Health Care Complaints Commission v Hasil

[2012] NSWMT 1

Medical Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Health Care Complaints Commission v Hasil [2012] NSWMT 1
Hearing dates:	12 - 13 December 2011
Decision date:	15 February 2012
Before:	Staff J; Dr Laurence Boshell; Dr Susan Messner; Dr Maureen Gleeson, PhD
Decision:	See [192] - [193]
Catchwords:	Medical Practitioner - Registrar Obstetrics and Gynaecology - failure to make proper records of treatment of patients - unsatisfactory professional conduct - complaint that practitioner was not of good character not established - PRINCIPLES - finding of impairment and that practitioner is currently not competent to practice medicine - procedural fairness -parties to be given opportunity to be heard in respect of any consequential or protective orders
Legislation Cited:	Medical Practice Act 1992 Mental Health Act 2007 Medical Practitioners Registration Act 1996 (Tasmania)
Cases Cited:	Bowen-James v Walton [1991] NSWCA 29 Briginshaw v Briginshaw (1938) 60 CLR 336 Childs v Walton [1990] NSWCA 41 Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Health Care Complaints Commission v Wingate [2007] NSWCA 326; (2007) NSWLR 323 King v Health Care Complaints Commission [2011] NSWCA 353 Lindsay v Health Care Complaints Commission [2010] NSWCA 194 McBride v Walton [1994] NSWCA 199 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Qidwai v Brown [1984] 1 NSWLR 100 Re Dr Parajuli [2010] NSWMT 3 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Saville v Health Care Complaints Commission [2006] NSWCA 298
Category:	Principal judgment
Parties:	Health Care Complaints Commission (Complainant) Mr Roman Hasil in person (Respondent)
Representation:	Counsel: Ms S McNaughton SC (Complainant) Solicitors: Health Care Complaints Commission (Complainant)
File Number(s):	40029 of 2010
Publication restriction:	Pursuant to Sc 5D cl 7 of the Health Practitioner Regulation National Law the Tribunal has ordered that there be no publication of the names of the patients or of any material capable of identifying the patients

JUDGMENT

Suppression order

1. The Tribunal has made a non-publication order in respect of material that identifies, or might lead to the identification of any of the 15 patients referred to in this judgment.

The complaints

1. The Health Care Complaints Commission alleges that Mr Roman Hasil ("the respondent"), a former registered medical practitioner having previously been registered under the Medical Practice Act 1992 (the "Act") (now repealed) is guilty of "unsatisfactory professional conduct" within the meaning of s 36(1)(a), s 36(1)(b) and s 36(1)(m) of the Act and/or "professional misconduct" within the meaning of s 37 of the Act in that he has:

"(i) 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) Contravened a provision of the Act, namely section 127B;

(iii) Contravened provisions of the regulations, namely the Medical Practice Regulation 1998 (NSW) and the Medical Practice Regulation 2003 (NSW); and/or

(iv) Engaged in improper and unethical conduct relating to the practice of medicine."

1. The present proceedings concern three complaints.

1. Complaint one involves complaints made by 15 former patients who were admitted to Lismore Base Hospital where the respondent was employed as a Registrar in Obstetrics and Gynaecology. The complaints cover the period from 29 October 2001 to on or around 17 January 2005.

1. In summary, Complaint one involves allegations that the respondent failed to record sufficient information concerning each patient's care and treatment; inadequacy and failure relating to note taking regarding each patient; rudeness and the use of inappropriate language during the course of treatment of various patients; performance of a procedure on one patient without wearing gloves; failure to introduce oxytocin (Syntocinon®), ( a drug used for induction of labour at or beyond term in maternity hospitals), at a reasonable time in respect of one patient, and failure to notify the New South Wales Medical Board ("the Board") in writing within seven days of the fact that he had been convicted of an offence contrary to s 127B of the Act.

1. This section provides:

"127B Practitioners to notify convictions, criminal findings and charges

(1) A registered medical practitioner must notify the Board in writing within 7 days after:

(a) the practitioner is convicted of an offence or made the subject of a sex/violence criminal finding for an offence, in this State or elsewhere, giving details of the conviction or criminal finding and any penalty imposed for the offence, or

(b) criminal proceedings are commenced against the practitioner in respect of a sex or violence offence alleged to have been committed, in this State or elsewhere, in the course of the practice or purported practice of medicine.

(2) This section does not apply in respect of an offence if the offence is an excluded offence."

1. Complaint two alleges that the respondent is "not of good character".

1. Complaint three alleges that the respondent:

"... suffers an impairment in that the practitioner suffers from a physical or mental impairment, disability, condition or disorder which detrimentally affects, or is likely to detrimentally affect, the practitioner's physical or mental capacity to practice medicine."

1. The respondent's medical registration was suspended in February 2008 and his name removed from the roll of registered medical practitioners on 11 April 2009 due to his "failure to pay the annual renewal fee".

1. It is convenient to set out the particulars relied upon by the HCCC in respect of Complaint one. There were no particulars in respect of Complaint two and Complaint three. The particulars of Complaint one are:

"Particulars of Complaint one

Patient A

1. Between 29 October 2001 and 1 November 2001, the practitioner provided medical treatment to Patient A. The practitioner failed to enter into the medical records any of the treatment undertaken by him in relation to this patient.

2. On or about 29 October 2001, the practitioner was rude, rough and/or disrespectful to the patient during the course of treatment.

Patient B

3. On or about 27 November 2001 and 28 November 2001, the practitioner provided medical treatment to Patient B and:

(a) The practitioner failed to record sufficient information concerning the patient's care and treatment; and/or

(b) On or about 27 November 2001, the practitioner used unacceptable and/or inappropriate language to the patient during the course of treatment.

Patient C

4. Between about 14 July 2002 and 21 July 2002, the practitioner provided medical treatment to Patient C. The practitioner:

(a) Failed to record sufficient information concerning the patient's care and treatment;

(b) Performed a perineal repair without wearing gloves; and/or

(c) Made inappropriate comments to the patient during the course of that repair.

Patient D

5. On or about 9 August 2002 and 11 August 2002, the practitioner provided medical treatment to Patient D. The practitioner failed to record:

(a) Particulars of any clinical opinion reached by him;

(b) Any discussion with the patient; and/or

(c) Any plan for treatment of the patient on 9 August 2002 and 10 August 2002.

Patient E

6. Between about 9 August 2002 and 15 August 2002, the practitioner provided medical treatment to Patient E:

(a) On 9 August 2002, the practitioner failed to record his treatment of the patient at the antenatal clinic; and/or

(b) On 13 August 2002, the practitioner failed to record sufficient information concerning the patient's care and treatment.

Patient F

7. Between about 7 September 2002 and 10 September 2002, the practitioner provided medical treatment to Patient F. The practitioner made two entries in the medical record progress notes. The practitioner:

(a) Failed to clearly record that he was the person who made the entries;

(b) Failed to record the time of one of the entries; and/or

(c) Failed to make a record setting out the discussion with the patient concerning risks or alternative interventions.

Patient G

8. Between about 28 January 2003 and 3 February 2003, the practitioner provided medical treatment to Patient G. On 29 January 2003, the practitioner performed an elective lower-section caesarean section. The practitioner failed to make a contemporaneous detailed description of the delivery, including a description of the delivery of the legs.

Patient H

9. Between about 25 February 2003 and 26 February 2003, the practitioner provided medical treatment to Patient H. The practitioner failed to make any entry in the medical records of the treatment provided to the patient.

Patient I

10. Between about 1 April 2003 and 5 April 2003, the practitioner provided medical treatment to Patient I. The practitioner made entries in the medical records. The practitioner:

(a) Failed to clearly record that he was the person who made the entry;

(b) Failed to record the time of the entry;

(c) Did not record the level of detail appropriate to the patient's case; and/or

(d) Made a record which was difficult to read.

11. Between about 1 April 2003 and 3 April 2003, the practitioner:

(a) Failed to introduce Syntocinon at a reasonable time to Patient I; and/or

(b) Otherwise communicated with her during the course of treatment in a way which was inappropriate and/or unacceptable.

Patient J

12. On or about 20 August 2003 and 21 August 2003, the practitioner provided medical treatment to Patient J. The practitioner failed to record sufficient information concerning the patient's care and treatment.

Patient K

13. On or about 10 November 2003, the practitioner provided medical treatment to Patient K. The practitioner's first entry in the medical record progress notes does not clearly record that he was the person who made the entry.

14. On or about 10 November 2003, the practitioner made rude comments to, yelled at and/or laughed at Patient K during the course of treatment.

Patient L

15. Between about 27 January 2004 and 4 February 2004, the practitioner provided medical treatment to Patient L. On 28 January 2004, the practitioner treated Patient L's perineal tears. The practitioner made entries in the medical record progress notes about the treatment. The practitioner:

(a) Failed to clearly record that he was the person who made the entry;

(b) Failed to record a time for the entry; and/or

(c) Recorded a description of the repair undertaken which was too brief and/or was otherwise unable to be interpreted.

16. On or about 28 January 2004, the practitioner used unacceptable language to the patient during the course of treatment. [Not pressed]. 

Patient M

17. On or about 8 February 2004 and 9 February 2004, the practitioner provided medical treatment to Patient M. The practitioner failed to record sufficient information concerning the patient's care and treatment.

18. [Deleted].

Patient N

19. Between 11 October 2004 and 19 October 2004, the practitioner provided medical treatment to Patient N. The practitioner:

(a) Failed to clearly record that he was the person who made an entry in the patient's medical records;

(b) Failed to record the time of delivery of the baby;

(c) Failed to record sufficient detail of his repair of an episiotomy; and/or

(d) Failed to record his discussions with the patient regarding her treatment.

Patient O

20. On or about 17 January 2005 and 18 January 2005, the practitioner provided medical treatment to Patient O . The practitioner made two entries in the medical record progress notes. The practitioner:

(a) Failed to clearly record that he was the person who made the entries;

(b) Failed to record a time for the entries;

(c) Failed to record any discussion of the proposed treatment with the patient.

Other

21. The practitioner was convicted on 26 September 2008 of an offence of driving with the prescribed concentration of alcohol. The practitioner failed to notify the NSW Medical Board, in writing and within 7 days of 26 September 2008, of the fact that he had been convicted of the offence, contrary to section 127B of the Act.

