Health Care Complaints Commission of New South Wales v Dr Melvin Muralidharan - [2010] NSWMT 1

No judgment structure available for this case.

New South Wales

Medical Tribunal

CITATION: Health Care Complaints Commission of New South Wales v Dr Melvin Muralidharan [2010] NSWMT 1

TRIBUNAL: Medical Tribunal

PARTIES:
COMPLAINANT:
Health Care Complaints Commission of New South Wales
RESPONDENT:
Dr Melvin Muralidharan

FILE NUMBER(S): 40003 of 2009; 40004 of 2009

CORAM: Backman J

CATCHWORDS:

LEGISLATION CITED: Medical Practice Act 1992
Mutual Recognition Act 1992 (Cth)

CASES CITED: NSW Bar Association v Meakes [2006] NSWCA 340;
Pillai v Messiter (No. 2) (1989) 16 NSWLR 197

DATES OF HEARING: 16/11/2009-18/11/2009

DATE OF JUDGMENT: 8 March 2010

LEGAL REPRESENTATIVES: COMPLAINANT:
Health Care Complaints Commission
Mr P Saidi, of counsel with Ms P Hook (HCCC)
RESPONDENT:
Dr M Muralidharan
Mr P Sim (Philip Sim & Associates)

ORDERS: Deregistration; not to apply for re-registration for 12 months from the date of the Decision.

JUDGMENT:

- 2 -

MEDICAL TRIBUNAL OF NEW SOUTH WALES

DEPUTY CHAIRPERSON: Backman J

MEMBERS: Dr D Child, AM

Dr J Hely

Dr M Gleeson OAM

8 March 2010

Matter No MT 40003 of 2009

Health Care Complaints Commission v Dr Melvin Muralidharan

Complaint under the Medical Practice Act 1992

Matter No MT 40004 of 2009

Health Care Complaints Commission v Dr Melvin Muralidharan

Complaint under the Medical Practice Act 1992

DECISION

[2010] NSWMT 1

1 Before the Medical Tribunal are two complaints brought by the Health Care Complaints Commission (HCCC). Complaint No MT 40004 of 2009 will be considered first. It concerns events which preceded events the subject of Complaint No MT 40003 of 2009.

2 Complaint No MT 40004 of 2009 alleges that the respondent being a medical practitioner registered under the Medical Practice Act 1992 (the Act), "has been guilty of unsatisfactory professional conduct within the meaning of section 36 of the Act in that he has engaged in conduct relating to the practice of medicine that is improper or unethical".

3 The particulars contained in the complaint rely on two separate incidents. They are:

1. Between 13 and 15 May 2005, without proper authorisation, the practitioner inappropriately took a locum appointment at Hornsby Hospital while suspended on full pay from Maitland Hospital.

2. On 24 October 2005, the practitioner made a false and/or misleading statement on his application for registration with the Queensland Medical Board in that he stated that he was not the subject of any preliminary investigations or action, in any State or Territory, that might lead to disciplinary proceedings.

4 Complaint No MT 40003 of 2009 is divided into two parts headed "Complaint One" and "Complaint Two". For ease of reference, the Tribunal will refer to these two complaints as Complaint 2(1) and Complaint 2(2).

5 Complaint 2(1) alleges that the respondent has been guilty of unsatisfactory professional conduct within the meaning of s 36 of the Act and/or professional misconduct within the meaning of s 37 of the Act in that he has contravened conditions to which his registration was subject.

6 The complaint is particularised as follows:

Medical Practice Act

To protect the public, the Board delegates resolved to impose conditions on the practitioner with effect from 2 December 2005. These conditions included the requirements that the practitioner:

1. work only in supervised employment in a public hospital approved by the Medical Board; and

2. nominate a supervisor, to be approved by the Board, to monitor and review his clinical practice and compliance with conditions in accordance with Level 1 supervision of the Board's Guidelines; that is, the supervision is to be direct and on the premises in a public hospital setting.

In August 2006, the practitioner commenced work at St George Hospital without first getting Board approval, in breach of the conditions imposed on his registration. On 3 April 2007 the Medical Board counselled the practitioner on the issue of breach of conditions and the responsibility of the practitioner to ensure strict compliance with the conditions on his registration.

Following the counselling interview at the NSW Medical Board the practitioner:

1. Failed to seek the approval of the Medical Board before commencing his second term rotation as a senior Basic Surgical Trainee at Shoalhaven District Memorial Hospital (Shoalhaven Hospital) on 30 April 2007, thereby breaching a condition of his registration.

2. Failed to arrange appropriate Board-approved supervision before commencing his employment at Shoalhaven Hospital, thereby breaching a condition of his registration.

3. Worked at Shoalhaven Hospital from 30 April 2007 until 30 May 2007 without appropriate supervision that was direct and on the premises, thereby breaching a condition of his registration.

4. Failed to provide Shoalhaven Hospital with a copy of his NSW Medical Registration and/or disclose to Shoalhaven Hospital the conditions of his registration.

7 Complaint 2(2) alleges that the respondent has been guilty of unsatisfactory professional conduct within the meaning of s 36 of the Act and/or professional misconduct within the meaning of s 37 of the Act in that:

i. he has demonstrated that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;

ii. he has been guilty of improper or unethical conduct relating to the practice of medicine.

8 The particulars of Complaint 2(2) are set out as follows:

5. On at least one occasion during his secondment to Shoalhaven Hospital, which commenced on 30 April 2007, the practitioner, whilst on call:

(i) left the hospital and could not be contacted; and/or

(ii) left his pager at the hospital to be answered by other staff; and/or

(iii) disregarded the responsibility of his role as Registrar to supervise junior medical staff by leaving the hospital.

6. During an interview with staff at Shoalhaven Hospital on 31 May 2007, the practitioner initially denied that he had conditions imposed on his registration.

7. During an interview with staff at Shoalhaven Hospital on 31 May 2007, the practitioner denied that it was his responsibility to inform Shoalhaven Hospital of the conditions on his registration.

Background

9 The respondent is an overseas trained doctor having obtained his degree from Madras University India in 1984. On 9 November 2003 he gained Australian Medical Council certification. On 11 March 2004 he was registered in New South Wales under mutual recognition provisions. Prior to that he worked in a number of hospitals in other Australian states. From May to November 2004 the respondent held a posting as Surgical Registrar at Lyell McEwen Health Service in South Australia. Following that posting the respondent held a number of short term locum appointments in New South Wales, Queensland and Tasmania until February 2005. In March 2005 the respondent was appointed full-time to the position of Surgical Registrar in the Division of Surgery in the Hunter New England Area Health Service (HNEAHS) in New South Wales.

Complaint No MT 40004 of 2009: unauthorised engagement as locum

10 In March 2005 the respondent was on rotation from HNEAHS to Maitland Hospital. In late March 2005 at Maitland Hospital a female patient made a complaint alleging that the respondent had conducted a medical examination inappropriately. The matter was reported to the New South Wales Police Force which commenced an investigation. The HNEAHS commenced its own investigation into the complaint and the respondent was suspended from practice on full pay at the end of March 2005 by HNEAHS pending the outcome of its investigation.

