Helmy v Medical Board of Australia - [2016] ACAT 97

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HELMY v MEDICAL BOARD OF AUSTRALIA
(Occupational Discipline) [2016] ACAT 97

OR 5/2016
Catchwords: OCCUPATIONAL DISCIPLINE – health practitioner regulation - general practitioner – appeal from immediate action – conditions imposed – chaperone required

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 39
Health Practitioner Regulation National Law (ACT) ss 151, 156, 199, 202

Cases cited:Ali Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295
Hocking v Medical Board of Australia [2015] ACAT 22

Texts/papers cited: Australian Health Practitioner Agency Chaperone Protocol

Tribunal: President M-T Daniel

Member T Soo

Date of Orders: 19 August 2016
Date of Reasons for Decision: 19 August 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL OR 5/2016
BETWEEN: MOHAMAD HELMY

Applicant

AND: MEDICAL BOARD OF AUSTRALIA

Respondent

TRIBUNAL: President M-T Daniel
Member T Soo

DATE:19 August 2016
ORDER

The Tribunal orders that:

The decision under review is set aside with effect from the date of this order, and in substitution a decision is made to take immediate action to impose on the registration of the practitioner the conditions set out below.
CONDITIONS
The practitioner must not have contact with any female patients, or patients under the age of 18 years attending with a female guardian/carer only, without the presence of a Board approved chaperone who directly observes the entire contact with the female patient and/or female guardian/carer. The practitioner must comply with the AHPRA Chaperone Protocol for the use of chaperones.
For the purposes of this condition, ‘patient’ is defined as any individual awaiting, requiring, or receiving the professional services of the registered health practitioner or a registered health practitioner within the same place of practice of the practitioner.
For the purposes of this condition, ‘contact with a patient' includes consultation, interview, examination, assessment, prescribing for, advising, treating or otherwise seeing a patient, whether it is in person or on a communication device.
Chaperones must be individuals approved by the Board in advance as outlined in the protocol and must not be spouses, partners, parents, family members or guardians/carers of the patient.
Within 14 days of the notice of the imposition of these conditions, the practitioner is to provide to AHPRA written acknowledgement, on the form provided, that they have received, read, understood and are familiar with the requirements of the protocol and information in the protocol in relation to the use of chaperones.
The practitioner is to nominate a person(s) to be approved to act as a chaperone. The practitioner must ensure:
(a)the nomination is accompanied by the contact details of each person and a detailed copy of the nominated person's curriculum vitae;
(b)a sample specimen of each nominated person's signature is provided, along with photographic proof of identity, such as a certified copy of a valid driving licence or passport for each nominated person;
(c)the nominated person(s) are not in a close social or familial relationship with the practitioner;
(d)the nomination is accompanied by written confirmation, on the form provided from each person nominated that they are:
(i)      aware of the nomination, consent to it and are willing to act as chaperones;
(ii)      not in a relationship with the practitioner as described in (c);
(iii)     aware of the meaning of the word ‘patient’ and ‘contact’ for the purposes of this condition;
(iv)     aware that, should a patient refuse or demonstrate reluctance to have a chaperone present and directly observing all contact, the contact must not proceed or, if commenced, should immediately cease and the patient should be offered an appointment with an alternate practitioner;
(v)     aware of the Board's expectations of the Practitioner in compliance with this condition, and in particular, the need for prior discussion with the patient, the requirement of a sign in the waiting room, and the requirements of the chaperone log, signed at the end of each patient contact (not pre-signed);
(vi)     aware they may contact AHPRA in order to discuss any concerns or queries they may have in relation to this requirement or if they feel personally vulnerable, intimidated or threatened while acting as a chaperone; and
(vii)   aware that they may be contacted by AHPRA in order to monitor the practitioner's compliance with this condition.
If, in the event of a medical emergency, the practitioner is unable to comply with a condition, any such incident must be notified to AHPRA within two business days. The condition must be such that compliance with it would directly impact upon the practitioner’s ability to provide care that would have a direct benefit to a patient in a medical emergency. For the purposes of these conditions a medical emergency is an event where it is not possible or reasonable to have a patient with a serious or life threatening condition seen by another practitioner or transferred to the nearest hospital. Any non compliance with a condition due to medical emergency not notified to AHPRA within two business days will be treated as a breach of these conditions and reported to the Board who may take further action in relation to a breach of conditions.
Within fourteen days of the notice of the imposition of these conditions, the practitioner is to provide to AHPRA, on the form provided, the details of any and all places of practice, together with, where relevant, confirmation from the Director of Medicine or Practice Manager (the senior person) at each and every place of practice that they have sighted a copy of these conditions.
With each and every subsequent place of practice the practitioner must, within seven days of the commencement of practice, provide to AHPRA the details of the subsequent place of practice together with written confirmation, where relevant, from the senior person at each and every subsequent place of practice that they have sighted a copy of these conditions.
If any condition is altered the practitioner must, within seven days of notice of the alteration, provide to AHPRA, written confirmation from the senior person, where relevant, at each and every place of practice that they have sighted a copy of the altered conditions.
All costs associated with compliance with these conditions are at the practitioner's own expense.
……………………………..
President M-T Daniel
for and on behalf of the Tribunal
REASONS FOR DECISION
On 23 March 2016 the Medical Board of Australia (the Board) decided to impose conditions on the registration of Dr Mohamed Helmy (the practitioner), as immediate action pending investigation of a notification which alleged that he had acted improperly in relation to a female patient.
The conditions imposed prohibited the practitioner from treating or having non-clinical communication with female patients or patients under the age of 18 years.
The practitioner has appealed to the Tribunal from the decision of the Board.