1. The respondent, who appeared in person, admitted a significant number of the particulars in respect of Complaint one. The respondent admitted particulars 1; 5(a),(b),(c); 7(b),(c); 8; 9; 10(a),(b),(c),(d); 15(a),(b),(c); 19(a),(b),(d); 20(a),(b),(c), and 21.

1. The respondent denied particulars 2; 3(a),(b); 4(a),(b),(c); 6(a),(b); 7(a); 11(a),(b); 12; 13; 14; 17, and 19(c).

1. It is therefore necessary for the Tribunal to determine whether each particular has been established in accordance with the civil standard of proof and the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360 - 363. In summary, the respondent denied that he was rude, rough or disrespectful to any of the patients; that he failed to record sufficient information concerning the care and treatment of patients; that in respect of Patient C, he performed perineal tears on a patient without wearing gloves, and in respect of Patient I, that he failed to introduce Syntocinon at a reasonable time to that patient.

1. The respondent denies Complaint two and Complaint three.

Meaning of "unsatisfactory professional conduct" and "professional misconduct"

1. For the purposes of the Act, "unsatisfactory professional conduct" of a registered medical practitioner is defined as follows:

"36 Meaning of "unsatisfactory professional conduct"

(1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following:

(a) Conduct significantly below reasonable standard

Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience;

(b) Any contravention by the practitioner (whether by act or omission) of a provision of this Act or the regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.

...

(m) Other improper or unethical conduct

Any other improper or unethical conduct relating to the practice or purported practice of medicine."

1. For the purposes of the Act, "professional misconduct" of a registered medical practitioner is defined as follows:

"37 Meaning of "professional misconduct"

(a) unsatisfactory professional conduct, or

(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct,

of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner's name from the Register."

1. In order for the Tribunal to be satisfied that the allegations are established, the Tribunal must be comfortably satisfied on the balance of probabilities, having regard to the serious nature of the allegations and the serious consequences: Briginshaw v Briginshaw .

1. Complaint one dealt with alleged breaches of the Medical Practice Regulation 1998 (NSW) and the Medical Practice Regulation 2003 (NSW), (now repealed). The relevant provisions of the Medical Practice Regulation 2003 were:

"Part 3 Records

5 Records relating to patients

(1) A registered medical practitioner or medical corporation engaged in the provision of medical services must, in accordance with this Part and Schedule 2, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner or corporation.

(2) This clause does not affect section 127 (4) of the Act.

(3) For avoidance of doubt, contravention of this clause is not an

offence.

(4) Subclause (1) does not apply to the following:

(a) a public health organisation within the meaning of the Health Services Act 1997 ,

(b) a private hospital,

(c) a day procedure centre,

(d) a nursing home within the meaning of the Nursing Homes

Act 1988 .

(5) Subclause (4) does not:

(a) affect the application of subclause (1) to a registered medical practitioner appointed, employed, contracted or otherwise engaged by a medical corporation referred to in subclause (4), or

(b) affect the operation of section 126 (2) of the Act in relation to a record made under this clause before 18 May 2001."

1. The Part referred to in cl 5 was Pt 3 of the Medical Practice Regulation which provided:

"6 When records are to be made

(1) A record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards.

(2) This clause may be complied with by the making of further entries in a single record that relates to the patient concerned.

Schedule 2 Records relating to patients (Clause 5)

1 Information to be included in record

(1) A record must contain sufficient information to identify the patient to whom it relates.

(2) A record must include:

(a) any information known to the registered medical practitioner who provides the medical treatment or other medical services to the patient that is relevant to his or her diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), and

(b) particulars of any clinical opinion reached by the registered medical practitioner, and

(c) any plan of treatment for the patient, and

(d) particulars of any medication prescribed for the patient.

(3) The record must include notes as to information or advice given to the patient in relation to any medical treatment proposed by the registered medical practitioner who is treating the patient.

(4) A record must include the following particulars of any medical

treatment (including any medical or surgical procedure) that is

given to or performed on the patient by the registered medical

practitioner who is treating the patient:

(a) the date of the treatment,

(b) the nature of the treatment,

(c) the name of any person who gave or performed the treatment,

(d) the type of anaesthetic given to the patient (if any),

(e) the tissues (if any) sent to pathology,

(f) the results or findings made in relation to the treatment.

(5) Any written consent given by a patient to any medical treatment

(including any medical or surgical procedure) proposed by the

registered medical practitioner who treats the patient must be kept

as part of the record relating to that patient.

2 General requirements as to content

(1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned.

(2) A record must include sufficient information concerning the patient's case to allow another registered medical practitioner to continue management of the patient's case.

(3) All entries in the record must be accurate statements of fact or statements of clinical judgment.

3 Form of records

(1) Abbreviations and short hand expressions may be used in a record only if they are generally understood in the medical profession in the context of the patient's case or generally understood in the broader medical community.

(2) Each entry in a record must be dated and must identify clearly the person who made the entry.

(3) A record may be made and kept in the form of a computer database or other electronic form, but only if it is capable of being printed on paper."

Principles

1. This jurisdiction is exercised for the protection of both the public and the medical profession. It is protective rather than punitive. Deregistration is not an automatic outcome of a finding of professional misconduct, even where that conduct is sufficiently serious to justify deregistration: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. It is clear that deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA at [64] and Basten JA at [101]; Childs v Walton [1990] NSWCA 41.

The respondent

1. The respondent was self-represented and gave no evidence during the hearing. It follows, as the Supreme Court of New South Wales Court of Appeal found in Bowen-James v Walton [1991] NSWCA 29 (Samuels, Meagher and Handley JJA):

"... if a medical practitioner fails to answer by giving his or her account of the matters charged, there can be no complaint if the Tribunal draws the unfavourable evidentiary inference which absence from the witness box commonly attracts."

1. The respondent advised the Tribunal that he did not wish to cross-examine any of the witnesses, including the expert witnesses.

1. The respondent was born on 25 February 1955. The respondent studied medicine in Czechoslovakia and was awarded a Bachelor of Medicine in 1980. After his compulsory postgraduate years, he elected to train in Obstetrics and Gynaecology. The respondent completed his first five years of training in one hospital and continued working at the hospital for a number of years. In the nine years post his training, he commenced publishing academic literature and had the opportunity to spend extended periods of three to six months working in hospitals in France and Germany. Throughout these years, he continued to have a significant caseload and was regularly on call including after hours. He became a senior doctor in a hospital, but was of the view that further promotion would not occur until the Professor at the time retired. As this was not likely to occur for a number of years, he decided to travel to Australia in 1993 with the intention of spending three months living in Australia to improve his English. During this period, he met his second wife and she encouraged him to settle in Australia. The respondent's evidence is that he had some early guilt feelings concerning leaving his family in Czechoslovakia and abandoning his employer, but he decided to stay in Australia. He had married a medical student whilst studying at University and had two children before an amicable separation some years before he came to Australia.

1. The respondent and his second wife subsequently moved to Singapore where his wife was to take up a position. On 4 August 1995, he was charged in the Singapore Magistrate's Court of "criminal intimidation" arising out of a domestic argument with his wife. He pleaded not guilty but was convicted and sentenced to a gaol term of one month.

1. He returned to Australia immediately upon his release and applied to have his specialist qualifications recognised. He was unsuccessful. He was advised to attempt the Australian Medical Councils Multiple Choice Questions examination ("AMC MCQ"), (a Medical Council of Tasmania examination which took effect in July 1998).

1. In 1997, the respondent successfully applied for registration in an "area of need" position at the Royal Hobart Hospital. He did not disclose his conviction in Singapore on his application form. It was his view that because a domestic violence offence would not result in a criminal charge in Australia carrying a gaol sentence, it was not applicable.

1. The respondent's evidence was that when completing the application form in 1997, he did not know that he was required to include it in the declaration. He gave an account of his understanding of the wording of that declaration which was that he did not believe that the issue would lead to a conviction in Australia. The Tribunal will return to consider this matter in greater detail when it determines Complaint two.

1. The respondent worked for two years in this position in the Obstetrics and Gynaecology Department as a Registrar. The position ended when the regular Registrar returned from maternity leave.

1. In 1999, the respondent was offered a new position at Burnie Hospital in Tasmania, but when he approached the Medical Council of Tasmania ("MCT") for registration, he was confronted with the conviction in Singapore and advised that he had made a false declaration in his application for the position at the Royal Hobart Hospital and that the MCT would have to consider his character. The offer of the position was withdrawn, so the matter went no further with the MCT.

1. In 2000, the respondent passed the AMC MCQ examination.

1. In February 2001, the respondent applied for a position at the Women's and Children's Hospital in Adelaide. The Deputy Registrar of the Medical Board of South Australia interviewed the respondent and the matter was then referred to the Board for consideration. Apparently, the employment offer was withdrawn so the matter proceeded no further.

1. In March 2001, the respondent applied for an "area of need" position at Lismore Base Hospital. On 23 March 2001, the Area of Need Panel examined the respondent's application, accepting him to be clinically appropriate for the advertised position. In response to the Panel's invitation, the respondent gave an account of his professional career, as outlined above (including his declaration in Tasmania), other than an alleged false claim against a charity. No material was provided in respect of this matter. Nor was this pursued by the Interviewing Panel. The interviewers who comprised the Panel discussed this issue and were of the view that there was insufficient firm evidence to warrant pursuing the issue.

1. The Panel asked whether there were any other incidents that might have occurred in Hobart of which the Medical Board should be aware, and he indicated that he had had a clash with a nurse about a patient not being there, but was unable to identify any incident(s) that could lead to adverse reports.

1. The Panel concluded that the respondent had been candid and sincere in his presentation. The respondent was advised that a report would be provided to the Registration Committee which met on 6 June 2001, to decide whether the respondent's application should be accepted. The respondent indicated he had no objection to contact being made with his referees at the Royal Hobart Hospital and it was suggested that he should seek to obtain a Certificate of Good Standing from Czechoslovakia, which he sought.

