1. As agreed by the parties, the central question is: are the conditions still necessary to protect public health and safety?
2. The Board says, in essence, that the conditions are working as intended and remain necessary because of the nature of the risk Dr Raiz poses if he returns to unsupervised practice in the interim.
3. Dr Raiz says that the changes he has implemented in his practice since the time the conditions were imposed, the education and reflection undertaken, the positive reports of his supervisors, and the expert evidence mean that he does not now pose a serious risk.
4. If, contrary to that submission, the Tribunal considers that immediate action remains necessary, he asks that the conditions be narrowed, so that, for example, on-site supervision is only required when he is providing general anaesthesia to patients, or on-site supervision is replaced by remote supervision.

1. We address this question because the parties were unable to point to any tribunal[4] decisions under the National Law where a similar case has been decided, namely an appeal of a decision to refuse to remove or amend conditions previously imposed under s 156(1)(a) of the National Law, while an investigation is still pending. The cases usually concern an appeal of the decision to impose immediate action.
2. Further, there is no express right, in the provisions to do with immediate action, to request a Board to amend or remove conditions imposed as immediate action, where the conditions are in place and the decision to impose them has not been appealed.
3. Under s 159(2) of the National Law, an immediate action decision to impose conditions continues to have effect until the decision is set aside on appeal or the conditions are removed by the National Board.
4. This is in contrast to conditions imposed under s 178 after an investigation is finalised. Under s 178, the Board must specify a review period after which the conditions may be varied or revoked.
5. Where conditions are imposed under s 156, no review period is required to be specified.
6. Nevertheless, s 159(2) contemplates that the Board may remove the conditions, and under s 199(1)(f) of the National Law,[5] a practitioner may appeal a decision of a National Board to refuse to change or remove a condition on their registration. Section 199(1)(f) does not limit the right of appeal to conditions imposed under s 178, or otherwise exclude conditions imposed as immediate action under s 156.
7. Dr Raiz' submissions expressly relied on s 199(f)(1) as the source of his appeal right. The Board did not dispute that VCAT has jurisdiction to hear the appeal.
8. We have therefore assumed we have jurisdiction to decide whether the immediate action conditions currently in place should continue, be amended, or be removed pending the Board finishing its investigation.
9. We return to the legal framework for our decision later but first set out the background to the Board's 2020 decision to impose the conditions and the 2021 decision to refuse to amend the conditions.

Background to the 2020 decision to impose conditions

1. One year before its 2020 decision, the Board concluded an investigation of serious allegations made in 2018 in relation to Dr Raiz's performance at a previous practice location, Barton Private Hospital in Canberra.
2. In 2018, after an internal investigation, Barton Private Hospital withdrew Dr Raiz' clinical privileges.[6] This triggered an obligation by Dr Raiz to self-notify to the Board.
3. The allegations included that he had fallen asleep or not been present in the OR while a patient was under anaesthesia, had been inattentive and taken calls on his mobile phone while patients were anaesthetised, and other conduct. Dr Raiz denied the allegations.
4. After its own investigation, and consideration of submissions by Dr Raiz's lawyers, the Board decided in 2019 to take no further action. Its reasons are set out in full in its decision.[7]

1. In 2020, the Board received a separate notification from Bupa,[8] which owned (but no longer owns) a dental clinic Dr Raiz works at, Bond Street Dental.
2. Bupa had investigated, and found substantiated, multiple allegations involving Dr Raiz (denied by him), including that he had:

• fallen asleep in the OR during surgery;
  • regularly left the OR while a patient was under general anaesthetic, for periods between 5 and 40 minutes;

1. in error, injected potassium chloride intraorally into a patient, mistaking it for local anaesthetic, (described elsewhere as a 'near miss'[9]) and failed to disclose this error to the treating dental surgeon and the patient;

• disregarded pre-procedural findings and proceeded with surgery rather than postponing surgery to allow for consultation with the patient's regular medical practitioners;
  • not handled sharps appropriately and not used drug labelling stickers as required under the relevant standards; and
  • kept stock/equipment in suitcases not in a clean and hygienic manner, with food present in the suitcases.

3. Dr Raiz acknowledges the serious nature of the allegations, but denies that he poses a risk and disputes all but the allegation of falling asleep in the OR, which he initially denied (a video taken by a nurse supports the allegation and he no longer denies this incident). He explains it by stress and fatigue due to his personal circumstances at the time.
4. Bupa's investigation findings are not binding on us, and we stress we are not making formal findings of fact in this proceeding, which concerns immediate action and not formal allegations after an investigation concludes. Instead, we are deciding whether we hold a reasonable belief about relevant matters. We are assessing risk and deciding whether it is necessary for interim conditions to continue.
5. Nevertheless, Bupa's investigation findings were relevant to the Board's decision to take immediate action, and are relevant to our decision in this case, as is the similarity with the allegations made in relation to Dr Raiz's previous performance at Barton Private Hospital.
6. We observe here that, on the information available to the Board in 2020, there were sufficient grounds, in our view, to take immediate action under s 156 of the National Law.