11 During the period of his suspension and while the investigation was progressing, the respondent undertook a locum appointment for three nights at Hornsby and Kuringai Hospital without the approval of the HNEAHS. This was contrary to the HNEAHS Code of Conduct and Ethics which requires, relevantly, that an employee of the HNEAHS seeking to engage in outside employment or business activities must first seek approval from the Chief Executive Officer.

12 Martin Sainsbury, a senior human resources consultant employed by HNEAHS, was involved in the investigation and disciplinary processes instituted against the respondent in 2005. He said in a statement that the respondent had admitted to undertaking a locum appointment at Hornsby Hospital but had professed ignorance of the relevant policies. According to Mr Sainsbury, HNEAHS recruitment practices in 2005 involved sending new employees a letter of offer of employment to which was attached a New Starter Kit which included a copy of the Health Services Orientation Handbook. The Handbook contained a section from the Code of Conduct. Contained within a section of the Code under the subheading "Outside Employment / Other External Business Activities" was a requirement that employees engaged in full-time employment wishing to pursue other employment or business activities outside their official duties must first seek the approval of the Chief Executive Officer. Mr Sainsbury explained that the Code of Conduct from which that section was extracted did not at the time of the respondent's offer of employment form part of the Handbook although the relevant section in the Handbook largely reflected the contents of the Code. The respondent's letter of offer of employment was annexed to Mr Sainsbury's statement. It made no specific reference to the Handbook as an attachment. It referred only to "attached additional information outlining your conditions of employment".

13 Mr Sainsbury could not say therefore whether the respondent had received a copy of the Handbook containing the relevant extracts. He could only say that in accordance with normal practice the respondent should have received a copy of the New Starter Kit which included the Handbook.

14 A letter from Northern Sydney Health sent on behalf of Hornsby Hospital on 14 June 2005 confirmed that the respondent was employed through a locum agency and worked three emergency night shifts between 13 and 15 May 2005 at Hornsby Hospital. On 23 June 2005 Mr Sainsbury wrote to the respondent informing him that in light of a number of matters which had come to the attention of the HNEAHS, which included his unauthorised engagement as a locum at Hornsby Hospital, HNEAHS was considering a recommendation to the Chief Executive Officer that the respondent's employment be terminated.

15 On 30 June 2005 the respondent was invited to attend a disciplinary meeting before any decision was made to recommend that his employment be terminated. At the disciplinary meeting on 14 July 2005 the respondent informed the HNEAHS representatives that he had told Hornsby Hospital he was not working but he had failed to inform relevant personnel at that hospital of his suspension from Maitland Hospital on full pay. He volunteered that the curriculum vitae (CV) he had submitted to the locum agency was not up to date and did not include information that he was employed by the HNEAHS at the time. He repeated his claim that he was unaware of the requirement not to perform locum work without first obtaining the approval from the Chief Executive Officer. He said that he had not received a copy of the "policy statement". He also added by way of explanation that he was "losing clinical touch" and he had a lot of expenses associated with an impending trip to the United Kingdom and needed the money even though he was on full pay while under suspension.

16 On 23 August 2005 the respondent was informed by HNEAHS following the disciplinary meeting of 14 July 2005 that a recommendation made to the chief executive officer to terminate his employment had been approved on a number of grounds which included his unauthorised engagement as a locum at Hornsby Hospital.

17 On 24 January 2006 the HCCC wrote to the respondent advising him that it was in the process of investigating a number of complaints made against him by HNEAHS and the New South Wales Medical Board. One of the issues identified for investigation was whether he had inappropriately undertaken the locum appointment at Hornsby Hospital between 13 and 15 May 2005, while suspended from Maitland Hospital. The respondent was given the opportunity to respond to the complaint, and on 30 May 2006 (the letter incorrectly records "2005") he forwarded a written response to the HCCC.

18 With regard to the locum appointment at Hornsby Hospital the respondent did not expressly rely in his response on a professed ignorance of the relevant HNEAHS policies concerning outside employment. Instead he sought to emphasise that he had been placed under a great deal of stress at the time because of the allegations made against him by a patient which resulted in his suspension from Maitland Hospital. He said he was living alone and missed his family. He was also, he said, very worried about the examination that he was due to sit overseas because he had been "out of clinical practise [sic]" and the examination included a clinical component. He added:

At one stage although the Department of Surgery at John Hunter Hospital considered changing my posting to JHH but it did not happen and I was left in limbo. In this situation my mind became more exams oriented and I was provoked to think of a locum job involving clinical work. I contacted a locum agency regarding a locum & to there [sic] question "what I was doing?" I said I use to work at Maitland Hospital but since 5 weeks been of work & also preparing for an exam in UK, will be leaving on the 18th May05 to Edinburgh. Locum agency got back to me & asked whether I'll be interested to do 3 night shifts at Hornsby Hospital Emergency between 13th - 15th May 05. Since I agreed, the agency said they will confirm me if Hornsby Hospital Emergency Department accepts me to work & subsequent to Hospital policy of Criminal Record Check & verification of registration with NSW Medical Board. Later on I was confirmed to do those 3 night shifts 10pm to 8am Friday, Saturday & Sunday.

In that state of mind without realising the consequences, I reported to work on Friday the 13th March 10pm & completed 3 night shifts working with another lady doctor (from UK) on duty.

19 On 10 October 2006 the HCCC wrote to the respondent informing him that its investigation into the matter of his engagement as a locum at Hornsby Hospital had concluded and that the HCCC was proposing to refer the matter to the Director of Proceedings for a determination as to whether a complaint should be prosecuted before a disciplinary body. The respondent was given an opportunity to make submissions prior to the proposed referral. The information upon which the HCCC was intending to act was outlined in the letter as follows:

The substance of the grounds for the proposed action is that the evidence at this stage discloses that you undertook paid employment at Hornsby Hospital between 13 and 15 March 2005 whilst suspended on full pay from HNEAHS in contravention of the Code.

HNEAHS advised that, at the time of your commencement of employment, HNEAHS Central Recruitment Unit provided you with a 'New Starter' kit which includes an Orientation Handbook. The Orientation Handbook contains a section headed 'Code of Conduct and Ethics' which substantially reflects the Code.

In the section entitled "Outside employment/Other external business activities" on page 13 of the Code, it is clearly indicated that an employee of the health service is not permitted to undertake other paid employment without prior approval from the Chief Executive Officer under the Code. The Code clearly places the onus upon the employee to obtain that approval. The evidence at this stage discloses that you did not seek approval from the Chief Executive Officer.

In the disciplinary interview with the HNEAHS conducted on 14 July 2005, you indicated that you were not aware of the restriction upon you undertaking locum work whilst suspended from HNEAHS. You also indicated that:

· you should have read the Code.

· you should not have undertaken the locum appointment while still employed by HNEAHS.

20 On 20 October 2006 the respondent submitted a written reply. His explanation for why he had worked as a locum at Hornsby Hospital included the following:

On 3rd March I reported to work at Maitland Hospital and at that stage or during 4 weeks of employment, I had no orientation or any particular orientation Handbook given to me by HNEAHS.

