Cases Cited: Health Care Complaints Commission v Phillipiah [2013] NSWCA 342
Ohn v Walton (1995) NSWLR 77
Source
Original judgment source is linked above.
Catchwords
Civil and AdministrativeTribunal Act 2013Cases Cited: Health Care Complaints Commission v Phillipiah [2013] NSWCA 342
Ohn v Walton (1995) NSWLR 77
Judgment (15 paragraphs)
[1]
INTRODUCTION
The Appellant is a registered Medical practitioner practising at the Rouse Hill Town Medical Centre as an independent contractor.
On 28 July 2014 the Appellant attended on a 17 years old patient ("Patient A"). Patient A presented to the surgery two days prior with a sore middle right finger. Patient A saw a different doctor at that time and the doctor examined the finger and prescribed antibiotic for the infection and also antibiotic for facial acne. Patient A was advised to return if the condition did not resolve.
Patient A returned on the 28 July 2014 and was seen by the Appellant.
Patient A is a transgender person, was dressed as a male and entered the practice using his male name. Patient A was biologically female and had made numerous enquiries of the practice, (not of the Appellant personally), regarding a change of gender. Patient A had been registered with the practice as a female with a female first name. At or before the consultation on 26 July Patient A had changed the registration to Male with a male first name.
What happened between the Appellant and Patient A in the course of the consultation is a matter of considerable dispute. However, Patient A complained to the police that the Appellant, among other things sexually assaulted Patient A.
The Medical Council appointed a Panel under Section 150 of the National Law and there was a hearing conducted by the delegates on 3 September 2014. In relation to complaints made by Patient A to the police.
The Panel in its decision of 3 November 2014 decided to impose the following conditions on the registration of the Appellant: -
Pursuant to section 150 (1)(b) of the National Law (NSW) the delegates imposed the following conditions on Dr Saedlounia's registration:
1. To not consult, treat, interview, examine any female patients and any transgender patients whether in his surgery rooms, hospital, nursing home, house calls, unless a Council-approved chaperone is continuously present.
1. Prior to any such consultation, treatment, interview or examination he must inform each and transgender patient or the parent or other adult carer of each female child patient of the necessity a Council-approved chaperone to be present at all times.
2. Tho chaperone must be a registered nurse, registered enrolled nurse or registered nurse practitioner who has been approved by the Medical Council of NSW and who is not a member of practitioner's family and who has no other personal association with the practitioner. The chaperone must be acceptable to Patient A.
3. If the practitioner is employed in general Practice, he must:
1. notify the principal of the practice and any other practitioner who may be working on site with him of these Practice Conditions; and
2. forward to the Medical Council of NSW within seven (7) days of 10 September 2014, or of commencing new employment, a copy of these Practice Conditions signed by each one these practitioners
3. prior to consulting, treating interviewing or examining any female and transgendered patients send to the Medical Council of NSW for its approval, a list of possible chaperones. Any chaperone that is not included on this list must be notified to The Medical Council of NSW and approved by the Medical Council of NSW prior to undertaking that role. Any approval shall be accordance with the current version of the Medical Council Chaperone Policy.
4. forward to the Medical Council of NSW within seven (7) days of the end of each calendar month a report listing all patients as described this Condition, who have been consulted, treated, interviewed or examined by him during the calendar month, in respect of each patient the date of every examination and the name or the names of the person or persons present throughout that examination. This report must include:
● printed notation of the names of each patient and the chaperone
● contemporaneous signature or the Council-approved chaperone and each adult patient the parent other adult carer of each female child patient
● date and time of each examination and
● all reports must be in the format set out in accordance with the current version of the Council Chaperone Policy.
5. If in the event of a medical emergency is not practical to obtain the services of a Council-approved chaperone, a chaperone is not required; however, any such event must be notified to the Medical Council of NSW and recorded in the of patients referred to in Condition 1(c)(iv). A medical emergency is an event where it is not possible or reasonable to have a patient with a serious or life threatening or urgent condition: seen by another medical practitioner or transferred to the nearest hospital.
6. to authorise the exchange of information between Medicare Australia and the Council where required in order to facilitate monitoring of compliance with these Conditions
1. Before he enters into any contract, arrangement or understanding with any person for his employment as a medical practitioner (whether locum or otherwise) or by way of partnership co-shareholder other joint venture in medical practice or for the use of any hospital, he shall provide that person with a copy of these Conditions. The Council is to receive written confirmation that notification has been made to the employer or, if he is engaged in any other practice, any subsequent employer.
2. He is to authorise that all chaperones understand the responsibility to present during all consultations, examinations interviews or interactions.
3. He is to authorise the chaperone to immediately inform the Council of any concerns that may arise in the course of undertaking the role of chaperone.
The delegates also referred the matter to the Health Care Complaints Commission for investigation pursuant to Section 150D of the National Law.
This was the hearing of the appellant's appeal against the decision of the Section 150 Panel
[2]
RELEVANT LEGISLATIVE PROVISIONS
Section 150 of the National Law provides:
150 Suspension or conditions of registration to protect public [NSW]
(1) A Council must, if at any time it is satisfied it is appropriate to do so for the protection of the health or safety of any person or persons (whether or not a particular person or persons) or if satisfied the action is otherwise in the public interest-
(a) by order suspend a registered health practitioner's or student's registration; or
(b) by order impose on a registered health practitioner's registration the conditions relating to the practitioner's practising the health profession the Council considers appropriate; or
(c) by order impose on a student's registration the conditions the Council considers appropriate.
(2) A suspension of a registered health practitioner's or student's registration under subsection (1) has effect until the first of the following happens-
(a) the complaint about the practitioner or student is disposed of;
(b) the suspension is ended by the Council.
(3) If a Council for a health profession is satisfied a health practitioner or student registered in the profession has contravened a critical compliance order or condition, the Council must-
(a) suspend the practitioner's or student's registration until a complaint concerning the matter is dealt with by the Tribunal; and
(b) refer the matter to the Tribunal as a complaint.
(4) A Council for a health profession may take action under this section-
(a) whether or not a complaint has been made or referred to the Council about the practitioner or student; and
(b) whether or not proceedings in respect of a complaint about the practitioner or student are before a Committee or the Tribunal.
(5) Without limiting the conditions that may be imposed under subsection (1)(b), a Council may impose a condition requiring the registered health practitioner to undergo a performance assessment, but the condition has no effect unless the Commission agrees with the imposition of the condition.
(6) A Council must give written notice of action taken under this section to the registered health practitioner or student concerned.
(7) If a Council delegates any function of the Council under this section to a group of 2 or more persons, at least one of those persons must be a person who-
(a) is not a registered health practitioner or student in the health profession for which the Council is established; and
(b) has not at any time been registered as a health practitioner or student in that health profession under this Law or a corresponding prior Act.
Section 41O provides:
41O Other matters to be taken into account [NSW]
In the exercise of any of its functions under Subdivision 2 or 7 of Division 3 of Part 8 with respect to a complaint about a registered health practitioner or a student, a Council must have regard to any of the following matters, to the extent the Council reasonably considers the matter to be relevant to the complaint-
(a) another complaint or notification about the practitioner or student made to the Council or the National Agency, or made to a former Board under a repealed Act, including a complaint-
(i) in respect of which the Council, the Commission or a National Board has decided no further action should be taken; and
ii. that is not required to be referred, or that the Council or the Commission decides not to refer, under Division 3 of Part 8;
(b) a previous finding or decision of a Council inquiry in relation to the practitioner or student;
(c) a previous finding or decision of a board inquiry, professional standards committee or a tribunal established under a repealed Act in respect of the practitioner or student;
(d) a written report made by an assessor following an assessment of the practitioner's professional performance;
(e) a recommendation made, or written statement of decision on a performance review provided, by a Performance Review Panel in relation to the practitioner.
Section 159 of the National Law deals with the right of appeal to the Tribunal. and provides:
59 Right of appeal [NSW]
(1) A person may appeal to the Tribunal against any of the following decisions of a Council for a health profession-
(a) against a suspension by the Council for the health profession under Division 3 or a refusal to end a suspension;
(b) against conditions imposed by the Council for the health profession on the person's registration under Division 3 or 4 or the alteration of the conditions by the Council;
( c)against a refusal by the Council for the health profession to alter or remove conditions imposed by the Council under Division 3 in accordance with a request made by the person under section 150I;
(d) against a decision by the Council for the health profession to give a direction or make an order in relation to the person under section 148E;
(e) against a refusal by the Council for the health profession to alter or remove conditions imposed on the person's registration, or to end a suspension, imposed under Division 4 in accordance with a request made by the person under section 152K.
Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 .
[3]
THE EVIDENCE
The evidence was:
1. Letter of 28 August 2014 from the Medical Council to the Appellant;
2. Bundle of documents prepared by the Medical Council for the Section 150 proceedings on 3 September 2014 comprising, -
1. an extract from AHPRA's Register;
2. Summary Statement from the NSW Police (email from detective Senior Constable Craig Sleigh);
3. Medical records of Patient A obtained by the Health Care Complaints Commission;
4. Complaint od the Ambulance Service of NSW;
5. Mentor's report;
6. Medical Tribunal of NSW decision of 21 June 2013;
7. Complaint of Bernadette Bruning (10 January 2012) and follow up documents;
8. Summary of concerns from Clinical Director, Dr. Glennys Dore, Herbert Street Clinic, St Leonard;.
9. Minutes of the Registration Committee and attached documents including report of Dr Kelly;
10. Good Medical Practice Code of Conduct for Doctors in Australia;
1. Statement of the Appellant provided in the Section 150 proceedings on 3 September 2014;
2. Transcript of audio proceeding on Section 150 hearing;
3. Statement of Ms Tian Feng Mel;
4. Statement of the Appellant of 18 December 2014;
5. Notice of grounds of appeal filed 19 December 2014;
6. Letter from Avant Law to the Medical Council of 2 December 2014 enclosing copy of appeal of 20 November 2014;
7. Section 150 Decision of 3 November 2014;
8. Descriptive audio recording of Section 150 hearing and the statement of Ms Tian Feng Mel 20 October 2014;
9. Statement of the Appellant made in December 2014;
10. External appeal filed 20 November 2014;
11. Oral Evidence and cross-examination of the Appellant;
[4]
SOME RELEVANT BACKGROUND
The Appellant was born on 11 September 1977 and is 37 years of age. He graduated in medicine and surgery in 2000 from the Islamic Azad University, Teheran, Iran.
In February 2007 the Appellant became registered as a Medical practitioner in NSW in the "Area of Need" category, to work with supervision for the Wellington Aboriginal health service. In May 2007 granted a Temporary Business (long stay) Standard Business Sponsorship Visa (457 Visa).
His Visa conditions constricted his Practice with a particular sponsor. He subsequently commenced working at the Wellington District Hospital. The Wellington Aboriginal Health Service was not providing the supervision required. These matters involved breaches of his Visa and of the conditions of his Medical registration. The Appellant was aware of these breaches.
In August 2008 the NSW Medical Board received a report from the Greater Western Area Health Service notifying of a number of complaints that had been made about the Appellant's management of patients at the Wellington Health Service. Dr Bernard Kelly prepared the report for the Health Service and it is dated 23 July 2008.
In his report Dr Kelly described results of investigation by him of various complaints about the doctor's work. His findings were:
18.1 incorrectly interpreted ECG as indicating myocardial infarct. Unable to admit he made an error. Patient poorly managed.
18.2 Alleged he whited out part of medical record. Unable to comment as he discarded original record sheet and inserted new one.
18.3 Patient had pain in left loin. Partial assessment only. No musculoskeletal examination. One off pain management including a medication that was not appropriate. No ongoing analgesia offered although patient was leaving the district.
18.4 patient managed satisfactorily.
18.5 Patient given morphine for migraine and sinusitis. "On the face of it the patient was given prescribed narcotic medication on patient demand. Not only that, narcotic analgesia is contraindicated management for migraine. Patient poorly managed.
18.6 Another patient given Morphine for migraine. "Dr Saedloounia ought to know that narcotics engender dependence in migraine sufferer and should be avoided." Patient poorly managed.
18.7 Child patient fell and hurt leg. No record of examination other than letter to the referral hospital saying "No significant tenderness was found on whole left lower limb examination. Then nurse wrote,"patient was very distressed crying when the leg was touched and reluctant to straighten leg." The nurse reported she asked another Doctor to review the leg after which patient was transferred to hospital. Patient Poorly managed by Doctor.
18.8 No decision made.
18.9 No decision but real doubt as to whether adequate analgesia for 30 minute surgery procedure.
18.10 patient 7 trs. Poorly documented examination. Antibiotics prescribed without obvious indication. An attempt to provide intravenous rehydration without either any attempt at oral hydration or the use of EMLA prior to attempting intravenous access. Oral hydration is always attempted in paediatric units prior to intravenous access if practicable.
18.11 No decision.
18.12 Can't be absolutely certain but the probability is that this patient was poorly managed.
18.13Patient presented with central chest pain. Observed for 1 hour. 2 ECG's done but neither labelled as to the time of performance. Tropin testing done once. No record of any examination and no effort seems to have been made to seek other causes of the chest pain. Patient poorly managed.
18.14 Patient presented with very severe headache not relieved with analgesics, photophobia, low grade fever and severe headache on flexion. Dr Saedlounia refused to attend despite repeated requests to do so. Totally unsatisfactory management by the practitioner. No record of her being adequately examined. No blood examination done. Gross negligence on the part of Dr Saedounia.
18.16 No decision.
18.17 Pain management on palliative care patient. Another badly managed patient.
18.18 Patient presented with palpitations. Doctor refused to see him. Then on the insistence of nursing staff he did and discharged him. No record made by doctor. No decision
18.19 Pain in Chest and abdomen. Patient also suffered Pancreatitis. Doctor recorded patient said pain was in abdomen. And no chest pain. Doctor "took ECG for her chest pain". No record of any examination of her cardiovascular system or abdomen. "Another unsatisfactory patient encounter."
18.20 No decision. Couldn't locate any record.
18.21 No decision. Couldn't locate any record.
18.22 Complaint by another doctor. No decision.
19.23 Child patient said to be dehydrated. Doctor cannulated without first offering either oral hydration or EMLA before cannulated. Doctor failed to address the matters of the complaint. Poor Management by Dr Saedlounia..
In the transcript of the hearing before that Tribunal there is a record of the responses of the Appellant to the various questions about the findings of Dr Kelly in his report.
The following are exchanges from the transcripts in relation to that aspect; -
DR WALKER: Then, as you say, the supervision wasn't available at Wellington so you were required to leave. There was an investigation undertaken by Dr Kelly into a number of complaints about your clinical care al Wellington Hospital.
DR SAEDLOUNIA: Dr Kelly came to Hospital because what happened at Wellington Hospital one night a patient came by ambulance to the hospital and I was the BMO that night. patient came by an ambulance and J tried to revive -patient had no vital signs almost and I tried to revive patient and to the best of ability I had. We did the ECG we checked the blood pressure, we gave oxygen. I decided to give him oxygen through the trachea, so I tried to put the tube in the trachea. I tried twice. It didn't go in. I quickly asked the nursing staff to call another doctor to come and help.
A lady doctor who was another BMO of the Hospital attended and she tried to put the tube in the trachea and I could still see that air was going to his stomach and his stomach was - - -
DR WALKER: I think Dr Kelly's conclusion with respect to that was that he couldn't make a conclusion, but there were about 20 other cases that he was asked to look at that he came back with quite a damning opinion. What's your response to his criticisms? They were criticisms of clinical practice. They were criticisms of trust. They were criticisms of attempts to deceive in of perhaps whiting out notes. One of the cases there was a concern that you'd whited out some notes.