The Legal Framework

The decision by the Board to take immediate action was made under section 156 of the Health Practitioner Regulation National Law (ACT) (the National Law).
Section 199 of the National Law provides that the practitioner may appeal to the responsible tribunal (in this case the ACT Civil and Administrative Tribunal) from the decision of the Board to impose conditions on his practice. In conducting the review, the Tribunal is empowered by section 202 of the National Law to confirm or amend the original decision, or to substitute another decision in its stead.

The Hearing

The matter was heard on 5 July 2016.
On 23 May 2016, at the initial directions hearing, an order was made pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 restricting public access to the file except by order of the tribunal. The order was made on the application of the Board, because of the personal and personal health information of patients contained within the material filed by the parties. The Tribunal is satisfied that it is appropriate that the order of 23 May 2016 restricting public access to the file remain in place.
The hearing on 5 July 2016 proceeded as a public hearing. Both parties were represented by Senior Counsel.
The applicant had filed written submissions, the respondent a statement of facts and contentions, and the applicant also filed submissions in reply.

What information should the Tribunal have regard to?

The Tribunal had before it the documents which had been before the Board for the original decision.[1]
[1] T- documents Exhibit R
A number of additional witness statements were filed by both parties. Some of the witness statements attested to the facts of alleged prior incidents involving the practitioner, and investigatory steps taken in relation to those alleged prior incidents. Other witness statements covered factors relevant to the impact of the conditions imposed, including the financial circumstances of the practitioner, and the practical effect of the conditions upon the practitioner, the practice, and the patients.
The Tribunal also had before it extracts of records from the Australian Federal Police (AFP) and the Australian Health Practitioner Regulation Agency (AHPRA), schedules of correspondence, and some patient records.
While an appeal pursuant to section 199 of the National Law is a review on the merits, the approach to be taken in conducting the appeal is affected by the temporal nature of a decision to take immediate action. As has been outlined in previous decisions of this and other Tribunals[2]:
The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the original decision-maker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not ‘open slather’, but nor is it an appeal confined to error.[3]
[2] Hocking v Medical Board of Australia [2015] ACAT 22; Ali Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295
[3]Kozanoglu at [118]
The written submissions filed on behalf of the practitioner set out an initial statement that the correct or preferable decision, based on the information available to the Board on 23 March 2016, was not to take immediate action. This analysis recurred at various points in the written submissions filed on behalf of the practitioner. However, later in the written submissions and in oral submissions at hearing, it became apparent that counsel for the practitioner and Board agreed that the Tribunal should take the approach described above, and have regard to additional material filed by the parties which was relevant to the decision under review. Their submissions differed, however, on what further information could be considered to be relevant, and the weight the Tribunal could give various pieces of information.
The Board’s submission was that the Tribunal should have regard to all of the material before the Board for the original decision, and all of the further material now before the Tribunal.
The practitioner’s submission was that the Tribunal should have regard to all of the material before the Board and the further material filed by the parties, save for certain information referring to two earlier notifications. It was submitted that the two earlier notifications had not been proceeded with by the Board, and criminal investigations in relation to each earlier notification had been closed. Further, the complaint forming one of the earlier notifications had been recently retracted by the patient involved. Counsel for the practitioner submitted that because of these factors the existence and content of the two earlier notifications should be given no consideration at all, or alternatively very little weight. Although it was not expressly stated, it would seem to follow logically from counsel’s argument that once the existence of the two earlier notifications was disregarded, the further information of the practitioner and other persons going to those earlier notifications should also be disregarded.
Counsel for the practitioner further argued that the circumstances of the two prior notifications were insufficiently similar to the current notification to permit their consideration as ‘similar fact’ evidence or evidence of propensity. Counsel submitted that if the Tribunal relied upon the two earlier notifications it would fall into error.
In response, the Board referred the Tribunal to section 151 of the National Law, which expressly permits past notification history to be taken into account in making a decision under the National Law. The Board submitted that it was not necessary for the Tribunal to satisfy itself whether or not the incidents as outlined in any prior notification had occurred, or whether the events of the current notification had occurred as described. Rather, the Tribunal was required under section 156 of the National Law to consider whether the practitioner posed a risk to public safety, and the history of notifications could be taken into account in this respect.
In relation to the arguments concerning similar fact evidence and evidence of propensity, Counsel for the Board submitted that while the rules of evidence did not apply to the proceedings, the rationale underpinning those rules would be of some guidance to the Tribunal in its assessment and weighing of the information before it. Counsel submitted that these rules reflect a common sense approach to the use of information which the Tribunal would find useful in considering the material.
The Tribunal preferred the submissions of the Board in relation to the material which it should consider, and the use which could be made of the prior notification history.
The Tribunal is satisfied that the further information filed by the parties, including information going to the two earlier notifications, is relevant to the factors considered by the Board for the original decision, and now confronting the Tribunal upon review. Consistent with the authorities earlier cited, the Tribunal has had regard to this information as described below in reaching its decision.