I was not aware of the Code, particularly for the Chief Executive Officer's approval prior to undertake any outside locum appointment.

After I was made aware of Chief Executive officer's approval is a pre-requisite for outside locum employment in the disciplinary meeting, only then I came to know the fact and realised I shouldn't have undertaken the locum appointment without approval while still employed by HNEAHS.

I was in a very distressed state of mind during the disciplinary meeting, I'm not sure in what context I had mentioned I should have read the code, certainly I did not have a copy of Orientation Handbook given to me by HNEAHS which contains a section headed "Code of Conducts and Ethics" reflecting the Code.

21 On 13 June 2007 in a letter to the Board the respondent repeated the assertion that he was unaware of the requirement to obtain approval from the Chief Executive Officer before undertaking the locum work at Hornsby Hospital between 13 and 15 May 2005. In that regard he said:

I was totally unaware of the authorisation protocol by the HNEAHS for work outside of that Area Health Service. On my appointment to HNEAHS I did not have any orientation as a new employee. In particular the form for authorisation to work outside the HNEAHS and orientation pack was not given to me, as I was told to report to work on 3rd March 2005 at Maitland Hospital.

presume

Later this matter was dealt by the HNEAHS via a Disciplinary Meeting on 14 June [sic] 2005 and for this allegation, along with other allegations, HNEAHS on 23rd August 2005 terminated my employment. This alleged breach of the policy or code has already been dealt with through the termination of my employment. It seems reasonable to hold the view that this is sufficient punishment, notwithstanding that I still hold the above views in relation to my actions.

22 In his statement dated 29 October 2009, received into evidence during the hearing before the Tribunal, the respondent maintained the assertion that he was unaware he was required to obtain authorisation prior to working as a locum at Hornsby Hospital between 13 and 15 May 2005. He said that his understanding of such matters, "was not as sharp as it should have been" but that after the Board imposed conditions on his registration on 25 November 2005 he had gained "some insight" into administrative demands placed upon him and is now of the view, "that it is better to seek clarification and confirmation before doing anything".

23 The respondent's evidence during the proceedings before the Tribunal, viewed as a whole, was consistent with earlier assertions that he did not know he was required to obtain approval from the Chief Executive Officer before working as a locum at Hornsby Hospital in May 2005. Extracts from the transcript of proceedings serve to convey adequately the point:

Q. You knew that when you signed up, if I could use that term, to work with a hospital you knew from your prior experiences with hospitals, didn't you, that they didn't like you working for anyone else without their permission, you knew that?

A. Yes, yes.

Q. And you knew that because you had worked for a number of hospitals up until 2005, isn't that so?

A. Yes.

Q. And is it fair to say and if it is not, correct me, is it fair to say with just about every hospital you had ever worked for before May 2005, you knew it was a requirement that you couldn't go and get an outside job if you were working at the hospital?

A. Yes.

Q. Now, have you understood the last series of questions and answers that I have been asking you?

A. There is some information I would like to give.

[...]

A. See, I didn't know that, that was the time I was doing locum. Previously, I was not doing locum and I was not entitled to do locum before the end of 2003. Since 2004 I was eligible to do locum, so I did not know that particular, you know the aspect of things to get the formal approval done by the Area Health Service, so we were employed to go ahead and do some locumship when I was free which other doctors do on the approval given. At that time I didn't have much knowledge about this and I didn't know about this, that was a mistake.

Q. Doctor, just let me change the word from locum to other employment. You knew that you could not take up any other employment in your medical capacity whether or not it was as a locum or whether anything else, without the approval of the Area Health Service, didn't you?

A. Yes.

Q. I am suggesting that to you, that just based on your own evidence as I have been asking you over the last few minutes, you knew that at the time going back to May of 2005, you knew that you were not to take up any employment with anyone else without the Area Health Service's permission. Do you understand what I am suggesting to you?

A. In that circumstance where I was not working, as I since I was offered the position and after various clarification made with the hospital they offered, you know, to my limited knowledge about medical administration, human resources thing, I thought I could work and went and worked. I understand that is totally wrong.

Q. Doctor I am suggesting --

A. I didn't know that previously.

Q. -- that statement that you didn't know that previously, I want to suggest to you is inconsistent with the evidence you have just given us since you have been giving evidence after lunch and since I have been asking you questions, it is inconsistent with your evidence that you were aware that you could not work as a medical practitioner elsewhere in a hospital, do you understand?

[...]

A. See, at that time I didn't understand that particular aspect, being that I was not really aware of that.

Q. So is the answer to my question and I'll repeat it again, yes, you were out of work, you knew that you couldn't work without the approval of your employer, the Area Health Service. You were offered the locumship and you took it up even knowing that you should not have taken it up, is that basically it?

A. At that time I was not aware of the approval process to be done to work as a locum or employment.

24 The substance of the first part of the complaint presently under consideration is that the respondent inappropriately undertook the locum appointment without proper authorisation, that is, he did not obtain the necessary approval to do the work from the Chief Executive Officer of the HNEAHS. It was suggested by Mr Sainsbury that the respondent should have received a copy of the relevant policy which outlined the requirement for prior approval from the Chief Executive Officer. The basis upon which the suggestion was advanced was that it was the normal practice of HNEAHS when recruiting employees to include with the letter of offer of employment the New Starter Kit which contained material setting out the relevant policy. There was no direct evidence, however, that this was in fact done in the respondent's case. The respondent consistently denied in a series of interviews, written responses and in his evidence before the Tribunal, having received a copy of the relevant policy, and of being aware of the requirement to obtain approval before undertaking the locum work. Given these matters the Tribunal is unable to be satisfied that the evidence relied upon to establish this first part of the complaint against the respondent constitutes unsatisfactory professional conduct, as defined under s 36 of the Act. Accordingly, this part of the complaint has not been made out.

Complaint No MT 40004 of 2009: make false and/or misleading statement to Queensland Medical Board

25 On 24 October 2005 the respondent applied for registration with the Medical Board of Queensland under the provisions of the Mutual Recognition Act 1992 (Cth). In his application form he ticked "No" to question 4 which asked:

Are you the subject of disciplinary proceedings in any State or Territory or any preliminary investigations or action that might lead to disciplinary proceedings in relation to your practice as a Health Practitioner?

26 According to the HCCC the respondent provided false and/or misleading information to the Queensland Medical Board in his application for registration, because at the time he completed and signed the application the HCCC was in the process of investigating a number of complaints which had been made against him.

27 One of the complaints for which the respondent was being investigated during that time concerned his conduct when examining the female patient at Maitland Hospital in late March 2005. With regard to that complaint, the HCCC had written to the respondent on 20 May 2005 advising him that the complaint had been referred to it by the NSW Police Force and had been assessed as suitable for investigation by the HCCC. The respondent was also advised that the HCCC, as part of its investigation into the complaint, was seeking further information and that upon receipt of that information it would provide it to the respondent who would then be asked for a response. On 13 June 2005 and 22 June 2005 the HCCC forwarded the further information to the respondent and requested his response by 15 July 2005.

