illness which required treatment or, at least, an acceptance of the problems she had so she could be given assistance. 4. The Tribunal formed the view that it was unlikely, at least for a significant period of time, that Dr Qasim could change her conduct or get to a position where she was competent to practise.
The above decision and orders were challenged by the applicant in the New South Wales Court of Appeal: see Qasim v Health Care Complaints Commission [2015] NSWCA 282. In its decision, delivered on 22 September 2015, the Court dismissed the appeal.

History of proceedings

Proceedings had been instituted against the applicant by the respondent at a hearing convened pursuant to s 150 of the National Law, on 22 December 2010. During that hearing, it is apparent that the delegates were concerned for the health and safety of patients because of the conduct of the applicant and concerns for her psychiatric well-being. The delegates determined that it was appropriate to suspend the applicant's registration. The delegates also recommended that the applicant be assessed by a Council-appointed psychiatrist before an application to lift the suspension was considered.
The applicant sought a review pursuant to s 150A of the National Law of the findings of the Medical Council. Such review was heard on the 24 February 2012 and 23 March 2012. The delegates found the applicant displayed "a serious lack of insight during the proceedings" and explained in detail the reasons for arriving at such conclusion. Significantly, the delegates rejected the evidence of her two medical practitioners and determined that the applicant was currently impaired or suffering from a mental condition or disorder that would detrimentally affect her capacity to practise as a physician. This finding was consistent with the conclusion reached by Dr Anthony Samuels, Council-appointed psychiatrist, in his reports dated 27 April 2011 and 1 February 2012. Additionally, the delegates found that the applicant's: lack of clinical competence clearly poses a risk to her patients. This risk is heightened both by her impairment and her total lack of insight. Sadly, the level of impairment and lack of insight prevent [the applicant] from obtaining the help she needs.
The 2014 Tribunal decision records that the hearing took place between 17 March 2014 and 28 March 2014 inclusive, and the decision was delivered on 2 May 2014. Five specific complaints were relied upon by the respondent. The decision records that the applicant appeared for herself. Having heard the evidence, the Tribunal was satisfied that the applicant had: limited insight into her impairment. She does not accept that the advice she gave to general practitioners is contrary to the advice a specialist endocrinologist should give. She does not accept the evidence given by Professor Proietto, a very highly qualified endocrinologist.
The Tribunal also found that the applicant did not accept that she had a mental illness which required treatment "or, at least, an acceptance of the problems she has so as she can be given assistance."
The Tribunal concluded: The Tribunal has therefore formed the view that it is unlikely, at least for a significant period of time, that [the applicant] will change her conduct or get to a position where she is competent to practise.
The applicant's appeal before the Court of Appeal of NSW was heard on the 16 and 17 June 2015. The applicant succeeded in respect of two grounds of appeal. Nevertheless, the Court concluded that in respect of a principal issue, namely, whether the applicant suffered from a paranoid disorder, the evidence relied upon by the Medical Council and reports of 27 April 2011 and 1 February 2012 of Dr Anthony Samuels, Council-appointed psychiatrist, justified the Tribunal's conclusion that the applicant suffered from an impairment, and that the Tribunal was entitled to prefer that evidence in contrast to the evidence of her treating psychiatrist, Dr Selwyn Smith.
Significantly, the Court of Appeal found (at [64] of its decision): There was no requirement under the applicable National Law that a diagnosis that a person has a mental condition or disorder in the sense of an "impairment" be formed in accordance with the DSM or that, having concluded that the practitioner has a paranoid disorder, it was necessary to identify where along the paranoid spectrum, from personality disorder to paranoid schizophrenia, the practitioner fell: see Grant v HCCC [2003] NSWCA 73 at [11], [12]. Dr Samuels' evidence was that the appellant has a paranoid condition "which falls somewhere between a paranoid personality disorder and a paranoid schizophrenia". That was sufficient to support the Tribunal's finding that Dr Qasim has a "serious psychiatric disorder" which constitutes an "impairment" under the applicable National Law: [138], [140], [163], [164].
As to the submission made by the applicant that any psychiatric disorder of the applicant should not prevent her from practising, the Court said at [71]: The evidence, including the evidence of Dr Samuels extracted at [63] above, provided a logical basis for the Tribunal's conclusion as to the effect of Dr Qasim's impairment. In particular, Dr Samuels' opinion was that Dr Qasim had "judgment problems" and that there was likely to be an ongoing pattern of problems and "difficulty with her practice". His opinion was that this would continue to be the case unless Dr Qasim was prepared to engage in a therapeutic relationship with somebody and subject herself to supervision and monitoring. The Tribunal concluded, on the evidence, that was unlikely to effectively occur: [176]. Ground 8 should also be dismissed.

Material and submissions of the Applicant

The applicant has provided documents, stated to be on oath, but without any attestation clause, that were witnessed by a pharmacist dated 11 June 2020. The applicant describes these documents as "affidavits". The dates of each affidavit (not in chronological order but in the order in which they have been prepared in the bundle are as follows: 11 June 2020; 10 June 2020; 16 June 2020 (three affidavits); 17 June 2020.

