Rahman v Health Care Complaints Commission

Judgment

1. BELL P: I agree with Basten JA.
2. BASTEN JA: The appellant, Bassel Abdul Rahman, is a medical practitioner. On 18 May 2021, following a hearing at which he was found to have engaged in unsatisfactory professional conduct and professional misconduct, the Civil and Administrative Tribunal, Occupational Division, cancelled his registration and directed that he not seek a review of the order for a period of 12 months.
3. Pursuant to a notice of appeal filed on 10 June 2021, the appellant challenged both the adverse findings as to his conduct [1] and the disciplinary orders made by the Tribunal. [2] An amended notice of appeal was filed on 28 July 2021 which particularised in more detail the challenge to the disciplinary orders. The challenge to the underlying findings of misconduct was abandoned.
4. Although there is no challenge to the underlying findings concerning misconduct, it will be necessary to outline the factual bases on which those findings were made, in order to consider the challenge to the disciplinary orders. Before doing that, however, it is convenient to note the interlocutory steps which have been taken pending determination of the appeal.

Interlocutory steps

1. As is not uncommon in such cases, the practitioner had been subject to conditions on his registration imposed by the Medical Council, whilst the complaints were outstanding. These are relevant, in part, because the appellant's case was that a continuation of those conditions on his right to practice medicine would have been a sufficient protective order for the Tribunal to have made once the complaints had been determined. In fact, the regime which was in place before deregistration was ordered by the Tribunal has since been reinstated. How that occurred requires attention.
2. The lodging of an appeal does not stay the orders made by the Tribunal; further, steps having been taken to remove his name from the register of practitioners, there was nothing further to stay. Nevertheless, on 25 June 2021 an order was made in the following terms: "1 Until further order of the Court, and pending resolution of the appeal, Australian Health Practitioner Regulation Agency (AHPRA) remove the Appellant's name from the 'List of Cancelled Practitioners' kept by AHPRA. 2 Until further order of the Court, and pending resolution of the appeal, AHPRA restore the Appellant's registration as a medical practitioner to the 'National Register of Health Practitioners' kept by AHPRA, the Court's order being subject to the conditions set out in the Schedule to these orders and on the basis that the Register will record: a. the decision of the Civil and Administrative Tribunal (Tribunal) below dated 18 May 2021; and b. this order 2 including the conditions listed in the Schedule, subject to any decision pursuant to s 226 of the Health Practitioner Regulation National Law (NSW) that a particular matter not be recorded." [3]
3. No consideration was given to the power to make such orders because the Health Care Complaints Commission (Commission) "accepted that it was open to the Court to make a restorative interlocutory order of the kind described by McCallum J … in Attia v Health Care Complaints Commission [2017] NSWSC 178." [4] The power to make such an order was expressly addressed in Attia, commencing with the following proposition: "[25] The application for a stay faces the obvious difficulty that, before it was brought (and indeed before Mr Attia's solicitor obtained instructions to commence these proceedings), the cancellation order had already been implemented. The better view appears to be that, in that event, it is too late for a stay: AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81 at [95] per Campbell JA; Handley JA agreeing at [191]."
4. As McCallum J further noted, a similar view had been taken in relation to the absence of power to order reregistration or reinstatement of a medical practitioner on an interim basis pending the hearing of an appeal under the Medical Practice Act 1992 (NSW). [5] McCallum J sought to distinguish that case on the basis that s 90(3) of the Medical Practice Act conferred a power on the Supreme Court to stay any order made by the Tribunal until the determination of the appeal. In circumstances where no other power had been relied upon, McCallum J said of Handley JA's reasoning that, "his Honour may have taken the view that the express reference in that provision to a 'stay' excluded any other kind of order by implication." [6]
5. This reasoning is, with respect, unpersuasive on four bases. First, the power which may have been excluded by implication was said to arise from s 66(4) of the Supreme Court Act 1970 (NSW), providing that the court may grant an interlocutory injunction "in any case in which it appears to the court to be just or convenient so to do." The suggestion that this power was thought to have been impliedly excluded by an express power to grant a stay is mere speculation; the better view is that no-one in McBride, including Handley JA, thought that, if a stay were not available, s 66 of the Supreme Court Act, providing for restraining orders in respect of a threatened or apprehended breach of contract or other injury, would be engaged.
6. Secondly, the point of distinction is unpersuasive. While there is no specific power to grant a stay in the Health Practitioner Regulation National Law (NSW) (National Law), a generic power to grant a stay on appeal is found in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.44. A similar power was available in Attia, as reflected in UCPR r 50.7.
7. Thirdly, s 66 of the Supreme Court Act cannot be invoked without addressing two further matters. [7] First, the section is in terms limited to injunctions restraining conduct and threatened conduct. [8] It is far from clear that the provision permits an order imposing a mandatory obligation. Secondly, the proposed order is one binding (and imposing obligations on) a third party to the litigation, namely the Australian Health Practitioner's Regulation Agency. The headnote to Attia identifies the Agency as a "proposed second defendant" but no such order was made (perhaps because the application was dismissed on the merits). However, the basis upon which the Agency could properly be joined is unclear: it was not a party to the proceedings in the Tribunal, nor had it committed any act in breach of its statutory functions.
8. Fourthly, no judicial authority supported the principle. The statement at [25] in Attia, set out above, referred to AVS v Commissioner of Police. [9] McCallum J returned to that case later, noting that s 60(2) of the Administrative Decisions Tribunal Act 1997 (NSW) contained a broader power than merely granting a stay: 60 Operation and implementation of decisions pending applications for review (1) Subject to this section, an application to the Tribunal for a review of a reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for a review of a reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application.
9. That provision dealt with a decision of an administrative officer under review by the Tribunal. It had no relevance to the powers of the Supreme Court on an appeal from the Tribunal. As to s 60(2), Campbell JA (with whom Handley AJA agreed) stated: "[96] … That power is one that is wide enough to enable the Tribunal to temporarily reinstate a licence that has been revoked pending the hearing of an application for review of a decision to revoke the licence." [10]
10. There was nothing in AVS which cast doubt on the proposition that a power to grant a stay does not extend to the reinstatement of an earlier state of affairs which is no longer in place. The same conclusion was reached by Schmidt J in Deano v Health Care Complaints Commission [2011] NSWSC 1570, to which McCallum J also referred.
11. The only authority permitting a contrary view (which McCallum J correctly understood to be distinguishable) was one undertaken in relation to a legal practitioner which invoked the inherent jurisdiction of the Supreme Court over legal practitioners, a jurisdiction which does not extend to medical practitioners or other health professionals: see Russo v Legal Services Commissioner. [11] The judge in Russo, Barrett AJA, identified the "only possible source of power" to make such an order as s 46(2)(b) of the Supreme Court Act, which allows a judge of the court "to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings." Barrett AJA then observed: "[9] Under the alternative approach, by contrast, the order sought, if made, will have the effect of countermanding the Tribunal's order and of putting in place rights and privileges that the Tribunal's order has caused to be removed. Indeed, the interlocutory order sought in the alternative is in substance the equivalent of the principal relief sought in the notice of appeal - although there is a difference in context in that the interlocutory order, if made at all, would be made upon Mr Russo's undertaking to the Court to request removal of his name again if the Tribunal's order were not overturned on appeal."
12. Despite the reference in the last line of that passage to an undertaking, such an undertaking could not confer power on the Court which it did not otherwise have. The judge then considered, but dismissed, a concern that an order countermanding the Tribunal's order would infringe on the qualification to the power conferred by s 46(2)(b), because it would equate to a final disposition of the appeal: at [10]. Barrett AJA noted that because the Court had inherent jurisdiction to remove a legal practitioner's name from the role, "if the alternative order turns out to be the operative order, it will be open to the Court of Appeal, having heard the appeal on its merits, to make a new order for removal from the roll."
13. In any event, the discussion of s 46 of the Supreme Court Act is irrelevant for present purposes. Section 46 does not provide a source of power; rather it identifies the extent to which the Court of Appeal's powers can be exercised by a single judge. The conferral of a particular power must be found elsewhere.
14. Neither principle nor the weight of authority, including two judgments in this Court, provided any support for the proposition that a "restorative interlocutory injunction" could be relied on to undo the effect of an order which has already been carried into effect. To the extent that Attia asserted the existence of a power to make an "interlocutory restorative order" of the kind made in these proceedings, it should not be followed. The order made in the present proceedings should not have been made. It will be necessary to return in due course to the consequences of the interlocutory order.