28 On 23 June 2005, before the respondent had replied to the HCCC letters of 13 and 22 June 2005, Mr Sainsbury wrote to the respondent on behalf of the HNEAHS to request his attendance at the disciplinary meeting in order for him to respond to a number of allegations which included the circumstances under which he had worked as a locum at Hornsby Hospital between 13 and 15 May 2005 and the allegation made against him of inappropriate examination by the patient at Maitland Hospital in late March 2005.

29 The next day, on 24 June 2005 the respondent telephoned the HCCC and advised it that he would respond to the information provided in the letters of 20 May and 13 June 2005 by 15 July 2005. The respondent again telephoned the HCCC on 1 July 2005 seeking advice as to the format he should use to frame his response. On 12 July 2005 the respondent provided his written response to the HCCC.

30 The disciplinary meeting scheduled by Mr Sainsbury between HNEAHS representatives and the respondent took place on 14 July 2005. During that meeting the respondent was told that further enquiries would need to be made by HNEAHS but that he would be kept informed of the progress of those enquiries and that any recommendation to the Chief Executive Officer to terminate his employment would be deferred until those matters were completed.

31 On 23 August 2005 the respondent was informed that his employment with HNEAHS would be terminated effective from Friday 26 August 2005. On 25 August 2005, two days after receiving his notice of termination of employment, the respondent telephoned the HCCC. He spoke to Michael Robertson who noted in a file note that the respondent wished to discuss the impact of the HCCC investigation on his rotation at John Hunter Hospital. The contents of the file note (which were not the subject of challenge during the Tribunal hearing) suggest that the respondent was making enquiries of the HCCC as to the progress of its investigation into a number of complaints made against him. No other material was received into evidence during the Tribunal hearing which would suggest that the position had changed between 25 August 2005 and 24 October 2005 when the respondent completed and signed his application for registration with the Queensland Medical Board.

32 On 26 October 2005, the Queensland Medical Board sent a facsimile to the NSW Medical Board requesting a verification check of the respondent's registration in New South Wales. On the same day, the NSW Medical Board informed its Queensland counterpart that the respondent's initial statement to the Queensland Medical Board that he was not the subject of any preliminary investigation or action that might lead to disciplinary proceedings, was false.

33 Following receipt of the information, the Queensland Medical Board wrote to the respondent on 17 November 2005 notifying him of its refusal to grant his application for registration. The ground upon which the refusal was based was said to be that the respondent's statement, (comprising question 4 and the accompanying answer), was "materially false". The correspondence from the Queensland Medical Board informed the respondent that its enquiries had revealed that at the time he completed and signed his application for registration he was in fact the subject of two complaints, one of which had been jointly referred to the HCCC by the NSW Medical Board and the NSW Police Force (a reference to the complaint by the patient at Maitland Hospital). The respondent was reminded that the HCCC had notified the respondent of this complaint in May 2005 and that he had forwarded his response to that complaint to the HCCC on 12 July 2005. The second complaint, the correspondence revealed, had been accepted for investigation by the HCCC subsequent to the respondent's lodgement of his application for registration to the Queensland Medical Board.

34 During the s 66 Inquiry held by the NSW Medical Board on 25 November 2005, the respondent was questioned about the alleged false statement made by him in his application for registration to the Queensland Medical Board. The respondent acknowledged that he had received the letter from the HCCC dated 20 May 2005 in which he had been notified that he was to be investigated in relation to the complaint made against him by the patient he examined at Maitland Hospital on 30 March 2005. The respondent sought to explain that he had been contacted by the NSW Police Force in August 2005 and had been informed by a member of that service that no charges would be laid against him in relation to the incident. Thereafter, he said he contacted the HCCC and was informed that its investigation would be concluded soon. He said he also contacted the NSW Medical Board shortly before applying to its Queensland counterpart and was told that he held unconditional registration in New South Wales. Based on these matters, he said he had considered there were no outstanding complaints against him prior to completing and signing the application form submitted to the Queensland Medical Board.

35 In his letter to the HCCC dated 12 July 2006, the respondent said he informed Mr Robertson from the HCCC that the police had contacted him and told him their investigation into the allegations made by the patient at Maitland Hospital had been concluded. He said Mr Robertson then advised him that the matter would go for peer review. He also said he telephoned John Hunter Hospital to advise relevant personnel that the police investigation had concluded and to ask them whether he could resume work following his suspension from Maitland Hospital. He said he was told by personnel from John Hunter Hospital that they must wait for the HCCC decision and until that time his suspension would remain on foot. Following that series of telephone calls, the respondent said he again telephoned Mr Robertson to inform him of the outcome of his discussion with John Hunter Hospital personnel. Mr Robertson, he said, told him he would speak to Dr Reynar at Maitland Hospital with regard to counselling for the respondent and other matters. Prior to applying for registration with the Queensland Medical Board on 24 October 2005, the respondent said he had contacted the NSW Medical Board and was advised by the "registration section" that he had full general registration (in NSW) and that he should discuss this with the Queensland Medical Board. He reiterated that these matters, in combination, led him to understand that the investigation into the allegation made by the patient at Maitland Hospital had concluded.

36 An explanation in similar terms was provided by the respondent to the Professional Standards Committee (PSC) NSW Medical Board on 13 June 2007. He added to this explanation that the decision of the HNEAHS to terminate his employment on 23 August 2005 and the notification by the NSW Police Force that their investigation had been concluded, led him to believe, not unreasonably, that, "these actions ended these matters and allegations conclusively".

37 In his statement to the Tribunal, he said he now realises his "indication" to the Queensland Medical Board that he was not the subject of any preliminary investigation was incorrect. He explained however that it was his "mistaken belief", based on advice received by the police that their investigation had concluded, that the matter had been resolved and the HCCC would not continue its investigation. At the time he completed and signed his application for registration to the Queensland Medical Board, therefore, he "felt" that he had provided the correct information concerning the status of the investigation.

38 The respondent's explanation that he mistakenly believed the investigation had been concluded was repeated with little variation in his oral evidence before the Tribunal. He conceded during his evidence that at the time he completed and signed the application, he had not received a letter from the HCCC that its investigation had in fact concluded. He also said he was aware the HCCC was a body whose primary function was the investigation of complaints and that the NSW Police Force was another institution that, independently of the HCCC, also investigated complaints. He confirmed that Mr Robertson at no stage told him the HCCC investigation had concluded or that he had made any enquiry of Mr Robertson to that effect. Despite these concessions, the respondent maintained during the course of his evidence that he mistakenly believed there was no HCCC investigation on foot as at 24 October 2005 and therefore he had not knowingly made a false or misleading statement on his application form.