Background to the 2021 decision - to refuse to remove the conditions

1. In June and August 2021, Dr Raiz's lawyers on his behalf asked the Board to remove the supervision condition, submitting that it was no longer necessary. In summary, the submissions relied on:
   • the financial impact caused by compliance with the conditions, including the need to pay another anaesthetist to be on-site at the approved locations where Dr Raiz worked;
   • the fact that he has complied with the current conditions;
   • current information supporting his safe practice including supervisor reports (from the supervising anaesthetist Dr David Canty)[10], and Senior Person reports (from the senior dental surgeons at the approved locations);
   • the unanimous view in the reports and references provided was that he does not pose a risk to patient health and safety;
   • an opinion from Adjunct Professor Stephen Bolsin dated 21 June 2021 in support of Dr Raiz's request for the supervision restrictions to be removed from his registration. On the basis of the documents provided, A/Prof Bolson's opinion was that it would be 'perfectly reasonable for the AHPRA Medical Board to lift the conditions on Dr Raiz' s registration, pending the outcome of their investigation, on the basis that he does not pose a risk to patient health and safety';
   • changes that have been introduced to Capital Anaesthetic Services (CAS) since the conditions were imposed, including that he is no longer the sole practitioner and now has six anaesthetists and five employed nursing staff allowing him to maintain a reduced workload; and
   • education and reflection undertaken by Dr Raiz.
2. Whilst the Board acknowledged the information supplied by Dr Raiz in support of his application, its reasons for refusing the request include the following statements:

... it is considered that this information does not displace the reasonable belief formed that because of Dr Raiz's performance, he poses a serious risk to persons and that it is necessary to take immediate action in the form of conditions on Dr Raiz's registration to protect public health and safety.

In light of the totality of information available, the level of risk associated with Dr Raiz's practice remains sufficiently serious and it is therefore necessary for the conditions imposed by way of immediate action on 27 November 2020 to remain in place in order to protect public health and safety.

Having regard to Dr Raiz's current practice setting and the inherently high risk nature of anaesthetic practice being undertaken outside of a hospital environment, it is not considered that removal of supervision or any lower level of supervision would adequately mitigate the risks previously identified with Dr Raiz's performance, nor would it ensure that any future concerns are identified contemporaneously with practice.

In particular, in such an environment, patients can deteriorate very rapidly and interventions by the anaesthetist need to be immediate. Further, in an isolated institution, other anaesthetists and/or support teams for emergencies are not usually present to help, as would exist in a hospital setting, leading to an increased risk to patient safety. Dr Raiz submits that this inherent risk of mobile practice is mitigated in these circumstances by his changed practice (stable in situ equipment and resources) and his licencing and audit by the Victorian Department of Health and Human Services.

Where the Board's paramount responsibility is protection of public safety and after consideration of Dr Raiz's submissions, continuation of the current supervision conditions are considered necessary in circumstances where there are well founded and serious concerns about Dr Raiz's performance and where the investigation remains ongoing.

1. As is evident from the above, the Board placed an emphasis on the 'well-founded and serious concerns about Dr Raiz's performance' and what was necessary to protect patient health and safety in what it regarded as an inherently high-risk environment: namely, anaesthetic practice outside a hospital environment where other anaesthetists and emergency support teams are not present.
2. Dr Raiz emphasised that any such risk of his mobile practice was mitigated by the changes in his practice and the fact that his practice was licensed and audited by the Department of Health and Human Services.
3. We agree with the parties that the focus here is on the nature of the risk posed by Dr Raiz, in the context of practice outside a hospital environment, and the relevance of changes in his practice since the 2020 immediate action decision.

1. The objectives and guiding principles of the National Law, set out in ss 3 and 3A, underline the protective focus of the National Law. Under s 4, the Tribunal has regard to them when exercising our functions. They relevantly include:

3 Objectives > > (2) The objectives of the national registration and accreditation scheme are -

(a) to provide for the protection 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; ...

3A Guiding principles

(1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount -

(a) protection of the public;

(b) public confidence in the safety of services provided by registered health practitioners and students.

(2) The other guiding principles of the national registration and accreditation scheme are as follows -

...

(c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.

A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if -

(a) the National Board reasonably believes that -

(i) because of the registered health practitioner's health, conduct or performance, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety...

(a) the suspension, or imposition of a condition on, the health practitioner's or student's registration; or > > (b) accepting an undertaking from the health practitioner or student; or > > (c) accepting the surrender of the health practitioner's or student's registration; or > > (d) if immediate action has previously been taken suspending a health practitioner's or student's registration - the revocation of the suspension and the imposition of a condition on the registration; or > > (e) if immediate action has previously been taken imposing a condition on the health practitioner's or student's registration - the suspension of the registration instead of the condition.

1. Both parties agreed that the recent statement from Medical Board of Australia v Sami [11] articulates the necessary content of the reasonable belief, for immediate action to be taken:

... two specified things (only) - first, that, because of the practitioner's conduct, performance or health, the practitioner poses a serious risk to persons, and, second, that it is necessary to take immediate action to protect public health or safety.

1. The submissions for Dr Raiz conceded that his past performance may be a relevant consideration in the current context, where the question is whether immediate action is still required. [12] As Cavanough J stated in Sami:[13]

It is true, of course, that the past conduct of a registered health practitioner, especially if there be little or no controversy about it, might serve to inform an assessment about likely present or future conduct on the part of that practitioner, and therefore to inform assessments about present or future serious risk to persons and about whether it is necessary to take immediate action to protect public health or safety.

