AL-NASER v MEDICAL BOARD OF AUSTRALIA (No. 2) (Occupational Discipline)

[2019] ACAT 110

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

AL-NASER v MEDICAL BOARD OF AUSTRALIA (No. 2) (Occupational Discipline) [2019] ACAT 110

OR 17/2019

Catchwords:  OCCUPATIONAL DISCIPLINE – health practitioner regulation – appeal from immediate action – conditions varied

Legislation cited:     ACT Civil and Administrative Tribunal Act 2008 ss 39, 55

Health Practitioner Regulation National Law (ACT) ss 3, 141, 151, 155, 156, 199, 202

Cases cited:  Gerstman v Medical Board of Australia [2019] VCAT 830

Hocking v Medical Board of Australia [2015] ACAT 22

I v Medical Board of Australia [2011] SAHPT 18

Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295

Reeve v Aqualast Pty Ltd [2012] FCA 679

The Medical Board of Australia v Al-Naser [2015] ACAT 15

The Medical Board of Australia v Al-Naser [2019] ACAT 71

List of

Texts/Papers cited:  Professor Ron Paterson, The use of chaperones to protect patients in Australia (February 2017)

Tribunal:      Senior Member M Brennan (presiding)

Senior Member D Byrne

Date of Orders: 4 December 2019

Date of Reasons for Decision:        4 December 2019AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL         )          OR 17/2019

BETWEEN:

NATHEM AL-NASER

Applicant

AND:

MEDICAL BOARD OF AUSTRALIA

Respondent

TRIBUNAL:           Senior Member M Brennan (presiding)

Senior Member D Byrne

DATE:         4 December 2019

ORDER

The Tribunal orders that:

1.           Paragraph 1 of the decision under review is amended with effect from the date of this order as set out below:

Conditions

Gender based restriction

1.  The practitioner must not practise as a medical practitioner other than at the approved practice locations below:

(i)     Conder Surgery

(ii)    Belconnen Medical Centre.

2.  After publication of approved practice locations the practitioner must not have any contact with female patients and must only practise at approved practice locations.

For the purposes of this condition, the following definitions apply:

‘Practise’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a medical practitioner in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a medical practitioner in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the medical profession.

‘Practice location’ means any location where the practitioner practises the profession including any place where the practitioner:

(a)   is self-employed

(b)   shares premises with other registered health practitioners

(c)    is engaged by one or more entities under a contract of employment, contract for services or any other arrangement or agreement

(d)   provides services for or on the behalf of one or more entities, whether in an honorary capacity, as a volunteer or otherwise, whether or not the practitioner receives payment from an entity for the services, or

(e)    provides professional services at the residential premises of a patient.

‘Patient’ is defined as any individual awaiting, requiring, or receiving the professional services of the practitioner or a registered health practitioner within the same place of practice as the practitioner and any spouse, partner, parent, family member or guardian/carer of this individual.

‘Contact with a patient’ includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device.

‘Male’ is defined as any individual whose biological sex is that of a male, as well as all individuals whose gender identity or gender expression is that of a male.

‘Female’ is defined as any individual whose biological sex is that of a female, as well as all individuals whose gender identity or gender expression is that of a female.

3.  The Practitioner must comply with the Gender-based restriction protocol in force at the date these conditions are imposed and then as amended from time to time.

4.  Within three (3) days of notice of these conditions being imposed the practitioner is to provide acknowledgement, on the approved form (GBR-1) that:

•     they have read and understood the Gender-based restriction protocol

•     they are aware that they are not permitted to practise until such time as approved practice locations are published

•     they understand the definition of ‘patient’, ‘practise’, ‘practice location’, ‘male’, ‘female’, and ‘contact’ as detailed in this condition, and

•     they are aware of the actions AHPRA may take for the purposes of monitoring compliance with the gender-based restriction.

5.  Within three (3) days of notice of the imposition of these conditions the Practitioner must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that:

(a)    AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioner’s registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and

(b)   The Practitioner will be required to provide the same form:

(i)      within seven (7) days of the commencement of practice at each and every subsequent practice, and

(ii)     within seven (7) days of each and every notice of any subsequent alteration of these conditions.

6.  All costs associated with compliance with the conditions on their registration are at the Practitioner’s own expense.