39 It is difficult to reconcile the respondent's repeated assertions that he mistakenly believed he was not the subject of any investigation, with other evidence strongly suggestive of a contrary state of affairs. There can be little doubt, based on the file note recorded by Mr Robertson of his conversation with the respondent on 25 August 2005, that the respondent was making an enquiry about the progress of the HCCC investigation into a complaint made against him. The respondent confirmed in his evidence before the Tribunal that he had received no notification from HCCC that its investigation had been concluded prior to 24 October 2005. He was well aware that the NSW Police Force was conducting its own independent investigation into the complaint. The respondent made no enquiry in order to satisfy himself that the HCCC investigation had been resolved before he submitted his application. These matters compel the conclusion that the respondent must have known at the time he completed and signed the application for registration on 24 October 2005 to the Queensland Medical Board that his answer to question 4 was false or misleading, or both. The second part of the complaint has therefore been made out.

Complaint 40003 of 2009: Complaint 2(1)

40 On 25 November 2005, the Board, following its Inquiry under s 66 of the Act, imposed upon the respondent's registration a number of conditions which were:

1. To work only in supervised employment in a public hospital approved by the Medical Board.

(a) The Board is to provide the supervisor and the Director of Medical Services at the approved hospital with a copy of the Board's guidelines for supervision and a copy of the Section 66 Inquiry decision.

(b) The supervisor is to report to the Board, initially on a monthly basis, for the first three months and then subsequently on a three-monthly basis, in a format prescribed by the Board, in particular in relation to documentation, communication, ethical and clinical issues.

(c) The supervisor is required to inform the Board immediately if there is any concern in relation to Dr Muralidharan's compliance with the supervision requirements, compliance with other conditions of registration, clinical performance, health, or if the supervisor relationship ceases.

(d) Dr Muralidharan is to authorise the supervisor to provide such information to the Board.

41 The Board's Decision dated 25 November 2005 records that the respondent was present during the Inquiry. He was provided with a folder of documents prepared by the Board prior to the Inquiry, and was provided with additional documents by the Board at the Inquiry. According to the Decision, the respondent also tendered documents during the Inquiry, and provided the Board with further documentation after the Inquiry had concluded. The respondent's responses to allegations made against him, which were under examination at the Inquiry, were also set out in the Decision. A copy of the Decision was forwarded to the respondent and he was advised of his right to appeal to the Medical Tribunal against the conditions imposed on his registration by the Board under s 95 of the Act.

42 The respondent had applied for a position as a basic surgical trainee in July 2006. Subsequently, on 7 August 2006, he commenced work at St George Hospital. Shortly after he commenced there, Kim Wade, the Surgical Education and Training Co-Ordinator at the Hospital, was contacted by the Board. The purpose of the contact was to ensure that the respondent was receiving appropriate medical supervision in accordance with his conditions. In her statement dated 26 November 2008, Ms Wade said that at the time she was contacted by the Board, the respondent was being supervised by Dr Francis Chu and this had met with the Board's approval. Ms Wade also said that on 23 October 2006, she contacted the Board in order to ensure that the conditions imposed on the respondent's registration did not prevent him from participating in a secondment to Shoalhaven Hospital. She said she was advised by the Board that as long as the respondent was "fully supervised", he could be seconded to Shoalhaven Hospital and work night shifts. The information provided by the Board, Ms Wade said, was passed on to the respondent. Ms Wade said, however, that at no time did she inform the respondent that she or anyone else had arranged supervision for him at Shoalhaven Hospital.

43 It would appear from other material tendered by the HCCC during the Tribunal proceedings that the respondent had in fact been working at St George Hospital for a period of some nine weeks without Board approval and was therefore in breach of his conditions. On 3 April 2007, the respondent was counselled by the Board about his failure to adhere to the conditions of his registration and his responsibilities as a practitioner to ensure strict compliance with those conditions. At the counselling session, members of the Board sought to reinforce to the respondent the importance of seeking Board approval before commencing work. It was explained to him that it was necessary for him to seek prior approval from the Board before commencing work. The report of the counselling session concluded with the words:

Dr Muralidharan is now aware of his responsibility to comply fully with the conditions in his registration and has accepted counselling on the other issues discussed. It is recommended that no further action is required in relation to these matters.

44 Dr Chu, the respondent's supervisor at St George Hospital, accompanied the respondent to the counselling session on 3 April 2007. In a letter to the HCCC dated 7 December 2007, Dr Chu explained that when the respondent applied for a position at St George Hospital in July 2006, he brought with him his "section 66 and the letter from the HCCC". Dr Chu said he read through "the summary" of the s 66 Inquiry. When the respondent was offered a position at St George Hospital, Dr Chu said that the decision was made that he would undertake the responsibility of being the respondent's supervisor. It would appear, however, that the decision to provide the respondent with supervision at St George was made in the absence of Board approval at that time.

45 The necessity for the respondent to seek Board approval of supervised employment was a central feature of the conditions imposed upon his registration. The first condition stated in plain terms that the respondent was to work in supervised employment in a public hospital, "approved by the Medical Board". The conditions required the nominated supervisor to work closely with the Board and keep it constantly informed of the respondent's progress. The supervisor and the Director of Medical Services at the approved hospital were to be provided with a copy of the Board's Guidelines for Supervision. The supervisor was required to report monthly to the Board, and subsequently on a three-monthly basis in a format prescribed by the Board. The supervisor was also required to inform the Board immediately of any concerns raised as to the respondent's compliance with supervision requirements and other matters, including his clinical performance. Because of the respondent's failure to abide by the conditions while working at St George Hospital, the Board was unable to implement its own supervisory regime to ensure the respondent's work performance met its standards.

46 In his statement to the Tribunal dated 29 October 2009, the respondent said that his supervision by Dr Chu met "the conditions placed on me by the NSW Medical Board due to some of my past errors".

47 Later in the statement, the respondent said that he had failed to obtain Board approval before commencing work at St George Hospital and he, "now realise[s] that it was my responsibility". It was submitted on behalf of the respondent that when he obtained employment at St George Hospital he had properly advised the Hospital of his conditions, but had forgotten to notify the Board, which was a mistake on his part.

48 We do not find at all persuasive the respondent's explanation for his failure to abide by the conditions imposed on his registration by the Board on 25 November 2005. Following the s 66 Inquiry, the respondent was on notice of the conditions and of the importance of obtaining Board approval before commencing work. Nevertheless, he commenced work at St George Hospital before Board approval was granted. The submission made on his behalf that he properly advised the Hospital of the conditions, but simply forgot to notify the Board, we find difficult to accept, given that the conditions clearly emphasised the importance of obtaining Board approval of hospital supervision. On 28 June 2006, only a few weeks before his application to St George Hospital, the Board forwarded to the respondent a copy of its policy entitled "Selection & Responsibilities of Supervisor". That policy, in its terms, sought to highlight the importance of Board participation in the relationship between supervisors and supervised doctors who were subject to conditions on their registration. An extract from the policy serves to illustrate this point:

3. Supervisors must be made aware of the reasons for supervision, generally through provision of the decision of the Board, Medical Tribunal, Professional Standards Committee or Impaired Registrant's Panel that imposed the requirement, and must consent to undertaking the role of supervisor;

4. The Board, Medical Tribunal, Professional Standards Committee or Impaired Registrant's Panel defines the level of supervision required.

5. Once a supervisor is appointed, it is the responsibility of the supervised doctor to organise their supervision, as required by the Board, Professional Standards Committee or Medical Tribunal.

