In Re Dr Dr Sarkis Douaihy and the Medical Practice Act 1992

[2004] NSWMT 6

New South Wales

Medical Tribunal

CITATION:	In Re Dr Dr Sarkis Douaihy and the Medical Practice Act 1992 [2004] NSWMT 6
TRIBUNAL:	Medical Tribunal
PARTIES:	Health Care Complaints Commission Dr Sarkis Douaihy
FILE NUMBER(S):	40012 of 2003
CORAM:	Walmsley, SC DCJ - Child, Dr D - Badam, Dr A - Cotton, R Ms
CATCHWORDS:	unsatisfactory professional conduct - professional misconduct
LEGISLATION CITED:	Medical Practice Act 1992 Health Insurance Act 1973 (Commonwealth) Crimes Act 1914 (Commonwealth)
CASES CITED:	Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
DATES OF HEARING:
DATE OF JUDGMENT:	10 May 2004
LEGAL REPRESENTATIVES:	Mr K Connor Mr B Young Mr M Ainsworth
ORDERS:	1. The respondent is reprimanded;; 2. The respondent is to pay the applicant’s costs.

JUDGMENT:

REASONS FOR DETERMINATION

DATE: 10 MAY 2004

In accordance with s 51 (1) of the Medical Practice Act 1992 (“the Act”) the Health Care Complaints Commission (“the Commission”) has made a complaint to the New South Wales Medical Tribunal (the Tribunal) against Dr Sarkis Douaihy. The complaint is that being a medical practitioner registered under the Act he has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of ss 36 and 37 of the Act. As to the first part of the complaint it is said that:

(i) he demonstrated a lack of adequate knowledge, skill, judgment or care in the practice of medicine;

(ii) he has engaged in improper or unethical conduct relating to the practice of medicine;

(iii) he has been convicted of offences under s 128 B of the Health Insurance Act 1973 of the Commonwealth.

Particulars of the complaint are that between 2 November 1997 and 31 January 1998 he made false and/or misleading claims on the Health Insurance Commission on twelve occasions thereby falsely obtaining $450.15 from the Health Insurance Commission; and on 14 December 1999 was convicted of twelve offences under s 128 B of the Health Insurance Act 1973.

As to the second part of the complaint it is said that on 14 December 1999 he was convicted in the Local Court on each of twelve offences against s 128 B Health Insurance Act 1973 . Particulars are set out in a certificate of conviction. The certificate of conviction shows that Dr Douaihy on 14 December 1999 was convicted at the Local Court, level 4, Downing Centre, the offences having occurred on 2, 6, 7, 23 November 1997, 2, 16, 19 December 1997 and 1, 11, 20, 16 and 31 January 1998 at Sydney. Each offence involved the making of a statement which was false or misleading in a material particular. The penalty was a recognisance under s 20 (1)(a) of the Crimes Act , Commonwealth , to be of good behaviour for two years, self-surety $1,000.00, with an order to pay court costs of $52.00.

The formal complaint whereby the matter came before the Tribunal was signed by the Commissioner for the Commission on 26 September 2003, almost five years after the offences had occurred and just a month short of the third anniversary of the day when complaint was first made to the Commission by Mr Dix, Registrar of the New South Wales Medical Board, that in his view Dr Douaihy may be guilty of unsatisfactory professional conduct. The reason for that delay was not explained to the Tribunal.

The hearing of the application proceeded before the Tribunal on 27 April 2004. Counsel representing the Commission was Mr Kevin Connor, with him Mr Brett Young, and counsel representing Dr Douaihy was Mr Michael Ainsworth.

Dr Douaihy conceded that the matters alleged against him were correct. However, by reason of evidence he put before the Tribunal and submissions made on his behalf he urged the Tribunal not to find “professional misconduct”, and not to remove his name from the register or to suspend him from practice. For reasons which appear below, the Tribunal has reached the view that the conduct proved is “unsatisfactory professional conduct” within the meaning of that expression in s 36 of the Act but that the conduct is not of a sufficiently serious nature as to justify suspension from practising medicine or removal of the practitioner’s name from the Register and further that it ought not, here, lead to a finding of “professional misconduct” as defined by s 37 of the Act. Although the conduct proved is conduct which in the usual course might be expected to lead to a finding of “professional misconduct”, for the reasons peculiar to this case, it is the Tribunal’s view that the conduct should not be so regarded.

It is necessary, for an understanding of that view, to look at the background to the Tribunal’s enquiry.