7.  These conditions are in addition to any other conditions or sanctions imposed on Dr Al-Naser.

2. Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008:

(a) Unless by their consent, publication of the names or any identifying details of the Applicant’s patients, including Patient AC, her daughter and friend providing evidence on behalf of the Respondent and/or any evidence, medical records, photographs or other documents pertaining to the patient referred to in this proceeding is prohibited.

…………………………..

Senior Member M Brennan

For and on behalf of the TribunalREASONS FOR DECISION

Introduction

1.           In these reasons a reference to the ‘tribunal’ or ‘ACAT’ refers to the ACT Civil and Administrative Tribunal generally and ‘Tribunal’ refers to the members hearing this matter.

2.           Dr Nathem Al-Naser (the practitioner) is appealing conditions on his registration to practise medicine imposed by the Medical Board of Australia (the Board) when it took immediate action earlier this year. These conditions prevent the practitioner from treating female patients and only allow him to practise at the Conder Surgery and not the Belconnen Medical Centre. In addition to an individual seeking medical services, the conditions define “Patients” as a female partner, parent, family member or guardian/carer of a patient. The task for the Tribunal is to consider whether these conditions should remain on the practitioner’s registration as pressed by the Board, or whether they should be removed as submitted by the practitioner.

Summary

3.           On 27 May 2019 the Board decided to impose conditions on the practitioner’s registration as a form of immediate action after it considered two notifications about the practitioner’s conduct in his consultations with a patient (Patient AC), over a several years. Specifically, the notifications raised the risk that the practitioner had engaged in multiple boundary violations with Patient AC in the course of his treatment of her. The practitioner was notified of the decision by a letter to his solicitors on the same date.

4.           The conditions imposed by the Board are that the practitioner must not have any contact with female patients, and he can only practise at approved locations. After consideration of the practice locations nominated by the practitioner, the Board initially approved him practising at the Conder Surgery and the Belconnen Medical Centre. The approval for the later location was subsequently withdrawn.

5.           The practitioner appealed the Board’s decision on 24 June 2019 seeking review on the ground that the 27 May 2019 decision was wrong in fact and law.

6.           The Tribunal heard the application for review on 30 October 2019. The Tribunal has formed a reasonable belief that because of the practitioner’s conduct in treating Patient AC over many years, he poses a serious risk to persons and that it is necessary to take immediate action in order to protect public health and safety from that risk. The immediate action taken is the imposition of conditions on his registration prohibiting him from having any contact with female patients at the approved practice locations of the Conder Surgery and the Belconnen Medical Centre.

7.           Effectively, the Tribunal has amended the Board’s decision in approving Belconnen Medical Centre as an approved practice location. Otherwise, the Tribunal confirms the same conditions imposed by the Board on the practitioner’s registration.

The hearing

8.           The practitioner filed two affidavits and the Board filed affidavit evidence from Patient AC, her daughter, her psychologist and a friend. Both parties lodged written submissions, and the Board filed a statement of facts and reasons which attach a large set of T-Documents.

9. At the start of the hearing the Board’s counsel asked the Tribunal to make orders under section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) prohibiting the publication of the names of Patient AC and her daughter and friend. The practitioner’s counsel opposed the request. When reasons were sought for this opposition the Tribunal was advised that the practitioner simply opposed the order being made and no reasons were provided to the Tribunal.

10.         The material filed by the parties contains the name of Patient AC, her daughter and friend. The Tribunal was satisfied that the names of Patient AC, her daughter and friend should remain private for the same reasons expressed in Hocking v Medical Board of Australia (Hocking) namely:

…the interest of the private lives of the patients required the privacy. This is a competing interest that outweighs the right to a public hearing. … keeping their names private does not derogate from the principles of open justice and is consistent with legislative schemes that recognise that personal health records and information should have special privacy protections.

11.         No witnesses were called to give evidence. The parties advised at a directions hearing conducted on 21 October 2019 that the Tribunal would be asked to consider the filed material, subject to any objections made at the hearing. The affidavits were tendered without objection.

12.         The practitioner attempted to tender some new evidence in support of the financial impact of the Board’s conditions, particularly in so far as being prevented from practising at the Belconnen Medical Centre. The Board’s counsel objected to the evidence noting that the documents the practitioner wished to tender could have formed part of his affidavit evidence and in and of themselves were not proof of the financial impact of the conditions.

13.         The practitioner declined the option of giving verbal evidence on this issue and the tender of this additional material was not pressed.