6. The cost of supervision is to be met by the supervised doctor, at a rate agreed between the parties.

7. Supervisors must be prepared to provide feedback to the Board, in a prescribed format. The Board defines the frequency of reporting.

8. Supervisors must be prepared to notify the Board if they have any immediate concerns in relation to the supervised doctor's compliance with the supervision requirement, performance or health, or if the supervisory relationship ceases.

49 By 3 April 2007, while the respondent was still working at St George Hospital, he could have been in no doubt that compliance with the conditions required no less than Board approval of any person nominated to supervise his work in a public hospital. It was implicit in this requirement that it was his responsibility to advise the Board of his prospective employment at St George Hospital. On the material before the Tribunal, this did not occur.

50 Notwithstanding the proximity in time between the counselling session on 3 April 2007 and the respondent's secondment to Shoalhaven Hospital on 30 April 2007, less than four weeks later, the respondent failed to inform the Board about his secondment. He also failed to inform Shoalhaven Hospital of the conditions imposed on his registration. As a consequence, the respondent's work was unsupervised in accordance with the requirements of his conditions.

51 The evidence before the Tribunal revealed that the respondent, at that hospital, regularly reviewed patients alone in casualty and on other occasions was in control of the Surgical Division at the Hospital and supervised junior staff. His initial duties at Shoalhaven Hospital included the duties of a surgical registrar. The role of surgical registrar was to be available to the operating surgeon and to be available "on-call" when necessary to cover for the surgeon who might otherwise be in theatre. It also involved supervision of the wards. The respondent's work as a surgical registrar included work in the accident and emergency department. In that department, the respondent sometimes worked after hours without any supervision. The work would have entailed making diagnoses, and clinical judgments without supervision and without reference to anyone else during that period.

52 This set of circumstances prevailed until 30 May 2007 when it came to the attention of Dr Martin Jones, head of surgery at the Hospital, that the respondent's registration was subject to conditions imposed by the Board. The following day on 31 May a meeting to discuss the issue was held between Dr Jones, the respondent and Collette Beaufils, the Deputy Director of Medical Services at Shoalhaven Hospital. According to Dr Jones in oral evidence before the Tribunal, when he informed the respondent that the Hospital had been advised by the Board of the conditions on his registration, the respondent initially denied that his registration was subject to any Board-imposed conditions. The respondent later said his supervisor at St George Hospital was supposed to have informed Shoalhaven Hospital that his registration was subject to conditions. According to Ms Beaufils, the respondent, despite repeated requests, did not provide the Hospital with his passport and his medical registration card. The Tribunal was informed that the registration card would have revealed the fact that the respondent's registration was subject to conditions, although not the content of those conditions.

53 An email generated on 15 June 2007 shows that this information was readily available to the hospital from the Board's website. We do not attach any weight therefore to a submission made by the HCCC to the effect that the respondent's failure to provide the registration card amounted to a deliberate withholding by him of the information. We infer that it would have been sufficiently widely known that the information on the registration card was obtainable through other sources. We accept that this was not done by staff at Shoalhaven Hospital until sometime after 30 May 2007.

54 The respondent's explanation for his failure to work in accordance with the conditions imposed upon his registration falls into a different category. According to Dr Jones that explanation was that the respondent's supervisor at St George was supposed to inform Shoalhaven Hospital of the conditions imposed by the Board. The respondent's supervisor at St George Hospital was Dr Chu. According to Dr Chu he did not contact Shoalhaven Hospital prior to the respondent's placement to arrange his supervision. He did not therefore inform the respondent that he had made any such arrangement. He assumed that the hospital administration would have attended to this.

55 In the respondent's evidence before the Tribunal he said that he was under the impression that the administration staff at St George Hospital had prepared the necessary paperwork in respect of his secondment to Shoalhaven Hospital which would have included information concerning the conditions placed on his registration. He added that although that had been his belief at the time he now knows it was his ultimate responsibility to ensure that his conditions were in place before commencing work at Shoalhaven. In his statement he said that he did not believe it was necessary to inform the Board of his secondment to Shoalhaven because he was working at St George Hospital where staff were fully aware of the conditions imposed by the Board and the secondment was a temporary transfer within the same Area Health Service. He also pointed out that Shoalhaven Hospital could have accessed the information about his conditions at any time from the Board's website.

56 The Tribunal finds these explanations advanced by the respondent unconvincing. On any reasonable analysis the respondent at the time of his secondment must have been aware of the requirement to obtain Board approval before commencing work at Shoalhaven Hospital. The conditions clearly placed the onus on the respondent to inform the Board about his impending secondment to another public hospital. Such a move contemplated new supervision arrangements having to be implemented and the Board's necessary participation in these arrangements. By 3 April 2007 the respondent had the conditions of his registration again brought to his attention as well as the means by which those conditions were to be properly executed. It is inherently implausible given these circumstances that he could have misapprehended the necessity of informing the Board about his secondment on the basis that it was a temporary transfer within the same Area Health Service; or, because staff at a different hospital, namely St George Hospital were aware of the conditions.

57 Even accepting for present purposes that the respondent genuinely believed that St George staff had notified Shoalhaven Hospital that his registration was subject to Board-imposed conditions, it would have been obvious to the respondent given the nature of the work he performed at Shoalhaven Hospital that his conditions were not being met. The respondent did not undertake the work under any Board-nominated supervisor. His conditions required him to be under direct supervision. Instead the respondent was working regularly in an unsupervised capacity, alone, and after-hours. The respondent allowed this state of affairs to continue for nearly four weeks without taking any steps to inform the Board that he was not being supervised in accordance with the conditions on his registration, and it was only after Dr Jones intervened that the respondent was prevented from performing any further work in breach of his conditions.

58 For these reasons the Tribunal finds that Complaint 2(1) has been proved. We consider the respondent's conduct in working at St George and Shoalhaven hospitals without informing either hospital that his registration was subject to conditions and without seeking prior approval from the Board to be very serious, particularly when viewed against the repeated attempts by the Board, including the counselling session of 3 August 2007, to emphasise to him the importance of Board-approved supervision and his obligation to seek approval of the Board before commencing work in a public hospital. The consequences of the respondent's conduct, the Tribunal finds, are demonstrated by the nature of the work undertaken by the respondent at Shoalhaven hospital, where the respondent in full knowledge of his conditions and without Board approval, worked alone and unsupervised thereby placing members of the public at potential risk of danger. These matters in combination elevate the respondent's conduct the subject of Complaint 2(1) into a serious category.

59 In the Tribunal's view, the respondent's conduct represents a departure from what may be described as normal acceptable standards of behaviour expected from a member of the medical profession. The evidence suggests that the respondent chose to deliberately disregard the attempts by the Board to ensure he only worked in a professional capacity in a public hospital in accordance with the conditions of his registration. This conduct is sufficiently serious to constitute professional misconduct under s 37 of the Act (also see Pillai v Messiter (No. 2) (1989) 16 NSWLR 197 at 200-201 per Kirby P).