However, such a conclusion will only be open where the particular facts of the case warrant it. And there will be cases where the past conduct of a registered health practitioner is of little or no moment. For example, circumstances may have changed such that the practitioner's past conduct has been overtaken by events_._

1. In this case, although there is controversy about some of it, past conduct is relevant to our consideration of present and future risk, as is the extent to which it has been 'overtaken by events'.
2. As submitted by the Board, it is also relevant to have regard to the reasons why immediate action was imposed when considering whether to remove conditions.

1. The Board submitted that the Tribunal should give the reasons of the Board 'considerable weight' in a review proceeding such as this, referring to Morris v Medical Board of Australia[15] (Morris). Having considered the paragraphs in Morris referred to, however, and the particular features of that case, we do not agree that the Tribunal in Morris made any such statement of general principle.
2. Morris primarily concerned review of an immediate action decision of the Board based on performance as well as conduct, and was unusual in its scope and complexity. It related primarily to the practitioner's performance as a neurosurgeon; ran over eight days; and involved consideration of multiple patients' care, relatively complex surgeries, and the evidence of nine expert witnesses.
3. As the Tribunal in Morris observed at [178], the question of the weight to be given to the Board's view in National Law proceedings has principally arisen in stay applications,[16] which are:

urgent ... applications necessarily made on the basis of limited evidence and heard and determined by legal members of VCAT.

1. In stay cases, it is appropriate to give proper weight to the views and expertise of the Board. As noted in Morris:

In Shevtsova VCAT accepted that the Board's expertise and statutory role is to be given proper weight but rejected a submission that the Board's position on the stay ought to be determinative.

1. The Tribunal's statement in Morris at [180], of the weight to be given to the Board's view in that immediate action case, was limited to the unusually complex case before it:

It is so that VCAT as presently constituted possesses medical expertise.[17] It is also correct that we heard extensive evidence over several days. We have also had time to consider the vast amount of material in the Tribunal Book. Nevertheless, where the subject matter in the proceeding involves issues not only of conduct but also of performance, in a highly specialised and evolving branch of surgery, it would in our view be imprudent to do other than give proper weight to the views of a Board which has relevant experience, knowledge and expertise. [emphasis added]

1. Having determined that 'proper weight' should be given to the views of the Board in the case before it, the Tribunal then considered what the proper weight was:

In this case "proper weight" is "considerable weight", in our view. (The Board, rightly, has not submitted in the present case that its view ought to be determinative).[18]

1. The case before us is very different to Morris, factually and otherwise. It does not arise from adverse patient outcomes in a highly specialised and evolving area of surgery, and did not involve complex evidence. It is also very different to a stay hearing.
2. In simple terms, this case is about:
   • allegations that Dr Raiz repeatedly left the OR while patients were under general anaesthesia, or fell asleep while in the OR (amongst other issues);
   • the risk that, and other issues identified, represents to patient safety in a dental clinic environment where no other medical practitioners may be present or nearby; and
   • whether the risks identified require continuation of a condition that another medical practitioner always be present on-site and, (amongst other obligations) be available to observe Dr Raiz' performance; or
   • whether any risk has been addressed by changes Dr Raiz has made to the way he practises.
3. The Board's view and the reasons for its decision are of course relevant in this case, as are the submissions made and the evidence provided by the practitioner. But on an immediate action review, the Tribunal must determine for itself whether it holds the required reasonable belief as to the basis of and necessity for immediate action. The weight it gives to the Board's view in an immediate action case will depend on the facts and circumstances of the case, the reasons for the Board's view, and any additional information before the Tribunal.
4. Before leaving the question of the weight to be given to the Board's view, we note the Board cited Macedon Ranges Shire Council v Romsey Hotel Pty Ltd and anor[19] (Romsey Hotel) in support of its submission that 'considerable weight' ought to be given to its views. In our view, Romsey Hotel can be distinguished from cases under the National Law, where the Tribunal is constituted by two experienced medical practitioners and an experienced legal member.
5. We agree with the Tribunal's summary in Morris at [179] of the different context and considerations in Romsey Hotel:

Macedon Ranges Shire Council v Romsey Hotel Pty Ltd concerned merits review by VCAT in relation to an application for approval of premises as suitable for gaming. The Court of Appeal noted that the regulator had "experience, knowledge and expertise" possessed neither by the tribunal nor by any "adversary party" in the review. Consequently, the Court said that although the review hearing was a hearing de novo, the regulator's reasons should have been given considerable weight. (We have noted what was said in Kozanoglu about the "hybrid" nature of the current proceeding, though nothing of importance turns on the distinction in the present context).

1. The materials included reports from two independent experts, Dr Fred Rosewarne (engaged by the Board), and Dr Ross McPherson (engaged by Dr Raiz), reports from medical practitioners who have been supervisors of Dr Raiz who are also now directors in his business, statements from the dental practitioners who have worked with him, including the senior persons at his approved practice locations, and other references from staff of his business. They also include relevant guidelines of the Australian and New Zealand College of Anaesthetists (ANZCA).
2. As the Board concedes and Dr Raiz's table of statements indicates, Dr Raiz's supervisors and senior persons at his approved practice locations as well as colleagues and employees have provided many supportive reports and references about him.