The findings of misconduct

1. The first complaint alleged that the appellant was guilty of unsatisfactory professional conduct under s 139 of the National Law, being conduct which involved inadequate judgment or care, or was improper or unethical. The particulars identified: 1. inappropriate prescribing of testosterone and anabolic steroids to nine patients; 2. inappropriate prescribing of benzodiazepines to 13 patients; 3. inappropriate prescribing of drugs of addiction to 17 patients, and 4. inappropriate prescription of Schedule 4 drugs to four patients. Further, the practitioner inappropriately prescribed Schedule 4 drugs and restricted substances to himself and to close family members. Finally, he ordered quantities of a Schedule 4D medication, somatropin (human growth hormone), for direct supply to patients at the medical centre where he carried on his practice and failed to report a theft of 45 vials of somatropin from his car.
2. The details of the various offences were set out in schedules relating to each patient and covering 108 pages of the complaint filed in the Tribunal. The conduct extended over a period of years between 2011 through 2015 (some five years in total). He prescribed for himself diazepam, oxycodone and phentermine between November 2013 and July 2015. In the case of one patient (Patient D) the practitioner prescribed temazepam, diazepam, alprazolam, oxazepam, buprenorphine (patch), pethidine hydrochloride (injection), fentanyl and oxycodone to this patient over the period from 14 March 2011 to 17 August 2015.
3. All of the particulars of complaint 1 were admitted by the practitioner, with the qualification that, although he did not know that he had to report the theft of the medication from his car to the Health Department (and did not), nevertheless he reported the matter to the police and to his lawyer.
4. Complaint 2 alleged a failure to make and keep adequate clinical records for some 26 patients. He admitted that complaint. Complaint 3 alleged that in engaging in the unsatisfactory professional conduct set out in complaints 1 and 2 his conduct was sufficiently serious to justify suspension or cancellation of his registration and was therefore professional misconduct, under s 139E of the National Law. That too was admitted.
5. This conduct did not go unnoticed throughout the years. Indeed, it is of some importance to the practitioner's case that various disciplinary measures were taken prior to the filing of the present complaint in September 2019.
6. The earlier history was as follows. The practitioner commenced general practice in 2001. In November 2008 a complaint was lodged with the Commission in relation to his prescription of drugs. In May 2009 the complaint was referred to the New South Wales Medical Board and a performance review was conducted. In December 2009 the Pharmaceutical Regulatory Unit completed its review of the complaint, which it reported to the Commission which in turn referred the review to the Medical Council.
7. Another complaint was received in December 2009 in relation to prescription of scheduled drugs, leading to a performance interview in June 2010. The practitioner was counselled on the need to improve his skills in weaning patients off Schedule 8 and Schedule 4 drugs, and particularly benzodiazepines. Some seven months later he commenced prescribing diazepam, alprazolam, clonazepam, oxycodone and hydromorphone to Patient X, conduct which continued until July 2015.
8. In February 2011 the practitioner underwent a further performance assessment. The assessors commented on deficiencies in his record-keeping and expressed concern that he lacked understanding of the correct authority for prescribing Schedule 8 drugs. They recommended that he be counselled. Two weeks later, in March 2011, he commenced prescribing morphine sulphate, oxycodone, diazepam, alprazolam and temazepam to Patient O. The prescribing continued until 31 August 2015. Other prescribing of such drugs to other patients commenced in March, April, June and July 2011 and then in January 2012. In November 2012 he moved from a medical practice in Chester Hill to a healthcare centre in Bankstown. The prescription of schedule drugs continued. In March 2013 he was contacted again by the Pharmaceutical Regulatory Unit regarding a drug of addiction prescribed to a drug dependent person. In the following months he continued prescribing benzodiazepines and other drugs to continuing patients and to new patients commencing in April, May, July, September (two patients), November and December (two patients). He commenced self-prescribing valium in November 2013.
9. In June 2014 he was involved in a physical attack.
10. In October 2015 the Pharmaceutical Services Unit made a further complaint to the Medical Council. On 28 October 2015 the Medical Council undertook a hearing, and provided its decision on 19 November 2015. The following summary was included in its report (p 2): "The Medical Council of NSW received information from the Pharmaceutical Services Unit (PSU) indicating that Dr Rahman had inappropriately prescribed Schedule 8 (S8) and Schedule 4 Appendix D (S4D) in spite of previous advice and warnings received from the PSU and the Council. The PSU information also indicated that Dr Rahman had prescribed anabolic-androgenic steroids and zolpidem in excessive doses, supplied somatropin (human growth hormone) to adult patients for an unspecified purpose and self-prescribed S8 drugs and diazepam. The continuing poor quality of Dr Rahman's medical records, an issue that had previously come to the attention of the Council in a Performance Assessment in 2011, and about which he has received direct counselling, was noted and commented on adversely by the delegates. The delegates were satisfied that it was appropriate for the protection of the health and safety of person or persons and in the public interest, that conditions should be imposed on Dr Rahman's registration including restricting him from possessing, supplying, administering or prescribing any S8, S4D, somatropin, zolpidem and anabolic-androgenic steroids; to practise under category B supervision; medical records audit and to attend an assessment by a Council appointed psychiatrist."
11. In discussing the practitioner's evidence, the delegates stated (at p 13): "At the outset of the hearing, Dr Rahman appeared to present in a personable and cooperative manner. However, as the day progressed, his answers to some of the delegates' questions presented him as either naïve or dissembling." Examples were given.
12. The delegates considered suspending his registration, but decided that the public would be adequately protected by the imposition of conditions on his practice. Fourteen "public" conditions and eight "private" conditions were imposed. One of the public conditions required him to submit to "an audit of his medical practice by a random selection of his medical records by a person nominated by the Medical Council of NSW", with the first audit to be held within six months from 30 October 2015 and subsequently as required by the Council. He was also required to practise under "category B supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision": condition 13.
13. A performance assessment report prepared for the Medical Council dated 28 October 2019 noted that a further hearing had been conducted in relation to the exercise of powers under s 150 of the National Law on 3 April 2018, following notification that he had been charged with indecent assault of a female patient. At that time further conditions were imposed on his registration. The report noted that the most recent audit of 13 December 2018 had identified "unsatisfactory standards of five from twenty records and raised concerns regarding Dr Rahman's compliance with his conditions." A further hearing was convened and further conditions imposed on his registration, including a condition requiring the practitioner to undergo a "performance assessment". It will be appropriate to return shortly to the summary of the interview conducted by the assessors on 26 August 2019.
14. In its second decision, delivered on 18 May 2021, the Tribunal noted the events following the imposition of conditions on 30 October 2015: "[36] … Such conditions were reviewed in December 2015 and again between 31 December 2015 and 8 January 2016. Further reviews took place between 14 March 2017 and 19 April 2018, between 19 April 2018 and 10 August 2018, between 10 August 2018 and 2 April 2019, and from 19 November 2019 to the present day. The final 'Performance Assessment Summary' provided to the Tribunal is dated 26 August 2019. [12] It concludes: 'Conclusion The assessors believe that the professional performance of Dr Rahman is satisfactory in that it meets the standard reasonably expected of a practitioner of an equivalent level of training or experience. Recommendations In view of the conditions already in place on Dr Rahman's registration it is recommended that no further action be taken.'"
15. This report, by two medical assessors, was not binding on the Medical Council, nor on the Tribunal. It envisaged that the conditions on the practitioner's registration would continue indefinitely.