14.         After hearing submissions from the parties’ counsel, the Tribunal reserved its decision.

The National Law

15.         In Hocking the then General President of the tribunal detailed the provisions in the Health Practitioner Regulation National Law (ACT) the (National Law) in relation to immediate action and appeals, which the Tribunal sets out below (omitting footnotes):

12.   Division 7 of Part 8 provides for ‘immediate action’. Section 155 defines immediate action to mean suspending or imposing a condition on registration, accepting an undertaking or accepting the surrender of a registration. Section 156 empowers a National Board to take immediate action in relation to a registered health practitioner in specified circumstances. The circumstances that are relevant in this case are:

(1)     A National Board may take immediate action in relation to a registered health practitioner ...if—

(a)       the National Board reasonably believes that—

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

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

13.   The criteria are different from those relevant to a tribunal’s consideration of a referral of a matter relating to the practitioner’s professional performance or conduct. Immediate action is intended to provide an immediate response to an identified risk for the purpose of safeguarding public health or safety pending further investigation of a notification and where appropriate, referral to a tribunal for consideration of action to address performance, conduct or impairment more generally. In this case, there has been an investigation of the matters raised in the Notification and a referral to the tribunal which is set down for hearing in coming weeks.

Appeals

14.   Section 199 of the National Law provides a right to appeal to the responsible tribunal against certain decisions. Although it is only section 199(1)(h) which is relevant in this matter, the section is set out in full so that the types of decisions that can be appealed to the tribunal are evident. The section provides:

199    Appellable decisions

(1)     A person who is the subject of any of the following decisions (an appellable decision) may appeal against the decision to the appropriate responsible tribunal for the appellable decision—

(a)       a decision by a National Board to refuse to register the person;

(b)       a decision by a National Board to refuse to endorse the person’s registration;

(c)        a decision by a National Board to refuse to renew the person’s registration;

(d)       a decision by a National Board to refuse to renew the endorsement of the person’s registration;

(e)        a decision by a National Board to impose or change a condition on a person’s registration or the endorsement of the person’s registration, other than—

(a)       a condition relating to the person’s qualification for general registration in the health profession; and

(b)       a condition imposed by section 112 (3) (a);

(f)        a decision by a National Board to refuse to change or remove a condition imposed on the person’s registration or the endorsement of the person’s registration;

(g)       a decision by a National Board to refuse to change or revoke an undertaking given by the person to the Board;

(h)       a decision by a National Board to suspend the person’s registration;

(i)        a decision by a panel to impose a condition on the person’s registration;

(j)        a decision by a health panel to suspend the person’s registration;

(k)       a decision by a performance and professional standards panel to reprimand the person.

It is worth noting that the decision to take immediate action is not an appellable decision. The appellable decision is the decision made on an immediate basis, in this case, the suspension of the applicant’s registration.

16.         Section 199(1)(i) of the National Law is the relevant provision in this case. In conducting the review, the Tribunal is empowered by section 202 of the National Law to confirm or amend the original decision or to substitute another decision for the appellable decision.

The notifications

17.         On 15 March 2019 registered psychologist, Ms Thali Bower-Williams lodged a notification with the Australian Health Practitioner Regulation Agency (AHPRA) reporting that a patient attending her psychology practice advised her two days earlier that “she has been experiencing a sense of ‘discomfort’ around her GP’s behaviour…In session [Patient AC] reported that this has included him speaking about sexual and relationship issues he experiences with his wife to her, an attempt to kiss her a number of years ago, and most recently he asked her opinion about enhancing sexual pleasure through the use of marijuana”. Ms Bower-Williams also detailed that Patient AC “reported that she has typically felt ‘dependent and compliant’ with [the practitioner].”

18.         On 3 April 2019 AHPRA recorded a notification form Patient AC which detailed alleged conduct of the practitioner from 2 April 2012 to 7 March 2019, including that at a consultation approximately 7 years ago the practitioner had kissed her. In a later statement, Patient AC claimed that the practitioner had discussed “his situation with his wife and …sexual problems” and “always commented on what she was wearing, and also made comments about whether she was sexually active.” Patient AC also alleged that after a breast examination the practitioner commented in words to the effect that she was “one of the most beautiful woman he had seen in his life” and in advising that he could perform a pap smear then said in words to the effect: “oh, you’re just a chicken” when Patient AC declined that offer. Patient AC said that at her last consultation on 7 March 2019 she confronted the practitioner and accused him of mistreatment since the time that he had kissed her.