DR SAEDLOUNIA: Well, we write out notes a lot.
DR WALKER: No, with white out. With - what do you call it?
DR SAEDLOUNIA: I know what you mean, something you - - -
DR WALKER: It's illegal to white out notes. Anyway, your response to Dr Kelly's criticism. They were quite damning criticisms
DR SAEDLOUNIA: Well, Dr Kelly cam because the Hospital asked an opinion and he came as a person to decide because his respectful opinion -I respect his opinion about what he criticised about me. Some of them could be true. So, anyway after just - I got (indistinct) it was my first experience in Australia. For example, in Iran whiting out notes is not illegal. If you make a mistake instead of crossing them you just put while out because always you can scratch them and words underneath that, so, if I make mistake, if I made mistake then I crossed it out and Dr Kelly didn't like it. It was an opinion from him and I respect his opinion. He had a Lot of opinions. For I had a patient who had migraine and I gave, I think, something with codeine and he said that you cannot give codeine to a migraine patient. First of all for ongoing treatment not good that you exposed patient to codeine, for one at hospital doesn't respond to any medication. There is a place to give codeine if Patient headache is not responding.
DR WALKER: What did you learn out of Dr Kelly's report?
DR SAEDLOUNIA: Well, what I learnt from Dr Kelly's report was good team work. All happened, all was criticised because there was poor team work at the Hospital. For example, that codeine issue to the migraine patient wouldn't be a problem but because there wasn't good team work in the Hospital, it all became criticised. I even didn't respond to any of these comments because I have no choice to leave the town. Soon after that I was in the challenge of finding a supervisor for myself and I had no choice to leave town. I had expenses, furniture, rent, rent agreement and I couldn't afford them without working there and I had a contract for two years of rent I had to leave because the Medical Board decided that I had to have an on-site supervision.
So I was in the challenge of finding someone to supervise me at the same time Dr Kelly gave those comments, so I had choice to leave the town.
DR WALKER: And then there was the Carrington Centennial Care providing services at the Grasmere Aged Care Facilities outside your registration conditions
DR SAEDLOUNIA: Sure.
DR WALKER: Your response to that?
DR SAEDLOUNIA: I have responded to all of these questions at the Medical Tribunal last year but if you're interested to hear again from me, sure I can answer your questions. Yes. Would you like me to answer it?
[5]
At the hearing before this Tribunal, there were further questions asked of the Appellant regarding Dr Kelly's report. (He had the report in the witness box.) He was asked about the findings in the report at page 2 in relation to a specified patient and said "I don't recall that allegation". He said that he did recall "the particular occasion" and he did recall whitening out some of the medical record. When he was asked if he ever thrown out a medical record and replaced it, he answered "I don't recall". He said "I know I had a fresh consultation report". When he was asked about complaint 3 in the report of Dr Kelly, he said he couldn't recall the complaint. When he was asked if he had ever done what was alleged, he avoided the question. It was not until he was directed to answer the question and it was repeated, that he denied allegation,
When he was asked questions about "patient five" in the report he said he couldn't recall Patient. He was asked whether he had ever prescribed narcotics for migraine headaches and his answer was "I don't recall". He said he had no recollection when he was asked about patient six. In relation to patient seven he conceded that there was no record of him having conducted an examination of the patient. He said he couldn't recall the complaint and he didn't recall failing to keep a record of his examination of Patient. He said there were no circumstances now where he doesn't keep such a record.
In relation to complaint ten he said he didn't recall that complaint. He was asked whether he could recall an incident where he prescribed an intravenous intervention when oral hydration might have been acceptable. Said he couldn't remember any such case. In relation to complaint 23, which was similar, he said "I don't remember this or Patient A." when he was referred to complaint 13 he said "I don't recall that one." When his attention was addressed to complaint 15, it was put to him that there was no record of any physical examination of the patient. He avoided the question and said "I don't recall that". His attention was drawn to complaint 17 which related to medical records. When he was asked what progress he had made with medical records since 2008, he said "I'm more diligent with my records. At that time they were paper. Now there is good reporting and I am practising good recording. I believe I have made great progression towards improvement."
He conceded an answer to a question that he has "quite a history of complaints regarding failure to make records". He conceded that there were also complaints about this aspect in Doctor Dore's letter.
On 19 August 2008 NSW Medical Board Reregistration Committee declined the Appellants application for An Area of Need position at Western Plains Medical centre, Dubbo. On 21 July 2009 the Medical Board Registration Committee considered his application for a position as a Senior Resident Medical Officer in Addiction Medicine at the Herbert St. Clinic and exemption from the English Language Proficiency requirement. The application was approved subject to formal reports provided on the quarterly basis to be reviewed by Delegates.
The Appellant completed a dermatology qualification in the UK in 2009.
On 1 September 2009 the clinical director at the Herbert St Clinic and the Appellant's Supervisor wrote to the NSW Medical Board advising that because of the Appellant's Visa issues he was stood down on 7 August 2009. The Clinical Director of the Herbert St. Clinic also raised concerns about the Appellant's Practice (poor clinical management) and his applications to Practice in Tasmania.
Notwithstanding those events, from 3 November 2009 the Clinical Director of the Herbert St. Clinic notified the NSW Medical Board that the Appellant would be returning to the Herbert St Clinic on 9 November 2009.
On 17 November 2009 the Clinical Director of the Herbert St. Clinic spoke to the Medical Board and advised that she had recently received notice that the Appellant had been practicing in a private clinic (Worksafe Medics) in breach of his registration conditions. She also advised the Medical Board that there had been some serious matters since his return to work - inappropriate accusations and inappropriate prescribing.
Three days later on 20 November 2009 the Clinical Director of the Herbert St. Clinic wrote to the Medical Board notifying concerns of the Appellant in relation to dishonest behaviour, inappropriate prescribing, failure to record accurate discharge summaries, poor admission assessments and errors in treatment charts and file notes.
Dr Glenys Dore is the Clinical Director or Northern Sydney Drug and Alcohol Services, which included the Herbert St clinic. Her concerns about the Appellant's professional conduct at the clinic in the periods 27 July 2009 to 7 August 2009 and 9-11 November 2009 were:
Concerns from 27 July 2009 to 7 August 2009
Professional behaviour concerns
A complaint was made by one of the nursing staff about Dr Saedlounia's behaviour in relation to a patient who had decided to leave the unit that morning Dr Saedlounia was asked to review the patient to determine that he was medically safe to be discharged. (Another staff member witnessed this discussion). Dr Saedlounia left the office and on his return was asked if he had seen the patient He said. "Yes, I've seen the patient". The nurse later noticed be had not written up his review in the patient's notes and asked him to do this. He subsequently reported that he had seen the patient and waved goodbye to him as he left the unit, but did not in fact assess him.
When Dr Dore raised this with him on his return to work, he said the nurse never asked him to review the patient Dr Dore advised him that this was untrue; and that if he was asked to review a patient, he should do so and not mislead the staff about it.
Dangerous prescribing
One of the senior nurses on the unit formally complained to the Nurse Unit Manager (NUM) about Dr Saedlounia's prescription of anginine for a patient with chest pain. Dr Saedlounia had prescribed anginine to be given to the patient every 5 minutes, with no maximum amount. If the medication had been given as prescribed, the patient would have developed a state of cardiovascular collapse. The NUM intervened and asked Dr Saedlounia to cross out the prescription.
Dr Dore did not have the opportunity to discuss this with him until his return to work He was shown a copy of the treatment chart and asked to explain his prescription. He said there was no problem with the prescription because the patient was going up to the ED in 15 minutes or so. Dr Dore said this was not acceptable, as significant delays often occurred with patient transfers. Dr Saedlounia said he wasn't that familiar with hospital treatment charts and needed more training. Dr Dore indicated the issue was not to do with the use of hospital treatment charts, but of writing an unsafe prescription. Dr Saedlounia said he crossed out the prescription and she could see that on the chart. Dr Dore reminded him he crossed it out at the instruction of the NUM. He eventually acknowledged that he had written an inappropriate prescription which could potentially have harmed the patient.
Discharge summaries
A number of Dr Saedlounia's discharge summaries had significant errors and omissions which had to be corrected by Dr Dore. These included:
incorrect discharge medications;
failure to include relevant blood test results in patients with significant medical issues (eg. leaving out liver function tests in patients with alcohol dependence; leaving out FBC results in a patient with a history of macrocytic anaemia);
writing that a patient had no history of suicide attempts when the notes clearly indicated the patient had a history of attempted hanging;
at the end of each discharge summary the doctor indicates who should receive a copy of the summary. For one patient he listed the parents and siblings should be sent a copy of the discharge summary.
On his return to work, Dr Dore provided him with copies of his summaries, highlighting the errors/omissions and providing him with a copy of the amended summaries for his reference. He acknowledged the mistakes made, including the inappropriateness of sending a discharge summary to family members.
Application for other positions
Dr Saedlounia was stood down from work on 7 August because of an invalid Visa. On 31 August 2009, Dr Dore received a telephone call from a General Practitioner in Tasmania. She advised that Dr Saedlounia had applied for positions in two practices considered as Areas of Need practices. Dr Dore indicated she was unaware he had applied for other positions and had nominated her as a referee. Dr Dore advised that he had conditional registration and was not permitted to work anywhere else apart from the Northern Sydney Drug & Alcohol Service. Dr Dore was concerned that he might attempt to -jump ship" without arranging the appropriate registration. She subsequently notified the Medical Board about this contact and about her concerns regarding his professional performance during his time at the unit.
Dr Dore advised Dr Saedlounia of her notification to the Board and spoke with him soon after. Despite the evidence, he denied applying for jobs in other places. When Dr Dore challenged this statement as being untruthful, he then admitted applying for jobs elsewhere but said he was trying to set something up for 12 months down the track, when his employment with the D & A Service ended. Dr Dare's view was that the veracity of this statement appeared extremely doubtful.
Concerns since Dr Saedlounia's return to work from 9-19 November 2009
Since Dr Saedlounia's return to the unit on 9 November, multiple concerns have arisen about his clinical performance, his clinical his communication skills and his truthfulness.
Admission assessments
Dr Dore noted that Dr Saedlounia's admission assessments did not include a psychiatric history, despite the unit being a mental health unit, and despite training when he first joined the service. Dr Saedlounia was advised he must include this, and was informed about the information required for such an assessment. His Mental State Examinations were also missing essential information and he was given feedback about this. However the quality of his assessments remained poor, being well below the level of fourth year medical students attending the unit. On 16 November, Dr Dore advised Dr Saedlounia that he should leave the reviews of psychiatric history and mental state to the psychiatry registrar or consultant given that this is a specialised area and he had not had specific training in this area since he was an intern. After a discussion with the registrar on 17 November, it was determined Dr Saedlounia should no longer do admission assessments, because of concerns about the quality of these assessments, but would be asked to focus on the patient's medical history, physical examination and the investigation of significant medical problems.
Communication
One of the nurses noted that communication with Dr Saedlounia appeared problematic: she reported that he often appeared to understand what was discussed but it later became apparent that this was not the case.
Another staff member raised concern about his bedside manner during a physical examination. While the patient mentioned problems with her finger and concerns about her bilateral mastectomy several times, Dr Saedlounia appeared to be focused on his paperwork. He then proceeded to ask the patient questions about the physical problems she had already described, as if he had not listened to anything she said previously.
Inappropriate prescribing
The registrar on the unit advised Dr Dore that on 13 November Dr Saedlounia had charted buprenorphine (an opiate) for a patient who came in to withdraw from cannabis. the patient was not an opiate user. Nurses alerted Dr Cocks who spoke with Dr Saedlounia and had the treatment chart rewritten. When Dr Dore asked Dr Saedlounia why he had done this, he stated that he thought marijuana was an opiate. Despite being provided with a diary-size summary of the clinical practice guidelines for withdrawal management during his initial orientation in July, Dr Saedlounia had not referred to these guidelines.
Mistakes on treatment charts
Dr Dore spoke with Dr Saedlounia about not filling in the Adverse Drug Reaction section of a patient's treatment chart on 11.11.09 and advised this must be done for each patient. Dr Saedlounia has stated that he should have had more training in writing hospital treatment charts, but was given this training when he first worked in the service from late July.
On 13 November, the registrar on the unit expressed concern about the mistakes on Dr Saedlounia's treatment charts, particularly the misspelling Of medications. He noted that Dr Saedlounia did not look up medications or discuss their spelling with other staff when he was unsure, but seemed to guess the spelling. Dr Dore also noted spelling mistakes on treatment charts and discussed this with Dr Saedlounia. While this is more understandable with medications he is unfamiliar with (e.g. spelling Acamprosate as Accamprostate), she advised him the onus was on him to ask others if he was unclear of the spelling or to look it up in MIMS. Dr Saedlounia said it would not happen again. However, ongoing spelling mistakes have been noted with medications Dr Saedlounia should be very familiar with having worked as a General Practitioner (e.g. spelling amoxycillin as amoxicilline; penicillin as penicilline). While on their own these mistakes might not be cause for concern, given the breadth of concern regarding this senior doctor, they appear more noteworthy.
Incorrect file notes
In reviewing a patient's file, Dr Dore noted Dr Saedlounia had written a file note in the wrong patient's file. The note also misrepresented the clinical situation:
On 17.11.09 Dr Saedlounia wrote, "GTT (Glucose Tolerance Test) was missing) supposed to be done as I had ordered it. It seems that the difficulty the staff had with special GTT preparation, this test has not performed and Dr Dore knows this fact" The note was written in patient KS's file but should have been written in patient MK'S file.
The GTT was deferred for a number of reasons related to the patient, not the staff. Patient MK has chronic paranoid schizophrenia and is treated with olanzapine which increases appetite and blood sugars. He had had some elevated random blood glucose readings and a fasting blood sugar was also elevated. Dr Saedlounia ordered a GTT test, which was a reasonable decision. However, the test required a special diet for three days and it appeared highly unlikely the patient would comply with this diet. The requirement for him to attend the laboratory to do the test over several hours also appeared difficult to meet because of his psychiatric condition. Discussion with nursing staff revealed that the fasting blood sugar taken was probably inaccurate as the patient had eaten food and consumed fluids prior to the test, despite education and supervision from staff. A decision was made, in consultation with Dr Dore, to perform further fasting blood sugars, attempting to provide greater compliance by the patient, and to defer the GTT.
A staff member expressed concern about Dr Saedlounia's documentation regarding a patient who had had a bilateral mastectomy. She reported that while Dr Saedlounia had examined the patient and noted the presence of a portacath (for administration of chemotherapy); this was not documented in the notes. Review of the file confirmed that the presence of a portacath was not documented and there was no discussion about management of this, given that chemotherapy has been withheld from the patient due to poor compliance.
Patient DK
On Thursday 12th November, Dr Saedlounia approached Dr Dore for advice about patient he'd admitted to the unit (DK). He reported DK had been a paedophile when he was in Germany 30 years ago. He was unsure whether there was an ongoing risk. When asked what he meant by the term paedophile, he said that the patient reported having sex with children. When asked what age group, he stated 10 year old male children. When asked what kind of sex, for example, was it anal intercourse, he stated. "Yes, rectal intercourse." - Dr Dore advised that the patient would need a detailed risk assessment carried out by a psychiatrist, and this could be carried out by Dr Juckes the next day. The patient had no access to children on the unit and there were no acute safety concerns evident.