1. As submitted on behalf of Dr Raiz, the first report of Dr McPherson dated 22 February 2022, and the first report of Dr Rosewarne dated 11 May 2022, express opinions favourable to him in terms of current risk and the need for continuing supervision. Both gave weight to the supportive statements of his supervisors.
2. Dr McPherson concluded with the statement that:

I found it difficult to follow the decision of the Board, considering that Dr Raiz:

1. Has considerable experience in the practice of dental anaesthesia
2. Has complied with all the regulations and statements of the Legislation and of ANZCA[20]
3. Has undertaken ongoing audit which has supported his safe practice of office-based anaesthesia
4. Has the support of his anaesthetic colleagues who can attest to his safe practice
5. As a fellow of ANZCA will have undertaken compulsory Continuing professional development which includes ongoing training in emergency crisis management.

The evidence provided by the supervising anaesthetists indicates that Dr Raiz has greatly improved his practice from that alleged by the complainants.

In light of this fact & the strong support by several anaesthetists for Dr Raiz to regain the right to undertake solo anaesthesia in dental surgeries, I believe that Dr Raiz should be allowed to return to solo practice

1. The reports are helpful but, in the context of the decision we are making, there are limits to the weight of those conclusions, for the following reasons.
2. As the Board submitted, those two reports were largely about questions of the relative safety, in general terms, of mobile anaesthetic practice compared to in-hospital anaesthetic practice, which is not a matter we are deciding. Nor was there a focus on general anaesthesia in a non-hospital setting. Sedation for short procedures was included in the comments on anaesthetic practice. And neither expert was briefed with the additional material we had, relating to the 2018 notification.
3. We note that both Dr McPherson and Dr Rosewarne also expressed the view that, provided an anaesthetist in a mobile practice complies with the statutory and regulatory framework and with the ANZCA guidelines, there should be no difference in safety.
4. That proviso is important, in circumstances where there are serious and as yet unresolved questions about whether Dr Raiz has complied with his professional obligations, including the ANZCA guidelines about staying in the operating theatre with a patient who is under general anaesthesia.
5. Dr Rosewarne also emphasised the importance of ensuring that only clinically suitable patients undergo surgery outside of a hospital, and that the procedure in question, any comorbidities, and any requirements for post operative care are taken into account in 'rigorous' assessment prior to surgery as to their suitability.
6. That caveat is important where, as here, there are issues raised in the materials about whether Dr Raiz allowed surgery, and general anaesthesia, to go ahead notwithstanding questions about the patient's suitability that ought to have been addressed.
7. Relevantly, Dr McPherson acknowledged that in a non-hospital setting, other anaesthetists and/or support teams for emergencies are not usually present to help, as would exist in a hospital setting. He emphasised, however, that there should be minimal risk if the guidelines as to anaesthetic practices, monitoring and risk minimisation are followed at every step (emphasis added).
8. Like Dr Rosewarne, Dr McPherson also set out some of the variables that must be considered when looking at the question of patient risk, including:
   • The type of surgical procedure (minor,[21] intermediate and major);
   • The pre-morbid physical health of the patient;
   • Whether the procedure to be performed is elective or emergency; and
   • Whether the procedure will be carried out under general anaesthesia or sedation.
9. Neither report specifically addressed the risks posed by the conduct alleged by the Board.

Dr Rosewarne's second report with Dr McPherson's responses

1. For Dr Rosewarne's second report, dated 21 June 2022, he was asked to give his opinion on the risk posed to patients and others if it were assumed that the conduct alleged was proved. The source of the allegations was the report and findings of the investigator engaged by Bupa.
2. Dr McPherson's second report, dated 15 August 2022, responded to that report, including whether he agreed or disagreed with what Dr Rosewarne said.
3. Relevantly, Dr McPherson stated he agreed 'completely' with:
   • Dr Rosewarne's answers, which are summarised below, to the question whether engaging in the conduct poses a serious risk to patients, with reference to each of the allegations;
   • Dr Rosewarne's view that, based on the assumption that the allegations are proven, the conduct does not comply with the relevant guidelines, both in general but also as they apply to mobile anaesthetic practice; and
   • Dr Rosewarne's views about when, in general, it is appropriate for an anaesthetist to be 'absent' from an anaesthetic procedure; and Dr Rosewarne's views about the risks to the patient of the specific conduct alleged in relation to Dr Raiz, which are set out in detail below.[22]
4. Other parts of Dr McPherson's report returned to the issue of the comparative safety of office-based anaesthesia and anaesthesia in a hospital setting, referring to recent papers. He re-stated his view that the real differences in risk are minimal provided certain guidelines are followed, especially with respect to operator skillset and patient selection.
5. Dr McPherson concluded by stating that he agreed with Dr Rosewarne's conclusion, in his first report, that Dr Raiz should be allowed to return to solo practice.
6. We acknowledge the views of both experts, however the question of whether Dr Raiz should return to solo practice is, and must be, for the Tribunal to decide, taking into account all the information that is before us, including information not before both experts about the prior notification, in relation to alleged conduct at Barton Private Hospital in Canberra.
7. We found Dr Rosewarne's second report of assistance in evaluating the nature of the risk Dr Raiz poses and what might remain necessary, for the purposes of an immediate action decision.
8. Importantly, Dr Rosewarne's opinion about the majority of the allegations was that the conduct, if engaged in, put patients at potentially serious risk. It is significant that Dr McPherson agrees with the conclusions expressed by Dr Rosewarne in this respect.
9. The following observations and conclusions are from Dr Rosewarne's report.