Affidavit 11 June 2020

The content of the affidavit contains material which is not relevant to these proceedings. For example: - 1. The affidavit criticises the Health Care Complaints Commission ("HCCC") in the conduct of the proceedings before the Tribunal. Further, a transcript extract of the hearing on Tuesday, 11 March 2014 is attached. The applicant has highlighted a portion of the transcript and claims that a statement of the legal adviser representing the HCCC provided a misleading and inaccurate statement. Other portions of the transcript are attacked. 2. In the proceedings before the Tribunal in 2014, evidence was led concerning the conduct of the applicant involving her occupancy of a strata title home unit. Again, the applicant raises issues concerning the cost of rectification of the strata building and attaches correspondence from 2004 from one of the occupants. 3. The affidavit also attaches the transcript of reasons for a decision in proceedings between the owners of the Strata Corporation and the applicant, and orders that were made in those proceedings before the Consumer, Trader and Tenancy Tribunal in proceedings that occurred in approximately 2004. 4. Also attached to the affidavit are reports relating apparently to patients of the applicant. 5. A document entitled "points for discussion", provided by the applicant to her legal adviser in the Court of Appeal proceedings, is attached.

Affidavit of 16 June 2020: affidavit 4

This affidavit contains a historical narration, which is related to the Tribunal decision. It is difficult to comprehend from the document what its purpose is. In reference to her building dispute with the Strata Corporation and the findings of the Consumer Claims and Tenancy Tribunal, the applicant refers to statements such as "Tribunal are ridiculous in writing such nonsense". Further, the applicant alleges that the tape recordings of the s 150 proceedings "refute the written reasons".

Affidavit 16 June 2020: affidavit 5

This affidavit relates to clinical evidence of various patients which may have been relevant to the original proceedings.

Affidavit 16 June 2020 [unnumbered]

This affidavit refers to the condition of a patient who was the subject of proceedings before the 2014 Tribunal.

Affidavit 17 June 2020 [unnumbered]

This affidavit also relates to matters relevant to the original proceedings, although it is difficult to determine dates.
The affidavit also attaches certificates as follows: 1. CPD certificate awarded to the applicant having completed a module entitled Covid19: pandemic. 2. American Endocrine Society Performance Report 2017. 3. Certificate IV in fitness and academic transcript issued by the Australian Institute of Personal Trainers and statement of attainment. 4. CPD certificate of completion of module on the treatment of diabetes, dated 9 June 2019. 5. Certificate of completion for 2016: certifying that the applicant has met the CPD requirements for 2015 and 2016 of the Royal Australian College of Physicians. 6. Certificate that the applicant has been awarded a certificate for the course completion for Advanced Return to Work Co-Ordination. 7. CPD re-entry plan apparently prepared by the applicant. 8. Statement of the applicant's accountant, Mary Jane Hardy, dated 25th of May 2011, concerning the evidence which she would give at the 2014 NCAT hearing. 9. Statement of Gregory Bartels, tax agent, dated 27th of June 2020, which states that he would strongly support the reinstatement of the applicant to enable him to seek ongoing treatment through her. 10. Reference of Narelle Hall dated 10 July 2004. 11. Letter of Bryan Martison dated 29 December 2005 entitled "ongoing harassment of Dr S Qasim". 12. Statement of Doug Simes, furniture business proprietor, dated 23 June 2020, who supports the reinstatement of the applicant and refers to damage allegedly caused by the applicant's tenant to her property. 13. Letter to Dr Samuels (undated) which raises allegations concerning matters relating to the 2014 Tribunal hearing. 14. Photographs of a building and apparent defects, together with schedule of defects of the building, and other documents seeking particulars of the building matter. 15. Document entitled "grave errors of HCCC Section 150 Hearing 2nd December 2010". 16. Letters of various medical specialists relating to patients, and letter of a pharmacist, S. Glakoumatos, dated 17 December 2010, addressed to the Medical Board. 17. Summary, which is disjointed and incomprehensible, and documents relating to the optimal level of vitamin D.
A bundle of documents entitled Volume 2 has been provided to the Tribunal. The documents relate to alleged errors in the written reasons of the 2014 Tribunal; a statement of Douglas Simes, dated 8th of July 2020, which relates to the events of the attendance upon Dr Samuels on 8 July 2020; a reference by Dr Sheena Cameron, dated 19th of January 2012; letters addressed to a presiding member of this Tribunal alleging unethical conduct on the part of various practitioners; complaints about the conduct of the agent in the building construction matter; a document entitled "Summary of Tricks of Health Care Complaints Commission to pervert the course of justice"; information concerning the applicant's background and other material alleging theft of files; photographs taken inside the New South Wales Court of Appeal, apparently during the applicant's hearing following her appeal from the 2014 Tribunal decision.
During the hearing, the applicant provided an additional Volume 3 containing numerous documents, records and correspondence. In addition, the applicant provided 2 statutory declarations.
The applicant has provided, in accordance with the order made on 16 October 2020, 17 emails and material in support of her application, and numerous emails in reply between 5 November 2020 and 20 November 2020. All of this material has been considered by the Panel. In such material the applicant has included statements which are referred to as affidavits.