16. The practitioner asserted that he had suffered an autoimmune condition diagnosed as "hereditary periodic fever syndrome" which was described by Associate Professor Sean Riminton, a clinical immunologist whom the practitioner first consulted in March 2014 as "either very rare or has not been previously described". He described the condition as a "significant psycho-social stressor, and in his case diagnostic uncertainty and lack of clarity with respect to prognosis are undoubted additional concerns." [13]
17. The practitioner had also consulted, intermittently, a psychiatrist, Dr Robert Fisher. The matters about which he was consulted arose when the practitioner was "stressed about his traumatic experience with the axe wielding patient outside the clinic" and by "accusations of sexually inappropriate behaviour which [were] subsequently dismissed in Court." [14] The consultations were mainly in 2018 with one appointment in May 2019 and another in March 2020. Dr Fisher found no causal relationship between either PTSD or the autoimmune disease and his inappropriate prescribing.
18. Following the imposition by the Medical Council of a condition requiring supervision, the practitioner nominated a general practitioner at the Miranda Medical Centre to be his supervisor. That person, Dr Mary Joseph, provided supervision reports from March 2016 to April 2020. They were entirely favourable. However, the Tribunal further noted: "[30 Dr Joseph was not aware of the respondent's history of prescribing inappropriately which resulted in the imposition of the conditions by the Council. She was unaware, prior to the Tribunal proceedings, of the conduct of the respondent in providing off-label drugs, human growth hormone and testosterone until about 2018, and was also unaware that the respondent had issued prescriptions without the authority to do so. She was not aware that the respondent provided drugs to addicted persons nor that his prescribing was inappropriate. Further, Dr Joseph had not read the Complaint upon which the present proceedings are based. [31] The respondent had stated that one of his areas of interest and specialty was men's health and hair loss. However, such interests had never been made known to Dr Joseph; although she was aware the respondent had completed a course in hair replacement therapy."
19. Unsurprisingly, the Tribunal appears to have placed little weight on her reports and evidence. [15]
20. Before turning to the "observations", or findings, of the Tribunal, two aspects of the respondent's evidence should be noted. First, as recorded by the Tribunal in its second decision, the practitioner gave evidence to the following effect: "[6] The respondent states at the time of prescribing various medications the subject of the Complaint he was suffering from an autoimmune condition for which he is being treated. The condition manifests as extreme pain in the abdomen and joints requiring him to take rest and medication including steroids and analgesia. At the time, his treating practitioners were unable to offer a diagnosis for the condition. [7] The respondent also states that at that time he was being treated for post-traumatic stress disorder arising from an attack upon him in 2014 by a patient/stranger who was wielding an axe. [8] The respondent states that he considers these two conditions significantly impaired his capacity with difficult patients who attended seeking medications and that he felt overwhelmed. Further, the working conditions were such that his room was noisy, being close to a waiting area, and patients outside would walk in and demand particular medications."
21. It thus appears that, at the time of the hearing before the Tribunal in 2021, the practitioner was asserting that the conditions he identified had significantly impaired his ability to practise. That was inconsistent with the view expressed by Dr Fisher, as the Tribunal noted at [50]. In its observations, the Tribunal stated: "[39] The conduct of the respondent includes the inappropriate prescribing of prescription drugs. The respondent acknowledged that his prescribing was 'unscientific' and was also 'reckless'. The respondent acknowledged that his prescribing was below the standard expected of a medical practitioner. By way of explanation of his behaviour he referred to his own illness, his PTSD, which arose out of an axe attack in 2014 when he went to assist a stranger (though the respondent also describes this person as a patient) and was himself placed in danger; and the fact that the surgery where he conducted his practice made him feel exposed and vulnerable to belligerent members of the public who demanded that he issue prescriptions to them for the drugs they sought. [40] In many instances, prescriptions for drugs such as testosterone were issued without any adequate blood tests having been performed which indicated the necessity for such drugs. In another case, a test had been performed but the timing of the test was inappropriate and accordingly the result of the test which was relied upon by the respondent to issue such drugs was misleading because it was taken at the wrong time of day. [41] The respondent also acknowledged that he had prescribed inappropriately for members of his family, and had self-prescribed. [42] In other instances, the prescribing of drugs was carried out on a scale which the Tribunal finds was grossly excessive. For example, the respondent wrote prescriptions for one patient between 16 February 2015 and 7 April 2015 for 540 Endone tablets. There is no clinically legitimate reason for such an extraordinary quantity to be issued to a patient. The same patient, in the above period, consulted the respondent on 16 occasions and was also issued prescriptions for Lyrica, Tramal, Primoteston, Nexium, and Avanza. Overprescribing is also apparent in relation to the other patients referred to by the expert."
22. After then recording the failures of the practitioner to deal with issues brought to his attention in 2007, 2008, 2009, 2011 and 2015, [16] the Tribunal continued: [47] The Tribunal notes the observations of the New South Wales Court of Appeal in Spicer v New South Wales Medical Board (Court of Appeal (NSW), 19 February 1981, unrep) which are instructive. Hope JA, with whom Reynolds and Hutley JJA agreed, observed at 5-6: 'In my opinion it is clear beyond argument that the proper handling and prescribing of drugs by medical practitioners are of the greatest importance to the community. If a medical practitioner handles or carries out that very great responsibility in a way which is reckless and which shows a disregard to the law it cannot be said that he is fit at such a time to be a medical practitioner. In my opinion the view expressed by the Tribunal has implicit in it that not merely was he presently unfit to treat those addicted or habituated to drugs but that unfitness in itself demonstrated his present unfitness to be a medical practitioner'."
23. Finally, it is necessary to identify the findings of the Tribunal with which the practitioner took issue on the appeal. Importantly, the Tribunal commenced by referring to its findings in its first decision, of which no complaint was made on the appeal. Those findings followed an extensive summary of the expert reports with respect to each of the 26 patients. Those reports involved a multiplicity of findings (that is, several adverse findings with respect to each patient, many covering a significant period of conduct) which were described as conduct "below the expected standard" and which invited "strong criticism". Given that the substance of all the complaints was admitted, it was unsurprising that the Tribunal accepted the findings of the experts and the opinions expressed by them in relation to each patient. However, the Tribunal continued with its own observations: "Record keeping [158] With respect to each of the patients referred to by the expert, the clinical notes recorded by the respondent were found to be below the standard reasonably expected. The notes were universally of a clinically poor standard. Such notes failed to meet the criteria set out in the Health Practitioner Regulation (New South Wales) Regulation 2010 (NSW) (since repealed, now the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW)). Part 4 (now Part 3) requires a medical practitioner to, in accordance with the Part and Schedule 2, make and keep a record, or ensure a record is made and kept, for each patient of the medical practitioner: see clause 7 (now clause 6). Schedule 2 (now Schedule 4) sets out the information that must be kept by medical practitioners and medical corporations in relation to patients. It includes information that is relevant to the patient's diagnosis or treatment, such as the patient's medical history, the results of any physical examination of the patient and information concerning the patient's mental state; particulars of any clinical opinion reached by the medical practitioner; any plan of treatment for the patient; particulars of any medication prescribed for the patient; and the date of any medical treatment given or performed by the medical practitioner. The notes kept by the respondent did not satisfy the requirements of Schedule 2. [159] The notes were inadequate to enable another medical practitioner to continue the patient's medical care. The notes were