1. The Panel considered that there were three matters which required clarification by the respondent. Those matters were:

"1. An alleged false statement concerning his declaration to the Tasmanian Medical Council about prior convictions.

The interviewers were satisfied that Dr Hasil had not understood that he had an obligation to reveal his Singapore conviction.

2. His inability to obtain a Certificate of Good Standing from the Tasmanian Medical Council.

Dr Hasil is unable to obtain a Certificate of Good Standing because he is currently unregistered, and in present circumstances it appears that he will not be able to be re-registered, or to have the issues preventing this properly aired in an appropriate forum.

3. An alleged false claim against a charity in Victoria.

The interviewers considered that there was not sufficient evidence to warrant pursuing this item."

1. On 6 June 2001, the Registration Committee of the Board noted:

"Dr Hasil was interviewed for an area of need position and considered clinically appropriate, but he was unable to produce a Certificate of Good Standing from Tasmania. He was interviewed by Dr M Diamond and Mr Andrew Dix on 4 May 2001 to consider his suitability for registration."

1. The Registration Committee resolved to approve the respondent's application for registration in an "area of need" position.

1. The respondent was employed as a Registrar in Obstetrics and Gynaecology at Lismore Base Hospital from 25 June 2001 until March 2005.

1. In May 2005, the respondent was employed at the Angliss Hospital in Victoria. The evidence given by the respondent to various medical experts was that he was very unhappy with this position because he was treated like a junior doctor. He had still not passed the Fellowship exams for the Royal Australian College of Obstetricians and Gynaecologists. He became depressed and bought a six pack of beer and drank it in the Hospital car park. The respondent was dismissed from his employment at the Angliss Hospital for alcohol use whilst on duty and removed from the Victorian Register of Medical Practitioners on 12 January 2006 following his failure to pay his renewal fee.

1. In late 2005, the respondent was employed in New Zealand where he worked intermittently until 2007. Whilst working as a doctor in New Zealand, he presented for work smelling of alcohol on two occasions. The first occasion was in late 2005. The respondent's explanation was that he had been preparing for his College examinations and had failed. Around this time, his wife, who had remained in Lismore with their two children, sent him a message telling him not to come back to Lismore. He said that he drank heavily that night and attended work in the morning smelling of alcohol. He was asked to go home.

1. This matter was investigated and dealt with and he continued in employment at the Whanganui Health District Hospital. He remained sober for about nine months, until once again, he was found to have been drinking alcohol, this time whilst on call. It had been noted that he presented smelling of alcohol. He was placed on leave. He was referred to a psychiatrist and a psychologist. The respondent stated that at the time he was suffering depression.

1. The respondent returned to work in late 2006 after a period of six months' leave. He was required to present on a regular basis for breath testing and monitoring.

1. Upon his return to Australia, the respondent was required by the Board to be reviewed as part of the assessment process for the Health Programme of the Board. Dr Andrew Petherbridge, Staff Specialist, Liverpool Hospital, provided a report to the Board dated 12 January 2006.

1. Dr Petherbridge's conclusions were:

"On the basis of the report of the incident and the evidence of my interview with Dr Hasil I do not believe that he has an ongoing problem with alcohol or undiagnosed psychiatric illness. While the incident at Angliss hospital had the potential to put patients at risk it appears that this was an isolated incident, a consequence of poor judgment, rather than evidence of ongoing problematic drinking. He does not have any of the typical physical, social or professional consequences of problematic alcohol use. On the basis of the evidence I have I feel that there is little to be gained by Dr Hasil participating in the Board's Health Programme."

1. On 6 February 2008, the respondent was convicted of driving with high-range prescribed concentration of alcohol in his blood ("PCA"). He was fined $250 and disqualified for a period of 12 months. The Director of Public Prosecutions appealed the conviction. However, the sentence was confirmed on appeal.

1. On 26 September 2008, the respondent was again convicted of driving with high-range PCA.

1. On 24 July 2008, the respondent was convicted of "common assault" and "obtain money, valuable thing/financial advantage by deception". The respondent was placed on a good behaviour bond for 12 months and required to accept supervision and guidance from the Probation & Parole Service (NSW).

1. On 26 June 2008, the date of the second PCA offence, the respondent was admitted to the James Fletcher Hospital in Newcastle after informing police that he was considering suicide. He was admitted under the Mental Health Act 2007. According to the clinical notes of the Senior Staff Specialist in Psychiatry at the Hospital, the following day the respondent was clearly withdrawing from alcohol use and was controlled in his behaviour. He was made a voluntary patient. At his insistence, he was placed on leave from the Hospital. He was expected back on Monday 30 June 2008. He did not return and was formally discharged on Thursday 4 July 2008. He had previously been admitted on 19 June 2008, again overnight, after being arrested by police and attempting to steal wine from a bottle shop. He had again mentioned suicidal thoughts and was admitted for assessment. He was discharged on 20 June 2008.

1. After those further incidents, the Board again sought a review of the respondent from Dr Petherbridge. In his report to the Board dated 26 April 2009, Dr Petherbridge stated his conclusions as follows:

"It appears that Roman has in the last few moths started to acknowledge that he is an alcoholic and he has taken steps to correct some of his past errors. This has been a particularly dark period for Roman given the difficulties he has faced in a number of work environments, his marriage(s), allegations about his clinical performance and alleged involvement in murders. I would like to support Roman in the positive steps that he has recently started.

However many of these stressors are still unfolding, particularly court processes seeking access to his children and I believe some patient complaints may be still going through formal complaint processes. He is also in the very early stages of his recovery from alcohol abuse and has to sort out for himself many critical concerns such as stable accommodation. I am also concerned that Roman's attempt to regain his medical registration is because it is "unfinished business" and this is not appropriate particularly when Roman is able to acknowledge to me that it is highly unlikely he would ever be employed in medicine. I believe it is more critical to his recovery that he learn to acknowledge his past difficulties and "move on". A further concern is that it has taken multiple contacts with authorities (police and registration boards) before Roman has been able to acknowledge both his problem with alcohol and the fact that his behaviour has placed patients at risk. Even at our interview Roman externalised the blame for some of his behaviours, he had difficulty accepting that he was responsible and not those he placed some blame on - other staff, social circumstances, work demands and his ex-wife.

I was asked to assess Dr Hasil from the perspective of impairment as defined. He is clearly impaired because of his use of alcohol and I do not believe that any conditions that could presently be placed on his registration would be sufficient to ensure he does not return to drinking and place patients at risk. I say this on the basis that he is still in the early phase of his abstinence and he continues to externalise blame, rather than acknowledge personal responsibility. It may be that after an extended period of confirmed abstinence, some twelve months, then the usual monitoring of CDT testing and self-reports of his behaviour may be sufficient to ensure patient safety. I would be happy to review Dr Hasil when this was to occur.

I am aware that I was not asked to comment on two further aspects of my review of Dr Hasil. The first of these relates to his work performance. Roman informed me that there have been complaints about sterilization procedures that he performed and I understand that there may have been other patient complaints. If he was to have his registration restored then I would strongly suggest he be invited to participate in a programme of performance review including mentoring, and working under supervision. I would also be reassured if Dr Hasil were to start participating in appropriate CME prior to seeking re-registration.

My second concern relates to Dr Hasil's personality. While I do not believe that he has a personality disorder I do believe that he has a narcissistic manner of interacting with other people. I base this on his reports of other staff that he has worked with and his use of blame to make others responsible for his difficulties. This personality style would make it difficult for Roman to work as part of a team, essential in modern O&G work. Beyond any impairment he is at potential of being labelled as a disruptive doctor.

If you would like me to clarify any points in this report please contact me ...."

1. The respondent's extensive medical records from admissions to St Vincent's Hospital were tendered to the Medical Tribunal of New South Wales ("the Tribunal"). The records included that the respondent was admitted to St Vincent's Hospital on 30 December 2008, after he had "been on a three day binge". On 2 October 2009, the respondent was admitted to St Vincent's Hospital having suffered a head injury. A report by Dr Catherine Johnson, a resident medical officer dated 23 November 2009, relevantly stated:

"In regards to his head injury, Mr Hasil sustained bifrontal contusions, a traumatic sub-arachnoid haemorrhage. He required a bifrontal craniotomy and an intensive care admission thereafter. Secondary to this head injury and in combination with his history of alcohol abuse, he was slow in completing our post-head injury assessment tasks, however once passed Mr Hasil has been clear for discharge. He was reviewed for rehabilitation as are all head injury patients, however due to his premorbid alcohol misuse it was believed that he was not a suitable candidate for rehabilitation.

Mr Hasil has been reviewed by our occupational therapists and there are definitive deficits on his cognitive assessment. It is difficult to decipher the primary case of his deficits. However, I should be noted that Mr Hasil presented to our emergency department in 2008 requesting alcohol detoxification. Clearly he has long standing impairments and there has obviously been a decline in his capacity to work and function normally, as demonstrated by his previous presentation, his living in crisis care accommodation, his medico-legal situation and his ultimate seizure which resulted in his current head injury.

Considering this, Mr Hasil has several invitations for a disability support pension ..."

1. The respondent's medical records were also tendered in respect of treatment he received at the South Eastern Sydney Illawarra Langton Centre for a substance use issue (Ethanol, including alcohol). The respondent had presented at the Centre on 18 August 2008 with an urgency status of three days. During the service request period, he was seen 15 times.

Expert evidence

1. The HCCC sought a suppression order in respect of the names of each of the medical experts that had provided reports to the HCCC in respect of the respondent. Although the Tribunal initially granted a suppression order in respect of the medical experts, the Tribunal has formed the view that there is no reason why the names of the medical experts should not be disclosed. Pursuant to Cl 6, Sch 2 of the Act, the direction is revoked. We have reached this view, particularly in light of the observations made by the Court of Appeal in Lindsay v Health Care Complaints Commission [2010] NSWCA 194, and more particularly the observations made by Young JA at [42] - [45] and Sackville AJA at [116] - [120]:

"[42] Before concluding I should say that I particularly endorse what Sackville AJA said about confidentiality orders. Clause 6 of Schedule 2 to the Medical Practice Act 1992 empowers the person presiding in proceedings before the Tribunal if that person thinks it appropriate in the particular circumstances of the case direct that the name of any witness is not to be disclosed or other details concerning the witness or complainant or the medical practitioner.