Applicant's Oral submissions

The applicant, consistent with her written submissions and material, submitted that the 2014 Tribunal erred in its decision-making; that before the Court of Appeal her arguments were not put correctly; and that she was suffering from no impairment.
The applicant stated that she had kept up-to-date with her qualifications by studying the various courses which have been evidenced by the certificates attached to her affidavits. The applicant maintained that those certificates evidenced that she had satisfied the continuing professional development required for a specialist endocrinologist. On 20 November 2020 the applicant provided a brochure concerning a business which is currently operating relating to the promotion of physical health.
The applicant provided no evidence that she had attended for psychiatric treatment since the 2014 Tribunal, and no expert medical reports in support of her application that she was not suffering an impairment. In the material filed by the applicant from 22 October 2020 to 20 November 2020, there is no medical evidence, in support of her application that she has no impairment.
The applicant asserts that no interview occurred with Dr Samuels on 8 July 2020, and maintains that Dr Samuels became rude and aggressive and had refused to permit her witnesses, Mr Douglas Simes and her accountant, Mr Greg Bartels, to be present in the room during the proposed consultation, and had refused Mr Bartels' request that the consultation be recorded.
The applicant also submitted that correspondence which was held by the Medical Council concerning Dr Roger Smith, written in November 2017, had not been produced.
The applicant stated that she had consulted Dr David Sturrock, psychiatrist, on three occasions, commencing in November 2019, and that Dr Sturrock had recommended that she draft a letter to Dr Samuels. She also stated that she had consulted Dr Robert Reznik, psychiatrist, but that the latter practitioner saw her as a colleague, and not as a patient.
In respect of a suggestion made by the respondent that there was evidence to suggest that the applicant had treated patients after her deregistration, the applicant responded by stating that she prescribed no medication for two persons who were referred to her for their physical health. The referrals were made by a general practitioner and by a dentist. She acknowledges that she provided assistance to them by way of physical exercise programs for their health, based on her Certificate IV in fitness.

Dr Samuels' Reports

The respondent relies upon a report of Dr Anthony Samuels, dated 21st of July 2020. In this report, Dr Samuels records that he saw the applicant on 8 July 2020. Dr Samuels notes that in the applicant's application for reinstatement, she includes a demand for correction of the written reasons. He found the application to be disorganised. He notes as follows: Of concern is Dr Qasim mentions two cases in which she gave clinical advice: one in May 2018 to a younger person with unexplained tooth loss, and advice to a senior judge in December 2018. [51] Dr Qasim traverses many of the same issues mentioned in my previous reports, stating that she has consulted with senior clinicians in Bondi whom she says disagree with my opinion and she will provide these reports. There is material related to her CPD, materials related to her property, an article about Vitamin D, and a lot of the material is repeated. [52] It seems clear from reading this material that little has changed and Dr Qasim remains of the opinion that there are no deficiencies in her practise and that she does not suffer from an impairment. She clearly is still preoccupied about the structural issues in her unit and despite being suspended it appears that she is still providing medical advice. [53]
Dr Samuels noted that there was no medical evidence that the applicant had received any psychiatric or other psychological treatment in the period since the 2014 Tribunal hearing, and that the applicant's submission did not have any reference to the issue of impairment which was central to the applicant's deregistration. Dr Samuels observed that a volume of repetitive material had been supplied by the applicant which suggested "that little has changed in regard to her mental state". Dr Samuels first reviewed the applicant in 2004, again in 2011, and again in 2012.
The expert assessment which was to take place on 8 July 2020 between the applicant and Dr Samuels was unsatisfactory. Dr Samuels records events as follows: Dr Qasim was booked to see me at 10:15 am on 8 July 2020. She presented with 3 other people. I explained that because of COVID-19 restrictions we were limiting the number of people on site and I would need to see her alone. [70] Dr Qasim was neatly attired but looked anxious and seemed perplexed. Despite my explaining this to her she kept ushering the members of her group into the room. A man who did not identify himself seemed to take charge and offered her legalistic advice. This man told Dr Qasim to see me by Skype and to record the interview. I indicated I was not willing to proceed on that basis. He became quite aggressive and challenged me in regard to my reasons. [71] I asked them all to wait outside the rooms and I would speak to the Council and we would decide what to do. After a telephone discussion with Sarah Kennedy I agreed to see Dr Qasim with another person who was not a lawyer and not with her brother who had interfered in the examination process previously. [72] I went out to speak to them, they had all left. My secretary telephoned Dr Qasim only got her voice mail and left a message saying we would see her. Dr Qasim only called back late that afternoon. [73]
In answer to specific questions asked of him concerning the applicant's mental state, Dr Samuels states as follows: 1. Please explore Dr Qasim's current attitude to the previous proceedings before the Tribunal (noting that her application for reinstatement seeks "correction of the written reasons"). Her written responses suggest nothing has changed. She continues to present as grandiose, entitled, denying deficiencies in her practice or impairment. [75] 2. In your 1 February 2012 report you concluded that Dr Qasim was impaired and expressed the view that she was suffering from a paranoid condition. You have also previously stated that her illness is very difficult to treat, and such patients are usually reluctant to engage in treatment or take medication. They regard attempts at treatment as part of a wider conspiracy and that if their delusions are entrenched or longstanding, the prognosis is not very favourable (see Decision of Medical Council, Proceedings under s. 150A, 15 May 2012, p 13). Please explore with Dr Qasim whether she has sought any treatment of the identified impairment. Please provide any comments you may have on the type of treatment sought and its efficacy. She appears to have sought various psychiatric opinions but there is no evidence that she has engaged in any treatment. [76] 3. In your report dated 1 February 2012, you stated that: 'It is extremely difficult to interview patients with paranoid disorders as they tend to be guarded and evasive by nature of the disorder… it is often only when they are seen for a prolonged period and placed under some pressure, as was evidence in the section 150 hearing, that their mental state and defence system decompensates and the symptoms become more evident'. From your assessment of the materials and of Dr Qasim, please provide your opinion as to whether Dr Qasim retains the paranoid disorder that you observed in your 2012 assessment. The materials are disorganised, suggest her ideation has not shifted in any way, and she remains grandiose in her self description and references to her accomplishments. She continues to make derogatory comments about the clinicians who complained about her, the Tribunal and its processes, she continues to refute my opinion and denies that she is impaired. She now is angry with the clinicians who in fact supported her in the past. [77] 4. Do you consider that Dr Qasim currently meets the definition of "impairment" within the National Law? Please described the nature of any impairment. (Please see the definition in the enclosed information sheet for Council Appointed Practitioners.) There is nothing before me that changes the previous opinion I have given. My most recent brief interaction with Dr Qasim was similar in nature to all my other assessments with her. My impression is nothing has changed and she remains impaired and that she is suffering from a severe mental illness in the form of a paranoid disorder. [78]
In respect of her ability to practise as a medical professional, Dr Samuels considered that her impairment is likely to impact upon her ability to practise; that the applicant does not accept that she is impaired; and that at present, the prognosis seems "poor". Dr Samuels concluded: Dr Qasim's application traverses the same issues as in the past, if anything her beliefs seem more entrenched and her hostility towards those who challenge her viewpoint more overt. The initial application was extremely chaotic, the subsequent one a bit more organised but the content in both remains unchanged. [83] It is concerning that Dr Qasim has offered medical advice to a young person with tooth loss and to a Judge. This suggests she is not able to abide by restrictions imposed on her. [84]