further compromised by the use of a separate handwritten record for selected patients. Such notes were not accessible to other practitioners at the practice nor to specialists. This had the potential to significantly impair the provision of appropriate clinical care for patients. [160] The standard of referral letters was universally very poor. They failed to provide a specialist with an adequate clinical background for the patient. On many occasions the prescribing details were not maintained in the progress notes. There was a universal paucity of clinical notes referring to the general medical care of Patients A to X. The notes failed to show appropriate history taking, examination, clinical plans or appropriate investigations for the assessment of such patients, particularly prior to commencing medications for such patients. Prescribing [161] The reviewed notes reveal extensive prescribing of benzodiazepines, narcotics, hCG, testosterone and other androgens and growth hormones. The clinical decision-making prior to the prescription of these medications was universally inadequate in respect of Patients A to X. [162] The medications were prescribed in quantities far in excess of appropriate clinical practice. The frequent combination of opioid medication and potent benzodiazepines, particularly alprazolam, poses a potentially significant risk of overdose to patients. The volume of prescriptions and their frequency raise serious concerns that these medications had the possibility of being diverted into the community. The respondent repeatedly denied this possibility. The prescription of testosterone, growth hormones and hCG was made without adequate clinical assessment, investigation, specialist review or informed consent from the patient. The Tribunal is concerned that such prolonged prescribing exposes the community to risks associated with aberrant prescribing. This aberrant prescribing persisted despite recurrent interventions by the Council, who provided repeated advice from 2008-2009 to the respondent regarding his inappropriate prescribing. The respondent also received prescribing advice from the PRU in 2013 concerning his aberrant prescribing. [163] Further, the Tribunal is highly critical of the respondent's continued prescribing of medications which require proper authority under the PTG Act. This included the prescribing of methadone and alprazolam and long-term prescriptions of injectable pethidine and morphine. This prescribing was to patients who the respondent knew, or should reasonably have suspected, were drug dependent. Further, the prescribing persisted even though the respondent admitted that he was aware that after 2014 he would need to obtain appropriate authority to prescribe such drugs Self-prescribing and prescribing for family members [164] The respondent's prescribing for family members was entirely inappropriate. The respondent was in a position to easily refer family members to another practitioner. The respondent prescribed medications that were "off-label" to a close relative. As with all the prescribing of this medication, that prescribing was done without appropriate clinical assessment, specialist review or with the provision of appropriate informed consent. Prescribing for family members is specifically discouraged in the Code. Gross overprescribing [165] Examples were provided to the Tribunal of prescribing in volumes which could have had no therapeutic reason. For example, between 2 June 2013 and 16 June 2013 four prescriptions for alprazolam were issued by the respondent to Patient E, for a total of 200 tablets. In respect of Patient F, between 15 January 2014 and 3 February 2014 three prescriptions were written for a total of 150 diazepam tablets. In respect of Patient C, between 26 June 2014 and 8 July 2014 five prescriptions were issued to the patient for a total of 250 tablets. [166] In other instances, the prescribing of drugs was carried out on a scale which the Tribunal finds was entirely inappropriate. For example, the respondent had written prescriptions for Patient S between the 16 February 2015 and 7 April 2015 for a total of 540 Endone tablets. In the period April 2012 to June 2015 the patient was prescribed more than 6,000 Endone tablets. There is no possible clinical or therapeutic reason for such an extraordinary quantity to be issued to the patient in the above period. The patient consulted the respondent on 16 occasions and, in addition to Endone, was issued prescriptions for Lyrica, Tramal, Primoteston, Nexium and Avanza. Overprescribing is also apparent in relation to other patients who have been referred to by the expert. Unexplained excess drugs [167] During the course of the respondent's evidence, he stated that, when prescribing pethidine or morphine, he would issue a prescription to the patient who would have the prescription dispensed at a pharmacy. The patient would then return to the clinic to have the injection administered either by the respondent or by the practice nurse. The residual ampoules for either drug would be stored in a secure manner at the medical practice. However, on reviewing the schedule for Patient T, it is noted that prescriptions for both morphine ampoules (five) and pethidine ampoules (five) were issued in close proximity, often within three or four days of each other. This does not explain the narrative that the residual ampoules were retained at the medical practice. The Tribunal is concerned that the residual ampoules then became available for diversion. Source of drug supply [168] The respondent stated that he purchased somatropin from a pharmaceutical supplier. The respondent stated he did so in order to provide the medication to his patients at a cheaper rate than if they had otherwise purchased the drugs from a pharmacy. The respondent sold the medication directly to the patient and stated that he made a small profit by doing so. The receipt book recording such sales has been destroyed by his accountant. One patient expended approximately $49,000 to purchase 32 vials of synthetic human growth hormone with the object of reducing his weight.
24. Returning to the findings in the second decision, the Tribunal then set out what were described as "strikingly similar" factual circumstances in another case heard by the Tribunal in 2016. The purpose was no doubt to place reliance upon the fact that the disciplinary order in that case involved cancellation of the practitioner's registration with a two-year period before an application to reinstate the registration could be made. The Tribunal then continued: "[50] The Tribunal is mindful that the respondent has not infringed any restriction on prescribing for at least five years. This is no doubt due to the imposition of the conditions pertaining to his practice. However, he has successfully conducted his practice and not come under notice for any recent transgressions. The Tribunal is also mindful that the respondent is performing a valuable community service as a medical practitioner and has expressed remorse for his conduct. The Tribunal also notes that the respondent's conduct largely occurred during a period when he was suffering from a mental condition. However, the Tribunal notes the opinion of Dr Fisher, the respondent's psychiatrist, that the respondent's illness does not explain his behaviour. [51] The Tribunal is also mindful of the extensive delays that have occurred in the institution of these proceedings. Though this was not the fault of the applicant, the fact remains that there has been an extensive delay between when the offending conduct ended and the matter being brought before this Tribunal. [52] The mere fact that a complaint may be old does not diminish its seriousness: Prakash v Health Care Complaints Commission at [52] per Santow JA. In Lee v Health Care Complaints Commission [2012] NSWCA 80 Barrett JA referred, at [72], to Walsh JA's observation in Ex parte Tziniolis; Re Medical Practitioners Act (1956) 67 SR (NSW) 448 at 461 that: '… One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes it must require clear proof to show that some years later he has established himself as a different man'. At [73] Barrett JA concluded that 'a finding of reformation thus cannot be made by reference merely to the passage of time without renewed misconduct.' [53] Despite the delay, the Tribunal considers that disqualification is necessary in view of the gross overprescribing referred to in the Tribunal's decision; the respondent's practice of purchasing and reselling off-label drugs including Somatropin, which is frequently used for bodybuilding and known to have black market appeal; his failure to heed warnings over many years, and out of a concern which the Tribunal has that the respondent may again lapse into wrongful prescribing. [54] The Tribunal is also concerned that the respondent does not comprehend the ethical requirements necessary for appropriate practice, as is also demonstrated by his past history of prescribing, particularly with respect to Somatropin, and by his pursuing unproven hair loss therapies, in which he has taken a keen interest. The respondent does not seem to appreciate that such therapies, until tested, remain novel. Further, the respondent's prior history has demonstrated a disregard for authority."