[43] It would appear from what we were told that it has become part of the culture of the Tribunal to make an order keeping witness's names confidential in every case. Such a culture goes against clause 6 which requires the person presiding in the proceedings to make a decision as to whether a confidentiality order is appropriate in the particular circumstances of the case. This means that one cannot just say it must be made unless there are special circumstances to the contrary.

[44] There is no reason why the name of a witness to the Tribunal should not be disclosed unless there are particular circumstances such as the witness is suffering from a condition which it would be embarrassing to have revealed generally, or there is some fear of reprisal. (I do not mean this to be an exhaustive statement).

[45] Generally speaking, so long as the Tribunal observes the usual procedure to protect the people appearing before it from being the victims of identity fraud, there is no reason why the public generally should not know what witnesses were called before the Tribunal.

...

[116] On the first day of the hearing, the Tribunal made a direction pursuant to cl 6 of sched 2 to the Act that there be no publication of the name or address of any witness, complainant or medical practitioner until further order. The Deputy Chairperson did not give detailed reasons for making the order. However, he indicated that he was influenced to do so by the fact that the appellant was representing himself and, unlike a legal representative, he was not bound by ethical rules governing the making of serious allegations against witnesses or other persons involved in the proceedings. It does not appear that consideration was given to exercising the power to revoke or amend the direction (cl 6(2)), once the Tribunal had determined that none of the appellant's allegations of misconduct or conspiracy was supported by the evidence.

[117] No challenge was made on the appeal to the direction made by the Tribunal. The appellant belatedly applied for leave to amend the FANA to include such a challenge. Having regard to the unconvincing reasons given by the appellant for the lateness of his application, the Court refused to grant leave.

[118] The precise scope of the Tribunal's non-publication direction is not entirely clear. In particular, it is not clear whether the direction prevents this Court publishing names of witnesses who gave evidence in the Tribunal in the judgment. Nor is it clear whether a third party can publish what appears in the transcript of argument on the appeal or in this judgment.

[119] This Court has power to prohibit publication or disclosure of any information tending to reveal the identity of any party to the proceedings or " witness in the proceedings ", if it is of the opinion that it is necessary to do so to secure the proper administration of justice: Civil Procedure Act 2005, s 72(1). The Court in determining an appeal from the Tribunal, also may make such order as it thinks proper having regard to the merits of the case and the public welfare and, in doing so, may exercise any one or more powers of the Tribunal: Act, s 91(1)(b).

[120] Whatever justification there may have been for the Tribunal's non-publication direction, there is in my opinion no justification for the direction to prevent publication of identifying information in relation to witnesses in this Court's judgment or the transcript of the proceedings in this Court. In my view, the power in s 91(1)(b) extends to exercising the Tribunal's power to revoke or amend a non-publication order, at least where the revocation or amendment is ordered in the Court's judgment disposing of the appeal. Accordingly, the Tribunal's non-publication direction should be amended to the extent necessary so that it does not prevent publication of the names of any witness, complainant or medical practitioner referred to:

in the transcript of proceedings in this Court;

in the judgment of this Court; and

in any report or publication of the proceedings in this Court or the judgment of the Court."

1. Although finely balanced, the Tribunal does not propose to revoke the non-publication order in respect of the identity of the patients. A number of the patients made their complaint in respect of the respondent on the basis that such complaint remained confidential. It is unclear as to what extent some of the patients may have been encouraged to make their complaint.

Complaint one

1. The HCCC obtained expert opinions in respect of the various complaints made by the 15 patients relating to the respondent. As we have already observed, with the exception of two matters (failure to wear gloves and the failure to introduce S yntocinon), the particulars do not challenge the respondent's surgical or clinical techniques. Therefore, with this in mind, the Tribunal has decided to include in this judgment the conclusions of the medical expert retained by the HCCC, Dr Peter Bland, who provided a number of reports in respect of the complaints made by the patients.

1. In his report dated September 2008, Dr Bland considered complaints made by Patient C, Patient D, Patient F, Patient G, Patient J and Patient M. His conclusion read as follows:

"Dr Hasil is an unpopular doctor who has upset a lot of people. He is working in an 'Area of Need' because no-one else would go there. I assume he is an Overseas Trained Doctor and he is working in provincial Australia which is less cosmopolitan than, say, Sydney.

He is a poor documenter - his hand writing is challenging, he provides only the barest details and frequently leaves others to write things up for him in the third person. He is a poor communicator who seems to be trying to fit in by using colloquial but often inappropriate language.

However, if he is not present at LBH, then no-one is and there is no service at all. The data are a mixture of old and new - some contemporaneous records and some reports written long after-the-fact and assumedly influenced by the passage of time - I Have referred to specifics above. This necessitates some interpretation of "the facts".

In the cases provided, the majority of his actions are logical and within normal standards of practice. Clearly vaginal surgery without gloves and calling a woman 'slut' and 'whore' falls outside these standards but I am not convinced of the veracity of this report as noted above. I have noted the possible technique problem in the case of [Patient G] but have reviewed exactly the same injury after a similar delivery by an Australian-trained Senior Specialist in a tertiary hospital in this state; discussion but no censure resulted.

I do not believe these cases indicate that the care provided by Dr Hasil falls below acceptable standards. He may be summed up by Ms Whitely: 'I found Dr Hasil to be really good to work with. He was always polite and helpful except if he took a dislike to a patient or colleague when he would change his behaviour and he could be rude and abrupt'."

1. The HCCC sought a further opinion from Dr Bland regarding the complaints made by the patients considered in his report of September 2008. Dr Bland provided an addendum to his earlier report dated April 2009. His conclusion read:

"There are significant inadequacies in the care provided by Dr Hasil. He is a poor communicator and a poor documenter. He fails to establish an effective interaction with patients and of greater concern seems to be oblivious of that at the time. Of still greater concern, he remains ignorant even in the face of formal complaint and review. He lacks insight that he is not practising in a way his colleagues do and would expect him to. His responses to criticism are a combination of denial and dismissal or textbook-like quotations. This is not helpful - he appears to not grasp that there is a problem.

His clinical care is in the main explicable and reasonable. He seems to attract the adjectives 'rude' and 'rough'. I have addressed the former above. The latter is more concerning - 'sticks and stones may break my bones but names will never hurt me'. The cases presented in this complaint contain two damages babies - one with a femoral fracture and one with an intracranial bleed. I would certainly implicate the accoucheur in the form but am less confident in the latter as the mechanism of trauma is more difficult to imagine. Dr Ingall's comments indicate some concern regarding the physicality of Dr Hasil's actions - this needs specific analysis and consideration.

Dr O'Sullivan provides further information and insight regarding Dr Hasil's practice - his failure to obtain official status in the profession in Australia, his antipathy for this rejection, his gradual drift into a position of responsibility described as a 'quasi-Registrar' and the uncertainty this sort of thing produces in terms of scope of practice. I am concerned about the ectopic pregnancy case, which Dr O'Sullivan describes. The outcome was apparently good but as a result of luck rather than judgement. A clinician must be cognizant of his limitations in order to know when to seek help and further to use that help to increase his skill and knowledge. A clinician must have insight and a willingness to listen and learn. Dr Hasil lacks these attributes. I am very concerned to hear of the suggestions of criminal charges and disqualification in other states in Australia.

Dr Hasil would not be the ideal person to provide obstetric and gynaecological services to the women of Lismore. This is apparent as a result of retrospective claims and observations from patients and colleagues. The real issues are:

Why was he employed at LBH?

Why did the system fail to establish his problems prior to employment?

How did he drift from a basis position to one of responsibility?

The workforce problem of provincial obstetrics has been present for well over a decade and is worsening. The responsibility of providing care for the women of Lismore and other regional areas lies with the Government and the RANZCOG. Neither has performed well - their care has fallen significantly below the standard and I am severely critical. Neither has provided leadership or strategies to address the problem constructively. The result is a two-tiered health service with provincial women the losers. Hospitals like LBH need to provide stop-gap solutions in order to stay afloat and support incumbent practitioners (medical and midwifery) as alluded to by Dr O'Sullivan. 'Beggars can't be choosers'. Dr Hasil is not unique and will pay for his inadequacies while those who are responsible at the casual level will continue to provide their substandard contributions, the problem will grow and the women of Australia will be the real losers. Complaints of this ilk will be the result.

Regarding Dr Hasil I am severely critical of his communication, documentation and lack of insight. I am concerned regarding the possibility of deficits in his clinical skill and judgement but would need closer review of his practice to define these."

1. The HCCC sought a further supplementary opinion from Dr Bland asking him to assume that various patients' versions of events were accurate. Dr Bland provided further supplementary clarification in his report dated April 2009. In assuming Patient C's allegation of failing to wear gloves was accurate, Dr Bland stated:

"This is inappropriate. For the protection of both the surgeon and the patient, surgical gloves should be worn. I am severely critical.

...

This is a significant departure from the standard of care reasonably expected given Dr Hasil's level of training and experience."

1. Dr Bland was also asked to assume that the comments Patient C alleged that the respondent made were correct. (She alleged he called her "horse woman", "whore" and "slut"). Dr Bland stated:

"The comments attributed to Dr Hasil are inappropriate and cannot be justified under any circumstances. I am severely critical.

...

This is a significant departure from the standard of care reasonably expected given the respondent's level of training and experience."

1. In respect of Patient M, Dr Bland indicated that he had mild criticism regarding the respondent's communication with Patient M. Patient M alleged that when she asked the respondent if the baby was coming, he said "no, but you have just given birth to a family of haemorrhoids".

1. The HCCC requested Dr Bland to indicate whether or not "this falls significantly below the standard reasonably expected given Dr Hasil's level of training and experience". He was mildly critical, but stated that his care for the patient did not fall significantly below the standard, given the respondent's training.

1. Dr Bland's complete response to the further questions was:

"Q: Please comment on Dr Hasil's communication with [Patient M] during her labour and delivery.