Dr Sarkis Douaihy was born on 12 November 1964 in Lebanon. He is now aged 39. He is married. He and his wife have a daughter born in July 2001, and another daughter born in October 2002. His wife is pregnant with their third child. Dr Douaihy speaks English, French and Arabic.

Between 1983 and 1990 he studied medicine in the Faculty of Medical Sciences, School of Medicine, University of Lebanon. His internship from October 1988 to October 1989 was at University Notre-Dame du Liban. From October 1989 to October 1990 he was a Resident Medical Officer in the Central Military Hospital in Beirut, Lebanon, and completed terms in cardiology, respiratory medicine, general surgery and accident and emergency medicine. From October 1990 to March 1991 he was a Resident Medical Officer at Saydet Sgharta Hospital, Sgharta, North Lebanon and completed a term in general surgery. By reason of religious strife in the area he lived in in Lebanon he left that country and came to Australia on 27 April 1991. On his arrival here he contacted the Australian Medical Council. To assist him pass the examinations set by that council he undertook a course at St George Hospital. In 1993 he obtained the certificate for foreign medical graduates from the United States Educational Commission for foreign medical graduates (ECFMG). In 1994 he was conditionally registered to work in the South Australian public hospital system. On his third attempt, in September 1995, he passed the Australian Medical Council examinations. He had been sponsored in Australia by an aunt who lived at Coogee and he lived on social security benefits while he studied. From June 1994 until January 1996 he worked as a Resident Medical Officer at Royal Adelaide Hospital, completing terms in neurosurgery, ear nose and throat surgery, accident and emergency medicine, internal medicine, and obstetrics and gynaecology. In January 1996 he moved back to Sydney and from January 1996 until January 1997 he worked as a Resident Medical Officer at Prince of Wales Hospital, completing terms in accident and emergency, neurology, general medical, paediatrics and intensive care. From January 1997 until June 1999 he worked full time as a general practitioner, providing locum work at various medical centres. In September 1997 he commenced working at the River Road Medical Centre in Revesby as a locum. The centre was conducted from a suburban house and he was the only doctor working there. The medical centre had a low turn over of patients such that he saw on average 40 to 50 per week. The arrangement made under the terms of his locum service were that he would work between 9.00 am and 6.00 pm Monday to Friday. Initially also he worked Saturdays between 9.00 am and 1.00 pm. His Medicare billings were directed to the provider number of a Dr Nemeth and his belief was that she paid the owner of the practice for the use of the premises.

By November 1997 he found there would be lengthy periods of time between patients. A Mr Harris, who worked as a handyman at the medical centre, and at other centres owned by that centre’s owner, consulted him about a skin lesion and to have his blood pressure checked. During the course of the consultation or after it the suggestion arose, given that business was slow, that he sign some blank Medicare assignment forms which could then be submitted in his name and in the names of his family. Mr Harris signed a number of blank Medicare assignment forms and left them with him. Over the next few months Dr Douaihy completed most of the forms in the names of various members of Mr Harris’ family and lodged them for processing by the Health Insurance Commission. In most cases he claimed the benefit for an emergency after-hours attendance (Medicare benefit schedule item 97). He directed the benefits paid by the HIC in respect of those assignment forms be paid to him rather than to Dr Nemeth. All told, nine of those forms were used. Three other patients of the clinic were Mrs Carroll, Mr Hewson and Mrs Pearce. In the case of each of those he saw them for a standard consultation (Medicare Benefit schedule item 53) but in the case of Mrs Pearce he claimed for an item 97 service which he did not in fact render; in the case of Mrs Carroll he claimed for a home visit (Medicare benefit schedule item 59) when in fact he saw her in the surgery and in the case of Mr Hewson he also claimed for a home visit when he in fact saw him in the surgery. In two of those three cases he directed the benefits be paid to him rather than to Dr Nemeth.

He says that in early 1998 he read an article in a medical newspaper, probably the Australian Doctor or the Medical Observer, and learned that the Health Insurance Commission was checking on doctors and in particular in the way they dealt with Medicare claims. He realised he may have been one of those being investigated. In his evidence to the Tribunal he said: “The whole situation drove me to my senses and said, look, this is not my job, this is not what I believe and I stopped it and lived in fear until this moment.” He did not go to the Health Insurance Commission and make a clean breast of things. But, as he said, “I thought heaven is going to collapse on me by just doing these things. So I said, it’s only a trivial amount of money and hopefully it will go and let me live my life.