Grounds of appeal 7, 8 and 9

1. The grounds of appeal challenging the disciplinary order made by the Tribunal were set out in four paragraphs of the amended notice of appeal, namely pars 7, 8, 9 and 10. Each identified a respect in which the Tribunal had "made error of law in the Stage 2 Decision". The nature of the error in each ground was by no means clear and, in written submissions and in oral argument, counsel addressed grounds 7, 8 and 9 together, but separately from ground 10. That course should be adopted, as it makes sense of three potentially disparate grounds.
2. The substance of the first challenge was that, in circumstances where the practitioner had conducted himself without giving cause for complaint for a period of some five years, while subject to stringent conditions, the cancellation of his registration was, in effect, manifestly disproportionate to any risk to the community if he were to continue to practice subject to the existing conditions. The first error (ground 7) was said to arise from the Tribunal's reliance on the cases referred to in the reasons at [52], set out above. The practitioner accepted, as a matter of principle, that where a professional person had demonstrated by past misconduct a serious defect of judgment or understanding, it cannot be assumed from the mere passage of time that the defect has been rectified. However, the practitioner submitted that the Tribunal had drawn from the cases a further and impermissible inference, namely that a lengthy period without further misconduct was irrelevant.
3. A related challenge to the Tribunal's reasoning (ground 9) was that it had assumed, in the absence of evidence, or explanation, "that the sole and undoubted reason that the Appellant had not infringed on prescribing for at least five years was the imposition of conditions on his practice".
4. Thirdly, the practitioner contended (ground 8) that the Tribunal had failed to engage with his case which was that "the public interest could be protected by the Appellant being reprimanded with a continuation of the conditions that were presently on his registration having first been imposed in 2015".
5. There was a degree of tension within these challenges to the Tribunal's reasoning. If the Tribunal should have found that the practitioner was fully "rehabilitated" or "reformed", being language used in his submissions, then a continuation of the stringent conditions on his right to practice would have been unnecessary. If, on the other hand, the Tribunal was entitled to conclude that there was a significant risk of repetition of past misconduct if the conditions were to be lifted, a different question arose, namely why the Tribunal was not entitled to cancel the registration of the practitioner for at least 12 months on the basis that the public could not have confidence in a medical practitioner whose right to practice depended upon the maintenance of stringent restrictions.
6. In the course of oral submissions, counsel for the practitioner sought to defuse that tension on the basis that he was someone in whom the public could have confidence if operating subject to conditions, "not because of any issue in relation to the fact that the practitioner is likely to 'reoffend', … but rather to assure the public that he won't reoffend". [17] However, the legal error in the Tribunal's approach was said not to be manifest unreasonableness, but rather a failure to engage with the practitioner's submissions in that regard.
7. Thus, the central proposition underlying the first three grounds of appeal was that, in cancelling the practitioner's registration for a minimum period of 12 months, the Tribunal failed to give proper consideration to an order which permitted the practitioner to continue to practice medicine, subject to current restrictions and subject to a reprimand.
8. This submission was not only implausible, but could not be supported on the evidence. First, it is clear from the questioning of the practitioner on 17 February 2021 that members of the Tribunal were concerned about him continuing to practice. Thus, Dr Hooper asked: [18] "Dr Rahman, … this pattern of prescribing and pattern of medical practice continued over a period of many years despite several meetings with the Medical Board. So there was a lot of feedback from the Medical Board. So - that your pattern of practice and your prescribing was inappropriate. So how can you reassure us that in the future the same pattern of prescribing and practice won't occur again?" The practitioner's answer continued for 50 lines of transcript, at the end of which the Tribunal took an adjournment to allow him to recompose himself. How the Tribunal viewed the proposed reassurance was a matter for them.
9. Shortly thereafter, Dr Hooper asked further questions as to the operation of the medical centre where the practitioner conducted his practice and whether there were peer review sessions and other forms of support available. A second member of the Tribunal, Dr Fogarty, questioned the ongoing "state of play with seeing the psychiatrist." [19] Dr Fogarty also questioned the practitioner as to how he had managed the administration of drugs for which he had written prescriptions. [20]
10. The presiding judge asked the practitioner: [21] "Doctor, there's just one thing I should raise with you because it's troubling the tribunal and that is this: having had issues with prescribing as far back as 2008 and having had conditions imposed on your practice in 2015, it seems that your prescribing had continued after 2008 to be, shall I say, inappropriate which I think you've recognised. Can you offer the tribunal any basis or any reason why the warnings which must have been very prominent in your mind concerning your prescribing weren't taken notice of?" There was a follow-up question as to whether the practitioner thought he had "insight now" into the necessity to prescribe drugs appropriately. [22] This questioning suggested the Tribunal well-understood an issue was whether or not to cancel his registration and how the conditions had affected him.
11. On the following day, 18 February 2021, Dr Robert Fisher, the practitioner's treating psychiatrist at the time, gave evidence. (Dr Fisher lived in South Hobart and appears to have conducted his practice in New South Wales by video conference. [23] ) At the end of his cross-examination, Dr Hooper asked the following question: [24] "Well, what I would - what I think the tribunal needs to assess is whether or not Dr Rahman will be harmful to patients in the future in the same manner as his inappropriate prescribing has been in the past, and can you give us any insight into the probability that similar behaviour will occur in the future or will not occur in the future?"
12. Dr Fisher's answer was not entirely responsive, but Dr Fogarty picked up the same issue and obtained a responsive answer: [25] "DR FOGARTY: … We're trying to give consideration to how confident the tribunal can be with regard to Dr Rahman continuing in practice in some form. Accepting that by conditions the prescribing issues can be corralled to some extent, I'm nonetheless aware that general practitioners face many challenges and requests regarding ethical issues. Provision of medical certificates and a multitude of other requests which require careful consideration. So my question is, have you been able to form any opinion - or are you able to give an opinion with regard to Dr Rahman's present capacity to deal with those ethical challenges outside of the prescribing which we've been addressing? DR FISHER: Well, I think that's a very important question, putting on my hat as council-appointed psychiatrist, rather than as his treating doctor. They're things that I would consider to be very important because they go to the issue of character and values and philosophy and moral compass, and, you know, he has done a number of courses. Now, if he's done courses and hasn't got the message, then there's a great big problem and, you know, the evidence of his reform, I guess, can only be judged with the passage of time. You know, he's - and even in facing this tribunal, you know, he should get the message that what he did was totally unacceptable and that if he was to reoffend, then he might be deregistered for a long period of time. So that's what's at stake. I have to say to you that most doctors that I've been involved with at the Medical Council level have done very well through the - through the Impaired Registrants Program, so I have a degree of optimism but not everyone - not everyone gets the message."
13. There was further quite extensive questioning of Dr Fisher by the presiding judge. It ended with Dr Fisher opining that "if he was permitted to continue practising, then I do not believe that he should be permitted to write scripts for S4D or S8 drugs." [26]