A: The quotations attributed to Dr Hasil are for the main consistent with statements made to women in labour when trying to establish rapport and encourage. The comment about haemorrhoids was inappropriate given the lack of relationship but was probably accurate. Dr Hasil was clearly unsuccessful in trying to engage [Patient M]. I am mildly critical. His care does not fall significantly below standard reasonably expected given Dr Hasil's level of training or experience.

Q: Please comment on Dr Hasil not administering further analgesia or anaesthetic during the episiotomy repair.

A: [Patient M] had an epidural in situ for the delivery which involved some manual technique I am not sure about; this precipitated 'extreme pain' - previously defined by [Patient M] as 'on a scale of 1 to 10... being 100'. In this circumstance I would think either a top-up of the epidural or some local infiltration would have been the norm. I am moderately critical of Dr Hasil - one assumes the repair work would be less painful than the delivery, hence 'moderately'. However failure to respond to the patient's needs means his care falls significantly below standard reasonably expected given Dr Hasil's level of training or experience."

1. The HCCC also asked Dr Bland to provide a further opinion as to whether the standard of Dr Hasil's communication, documentation and lack of insight amounted to a significant departure from the standard reasonably expected. Dr Bland stated:

"Regarding Dr Hasil I am severely critical of his communication, documentation and lack of insight. I am concerned regarding the possibility of deficits in his clinical skill and judgement but would need closer review of his practice to define these. With regard to his communication, documentation and personal insight, Dr Hasil falls below the standard reasonably expected given his level of training or experience."

1. The HCCC sought Dr Bland's opinion in respect of complaints made by Patient A, Patient B, Patient F, Patient I, Patient L, Patient N and Patient O.

1. After a detailed consideration of each of the patients' complaints, Dr Bland's conclusion in his report dated April 2009 was:

"From my original report I extract: Dr Hasil is an unpopular doctor who has upset a lot of people. He is working in an 'Area of Need' because no-one else would go there. I assume he is an Overseas Trained Doctor and he is working in provincial Australia which is less cosmopolitan than, say, Sydney.

He is a poor documenter - his hand writing is challenging, he provides only the barest details and frequently leaves others to write things up for him the third person. He is a poor communicator who seems to be trying to fit in by using colloquial but often inappropriate language.' This still stands.

His decision-making continues to appear logical and justifiable; there are always several ways to address problems in medicine and Dr Hasil's practice appears within the normal range. His clinical skills seem reasonable - despite the HCCC seeking complaints, only one of these 14 cases appears to have had major untoward sequelae. One wonders how many 'nice chaps' would bear up under such scrutiny.

When selecting trainees and consultants, one seeks certain attributes: knowledge, skill, qualification and 'nice chap/lady'. In Australia in the past we have had a good pool from which to choose; as a result must applicants had to have the first three in order to just apply, so that the discriminatory criterion was the 'nice chap/lady' factor. Times are changing and the well is drying up. There are fewer people wanting to do the job - particularly in the field of Obstetrics and Gynaecology and particularly in the provincial setting. We are moving to the acceptance of practitioners who do not have ticks against all criteria. If one is to accept a cross in one of the boxes, it is safest if it is in the area of 'nice chap/lady'.

Some issues need to be put to rest, specifically that of alcohol consumption, wearing gloves and the surgical perineal repairs. I have commented in my Responses on the use of alcohol when on-call. It is accepted as reasonable practice by the Medical Board, providing it is not excessive. None of the complainants suggested Dr Hasil was out of control or slurring his speech or unsteady of gait; no-one has performed a breath test or a blood alcohol level; the statements from the midwifery staff deny the 'smelling of alcohol' assertion. This innuendo is not helpful.

The comments of 'I don't recall if he was wearing gloves' are similarly full of implication but short on substance. Dr Hasil has been observed daily by fellow health professionals but there is no flood of complaint and accusation from that quarter.

The comfort and success of a perineal repair are certainly influenced by the surgeon doing the repair. However they are also dependent on the tear itself - its size, direction and complexity. Of the six perineal repairs, Dr Hasil had control of two - when he performed an operative delivery. The other four were following spontaneous deliveries under midwifery control - Dr Hasil was called post-delivery 'to fix things up'. Some of the responsibility for the long term sequelae must sit with the accoucheur.

Dr Hasil's responses to the HCCC are consistent with the complaints and reflective of his personality. In the face of fourteen people suggesting his behaviour is rude and his comments inappropriate, he simply denies the accusation.

On the evidence presented his medicine is adequate but his people skills are not. The solution is to address this inadequacy with a retraining of these skills but his lack of insight would make such a program challenging and likely to fail. The extrapolation is that a reasonable practitioner will be lost to the profession which is short of clinicians and there is a lose:lose situation.

In summary, Dr Hasil is a poor communicator and documenter. He does not engage well with patients although the midwifery staff seem more accepting of this aspect of the man. In these attributes he is significantly below standard and invokes strong criticism.

His clinical work is reasonable and safe in the cases presented and from this perspective I am not critical - he is working in an isolated circumstances in an unpopular position and providing an adequate, albeit not warm and fuzzy, service."

1. A further report was sought by the HCCC from Dr Bland in respect of complaints made by Patient H and Patient K which in summary related to the respondent's manner and that he was rough.

1. After considering the complaints, Dr Bland's conclusion in a report dated April 2009 in respect of these two patients was:

"Dr Hasil's care is not ideal - hence the complaints. However his short-comings relate more to process and communication than bad medical practice - decision-making amd (sic) technique. On that basis I am critical but his care does not fall significantly below standard."

Expert opinion - Complaint three

1. Associate Professor Wayne G J Reid, Clinical Neuropsychologist, provided a neurological assessment and report to the HCCC in respect of the respondent's history of alcohol abuse and traumatic brain injury. Associate Professor Reid's summary and assessment contained in his report dated 22 November 2011 read:

"Mr Hasil is a 56 year old medical practitioner whose name has been removed from the register of medical practitioners on 11 April 2009. He is currently under investigation in relation to complaints about his medical practice. On neuropsychological assessment he was found to show a decline in his overall intellectual functioning from his premorbid estimate where he now functions in the average range whereas previously it is estimated he was of at least superior intellect. Impairment in his cognitive functioning was also identified in his frontal executive skills affecting his conceptual abilities, adaptive functioning, planning and organisational skills and ability to think quickly and flexibly.

In the context of his history it seems the most likely cause of his frontal executive deficits is the head injury he sustained in October 2009 where he was reported to have suffered bifrontal contusions, a traumatic subarachnoid haemorrhage and required bifrontal craniotomy. In addition Mr Hasil has a past history of alcohol abuse although he reports that he has drunk very little alcohol over the last two years. If one accepts this and considering his past reported drinking history it seems unlikely that alcohol abuse is responsible for his current cognitive problems. Furthermore there has been a further decline in his social functioning where he lives in an isolated boarding house environment and spends what appears to be considerable time wandering the streets.

Considering the nature and extent of his higher cognitive deficits it is felt he is impaired in regard to his neurocognitive functioning and his ability to practice medicine is currently compromised.

It is recommended Mr Hasil have further rehabilitation, psychological intervention and referral to a rehabilitation provider for assistance in finding employment in the open job market. Furthermore it is recommended he be referred for follow up neuropsychological assessment in 12 months time following a period of intensive rehabilitation and his case be referred back to the Medical Council for review of his capacity to function as a registered medical practitioner under the Impaired Registrants program."

Consideration

Complaint one

1. We turn to consider the particulars of Complaint one which were not admitted by the respondent.

Patient A

1. Patient A made a complaint to the HCCC dated 13 August 2008, apparently after being contacted by the HCCC. There was no evidence of any earlier complaint.

1. Patient A went into labour on the evening of 28 October 2001 and gave birth on 29 October 2001. Relevantly, her evidence was that the respondent:

"... grabbed my ankles and pulled me down the bed very forcefully and he pushed my knees apart, again very forcefully. Dr Hasil did not say anything to me at this time. Dr Hasil then forcefully wiped a thing like a baby wipe across my vagina. I think it was an antiseptic wipe because I remember that it stung badly. He was very rough."

1. Patient A said she told the midwife that she found the respondent to be very rude. The midwife told her that she could make a complaint at the office. However, she did not make a complaint at this time, although she recalled mentioning it to her doctor at a later time.

"Particular 2:

2. On or about 29 October 2001, the practitioner was rude, rough and/or disrespectful to the patient during the course of treatment."

1. Patient A's partner was present during the birth. In a statement dated 13 August 2008, he said:

"At the time I was a bit overwhelmed with everything, but looking back on it it was very disturbing because Dr Hasil was very rough and I remember the look on [Patient A's face]. It looked like she was in pain and very uncomfortable when Dr Hasil wiped her..."

1. Patient A's partner could not remember the respondent saying anything "before he started or afterwards." He found the respondent to be "pretty arrogant towards us."

1. The cousin of Patient A was also present during the birth as her support person. Her evidence in a statement also dated 13 August 2008 was:

"The doctor was standing at the end of the bed and I remember seeing the needle and thread in his hands. [Patient A] slammed her legs together and said something like 'I can't, I can't, it hurts too much.' The doctor roughly pushed [Patient A's] legs apart, and said something like 'stay still, this needs to be done'...

... The doctor did not display any empathy or sympathy towards [Patient A] or acknowledge how she was feeling."

1. There is no record of complaint that the respondent was rude, rough and/or disrespectful to Patient A in the clinical notes regarding the birth of Patient A's child.

1. The respondent denied that he was rude, rough and/or disrespectful to Patient A during the course of her treatment. The Tribunal is mindful that this particular relates to the conduct of the respondent who was treating Patient A after she had given birth and who, based on the evidence, was clearly visibly and emotionally tired.

1. The evidence of Patient A's cousin, which is based on her recollection of events that occurred apparently seven years earlier, is that the respondent roughly pushed Patient A's legs apart. Patient A's evidence was that the following day she believed the respondent had been "too rough with me".

1. In the Tribunal's view, there is insufficient evidence to make a finding that the respondent was rude and/or disrespectful. Although there is evidence from Patient A that the respondent forcefully pushed Patient A's legs apart and was very rough, Patient A's cousin's evidence was that she had slammed her legs together. It must follow that the respondent was required to use some force to push Patient A's legs apart. Her partner's evidence was he was "a bit overwhelmed ..., but looking back ... Dr Hasil was very rough". His evidence was in respect of an event which occurred almost seven years ago. He provided no detail as to why he formed the view the respondent was very rough, apart from the look on Patient A's face when the respondent wiped her.