But from that moment I promised God, myself, and everyone that I can promise that this is not going to happen again and this is not my nature of doing things. I like to earn money with hard work. I like to one day to tell my children that, look, I worked hard to be where I am and I don’t want to feed them or give them anything, whether I’m alive or after I die, something that I didn’t work hard for.”

Some months later, probably in May 1998, the owners of the medical centre approached Dr Douaihy and told him they were aware that he had made false Medicare claims. They attempted to convince him to buy the centre, at first for $600,000.00 and then for $500,000.00. One of the owners threatened to inform the Health Insurance Commission of the fraud if he did not purchase the medical centre. However he did not have the ability to buy the centre and did not wish to buy it. He continued to work in the centre until August 1998 although without any income. He later sued the owners of the centre for the income. The outcome of the litigation was not made known to the Tribunal. In August 1998 he resigned from the medical centre.

The Health Insurance Commission learned of the frauds and its investigating officer, Mr Jack Nolan, contacted Dr Douaihy in late 1998. The two men met on 3 December 1998. Mr Nolan warned him that he need not say anything but that anything he said would be recorded and may later be given in evidence. Notwithstanding the warning Dr Douaihy made a full and apparently frank disclosure of his fraudulent conduct.

He was then prosecuted under s 128 B of the Health Insurance Act 1973 . By reason of s 130 AA(2) of the Health Insurance Act , an offence under s 128 B is triable summarily if the parties consent and if the magistrate considers it appropriate. Where the magistrate deals with the matter, the maximum penalty is 6 months imprisonment or a fine of $1,000.00 or both: s 170 AA(3). The twelve matters in respect of which Dr Douaihy was prosecuted came before a magistrate on 14 December 1999 at the Downing Centre. Either at the first opportunity or almost immediately thereafter, Dr Douaihy pleaded guilty to all twelve offences. In respect of each offence he was found guilty, convicted, and released upon his giving a recognisance in the sum of $1,000.00 to be of good behaviour for two years. He was ordered to pay court costs of $52.00. The total amount defrauded was $450.15. He made full restitution of that sum to the Health Insurance Commission a few days before the Local Court hearing.

Dr Douaihy was represented by counsel at the Local Court hearing. Although there was not before us a transcript of the proceedings there was a summary prepared by a solicitor for the Director of Public Prosecutions. Those notes were consistent with quotations from the transcript which appear in the transcript to proceedings later held by the Medicare Participation Review Committee Page 57 . According to the Report of that Committee, the magistrate said, when sentencing Dr Douaihy, inter alia:

“ This is not a case where someone has started on a dishonest course and will have kept on with it if wasn’t discovered, because you had stopped doing that for a long time by the time this came to light. The amount of money as these things go, is trivial, but what happened is a breach of the position of trust in which you were put in your capacity as a medical practitioner. Notwithstanding that, it is about the bottom of the scale of such breaches and you weren’t involved in some continuing course of criminal conduct. I hope any medical Tribunal or the like will see it in its proper light, and not as something to disqualify you.” our emphases

It was by reason of Dr Douaihy’s fraudulent conduct, that a hearing was conducted by the Medicare Participation Review Committee established under the Health Insurance Act. S 124 F of the Health Insurance Act provides that a committee in making a determination in relation to the doctor has a number of options. First, it may decide that no action be taken. Secondly, it may counsel the practitioner. Thirdly, it may reprimand the practitioner. Fourthly, it may disqualify the practitioner from the use of Medicare arrangements for a specific period or for specific categories of patient. Under s 124 H of the Health Insurance Act the relevant Minister issues guidelines for the Committee. Those guidelines were not before us but they were before the Committee. The Committee sat on 17 May 2000 in Sydney. It consisted of Mr D I Cassidy QC, Chairperson, and Dr J Ellard and Dr G Miller, members. Dr Douaihy was present and was represented by counsel. Noting that Dr Douaihy had made a full and frank confession, and having observed him give evidence, being satisfied that he was truly remorseful, the Committee made this determination:

“The determination of the Committee is therefore that pursuant to paragraph 124 F(2)(ii)(b) of the Act, Sarkis Douaihy is reprimanded.”