14. When the Tribunal reconvened on 5 May 2021 for the "Stage 2" hearing, the practitioner again gave evidence. At the outset of the hearing, the presiding judge sought some indication as to the matters which would be dealt with over the ensuing two days. He invited the parties to talk to each other with the intention that some issues be negotiated. The following exchange then took place between Mr Aitken (for the Commission) and Mr Barnes (for the practitioner): [27] "MR AITKEN: I'm happy to do so, your Honour. I don't anticipate that it'll be fruitful, and that's no criticism of either side, but I expect we're probably at different positions. MR BARNES: No. If my friend's instructed position is as I suspect it is - which is very similar in every case - that Dr Rahman should be the subject of a cancellation order, his registration should be cancelled, then there's no point talking because that's what I'm trying to fight off. … HIS HONOUR: It's an interesting matter, Mr Aitken, because many of the matters which we have - the tribunal has found to have been established are serious matters. At the same time, what weighs against that - and I look forward to hearing your submissions on this - is the fact that they're all old. In other words, he's been permitted to continue in practice for several years." The matter then proceeded with further evidence, but the Tribunal could have been in no doubt as to the positions of the parties.
15. The practitioner gave an expansive answer-in-chief to a question from his counsel as to the ways in which he had found particular patients to be "difficult." [28] The presiding judge interposed a question at the end of the explanation: [29] "HIS HONOUR: Doctor, what's your current prescribing restrictions? DR RAHMAN: So at the moment, I'm not allowed to prescribe S4Ds and S8s, as well as the anabolic steroids and the growth hormone. So yes, that's it. HIS HONOUR: All right. Now, you have just given a very helpful explanation as to the type of patients you receive and how you assess them. Can you provide the tribunal any understanding or explanation as to how you weren't aware of that when you were having your excessive - what the tribunal has found excessive prescribing of particularly schedule 8 drugs."
16. Again, there was extensive questioning by Dr Fogarty and Dr Hooper. [30]
17. Both parties made submissions on the second day, 6 May 2021. The Commission's counsel provided written submissions of that date, which set out in some detail both the circumstances relied upon by the Commission and the principles to be applied, including the statement in Health Care Complaints Commission v Litchfield [31] by Gleeson CJ, Meagher and Handley JJA, to the following effect: "The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal." [32] The submissions continued: "38. In accordance with these comments, the Tribunal has a wide discretion relating to disposition of a complaint establishing professional misconduct. The circumstances of the particular case will determine the appropriate disposition (HCCC v Karalasingham [2007] NSWCA 267 at [67] (Basten JA)). 39. As such, a finding of professional misconduct may not automatically lead to cancellation of a practitioner's registration. It is clear that deregistration may, in serious cases, be required to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thus maintaining public confidence in the profession. 40. The applicant submits that this matter is, clearly, such a case, involving particularly serious and prolonged forms of professional misconduct which had the potential to seriously threaten and endanger patient safety and wellbeing, at times wilful misconduct (wilful for example in not seeking authorities to prescribe S8 medications, and not ensuring appropriate testosterone testing), and at best questionable ethical decision-making."
18. Counsel for the practitioner also provided written submissions, dated 4 May 2021. He relied upon the evidence elicited from Dr Fisher by Dr Hooper to the effect that "Dr Rahman could safely continue to practise without rights to prescribe s8 and s4D drugs which he would probably never be able to prescribe." [33] He concluded that "[t]he public therefore would be protected by the Tribunal's reprimanding Dr Rahman and ordering that his registration be subject to the conditions to which it is currently subject." [34] The thrust of the oral submissions was consistent with the written submissions.
19. It is convenient then to turn to the second decision of the Tribunal. The structure of the second decision has been considered above. There is no complaint about the manner in which the Tribunal dealt with the practitioner's evidence (at [2] - [17]), including the following concluding passages: "[16] As to medical records, the respondent states that one of the conditions imposed on his registration following the s 150 proceedings required him to undergo an audit of his medical records. He subsequently underwent four audits and while there had been improvement in record keeping such records remained inadequate. Accordingly, the Council determined that a further performance assessment be carried out on 26 August 2019. As a result, the records were found to be appropriate and the assessors recommended to the Council that no further action was required and such recommendation was accepted. The respondent has a supervisor, Dr Mary Joseph, who has not raised any issues of concern. [17] The respondent stated that he has not prescribed any medications for himself since the s 150 proceedings. He continues to attend upon Dr Robert Fisher, psychiatrist who was first consulted in 2017. With regard to prescribing for his immediate family the respondent acknowledges that he now understands that it is inappropriate to prescribe for them and he has not done so."
20. The Tribunal then set out the medical expert evidence (at [18]-[31]), before turning to the relevant principles. At [36], the Tribunal repeated the history of the practice restrictions including the finding by the performance assessment review of August/October 2019 that the practitioner's conduct was "satisfactory" and that, "in view of the conditions already in place on Dr Rahman's registration it is recommended that no further action be taken": [36].
21. As noted above, in making its findings, the Tribunal reminded itself of the absence of infringement for at least five years; the fact that the practitioner was performing a valuable community service as a medical practitioner and had expressed remorse for his past conduct: at [50]. However, the practitioner took issue with the statement that the non-infringement of the prescription restrictions was "no doubt due to the imposition of the conditions pertaining to his practice." Counsel submitted that the statement was made without evidence or support in the reasoning.
22. In fact there is a degree of elision in the first two sentences of [50]. The Tribunal cannot literally have meant that the non-infringement of the restrictions was due to the imposition of the restrictions. The sentence is better understood as involving two propositions, namely (i) the practitioner had not prescribed scheduled drugs because of the restriction on his registration, and (ii) there had been no infringement of that restriction. Both these statements are inferences of fact which were available to the Tribunal. Arguably both were, and certainly the latter was, favourable to the practitioner. That the Tribunal treated it as a favourable consideration is clear from its inclusion in one of two paragraphs ([50] and [51]) setting out matters favouring the practitioner.
23. It was undoubtedly open to the Tribunal to conclude that the conduct the subject of the complaints was so serious, was undertaken over such an extended period, and in the face of multiple warnings, that no disciplinary order other than cancellation of registration for a period of not less than 12 months was appropriate. The practitioner does not contend that such an order was not available to the Tribunal. Rather his proposition was that the Tribunal did not give careful consideration to the factors which might have warranted non-cancellation. However, as the submissions noted above demonstrate, that was the focus of the Stage 2 hearing. The questioning of witnesses, including the practitioner himself, demonstrate beyond doubt that the Tribunal was fully focused on the question of current fitness to practice. It was open to the Tribunal to conclude that, despite the practitioner's submissions to the contrary, a medical practitioner who could not be trusted to undertake the function of prescribing S8 and S4D drugs should be subject to orders of the kind made. It was open to the Tribunal to accept the Commission's submissions that greater leniency would set a standard of delinquency, as described in Litchfield, which would diminish public confidence in the profession.
24. The proposition that the Tribunal treated the significant period of non-infringement as irrelevant cannot be sustained; it follows that ground 7 must be rejected. The proposition that the Tribunal failed to engage with the practitioner's case is contradicted by the course of the hearing at both stages, and the reasons given by the Tribunal read holistically; it follows that ground 8 must be rejected. The reading of the first two sentences of the Tribunal's [50], set out at [64] above, means that ground 9 must be rejected.