Complaint No MT 40003 of 2009: Complaint 2(2)

60 Dr Jones in his evidence said that during the period of the respondent's secondment to Shoalhaven Hospital there was an understanding that all doctors on duty be on site until 10pm and thereafter "on call". According to Dr Jones the respondent would regularly disappear and would leave his pager. On one occasion Dr Jones realised that the respondent had left his pager in the surgical ward. Dr Jones, who was in the surgical ward at the time, took a number of calls on the respondent's pager over a period of one and one quarter hours. Later when the respondent returned to retrieve his pager Dr Jones said he asked the respondent where he had been. According to Dr Jones the respondent replied, somewhat vaguely, that he had "just been other places", and he had given the pager to one of the junior staff. Dr Jones said he reminded the respondent that he could not leave the hospital.

61 Collette Beaufils said in her statement that within a week of the respondent commencing at Shoalhaven Hospital he was "on call" but could not be located. She had already informed him, she said, that he was not to leave the hospital when he was "on call". When she confronted him about his absences she said he told her that he had gone back to his house.

62 Dr Jones in his statement also said that part of the respondent's responsibilities while at Shoalhaven Hospital had been to supervise interns or junior medical staff in his role as a registrar. He disregarded this role it was said when he left the hospital despite being reminded numerous times about his role and responsibilities as a registrar.

63 In his statement the respondent conceded that he left the hospital on one occasion but he said he left his, "dect 'phone" with another medical officer and provided that person with his mobile telephone number in case of an emergency. He said the medical officer did not contact him and he returned to the hospital (having gone to the bank) after a short while and recommenced his duties. In his evidence at oral hearing the respondent said that when he returned to the hospital Dr Jones was sitting there waiting for him to return. He conceded that Dr Jones should not have had possession of the 'phone if in fact he had left it with another colleague. He then said that it was possible that he had not left it with a colleague but had left it unattended. He then said that he had left the 'phone unattended but only for a short while and he left it by mistake because he had three 'phones in his possession, his mobile telephone, the dect 'phone and his "on call" phone. This latter explanation appears from the following cross-examination of the respondent during the Tribunal hearing:

64 It emerged from the respondent's account that there was one occasion when he left a 'phone unattended but only to go to the carpark area before he "rushed back" and he did not leave the hospital grounds. This is contrary to the account given by Dr Jones which was that he took several calls on the respondent's pager over a period of one and a quarter hours and that when the respondent returned he had told Dr Jones that he had handed the pager to one of the junior staff. The respondent's account set out in his statement of the occasion he left the hospital grounds (to go to the back) and left his 'phone with a colleague omitted the fact that Dr Jones was waiting with his pager (or 'phone) upon his return. The respondent did concede however in his evidence that he had left the hospital grounds without authorisation.

65 On this issue we prefer the account of Dr Jones. The respondent's version was not consistent. In the respondent's written statement he referred to one occasion when he left the hospital grounds to go to the bank. It was only during his cross-examination that he volunteered information about a second occasion concerning an episode with Dr Jones, stating that he did not in fact leave the hospital grounds on that occasion, but only went to the carpark and then "rushed back" having left the 'phone unattended by mistake. As for the evidence of Ms Beaufils on this issue we accord it little weight because her evidence was unable to be tested.

66 The effect of this evidence facilitates a number of findings. We find first that the respondent did leave the hospital and could not be contacted. The respondent in fact admitted that he left the hospital grounds without authorisation. We prefer the evidence of Dr Jones for reasons earlier set out that this was the occasion when he left his pager or 'phone unattended and Dr Jones took several calls in his absence. Based on the same evidence we find, secondly that the respondent left his pager (or 'phone) at the hospital to be answered by other staff, namely Dr Jones. The respondent's concession that he left the hospital grounds without authorisation for an undisclosed period of time to go to the bank facilitates the third finding, namely that the respondent disregarded his role as registrar and his attendant responsibilities to supervise junior medical staff, by leaving the hospital.

67 According to Dr Jones when he confronted the respondent on 31 May 2007 about the fact that he had conditions imposed on his registration the respondent initially denied having conditions. Dr Jones' account of his discussion with the respondent on 31 May was challenged in cross-examination at the Tribunal hearing.

68 In the material tendered at the Tribunal hearing the earliest account given by Dr Jones of the events of 31 May 2007 appears in a letter written by him the following day, on 1 June 2007, to the then NSW Minister for Health. In the relevant passage extracted from the letter Dr Jones wrote:

On the Thursday morning Dr Muralidharan requested a meeting with me and this interview was conducted in the presence of Ms Beaufils. (N.B. the practitioner took notes of the meeting as did the DDMS) He initially denied any wrongdoing and in fact initially denied that he had been required to be at a meeting with the medical board 6 weeks ago. On pressing that point he agreed that he had been in a meeting at the medical board and his supervisor from St George Hospital had been there also (Dr F Chu), but denied that there was any requirement placed upon him to inform his supervisors of his restrictions. He kept saying that Dr Frank Chu knew of his problems (my word) and he did not have to tell anyone of the restrictions. He also denied that there had been any problems in the past with any medical board, any where. He did inform Ms Beaufils that the current problems were of a minor nature and were typographical errors.

69 In a formal complaint submitted by Dr Jones to the HCCC on 10 August 2007, Dr Jones described the meeting of 31 May 2007 with the respondent as follows:

Dr M then lied to me about his restrictions, he lied about the need to inform me of these restrictions and we (the Shoalhaven) at NO TIME were informed by St G of these restrictions either by the Administration or his supervisor Dr F Chu.

70 In his statement dated 28 October 2008 prepared for the Tribunal hearing on the issue Dr Jones set out the conversation between himself and the respondent on 31 May in the following terms:

I said, "We have been told by the medical board that you have restrictions upon you."

He said, "I don't."

I said, "We know that you have restrictions upon you."

He said, "they are false and they are out to get me."

I said, "you were told three weeks ago specifically that you had to inform your supervisor when you went to another hospital about your conditions."

He said, "I don't have to tell you, my supervisor at St George was supposed to do that."

71 In oral evidence at the Tribunal hearing Dr Jones said that when he confronted the respondent at the meeting for failing to tell him, "there were constraints", the respondent interrupted him and said, "I don't have constraints". Later in his evidence Dr Jones clarified that by "constraints" he had meant "conditions".

72 Ms Beaufils who was present at the meeting took contemporaneous notes. Ms Beaufils was required for cross-examination but could not be located. Her contemporaneous notes of the meeting on 31 May 2007 contain no reference to a denial by the respondent that he had restrictions or conditions imposed by the Board on his registration. In her statement to the Tribunal dated 28 October 2008 she said that the respondent denied that it was his responsibility to inform Shoalhaven Hospital about the conditions on his registration. This account is consistent with Dr Jones' earlier accounts contained in his letter to the Health Minister of 1 June 2007 and in the formal complaint submitted to the HCCC on 10 August 2007. Those earlier accounts refer to a denial by the respondent of the necessity to inform Shoalhaven Hospital or his supervisors of the conditions on his registration. They do not in terms refer to a blanket denial by the respondent that his registration was not subject to conditions.