Should the witnesses be subjected to cross-examination?

By agreement of the parties there was no cross-examination of witnesses as to the facts of the alleged incidents. This approach is appropriate, for at least two reasons. First, the nature of the decision under section 156 of the National Law does not require the decision-maker to determine what has happened in relation to the current notification but rather to form a view as to risk, and then consider what, if any, action should be taken to address that risk. Secondly, the question of what, if anything, occurred during each incident may ultimately fall to a future tribunal or a Court to determine.
Counsel for the Board did not seek to cross-examine the practitioner, or any witness associated with the practice, in relation to the impact of the conditions upon the practitioner, the practice or the patients.

Facts

From the information before it, the Tribunal is satisfied of the following facts.

The practitioner’s history and practice

The practitioner obtained his degree in medicine in 1981 and practiced overseas until he moved with his family to Australia in late 1992. He was registered to practice medicine in Australia in 1994. From that time the practitioner worked in various public hospitals, however in around 2010 he changed to work as a general practitioner and joined a suburban practice in Canberra.
The practitioner estimates that 60-80% of his practice is made up of female patients, and as a consequence of the imposed conditions he cannot treat the vast majority of patients. This estimate is confirmed by the practice manager, who considers that 75% of the practitioner’s current patients fall within the conditions imposed by the Board.

Impact of the conditions on the practitioner, the medical practice and the patients

The practitioner ceased practice after the conditions were imposed. He says this is mainly because of the embarrassment and humiliation he would face in having to explain the conditions to his patients. He is concerned persons advised of the conditions would automatically assume he is a sexual predator or paedophile, leading to irreparable damage to his professional and personal reputation. This concern was shared by the practice manager, who also raised the risk of damage to the reputation of the practice.
When the conditions were imposed, the practitioner says he took leave from the practice, and then took early retirement. It is his intention to continue practicing as a general practitioner if and when the conditions are lifted from his registration.
As he is not working as a medical practitioner, he and his wife are no longer receiving any income from the practice, where previously they were accustomed to significant drawings from a trust which is paid a proportion of fees generated by the practitioner for the practice.
The practitioner is currently receiving a pension of around $30,000 per annum, after tax. He and his wife have a small amount of savings that he anticipates will be expended by December 2016, and have ongoing financial commitments in relation to the mortgage on their home.
The practitioner is concerned that he and his wife will be unable to complete the purchase of an investment property to which they are committed, which will lead to them losing the deposit on that property (in the region of $33,000). The practitioner is also concerned he will be unable to financially assist his son with construction of a house, as he had promised.
The practitioner suffers from a number of medical conditions which have been exacerbated by the stress and anxiety of the proceedings before the Board, the decision to take immediate action and, presumably, these proceedings.
His general practitioner has diagnosed him as experiencing an adjustment disorder with depression affecting all aspects of life as a consequence of the imposition of the conditions, however the general practitioner is confident that once restrictions on his practice are lifted the practitioner will make a full recovery allowing him to resume his previous full time duties. The practitioner is currently being prescribed anti-depressants for his condition.
The practice manager explained in her statement that the cessation of practice by the practitioner has had an impact on the other doctors in the practice, who are having to work longer hours to cover the patient load, and some patients are experiencing delays of 2-5 days in accessing a doctor which is upsetting to the patient and stressful for the practice staff.