In making that determination the Committee noted that the guidelines distinguished between indictable and summary offences and that the offences of which he was convicted were indictable although the fact that they were ultimately dealt with summarily was a matter of considerable importance. That suggested to the Committee that prima facie if the Committee was of the view action should be taken against the practitioner, disqualification from Medicare facilities of between 6 and 18 months would be appropriate. The Committee went on:

“We are entitled, if the circumstances require us to do so, to go outside these parameters. The fact that the Crown considered this to be a case appropriate to be dealt with summarily is a matter that would suggest that we make an order towards the bottom of the scale if we were going to make an order disqualifying Dr Douaihy. As we have already implied, however, it is the view of this committee that no order for disqualification should be made in this case … [B]ecause of the short length of time that this doctor has been in practice and his lack of knowledge of the system, the committee is satisfied that this is an appropriate case to take that exceptional step … [A]nother important aspect of the Guidelines is that they direct us to take account of the effect of any disqualification upon the doctor. In this case, Dr Douaihy has gone into significant debt to purchase the practice, which he now conducts. … [I]t is obvious from the evidence that Dr Douaihy has given that, bearing in mind his age, he is a sensible and careful general practitioner and that he has great ambitions to go further. If we were to make an order disqualifying him, even for a short time, it would be disastrous for him and would probably ruin him for the rest of his life and it would also have a harsh effect upon his wife. … [A] further consideration of the Guidelines is the effect that an order would have upon his patients and those of the community who he might serve. Again, because of his knowledge of languages, the nature of the community in which he serves and the nature of the practice in which he is involved, we would consider that he is serving a most useful function. We should not interfere with the continuity of that function. We hope that Dr Douaihy will continue for some time to have the assistance, advice and support of Dr Tadros [a doctor from whom he bought a practice late in 1999]. We contemplated seeking some undertaking in that regard, but having thought about the matter and taken account of the nature of the practitioner with whom we are dealing, we think that it is not necessary to say anything formal along those lines.”

In June 1999 Dr Douaihy bought a well-established medical practice at 398 Marrickville Road Marrickville from Dr Samir Tadros who had been in that practice for about 28 years. The purchase price was $540,000.00. He borrowed that sum in full from the Commonwealth Bank together with a further $50,000.00 business loan and has since been repaying the debt at $4,572.00 per month. He employs two full-time receptionists, a part-time receptionist and a practice manager. The practice is a traditional family practice. It has about 10,000 files and serves a large Arabic population in Marrickville and surrounding areas. There are African and Vietnamese patients with whom Dr Douaihy consults in French. All patients are bulk-billed. Seventy five percent of consultations are conducted in languages other than English. Patients come to the practice from far afield. Initially Dr Tadros, from whom he bought the practice, continued to work within it. This helped with the transition and provided Dr Douaihy with a mentor. Dr Tadros was very experienced, and it is clear Dr Douaihy admired and respected him, and, indeed, saw the association with him as beneficial to him in helping to increase his skills. Due to Dr Tadros’ ill health, he retired in April 2001. Most of the patients of the practice have remained and many new patients have begun attending.

After he was dealt with in May 2000 by the Medicare Participation Review Committee Dr Douaihy undertook a number of courses and joined a number of organisations. In June 2000, although already a member of the AMA, he joined 3 local divisions of general practice. In July 2001 he sat for the final examination of the RACGP. On 8 January 2002 he became a Fellow of the Royal Australasian College of General Practice. He regularly attends continuing medical education meetings as required. On 12 April 2002 his medical practice obtained accreditation through the Australian General Practice Accreditation Limited programme for 3 years. He is a member of the Australian Lebanese Heart Foundation. It is the aim of that foundation to eradicate heart disease in the community and it conducts educational sessions and studies to monitor and improve health outcomes within the community. He is a member of the committee for aged care in the diocese of St Maroun in Australia.

In a statement tendered to the Tribunal and confirmed in oral evidence, Dr Douaihy asked the Tribunal to accept his full admission of wrongdoing. He assured the Tribunal that he had immediately stopped the fraudulent conduct upon reading the article in the medical press. He said he continued to feel guilt, regret and shame and took full responsibility for his conduct. He said he blamed no one but himself. He said that the effect of de-registration or suspension upon his patients would be devastating: it would be difficult if not impossible to find alternative general practitioners within a reasonable distance with the necessary language skills and capacity and their care would be significantly disrupted even if suitable alternative general practitioners could be found. He pointed out that his practice is subject to significant debt and he is the only income earner. Thus if he were unable to practise that would be disastrous for the continued viability of the business, his staff and his family.

Very impressive character references were submitted on his behalf. Dr Frank Laoulach has known him for 7 years and has used him and still uses him for locum sessions. He describes him as honest, reliable and totally credible. The Director of Nursing at the Marounite Sisters of the Holy Family Village, 28 Marrickville Avenue Marrickville, has known him for 4 years. He began attending patients in the village in 2000 and currently has 15 patients there under his care. In her professional judgment he has always performed his duties with great responsibility and diligence, works with integrity and is most efficient, his conduct always being respectful. She says he displays a genuine interest in the families of his residents, is supportive and assists them understand the conditions of their loved ones. She says he has made a positive contribution to the facility and hopes that can continue. Dr Henry Stenning has known him for 5 years and has found him honest and ethical in their dealings.