Ground of appeal 10

1. Ground 10 alleged an error of law on the part of the Tribunal in placing reliance "on matters which were not particularised or alleged against the Appellant", referring to [54] of the Tribunal's reasons. The ground was particularised as follows: "a. The issue of ethical requirements or issue arising from hair therapies was neither the subject of complaint or fairly raised with the Appellant prior to or during his cross-examination. b. There was no evidence or evidence disclosed before the Tribunal that the hair therapies were unproven. c. The Tribunal provided no explanation as to what it meant by 'concerned' at [54] contrary to s 165 MA [sic] of the National Law. d. The finding was irrational or unreasonable in that no reasonable person could find correspondence or correlation between the Appellant's prescribing Somatropin and his current interest in hair loss therapies."
2. The substance of the challenge in ground 10 was threefold, namely that (i) it was procedurally unfair to rely upon matters which had not been raised with the practitioner in evidence; (ii) there was no evidence that the hair loss therapies were unproven and (iii) there was no rational relationship between his willingness in the past to prescribe somatropin and his current interest in hair loss therapies.
3. Particular (c) was intended to be a reference to the requirement under s 165M(2) of the National Law that the Tribunal give reasons for its "decision". That particular may be disposed of first. First, the section relevantly provides: 165M Tribunal to provide details of decisions [NSW] (1) As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to - (a) the parties; and (b) the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party). (2) The statement of a decision must - (a) set out any findings on material questions of fact; and (b) refer to any evidence or other material on which the findings were based; and (c) give the reasons for the decision.
4. There is no doubt that the second decision of the Tribunal complied with s 165M(2). In oral submissions, counsel for the practitioner stated there had been a failure to comply with pars (a) and (b) of subs (2). [35] There was no non-compliance because a particular inference which formed part of the reasoning was not set out, or the supporting evidence not identified. As explained by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Yusuf, [36] dealing with similar language in s 430 of the Migration Act 1958 (Cth): "[5] … The Tribunal is required, in setting out its reasons for decision, to set out 'the findings on any material questions of fact'. If it does not set out a finding on some question of fact, that will indicate that it made no finding on that matter; and that, in turn, may indicate that the Tribunal did not consider the matter to be material."
5. There would be no basis for the practitioner to seek an order requiring compliance with s 165M(2), on the basis that the decision under consideration did not satisfy the statutory obligation. Further, the complaint is otiose: if there were no evidence to support the finding (as separately alleged) there could have been no satisfactory reason for drawing the inference. On the other hand, if there were some evidence, it should properly be identified if it leads to a finding of a material question of fact. If there were no rational basis for relying upon the pursuit of hair loss therapies, there would be no material fact to be established.
6. Before turning to the manner in which the issue arose in the course of the hearings before the Tribunal, it is convenient to dispose of particular (d). Although ground 10 referred only to findings at [54], it is clear that those findings are to be understood in the context of the preceding paragraph. Somatropin is a synthetic human growth hormone. As discussed in the first decision, in relation to Patient Y, the practitioner had prescribed somatropin for general well-being and "post op recovery" which were, for reasons identified, not recognised therapeutic purposes. [37] Similar complaints were made with respect to Patient L and Patient R. [38] If there were a basis for treating the hair loss therapies as unproven, the connection with the earlier misuse of somatropin is patent and undoubtedly a legitimate matter of concern to the Tribunal.
7. It is convenient to turn to the manner in which the question of hair loss therapies was addressed in the evidence. In fact the issue was first raised in the evidence by the practitioner. His own statements, in various contexts, indicated that he went to Turkey in order to obtain training in the treatment he proposed to use. That was the treatment described in the performance assessment report as unproven.
8. Reference has already been made to the performance assessment undertaken with the practitioner on 26 August 2019, as reported in the performance assessment report dated 28 October 2019. Annexure C to that report summarised the interview with the practitioner. Under the heading "Work Arrangements" the report noted that the practitioner "also has an interest in mens' health, for example hair loss and erectile dysfunction." Under the heading "Future Plans" this statement was elaborated upon in the following terms: "Dr Rahman said he wants to build on his interest in mens' health. He currently treats men for hair loss and would like to expand this. One treatment he uses for hair loss is PRP injections. He estimated that he is currently treating 2-3 men with this method. He is considering travelling overseas to attend a course on hair transplant treatment, so he can offer this as a management option. If he does this, he may work a few days a week in a cosmetic/aesthetic practice, combining this with his general practice."
9. As part of the clinical practice interviews in the course of the assessment, four cases were presented to the practitioner. The report of his responses included the following statement: "During our clinical interview we have identified some significant knowledge gaps, which should be addressed. We believe that Dr Rahman should be striving to update and extend his clinical acumen to a higher standard than currently demonstrated. He should regularly participate in high quality CPD courses to avoid falling further behind educationally. His plans to focus on experimental and non-evidence based hair growth therapies should, in our opinion, be strongly re-considered, because of possible litigation risks."
10. This statement by an expert panel was tendered by the practitioner in his case before the Tribunal. There was no suggestion that he sought to disown it; the Tribunal was entitled to rely upon it, as it did.
11. That the issue was considered significant by the Tribunal appeared in the course of the hearing in February 2021. An "unidentified male", who must have been one of the members of the Tribunal (but not the judge) asked Dr Joseph, who was the nominated supervisor of the practitioner's professional performance: [39] "Doctor, we received some papers last night which was the report of a performance assessment carried out by the New South Wales Medical Council in 2019 in which Dr Rahman states that he has particular interest in men's health and some interest in hair loss treatment, particularly with some injections. Having given you that background, can I ask you, have you ever discussed in your supervising time with Dr Rahman matters of men's health or the treatment of hair loss?" Dr Joseph said "No."
12. In cross-examination the following day (17 February) the practitioner was cross-examined about a passage in the 2019 assessment report relating to PRP injections for hair loss. He acknowledged that "PRP injections" were "platelet-rich plasma injections", a therapy that was "first suggested might assist in the healing of tendons and things like that", with which he agreed. [40] The practitioner said that it was used for hair loss, amongst other things and stated: [41] "There has been a lot of studies done that shows it is quite effective in some - in somewhat improving hair - sort of reducing hair loss and improving density. There's a lot of - a lot of studies that have shown it does increase density of hair." The practitioner agreed that it was "not conventional medical treatment". He was asked if he had undertaken courses in the use of injections in the scalp and he said that he did a course for two weeks in Turkey. [42]
13. Dr Hooper intervened to ask the following question: [43] "So I would like to go back, Dr Rahman, to your use - your potential use or your current use of platelet-rich plasma in treatment of people with hair loss. And I would like to explore a bit more the evidence base on which you base your use of PRP in this circumstance. So can you tell me - describe to me the randomised control trials that form [formed]… the evidence base for the use of PRP in hair loss?" The practitioner said that he had "seen a number of trials" and could get them for the Tribunal. Dr Hooper asked that they be produced. The questioning in relation to the hair loss treatment continued over several pages of the transcript.
14. The material was produced and was tendered by counsel for the Commission the following morning. [44] As this material was neither objected to by the practitioner, nor was the subject of submissions by him, it is difficult to understand the basis upon which he could now complain that there was no evidence to support the limited finding made by the Tribunal that it was an "unproven" therapy, his embrace of which demonstrated a lack of comprehension of the ethical requirements necessary for appropriate practice. In addition to the views expressed by the performance assessors in 2019, it may be noted that a survey of randomised control trials discovered on two databases in December 2018 led the authors of one article to observe: "PRP is applied by intradermal injections at the affected skin areas and repeated after various intervals. PRP is neither approved in the United States nor in the European Union for hair restoration purposes, though, it may be used in off-label ways. Currently, the evidence to support the clinical efficacy of PRP in pattern hair loss is limited, and its use outside of clinical trials is not recommended." [45]
15. It is true that his embrace of unproven hair loss treatment was not the subject of complaint, but it was squarely raised by the practitioner himself by tendering the 2019 performance assessment report and he was expressly challenged with respect to the evidence-base for such treatments in his testimony before the Tribunal at Stage 1. Particular (a) cannot be maintained.
16. As to particular (b), there was evidence before the Tribunal that the PRP hair loss therapy was unproven. Particular (b) cannot be maintained.
17. With respect to particular (c), as noted above, the use to which the Tribunal put this material was identified: despite the warning given him as to a focus on this aspect of men's health pursuant to the 2019 performance assessment report, and despite the comment of the assessors that the treatment was unproven, the practitioner continued to pursue it as part of his medical practice, and without discussing it with his supervising colleague. These matters formed a rational basis for the Tribunal's view that his earlier disregard for prescribed uses of somatropin was a continuing problem. The link was rational. Particulars (c) and (d) cannot be maintained.
18. It follows that ground 10 must be rejected.