The current notification

On 11 March 2016 a female patient (patient 3) notified AHPRA that she had been a patient of the practitioner for at least three years and that he had been ‘grooming her’ during this period. She reported that on 4 March 2016 the practitioner was physically inappropriate with her during a consultation.
The practitioner denies any suggestion that he has engaged in ‘grooming’ of patient 3 or been physically inappropriate to her. He states that at the consultation on 4 March 2016 the patient hugged him, and he responded by kissing her on the cheek.
This notification is currently being investigated by AHPRA, and the investigation is expected to be completed around October 2016. At that time, a decision whether or not to take disciplinary action will be made.

The first notification

On 16 August 2012 a female patient (patient 1) lodged a complaint with the AFP asserting that during a consultation on 15 August 2012 the practitioner had been physically/sexually inappropriate with her. The AFP advised AHPRA of this complaint, and the Board decided to investigate.

The practitioner was advised of the notification, and on 5 September 2012 he wrote to the Board denying any impropriety on his part. The practitioner advised that during the consultation he had put his arms around patient 1 to give her comfort as she was emotional.
On 7 November 2012 patient 1 was interviewed by an investigator on behalf of AHPRA.
The matter was considered by the Board on 28 November 2012, at which time the Board decided to take no further action but instead refer the allegations to the AFP for criminal investigation.
The AFP records dated 30 May 2016 record that their investigation of the complaint was finalised on 20 February 2013 after patient 1 failed to respond to follow-up correspondence.

The second notification

On 13 August 2015 a female patient (patient 2) complained to the AFP that over the preceding three years the practitioner had engaged in inappropriate sexual conduct with her during consultations. Patient 2 suffered from mental health and drug addiction issues.
The AFP notified AHPRA of the complaint. On 21 August 2015 the Board took immediate action, the nature of which was to accept undertakings from the practitioner not to attend or communicate with patient 2, and not to consult with any patients with mental health or drug dependency issues. The Board also at that time decided to investigate the notification.
The AFP records dated 30 May 2016 indicate that in the following months patient 2 equivocated over whether to participate in the criminal investigation and on 27 April 2016 advised the investigating officer that she was well at the moment, didn’t want to go ahead with any court process and “didn’t feel like she had the strength to fight it in court.”
The AFP records indicate that the complaint was finalised on 27 April 2016.
A witness statement provided by the solicitor for the Board attested to obtaining a draft witness statement from patient 2 in June 2016, which confirmed the details of the complaint to the AFP. However on 16 June 2016 patient 2 contacted the solicitor by telephone and retracted both her draft statement and her willingness to participate in proceedings in relation to the practitioner.
AHPRA internal email correspondence was placed before the Tribunal, which indicated that given the reluctance of patient 2 to give evidence the investigation of the second notification was unlikely to progress further and should conclude by September 2016 or earlier.

Application of section 156 of the National Law

Section 156 of the National Law relevantly provides:
(1) A National Board may take immediate action in relation to a registered health practitioner ...if—
(a) the National Board reasonably believes that—
(i) because of the registered health practitioner’s conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii) it is necessary to take immediate action to protect public health or safety.
In Hocking, the tribunal noted that the test in determining whether to take immediate action is different to the test in determining whether to take disciplinary action:
The criteria are different from those relevant to a tribunal’s consideration of a referral of a matter relating to the practitioner’s professional performance or conduct. Immediate action is intended to provide an immediate response to an identified risk for the purpose of safeguarding public health or safety pending further investigation of a notification and where appropriate, referral to a tribunal for consideration of action to address performance, conduct or impairment more generally.[4]
[4]Hocking at [13]
The parties both adopted the Hocking analysis of section 156. Unsurprisingly, they differed on the application of section 156 to the facts of this case.

Does the practitioner pose a serious risk to persons?