The Board’s action

19.         The Board decided that these notifications should be investigated at a meeting on 13 May 2019. Investigations in relation to the notifications are continuing. It further decided that immediate action should be taken on 27 May 2019 with effect that the practitioner was no longer able to see female patients and could only practise at approved locations. The practitioner was asked to provide details of where he practiced. After a review of both locations, the Board provisionally approved the practitioner practising at Conder Surgery and the Belconnen Medical Centre on 3 June 2019.

20.         On 13 August 2019 the Board advised the practitioner that it revoked the earlier decision provisionally approving Belconnen Medical Centre. The Board noted that the practitioner owned this practice and that his daughter’s part-time work there included making appointments for medical practitioners, including on Saturdays when she was unsupervised by the practice manager.

21.         The Board advised the practitioner that it considered Belconnen Medical Centre was no longer a suitable practice location because there was “an unavoidable and inherent power imbalance between a health practitioner and a booking staff member in circumstances where an employer/employee relationship exists which in this instance is exacerbated by the fact that you and Julia share a paternal relationship.”

Issue for determination

22.         The issue for the Tribunal is the same as that considered by the Board when it took immediate action under section 156(1)(a) of the National Law on 27 May 2019; namely, does the Tribunal reasonably believe that:

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

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

23.         The Federal Court has provided some guidance on what constitutes “reasonable belief”, observing “While the notion of reasonable belief may set the threshold “at quite a low level”, there must be some tangible support that takes the existence of the alleged right beyond mere “belief” or “assertion”.

24.         Only interim protection is envisaged when immediate action is taken. In Kozanoglu, the Victorian Court of Appeal said:

While the purpose of the immediate action provisions is the protection of the public … only interim protection is envisaged. The practitioner’s suitability to practice is then revisited, on all the material, before the panel or the responsible tribunal [after a hearing on the merits under Division 12].

25.         Further, while a decision to suspend a practitioner’s registration or impose conditions, as the Board did in this case, is made in the interests of public safety, “that safety should be secured with as little damage to the practitioner as is consistent with its maintenance.”

26.         Additionally, one of the Guiding Principles expressed in the National Law is that “restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.”

The evidence

27.         The following documents were marked as exhibits:

(a) A1 – Affidavit of Nathem Al-Naser dated 19 August 2019.

(b) A2 – Affidavit of Nathem Al-Naser dated 28 October 2019.

(c) R1 – Statement of Facts and Reasons dated 22 July 2019.

(d) R2 – Affidavit Patient AC dated 13 September 2019.

(e) R3 – Affidavit of Thaliasura Bower-Williams dated 13 September 2019.

(f)  R4 – Affidavit of Patient AC’s daughter dated 13 September 2019.

(g) R5 – Affidavit of QM’s friend, unsigned and undated.

(h) R6 – Affidavit of Kirsty Easdale dated 29 October 2019.

(i)  R7 – Affidavit of Kirsty Easdale dated 13 September 2019.

28.         In addition to helpful written submissions from both parties, the Tribunal was assisted by T-Documents which included the two notifications, the correspondence between AHPRA and the practitioner’s lawyers and also earlier notifications made against the practitioner.

Previous notifications

29.         The Board considered the practitioner’s previous notifications history at its meeting on 13 May 2019 when it examined the notifications made by Patient AC and Ms Bower-Williams.

30.         The Board described two earlier matters as relevant notifications history. The first arose from notifications made in May 2013 from a registered psychologist and a patient of a colleague of the practitioner, who was a general practitioner working at a practice established by the practitioner. The notifications dealt with the practitioner’s failure to lodge a mandatory notification in respect of his colleague, who had engaged in a sexual relationship with the patient, the second notifier. The patient alleged that the practitioner had told her that “maybe [she should] forget it happened and move on.”

31.         When the matter was heard by ACAT after referral from the Board, the practitioner was found to have engaged in professional misconduct and various conditions were imposed on his registration.

32.         A second notification made in March 2017 concerned allegations that the practitioner had engaged a patient to work for him on his construction site and had provided misleading information to Centrelink that the patient was unfit to work whilst employing the patient. The Board on that occasion cautioned the practitioner that he maintain appropriate professional boundaries with patients.