1. In light of the respondent's denial and relying upon the medical expertise provided to the Tribunal by its medical members, the Tribunal is unable to reach the standard of satisfaction required to find that this particular has been established.

Patient B

1. Patient B made a complaint to the HCCC by email dated 24 October 2008. Patient B's statement dated 3 December 2008 was tendered.

1. Patient B, a registered nurse and midwife, gave birth to a son on 27 November 2001. She recalled that the respondent was wearing gloves whilst he carried out this procedure. Her evidence was that she felt the respondent was not very empathetic. She did not remember the respondent saying anything to her after he had completed the procedure and before he left the room.

"Particular 3:

On or about 27 November 2001 and 28 November 2001, the practitioner provided medical treatment to Patient B and:

(a) The practitioner failed to record sufficient information concerning the patient's care and treatment; and/or

(b) On or about 27 November 2001, the practitioner used unacceptable and/or inappropriate language to the patient during the course of treatment."

1. Ms Alison Fuglsang, a registered nurse and midwife employed at the Lismore Base Hospital in 2001, provided a statement to the HCCC dated 4 December 2008 in respect of Patient B. Relevantly, Ms Fuglsang's evidence was that she did not recall that there was anything unusual about Patient B's perineal suturing. She stated that she had worked with the respondent "quite a bit" and she had never had a problem with him. She stated:

"He was prompt and he made decisions quite clear. I quite liked his style, he was polite and direct with me. I never observed anything that I considered warranted a complaint about his clinical conduct."

1. Ms Fuglsang stated that she never smelt alcohol on the respondent when he was on duty, nor did she ever see him "present as being hung-over or smelling of stale alcohol on duty."

1. The Tribunal has perused the clinical records concerning Patient B's care and treatment. The Tribunal agrees with the conclusions of Dr Bland that the respondent's documentation is below standard.

1. Particular 3(a) is proved.

1. The evidence in respect of Particular 3(b) is that the respondent "was not very empathetic" and "I don't remember him saying anything to me after he finished".

1. There is insufficient evidence that would enable the Tribunal to reach the standard of satisfaction required to find Particular 3(b) established.

Patient C

1. Patient C forwarded a letter of complaint to Lismore Base Hospital dated 1 September 2003. Her statement to the HCCC was dated 21 May 2008. Patient C gave birth on 15 July 2002. Relevantly, Patient C states that after she gave birth, the respondent came into the Birthing Suite, but did not introduce himself. She stated that when the respondent came into the room, he laughed at her and said "spread your legs so I can clean up this mess!"

1. In her statement dated 21 May 2008, she made no reference to the respondent laughing when he instructed her to "spread your legs".

1. In Patient C's letter to the Hospital of 1 September 2003, Patient C makes no reference to the respondent's failure to wear gloves when he commenced to suture her. However, in her statement of 21 May 2008, the respondent stated that "he wiped me from the top of my genitals down to my bottom" and that "he was not wearing any gloves when he did this".

1. Patient C's evidence in her 2008 statement was that he did not put any gloves on for the entire procedure. Patient C stated that the respondent had not even finished the first stitch before she kicked him in the chin and across the room away from her. She recalls saying to him:

"Give me some local and some gas before you come near me. As Dr Hasil was getting up off the ground I heard him say to the midwives. "Stirrup the bitch". He said this in what I would describe as a snarly voice. He was rubbing his jaw with his left hand."

1. Patient C's evidence was that the respondent said to her "You Australian women don't know how to have babies". She also recalled that he made some comment about "horse woman" as he was walking towards her. She stated whilst he was undertaking the stitching, he was making comments like "horse woman, this will teach you to kick the doctor, whore, slut".

"Particular 4:

Between about 14 July 2002 and 21 July 2002, the practitioner provided medical treatment to Patient C. The Practitioner:

(a) Failed to record sufficient information concerning the patient's care and treatment;

(b) Performed a perineal repair without wearing gloves; and/or

(c) Made inappropriate comments to the patient during the course of that repair."

1. Ms Julie Whiteley, a registered nurse and midwife who was present during the birth of Patient C's son provided a statement to the HCCC dated 15 August 2008. She had been asked to respond to a series of questions by the HCCC. Her statement was based on perusing the medical records relating to Patient C's admission as she had no clear recollection of that birth. Relevantly, her statement read:

"8. It is usual practice to have a midwife present during any repairs to the perineum although midwives will have to leave the birthing room at times to retrieve equipment or answer the telephone. I usually allow the woman to continue to access the nitrous oxide after she has been given a local anaesthetic. The local anaesthetic is always painful when being injected, unless the woman has had an epidural, and sometimes more local anaesthetic is required after suturing has begun.

9. I have no independent recollection of Dr Hasil suturing [Patient C]. I am unsure whether [Patient C] needed additional local anaesthetic, as I can not now separate what I have read in the newspaper and what I remember.

10. Q: Do you remember seeing [Patient C] kick Dr Hasil off his stool?

11. A. No, I don't.

12. Q: Do you remember Dr Hasil directing you or any other midwife to "stirrup the bitch"?

13. A: No.

14. Q: Have you ever heard Dr Hasil use language like that to other patients?

15. A: No, but I have on one occasion heard him say "Put your fat arse on the bed."

16. Q: When [Patient C] was having her perineum sutured, did you hear him call her a slut or a whore?

17. A: I am sure if he had said those things I would remember, but I really don't remember.

18. Q: Did you hear Dr Hasil call [Patient C] a horse woman?

19. A: No.

20. Q: Do you remember whether Dr Hasil was wearing gloves when he was wiping down [Patient C's] genital area and suturing her?

21. A: No. But I can't imagine that Dr Hasil would not have had gloves on. The only time that you might not put gloves on is if the baby is coming so quickly that you do not have enough time to put gloves on. This would be unusual, on most occasions you have enough time to put gloves on before the baby is delivered.

22. RN Christine Gibson is renowned for her report writing and the detail included in her records. If something untoward had happened, I am confident that RN Gibson would have included full details in her report.

23. I found Dr Hasil to be really good to work with. He was always polite and helpful, except if he took a dislike to a patient or a colleague, when he would change his behaviour and he could be rude and abrupt.

24. I know a lot of women complained about Dr Hasil but a lot of women thought he was wonderful as well. I don't know why, perhaps it was his manner, his tone and his use of the English language. Dr Hasil didn't like it when you challenged or questioned his authority and decisions that he had made. If he asked for something to be done, he expected it to be done. He often didn't fully explain why things needed to happen when they needed to happen to patients, and sometimes this was because it was an emergency situation of course."

1. Ms Trish Cronan, the Nursing Unit Manager of Women's Care in a statement dated 14 October 2008, stated that she investigated that Patient C was forcibly placed in stirrups by midwifery staff at the direction of the respondent.

1. Her evidence was that she found absolutely no evidence to substantiate the claims by Patient C. She said she found the allegations to be very unusual because the primary carer in this circumstance is one of the kindest midwives she knew. She said that she particularly focused on complaints regarding the nursing issues.

1. Ms Elizbeth Clarke, the Director of Nursing, also provided a statement. This statement was directed to the apparent lack of a response to Patient C's 2003 complaint. The failure to respond to her complaint apparently only came to light after February 2008.

1. In a response to a complaint during the investigation undertaken by the HCCC, the respondent stated that the allegation that he made inappropriate comments to Patient C during the course of the perineal repair was that "my language even does not know such combination of words. I do not use this type of vocabulary". In answer to the HCCC's question inviting any other comments that the respondent believed were relevant to its investigation of the complaint made by Patient C, the respondent said:

"Midwife Gibson assisting me by suturing, is a very pedant (sic) and especially in keeping her notes - any similar incident would be recorded."

1. The respondent denied each of the particulars. In respect of particular 4(a), the Tribunal agrees with the opinion of Dr Bland and is comfortably satisfied that this particular has been proved. In respect of particular 4(c), the respondent denied this particular and stated that he had always worn gloves for both his own and the patient's protection. The Tribunal notes that Patient C did not make any reference to the failure of the respondent to wear gloves during the perineal repair in her letter of complaint which was significantly more contemporaneous than her statement to the HCCC dated 21 May 2008. Her letter of complaint was made approximately two months before she expected to return to the Hospital to give birth to another child. The first reference to the respondent's failure to wear gloves appeared in Patient C's statement dated 21 May 2008, some six years after the procedure. Ms Whiteley's evidence was that although she could not remember whether the respondent was wearing gloves or not at the time he undertook the procedure, she could not imagine that he would not have been wearing gloves. Furthermore, in light of Patient C's imminent return to the Hospital to give birth, it would have presumably been an important matter to raise. In light of this evidence, the Tribunal is unable to reach the standard of satisfaction required to find that this particular has been established.

1. Similarly, in light of the lack of corroboration that the respondent made inappropriate comments to Patient C, including Ms Whiteley's evidence that "I am sure if he had said those things I would remember", the Tribunal is again unable to reach the standard of satisfaction required to find that Particular 4(c) has been established.

Patient E

1. Patient E gave birth on 13 August 2002.

"Particular 6:

Between about 9 August 2002 and 15 August 2002, the practitioner provided medical treatment to Patient E:

(a) On 9 August 2002, the practitioner failed to record his treatment of the patient at the antenatal clinic; and/or

(b) On 13 August 2002, the practitioner failed to record sufficient information concerning the patient's care and treatment."

1. The Tribunal was only provided with the clinical records of Patient E for 13 to 15 August 2002. There were no records provided for Patient E in respect of 9 August 2002 and no evidence or submissions were provided to the Tribunal to explain why such records were not provided. In such circumstances the Tribunal is unable to reach the standard of satisfaction required to find that Particular 6(a) has been established.

1. Although the respondent denied Particular 6(b), having perused the clinical records, we agree with the opinion of Dr Bland that the respondent's documentation failed to record sufficient information concerning the patient's care and treatment. The Tribunal is satisfied that this particular has been proved.