Alleged conduct: Falling asleep in the theatre during surgery

• Observations: Falling asleep during anaesthesia is NEVER acceptable & indicates levels of fatigue rendering the anaesthetist not fit for anaesthetising. ANZCA Guideline PG43 set out, including recommendation 4.1.1.1 'Anaesthetists have a responsibility to organise their lives in a way that ensures fatigue does not regularly impact on patient safety. Anaesthetists have a moral and ethical responsibility to avoid undertaking clinical duties if physical or mental fatigue, stress or ill health, alone or in combination, might interfere with safe patient care.'
• Conclusion: This poses an unacceptable risk to patients if occurring as reported by the staff present.

Alleged conduct: Leaving the theatre whilst a patient is under general anaesthetic, for periods of time. The allegations include that this happens at most/every time there is a scheduled GA [general anaesthetic] list.[23]

1. We have set out below Dr Rosewarne's observations and conclusions about the risks of this alleged conduct in full.
2. This is because the submissions on behalf of Dr Raiz, his responses to the Board's questions, and the report of at least one of his supervisors (Dr Canty)[24] gave us the strong impression that Dr Raiz, and others supervising him in the dental clinics he works at, do not understand that his obligation is to remain with a patient under general anaesthesia at all times, subject only to a very limited number of exceptions. There was a recurrence of the statement that the obligation was to be 'available'. We say more about this matter later.
3. This part of Dr Rosewarne's report also addresses the risks in relation to dental implant surgery.
4. In relation to the risk of leaving the operating theatre while a patient is under general anaesthesia:

ANZCA Guideline PG18 (formerly PS18) - Section 5.2 stipulates that: "A medical practitioner whose sole responsibility is the provision of anaesthesia care for that patient must be constantly present from induction of anaesthesia until safe transfer to recovery room staff or intensive care unit has been accomplished"

This is necessary to both deal with unexpected occurrences during the anaesthetic but also to correct trends in vital signs (BP, oxygen saturation, heart rate etc) before possible progression to creating a serious risk to the patient's wellbeing.

It is particularly relevant in the scenario of a 'shared airway' where the surgery is in the oral cavity, trachea or nasal regions.

Whilst technically, in the case of a nasal endotracheal tube (ETT) being used in lieu of the normally used oral endotracheal tube (ETT), the risks of dislodgement of the ETT by movement of drapes, inadvertent pressure on the ETT where it connects to the breathing system of the anaesthetic machine are still present.

This point is based in over 20 years' experience with providing anaesthesia for a variety of oral & craniofacial surgery where nasal tubes were in use.

In the situation present in dental implants, the proceduralist (dentist) could accidentally displace the endotracheal tube culminating in a loss of ventilation to the lungs with a potentially fatal outcome. This can occur rarely, even with highly experienced dental practitioners.

However, it is acknowledged that on rare occasions a temporary absence may be unavoidable.

This is covered in ANZCA Guideline PG18 Section 5.3: "In exceptional circumstances brief absences of the anaesthetist primarily responsible for managing anaesthesia may be unavoidable."

In the particular circumstances of an anaesthetist practicing in a location with no other anaesthetist being available[25] & a higher risk procedure (such as a shared airway) significant risk mitigation should be practiced before leaving the OR for the absolute minimal time.

Issues to consider include:

• Good reason to leave the OR, such as: Necessary toilet break, Life threatening event in an adjoining operating room where short‐term intervention may be necessary, brief meal break during a very long case.

• Answering a phone call does not classify and having a nap or sleeping is absolutely unacceptable.

• If leaving the room for the necessary reasons listed above, my opinion is that:

o The proceduralist MUST be informed & surgery temporarily ceased. (To minimise risk of the airway being compromised with no anaesthetist present.

o The anaesthetic assistant must be informed, a handover of the patient's status & vital signs musty be given.

o The assistant must be happy to briefly care for the patient & be prepared to immediately notify the anaesthetist to return.

o Presence of another anaesthetist in the hospital is discussed elsewhere.

1. In relation to the risk of leaving a patient alone/unsupervised by an anaesthetist while under anaesthesia (both general anaesthesia and sedation) including if the patient has an adverse event:

Risks / Issues which can arise.

• Delay in identifying and acting upon acute changes during surgery.

• Risks include:

o Bradycardia (slow pulse) leading to cardiac arrest due to reflex response to pain. ECG changes indicating impending heart attack,

o Asthma attack (Bronchospasm) causing hypoxic damage.

o Dislodgement of breathing tube causing hypoxic damage.

o Failure of syringe pump (assumes IV anaesthetic agent in use) leading to awareness.

o Anaphylaxis due to other agents given including Chlorhexidine (antiseptic), antibiotics etc.,

o Aspiration of gastric contents - poor fasting / breathing tube dislodged.

If no anaesthetist is present & an adverse event occurs then the risk of a damaging or fatal outcome significantly increases.

Risks may be mitigated by the presence of another anaesthetist, under certain circumstances.