33.         At its 13 May 2019 meeting, the Board was also provided with details of several current and previous notifications about the practitioner, described as only for noting. Seven notifications ranging from September 2010 to October 2018 deal with the practitioner’s performance as a medical practitioner. As at May 2019 some were still under investigation, while others had been decided by the Board or referred to ACAT for determination.

The applicant’s submissions

34.         The applicant’s counsel submitted that the evidence does not give rise to a reasonable belief that, through his conduct, the practitioner poses a serious risk to persons and that it is necessary to take immediate action to protect the public. The evidence of Patient AC constitutes unsubstantiated allegations which changed with each retelling. Further, the allegations are not supported by objective evidence.

35.         The applicant’s counsel drew the Tribunal’s attention to Patient AC’s last consultation with the practitioner on 7 March 2019. She argued that her client’s contemporaneous records reveal that Patient AC was very unhappy about the practitioner refusing to prescribe Oxycontin. She submitted that the consultation notes provide clear evidence that Patient AC had a motive in lodging the notification, as she did not receive the medication she wanted. Further, it was submitted that Patient AC’s history of drug and alcohol misuse meant that the Tribunal should prefer the practitioner’s evidence. Given this, it was argued that the practitioner did not pose any risk, let alone a serious one.

36.         The applicant’s counsel argued that in the event that the Tribunal finds that the practitioner poses a serious risk and that immediate action is necessary, the conditions imposed are unnecessary and disproportionate to any serious risk he creates. The non-approval of the Belconnen practice was submitted as being not founded on any sound basis. Further, the gender restrictions were described as not proportionate as the Tribunal cannot form a reasonable belief that the practitioner posed a serious risk to every single female patient. Finally, it was submitted that if the Tribunal considers it necessary to impose such a restriction, chaperone conditions would be more appropriate.

37.         In terms of the prior notifications, counsel for the practitioner submitted that the Tribunal should not consider that they provided support for the “excessiveness of the current conditions”. This is because “such findings are all so factually different from the current allegations that they can form no proper basis for the current conditions. It is also not sufficient to say that some included boundary violation, as the factual circumstances are so vastly different as to not be at all persuasive when such a broad stroke approach is taken.”

38.         The practitioner’s counsel also submitted that the previous findings about the practitioner could be considered but this should be limited to the findings and not the evidence on which they were based.

The respondent’s submissions

39.         The respondent’s counsel submitted that the evidence of the practitioner’s conduct given by Patient AC, Ms Bower-Williams, Patient AC’s daughter and Patient AC’s friend support the allegation that the practitioner kissed Patient AC at a consultation several years ago. Ms Bower-William’s affidavit dated 13 September 2019 also details that Patient AC had disclosed to her a number of other concerning behaviours in which the practitioner allegedly engaged. In her statement, Patient AC’s friend said Patient AC had also recounted her exchanges with the practitioner including about his personal life and his marriage.

40.         Patient AC’s daughter also gave evidence of the practitioner engaging in communication of a personal nature including after recently administering a lip filler to her and commenting: “Look how beautiful it looks on you. Your mother, however, is getting old and will need a lot more.”

41.         In relation to the practitioner’s affidavit evidence that at his last consultation with Patient AC she had demanded Oxycontin and the submission that his contemporaneous and detailed notes of this appointment should be given greater weight than Patient AC’s evidence, the Board’s counsel submitted that the practitioner had a clear motive to make self-serving clinical notes because during the consultation Patient AC had specifically raised the issue about him kissing her previously and her not receiving appropriate care from him. Patient AC in her statement asserted that the practitioner had taken this as a threat and advised that he would no longer treat her.

42.         The Board’s counsel drew the Tribunal’s attention to the fact that the practitioner’s notes of this consultation were far more detailed than any of his other entries which are a couple of lines or less.

43.         She also submitted that if the Tribunal found there was a need for immediate action, that chaperone conditions proposed by the practitioner as an alternative condition, should not be considered on the basis of earlier authorities and the review undertaken by Professor Ron Paterson in 2017 into “The use of chaperones to protect patients in Australia” (Chaperone Review).