Dr Saedlounia advised he had asked the patient about his 'sexual desires" and sexual preferences. When asked why he did this, he said he was exploring issues around safe sex and his Hepatitis C status. Dr Dore advised it was inappropriate to ask patients about "sexual desires" on the unit, and he should avoid this in future. However, questioning around safe sex was appropriate.
Dr Juckes and Dr Saedlounia met with the patient on 13th November. The patient was in opiate withdrawal and was irritable. Dr Juckes conducted a detailed psychiatric review, and was unable to elicit any information about paedophilia despite many open-ended questions which provided an opportunity for him to outline these concerns. Some of these questions involved gentle exploration around the area of sexuality.
On Monday 17th November, Dr Dore reviewed with Dr Saedlounia what the patient had told him. He said he asked DK if he had a preference to have sex with males. He reported that DK said, "Not really; just children" and that it was 30 years ago in Germany. He then asked him which age group and DK said "10 to 12: that sort of age". DK allegedly said it was a long time ago and hadn't happened again. Previously Dr Saedlounia told Dr Dore that DK reported having rectal intercourse with these children. On 17 November he denied this and said the patient told him he had sex with children, but not what type of sex.
Dr Saedlounia commented that during the interview with Dr Juckes, DK said he used to take 20 deutschmarks from West to East Germany, hidden under his collar (because it was more than was legally allowed). He commented that this amount of money could "make a lot of children happy". Dr Saedlounia thought it meant that he was paying children for sexual experiences. He thought Dr Juckes could have explored this comment further but didn't- When Dr Dore spoke with Dr Juckes, she had a very different interpretation of this comment. She advised that the patient said that when he left East Germany he often had East German deutschmarks left over, and they had no value in West Germany. He would give them away to children and others which made them happy. Dr Dore reviewed the patient on Monday 16th November and again on Tuesday 17th November, when his mental state was stable. During the second review, she asked if he remembered the questions Dr Saedlounia had asked him at assessment about his sexuality. The patient recalled the specific questioning about his "sexual desires* and sexual preferences, which he thought was odd. He said that Dr Saedlounia seemed focused on whether he was homosexual or not. DK advised him that he wasn't gay; his relationships have been with women. He said he told Dr Saedlounia he went to some gay bars in Berlin when he was 17 and checked out some of the older guys there, but it wasn't for him. He was asked if there were any other questions he remembered or any other comments he had made to the doctor. He said Dr Saedlounia asked him if he had had sexual relationships with older males, which again he thought was inappropriate. He said no, he wasn't gay. When asked if any other comments were made. he said he made no other comments to the doctor.
Further questioning revealed that when he was 11 years old. DK had been approached by a local neighbour who was a professor and known to be homosexual. The professor unzipped his trousers in front of him (The patient was in a park or near the beach alone) exposing his erect penis and said he would pay DK money to touch him. The professor was not violent or threatening and he said he had not been harmed by the experience. DK reported had taken the opportunity to earn some extra money by touching the professor, but no other forms of sexual contact occurred. DK said he had not disclosed this to Dr Saedlounia.
Dr Dore apologetically indicated she needed to ask some more specific questions, because of the seriousness of the situation, and because support and treatment was available should he require it She then asked him specifically about the concerns Dr Saedlounia had raised, namely that he reported having sexual relationships with 10 year old boys when he was in Germany 30 years ago. The patient was shocked and enraged, saying that he never made those comments, and that Dr Saedlounia was a liar. He was highly distressed by these accusations, and unable to comprehend how Dr Saedlounia could say these things or draw these conclusions. Dr Dore stated her opinion, which was that Dr Saedlounia had somehow misunderstood his conversation with DK. and perhaps this was due to difficulties with language DK said that he felt sorry for him for making these kind of statements.
In a meeting that afternoon with Dr Dore, Robin Murray (NUM. Herbert St Clinic Detoxification Unit), DK and Dr Saedlounia, the patient remained agitated and enraged by the accusations made, repeatedly calling the doctor a liar and threatening to sue him. While Dr Saedlounia subsequently apologised, he maintained the patient had reported having sex with 10-year-old children.
Evidence of medical practice when unregistered and in breach of conditional registration
While he was stood down, a number of blood test results arrived at the Herbert St Clinic Detoxification Unit with RNS Hospital on them as well as Dr Saedlounia's name. They were not for any patients in the Drug & Alcohol Service where he was employed.
When Dr Dore spoke with Dr Saedlounia about the blood tests on 17.11.09, he said that he had been working at a private Occupational Health & Safety
service when the tests were taken in October (during his stand down period). He said he had been seeing patients as a Medical Practitioner, assessing them, ordering investigations and treating them. Dr Dore told him that this was not permitted; that he was working outside his conditional registration and she would have to notify the Medical Board. He said that he had worked for this same organisation after leaving Wellington Hospital and that he worked there when he was unregistered. He said that he assessed and treated patients as a Medical Practitioner, despite being unregistered. He said the Medical Board knew about it and thought it was OK. Dr Dore said that would not be the case, and he could not work as a Medical Practitioner when he was unregistered. He said that he sent an email about it to Dr Dore and the Medical Board; that they somehow knew about it and had accepted it. Dr Dore said that was not the case; that she knew he had worked in the OH&S facility but she understood this was in an administrative role. (The name of this business is Worksafe Medics, in Sydney. Dr Mike Shenoda is the occupational Medicine Specialist there; ph 9896777).
Review of the blood tests results revealed that The patients were in their 80's and 90's and the address documented was Grassmere Terrace, Camden. An internet search revealed this is an Aged Care facility. Dr Dore subsequently asked Dr Saedlounia why he had informed her that he was working in the OH&S facility when in fact the blood tests were taken from an Aged Care facility. He denied saying this. He said that had sought work outside his conditional registration when he was stood down from the hospital because he needed money to support himself and his family. He was again advised that this placed him in breach of his Medical Board registration and was a very serious matter.
Dr Dore contacted the aged care facility on 19.11.09 and spoke with the Residential Care Manager. She reported Dr Saedlounia was still working for them and they hoped he could increase the number of shifts he was doing. They were unaware that he was working outside his conditional registration and that this meant they would be uninsured if any adverse events occurred.
Looking at his Visa conditions, it appears that Dr Saedlounia has also been in breach of his Visa by working outside the position supported by the sponsoring employer. The document indicates there may be serious consequences to him breaching these conditions, including possible cancellation of his Visa.
The complaints made by Dr Glenys Dore were raised with the Appellant in the Section 150 hearing in September 2014. A Questioner said to the Appellant, "I'm just a little bit concerned that everyone else is to blame. Dr Dore is to blame." (Dr Dore was the complainant in respect to the complaints about the professional conduct of the Appellant at the Herbert St Clinic). The Appellant then responded: "I'm not blaming Dr Dore. I'm just talking about the facts. I'm respecting Dr Dore very much because she taught me things. Dr Dore opened a window for me to get my registration back. Dr Door is a very, very respectful psychiatrist. I respect her very much. I'm not blaming her at all. I'm not just saying what I did could make Dr Dore reactive and that is natural. I could have been myself in that position. I found a doctor to work for me now he is just - before he finishes even since months he wants to leave, so.. The Appellant did not respond to the question about the way the Appellant had responded/not responded to complaints of the nurse who was present during that procedure.
The transcript of 3 September 2014 includes the following:
Dr Dian Walker: Dr Dore has written quite damning criticism on number of fronts in term of clinical skills, communication skills, in terms of issues of honesty as well. Would you like to respond to her complaint, her letter, which was included in papers that you have received? They don't read like a doctor who's recommending you to be a psychiatrist?
Dr Saedlounia: Well, I haven't read that. Sorry?
Dr Dian Walker: They don't read like someone who would then - and the reason you have to leave is wrong.
Speaker: I thought I heard you say Dr Saedlounia that you hadn't read this document?
Dr Saedlounia: Well, not completely, but I can respond to that. Dr Dore did not like - after she recruited me the mistake I made, I applied for a few jobs because I was in the process of applying for a jobs. I had no registration for a couple of years. My registration was cancelled because I could not find a supervisor.
The underlying issue was that Dr Kelly's report or other issues, that at the end the Board was happy to recruit me if I had a supervisor.
Dr Walker: Dr Dore ultimately said that if you didn't leave she would withdraw her supervision. Have you read behind the tab 9?
Dr Saedlounia Sure. Even if she said that, well, at that time I was applying for many positions to get my registration back and work. Apart of working in Hospital, I was applying for many, many positions. I worked with the Psychiatry Register or RMO although the psychiatry wasn't my type of work. There was a window for me to get into the Medical Community again because I was away from it for two years and Dr Dore was kind enough to open that window to me.
Dr Walker: And she started pretty quickly?
Dr Saedlounia: Because she received couple of phone calls from other practices. GP Practices contacted her saying, "Saeid wants to come and work with us ". She would say, "Applied for the job and he honestly mentioned that he works for you. How do you think about this, Doctor?" She was very angry because I was leaving the position she's offered to me, or in the process of leaving.
Dr Walker: I think her concerns about your practice were more broad than that, or your behaviour, or if you go behind the tab 9, she talks about professional behaviour concerns in terms of not assessing the patient, when you've been asked to assess the patient they went home, in terms of that concerns about your prescribing skills, in terms of concerns about your discharge summaries and then she also talks about the applications for other positions that your registration wouldn't allow you to work under. Your admission assessments weren't adequate. That your communication skills in terms of dealing with patients weren't adequate. Mistakes on treatment charts. Incorrect File Notes. Then she comes to the particular concern that she had about patient who you claim had told you he was a paedophile.
Dr Saedlounia Could I answer the question?
Dr Walker: Yes,
Dr Saedlounia Well, I'm surprised that within three weeks she came to these conclusions, but I respect her…. .
Dr Walker: Have you read this question? Was in the papers that were suppled to you
Dr Saedlounia: I remember if from the time it was there. Well, in three weeks of working there I'm very surprised that the Doctor has that ability to understand that I'm weak in all the areas she mentions. Previously she was highly talking about me to the Medical Board. She changed her mind soon after she received the phone calls from potential employers that wanted to employ me. But anyway, anyway, I respect her ideas, her opinion , her letter and I have worked on that. I've worked on my weak points time I didn't work for her. Patient of paedophile case, of course, patient told me that , when I was young and I was in East Germany we used to be with a little boys, of course this is a public risk and had to notify Dr dore about it. I didn't write to the newspaper or to the Court or to the radio, to the TV Broadcast. I just mentioned it to my supervisor. I think I did the best to do that. A man said that he had relationship with the young boys when he was in West Germany, could you take an action? She went and interviewed the patient. She came to conclusion as a psychiatrist that this man is not a paedophile. I did my bit. My responsibility was to notify the health that hearing from the man saying that he was with young boys when he was young and this is risk to the community if I don't report it.
[6]
On 23 November 2009 the Appellant's registration attached to his position as a Senior Resident Medical Officer in Addiction Medicine at the Herbert St Clinic was cancelled as he had resigned from the position and his supervisor indicated that had he not resigned, she would have withdrawn her supervision.
The Appellant did not otherwise provide, as far as the Tribunal is aware, any further response to the report by the NSW Medical Board by Dr Dore on 20 November 2009 until this hearing.
In this hearing his attention was drawn to Dore's letter. In relation to the incident under the heading "Professional Behaviour Concerns" He said he could not remember being requested to view the patient and determine that he was medically safe to be discharged. In relation to the item "Dangerous Prescribing" he said he couldn't recall all the incident but he denied it.
When his attention was drawn to the Section of the letter "Discharge Summaries" he denied that he had given incorrect discharge medications and said he couldn't recall relevant blood results for a patient with significant medical issues. And he couldn't recall writing that the patient had no history of suicide attempts, when the notes clearly indicated that the patient had a history of the attempted hanging. When asked his response to the section "Admission Assessment" he could not recall any such occasion. Then he said that it was possible that he failed to do mental health/psychiatric assessments. With regards to the concerns expressed by Dr Dore in her letter regarding his communications, he said he didn't know why the allegation in the first paragraph would be made, he couldn't recall any such a incidents Regarding those described at the beginning of the second paragraph. He denied any "problems" with listening to what patients tell him during an examination.
In regards to the section of the letter headed "Inappropriate Prescribing", he said he could not recall any such incident and that he knew that an opiate was not appropriate as cannabis is not an opiate.
In regard to the allegations in the section of the letter headed "Incorrect File Notes". He was asked to read that section of the report. He said he did not recall any occasions where he had misspelled medications and did not recall any occasion when a patient's report was put in another patient's file.
Regarding the section of the report concerning patient DK, he said when he was interviewing the patient, The patient gave a history, including that when he was in East Germany he had " better fun" and then said that when he was there he was "in contact with young boys". He said that he then went to see Dr Dore and reported the matter to her. He asked her whether he was responsible to report it to someone. Further in his cross-examination, he said that the man had actually told him he had "sexual contact" with young boys. He said that he had also then questioned the man about the age of the boys, and the man said "teenagers".
He said subsequently that on the same day Dr Dore had taken him to her room and the patient was seated there. Doctor Dore confronted him about the allegations he made about the patient. She told him that the patient was very upset at the statements I had made about him. He said that his understanding was that "I needed to report it to someone"
It was put to the Appellant in cross-examination 'The issue was that he allegedly had sex with teenagers?" And he responded "as soon as I heard him saying that he had …. Sexual contact with the teenagers when in East Germany"
In relation to the material in paragraph 6 of Dr Dore's report, he said his recollection was limited to what he already said, he didn't recall other conversations about Patient A taking money for sexual contact with a professor. "Patient A was telling me about his history and his life. He volunteered; he wasn't there for sexual problems. Maybe a D&A problem. I didn't know Patient A at all", When he was asked whether he thought Patient A would be coming to the Drug and Alcohol Clinic for advice about safe sex or sexual problems, he said he did. He denied the proposition that it was curious that he took and recorded an account of the person's sexual desires and preferences, which was not about the patient's health. He responded "No, I was taking history". In relation to the allegation that he asked the man about his sexual preferences, he said" I had to ask, it wasn't the part of the form'
On 24 November 2009 the Medical Board referred a complaint to the Healthcare Complaints Commission based upon concerns about the Appellant's competence, dishonesty and possible breaches of the conditions of his registration and about him practising at locations other than those for which he had been given Medical Board approval. The complaint subsequently lead to proceedings by the Commission against the Appellant in the Medical Tribunal
On 1 December 2009 the Appellant obtained "Area of Need" registration in Wodonga, VIC. On 1 June 2011 the Appellant became a Fellow of the Royal Australian College of General Practitioners.
The Appellant commenced Practice at the Rouse Hill Medical Centre
On 12 March 2013 a complaint about the Appellant was referred by AHPRA Victoria regarding issues of clinical care - an allegation that he performed an excision of a facial skin lesion in an inappropriate setting.
The complaint was received from a nursing sister, Ms. Bernadette Bruning, who had worked in the Elwood Medical Centre Wodonga, the Medical Practice where the Appellant was then working. The Appellant as a general practitioner, was undertaking excisions of skin cancers in a Treatment Room at the Medical Practice. The complainant was the nurse who assisted the Appellant in these procedures. The patient to which the complaint related was a relative of the nurse. He was 69 years of age and had had previous excisions of skin cancers.