Patient F

1. Patient F gave birth on 8 September 2002.

"Particular 7:

Between about 7 September 2002 and 10 September 2002, the practitioner provided medical treatment to Patient F. The practitioner made two entries in the medical record progress notes. The practitioner:

(a) Failed to clearly record that he was the person who made the entries;

(b) Failed to record the time of one of the entries; and/or

(c) Failed to make a record setting out the discussion with the patient concerning risks or alternative interventions."

1. The respondent denied this particular. The HCCC relied on the clinical notes to establish this particular and called no additional evidence. The Tribunal has perused the clinical records regarding Patient F which contain references to "Hasil" and the respondent's signature throughout the notes.

1. The Tribunal is not satisfied that this particular has been proved.

Patient I

1. Patient I made a complaint by email to the HCCC dated 16 October 2008. A statement dated 2 December 2008 was tendered.

1. Patient I presented at the Anti-Natal Clinic at Lismore Base Hospital on or around 28 or 29 March 2003. She was seen by the respondent, who did not introduce himself. Patient I had provided the respondent with a letter from the Mater Hospital Brisbane dated 26 March 2003, which stated that she could deliver at Lismore Hospital and that the clinical findings were not going to affect any delivery arrangement. Such findings related to the unborn child. The respondent read the letter and advised that he wanted Patient I to attend for an induction on 1 April 2003. She was admitted to the Hospital at 2000 hours. Shortly thereafter, the respondent inserted a cannula and set up a drip. At approximately 0530 hours or 0600 hours the following morning, her husband arrived. The respondent attended at about 1000 hours and undertook an examination wearing gloves. Patient I was only 2cms dilated. Approximately 2 hours later, Patient I was provided with pethidine after her waters had been broken because she was in pain.

1. The respondent again saw her at 1800 hours on 3 April 2003. He advised that she was only 2.5cms dilated and that she would need to have an emergency caesarean delivery. She was taken back to her room and seen by an anaesthetist who gave her an epidural block. She was then taken to the theatre where a caesarean birth was undertaken.

"Particular 11:

Between about 1 April 2003 and 3 April 2003, the practitioner:

(a) Failed to introduce Syntocinon at a reasonable time to Patient I; and/or

(b) Otherwise communicated with her during the course of treatment in a way which was inappropriate and/or unacceptable."

1. The respondent denied both particulars. Dr Bland responded to the following question from the HCCC in his report of 7 April 2009 regarding the care of Patient I:

"Q: Given Patient I's induction of labour started on 1 April 2000, was it reasonable to wait until the morning of 3 April 2000 before Dr Hasil made the decision to perform an immediate caesarean section?

A: The induction was indeed drawn out over time. It is common practice to prime a cervix overnight with Prostin , as occurred here, with amniotomy the following morning, as occurred here. Normally Syntocinon would be introduced at the time of amniotomy. In this case the Syntocinon was started "late" by 1100 hours and I cannot justify that delay. One needs to allow a reasonable trial of Syntocinon and the time frame until delivery was reasonable."

1. In reaching this conclusion, the Tribunal is mindful that the failure of the respondent to provide a complete history to the Tasmanian Medical Board is of particular significance and had the potential of grave consequences that he was permitted to practice without a key issue in his character being addressed. However, for the reasons outlined, we are not satisfied that his conduct was indicative of a flaw in his character.

1. The final matter relied upon by the HCCC in respect of the Complaint two was the respondent's "conduct in New Zealand". The HCCC relied upon a report by the Health Disability Commissioner (New Zealand) in respect of the respondent and his employment with the Whanganui District Health Board at Whanganui Hospital and the Hospital's provision of service to patients between 2005 and 2006. The report with appendices is some 165 pages. The Tribunal was not referred to any specific parts of the report. The most useful way of determining whether the respondent's conduct in New Zealand would give rise to a finding of "not of good character" is to set out the relevant extracts from the Executive Summary of the report:

" Introduction

This inquiry examines why laparoscopic sterilisation surgery (tubal ligation) performed by Dr Roman Hasil at Wanganui Hospital in 2005-06 was unsuccessful for eight of 32 women. Six of those women became pregnant and were confronted by difficult decisions. As one woman said. "I have been forced to make a decision I wish I never had to make." Most decided to have a termination.

In announcing the inquiry in March 2007, I said that "the women concerned deserve to know what happened and that it won't happen again". This report details what happened, attributes responsibility for the failings, and makes some recommendations about a way forward for Whanganui District Health Board, and for other district health boards in New Zealand.

At one level, what happened is simple. Dr Hasil did not place the clips correctly on the Fallopian tubes of eight women. But the story of why he made such basic mistakes - resulting in a sterilisation failure rate of 25%, compared with an accepted failure rate of 0.2% - is far more complicated.

A sorry saga

Dr Hasil was an experienced obstetrician and gynaecologist who had been head of an obstetrics and gynaecology (O&G) department in Slovakia for six years. But from 1996 to 2005, Dr Hasil had a chequered work and medical registration history in Australia.

In August 2005 , Dr Hasil commenced work as a medical officer in the O&G department of Whanganui DHB (the DHB), which for many years had been understaffed and unable to recruit specialists. Dr Hasil's background should have come to light during the process of his employment and registration in New Zealand. It did not, owing to inadequate reference checking and credentialling.

Dr Hasil was granted registration by the Medical Council within a provisional general scope of practice. Under the terms of his registration, Dr Hasil was required to be supervised by the head of the Wanganui O&G department, Dr A. Dr Hasil and Dr A worked in a grossly understaffed department, with a demanding and unsustainable 1 in 2 on-call component.

From the outset concerns were raised about Dr Hasil. They initially related to his competence. Then health issues emerged. Dr Hasil was reported to be smelling of alcohol while on duty on several occasions. The concerns about his competence did not abate, and further patient and staff complaints were received. During 2006 , four of Dr Hasil's patients returned to the DHB pregnant following sterilisation surgery.

The staff concerns and patient complaints were pointers to problems that the DHB should have identified earlier and responded to more effectively. The concerns were addressed in a general way with Dr Hasil, and patient complaints were investigated. However, none of the four known sterilisation failures were reported in accordance with the DHB's incident reporting policy. The DHB hesitated too long in the face of clear information that Dr Hasil might pose a risk of harm to patients. No formal or co- ordinated action was taken to assess or monitor his safety to practise until it was too late.

In October 2006, Dr Hasil was again found using alcohol while on call. At this point, he was placed on leave and the Medical Council was notified of the health issues. Dr Hasil agreed to participate in a comprehensive health programme and was expected to return to work at Wanganui Hospital in early 2007.

During his rehabilitation programme, further concerns about Dr Hasil's practice came to light, including concerns about his high rate of failed sterilisations. In February 2007, Patient A complained to the DHB about her failed sterilisation and advised that she was aware of another failure. The DHB commenced an investigation that quickly revealed Dr Hasil's high failure rate. Dr Hasil resigned during the DHB's investigation. He is believed to be residing in Australia.

...

Summary of findings

Below is a summary of the inquiry findings in relation to Dr Hasil, his supervisor Dr A and Whanganui DHB :

Dr Hasil

Dr Hasil did not provide services of an appropriate standard in a number of respects. In particular, he did not perform laparoscopic sterilisation surgery on Patients A and B with reasonable care and skill; his record-keeping was inadequate; and his informed consent process in relation to Patient C was substandard.

Dr Hasil breached Rights 4(1) and 4(2) of the Code in relation to Patients A and B, and Rights 6(1) and 7(1) in relation to Patient C.

Dr Hasil 's supervisor

Dr Hasil's supervisor, Dr A, was aware of concerns about Dr Hasil, but did not consider that he was unsafe. Dr A was overworked, but he followed up the concerns with Dr Hasil and remained satisfied that he was performing to an acceptable standard. In hindsight, that was an error of judgement, but given what he knew at the time, Dr A took reasonable actions to supervise Dr Hasil.

Dr Hasil knowingly misled the DHB about his work and registration history in Australia, and his lack of candour affected the way in which the DHB responded to the concerns raised about him."

1. These conclusions were based on material that the Commissioner relied upon in respect of the investigation of the respondent. This material included that the Medical Council of New Zealand received a certificate of good standing from the Board dated 1 June 2005. The respondent provided eight referees. Under a heading "Undisclosed information" the Commissioner observed that the first issue of concern related to the respondent's registration status with the Medical Council of Tasmania. It was noted that due to what was described as (his false declaration) in relation to his criminal record in his application for registration in 1997 in Tasmania, the respondent was not considered to be "in good standing in Tasmania". It was noted that the respondent had been unable to obtain registration in South Australia. In response to enquiries, the Medical Council of Tasmania informed the Medical Practitioners Board of Victoria, the South Australian Medical Board and the Board about the respondent's false declaration. The Commissioner observed that "it appears that the South Australian Medical Board was not prepared to register the respondent because of that". However, he obtained registration in New South Wales, and subsequently in Victoria. It was also noted that the respondent held general registration with the Medical Board of Queensland. At the time of the report (February 2008), it was noted that the respondent held registration in Queensland to 30 June 2008, but had been unable to obtain employment in that State.

1. It is the above matters that appear to have led to the conclusion by the Commissioner that the respondent knowingly misled the Obstetrics and Gynaecological Department of Whanganui.

1. It is not disputed, apart from the findings made by the Commissioner in respect of the sterilisation issue, that the respondent has any clinical incapacity.

1. The Tribunal has already considered the false declaration issue in Tasmania and declined to find that in light of all of the circumstances surrounding that matter, that the respondent is not of good character. In respect of the issue of character, the matters relied upon by the HCCC whilst the respondent was employed in New Zealand focus essentially on the respondent's clinical competence and not his character. The Tribunal is not comfortably satisfied that the issues relied upon in respect of the respondent whilst he worked in New Zealand, enable it to make a finding that the respondent is not of good character.

1. To the extent that it was submitted by the HCCC that the character issues if taken cumulatively would result in a finding of "not of good character" we reject such a submission. The Tribunal has not been persuaded that any of the character issues warrant a finding that the respondent is not of good character. Furthermore, at least one of the character issues does not relate to the respondent's professional capacity as a medical practitioner.