44.         The Board’s counsel noted that since 2008 three other medical practitioners working at the practitioner’s practice locations have been subject of complaints of misconduct, including boundary violations with patients. She submitted in these circumstances, even if the imposition of a chaperone condition was sufficient to mitigate against the serious risk to public safety posed by the practitioner, it would be inappropriate for the nominated chaperone to be an employee of the practitioner or another practitioner working at one of his practice locations.

45.         In terms of prior notifications, the Board submitted that the Tribunal may take the practitioner’s prior history into account and nothing limits this consideration to findings only, as asserted by the practitioner.

Immediate action

46.         As noted by the South Australian Health Practitioner Tribunal in I v Medical Board of Australia, “[t]he Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed inquiry by the Board or by the Tribunal. It requires action on an urgent basis because of the need to protect the public.”

47.         After examining the totality of the evidence, the Tribunal has formed a reasonable belief that the practitioner poses a serious risk to persons. It considers there is objective evidence of the practitioner’s boundary violations with Patient AC in various consultations over an extended period. While other than Patient AC, the evidence supporting this allegation comes from those whom she has told of the practitioner’s alleged conduct, this is invariably going to be the case where only a health practitioner and patient were present during the consultations. The Tribunal agrees with the Board’s submission that it would be an “insurmountable barrier” if a patient’s evidence in sexual misconduct cases had to be supported by attending corroborating witnesses to form part of its consideration.

48.         Further, the Tribunal does not consider that Patient AC’s account of the practitioner’s conduct towards her at multiple consultations should be doubted simply because his medical records do not detail such interactions. It is highly unlikely that such encounters would form part of any health record.

49.         The practitioner’s counsel drew the Tribunal’s attention to described inconsistencies in Patient AC, Ms Bower-Williams, Patient AC’s daughter and Patient AC’s friend’s evidence. The Tribunal does not find these described inconsistencies material, particularly given the length of time covered by the allegations and the fact that Patient AC described initially that she considered that the practitioner “was treating [her] like a friend and there was a grey area between him being friendly and professional.” Given, this “grey area”, it is not surprising that Patient AC found her interactions with the practitioner confusing and did not raise any issues with her daughter or friend at the time they occurred.

50.         Later in the same document, Patient AC described becoming “dependent on [the practitioner] and as his conduct towards me started to change I felt betrayed and shame…and started to have anxiety around appointments.”

51.         The voluminous medical records for Patient AC contained in the T-Documents and her summary of health complaints detailed in her affidavit dated 13 September 2019, leads the Tribunal to accept the Board’s submission that she was “a high frequency patient with several layers of vulnerability” who had significant medical issues.

52.         The reasoning by ACAT in an earlier case involving the practitioner, equally applies to this case that “an investigation into the practitioner arising from the notification[s] is ongoing, [and] if that results in a disciplinary hearing, that will be a separate proceeding subject to a different standard of proof.”

53.         At that time the practitioner has the opportunity to test the evidence of Patient AC and the witnesses supportive of the allegations made.

54.         The Tribunal has also carefully considered the practitioner’s treatment records of Patient AC, particularly the detailed record he made on the date of his last appointment with her. This entry differs from earlier records made due to its detail. In 2012 the practitioner was found to have kept inadequate records by a Performance and Professional Standards Panel. Hence, the need for adequate notes is an issue of which the practitioner is aware.

55.         However, the content of this record and the reasons for why he made a very detailed note and did not do so for the overwhelming majority of the others is an issue which may be further considered in AHPRA’s investigation and in any subsequent action. The Tribunal does not find it surprising that the practitioner’s notes of what was discussed at that consultation conflict with Patient AC’s evidence.

56.         The Tribunal also considered the practitioner’s previous notification history in making its decision. Section 151(2) of the National Law empowers a National Board or adjudication body to take an earlier notification into account as part of a pattern of conduct or practice by a health practitioner. It agrees with the practitioner’s counsel’s submission that many of the previous notifications raise different issues as they pertain to the practitioner’s performance as a medical practitioner.

57. The Tribunal also notes that the Board decided to take no further action under section 151 in one case. However, the Tribunal did consider the notification in 2017, where the Board cautioned the practitioner for failing to maintain appropriate professional boundaries with a patient whom he also employed and provided misleading information to Centrelink. So too was the notification in 2013, which resulted in a referral to this tribunal and a decision from the former General President made under section 55 of the ACAT Act. As noted, in that matter the practitioner failed to notify the Board as required under section 141 of the National Law about another colleague’s intimate relationship with a patient.