The nurse had not been present during the initial consultation for skin/health assessment and explanation of the procedure. The surgery was to be a 22mm excision from the forehead. The nurse complained that the Doctor excised an area of 20mm x 3mm deep on the forehead right of the centre and then was unable to draw the skin together to form wound closure. The nurse was swabbing up excess blood. She alleged that he extended the incision lines across the forehead to form a "H" flap approximately 5 cm either side of the initial excision, but the Appellant was still unable to cover the excised area with skin and further extended the incision lines to a total length of approximately 13-14cm across the forehead and approximately 1cm incision top and bottom of the original excision. The nurse recorded, "Dr stated difficult to lift skin due to existing fibrosing in area. While he was extending the excision extensive blood loss occurred "either from cutting or bursting of a blood vessel causing an arterial spraying of blood covering the Treatment Room walls, floors, doctor, nurse, the patient's wife (who was seated in the corner of room) 60+cm away. Single use cautery used to stem blood flow. 8 to 10 packs of sterile gauze and sterile towels used with pressure applied by doctor and nurse. Doctor proceeded to suture wound using 2.0 nylon (R packs) demis and 4.0 nylon for epidermis (4 packs). Patient wound dressed using multiple layers of interpose and crepe bandage. Doctor prescribed antibiotics. Patient went home with wife, review appointment made for 2 days' time." The nurse also alleged that she cleaned the area of the Treatment Room using "Senidef" and the clean-up was incomplete when the doctor presented the next patient for the next procedure despite protests from the nurse.
The nurse expressed concerns that the facilities were inadequate for such procedures. Her previous expressions of concerns had not been heeded. She reported that the doctor had previously chastised her for making a fuss for reporting incidents. She said that the doctor had requested another nurse after her first reporting, but the other nurse had then resigned. She said that she was then returned to assisting in the Treatment Room and was concerned about the limitations of her training for that role. She complained that the doctor had denied her access to support staff on the day. She gave her resignation verbally to the Practice Manager the following day.
When in the Section 150 hearing the Appellant was asked about his views of the appropriateness of taking the lesion off in a General Practice with only an enrolled nurse as an assistant and also the appropriateness of his response to the nurse when she became distressed by what had happened, his lengthy response did not address the question. He talked instead about the history of the nurse having been appointed to help him with skin lesion excisions, the fact that she had been assisting for at least a year, the decision to appoint Ms. Bruning, the fact that the patient was a relative of hers, the fact that he had seen the patient and had agreed to do the incision at the request of the nurse, his experience in doing excisions, the fact that he was leaving the Practice, and (he said) the nurse was then at risk of losing her job because she had been appointed to assist him. He also said "and because of this ongoing excision work by the Practice, so I became famous in that area so I'm generating a good amount of money to the Practice so the Practice wasn't happy for me to leave because [my] name in Wodonga was generating money from a skin cancer point of view. And they had asked me many times not to leave".
At that stage the questioner again tried to get the Appellant to focus on the operation and what happened. The Appellant's response then was "indeed, I believe it went well. The patient was very happy. The patient sent me an email appreciating my job. The patient was very happy. I was very happy. The patient's wife was happy. The nurse was unhappy and she had done such a procedure previously with me, so the outcome of the excision was great. The patient had a very minimal scar. The patient is happy. I had managed to remove the SCC completely. The pathology report of that excision says that the SCC is removed completely and that the cancer is clear of margins, so I utilised the best of my ability to help this patient and I considered the best interest of the patient." He did not produce the email and there was no evidence by the patient.
The questioner referred to the fact that his version is in total contradiction to that of the nurse, also that particularly her version is that her employment wasn't dependant on him, that she left on the day of the cause of her distress and that the Practice Manager actually came after he had left and offered her job back.
He said the patient was 69 years of age and had a carcinoma on the forehead. He said "I was the one of the few doctors who performed skin cancer surgery in the area." He said "and the patient sent the email thanking me for such a good job. I still have it." Such a document was not produced.
He conceded in this hearing that there was exceptional blood loss in the procedure, "but not arterial blood. They are deeper than skin level." He denied that there was blood covering the treatment room walls. He denied that the clean-up was incomplete when the doctor presented the next patient. He agreed that the nurse who had been assisting with excisions of skin cancers before the complainant had resigned. He denied that there was an issue about need for support staff. He conceded that his account of what happened was quite different to the complainant's version. When asked could he explain why that would happen, he said that the incident occurred when he was contemplating leaving the Practice and the Practice members were asking him to stay. He conceded that it was not the role of the nurse to keep him in the practice.
The complaint was initially referred to the Performance Program and was concluded by a letter to the Appellant highlighting the need for him to adhere to Infection Control Practices.
The decision of the Medical Tribunal of NSW in relation to the complaints the subject of proceedings against the Appellant in the Medical Tribunal was released on 21 June 2013. There were findings that the Appellant had engaged in unsatisfactory professional conduct and professional misconduct based on findings that he worked at a number of locations neither permitted by his 457 Registry Visa or registration conditions and made misleading statements in his Curriculum Vitae. He was reprimanded, fined $5,500.00 and conditions were imposed his registration for two years from 21 June 2013 requiring him to have a Supervisor, and a Mentor and attend a Medical Ethics Course.
The findings on the complaints determined by the Medical Tribunal in its decision of 21 June 2013 are:
Determination of Complaint 1 - unsatisfactory professional conduct
61. Complaint 1 particularised a single element of alleged unsatisfactory conduct concerning Dr Saedlounia's practise of medicine. This concerned his conduct on 8 occasions between 26 September and 14 November 2009, when he provided locum general practitioner services for Carrington Centennial Care at the Grassmere Terrace Aged Care Facility. This activity was in contravention of the conditions of his registration, which required .that he work as a Senior Resident Medical Officer the field of Addiction Medicine at two specified clinics at Manly Hospital and at Royal North Shore Hospital.
62. In his supplementary statement dated 23 April 2013, at paragraph [3] Dr Saedlounia has admitted the conduct in question, and he has admitted that conduct amounts to unsatisfactory professional conduct. The Tribunal is satisfied to the required standard of proof that those admissions were appropriately made, and finds that Dr Saedlounia engaged in unsatisfactory professional conduct as particularised in Complaint 1.
63.The Tribunal is also satisfied that the conduct concerning Complaint 1 merits the making of protective orders. Those orders will be considered in light of the overall fillings of the Tribunal concerning Complaint 2 and Complaint 3.
Determination of Complaint 2 - unsatisfactory professional conduct
64. Complaint 2 particularised five elements of alleged unsatisfactory conduct the part of Dr Saedlounia whilst engaging in practise, or the purported practise, of medicine. Those elements comprised:
a) Dr Saedlounia's work at Wellington District Hospital;
b) Dr Saedlounia 's work at Worksafe Medics;
c) Dr Saedlounia's work at Herbert Street Clinic for Northern Sydney Drug and Alcohol Service;
d) Dr Saedlounia's work for Carrington Centennial Services at the Grassmere Terrace Aged Care Facility;
e) Dr Saedlounia's provision of a false and misleading Curriculum Vitae to Your World Recruitment agency.
65. Dr Saedlounia has admitted the particularised conduct occurred as alleged in the particulars of Complaint 2, but he has sought to downplay the significance of some of that conduct insofar as alleged unsatisfactory professional conduct is concerned. It is therefore necessary for the Tribunal to record its findings on each of the five identified elements.
Work at the Wellington Hospital
66.As to element (a) above, or Particular 1 of Complaint 2, and as summarised at paragraph [30] above, Dr Saedlounia ultimately conceded that by working at Wellington District Hospital as a General Practitioner/Visiting Medical Officer on the 62 particularised occasions between 1 December 2007 and 26 March 2008, when the conditions of his registration required him to work for his sponsor, the Wellington Corporation Aboriginal Health Service, in contravention Of 457 Visa. and his practice conditions. Dr Saedlounia conceded that these breaches amounted to improper or unethical conduct by him in the practise of medicine.
67. It is not a relevant answer to such breaches, for Dr Saedlounia to say that he had been encouraged to work at Wellington Hospital by the CEO of the Wellington Corporation Aboriginal Health Service. In this regard, of predominant relevance, is Dr Saedlounia's concession that it would have been wiser for him to check with the authorities before his sessional work at the Wellington District Hospital.
68. The Tribunal is of the view that such a course ought to have been obvious to Dr Saedlounia at relevant times a plain understanding of the terms of his Visa and his conditional registration. In oral evidence Dr Saedlounia acknowledged that his approach to his Visa and practice condition was that he had not read them checked them, as a responsible person acting responsibly should have done in the circumstances. In that regard the Tribunal is satisfied to the required standard of proof, based Dr Saedlounia's admission, that he wilfully allowed himself to be blinded to the details of visa and practice conditions. This is a recognised phenomenon that sometimes occurs in the case of persons otherwise of capacity, who act irrationally, and contrary to their normal standards: Law Society of NSW v Foreman (1994) 34 NSWLR 408, at p 469F, per Giles JA
69. Instead of checking his visa and practice conditions, Dr Saedlounia failed to do so and made incorrect and unwarranted assumptions about the extent of his conditional practising rights.
70. In those circumstances, the Tribunal is of the view that such conduct involved a degree of carelessness the part Of Dr Saedlounia that amounts to recklessness: Lee v HCCC, at [67]. As a result, the Board's devised mechanism for the protection of the public was placed at risk, because Dr Saedlounia was practising without the level of supervision the Board had required in his circumstances on grounds of public safety.
71. The Tribunal regards these breaches as being of a serious character, and accordingly finds that the element Of the particulars of Complaint 2 concerning unauthorised practice at the Wellington District Hospital demonstrate proof to the required standard, of unsatisfactory professional conduct on the part of Dr Saedlounia.
Work at Worksafe Medics
72. As to element (b) above, or Particular 2 of Complaint 2, as summarised at paragraph [31] Dr Saedlounia sought to downplay the significance of the work he had carried out at Worksafe Medics between 26 May 2008 and 28 January 2009. Whilst that work was characterised both by him and by the proprietor of that company, Dr Michael Shenouda, as comprising the position of a "clinical support person", the evidence, including the evidence of Dr Shenouda did not entirely support Dr Saedlounia's claim of having been a clinical support person in the described circumstances.
73. Dr Shenouda described the work as comprising carrying out spirometry and audiology tests, assisting patients to fill out questionnaires and consent forms. Dr Shenouda also stated that there had been "a few occasions where [Dr Saedlounia] did work that could be interpreted as the work of a Medical Practitioner, but this was done under my supervision and for training purposes": Exhibit "F"
74. Dr Shenouda further explained that Dr Saedlounia "was certainly not permitted to perform any skin checks. but perhaps for training purposes': Exhibit "F"
75. The Tribunal is of the firm view that the above tasks as described by Dr Shenouda were tasks that should ordinarily be seen to be tasks carried out in the practise, or the purported practise of medicine. It is difficult to see how inspecting skin of workers for bruising and needle marks did not constitute use or exercise of knowledge, skill, judgement and experience in the course of medical practice, so as to constitute the practise or purported practise of medicine. Furthermore, it is difficult to see how Dr Saedlounia accompanying a practice nurse to work sites to assess employees at those sites in manner described, properly constituted supervision and training under Dr Shenouda; as has been asserted
76. The Tribunal considers Dr Saedlounia's evidence that he had not introduced himself as a medical practitioner when carrying the work required of him by Worksafe Medics was a misguided explanation, and lacked insight into the real question of how his involvement in those activities may have appeared to the lay persons or patients whom he was assessing on behalf of his employer. The Tribunal considers this to be a matter of some significance
77. In light of Dr Shenouda's unchallenged evidence on the subject matter and content of Dr Saedlounia's work at Worksafe Medics, the Tribunal does not accept Dr Saedlounia's evidence that he did not carry out tasks in the practise or purported practise of medicine for Worksafe Medics. Instead the Tribunal accepts Dr Shenouda's account cited in Exhibit "F", as cited above, as being more likely to be correct, save for uncertainties over the level of supervision, which was in any event, not authorised by the Board.
78. That conclusion is a matter of some significance, as Dr Shenouda's company was not a designated area of need for the purposes of Dr Saedlounia's visa conditions, and neither the Australian Government nor the Board had authorised Dr Shenouda to provide Dr Saedlounia with supervision or training of any kind, nor did the Board authorise Dr Saedlounia to carry out the described activities and assessments involving patients who were being examined or assessed by Worksafe Medics.
79. The Tribunal therefore concludes and finds that Dr Saedlounia's work at Worksafe Medics was in contravention of the requirements of his visa and also in contravention of his conditional registration with the Board. As such, the Tribunal is satisfied to the required standard, that these events demonstrate unsatisfactory professional conduct on the part of Dr Saedlounia. In that regard, the Tribunal notes with concern that whist Dr Saedlounia was working for Worksafe Medics, the protection of the public, which is usually an assumed matter that is provided for through the normal processes of accreditation and registration, was absent insofar as contact with patients was concerned.
Work at the Herbert Street Clinic
80. As to element (c) above, or Particular 3 of Complaint 2, as summarised at paragraph [32] above, Dr Saedlounia admitted to being in breach of his visa conditions between 27 July and 7 August 2009, by working as a Senior Resident Medical Officer at Herbert Street Clinic of the North Sydney Drug and Alcohol Service, notwithstanding that his visa conditions did not permit this employment.
81. The Tribunal has considered Dr Saedlounia's contention that those circumstances did not constitute a relevant breach of conditions because he had not been paid for the work in question. The Tribunal rejects that argument in view of Dr Saedlounia's concession that he performed the work in question with the expectation that he would be paid. It is not to the point that the reason he was not paid for that work was because the nominated employer had discovered it was not permitted by law to pay him as his visa did not allow that work to be undertaken by him. In the view of the Tribunal, because of Dr Saedlounia's expectation of payment, the distinction sought to be made by is artificial, and does not operate as exceptional circumstance.
82.In those circumstances, the Tribunal finds that it is satisfied to the required standard of proof, that in pursuing the particularised employment at the Herbert Street Clinic of the Sydney Drug and Alcohol Service, Dr Saedlounia engaged in unsatisfactory professional conduct.
Work with Carrington / Grassmere Aged Care Facility
83. As to element (d) above, or Particular 4 of Complaint 2, as summarised at paragraph [33] above, although Dr Saedlounia conceded that he had worked with Carrington Centennial Care as a locum providing general practitioner services to the Grassmere Terrace Aged Care Facility, and that this work was in breach of visa conditions until 14 September 2009. he seeks to avoid a conclusion that such work constituted unethical, improper or unsatisfactory professional conduct because at the time he interpreted the words "may not" as included in his visa, as not constituting a prohibition on him carrying out work addition to the work that he was conditionally authorised to pursue.
84. The Tribunal does not accept the submission to that effect made on behalf of Dr Saedlounia. The Tribunal sees this element of Dr Saedlounia's conduct as being in a similar category to element (a) or Particular 1 of Complaint 2 above, in that Dr Saedlounia had been careless or reckless concerning his obligation to ensure that he scrupulously complied with any applicable conditions placed on his practice.
85. In those circumstances. the Tribunal is satisfied to the required standard, that in respect of his employment which provided services at the Grassmere Terrace Aged Care Facility, Dr Saedlounia had engaged in unsatisfactory professional conduct.-
Misleading Curriculum Vitae
86. As to element (e) above, or Particular 5 of Complaint 2, as summarised at paragraphs [34] - [36] above, the curriculum vitae that Dr Saedlounia provided to the YourWorId Medical Employment Agency was plainly misleading in its content. That conclusion is compelling because, as he must have known, he had not worked in the position of an Occupational Medicine Physician (Casual) for Worksafe Medics, as was represented the document.