1. Complaint two has therefore not been established.

Complaint three

1. Complaint three provides:

"The practitioner suffers an impairment in that the practitioner suffers from a physical or mental impairment, disability, condition or disorder which detrimentally affects, or is likely to detrimentally affect, the practitioner's physical or mental capacity to practice medicine."

1. The respondent denied Complaint three.

1. The dictionary to the Act contains the following definitions:

"2 Competence to practise medicine

A person is competent to practise medicine only if the person:

(a) has sufficient physical capacity, mental capacity and skill to practise medicine, and

(b) has sufficient communication skills for the practice of medicine, including an adequate command of the English language.

3 Impairment

A person is considered to suffer from an impairment if the person suffers from any physical or mental impairment, disability, condition or disorder which detrimentally affects or is likely to detrimentally affect the person's physical or mental capacity to practise medicine. Habitual drunkenness or addiction to a deleterious drug is considered to be a physical or mental disorder."

1. In Lindsay v Health Care Complaints Commission , Sackville AJA (Giles and Young JA agreeing) considered the above definitions and observed at [168]:

"... The definition of " impairment " includes any " condition or disorder which detrimentally affects or is likely to detrimentally affect " the practitioner's mental capacity to practise medicine (cl 3). A person is " competent to practise medicine " only if he or she has, relevantly, sufficient mental capacity to practise medicine and has sufficient communication skills to do so (cl 2). There is clearly a close relationship between a finding of impairment, based on the existence of a disorder which is likely to detrimentally affect a practitioner's mental capacity to practise medicine, and a finding of lack of competence to practise medicine based on a want of sufficient mental capacity to practise medicine. Accordingly, a finding of impairment of that sort may very well lead to a finding that the medical practitioner is not competent to practise medicine within the meaning of s 64(1)(a) of the Act."

1. On 2 October 2009, the respondent sustained a head injury. Dr Catherine Johnson reported that the respondent had sustained bifrontal craniotomy and intensive sub-arachnoid haemorrhage (cerebral haemorrhage). He required a bifrontal craniotomy and an intensive care admission thereafter.

1. Associate Professor Reid undertook a neuropsychological assessment of the respondent. The tests administered and results were:

"Tests Administered:

1. Wechsler Adult Intelligence Scale - IV (selected subtests)

2. Rey Auditory Verbal Learning Test

3. Wisconsin Card Sorting Test

4. Rey Complex Figure Test

5. Trail Making Test

6. General Health Questionnaire

Results:

1. Attention and information processing:

Mr Hasil's attention span for digits was within the average range as was his attention and perceptuo motor speed and visual search time. His overall processing speed index from the Wechsler Adult Intelligence Scale - IV was in the average range. Impairment however was noted in those aspects of his information processing skills in tasks where he was required to think quickly and flexibly.

2. Intellectual Functioning:

Based on history with Mr Hasil reporting that he was a member of MENSA in Czechoslovakia one would estimate that he would have been of at least superior intellectual ability. On current assessment of his intellectual functioning he falls within the average range for both verbal and non verbal intellectual functioning. This represents a decline in his intellect from his premorbid estimate.

3. Memory:

Mr Hasil has impairment in his serial auditory verbal learning in a word list learning test where he was unable to learn more than 8 out of 15 words over five learning trials. In this learning task he had particular difficulties in organising unstructured verbal material in order to efficiently learn it. His problems on further analysis seemed to relate to memory retrieval problems as well as problems in organising information for efficient encoding. By contrast he had no impairment in his visual memory. His working memory that is his ability to hold information and manipulate it was also within the average range.

4. Executive/Adaptive Abilities:

Mr Hasil has a reduction from his premorbid estimate in areas of his executive function for verbal reasoning and non verbal reasoning where he now functions in the average range. More clear evidence of impaired executive functioning however was seen in his conceptual skills and his ability to adapt and regulate his behaviour given feedback in a test of card sorting, problems with learning unstructured verbal material and poor planning and organisational skills. Furthermore his capacity to think quickly and flexibly was impaired.

8. Psychological Assessment:

On examination Mr Hasil did not present with any evidence of a psychiatric disorder relating to his mood, or thought. He has a reported history however of alcohol abuse although denies abusing alcohol for the last two years."

1. Associate Professor Reid, in his report to the HCCC dated 22 November 2011 under the heading "Summary and Assessment" stated:

"Mr Hasil is a 56 year old medical practitioner whose name has been removed from the register of medical practitioners on 11 April 2009. He is currently under investigation in relation to complaints about his medical practice. On neuropsychological assessment he was found to show a decline in his overall intellectual functioning from his premorbid estimate where he now functions in the average range whereas previously it is estimated he was of at least superior intellect. Impairment in his cognitive functioning was also identified in his frontal executive skills affecting his conceptual abilities, adaptive functioning, planning and organisation skills and ability to think quickly flexibly.

In the context of his history it seems the most likely cause of his frontal executive deficits is the head injury he sustained in October 2009 where he was reported to have suffered bifrontal contusions, a traumatic subarachnoid haemorrhage and required bifrontal craniotomy. In addition Mr Hasil has a past history of alcohol abuse although he reports that he has drunk very little alcohol over the last two years. If one accepts this and considering his past reported drinking history it seems unlikely that alcohol abuse is responsible for his current cognitive problems. Furthermore there has been a further decline in his social functioning where he lives in an isolated boarding house environment and spends what appears to be considerable time wandering the streets.

Considering the nature and extent of his higher cognitive deficits it is felt he is impaired in regard to his neurocognitive functioning and his ability to practice medicine is currently compromised.

It is recommended Mr Hasil have further rehabilitation, psychological intervention and referral to a rehabilitation provider for assistance in finding employment in the open job market. Furthermore it is recommended he be referred for follow up neuropsychological assessment in 12 months time following a period of intensive rehabilitation and his case be referred back to the Medical Council for review of his capacity to function as a registered medical practitioner under the Impaired Registrants program."

1. There is also past evidence of impairment. Dr Andrew Petherbridge, Staff Specialist, in a report dated 26 April 2009, concluded:

"... He is clearly impaired because of his use of alcohol and I do not believe that any conditions that could presently be placed on his registration would be sufficient to ensure he does not return to drinking and place patients at risk. I say this on the basis that he is still in the early phase of his abstinence and he continues to externalise blame, rather than acknowledge personal responsibilities. It may be that after an extended period of confirmed abstinence, some 12 months, then the usual monitoring of CDT testing and self reports of his behaviour may be sufficient to ensure patient safety. I would be happy to review Dr Hasil when this was to occur."

1. Furthermore, a medical assessment by Dr David Storor, Consultant Psychiatrist, dated 6 May 2008 read:

"Dr Hasil's current state is markedly impaired. He has not worked for 12 months. He is under regular psychiatric care for depression. By his report he has not drank alcohol for at least a year. However, he did not complete pathology testing therefore there is no means of verifying his history. He is reliant on Government benefits for income and the goodwill of friends for accommodation.

In my opinion, Dr Hasil is impaired as defined by the Act ( Health Practitioners (Professional Standards) Act 1999 (Queensland)) by virtue of his conditions of depression and alcohol abuse. In my opinion, he is not fit to practise medicine at this time. I note that his registration is currently suspended to practise medicine until he has received treatment for his condition and his treating practitioners are satisfied that he has made a satisfactory recovery.

Specifically I recommend that:

(a) Dr Hasil should continue to see his psychiatrist Dr Neil Schutz, or another suitable psychiatrist specialised in the treatment of alcohol and drug problems for treatment as seen fit.

(b) Dr Hasil should have a General Practitioner whom he should consult as required for treatment of his medical condition.

(c) Dr Hasil should be monitored with three monthly pathology testing for MCV, gamma, GT, CDT to check for signs of alcohol excess.

(d) At such time as it is considered that Dr Hasil is fit to resume practising then he should undertake to comply with the Board's alcohol brethalyser program."

1. The medical evidence when considered as a whole must, in the Tribunal's view, results in a finding that the respondent suffers an impairment. The impairment results from cognitive deficits which, on the evidence of Associate Professor Reid, stems from the head injuries he suffered in a fall and not from his use of alcohol or from suffering depression. The respondent informed Associate Professor Reid that he has drunk very little alcohol in the last two years. He denied any psychiatric history apart from a brief bout of depression two years ago.

1. In light of the Tribunal's finding of impairment, it is necessary to determine whether the respondent's mental capacity, having regard to his impairment, results in a conclusion that he is currently not competent to practice medicine. Associate Professor Reid's report observes that there has been a further decline in the respondent's social functioning where he lives in an isolated boarding house environment and spends what appears to be considerable time wandering the streets.

1. It would appear that the respondent has been unemployed for at least two years. Having considered the medical evidence and the evidence of the respondent's communication skills, the Tribunal finds that the respondent currently lacks the mental capacity to practice medicine. The respondent's preferred area of employment as a medical practitioner has been as a Registrar in Obstetrics and Gynaecology. Such work requires judgment, communication skills, and clinical ability such that the Tribunal is comfortably satisfied that the extent of the respondent's impairment would significantly impact upon the respondent's mental capacity and communication skills to practice medicine. This conclusion has been reached taking into account the nature and likely duration of the impairment which, in Associate Professor Reid's opinion, as provided in his report of November 2011, may continue for a further 12 months.

1. The Tribunal having considered the medical evidence which relates to the respondent's current impairment caused by a brain injury, finds that Complaint three has been proved.

Summary of findings

1. The Tribunal has determined that part of Complaint one and various particulars pertaining to that complaint have been proved. Complaint two is not established. Complaint three is proved.

1. In King v Health Care Complaints Commission [2011] NSWCA 353, the Court of Appeal held that the duty of procedural fairness requires a Tribunal to provide a respondent with an opportunity to adduce evidence and make submissions on appropriate consequential, or protective orders following upon the Tribunal's findings. This matter will be listed for a directions hearing at 9.30am on Wednesday 22 February 2012 for the purposes of fixing a date for further submissions, including any submissions in respect of costs.

**********

Amendments

27 February 2012 - At particular 16 the words added "[not pressed]"

Amended paragraphs: 10

Decision last updated: 27 February 2012