• My opinion is that a remote anaesthetist would be of minimal value unless they were called to attend prior to the procedural anaesthetist leaving the room, as may happen in a major hospital. To attend when the emergency had occurred would likely be too late in the context of elective surgery.

• Such an arrangement ( a second anaesthetist) would probably be uneconomic in a small, one OR facility.

• An anaesthetist having a quick glass of water / sandwich in an adjoining prep area with visual observation through a window (or partially open door) of the surgery & the monitor for approx. 5 minutes would have minimal risk and could be safely performed. This is not uncommonly done in anaesthetic practice, after handover to the anaesthetic nurse & their level of experience. But only if there were no clinical concerns at the time - as per the ANZCA Guideline.

Alleged conduct: Injecting potassium chloride intraorally in a patient on 18/08/2020, mistaking it for local anaesthetic and failing to disclose this error to the treating dentist and the patient.

• Observation: Failure to disclose the accidental injection of Potassium Chloride to the surgeon was an error[26] as a significant, potentially fatal arrythmia may have occurred. Surgery should have been temporarily stopped until this risk period had passed. Open disclosure of adverse events to the patient is required under the Australian Open Disclosure Framework (Australian Commission on Safety & Quality in Health Care 2013).
• Conclusion: The patient was exposed to a significant risk, likely contributed to by the failure to use colour coded syringe labels.

Alleged conduct: No pre‐screening checks are carried out prior to the day of the General Anaesthetic (GA).

• Conclusion: Assuming that the necessary checks are performed on the day of surgery, several adverse outcomes can occur:
  • Cancellation on the day because of continuing some medications such as blood thinners.
  • Cancellation because of unassessed cardiac, respiratory or other illnesses on the day.
  • Lack of knowledge of asthma status and failure to optimise.
  • Cost, inconvenience & risk to the patient.
  • Wasted operating time for the dentist involved.
  • Other less common preventable complications.
  • (see also subsection 9 for ANZCA requirements prior to surgery)
• If the checks were not performed on the day of surgery either, then a major lapse in safety has occurred.

Alleged conduct: Pre‐procedural findings on the day of the GA are disregarded and surgery proceeds rather than postponement to allow consultation with the patient's regular medical practitioner/s.

• Conclusion: (referring to ANZCA Professional Documents PG15 (2018) Item 5.2; and PG09 (2014) 4.1- 4.1.3) Failure to [per]form these checks could lead to a variety of adverse outcomes including:
  • Administration of a drug to which the patient was allergic.
  • Inability to secure the airway having anaesthetised and relaxed the patient.
  • Complications of undiagnosed cardiac or respiratory illness

Alleged conduct: Sharps are not handled appropriately i.e. disposed of as soon as practicable or placed in puncture proof containers.

• Conclusion: This behaviour creates a significant risk to staff and a risk to the patient.

Alleged conduct: Drug labelling stickers are not used as per ISO 26825:2008.

• Observation: There is no justification for failure to use the widely available colour coded labels. It is a matter of considerable concern that the institution involved (01_VCAT 896 ‐ Page 32) did not stock these labels and that none of the anaesthetists and other staff involved rectified this situation.
• Conclusion: This causes an increased risk to patients.

Alleged conduct: Reuse of items such as the anaesthetic circuit and warming blanket.

• Conclusion: [if a particular type/brand was in use] reuse of the inflatable heating blanket which is applied directly to the patient represents a major lapse in care, especially given that Covid is still widespread in the community. There is no justification for reusing this type of disposable [equipment].

Alleged conduct: Stock/equipment in suitcases is not maintained in a clean and hygienic manner. Food present in the suitcases.

• Conclusion: As per DHHS document all drugs, anaesthetic equipment and other necessary items are required to be supplied by the facility where the procedure is performed. There should be no routine requirement for items to be supplied by the anaesthetist. In addition, medical equipment including drugs and devices required during anaesthesia should never be stored with food, due to both infection risk & the risk of drugs losing potency if stored in a suitcase in a vehicle parked in the sun.

1. The submissions on behalf of Dr Raiz summarise his current practice:

(a) He is the principal of a business, CAS, which provides mobile anaesthetic services. > > (b) At any given time over the past year, CAS has had between six and eight anaesthetists (as opposed to 2019, when Dr Raiz was the sole anaesthetist). > > (c) At any given time over the past year, CAS has employed anaesthetic nurses (as opposed to 2019, when nurses were on various contractual arrangements). > > (d) Dr Raiz himself practises across six approved locations, all of which are dental clinics, which have been approved by the Board. > > (e) Dr Raiz practises under supervision. The approved supervisor must be physically present in the approved location and available for discussion when necessary or at daily intervals. > > (f) Under the conditions, Dr Raiz must pay all costs associated with supervision. Given this, and the nature of his work, it is unavoidable that he has financial ties with the supervisors. > > (g) Since the initial decision in 2019, Dr Raiz has completed extensive education, and made many changes to his practice.[27]