87. The Tribunal does not accept Dr Saedlounia's explanation that this was a simple typographical error that had left out the prefatory description of Assistant in describing that position. That explanation was not included in any of Dr Saedlounia's statements prepared for these proceedings. It appeared for the first time in his oral evidence at the hearing. The Tribunal considers the answer to be glib and opportunistic. Similarly, the Tribunal does not accept Dr Saedlounia's portrayal of the circumstances of the misleading and incorrect description of his work experience with Worksafe Medics as a "misunderstanding".
88. The curriculum vitae in question was very obviously framed in order to enhance Dr Saedlounia's prospects of obtaining employment. It contained false and misleading particulars of his experience in medical practice, and this was known to Dr Saedlounia. The Tribunal is satisfied to the required standard, that in proffering his curriculum vitae with such misleading content Dr Saedlounia's conduct amounted to improper and unethical conduct related to the practise or purported practise of medicine. The Tribunal therefore finds it is satisfied to the required standard of proof in respect of this fifth element of Complaint 2, that Dr Saedlounia engaged in unsatisfactory professional conduct.
Conclusion on Complaint 2
89. The Tribunal has found all elements the unsatisfactory professional conduct in the practise or purported practise of medicine, as alleged against Dr Saedlounia, to have been proven to the required standard of proof. The question then arises as to whether the identified conduct should be seen as a pattern of unsatisfactory professional conduct. This is matter to be determined respect of Complaint 3.
Determination of Complaint 3 - Whether professional misconduct
90. Complaint 3 alleges that Dr Saedlounia had engaged in professional misconduct by reason of his admitted conduct that is the subject matter of Complaints 1 and 2.
91. The HCCC submitted that those matters, and the required findings of unsatisfactory professional conduct concerning those matters, which the Tribunal has in fact made in the preceding paragraphs, demonstrated a pattern of unsatisfactory conduct which justifies the conclusion that Dr Saedlounia had engaged in professional misconduct within the meaning of the test propounded within s 139E of the National Law.
92. In contrast, on behalf of Dr Saedlounia it was submitted that in the circumstances none of the conduct amounted to justification for a finding of professional misconduct, For support, that submission' drew upon reasoning within a recent and differently constituted Medical Tribunal in which a finding of professional misconduct was made: HCCC v Maendel [2013] NSW MT 3. That decision will therefore be considered for applicability to the present case.
93. In assessing whether professional misconduct has been demonstrated, the two limbs of test propounded in s 139E must be analysed and applied to the circumstances under consideration. In this case, the focus for the analysis is whether a relevant pattern of unsatisfactory conduct has been demonstrated. That analysis must be guided by applicable authority, as well as observing appropriate and respectful comity with the taken in other Medical Tribunal decisions in analogous cases.
First limb - s 139E(a) of the National Law
94. In the circumstances of this case, the Tribunal is of the opinion that of themselves, the individual findings of unsatisfactory professional conduct concerning Complaints 1 and 2, when viewed alone, are not of a sufficiently serious nature to justify suspension or cancellation Of Dr Saedlounia's practising rights: s 139E(a) of the National Law.
95. That conclusion does not end the consideration of the matter because these matters cannot be viewed in isolation from each other.
Second limb - s 139E(b) of the National Law
96. The HCCC submitted, in accordance with the second of s 139E, that when all of the instances of unsatisfactory professional conduct (which the Tribunal has bund to have been the case in its consideration of Complaints 1 and 2) are considered together, in aggregate, they amount to conduct of a sufficiently serious nature that justifies suspension or cancellation Of Dr Saedlounia's registration: s 139E(b) of the National Law.
97. On behalf of Dr Saedlounia it was argued that there should be no such finding this case because the subject matter of the complaints were of an insufficiently serious nature to justify a finding of professional misconduct.
98. The pivotal foci of the consideration under s 139E(b) are first, the aggregation of the instances of unsatisfactory professional conduct, and secondly, the seriousness of the nature of those instances.
99. In undertaking the required analysis. the Tribunal has taken care to keep separate from the threshold consideration, matters that may serve to mitigate the consequences of Dr Saedlounia's conduct. Those matters of mitigation are more relevant to the separate consideration of need for, and the nature and extent of, any required consequential protective orders.
100. At the centre of the findings concerning tie instances of Dr Saedlounia's unsatisfactory professional conduct, is his admitted failure to take the time and care to read and consider the implications of his visa and practice conditions to ensure that he would scrupulously comply with those conditions. The Tribunal has concluded that this was to the point of wilfully blinding himself to that knowledge. not just one occasion, but serially.
101. These failures occurred on each of occasions on which there was a potential for a conflict to arise between Dr Saedlounia's own interests in securing employment, and the public interest, being the need to protect the public by strictly and scrupulously complying with the requirements of his visa, and the practice conditions imposed upon him by the Board.
102. The Tribunal is of the opinion that these failures, when taken together. Are of a very serious nature, and demonstrate that Dr Saedlounia had a lack of insight into the need for him to act scrupulously with regard to his conditions of practice order to ensure that the public was protected. The Tribunal considers that, prima facie, and subject to analysing Dr Saedlounia's responses and submissions, these failures to be of a sufficiently serious nature to justify suspension or cancellation of Dr Saedlounia's registration.
103. In addition to foregoing prima facie conclusions, Dr Saedlounia's actions in taking up unauthorised employment outside terms of his visa and practising conditions, on more than just one or two occasions. Namely, with Wellington District Hospital, the Grassmere Terrace Aged Care, Worksafe Medics and The Herbert St Clinic, add confirmatory weight to that prima facie impression of seriousness. Even more weight is added to that prima facie impression from the circumstances which Dr Saedlounia misrepresented the nature of his medical work experience a misleading description of his employment in his curriculum vitae.
104. In the opinion of the Tribunal. at a prima facie level, these matters, when aggregated, represent compelling reasons for concluding that Dr Saedlounia has engaged in a pattern of unsatisfactory professional conduct that is of a sufficiently serious nature to justify cancellation of his practising rights: s 139E(b) of the National Law.
105. In view of that compelling prima facie analysis, it is necessary to examine the reasons in support a contrary view, as was submitted on behalf of Dr Saedlounia. In addition to the matters raised by Dr Saedlounia and considered in the course of addressing the subject matter of Complaints 1 and 2, the following factors were said to contra-indicate a finding of professional misconduct in this case.
106. First, it was submitted that Dr Saedlounia's conduct not be seen as involving recklessness, given his relative inexperience of the legal and medical systems in Australia, also considering the issue of language. That submission sought to categorise the conduct of Dr Saedlounia as involving repeated acts of carelessness rather than recklessness. The Tribunal does not accept that submission. In the context of this case such a distinction amounts to nothing more than semantics. Dr Saedlounia had a good grasp of the language. He had undertaken courses in English. The overreaching consideration was his objection to acquire an understanding of the conditions that applied to his practice and to scrupulously observe them. He did not so. The Tribunal considers that degree of repeated carelessness over time involved a reckless attitude towards his responsibility to scrupulously comply with the conditions to which he was subject. Lee v HCCC, at [67]; Prakash v HCCC, at [74]; Re Dr Than Le at [95].
107. Secondly, it was submitted that the lack of caution in Dr Saedlounia's conduct was not deliberate. The Tribunal does not accept this as a relevant factor to be considered, especially the that Dr Saedlounia, by his admitted conduct in not reading or seeking out a proper understanding of the conditions of his visa as they applied to him, wilfully blinded himself to the breaches of the conditions to which his practice was subject. The Tribunal is of the view that this level of indifference requires a finding of professional misconduct. Pillai v Messiter [No2], at page 200
108. Thirdly, it was submitted that a breach of visa conditions was an unusual basis upon which to base a complaint of professional misconduct. Whilst that may be so, Tribunal does not accept that argument as a barrier to such a finding, and notes that the visa conditions underpinned Dr Saedlounia's right to practice conditionally. He could not have worked or trained without those visa conditions in place. The Tribunal considers that a breach of visa conditions in those circumstances is properly part of the overall fabric and pattern of conduct that needs to considered in whether there was professional misconduct: Pillai v Messiter [No2], at page 200
109. Fourthly. it was submitted that no harm has been shown to have occurred to any patient as a result of matters raised in the complaints. The Tribunal does not see this as a relevant factor. It was entirely fortuitous that no patient carne to harm. The relevant criterion on this issue is that the safety checks, balances and supervision requirements imposed by the Board were not met in the course Of Dr Saedlounia conduct. This created circumstances where on multiple occasions the public were not appropriately protected by the conditions the Board had imposed on Dr Saedlounia.
110. In seeking to avoid a finding of professional misconduct. Dr Saedlounia relied upon the manner which professional misconduct was assessed in HCCC v Maendel [2013] NSWMT 3, which involved an accumulated course of events, which, by majority in those proceedings. at [78], was held not to amount to professional misconduct
111. This Tribunal does not accept that the aggregated circumstances of Dr Saedlounia's unsatisfactory professional conduct are comparable to the basal facts in HCCC v Maendel. In that case. at [64], it was found that the practitioner had made an initial wrong decision to treat his mother, and then took on a number of subsequent roes, some of which were based on family considerations and the assumed wishes of the patient, following which he was then subjected to a number of stressors that probably dominated his thought process and impeded his capacity to divert from the wrong clinical course had initially chosen.
112. In contrast to the facts HCCC v Maendei, Dr Saedlounia's unsatisfactory conduct was based on entirely different considerations that in large part emanated from his decision not to read the conditions to which his practice was subject. This led to a cascading series of breaches of those conditions over the course of an extended period of time between 2007 and 2009. This occurred in a variety of work settings on various occasions, and not compromising just one sentinel error of judgment involving one patient as was the case HCCC v Maendel.
113. For those reasons, this Tribunal considers that the decision in HCCC v Mendel is distinguishable from the present case, and offers no applicable analogy that requires a consideration and accommodation for comity of approach to of what amounts to professional misconduct.
114. Any assessment of whether professional misconduct has occurred and whether the conduct in question is caught by the terms contemplated by the statutory definition of s 139E of the National Law must be based upon a recognition that each case must be determined according to its unique features. Whether misconduct has occurred is to be determined from the nature of the conduct in question, as was highlighted in HCCC v Maendet, at [67], citing Kirby P (as His Honour then was), in Pillai v Messiter [No. 21] (1989) 16 NSWLR 197, at page 200, which in tum cited reference to Corrpus Juris Secundum, vol 58, (1948) at 818
115. On the foregoing considerations, the Tribunal is persuaded that the prima facie impressions already identified, should be confirmed as the findings of the Tribunal. Accordingly, the Tribunal is satisfied to the required standard of proof, that Dr Saedlounia's pattern of unsatisfactory professional conduct, when considered together, is of a sufficiently serious nature that satisfies the test for justifying a finding of professional misconduct: s 139E(b) of the National Law.
116. The Tribunal therefore makes the finding that Dr Saedlounia has engaged in professional misconduct as alleged in the particulars of Complaint 3.
On 26 June 2013 the Medical Council notified the Appellant of the decision of the Medical Tribunal and the conditions imposed on his registration. The Appellant responded by email on 27 June 2013 and nominated in that email a Mentor and a Supervisor.
The Council wrote to the Supervisor on 1 July seeking written confirmation of his willingness to undertake that role. On 11 July the Council received a signed Supervisor form from the nominated Supervisor, but he had noted that he wished to make submissions "concerning his role as Supervisor". Council wrote to the proposed Supervisor on 12 July asking that he confirm if a submission was to be provided to the Council.
On 29 July 2013 the Council wrote to the Appellant requesting him to contact the proposed Supervisor to arrange for his signed acceptance, submission (if applicable) and brief CV to be sent to the Council.
On 21 August 2013 the Council wrote to the Appellant requesting him to give his urgent attention to the need to contact the proposed Supervisor to arrange for his signed acceptance, submission (if applicable) and brief CV to be provided to the Council.
On 28 August 2013 the Council wrote to the Appellant reminding him to contact the proposed Supervisor and warning him that failure to do so may lead to a complaint of breach of his conditions.
Council wrote to the Appellant again on 26 September 2013 asking him to contact the Council to advise his current position in regards to level his supervision.
The Council telephoned the Appellant on 15 October 2013 and left a message for him to return the call. The Council also telephoned the proposed Supervisor on 28 October 2013 and the Supervisor indicated verbally that he was prepared to act as Supervisor. The same day the Council emailed the proposed Supervisor asking for written confirmation of his willingness to act as Supervisor. Three days later the Council emailed the proposed Supervisor again, asking for a response.
The Council on 8 November 2013 wrote to the Appellant asking for confirmation of his nomination of the Supervisor requesting that he arrange for the Supervisor to provide his written acceptance to the Council by 15 November 2013.
The acceptance was not provided. On 28 November 2013 the Council wrote again to the Appellant asking him to urgently nominate another suitable person for Supervisor and advising him that failure to do so by 12 December 2013 would result in the matter being placed before the Council's Committee.
On 19 December 2013 the Council sent an email to the Appellant requesting his urgent response in respect of his supervision nomination.
On 11 February 2014 the Council's Conduct Committee recommended Section 150 proceedings be convened on account of the Appellant's failure to comply with the supervision condition in his registration. It appears that the Appellant was notified of this decision, as on 27 February 2014 the proposed Supervisor confirmed in writing that he was prepared to act as the Supervisor for the Appellant. He sent his first supervision report to the Council the following day.
The Appellant visited the Council on 3 March 2014. He confirmed that he wished to continue with the same Supervisor and requested that the Section 150 proceedings be cancelled. The same day Council received emails from the Appellant advising that he understood that the Supervisor had now been provided with instructions on his supervision by the Council and apologising that there had been a breakdown in communications between the Council, and the Appellant and the Supervisor and that supervision reports had not been received (by the Council).
At the Section 150 hearing the Appellant was asked about his failure to respond to the numerous letters, emails and other messages from the Medical Council regarding the appointment of a Supervisor until such time as he was threatened with the establishment of the Section 150 hearing after the decision of the Medical Tribunal.
He was asked why it had taken 9 months to have his proposed Supervisor submit the necessary documentation. In his response, he did not acknowledge that it was his responsibility to have the proposed Supervisor and Mentor complete, sign and submit the necessary documentation. He responded:
"[Dr N] and [Dr S] appointed (sic) straight away after I came out of the court. I contacted them I'm not sure that day or the day after, shortly after the court date. They each showed interest in helping me as a Supervisor and Mentor. My responsibility from the court's point of view, from Medical Tribunal's point of view was to introduce a Supervisor and a Mentor to the Medical Council or to the Court and I did so. My responsibility was to inform the Medical Board that this person and that person is my Mentor. We did so. The Medical Board knew. The further documentation from the Supervisor and the Mentor took time. The reason why they had not received any phone call or any trail of emails to them .. I'm not sure what the trails of emails we are talking about now, but none of them. If I'm blaming somebody, [Dr N] and [Dr S] did not receive them. The reason that they did not react promptly; they had not received any emails or phone calls."
He then conceded that when he was getting contact and phone calls from the Medical Council, [Dr N] was working in his Practice. He was asked what discussions he had with [Dr N] about this issue. His response was "which context are you talking about from where?" The material was detailed, and the Appellant then denied receiving any phone calls until he was told that a Section 150 hearing would be appointed. He was then asked "you got none of these emails or letters?" And his lengthy response seemed to be that neither he nor [Dr N] nor [Dr S] received any correspondence from the Medical Board.
He repeatedly then denied having received any emails or other correspondence or any contact from the Medical Council until the day that he was contacted by telephone saying that a decision had been made that there would be a Section 150 hearing.