Dr Samuels' Oral Evidence

Dr Samuels was cross-examined by the applicant. In his evidence he stated that all of the recent material provided to him, including emails which the applicant had forwarded to the Tribunal during the hearing, demonstrated to him, and confirmed, that the applicant has a very long-standing untreated mental illness. He drew this conclusion having seen evidence of illogical processes, grandiose thoughts, disordered thought form, irrelevancies, lack of judgement, inability to filter out irrelevancies, inflexibility of thinking and lack of insight. The emails to the Tribunal contained inappropriate remarks and observations of medical experts, the judiciary and of legal practitioners. He noted that her disorganisation became more prominent when she was under stress, such as in a legal hearing.
Dr Samuels considered that the applicant was suffering from a paranoid personality disorder or paranoid schizophrenia; that such condition had become more florid in recent years; and that her condition had deteriorated. Dr Samuels had examined the applicant in 2004, 2011 and in 2012.
Dr Samuels opined that the applicant lacked insight and was resistant to treatment; that her family is colluding by their support, and that such conduct is effectively preventing her recovery; and that had the applicant received treatment with antipsychotic medication involuntarily it might have altered the course of her illness, but her condition was now a severe psychosis.
Dr Samuels considered that antipsychotic medication might assist, but that the applicant had demonstrated that she would not agree to any medication; that her prognosis was poor and that she was unlikely to progress to returning to work as a medical practitioner. He considered that treatment could attenuate her beliefs and that if this occurred there was the possibility of some improvement in her function, but on balance he still considered it unlikely she could improve sufficiently to be fit to return to medical practise.
Dr Samuels considered that her mental illness is manifested by a significant decline in her functioning. He gave an example of how, at a previous hearing, she had given evidence of persons coming through the ceiling of a house and of numerous contacts with the police for unfounded claims.
Dr Samuels observed that the applicant had an inability to move forward from events; that she remained preoccupied, as was evident in the current proceedings, with events that occurred in respect of a building dispute and other litigation which had occurred many years ago. Such inability reflected her underlying mental illness. Further, her challenge to both doctors, lawyers, and the judiciary as being incompetent indicated her mental state. He said that she had no insight into her impairment. As a result, she had no ability to identify important pieces of information, including personal information; she was delusional, she was illogical and disordered in her thought form. In his opinion, his diagnosis of a paranoid psychosis remained.
Dr Samuels observed that the applicant had an inability to accept the feedback of experts at the 2014 Tribunal in regard to her clinical management of patients. Her inflexibility of thinking, grandiose views of her own competence, persisting defence of her practice despite expert evidence to the contrary, inability to reflect on her practice, denigration of the experts and an inability to synthesise the views of experts, reflected her underlying illness.
As to her mental impairment, Dr Samuels stated that he was familiar with the definition of "impairment" as contained in s 5 of the National Law. Dr Samuels expressed the opinion that the applicant was clearly impaired; and was impaired as defined in the National Law.
With respect to the attendance by the applicant in his consulting rooms on 8 July 2020, Dr Samuels stated that she seemed to be perplexed by the conversation between himself and Mr Bartels. He said he was surprised when the applicant attended the consultation with two persons who sought to be present throughout the consultation. Dr Samuels stated that previously the applicant's brother had attended a consultation and became aggressive. Dr Samuels said he was not prepared, especially in the Covid crisis, to have anyone else in the consulting room with the applicant; and that he was not prepared to have the interview recorded.