2. As acknowledged, Dr Raiz's supervisors have all been anaesthetists with whom he has financial ties (and who are directors of his business, with a consequent interest in the costs of running the business). While this may be 'unavoidable', and the supervisors are certainly approved by the Board, we share the concern of the Board[28] that these reports do not provide an unequivocally independent evaluation of Dr Raiz's ability to practise to the relevant standard if the supervision is removed.
3. As submitted, there is evidence of better procedures around matters including the storage, labelling and use of medication; better risk management policies, for example around hazard identification and notification of near-miss events, which mitigate the risk evident in the allegations about those matters. The question remains, in our view, why these practices were not in place before.
4. Dr Raiz accepts that, at the time of the initial decision, there were deficiencies in his practice that could be fairly characterised as performance issues, however he does not agree that he poses a serious risk to persons.
5. We disagree, and we consider that the characterisation indicates a lack of insight into the seriousness of what has been alleged, and what it may indicate about him as a practitioner. We refer to the risks identified by Dr Rosewarne, and the following matters.
6. We agree, for example, that an important change is that Dr Raiz is no longer practises as the sole anaesthetist in his business, and now has other anaesthetists working in the business. This may well help him manage issues to do with fatigue in the future.
7. It is submitted that Dr Raiz has identified numerous stressors that he experienced including a divorce, poor sleep and poor general health which led to fatigue, and has now dealt with them. We note that at least some of those stressors were referred to on his behalf in the Board's investigation of the earlier notification discussed further below.
8. There is a broader question here, however, which is about the fact that fatigue impacted on his practice as an anaesthetist (when he fell asleep), despite the fundamental obligation described by Dr Rosewarne for an anaesthetist to recognise in advance and manage fatigue so that it never impacts on patient safety.
9. Notably, the allegation (not admitted) is that this occurred on more than one occasion. Two witnesses say it was a regular occurrence. In a statement since provided to the Board, the nurse who took the video (the only incident admitted by Dr Raiz), said they took the video so it wouldn't be a case of 'he said she said'.
10. We interpose here the observation that against a background of issues being raised by nurses and other staff who were not directly employed by Dr Raiz, and who were able to raise those issues with Bupa, we did not consider it to be an improvement, (for the purposes of this decision) that Dr Raiz's business now employs its own nurses.
11. We agree with the Board's concern that because Bupa now no longer owns or manages the dental practice from where the notified complaints came, there has been a loss of oversight, which supports the continuation of the supervision currently in place.
12. Dr Raiz's responses to the 2020 notification, and some of the other materials before us, also raised a concern for us that Dr Raiz, and others who have evaluated him since the conditions were imposed,[29] do not understand, or do not accept that being available to return to the OR if needed while a patient is under general anaesthesia (which Dr Raiz maintains was always the case) is not the same as being present in the OR while the patient is under general anaesthesia (which Dr Raiz concedes was not always the case).
13. The 2020 allegations were that Dr Raiz repeatedly left patients under general anaesthesia for longer than the short breaks which the Board (and the Guidelines) accept may be needed in long surgeries (short breaks to go to the toilet or to eat something), or emergencies.
14. Four witnesses stated it was a regular occurrence and that patients were left unattended for periods between five and 40 minutes, and for reasons other than a toilet break. One witness recalled that Dr Raiz left the OR in order to carry out pre-surgery consultations for the next patient.
15. As submitted on his behalf, this is not a case about clinical expertise in the administration of anaesthesia, save for the single allegation about a near miss. Dr Raiz is, as submitted, an experienced anaesthetist and there have been no reports of adverse patient outcomes. For the purposes of immediate action, however, a risk does not have to materialise before action can be taken. At its core, immediate action under s 156(1)(a) of the National Law aims to prevent adverse outcomes occurring, including by acting to ensure unsafe practices do not continue.
16. We remain concerned that the material before us indicates that Dr Raiz failed adequately to deal with his fatigue and stress despite the risks to his patients (and the issue being previously raised in regulatory investigation), and that he prioritised patient turnaround over:
    • an orderly and appropriate pre-surgical assessment of patients (and acting on that assessment to exclude patients unsuitable for office-based anaesthesia), and
    • proper attention while they were under general anaesthetic, by staying in the OR with them.
17. We do not minimise the stress described or the pressures that Dr Raiz appears to have been under, but in the context of immediate action, these matters indicate to us an attitude to patient care that, of itself, presents a risk and supports our belief that the current supervision should remain in place.
18. While the supervision currently in place does not necessarily mitigate the risk that Dr Raiz will leave the OR inappropriately - we understand that the supervising practitioners are on-site but working in another room - it has the benefit not only of ensuring that another medical practitioner is on-site should an emergency arise but also provides an important accountability and oversight that would be absent if the supervision were removed.
19. Our belief, that the supervision condition remains necessary, was also strengthened by the similarities in what is alleged in this case and what was alleged in the 2018 notification and investigation, which we turn to now.