The messages the Appellant denied receiving were posted, phoned or emailed in the period from 1 July 2013 to February 2014. There is no evidence that he raised such denials in March 2014 when he did have contact with the Council. He did not raise them till the Section 150 hearing in September 2014. The Tribunal does not accept these denials of receipt of phone calls, letters and emails as truthful evidence. They appear to be recent inventions.
The Council's Conduct Committee approved the appointment of the Supervisor on 11 March 2014, rescinded the decision to convene Section 150 proceedings, and resolved that "a stern letter" be sent to the Appellant warning that any future breaches of his conditions are likely to lead to Section 150 proceedings.
On 19 May 2014 the Medical Council received a complaint from the Ambulance Service regarding the Appellant's conduct regarding a patient handover. The Medical Council wrote to the Appellant in a response to that complaint and requested a response by 4 August 2014. By 14 August 2014 no response had been received and the Council wrote to the Appellant's legal representative requesting an immediate response to the complaint. The same day the solicitor for the Appellant wrote to the Council seeking an extension and the Council responded by granting an extension to 22 August 2014.
On 14 August 2014 the Council received information from the HCCC (who were notified by NSW Police) that the Appellant was being investigated for an alleged sexual assault and indecent assault on a 17 year old patient, which is the subject of these proceedings.
On 22 August 2014 the Council's delegates resolved to convene proceedings under Section 150 of the National Law.
On 6 May 2014 there was an NSW Ambulance Service complaint to the Medical Council in relation to professional conduct of the Appellant on 16 April 2014.
The problem was described in the ambulance record of the incident as "inconsiderate / rude / hostile / inappropriate behaviour" and "risky / reckless / dangerous behaviour".
The narrative in the record is "Called to a 79 years male that presented to medical centre with chest pain. On arrival the patient and the family were outside the medical centre and advised that Doctor quickly attended patient, administered an aspirin and asked for patient to leave premises and call for an ambulance as they were closing. Upon the daughter in law asking for the address of the medical centre to tell 000 operator, the doctor initially would not give information, instead asking them to not give the medical centre address. They were asked to go to their vehicle and call from there. The Doctor passed us as we were assessing our patient and the family pointed him out to us, so Officer Eager approached him to ask for more information regarding his opinion and assessment of this patient and he ignored Officer Eager. When Officer Eager persisted in trying to retrieve this information he then advised at 'The patient is ambulance problem now and not his'. We advise the Doctor of his actions being negligent and that a complaint would be made. The Doctor then presented at the hospital in which he approached our patient in the Ambulance bay in ED without permission and had to be asked to leave with security becoming involved. No documentation was provided to pass onto us or the hospital for further case and assessment.
Compromise (sic) to the patient not receiving duty of care considered him he potentially could have been having an ischaemic event and was administered medication and not continually assessed until some form of transfer of care. This patient did have known cardiac history and risk factors."
The record also shows that the time band of the incidents was "22:00-22:59"
At the Section 150 Hearing the Appellant was referred to the document in the material before the Delegates and asked if he would respond to that record. He said:
"Sure. It was late at night. We close at 10 and our building has a security guard that comes and checks that everything is closed and they close down all of the lights and things like that. It was around 9:45 or even later than that, that the patient - an old patient of around 70 years old or more - arrived with two people accompanying him who happened to be his son and his daughter in law. He complained of - he told me that, 'Doctor, a couple of hours ago I had the chest pain'.
As soon as I heard that there is a chest pain issue in an old man I remember Doctor John Mortens to say chest pain in men in old age is heart attack until proven otherwise. So straight away, I knew that I'm sending this patient to hospital, no matter during examination I come to conclusion that is less likely to be heart problem. A man in that age, chest pain, needs further investigation and assessment at the hospital. So I knew that I'm going to send the patient to hospital. I ask - and I had no time, no nurse, only reception and very limited time to manage the patient in the best of the patient's interest.
So what I did, I asked the daughter in law to get on the phone and contact 000 while I was taking history and I was doing examination of the patient. So while I was taking patient's history and taking his blood pressure and checking things for him she got on the phone and said, 'yes, we are in Rosehill Medical Centre, my father in law has chest pain, we need to have an ambulance.' an Ambulance said, 'yes we're on the way and we come very soon'. When I finished or about to finish that my - I was in the middle of my examination, not having finished the examination. I was in the middle of examination. The patient said that 'Doctor, I need to go to the bathroom', and the son and father walked together to the bathroom.
Before the patient goes I asked 'do you have any chest pain?' He said, 'no, I told you, I have had chest pain a couple of hours ago, not now.' The patient walked to the toilet which is located outside of our facility and the toilet looks at the outside - from the corner of the toilet you can see what's happening outside the practice. So they went to the toilet and still we were on the wait to receive the ambulance and I was typing what I had received from the patient's history at examination. So because it took them a long time I said, 'let's walk and see if' - that's when I asked t's daughter in law, 'imagine if the ambulance guy comes late and the security guy comes earlier, do you think we can all go out and wait? Do you think It's ok with you?' she said 'yeah he doesn't have any chest pain, you can go if you are OK with that.'
I'm going to try to keep the patient as much as possibly inside, but in case we need to leave doesn't have chest pain, do you think you are prepared for it, for a couple of minutes?' she said, 'yes', and they didn't come back so we walked out to see what's happening and I walked out and I saw that the patient and the son had rung the ambulance. So the ambulance had arrived. They had seen the ambulance from the toilet corridor and they went down the stairs to the ambulance.
Because I had no note to provide to the hospital and it was almost after 10 o'clock I said, 'OK, what I can do now, I can go into the hospital and give all the history and the examination findings to the hospital.' So I walked to my car to follow the ambulance to the hospital. I saw a man who is calling me from behind me. I turned around and the Ambulance Officer said 'yes, I'm here to hear from you what you have given to the patient.' I said, 'I haven't given anything except an Aspirin, so what - you need to be around the patient, not to be talking to me right now because needs to be with someone- either with you or with me. So you need to go to the ambulance to be with the patient and I'm coming to the hospital.'
He said, 'I'm asking questions, you need to answer me.' It was a bit strange to me that the ambulance officer has left the patient in the middle - has come to question he is talking about that to me. I said, 'you know, I'm telling you, you're better to be with the patient, I'm going to the hospital.' So they got him to the patient, then finally he went to the patient and I followed the ambulance to the hospital. We arrived to the hospital and they parked the ambulance in the ambulance bay, The patient came out with the stretcher and they took The patient to the emergency, came off the car myself walking to the Emergency Room.
I got my patient, I said 'hello, Mr. (indistinct) you have any chest pain?' and he laughed and said, 'No, I told you, I don't have any chest pain, I'm ok.' I said, 'For your safety we need to make sure that for overnight you're fine and (indistinct) fine you go home, don't you worry about that.' Not (indistinct) and he said, 'I'm telling you, I don't have any chest pain.' I said, 'OK, if anything not related anything to your heart, you will go home.' I was talking to the patient, the Officer came and knocked on my shoulder, and said, 'you have to leave, this is our territory. This is the area that we decide who stays and who goes. You have to go.'
I was explaining to him that we're working as a team; we have to have a better communication. He said, 'no', and he called the security guy and said something to him I didn't hear, and the security guard came over and opened the door for me - exit door- and said 'you're out'. Because the environment is Emergency and all patients are resting or are in critical issues, or emergency problems, I did not want to argue with the security guy or try to say 'I'm a doctor'."
He said he had no choice but to stay silent and leave the emergency area without causing any problems. He said he decided to walk to his car and to wait there. He said that he told the daughter in law that the officer had asked he thought that all that had happened was "the right way to do I"'. He responded that he had decided to do what was best for the patient. He said "the Best scenario could be that I had the paper letter created, handover to the emergency ambulance people, the ambulance people comes to the medical centre, they take the patient from the medical centre, not outside of the practice and then I could have a better communication with them, I could chat with them in a colleague way. But patient wanted to go to the toilet. It happened because they saw the ambulance was outside so they went to the ambulance". He said later that "at least I decided to go myself to the hospital to talk to the doctors say my apologies, I don't have the letter but I'm here to give you information. Yes the blood pressure is this much, this patient is- with his history, I know," and "I'd give information to them to assist them in managing the patient in the best way they could, but unfortunately things didn't go right."
In the hearing before this Tribunal questions were asked of the Appellant. He denied that he asked the patient to leave and call an ambulance because he was closing up. He denied that initially he would not give the patient and his family members the address of the medical centre. He conceded that the ambulance driver, when he arrived, had asked for more information/opinion. He denied the proposition that he told the ambulance driver "it is the ambulance problem, not mine."
He conceded that he provided no documents to the patient to pass onto the hospital. He again said that the time when the ambulance arrived was ten or fifteen minutes before he was closing. That does not accord with the ambulance record. The appellant confirmed the version that he had given previously at the Section 150 hearing. He said that when he came outside the patient was already in the ambulance. It was, he said, about 10:05PM and the receptionist was trying to turn off the lights and close the medical centre. He said that because he hadn't done the letter, he decided to drive his car and follow the ambulance to the hospital. He said he was going to talk to the doctor at the hospital, but the Ambulance Driver intervened. "He called the security guy and he showed me out. I left."
[7]
PATIENT A'S ALLEGATIONS
What the police provided the Medical Council is not a copy of the statement by Patient A. The Police described it as a "summary of statement made to NSW Police"
The Document States:
Summary Of statement made to NSW Police
A 17 year old patient alleges that on 26 July 2014 they (sic) visited Rouse Hill Town Medical Centre and were seen by a doctor. Patient A presented with a sore middle right finger. He looked at it and prescribed an antibiotic for the infection and also an antibiotic for facial acne. Patient A was advised that if it didn't get better they should return so that the doctor could get the infection and puss out with a needle.
Despite taking the medication, there was no change. The finger remained swollen and was very painful.
On 28 July 2014 Patient A re-presented at the surgery advising that they (sic) felt faint and unwell. Patient A was directed to lie down and was given an ECG. Whilst on the bed Patient A fell asleep. Patient A later awoke and shortly after that Dr Saedlounia came in to see Patient A. Patient A showed the finger to the doctor and advised that it had not improved.
It is alleged that the doctor asked the patient if they had had any bleeding, he then motioned towards Patient A's genital area. He then asked Patient A to remove their pants. He asked Patient A to pull down their underpants and roll to the side. Whilst on the side it is alleged that he put hands on Patient A's buttocks and pushed into the buttocks and fondled them for a few minutes. He then moved his right hand along Patient A's body until he reached the breast; his left hand remained on the middle of Patient A's buttocks. He then started to squeeze and push the breast and asked the patent if it hurt. This continued for a minute.
It is alleged that he then asked Patient A to roll back over and said he needed to look at the pelvic area. Patient A was told to open their knees and keep the feet together. The doctor had no gloves on. He then touched Patient A's vagina area for about a minute and then said he would be back.
Patient A quickly dressed. About 10 minutes later the doctor came back carrying a large needle with clear fluid in it. He asked Patient A to pull down their pants and underwear. He then told Patient A to bend down completely and put his hand on Patient A's back. He then, without gloves, touched Patient A's buttocks and pushed his finger into the anus, he probed this area for a few minutes, then he touched the vagina and surrounding area with both hands. He did this for a few minutes.
He then injected the fluid into Patient A's buttocks and told them that he was finished.
The police have not interviewed the Appellant. Police have not indicated why they have not interviewed the Appellant. It is possible that the 17 year old patient has indicated that he is unwilling to give evidence in a Court or Tribunal. This Tribunal is not aware of what other investigations have been undertaken by Police or by the Health Care Complaints Commission. So far as the Tribunal is aware no proceedings have been commenced against the Appellant by the Health Care Complaints Commission in respect of the complaint.
[8]
THE APPEALANT'S VERSION OF WHAT HAPPENED
The day before the Section 150 hearing, and 5 weeks after the consultation the appellant made a statement that he relied upon at that hearing. He said in the statement of 2 September 2014:
1. I am a registered medical practitioner. I practise as a general practitioner. I have been working at Rouse Hill Town Medical Centre, Rouse Hill ('the practice') for some 2 years and 7 months.
2. On 28 July 2014 saw a patient (name supressed). I have no independent recollection of the consultation or Patient A, whom I had not seen before that day.
3. In order to prepare this Statement I have upon the medical records I made of the consultation. I have obtained some documents from the practice to which I refer below. In the absence of any independent recollection of Patient A I rely upon my usual practice and knowledge of how the practice operates.
1. Annexed hereto and marked respectively as copies of the following documents
2. Patient Register entry for (name supressed);
3. list of all patients who at arrived at the practice on 28 July 2014 between 5:05 PM and 6:07 PM;
4. list of all patients seen by me at the practice on 28 July 2014 between 12:16 PM and 6 PM;
5. diagram showing Treatment Room at the practice; and
6. Treatment Room Patient Attendance Sheet for 28 July 2014 showing patients treated there between 15:50 hours and 18:50 hours.
1. The doctors at the practice usually conduct patient consultations in their respective consulting rooms which are set out around the Treatment Room. If I am requested to see a patient who is already in the Treatment Room I will conduct the Consultation there. I do not take Patient A from the Treatment Room to my consulting room.
2. The Treatment Room is staffed by a nurse from the time the practice opens each day until 8 PM. There are 3 examination beds within the room. It is not infrequent occurrence that more than 1 patient will be in the Treatment Room simultaneously.
3. The details contained in Patient A Register are provided by each patient (Annexure A).
4. The information set out in Annexures B and C state the time at which each patient arrived at the practice. The 'Wait' column indicates the period of time in minutes which elapsed from the time the patient arrived until the time the practitioner who saw the patient commenced to make notes in the computerised records system. The 'Prov' column shows the abbreviation of the relevant practitioner. The 'Status' column which lists a 'Y' (Yes) for each patient means that the patient was in fact seen by medical practitioner. The 'Note' column is completed by the reception staff. The abbreviation 'FA' means 'first available' and indicates the patient is to be seen by the first available medical practitioner. The patient is also to be seen by the first available medical practitioner where there is nothing written in the 'Note' column.
5. The note 'TREATMENT ROOM' for (name supressed) means that Patient A was directed by reception staff to go to the Treatment Room in accordance with usual practice Patient A would have been assessed in the first instance by the nurse. The nurse then calls the practitioners on duty to ascertain which of them might be first available to attend the Treatment Room to see Patient A.
6. I therefore believe I received a telephone call from the nurse and agreed to see Patient A in the Treatment Room. Given that Patient A was registered on the practice's system as Mr (name supressed) believe I requested to see a male by that name.
7. I made my entries in the records at 1906 hours after the consultation had concluded. Those notes indicate Patient A complained to me of dizziness and fogginess for 1 day. They Indicate I performed a respiratory examination which I do by auscultation with a stethoscope; an aural examination with an auriscope and looked at Patient A's throat by using a tongue depressor and a torch. All examinations revealed no abnormality.
8. I took Patient A's blood pressure which I noted was 124/75 and pulse which was 69. Both reading were normal.
9. I suspected Patient A probably had contracted influenza or a cold as many other patients also had at that time. However given the subjective complaint of dizziness in a relatively young patient I requested the nurse to perform an ECG. Annexure E contains a note In the nurse's handwriting which indicates the ECG was performed upon patient (name supressed) at 1810 hours.
10. I recorded the results of the ECG as 'sinus rhythm', in other words it demonstrated no abnormality.
11. I also recorded Patient A denied had any head injuries and was otherwise alert to time, place and persons.
12. I wrote a prescription for Patient A for Panadeine Forte. To do I would have gone to my consulting room. I cannot prepare a computer-generated prescription in the Treatment Room. I believe I then returned to the Treatment Room and gave Patient A the prescription.