Observations

The power of this Tribunal when exercising jurisdiction under the National Law has, as its prime objective, the protection of the public: see s 3A of the National Law; see also Health Care Complaints Commission v Silberberg [2019] NSWCATOD 56. See also Health Care Complaints Commission v Do [2014] NSWCA 307 at [35].
In particular, the Tribunal must determine Whether the practitioner's conduct post of misconduct demonstrates that public and professional confidence may be re-posed to him to uphold and observe the high standards of moral rectitude required of a medical practitioner: see Basten JA in HCCC v Karalasingham [2007] NSWCA 267 [51] quoting an extract from McBride v Walton (unreported NSWCA 15 July 1994).
Any disciplinary measures meted out to a practitioner are not done by way of punishment, but solely for the protection of the health and safety of the public: see Richter v Walton [1993] NSWCA 233; Re Mansoor Haider Zaidi [2006] NSWMT 6 at [42]; Reimers v Medical Council of NSW [2015] NSWCATOD 38 at [13]. In Mansoor, the Tribunal at [42] stated: [the applicant] must displace the decision for deregistration which has been made. As a consequence, presumptions of fitness which might otherwise arise than from an absence of contrary suggestions can no longer advantage [and applicant], precisely because of the removal of [the applicants] name from the Register on the basis of unfitness.
Where a practitioner's registration is cancelled, a finding that the practitioner is currently unfit to practise has been made and is likely to be so for a significant or indefinite period: see Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31; Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56.

Onus of proof

The applicant bears the onus of establishing that the impairment which was found by the previous Tribunal is no longer in existence. The test has been accepted as that in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Although it has been described as a misnomer to consider the burden of proof in a Tribunal where the rules of evidence do not prevail: see Hayne J in FTZK v Minister for Immigration and Anor [2014] HCA 26 at [33]-[36], such standard is accepted as the appropriate test in this Tribunal for matters arising under the National Law. The Tribunal will apply the following principle: The onus lies on the applicant for reinstatement to demonstrate that she can be relied upon to practice in accordance with the professional standards expected of a health practitioner and in particular in a manner that presents no risk to the safety of the public and their confidence in the profession. See Ameisen v Medical Council of New South Wales [2015] NSWCATOD 49 at [24]. For recent authority, see Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39.
The material relied upon by the applicant is contained in three volumes. The material was submitted in an unorthodox manner; was disjointed and much of the material was quite irrelevant to the critical issue, namely whether the applicant was now fit to practise medicine.
Included in the material were photographs taken from inside a courtroom, which the applicant initially claimed was the inside of a District Court. The taking of photographs constitutes a potential offence under s 9 of the Court Security Act 2005. The applicant claimed that they were taken by a "District Court camera" when this was clearly wrong. When this was drawn to the attention of the applicant, she offered to withdraw the photographs and the Tribunal ordered that the photographs be removed from her material. Subsequently, the applicant stated that the photograph was not taken in the District Court but another Tribunal or court.

Medical appointment 8 July 2020

The applicant maintained that there was no consultation on 8 July 2020 with Dr Samuels. In support, she provided a statement by Mr Douglas Simes and also by her accountant, Mr Greg Bartels.
Mr Simes attended for cross examination. He had provided upholstery services to the applicant. The applicant had asked him to attend with her at the interview with Dr Samuels as a witness. Mr Simes agreed to do so and was then asked by the applicant to provide the statement. The statement had already been drafted for him to sign, and had been provided to Mr Simes by the applicant.
Mr Bartels was also cross examined and adhered to his statement that the meeting with Dr Samuels was unpleasant.
In cross-examination of Mr Simes, it became clear that there were discrepancies between his oral evidence and the statement. However, there appears to be little doubt that the meeting of the applicant and the witnesses with Dr Samuels concluded in an unpleasant manner. The Tribunal finds that the events concerning the 8 July 2020 meeting to be of little consequence.
With respect to the interview on 8 July 2020, the Tribunal notes the report of Dr Samuels upon which the respondent relies. However, there was no consultation on that day with the applicant. Nevertheless, since Dr Samuels has known the applicant since 2004, it is useful. The Tribunal notes that the applicant was offered an alternative appointment with Dr Samuels. She declined to attend, stating to the Tribunal that she was "too busy" preparing her Volume 2 of material.
The most significant evidence concerning the applicant's medical condition is that provided by Dr Samuels in his oral evidence, which is set out above.
Such evidence establishes that the applicant continues to suffer from the impairment which was identified by the 2014 Tribunal, and confirms that the impairment satisfies the definition of "impairment" contained in s 5 of the National Law.