Dr Graiche, of the Regency group, had known Dr Douaihy for about 2 years as at December 1999 and said the offences were totally out of character. The general manager of that group, Mr Anisse, said he had an impeccable record in his general dealings with patients and that organisation, was organised, dependable, responsible and hard working.

Dr Julian Parmegiani, general and forensic psychiatrist, saw Dr Douaihy for the purpose of preparing a medico-legal report to assist him with the Medicare Participation Review Committee hearing. He saw him on 23 November 1999. Reporting about him on the following day, Dr Parmegiani noted that his emotional response to his fraudulent behaviour had been characterised by anxiety and that he had felt relieved when he was formally charged. In Dr Parmegiani’s view, that he stopped submitting false claims as soon as he realised the seriousness of his actions suggested that his chances of re-offending were low. He could find no evidence of psychiatric illness and no indication for psychiatric treatment.

When, following notification of it from the Medicare Participation Review Committee of its findings, the Commission began to investigate the complaint, it first wrote to Dr Douaihy on 28 August 2000. By letter of 12 April 2001 his solicitors responded on his behalf, pointing out relevant matters and asking the Commission to recognise that Dr Douaihy’s conduct had already been thoroughly and appropriately dealt with by other competent bodies and that there was no public interest in investigating the matter further. They invited discontinuance. That request was not granted. On 9 January 2003 the Commission wrote to Dr Linda Mann, asking her to express a view about Dr Douaihy’s conduct. By letter of 15 January 2003, taking account of the relevant documents which were given to her, she concluded that she was “moderately critical” of him for his actions in committing fraud and that she believed a body of his peers would be “mildly critical” of him, provided he acted to limit his isolation, taking on the ethics of the body of peers who did not commit fraud. On 18 March 2003 the Commission informed Dr Douaihy’s solicitors that it had finalised its investigation of the complaint and proposed to prosecute him under s 39 (1)(a) of the Act. Again, his solicitors submitted that there was no public interest in a further disciplinary complaint against him. They pointed out to the Commission what clearly had not been made known to Dr Mann, that Dr Douaihy was a Fellow of the Royal Australian College of General Practice, had joined the Central Sydney, Canterbury and St George divisions of general practice, was an AMA member and that his practice was fully accredited.

The way in which a practitioner in the position of Dr Douaihy is to be dealt with under the three strands of procedure by prosecution, the Medicare Participation Review Committee, and before the Tribunal under the Act has not been considered on an appellate level, so far as the researches of counsel are concerned. Clearly, each procedure plays a separate part, but as counsel for the Commission conceded, there is potential for overlapping.

In carefully prepared written submissions provided to us by Mr Connor, supplemented orally, the Tribunal was reminded of the legislative framework under which this complaint was laid and the necessary process of fact finding.

The tribunal has considered those submissions and Mr Ainsworth’s submissions in the light of the factual matters before it.

Findings

The Tribunal is satisfied that the subject matter of both parts of the complaint has been made out. The Tribunal finds that:

(a) Between 2 November 1997 and 31 January 1998 Dr Douaihy made false and/or misleading claims on the Health Insurance Commission on 12 occasions thereby falsely obtaining $450.15 from the Health Insurance Commission;

(b) Dr Douaihy was convicted on 14 December 1999 at the Local Court at the Downing Centre, Liverpool Street, Sydney, of 12 offences against s 128 B(1) of the Health Insurance Act, 1973, Commonwealth;

Before the Tribunal counsel for Dr Douaihy conceded that his client was guilty of unsatisfactory professional conduct but urged that it not find “professional misconduct”.

There was debate before the Tribunal as to what powers were available to it, short of suspending Dr Douaihy from practising medicine or removing his name from the register. S 62 of the Act contains the power to fine but that Act is qualified as follows:

“(2) A fine is not to be imposed unless the committee or the Tribunal finds the person to have been guilty of unsatisfactory professional conduct or professional misconduct. A fine is not to be imposed if a fine or other penalty has already been imposed by a court in respect of the conduct.”