The Board submitted that by reference to the material before it the Tribunal would form a reasonable belief that the practitioner poses a serious risk to persons. Counsel for the Board pointed the Tribunal to the practitioner’s admissions of conduct, in relation to patients 1 and 3, each of which breached professional boundaries, and the lack of apparent insight by the practitioner in this regard.
It was submitted on behalf of the practitioner that if the entirety of the practitioner’s filed evidence was considered, and the information as to the two earlier notifications properly excluded or given very little weight, there was no reasonable basis for the Tribunal to believe that the practitioner posed a serious risk to persons. Counsel for the practitioner submitted that at its highest, the material before the Tribunal in this case could only found a ‘suspicion’ rather than a ‘belief’.
Counsel agreed that for the belief to be ‘reasonable’ the Tribunal would need to be satisfied of the existence of facts which are sufficient to induce the belief in a reasonable person.[5]
[5] See Hocking
Counsel for the practitioner referred the Tribunal to the protracted length of time taken by AHPRA to investigate each notification and for the Board to determine whether or not to take disciplinary action and was critical of this delay. Dilatoriness by the regulatory authorities is not of any particular relevance in this case to the Tribunal’s determination of whether the practitioner poses a risk to persons.
The Tribunal has a large range of information before it, including accounts of previous incidents given by the three patients, the practitioner and staff at the practice. The facts of what happened in any of these incidents are disputed and may never be formally determined by a Court or tribunal.
It is a difficult task, in that arena of uncertainty, to form a view as to whether the practitioner poses a risk to persons or not. On one hand, the content of the notifications is very serious. The allegations are not inherently unbelievable or fanciful. On the other hand, the practitioner has strenuously denied the allegations, one patient has equivocated and then retracted her complaint, and another has failed to follow up communication with the AFP. Further, there are two, third party witnesses who dispute part of the allegations made by one patient.
Nonetheless, the Tribunal has formed the belief that the practitioner poses a serious risk to persons in that he may act inappropriately physically or sexually with female patients.
The key facts which lead the Tribunal to hold this belief are:
(a)The practitioner had a previously unblemished career of more than thirty years when working in a hospital environment.
(b)In the six years since commencing practice as a general practitioner the practitioner has been the subject of three notifications.
(c)Each notification is unrelated to the others, and there is no evidence the patients concerned are known to each other.
(d)Each notification has alleged inappropriate physical/sexual behavior with female patients during consultation and is serious in nature.
(e)The practitioner denies any impropriety on his part.
(f)The practitioner admits to engaging in behavior in relation to patient 1 and patient 3 which would itself be a violation of professional boundaries.

Is it necessary to take immediate action and if so what should that action consist of?