Findings

It is not the function of this Tribunal to reconsider the circumstances which led to the cancellation of the applicant's registration. In Asar v Medical Council of NSW [2019] NSWCATOD 132, the Tribunal observed: 40. It is not the function of this Tribunal to revisit the conduct which led to the cancellation of the applicant's registration. The Tribunal proceeds upon the basis that the 2016 tribunal That found that the applicant was not a fit and proper person to practise medicine. The issue before this Tribunal is whether it is satisfied, upon the evidence now before it, that the circumstances which led to the cancellation no longer prevail and that the health and public safety of the community are protected in accordance with the requirements of section 3A of the national law That. That is, the Tribunal is required to assess whether or not the deficiencies in the applicant's character have been remedied. As was stated in In Re Jason Martin [2010] NSWMT 13 at page 8: It is not "a question of what an applicant has suffered in the past. It is a question of his [her] wordiness and his [her] reliability for the future". See also Zepinic v Health Care Complaints Commission [2020] NSWSC 13 (at [84] - [85]); see also Viqours v Medical Council of NSW [2019] NSWCATOD 75 at [87].
The Tribunal must be satisfied that the applicant is now a "fit and proper person" to be registered as a medical practitioner. As was stated in Health Care Complaints Commission v Brush [2015] NSWCATOD 120, the following observations are made (at [72] - [73]): We agree with the submission made by the Commission that, in considering whether Mr Brush "is a suitable person to hold registration", it is useful to have regard to the expression "fit and proper person". The latter has been the subject of detailed consideration by the authorities in various regulatory environments. Neither expression carry any precise meaning and take their meaning from their context, from the activities in which the person is or will be engaged and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.) In this case the context is the statutory scheme established for the registration and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (ss 3(1) and 3(2)(a) of the National Law). [72] While some overlap between the concepts of "good character" and "being a suitable person to hold registration" / "fit and proper person" they are not identical. The former encompasses matters such as integrity, probity and scrupulosity; the latter embraces those concepts but also includes matters such as competence and technical skills. [73]
Neither expression will carry any precise meaning and take their meaning from the context, from the activities in which the person is or will be engaged, and the ends to be served by those activities (see, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ). In this case, the context is the statutory scheme established for the regulation and accreditation of health practitioners, a scheme designed to protect members of the public by ensuring that only health practitioners who are suitably trained and qualified to practise, in a competent and ethical manner, are registered (ss 3(1) and 3(2)(a) of the National Law).
In Cunliffe v Commonwealth (1994) 182 CLR 272 Mason CJ states, in reference to the words "fit and proper person": In some contexts, the words "fit and proper person" are so indefinite that they have been held to confer in effect what amounted to a discretionary judgement on a licensing authority… But the context may supply sufficient precision. [43]
The term "fit and proper" is to be construed in the light of the particular legislative context: see Hughes and Vale Pty Ltd v NSW (1955) 93 CLR 127 at 156, Dixon CJ, McTiernan and Webb JJ.

2014 Tribunal Findings

The 2014 Tribunal made the following relevant findings: The Tribunal also has evidence, which was not denied, of bizarre correspondence she wrote to the other owners of the premises in which she lived and there is other evidence we do not highlight here. [174] What began as an expression of concern has resulted in a pattern of behaviour which causes the Tribunal, after considering the expert evidence before the Tribunal, to accept that there is a serious psychiatric disorder and that that disorder constitutes an impairment and, as a result, we are satisfied that Dr Qasim is not competent to practise medicine and that she suffers from an impairment of a nature that renders her not competent to practise. The Tribunal is satisfied that each of the complaints is made out. [175]
The definition of "impairment" is contained in s 5 of the National Law as follows: 1. impairment, in relation to a person, means the person has a physical or mental impairment, disability, condition or disorder (including substance abuse or dependence) that detrimentally affects or is likely to detrimentally affect - 1. for a registered health practitioner or an applicant for registration in a health profession, the person's capacity to practise the profession; or 2. for a student, the student's capacity to undertake clinical training - 1. as part of the approved program of study in which the student is enrolled; or 2. arranged by an education provider.