73 It seems to the Tribunal that consideration of the various accounts on this issue enables a finding to be made that the respondent denied at the meeting on 31 May 2007 that it was necessary for him to inform Shoalhaven Hospital about the conditions of his registration at the time of his secondment. His explanation was that he mistakenly believed that staff at St George Hospital had already attended to this thereby relieving him of the obligation to do so. For reasons which we have already set out we do not accept the respondent's explanation for his failure to inform Shoalhaven Hospital about the conditions imposed on his registration. The evidence as to whether the respondent initially denied at the meeting of 31 May 2007 that he had restrictions placed on his registration is not so straightforward. On one view, the earlier accounts of the conversation at the meeting by Dr Jones, are not entirely consistent with the later accounts contained in his statement prepared for the Tribunal hearing and in his oral evidence given at the hearing. In addition, Ms Beaufil's statement and her contemporaneous notes of the meeting do not record a denial by the respondent that he was not the subject of any Board-approved conditions at that time. The statement by Dr Jones set out in his complaint to the HCCC on 10 August 2007 that, "Dr M then lied to me about his restrictions", is equivocal, and does not, in terms, purport to record a denial by the respondent that his registration was not subject to Board-imposed conditions. The evidence is not sufficient therefore for us to make a finding that the respondent informed Dr Jones during the meeting on 31 May 2007 that he did not have restrictions placed upon his registration.

Conclusion

74 The complaints made against the respondent have been brought under s 36 and s 37 of the Act. The Tribunal has found the respondent guilty of unsatisfactory professional conduct with regard to the false and/or misleading statement made by him in his application for registration to the Queensland Medical Board on 24 October 2005. This conduct was both improper and unethical having regard to the fact that at the time the statement was made the respondent knew or must have known he was under investigation by the HCCC.

75 The Tribunal has also found the respondent guilty of professional misconduct in relation to his actions in failing to obtain approval of the Board before taking employment at St George Hospital and before his transfer or secondment to Shoalhaven Hospital. The Tribunal views the respondent's failures to seek Board approval on both occasions as particularly serious bearing in mind the number of times the Board sought to emphasise to the respondent the importance of complying with his conditions. On the evidence no other conclusion is reasonably available other than that the respondent chose to deliberately disregard the Board's authority and by doing so placed members of the public at potential risk of danger when he was working alone and unsupervised at Shoalhaven for a period of almost four weeks, between April and May 2007. The conditions on the respondent's registration were imposed by the Board on 24 November 2005. They were imposed by the Board following the s 66 Inquiry with a view to protecting the public. They were designed to ensure the respondent was closely monitored with regular reports to be received by the Board regarding both his clinical and professional practice.

76 The Tribunal was also unimpressed by aspects of the respondent's evidence given during the Tribunal hearing. The respondent, the Tribunal finds, sought to minimise the seriousness of his conduct by repeated assertions that he mistakenly believed he was not the subject of any investigation at the time he completed and signed the application for registration to the Queensland Medical Board. It was also his evidence that he mistakenly believed that staff at St George Hospital had notified staff at Shoalhaven Hospital about the conditions imposed on his registration. For reasons earlier expressed the Tribunal found these explanations both implausible and unconvincing. The respondent was counselled by the Board on 3 April 2007 for his failure to inform it that he had commenced working at St George Hospital. Less than four weeks later the respondent again failed to inform the Board that he had commenced working at Shoalhaven Hospital. Given the efforts of the Board to emphasise to the respondent the importance of complying with his conditions, the Tribunal finds it inconceivable that the respondent could have "mistakenly believed" that he was relieved of his obligations to notify the Board of his impending transfer to Shoalhaven Hospital. It would in any event have been obvious to the respondent, after he commenced his duties as a surgical registrar at Shoalhaven, that he was not performing work in accordance with his conditions.

77 The Tribunal has also found that the respondent on one occasion while at Shoalhaven Hospital left the hospital grounds for over an hour without authorisation and left his pager or 'phone unattended, leaving Dr Jones to take several calls on the respondent's behalf over a period in excess of one hour. His conduct in leaving the hospital grounds without authorisation demonstrates that the respondent acted in disregard of his responsibilities to supervise junior medical staff in his role as registrar. This conduct the Tribunal finds at the very least amounts to conduct significantly below a reasonable standard which may be expected of a practitioner in the field of medicine.

78 The respondent's conduct between October 2005 and 30 May 2007 reveals both dishonesty on the part of the respondent in making a false and/or misleading statement and a deliberate disregard of established procedures of which the respondent was well aware, illustrated by his failure to comply with the conditions imposed on his registration on more than one occasion.

79 The HCCC seeks an order from the Tribunal that the respondent be deregistered. There seems little point in continuing or varying the respondent's conditions. The respondent's conduct has not inspired confidence that he will abide by any conditions that may be imposed by the Tribunal. Although some time has elapsed since the respondent engaged in the conduct the subject of the complaints, his evidence before the Tribunal, certain aspects of which the Tribunal found to be unconvincing, does little to persuade the Tribunal that the imposition of further conditions would deter the respondent from a repetition of further conduct: see NSW Bar Association v Meakes [2006] NSWCA 340 at [114] per Basten JA. The respondent's conduct in the circumstances consisted of a number of serious incidents which took place over a period of time. Each incident represented a serious departure from acceptable medical professional standards. An order that the respondent be deregistered for a period of time would properly reflect the Tribunal's findings that the respondent engaged in professional misconduct as defined under s 37 of the Act. The power to make such an order is found in s 64 of the Act.

Orders

80 The Tribunal makes the following orders:

(1) The respondent is deregistered on and from the date of this Decision.

(2) The respondent is not to apply for re-registration as a medical practitioner for 12 months from the date of this Decision.

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Citations

Health Care Complaints Commission of New South Wales v Dr Melvin Muralidharan [2010] NSWMT 1

Cases Citing This Decision

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Cases Cited

2

Statutory Material Cited

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A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1

NSW Bar Association v Meakes [2006] NSWCA 340

CITATION:	Health Care Complaints Commission of New South Wales v Dr Melvin Muralidharan [2010] NSWMT 1
TRIBUNAL:	Medical Tribunal
PARTIES:	COMPLAINANT: Health Care Complaints Commission of New South Wales RESPONDENT: Dr Melvin Muralidharan
FILE NUMBER(S):	40003 of 2009; 40004 of 2009
CORAM:	Backman J
CATCHWORDS:
LEGISLATION CITED:	Medical Practice Act 1992 Mutual Recognition Act 1992 (Cth)
CASES CITED:	NSW Bar Association v Meakes [2006] NSWCA 340; Pillai v Messiter (No. 2) (1989) 16 NSWLR 197
DATES OF HEARING:	16/11/2009-18/11/2009
DATE OF JUDGMENT:	8 March 2010
LEGAL REPRESENTATIVES:	COMPLAINANT: Health Care Complaints Commission Mr P Saidi, of counsel with Ms P Hook (HCCC) RESPONDENT: Dr M Muralidharan Mr P Sim (Philip Sim & Associates)
ORDERS:	Deregistration; not to apply for re-registration for 12 months from the date of the Decision.