Counsel for the Board submitted that with regard to the information before it, the Tribunal would be reasonably satisfied that it was necessary to take immediate action to protect public safety.
Counsel for the practitioner submitted that the Tribunal could not be satisfied, when proper regard was had to the evidence filed by the practitioner, and the evidence of the two earlier notifications properly excluded or given little weight, that it was necessary to take immediate action to impose conditions on the practitioner.
The Tribunal considers that it is necessary to take immediate action in relation to the practitioner to protect public safety.
In stark contrast to his previous record, since entering general practice the practitioner has been the subject of three separate complaints regarding sexual impropriety involving female patients. Even if it is the case that the incidents did not occur as alleged, the Tribunal is concerned that the practitioner has on his own account behaved inappropriately with patient 3 in March 2016, at a time when he knew he was under investigation in relation to serious allegations of sexual impropriety in relation to patient 2.
The Tribunal is concerned that the practitioner is either unable to identify appropriate boundaries, or incapable of managing the challenges to professional boundaries that can arise in general practice. The Tribunal considers that it is necessary to take action to protect the public at this time.
The parties’ submissions before the Tribunal were made, it seemed, on the basis that the choice before the Tribunal was to either confirm the original conditions imposed by the Board, or to decide not to impose conditions. This is not the task that confronts the Tribunal. As the authorities referred to earlier demonstrate, having formed a reasonable belief that the practitioner poses a risk to persons, and being satisfied it is necessary to take immediate action to protect public safety, the Tribunal must consider what immediate action is appropriate to address that risk.
In doing so the Tribunal must consider the nature of the risk being addressed as well as the impact of any proposed immediate action upon the practitioner. In relation to the first-listed factor, section 3(2)(a) of the National Law provides as an objective of the scheme, protection of the public by only allowing practitioners who practice in a competent and ethical manner to practice. In relation to the last-listed factor, section 3(3)(c) of the National Law requires that any restrictions on practice be imposed only if necessary to ensure health services are provided safely.
The nature of the risk identified by the Tribunal is that the practitioner poses a risk of dealing inappropriately physically or sexually with female patients. One way to protect the public from this risk would be to suspend the practitioner’s registration pending the conclusion of the investigation and any subsequent disciplinary proceedings. However, it seemed to the Tribunal that such a response was not the only way the identified risk could be controlled, and the other measures available were less restrictive and should be preferred.
As noted above, Counsel for the practitioner referred the Tribunal to the protracted length of time taken by AHPRA to investigate each notification and for the Board to determine whether or not to take disciplinary action. This is relevant to the question of the impact on the practitioner of the taking of immediate action, as it can be inferred that the immediate action would stay in place for a significant period of time and thus any negative impact on the practitioner will occur over a protracted period. On the other hand, there is evidence before the Tribunal that the investigations currently underway may be concluded as quickly as September and October 2016. If a decision is made to undertake disciplinary action, however, it could be anticipated that any immediate action would remain in place for a further significant period of time.
The Tribunal notes the significant financial impact upon the practitioner and his family, and upon the practice, of the practitioner not currently working. It must be kept in mind, however, that the current conditions do not prohibit the practitioner from working – he has chosen to take early retirement rather than continue to practice his profession while under the cloud of investigation and conditions upon registration.
It was submitted on behalf of the practitioner that the conditions imposed by the Board, prohibiting the practitioner from consulting with female patients or patients under the age of 18 years, were unduly restrictive and not warranted given the nature of the potential risk. The exclusion of patients under the age of 18 was referred to by Counsel for the practitioner as “unfair and ridiculous”.
The rationale for the limitation on consultation with female patients is clear. Counsel for the Board submitted that the exclusion of patients under the age of 18 years was imposed on the basis that such patients are often accompanied by a female parent, who might be vulnerable to inappropriate behavior. The Tribunal acknowledges this reasoning, particularly in relation to patients who are infants or babies. While it would seem unlikely that inappropriate conduct to a guardian/carer would occur in the presence of an adolescent patient, the practical reality of consultation with patients of this age group is that they may be screened from view, or for a short period leave the room, during the consultation.
At the hearing on 5 July 2016 the Tribunal referred Counsel to the Chaperone Protocol issued by AHPRA. The Tribunal stood the matter down on 5 July 2016 to allow Counsel to obtain copies of that protocol[6] and take instructions.
[6] Exhibit R6
When the matter resumed, Counsel for the practitioner indicated that the imposition of a chaperone requirement for female patients would be impracticable and would not work. No further explanation was given, nor was evidence called to expand upon why the imposition of a chaperone condition was impractical.
Having regard to the length of time the immediate action may be in place, and the impact on the practitioner, practice and patients, the Tribunal considers that the blanket prohibition on the practitioner treating female patients and patients under the age of 18 years, while achieving the aim of protecting public safety, is unduly restrictive. A decision requiring the practitioner to comply with conditions akin to those set out in the Chaperone Protocol achieves the same protective purpose, but places no limit on the number of patients who may be treated – it simply requires that certain categories of patient be seen only with an appropriate chaperone. The Tribunal had before it information from the practice manager as to the practitioner’s demonstrated compliance with the undertaking he had previously given. This leads the Tribunal to have confidence that any conditions imposed as immediate action will be observed.
This decision, while less restrictive than the current immediate action, will not address the concerns of the practitioner outlined at paragraph 27. It may be that he will choose not to return to practice because of those concerns, notwithstanding the financial, personal and practical effects of the cessation of his practice, and will instead await the outcome of the investigation process. This is a matter for the practitioner.
The presence of a chaperone, in relation to female patients or when a patient under the age of 18 years is accompanied by female guardian/carer alone, in the view of the Tribunal, is sufficient to protect against any risk to public safety while the regulatory processes run their course.
The decision of the Tribunal, therefore, is to set aside the conditions imposed as immediate action by the Board, and substitute a decision to impose conditions requiring the presence of a chaperone in specified circumstances, together with machinery conditions necessary for that requirement to be implemented and compliance monitored.

…………………………..
President M-T Daniel
for and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:	OR 5/2016
PARTIES, APPLICANT:	Mohamad Helmy
PARTIES, RESPONDENT:	Medical Board of Australia
COUNSEL APPEARING, APPLICANT	Mr Purnell SC
COUNSEL APPEARING, RESPONDENT	Mr P Walker SC
SOLICITORS FOR APPLICANT	Ken Cush and Associates
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	President M-T Daniel, Member T Soo
DATES OF HEARING:	5 July 2016