Current evidence

Virtually the entirety of the material relied upon by the applicant in this application consists of criticisms of the 2014 Tribunal decision; a regurgitation of her claims made before the 2014 Tribunal; including claims that the 2004 decision relating to her strata building dispute was erroneous. The applicant, in a submission filed on 19 November 2020 submits that the respondent has been involved in those proceedings when she submits: MCNSW and later HCCC, have instigated unfair harassment of Dr Shaheen Qasim since 2004 through people living in the building, who opposed all repairs.
The applicant criticises the Presiding member of the 2014 Tribunal; members of the legal profession and Dr Samuels and makes scandalous remarks concerning each. Her criticisms include allegations that each did not understand the evidence; that the legal representatives were corrupt; that the 2014 Tribunal Presiding Member was lazy and did not read her material. The applicant has tendered case histories relating to patients which were the subject of proceedings in 2014 and has provided voluminous statements concerning the numerous patients.
The applicant has produced no evidence which suggests that the impairment which was found by the original Tribunal to exist has been addressed. No psychiatric reports have been provided by the applicant; nor is there any evidence of treatment to address the condition found by the 2014 Tribunal. The applicant had consulted a psychiatrist (Dr David Sturrock) on 3 occasions commencing in November 2019. No report of Dr Sturrock has been obtained by the applicant.
In his report dated 21 July 2020, Dr Samuels states: I note there is no medical evidence that Dr Qasim has received any psychiatric or psychological treatment in the period since the initial hearing and, in fact, this latest submission does not have any reference to the issue of impairment which was central to Dr Qasim's deregistration.
The only recent medical evidence is of Dr Samuels. His opinion, and his experience at the interview with the applicant on 8 July 2020 (as set out in his report dated 21 July 2020), support the conclusion that the applicant's condition, which he first diagnosed in 2011, continues to exist.
The Tribunal is satisfied that the impairment, as defined in s 5 of the National Law, which has been identified, is still present, and prevents this application from succeeding. The applicant is suffering from a mental impairment which is likely to detrimentally affect her capacity to practise as a medical practitioner.
The submissions and evidence produced by the applicant to the Tribunal only tends to confirm the Tribunal's conclusion that the applicant has an impairment. Such material is fixated upon proceedings which were taken in another Tribunal concerning a dispute in which the applicant was involved concerning her home unit. The applicant attacks the decision-maker, the witnesses and the experts in those proceedings. Thereafter, the applicant's material attacks the findings of the 2014 hearing. The attacks upon both the legal counsel, the presiding judge, the medical experts who supported the application against her, are vindictive, malicious and spiteful. The applicant clearly has no insight into her condition nor does she have any insight into the necessity for her to demonstrate that she is in a fit state to practise medicine. Despite the fact that this Tribunal has repeatedly drawn her attention to this requirement, no attempt has been made to address the fundamental issue in this application.
The Tribunal is satisfied that the impairment of the applicant is such that she is, or is likely to be, detrimentally affected in the practice of medicine. The Tribunal is not required to determine the nature of the illness: see Grant v Health Care Complaints Commission [2003] NSWCA 73 at [12]; Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [64]. The Tribunal is satisfied that the applicant does not fulfil the requirements of section 139(a) of the National Law, in that she lacks the mental capacity to practise medicine, as was considered in Lindsay v Health Care Complaints Commission [2010] NSWCA 194 at [168] where the impairment was manifested in the practitioner's conduct.
The Tribunal notes the observations of Dr Samuels who considers that the applicant will be impaired for a considerable period of time, and that there will be no significant change to her condition in the immediate future. For this reason, the Tribunal deems it necessary to make an order that the applicant should not make a further application for registration for a period of 4 years.

Correction of Tribunal Record

The applicant sought an order that the Tribunal correct errors that the applicant claimed existed. In support, the applicant produced many pages of documentation. The application is made under s 63 of the Civil and Administrative Tribunal Act No 2 2013 (NSW).
It became apparent during the hearing that the applicant was asking the Tribunal to amend the reasons for the Medical Council findings made against her in the s 150 proceedings.
Further, the applicant claimed that the Complaints which were stated in the 2014 Tribunal decision were wrong, and she challenged the allegations made.
The Tribunal has no power to correct proceedings in the s 150 record. Nor does it have power to change any of the Complaints that were originally made against her in the 2014 Tribunal proceedings. Section 63 only permits corrections by the "President or the Member who presided at the proceedings". Another Tribunal is not empowered to exercise the correction power, and further, its use is restricted to "slips": see Batagol & McGill v Monk [2000] VSC 48 [17]. Further, it is only available where the Tribunal's attention, if brought to the mistake, would have corrected the record: see Riga v Peninsula Home Improvements [2000] VCAT 56; see also R v Cripps; ex parte Muldoon [1984] QB 686 at 695.
In effect, the applicant was challenging the findings made by the 2014 Tribunal: such findings were deliberate and the "slip rule" does not extend to correcting such findings: see Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) (unrep, 29/491, NSWCA). The Tribunal notes that no such claims were made before the NSW Court of Appeal when the applicant appealed the Tribunal's decision.

Recovery of patients

The applicant asserted that in the years since the 2014 Tribunal hearing, the patients which were the subjects of Complaints in those proceedings have recovered, thereby vindicating her treatment of them. The applicant states that she has discussed the patients with their General Practitioners. No evidence, other than the Applicant's assertions, have been produced.
Apart from the assertions made by the applicant, there is no medical evidence relating to any of the patients which confirms that the patients have recovered or that her treatment of them was appropriate. There is no evidence in the way of medical reports or evidence from the General Practitioners to support the applicant's assertions.

8 July 2020 consultation

The Tribunal is mindful of the evidence of Dr Samuels, Mr Simes and Mr Bartels. It considers this issue is unimportant to the critical issue which the Tribunal has to decide. It observes that Dr Samuels had previously had an unfortunate experience when the brother of the applicant had attended interview. Further, because of the Covid restrictions, Dr Samuels would not allow more than one person in his consulting room. There was no prior arrangement that two persons would be accompanying the applicant. Further, it can be inferred that Dr Samuels was puzzled by their presence, and also was taken by surprise because there was a request to record the consultation. The Tribunal finds it unnecessary to make any determination on this issue because it is inconsequential.