13. The consultation having concluded, I returned to my consulting room and made the entry in the computer. When I see patients in the Treatment Room I will make rough notes on a piece of paper to enable me to later make the computer entry. Having done so, I then dispose of the piece of paper.
14. I believe Patient A remained In the Treatment Room at all times. I believe the practice nurse was in attendance at all times I was with Patient A.
15. I refer to the document entitled 'Summary of statement made to NSW Police. As the first paragraph thereof the practitioner who treated Patient A 26 July 2014 for a sore finger was Dr Mustafa Jamnagarwalla
16. As to paragraph 3 hereof I deny that Patient A made any complaints to me of a sore finger on 28 July 2014
17. I deny contents of paragraph 4 to 7 inclusive. I did not conduct any such examinations nor did I administer an injection to patient. Any injections are noted on the Treatment Room Patient Attendance Sheet. So far as I was concerned I treated a male patient named (name supressed).
18. I have not been charged by NSW Police with any offence nor have I been otherwise approached by the police
Dated: 02/09/2014
Signature
Dr Saeid Saedlounia
[9]
STATEMENT OF TIAN FENG MEL
Ms. Mel was the nurse assigned to the Treatment Room on 28 July 2014. The period that Patient A was in the Treatment Room was within the period that Ms. Mel was the nurse for the Treatment Room for that day. She has tertiary qualifications from overseas in medicine and is seeking to be registered as a medical practitioner in Australia. In the meantime, she has been employed as an assistant in nursing at the Practice where Patient A attended. That day she worked from 4PM to 8PM. She said in her statement of 20 October 2014 that the role at the Medical centre "primarily involves attending to patients in the Treatment Room. 'I also maintain the Doctor's Consultation Rooms including restocking equipment, cleaning instruments and sterilisation and cleaning sheets. I attend to the Doctor's rooms when there are no patients in the Treatment Room". She said that her recollection of the events on 28 July 2014 is "limited". She referred to the same Treatment Room Patient Attendance Sheet (Annexure E to the Appellants statement of 2 September 2014).
Ms Mel said in her affidavit:
7. "the usual Practice at the Medical centre is that when the patient is sent to the Treatment Room, the nurse on duty will first take the patient's observations and triage the patient. The nurse will then contact the next available doctor to attend to the patient or a particular doctor if specifically requested by the patient. The doctor will then attend upon the patient in the Treatment Room.
8. If a patient is sent to the Treatment Room, he or she is seen by the doctor in the Treatment Room. During the time I have worked at the Medical centre I cannot recall any occasion when a patient has been transferred from the Treatment Room to the Doctor's consulting room in order so that the consultation could be performed.
The evidence of Ms. Mel is that as 28 July 2014 she'd been working in the Practice since 11 April 2004 and had been employed for the whole of that time as a nurse in the Treatment Room
Ms Mel in her statement identified her handwriting on the relevant page of the Treatment Room patient attendance sheet. Her evidence is that the time of 1810 (6:10PM) entered in relation to patient was not the time when Patient A arrived in the Treatment Room. It was the time when she commenced to do the ECG for Patient A. Prior to that Patient A had arrived in the Treatment Room, she had taken Patient A's observations and triaged . She had then contacted the Appellant and requested him to attend upon Patient A. He had attended and done an examination. She did not record, and did not offer evidence of, the time at which Patient A arrived at the Treatment Room.
She said that she commenced the ECG at 6:10PM. Her evidence is that she can't recall whether or not she remained in the Treatment Room after performing the ECG, "as I had other duties to complete". She testified that the usual Practice is the Medical Centre is that, having ordered the performance of the ECG, the doctor would leave the Treatment Room and the nurse would perform the ECG. Having done so the nurse would then contact the doctor to advise of the results of the ECG. The result for Patient A's ECG was tat there was no abnormality.
She said in her statement "during the performance of the ECG and other procedures involving the removal of clothing, the curtain is drawn closed around the bed."
She also said that they wait time 84 minutes for Patient A was "the length of time from when Patient A registered with reception on arrival to the time the doctor clicked on Patient A's name on the electronic system to enter their notes."
[10]
OTHER EVIDENCE AND DISCUSSION
The record of the Practice of Patient A arriving on the day (which is inserted by reception staff) shows the patient arrived at 5:40 pm. Patient A was taken to the Treatment Room and that record does not indicate the reason why Patient A was taken to the Treatment Room, rather than to the doctors' consulting rooms.
From annexure C on the Appellant's statement, it emerges that it was 84 minutes after the patient's arrival, that the Appellant opened the computerised medical record system to make a record of the consultation with Patient A (7:04 pm).
The Treatment Room Patient Attendance Sheet shows that Patient A was in the treatment room, had been examined by the doctor and the nurse commenced the ECG at 6:10 pm. The Appellant then did not complete the . consultation and open the computerised medical records for Patient A until 7:04 pm, or nearly an hour later.
The Treatment Room Patients Attendance Sheet (Annexure E of the Appellant)'s statement, shows that between 3:50 pm and 6:50 pm 10 patients attended in the Treatment Room. According to Annexure B of his statement, Patient A was the only patient of 32 patients presenting between 5:05 pm and 6:05 pm to the Practice who was referred directly to the Treatment Room.
The day after he made that statement, the Appellant attended the Section 150 enquiry and relied upon the statement. The statement did not include Patient A's Medical record. At the hearing the Appellant relied upon the statement and the Medical record of the consultation.
The Medical record of the consultation says that Patient A's gender was male and the last prior attendance was on 26 March. It also included the particulars of his address, his next of kin, his status, his Medicare insurance details and his Health Care Card details. It showed details of his blood pressure and pulse and the following description of his complaint and examination: -
28 July 2014 ": as he has been having dizziness and fogginess for a day.
RESP: NAD
Throat: NAD
19:06 blood pressure: 124/75:
19:06 pulse: 69,
ECG: sinus rhythm
Denies having any head injuries,
Alert to the time place and persons,
EES: NAD"
The Medical Record for the consultation recorded that he was given a prescription for "Panadeine Forte (tablets) QTY: 20 take two tablets two times a day"
The record also showed an entry for the proceeding for the 26 July:
"right middle finger Paronychia - advised AB, s
C maine for localising".
There was also an initial MJ - the doctor who saw him on 26 July
The clinical notes show that Patient A had been attending the Practice since at least March 3013 under the same surname, but with a female first name. Patient A has been recorded since at least February 2014 as suffering from 'gender identity problems" and had been referred to a psychologist for an assessment in that regard before February 2014 and there was six counselling sessions. On 19 November 2013 when she saw a doctor in the Practice, she spoke to him about being born a female, but feeling masculine. She enquired about taking testosterone and was advised to see an endocrinologist.
On 12 February 2014 Patient A again raised with the doctor in the practice "she does not feel like a female, always felt like a boy".
When Patient A saw one of the doctors on 1 May 2014, Patient A related being restrained by the police for two days after attempting suicide. Patient A did not attend the practice again until 26 July 2014. At that time, it appears, Patient A changed Patient A's registration details with the practice to being a male with a male first name.
The entries in the Medical record for the consultation on 26 July 2014 did not refer to Patient A as "he" or "she".
In the first line of the clinical record made by the Appellant, he referred to Patient A as "he" when he recorded "is here as he has been having dizziness and fogginess for a day". He did not refer to Patient A as "he" or "she" otherwise.
In his evidence to the Tribunal, the Appellant said that he had never encountered a transgender person so far as he was aware, and he did not know until after the consultation that Patient A was biologically female. He also told the enquiry that if he first saw a patient in the Treatment Room, then the consultation would be completed in the Treatment Room rather than have the patient moved to his Consultation Room. He would not take the patient to his consulting room or elsewhere but complete the consultation in the Treatment Room.
He told the section 150 hearing that he hadn't met Patient A before the consultation and didn't know Patient A.
In the Section 150 hearing the Appellant testified: -
"The Treatment Room is located almost in the middle of the Practice so it is accessed to all Doctors because it's a Treatment Room. A Treatment Room has three entrance doors, so almost all Doctors from different locations of the Practice have access to the Treatment Room. The Treatment Room has a side room of Pathology, so Pathology collectors, or the blood collectors work there and in the Treatment Room we have a nursing station. So we have three beds in the Treatment Room, nursing station, fridges for the vaccinations and also CPR and ECG facility and (indistinct) facility and next door - well adjusting door, is part of the Treatment Room, the pathology room with the blood collectors."
He said that the nurse who is based in the Treatment Room and the pathology collector(s) are on duty until 8PM and while on duty they "might be in and out" of the Treatment Room.
When asked about the use of the Treatment Room he said: -
"the use of the Treatment Room is that we have two strategies for the Treatment Room, one is that the patient unwell and he's possible to be transferred or scheduled by reception to go to the Treatment Room and get treatment from the Treatment Room. Let's say he's come with bleeding left wrist or bleeding or broken arm or the patient is in terrible pain or the patient is dizzy or the patient has chest pain and reported to reception, 'I am bleeding badly or I'm unwell or I have a bad headache, or I can't sit', but reception has a responsibility straight away where it sees the patient is in an urgency or terrible Medical condition that cannot bear sitting in the waiting room, feels responsible to schedule the patient straight away to the Treatment Room, so the nurse will be notified that "Mr and(sic) Mrs" or "Master" is coming to the Treatment Room with this condition.
The nurse comes and takes the patient to the Treatment Room or the patient if it is walkable situation the patient walks to the Treatment Room and the nurse is notified by the reception that Mr or Mrs or Master blah, blah, is coming to the Treatment Room. The patient will be sat on the chair or will be lying down on the bed until the nurse organises the first aid or whatever else is necessary as the first approach of the patient, then contacts the Doctor. That Doctor could be the first available Doctor if requested by patient or could be the patient's regular doctor.
If the patient, for example, cuts his hand and goes to the reception and says 'look, I'm [bleeding], I normally see Dr Smith, can he come and see me' the reception would say, 'well Dr Smith is not working today, would you prefer someone else,' and the patient would go for the second option or would say, 'if Dr Smith is not here then whoever is available can come and see me,' or it could be the case that the patient has never been there or has no specific Doctor in the mind (sic), then the patient says, 'I need to see anybody'. Then the nurse will contact the Doctor preferred by the patient and ask if he can come and see the patient."
He testified that any procedures, including plaster, injections, vaccination and removal of stitches would be attended to in the Treatment Room he said that he also performs skin cancer surgery in the Treatment Room. When asked what procedures he does in his Consultation Room, he said 'as far as I know there is no procedures (sic) I do.' But later he departed from that evidence to the hearing when, asked about pap smears, he said he performed that in his Consultation Room with a female nurse in attendance. Likewise, when asked about seeing a patient with a vaginal discharge, said he did those in his Consultation Room and, with a female nurse present.
In his oral evidence before the Section 150 hearing he confirmed that he had no recollection of Patient A and said that "whatever I say here" was based on reading his consultation notes and his usual practice.
He repeated his evidence in his statement that he did not consult that patient's medical record until after the consultation had been completed in the Treatment Room and he had returned to his Consultation Room.
He told the Section 150 hearing that the procedure is that when the patient is taken to the Treatment Room, the Doctor is notified and informed of the patient's condition. The Doctor will normally see the patient, perform an examination, and where required, request an ECG, which will be done by the treatment room nurse. He elaborated in terms of the examination aspect and said that it was as per the consulting record.
He told the hearing that once he saw the results of the ECG and read that they were normal, "further investigation or sending to hospital was not the case, so I decided to consider Patient A as a risk of the Flu and common cold patients." He said that at the time many of his patients had the Flu and complained of dizziness and headaches and/or similar complaints so Patient A "was thought to have the similar case because the examination, like the ECG, was normal." He said "I consider that it's a common cold". He said that he then gave Patient A the prescription for Panadeine Forte and he was "discharged" from the Treatment Room.
When asked why Patient A was given Panadeine Forte, the Appellant responded "Why? Because Patient A complained of a headache for a day, foggy one of those symptoms." When asked to indicate the complaint of headache he responded "Fogginess. She was complaining of fogginess and nausea." He had not previously alleged Patient A made any complaint of headache or of nausea.
The clinical record that he prepared from notes said that he made while with Patient A in the Treatment Room does not mention headache or any nausea. The clinical notes do not include any reference to headache, nausea, flu or common cold. They do not include any diagnosis.
In his evidence on September 3 2014 the Appellant denied Patient A had complained of an infected finger. He said, though, that the Medical records show that he did see another doctor few days previously, that the doctor had prescribed Cephalxein, which, he said, "is a quite appropriate medication for a finger infection" and "so Patient A has been dealt with that finger issue two days previous to the consult."
During the hearing there was this exchange about the time,
Dr Saedlounia, 5:40 she has arrived, registered. Dr Walker; that's recorded.
Dr Saedlounia; and my record is 7 - I think- 19 PM. I record the patient's - normally note after the patient leaves.
Speaker: You said that was 7.19?
Dr Saedlounia: 7.19. "Oh I'm pretty sure between 5:40 and 7.19, it's well before 8 pm that the patient's…..."
Relying on an Annexure C to his statement, the Appellant said that Patient A had arrived at 5:40PM and the consultation had been completed and he had opened Patient A's Medical records maybe 4 minutes later to enter the details of the consultation. But 84 minutes after Patient A arrived would have been only 7:04PM; not 7:19PM. In addition, his entry in relation to the consultation includes the numbers "19:06" before the entry for blood pressure and also before the entry for pulse. It appears that this could be time at which those measures were recorded in the medical record (not the time they were taken).
It was pointed out to the Appellant that in his statement of 2 September 2014 he had not made any comment about the actual mechanics of the examination that he undertook. He was asked "did she have to take her top clothes off, things at the level of disrobing?"
In the course of his answer he said that he performed a respiratory examination "which I do by auscultation with the stethoscope." When asked how he listened to the chest, he said "well, if the patient has one shirt only, then I can hear through the stethoscope. If they have thick clothes, normally in the Practice I don't even ask them to remove the clothes. I say, 'can I examine you and listen to your chest', which is 'take if off on there, I can listen'. I haven't come across with (sic) any patient where I need to say 'you need to take off your clothes'. If I come across I normally listen through clothes unless I cannot hear and then I say, 'sorry, I cannot hear. Is it possible for you to remove your clothes so I can listen from your back?'
He denied that there was any reason for him to have asked Patient A to take off lower clothing. He said in answer to a question that he does pull the curtains around a bed in the Treatment Room when he is examining the patient.
When asked, the Appellant said that at the time of the day when Patient A was in the Treatment Room, "it's very, very unlikely" that the nurse would have a reason to leave the Treatment Room. He denied the suggestion that the nurse might be entitled to have a dinner break in the period between 6pm and 8pm.
He said that looking at the period that Patient A was there, there were three patients in the Treatment Room. However, the Treatment Room record, which is Annexure E to his statement, shows that one patient arrived at 5:05PM for plastering and the next arrived at 5:20PM for an ECG, and the next arrived at 5:25PM for a vaccination. There is no evidence to indicate why any of those patients would still be in the Treatment Room when Patient A was seen by the doctor and the nurse commenced the ECG at 6:10PM. The next patient to arrive in the Treatment Room after Patient A did not arrive for "post op care" until about 18:40, 30 minutes later.
It therefore appears possible that Patient A was the only patient in the Treatment Room from before 6:10PM until about 6:40PM when the next patient arrived and for whom the nurse commenced post-op care".