Similarities between the 2020 and the 2018 allegations and our views about risk

1. It is relevant to our decision about continuing risk that there are similarities in allegations made in 2018 about Dr Raiz' performance as an anaesthetist, and allegations made in 2020 at a different workplace, in particular, allegations that while patients were under general anaesthesia he had:
   • fallen asleep in the OR;
   • inappropriately absented himself from the OR; and
   • made and taken calls on his phone within the OR.[30]
2. Dr Raiz' responses in both cases also show concerning similarities. They include that:
   • in the case of the 2018 allegations, he attributes blame to the management of the hospital, and interpersonal conflict with senior management, although a range of hospital staff including registered nurses provided statements as part of the Barton Private Hospital investigation; and
   • in the case of the 2020 notification from an individual, he attributes blame to the notifier, a registered nurse, and suggests there were interpersonal reasons for the notification, although we note that the allegation of falling asleep was supported by video footage taken by another nurse. Other statements and photographs also supported the complaints Bupa found substantiated after interviews with several staff.
3. Again, we are not deciding whether these allegations are substantiated. The fact that similar allegations have been made (and investigated) at two different workplaces, however, is objective information relevant to an evaluation of the risk Dr Raiz poses.
4. We are also concerned by the fact that there are allegations of similar conduct occurring in 2020 after regulatory processes in relation to the 2018 allegations had concluded, with no action taken by the Board.
5. As submitted on behalf of the Board, the alleged repetition after regulatory attention in relation to similar conduct, provides stronger grounds for a view that positive action may be necessary, than might be the case where a single notification is made.
6. The locations of Dr Raiz's practice are also relevant. As noted earlier, we are not deciding whether office-based anaesthesia carries higher risks than hospital-based anaesthesia - important as that question is for patients undergoing lengthy procedures under general anaesthesia in a non-hospital setting. And we recognise that office-based anaesthesia has its own regulatory program under the Department of Health, including clinical audits.
7. We are assessing the risk posed by Dr Raiz to his patients and whether immediate action conditions need to remain in place. His practising environment is relevant to that assessment,[31] and to deciding whether the current conditions ought to remain in place in the relatively short time before the Board's investigation is concluded. For the reasons given, we consider that they should do so.
8. For completeness, we do not consider that remote supervision is appropriate in the circumstances, noting the expert opinions about the limitations of another medical practitioner being off site; nor that the supervision be limited to days on which Dr Raiz is administering general anaesthetic, noting that his practice is primarily doing so.
9. We recognise that the conditions have involved a financial cost to Dr Raiz's business. This is not the primary concern when immediate action is under consideration.

1. We consider that, in all the circumstances, the current conditions remain the minimum necessary to protect public health and safety.
2. For the reasons given, we have confirmed the decision of the Board to refuse to revoke or amend the current conditions on Dr Raiz's registration.

[1] As set out in the Schedule to the Health Practitioner Regulation National Law Act 2009 (Qld) and adopted in Victoria by s 4 of the Health Practitioner Regulation National Law (Victoria) Act 2009.

[2] As opposed to being elsewhere but available to be called into the OR.

[3] Referring to the observations of Dr Rosewarne in his second report, in June 2022, about the risks of the 'shared airway' scenario where the surgery is in the oral cavity, trachea or nasal regions, Tribunal Book (TB) 1068.

[4] The National Law as applied in each state gives jurisdiction to the relevant State Tribunal.

[5] With certain exceptions not relevant here.

[6] We understand from submissions that this decision was later withdrawn as part of a settlement of Dr Raiz' complaints about the process, under which Dr Raiz also withdrew his application for re-credentialling at the hospital.

[7] Tribunal Book (TB) pages 238 to 244.

[8] The short form of British United Provident Association used by that company.

1. [9] Potassium chloride can cause cardiac arrest if used inappropriately. The information provided by Dr Raiz was that he had pierced the skin with the needle but realised the error before the potassium chloride was pushed through the needle. He maintains he disclosed the incident to the dental surgeon, and there was no adverse impact on the patient.

[10] Additional supervisor reports were provided in later submissions to the Board from three other supervisors.

[11] Medical Board of Australia v Sami [2022] VSC 90 (Sami) per Cavanough J at [78].

[12] Paragraphs [12] - [13] Applicant's submission.

[15] [2021] VCAT 548 at [176]- [180].

[16] Referring to Shvetsova v Medical Board of Australia [2018] VCAT 867 at [33]; and Chow v Medical Board of Australia [2017] VCAT 1972 at [41].

[17] Referring to a submission by Counsel for the practitioner distinguishing stay applications from review hearings, where the Tribunal sits as a panel of three, two of whom are medical practitioners.

[19] [2008] VSCA 45; (2008) 19 VR 422 at [51] and [53].

[20] This is an issue yet to be determined.

[21] Dr Rosewarne referred to the usual indicator of minor surgery - that it took no more than an hour)

[22] These were Dr Rosewarne's answers to questions 3 and 4 in the letter of instructions.

[23] Our summary sets out Dr Rosewarne's answers to questions 3 and 4 in the letter of instructions to him, which he referred to as his answer in respect of the noted allegation.

[24] TB 292, referred to in the Board's submissions at [33].

[25] Underlining added, noting that the question before us is whether the requirement to have another anaesthetist onsite should be removed.

[26] Noting that Dr Raiz said he disclosed the error to the surgeon. The surgeon does not agree.

[27] Set out in detail in the written submissions.

[28] Board submissions at [33]-[35].

[29] For example, at pp 305 to 308 of the TB, where the opinion expressed included that an anaesthetist may safely leave the care of an anaesthetised patient with an anaesthetic nurse and dentist where there is a need, such as to 'facilitate efficient ;'turnover' of patients presenting for dental surgery, for example, preoperative assessment.

[30] Including, in the 2020 notification, intubating or extubating patients with the phone up to his ear.

[31] As one witness said, at TB 1140, there are a lot more eyes and ears in a hospital. Transcript of interview with the nurse who took the video of Dr Raiz sleeping.