Applicant submissions after hearing

The first hearing concluded on the 18 August 2020. On the 26 August 2020, the applicant filed further submission. The applicant asserted that she intended to address the issues in these submissions during the hearing. In support the applicant has forwarded numerous emails to the Tribunal and has filed a volume of material. One of the emails is addressed to "Dear Supreme strata". It is incomprehensible and thought disordered.
The applicant was afforded every opportunity throughout the hearing to make all of her submissions. The applicant was repeatedly asked whether there was anything further that she wished to submit. On the final occasion that this question was put to her, the applicant indicated that she had nothing further to submit. Nevertheless, the Tribunal has read such material.
The material supporting her submission is, in effect, identical to the material which was placed before the Tribunal. It includes material used in the 2014 Tribunal decision and material related to her building dispute which was considered in the 2014 Tribunal decision. There is no medical evidence relating to her current medical condition. The applicant however raises allegations of "Best Practice", claiming that the respondent had an obligation to file an affidavit in answer to her application. No such obligation existed where the applicant sought to challenge the correctness of the 2014 Tribunal decision. The applicant also refers to "Best Practice" repeatedly in relation to the treatment of the patients who were the subject of the 2014 Tribunal proceedings. The applicant repeatedly requested this Tribunal to also apply 'Best Practice". In so far as such practice relates to the treatment of the patients in those proceedings, it is not relevant to these proceedings since a determination has already been made. In the current application, the concept of "Best Practice" does not arise, since no patients are the subject of consideration. As has been stated repeatedly to the applicant, the issue is the applicant's condition.
The Tribunal records that the applicant has forwarded further information to the Tribunal on 26 November 2020. It is not clear whether such information has been provided to the respondent. Irrespective, it does not assist the applicant. The applicant has provided a and a document entitled "annexure A" document directed to a third party which relates to the management of the strata plan in which her residence is apparently located. It is not relevant to any issue before this Tribunal.
On 27 November 2020 the Tribunal received an email referring to the applicant's desire to apply to the "High Court". In such statement, she claims that a Professional Member of this panel "very kindly flagged it to me to apply to the High Court."
The Professional Member has informed the Tribunal that he has had no communication whatsoever with the applicant as claimed.
The Tribunal is satisfied that no material has been provided in the recent submissions which warrant a further hearing. The recent submissions raise no new issues and, for the reasons referred to above, do not address the critical question which this Tribunal must decide, namely, whether the applicant remains impaired. The submissions only support the findings of this Tribunal that the applicant's lack of insight, and her behaviour in respect of professionals, leads to the inevitable conclusion that the application should be dismissed.

Generally

The applicant has apparently undergone no treatment for the condition which was identified as an impairment in the 2014 Tribunal decision. The applicant indicated to the Tribunal that she would like to obtain a further independent Medical Report concerning her condition. The Tribunal has considered such request. In doing so, it is mindful of the evidence of Dr Samuels that an ad hoc examination by a different psychiatrist is unlikely to reveal the true nature of the longstanding psychosis which has been identified by Dr Samuels. In his opinion, treatment is necessary if the applicant is to attempt to address her impairment. For this reason, it finds that an adjournment for the purpose of enabling the applicant to obtain a further psychiatric report will not assist. There has been no evidence of any course of treatment over a significant period which would, in the Tribunal's consideration, be essential before any considered diagnosis could be made.
For the reasons referred to in the preceding paragraph, and in light of the Tribunal's obligations (as referred to in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27), the Tribunal does not consider that an adjournment, as requested by the applicant, is warranted.

Costs

The principles to be applied in respect of costs applications in disciplinary proceedings are well-established by appellate authority: see Ohn v Walton (1995) 36 NSWLR 77.
The applicant has provided submissions in writing entitled "The costs of HCCC are to be reviewed in light of the following". The following content contains allegations of bullying, lying and deception by persons engaged in the strata dispute, allegations relating to concrete cancer in the strata building apparently occupied by the applicant; allegations that Dr Samuels relied on persons involved in the strata dispute in making his clinical assessment of the applicant; allegations of lying by the HCCC and of other persons; allegations that false information was provided to certain medical journals. The applicant claims that costs (it appears of previous proceedings) of $25,199.00 are unacceptable.
Proceedings under section 163A require the hearing of an enquiry (s 163B). Schedule 5D cl 13 of the National Law provides: The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or other person entitled to appeal (whether as of right or because leave to appear has been granted) at any enquiry or an appeal before the Tribunal to pay the cost of another person as decided by the Tribunal.
The usual rule is that the unsuccessful party is ordered to pay the costs of the successful party. In Health Care Complaints Commission v Philipiah [2013] NSWCA 342, the Court of Appeal accepted that "as a general rule, the cost of proceedings before the Tribunal should follow the event": see [42]. In the present application, there is no reason why the usual rule should not prevail. It should be observed that an order for costs is to compensate the other party; such order is not punitive, but compensatory: see Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543 per Mason CJ; see Ohn v Walton (1995) 36 NSWLR 77.

Orders

The Tribunal orders: 1. The Application be dismissed; 2. The applicant is prohibited from making any further application for registration as a Medical Practitioner for a period of 4 years from the date of publication of these orders; 3. The applicant is to pay the costs of and incidental to these proceedings, of the Medical Council of NSW as agreed, and failing agreement, liberty to restore before the Tribunal for assessment.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2020

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (28 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (32)

Cited By (2)