Mr Ainsworth submitted that as Dr Douaihy had been released on condition he enter into a recognisance to be of good behaviour in the Local Court, Dr Douaihy had been subjected to a “penalty”. Mr Connor submitted that that was not a penalty. Neither counsel referred the Tribunal to relevant authority. However in the view the Tribunal takes, the debate is academic, because the Tribunal does not think it appropriate to impose a fine.

In Health Care ComplaintsCommission v Litchfield (1997) 41 NSWLR 630 the Court of Appeal (Gleeson CJ, Meagher & Handley JJA) heard an appeal against a decision of the Tribunal where the Tribunal had ordered suspension of the doctor’s rights to practise but where the Commission had urged de-registration. In allowing the Commission’s appeal the Court said:

“Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public, but also for the protection of the profession.”

Counsel referred us to a number of decisions of the Tribunal and of the Court of Appeal where the relevant doctor had been found guilty of Medicare fraud. Mr Connor submitted that the Tribunal ought consider ordering a period of suspension, alternatively a fine. He drew to the Tribunal’s attention the need for the integrity of the Medicare system. He submitted that the Tribunal ought consider any continuing rights to practise be subjected to certain qualifications or undertakings. He drew the Tribunal’s attention in particular to the fact that so many of Dr Douaihy’s patients do not have English as their first language and may need a better understanding of their rights to Medicare benefits and in particular that the benefits are theirs to assign and not those of Dr Douaihy.

The Tribunal regards this as an unusual case. The offences are serious ones indeed. Such offences do, if they continue, threaten the integrity of the Medicare system. They reflect poorly on the medical profession. It is important that the medical community understands the seriousness with which these offences are regarded and that the public understands what tribunals such as this one do to maintain the integrity of the Medicare system and, the protection of the public from dishonest doctors. It is the Tribunal’s view, however, that Dr Douaihy ought not be suspended from practice or fined. Nor should it find “professional misconduct”. Rather, it is the Tribunal’s view that he ought be reprimanded. The Tribunal reaches that view for these reasons:

(a) the period of dishonesty occurred over a short space of time and involved a relatively small amount of money;

(b) the dishonest conduct ceased, voluntarily, once, as the Tribunal is satisfied was the case, Dr Douaihy realised the seriousness of his conduct;

(c) Dr Douaihy was dealt with in the Local Court, the Commonwealth Director of Public Prosecutions apparently considering the offences appropriate to be dealt with summarily as did the magistrate;

(d) the magistrate expressed the hope that “any medical Tribunal or the like will see it in its proper light, and not as something to disqualify you”;

(e) the Medicare Participation Review Committee, operating with guidelines issued by the Commonwealth Minister of Health, having heard the evidence, regarded the circumstances as such that it was inappropriate to do other than reprimand Dr Douaihy;

(f) although he has been dealt with by the criminal law and under the Health Insurance Act, he has had to face a third set of proceedings. To the extent to which there are two sets of proceedings of a disciplinary nature, it is, as counsel for the Commission submitted, an accident of federation. That is not to say that this Tribunal is dealing with the same issues as were dealt with by the Medicare Participation Review Committee. But to the extent to which Dr Douaihy has had to give evidence, prepare for a hearing, brief counsel, and experience the embarrassment and anxiety of a hearing, he has undergone it twice;

(g) although knowing of the fraudulent offences he has committed, his peers and others who know him in the medical community speak very highly of him;

(h) he was young at the time these offences were committed and relatively new to this country;

(i) he has established himself in a large and busy practice and is performing and has performed and will continue to perform if permitted to, a significant service for that substantial part of the Sydney community which speaks Arabic;

(j) he has taken what the Tribunal regards as impressive steps to engage in continuing education and maintain contacts with his peers in the profession;

(k) there was a very considerable delay on the part of the Commission in the laying of the complaint and no explanation for that delay;

(l) the Tribunal is satisfied that Dr Douaihy has expressed genuine contrition from a very early stage, in particular, pleading guilty to the criminal prosecutions as soon as he could, and that never before the Local Court or in front of the Medicare Participation Review Committee or before this Tribunal, did he seek to cast any of the blame on anyone but himself;

(m) the patients of his large practice would undoubtedly suffer if he were to be suspended from practice;

(n) the Tribunal considers on all the evidence before it that it is unlikely in the extreme that Dr Douaihy will re-offend.

Costs

The general rule is that costs follow the event unless some other order should be made. It is the Tribunal’s view that the usual order should be made and that Dr Douaihy should pay the Commission’s costs.

Orders

The Tribunal makes the following orders:

1. the respondent is reprimanded;

2. the respondent is to pay the applicant’s costs.