58.         The Consent decision made has a statement of agreed facts which includes:

In the course of providing treatment to the patient, the Respondent engaged in physical contact with the patient and made comments of a personal nature regarding the patient's youthfulness, her looks and her similarity to a former girlfriend of the Respondent. The comments were made in a way which the Respondent thought reflected the context of counselling consultations, however, they were inappropriate, particularly in circumstances where the patient was a victim of a sexual misconduct boundary violation.

Conditions

59.         The Tribunal has decided that conditions should be imposed in accordance with section 155(a) of the National Law. It imposes the same conditions on the practitioner made by the Board earlier this year with one exception. This is that the Tribunal approves Belconnen Medical Centre as a practice location from which the practitioner can practise as a medical practitioner, subject to the same gender restrictions. This is subject to Julia Al-Naser only working when the practice manager is working at Belconnen Medical Centre, at which time Ms Al-Naser must work under the practice manager’s supervision. It is also subject to Ms Al-Naser not undertaking patient bookings as was offered by the practitioner in his communication with AHPRA.

60.         The Tribunal notes the Board’s view that an “unavoidable and inherent power imbalance between a health practitioner and a booking staff member in circumstances where an employer/employee relationship exists which in this instance is exacerbated by the … paternal relationship.”

61.         It considers that the risk of the practitioner seeing female patients can be averted by the measures detailed in paragraph 59 above. The Tribunal also considers that this measure should secure safety “with as little damage to the practitioner as is consistent with its maintenance.”

62.         The Tribunal does not consider that chaperone conditions would be appropriate as submitted by the practitioner. The Board and AHPRA commissioned the Chaperone Review after a neurologist, subject to criminal charges following allegations of indecent assault on a patient, had been able to continue practising subject to a condition that an approved chaperone was present for consultations with male patients. During this time, a further notification was received from a second patient who alleged the practitioner had indecently assaulted him behind a curtain while a chaperone was present.

63.         The Chaperone Review’s key findings are detailed from page 8. They include that chaperones are of limited effectiveness in protecting patients. Professor Paterson notes: “the system relied on inadequately informed and trained chaperones, many in a conflicted situation by being employed by the practitioner they are to observe and report on. There are many reported examples of practitioners breaching chaperone conditions…”

64.         The Chaperone Review also observes: “Improvements are needed to inform and protect patients, if chaperone conditions are retained” and that “more restrictive regulatory measures should be used to protect patients while allegations of sexual misconduct are investigated.”

65.         Under the heading “Overall Conclusion”, Professor Paterson recommends:

It is time to abandon chaperone conditions as an interim restriction, given their dubious appropriateness and the evident holes in the safety net they are meant to provide. Predatory practitioners can evade chaperone conditions, causing harm to patients and loss of public confidence in health professions and their regulators.

66.         Earlier this year the Victorian Civil and Administrative Tribunal referred to the Chaperone Review and commented “while chaperone conditions might have been considered in the past, their use has been limited following the February 2017 report by Professor Ron Paterson.”

67.         In that case the tribunal did not impose gender-based restrictions but rather a condition that the medical practitioner must not perform breast examinations of female patients. The tribunal noted that there was no evidence from the notifying patients that the practitioner had behaved in a predatory manner or had undertaken examinations for sexual gratification. Rather, the issue was informed consent.

68.         The tribunal observed that “if there were any suggestion that Dr Gerstman’s conduct was predatory or for sexual gratification, we would have affirmed the decision to impose a ‘blanket’ restriction on treating female patients.”

69.         This Tribunal considers this reasoning is very sound and hence its confirmation of the Board’s decision, subject to one amendment regarding the practice locations from which the practitioner may practise.

………………………………..

Senior Member M Brennan

For and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:

OR 17/2019

PARTIES, APPLICANT:

Nathem Al-Naser

PARTIES, RESPONDENT:

Medical Board of Australia

COUNSEL APPEARING, APPLICANT

Ms K Musgrove

COUNSEL APPEARING, RESPONDENT

Ms P Bindon

SOLICITORS FOR APPLICANT

HWL Ebsworth

SOLICITORS FOR RESPONDENT

Minter Ellison

TRIBUNAL MEMBERS:

Senior Member M Brennan

Senior Member D Byrne

DATE OF HEARING:

30 October 2019