Conclusion

1. The grounds of challenge to the orders of the Tribunal have not been made out. Accordingly, the appeal must be dismissed. There was no resistance to the Commission's submission that costs should follow the event. Accordingly the practitioner must pay the Commission's costs in this Court.
2. There remains a question as to the practitioner's current status. Because his name has remained on the register of medical practitioners since it was reinstated by the Agency following the interlocutory orders made by this Court on 25 June 2021, it is necessary for the Court to determine what further order should be made to give effect to the orders of the Tribunal. On one view, the interlocutory orders were temporary in their effect and will cease to operate once the appeal is determined. However, the practitioner's name having been removed from one list and reinstated on the register, it is necessary for the Agency to take positive steps to reverse that situation. If this Court did not have power to make the orders on which the Agency has acted, arguably it does not have power to order the Agency to reverse its earlier action. The better course is to revoke the orders made on 25 June 2021, which would remove any legal basis for the steps then taken by the Agency and would, the Court might expect, lead the Agency to reverse its earlier steps in order to comply with the ruling of the Tribunal.
3. There may be an issue as to the manner in which the Tribunal's orders will now operate. For about four of the five months from the date the Tribunal's orders took effect (namely 25 May 2021) the practitioner has maintained his registration. On one view, the order precluding the practitioner seeking to reinstate his registration for a period of 12 months will now expire in mid-September 2022, rather than in May 2022. However, that is not an issue which has been addressed in this Court and it is not a matter which this Court can determine. It may be of little practical consequence.

Orders

1. The Court should make the following orders: 1. Dismiss the appeal. 2. Revoke the interlocutory orders made on 25 June 2021. 3. Order that the appellant pay the respondent's costs in this Court.
2. MACFARLAN JA: I agree with Basten JA.

Endnotes

1. Health Care Complaints Commission v Rahman [2021] NSWCATOD 25 ("first decision").
2. Health Care Complaints Commission v Rahman (No 2) [2021] NSWCATOD 65 ("second decision").
3. Bassel Abdul Rahman v Health Care Complaints Commission of NSW [2021] NSWCA 127 (White JA).
4. Ibid at [5].
5. McBride v Walton (NSWCA, unrep, Handley JA, 27 August 1993).
6. Attia at [33].
7. For the history of the provision, see Heydon, Leeming and Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th, LexisNexis Butterworths, 2015), Ch 21, particularly at [21-045]-[21-070].
8. See, eg, Meagher, Gummow & Lehane at [21-130].
9. AVS Group of Companies Pty Ltd v Commissioner of Police (2010) 78 NSWLR 302; [2010] NSWCA 81.
10. See also, in my judgment, [18].
11. [2016] NSWCA 95 (Barrett AJA).
12. In fact it was dated 28 October 2019; the assessment was conducted on 26 August 2019.
13. Second decision at [20].
14. Second decision at [21].
15. See second decision at [38].
16. Second decision at [43]-[46].
17. CA tcpt, 23/08/21, p 6.
18. Tcpt, 17 February 2021, p 247(5).
19. Tcpt, p 254(17).
20. Tcpt, pp 255-258.
21. Tcpt, p 258(30).
22. Tcpt, p 259(12).
23. Tcpt, 18 February 2021, p 268.
24. Tcpt, p 276(40).
25. Tcpt, pp 277(30)-278(5).
26. Tcpt, p 280(8).
27. Tcpt, 5 May 2021, p 4(20).
28. Tcpt, p 10(35)-(40).
29. Tcpt, p 12(20).
30. Tcpt, pp 37-43.
31. (1997) 41 NSWLR 630 at 638C.
32. Written submissions, par 37.
33. Written submissions, par 26.
34. Written submissions, par 28.
35. CA Tcpt, 23/08/2021, p 16(6).
36. (2001) 206 CLR 323; [2001] HCA 30.
37. First decision at [150]-[153].
38. First decision at [28]-[30]; [76]-[78]; [104-[107].
39. Tcpt, 16 February 2021, p 174(11).
40. Tcpt, p 225(38)-(45).
41. Tcpt, p 226(12).
42. Tcpt, p 227(5)-(20).
43. Tcpt, p 228(26).
44. Tcpt, 18 February 2021, pp 266-267.
45. Dervishi et al, "Autologous platelet-rich plasma therapy for pattern hair loss: A systematic review", Journal of Cosmetic Dermatology (2020; 19:827-835) at 828. 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: 14 October 2021