The patient after that attended and commenced an ECG at 6:50PM. When the Appellant was giving his evidence at the Section 150 Hearing, he said that there were three patients allocated to the Treatment Room, he did not refer to the Treatment Room patient attendance sheet, but instead referred to the list of his patients he saw that day which included another patient, Ms J who arrived in the Practice at 6:18PM, but was not shown in the Treatment Room records as having attended there before 6:50PM, which is the time of the last entry on the record on Annexure E statement. In addition, he referred to the entry in Annexure B for Ms K who was to have a dressing changed in the Treatment Room. Although the patient is shown as arriving at 5:31PM in Annexure B to his statement, there is no entry showing her as attending the Treatment Room in the period of 3:50PM to 6:50pm in the Treatment Room patient attendance sheet, which is Annexure E to his statement.
When asked at the Section 150 enquiry whether he had informed his colleagues at the Medical Centre of the complaint, he avoided the question and instead said "I have discussed it with my Supervisor and with one Mentor." When asked whether the Practice Manager had he been told about it, he said he didn't know. It was clear from the material that he volunteered after that, that he had not told the Practice Manager. He said he had not discussed the issue with the Practice Manager and she had not asked him for further information.
He said that the Practice Manager had told him that they had received a complaint and had told him "we haven't had a complaint like this before." He said he had asked her "then what is the complaint?" and she said "I don't know." He said that he had assumed "that they know about the complaint but they didn't want to confront me with the complaint because it was sensitive. They didn't know how to say to me that they knew what the complaint was..."
At the Section 150 enquiry, when he was asked when he wrote his notes of the consultation, he said: "it was after 7PM. 1906." He said that he finished the patient's consultation and then wrote the notes.
The Appellant prepared a fresh statement dated 18 December 2014, which he relied upon in the Tribunal hearing. The material in that statement did not go to the issues raised by patient A's complaint.
The Appellant gave some oral evidence at the hearing before the Tribunal and was also cross-examined at length. The cross-examination related not only to the complaint by Patient A, but also to other issues.
In the hearing before the Tribunal, it was put to the Appellant that Patient A presented a swollen right middle finger on 26 July 2014. The Appellant was evasive, but eventually conceded that it was true but said another doctor saw him.
When he was asked how many times he examined Patient A on 28 July, he said he couldn't recall. He was asked whether he asked Patient A about the recording of his consultation 2 days before and said he didn't. He said he didn't read the record in relation to the consultation on 26 July. When asked why not, his answer was "I don't recall." It was put to him that it would have been relevant to consider the record of the consultation on 26 July when Patient A attended on 28 July. He replied, "it could be", but he said he can't recall Patient A and his recollection is totally reliant on the Medical record he made on 28 July.
It was put to him at the Tribunal hearing that he would have noticed a finger problem had he conducted a thorough examination of Patient A. His response was to ask "what do you mean by a thorough examination?" It was put to him that if Patient A was complaining of fogginess and dizziness then he would have noticed an infected finger and he answered "if relevant". It was put to him that before the Medical Council he had acknowledged at one stage that his record keeping could have been better. And he responded "yes, not about this patient". It was put to him that "there is a weight of history in your record keeping that tends to suggest that good records have not been kept in this case?" and he answered "not true - the record problem was back 8 years ago. Since then I have done the Fellowship exams and improvements satisfied examiner's requirements of a good doctor." He said that in 2011 he had been made a Fellow. He said he had had no complaint after that regarding his records. However, the failure to record any diagnosis in his record of the consultation is a serious inadequacy that is inconsistent with his evidence in this regard.
He was asked about the respiratory examination on Patient A. He said he had no recollection if Patient A had been required to remove his shirt. It was put to him that if a respiratory examination had been done, it would have been difficult not to see that the person was transgender. He answered "the respiratory examination I do from the back." It was put to him that if he had read the Medical Notes before or during the period he saw Patient A, he would have known that he was biologically a woman. His response was to say that there was no access to the medical record in the Treatment Room.
It was put to him that it was possible that the nurse was not in the treatment room at all at the time that Patient A alleges the sexual assaults occurred. His response was to say, at that time there were three patients getting treatment and only one nurse. The nurse was Ms Mel. In fact, he avoided the question and it appears the proposition he raised of three patients being there at the relevant time was a misstatement of the evidence from the Treatment Room record.
He was then referred to the paragraph 3 of her statement when she said that her duties included doing work in the Consultation Rooms of the doctors as well as working in the Treatment Room. It was put to him that he claimed that she was in the room the whole of the time. His response then was "I'm not sure". He was referred to paragraph 18 of his statement where he said "I believe the Practice nurse was in attendance at all times I was with Patient A". He then responded "in the Treatment Room; there were three patients". But this evidence coming from him when he says he has no recollection of the patient or the occasion, other than his limited and inadequate notes in the patient's medical record, is not recollection, but reconstruction.
He said that the doctor has to attend on a patient before an ECG and has to request the ECG. His attention was drawn to Patient A's Medical records and he was asked why there was no record that he requested an ECG. His answer was "I don't know". It was put to him again that there was no record that he ordered the test and he avoided the question. But he then said that it wasn't possible for another doctor to have ordered the test. He said that when Patient A was sent by the reception to the Treatment Room the doctor is organised and the doctor requests the ECG. Again he avoided the question that there was no record that he requested the test. When the Chairperson of the Tribunal directed him to answer question he conceded the proposition.
It was put to him that when Patient A arrived he showed the Appellant his finger and told him it had not improved since the previous consultation. He denied examining the finger. He denied that he asked Patient A if the patient had had bleeding. He had conceded, though, that if patient had complained of dizziness and feeling unwell, he might have asked whether Patient A had had any bleeding. He denied asking Patient A to remove his pants and denied touching Patient A's buttocks. He said there were no circumstances that would have justified him touching Patient A's breast and no circumstances where it would have been appropriate for him to squeeze and push the breast. He denied the allegations about asking Patient A to show him the pelvic area, to open his knees, and to keep his feet together. He denied touching the vagina and that area.
He was asked whether he left Patient A after the ECG test and he answered "I don't recall".
He said he saw two patients with the surname B in his consulting room at 5:45 and then two patients with the surname Mr M in his consulting room 14 minutes later at 5:59. But the times he gave were the times that those patients arrived at the Practice. According to Annexure B to his statement, from when the B's arrived at the practice to when he opened their Medical records was a period of 22 minutes and 21 minutes. He said he made the entries in their Medical records at 6:07. Ms Mel, according to her evidence, commenced the ECG on Patient A at 6:10.
According to Annexure B to his statement, Mr M arrived at 5:59pm and Ms M arrived at 6 pm. According to the wait time in Annexure B to his statement, he opened their Medical records at 6:53 and 6:54.
He was not seeing any of these patients in the Treatment Room. He saw them in his Consultation Room. There was no specific evidence as to when, relative to consultations, he opened the Medical records for the patients as it is not his evidence that when he sees patients in his rooms he does, or does not, open the Medical record only after he has finished the consultation. Obviously, the most responsible approach would be to open the Medical record before the patient comes to the Consultation Room and inform himself of at least the recent circumstances of the patient or refresh his memory of those matters.
In cross-examination he was unable to say how many times he saw patient A during Patient A's visit to the Practice that day.
The Appellant was asked by a Panel member about what his usual Practice was regarding viewing the clinical notes of a patient if a patient was in the Treatment Room. He said he only ever accesses the clinical notes by a computer in his own consulting room. He said that if he sees a patient in the Treatment Room and needs to refer to the clinical records, he has to come back to his room to do that. When asked if he ever looks at the clinical record for a patient before he sees the patient in the Treatment Room, his answer was "sometimes" he gave some examples such as a child that has been bitten by a spider.
He was asked by another Member of the Panel about what access the nurse has to the clinical notes on her computer and he said that he is "not sure" what she can access on her computer. She said the nurse uses her own password to access material. He was reminded that he had not seen this patient before and was asked whether it was his usual practice of access to the clinical records of the patient before seeing them such circumstances. He avoided the question. He was then asked "isn't it useful to look at the record before seeing a new patient?" and he conceded that proposition but said that he doesn't always go and look at Medical record first. He said "it depends too on what the nurse says. The nurse calls me." he also said "it depends if it is urgent".
When a Panel Member asked him why he thought Panadeine Forte was an appropriate medication for "fogginess", he said "Patient A had no problem of the throat, or ears, no head injury. I imagine it was just a common cold." when the question was repeated again, he said that he did it for the flu.
When the Appellant was asked by a Panel Member whether he noticed that Patient A had something wrong with his right middle finger when he saw him, his answer was "I don't recall" when asked, he said he wouldn't have prescribed Panadeine Forte if Patient A's problem was an infection of the middle right finger and feeling dizzy.
The Tribunal notes that although the Appellant claimed to have diagnosed Patient A as suffering influenza or a cold, he did not recorded such diagnosis on Patient A's Medical record. The medical record also did not disclose that he had ordered the ECG.
[11]
SOME QUESTIONS ABOUT THE SUBJECT COMPLAINT AND THE DOCTOR'S RESPONSES
The appellant has a history of dishonesty. He was not a good witness. He was often evasive. He was at times unconvincing. He lied about some issues. For example, his evidence that neither he nor his proposed supervisor and his proposed mentor had received some important letters, emails and phone calls from the Medical Council. Another example is his evidence that there were 3 patients in the treatment room at the time he was alleged to have assaulted Patient A in the context that he has no recollection of Patient A or the consultation.
It is arguable that the receptionist's decision to send Patient A to the Treatment Room would be more consistent with Patient A returning with the swollen infected finger after the previous appointment two days before when antibiotics were prescribed, than complaining of being "foggy and dizzy".
It is clearly not good practice for the doctor to provide a first consultation to a patient of the practice without consulting the patient's medical record. But the appellant testified that with all patients that are referred to the Treatment Room and seen by him there, he does not consult the medical record of the patient until after the consultation is concluded. It is somewhat unlikely that a doctor would do that.
The time elapse for the patient between arriving at the practice and conclusion of the consultation and opening of his medical record was 84 minutes. That seems extraordinarily long for a patient with a cold or the flu. It was substantially longer than the comparable time for any other patient the appellant saw that day. It also seems that there was an extraordinary gap between the doctor being notified of the ECG result and him concluding the consultation by giving the patient a prescription.
There is nearly more than 30 minutes from when the nurse commenced the ECG at 6.10pm till when the consultation concluded.. It appears that for that period there was no other patient in the Treatment Room, notwithstanding the appellant's evidence that there were 2 others.
Notwithstanding the evidence of the appellant that the nurse rarely leaves the treatment room, Ms Mel's evidence is that she does and has other duties in the consultation rooms. When she completed the ECG and notified the appellant that there was no abnormality, Patient A was the only patient there and her triaging, the examination by the appellant and the ECG had not revealed any abnormality.
It is possible that Ms Mel then left the treatment room to perform duties elsewhere from after she advised the appellant of the ECG result till about 7.00pm.
On the face of it, it seems inherently unlikely that given his past problems concerning inadequacies of his medical records and clinical activities, the appellant would have seen a new patient without first referring to the patient's medical records. The only evidence that he did not do that is the Appellant's. But he also says he has no recollection of the patient or the consultation.
Questions arise as to whether the appellant did know that the patient was transgender and was biologically female, either from the reception staff or from other persons in the practice, or by accessing patient A's medical record before he says he did, or by the examination he performed..
The allegations by patient A are quite bizarre and on the face of it appear very unlikely. But some of the past complaints about the appellant also have been quite bizarre. And some of them, such as lying about what the East German patient told him, repeatedly breaching his visa conditions and his practising conditions, the complaints of Dr Dore, the adverse findings of Dr Kelly and the complaints from Ms Bruning have been found true or partly true.
[12]
CONCLUSIONS
The powers of the tribunal on an appeal such as this are in section 159C of the National Law. It provides
159C Tribunal's powers on appeal [NSW]
(1) On an appeal, the Tribunal may by order terminate, vary or confirm a period of suspension or revoke, vary or confirm the conditions, as it thinks proper.
(2) The Tribunal's order must not cause a suspension or conditions imposed by a Council to have effect beyond the day on which a related complaint about the person is disposed of.
The concern of the tribunal in these proceedings is to determine the appropriateness of the order made by the Medical Council at the time of this review. (National Law S163C).
The purpose is protection of the public. In cases such as this where serious allegations have been made which, if true, could require suspension or cancellation of the appellant's registration, but the evidence is incomplete and further investigation is needed, the issue is not whether the allegations are proved, but whether the evidence establishes a risk to the public requiring imposition of a condition for protection of the public.
The Tribunal's conclusion is that such a condition is still required, but that the condition should not continue indefinitely. The evidence establishes that the conditions imposed still were necessary for protection of the public at the time of the hearing before the Tribunal. The Tribunal has concluded, though, that one year is an adequate period to allow for the Police and the Health Care Complaints Commission to identify any other relevant evidence and conclude their investigations. The situation can then be reassessed by the Council.
[13]
COSTS
The Medical Council sought an order that the appellant pay its costs. The appellant opposed that application and proposed there be either an order for the Medical Council to pay his costs, or no order for costs.
The power for the Tribunal to make an order for costs in an appeal such as this is contained in clause 13 of Schedule 5D of the National Law. In subclause 13(4) it provides that the provisions of clause 13 apply instead of the provisions of section 60 of the Civil and Administrative Tribunal Act 2013. In para 60(4)(b) of the latter Act there is specific provision that the Tribunal can order that costs to be paid be assessed under Division 11 of Part 3.2 of the Legal Profession Act 2004. There is no similar provision under the National Law. The Court of Appeal has held that the provisions of clause 13 of schedule 5D do not permit the Tribunal to make an order for costs ordered to be paid to be assessed, and if the parties do not agree on the amount, the Tribunal must still fix the amount (Health Care Complaints Commission v Phillipiah [2013] NSWCA 342).
It has also been held that the usual course in applying the provisions of clause 13 is that costs follow the event (Ohn v Walton (1995) NSWLR 77 endorsed in Lucire v HCCC (No 2) [2011] NSACA 182). The Respondent submitted that it was successful because the appellant throughout from November 2014 wanted the condition removed completely, whereas the decision of the tribunal was for the condition to apply for a year till 28 August 2015. But the Respondent did not at any stage propose an expiry date for the conditions. It did not seek such a result.
The Respondent also drew the attention of the Tribunal to the fact that it would in any event have been open to the Appellant to have applied to the Medical Council in August, or earlier, to reconsider whether the condition should continue to apply.
There is no evidence that either party suggested to the other that the proceedings be resolved by fixing an expiry date for the conditions.
For the Respondent it was argued that the respondent was successful because the outcome was an expiry date where there had been none. But the Respondent never sought that outcome, and may have achieved a similar result without an appeal by having the council review the need for the condition, which it will probably now will do at the end of August.
The tribunal is not satisfied on the available evidence that the same or similar conditions will or will not be imposed after the subject current conditions expire.
The tribunal does not consider either party to have been "successful" in the proceedings. There should be no order for costs.
[14]
ORDERS
Accordingly the orders of the Tribunal made on 3 February 2015 were:-
1. The conditions imposed upon the appellant's registration by the Medical Council of NSW decision of 3 November 2014 are confirmed but qualified so that the conditions apply only until 28 August 2015.
2. Otherwise the application is dismissed.
3. Publication of any information that may identify a patient of the applicant or of any medical practice is prohibited.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
[15]
Amendments
03 July 2015 - Updated publication restriction, paragraphs 133, 148 and 149.
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: 03 July 2015