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

[2019] ACAT 111

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEDICAL BOARD OF AUSTRALIA v AL-NASER (No. 2) (Occupational Discipline) [2019] ACAT 111

OR 11/2018

Catchwords:  OCCUPATIONAL DISCIPLINE – patient record keeping – failure to explore less invasive treatments – failure to take an adequate medical history – failure to obtain informed consent – failure to provide adequate aftercare instructions and treatment – remorse – lack of insight – penalty – professional misconduct – poor record keeping – willingness to ignore rules – registration suspension

Subordinate

Legislation cited:     Good Medical Practice: A Code of Conduct for Doctors in Australia

Cases cited:  Al-Naser v Medical Board of Australia [2019] ACAT 52

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

Gayed v Walton [1997] NSWCA 121

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

Tribunal:        Senior Member G Lunney SC (Presiding)

Senior Member M Matheson

Date of Orders: 4 December 2019

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

CIVIL & ADMINISTRATIVE TRIBUNAL         )          OR 11/2018

BETWEEN:

MEDICAL BOARD OF AUSTRALIA

AND:

NATHEM AL-NASER

Respondent

TRIBUNAL:  Senior Member G Lunney SC (Presiding)

Senior Member M Matheson

DATE:                   4 December 2019

ORDER

The Tribunal orders that:

1.           The respondent's registration be suspended for a period of nine months effective from three weeks from the date of these orders.

2.           The following conditions be imposed on the Respondent’s registration:

Undertake Education

(a) The Respondent must undertake and successfully complete an education program/s (the education) to be approved by the Chair of the applicant in consultation with AHPRA, including a reflective practice report, in relation to the following topics:

i.        appropriate uses of lasers and the safety of laser treatments (or such other related topic approved by the Chair of the Applicant); and

ii.       patient care in general practice, including maintaining proper clinical records (or such other approved related topic approved by the Chair of the Applicant).

iii.      obtaining informed consent (or such other approved related topic approved by the Chair of the Applicant).

(b) Within 28 days of the date of these orders, the Respondent must, on the approved form (HPN24), nominate for approval by the Chair of the Applicant in consultation with AHPRA the education addressing the topics required. The Respondent must ensure:

i.        the nominations include a copy of the curriculum of each topic;

ii.       the education as to each topic consists of a minimum of two days.

(c) The Respondent must complete the education within six months of the notice of the Applicant's approval of the education.

(d) Within 28 days of the completion of the education, the Respondent is to provide to AHPRA:

i.        evidence of successful completion of the education as to each topic; and

ii.       a report demonstrating, to the satisfaction of the Chair of the Applicant in consultation with AHPRA, that the Respondent, has reflected on the issues that gave rise to the requirement for the education and how the Respondent has incorporated the lessons learnt in the education into the Respondent’s practice.

(e) Within 28 days after the end of the suspension of the Respondent’s registration, the Respondent must provide to AHPRA, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent at each current place of practice, and

(f)  The Respondent will be required to provide the same form within seven days of the commencement of practice at each and every subsequent place of practice.

Audit

(g) The Respondent must submit to an audit of his practice (the audit), including any supporting records, within three months of the end of the suspension of the Respondent’s registration and thereafter at six monthly intervals (or such other longer period nominated by the Chair of the Applicant in consultation with AHPRA). The audit and the audit report are to focus on the Applicant's concerns and must include, at a minimum, the standard and quality of patient clinical record keeping including whether the Respondent clearly and adequately records patient history, advice, clinical findings and patient consents and whether or not the practitioner complies with record keeping practices outlined in Good Medical Practice: a code of conduct for doctors in Australia.

(h) Within 28 days of the end of the suspension of the Applicant’s registration, the Respondent must provide to AHPRA a nomination, on the approved form (HPN12), of an auditor(s) for approval by the Chair of the Applicant in consultation with AHPRA.

(i)  Within 14 days of the notice of the approval of the nominated auditor, the Respondent is to provide the Applicant a written audit plan, from the approved auditor, outlining the form the audit(s) will take and how the area of concerns for the Applicant will be addressed. The audit(s) will take the form determined by the auditor.

(j)  In the event an approved auditor is no longer willing or able to provide the audit required, the Respondent must notify AHPRA within 14 days of becoming aware of this and provide a new nomination of a proposed auditor(s) to AHPRA in the same terms as the previous nomination of auditor(s).

(k) Conditions [g] to [i] shall have a review period of two (2) years.

(l)  All costs associated with compliance with the conditions on his registration are at the Respondent’s own expense.

(m)           These conditions are in addition to any other conditions imposed.

………………………………..

Senior Member G Lunney SC

For and on behalf of the Tribunal

REASONS FOR DECISION

3.           In previous proceedings in this matter, the conduct alleged in the application was found to be established and the disciplinary breaches alleged made out. A further hearing was held on 9 August 2019 where the issues of characterisation of the conduct and penalty were dealt with.

4.           The applicant medical board pressed its contention that the conduct should be found to be professional misconduct. It further submitted that by way of penalty the respondent’s registration be suspended for a period of nine months, and that a number of conditions be imposed on the respondent’s registration.

5.           The respondent submitted that the conduct should be characterised as unsatisfactory professional performance.

Evidence at the hearing

6.           The applicant relied on two affidavits which annexed details of prior disciplinary matters. The first had been tendered in the course of the primary proceedings. The second was supplementary to that and was tendered at the penalty hearing.

7.           The respondent filed an evidentiary statement, gave evidence at the August hearing, and was cross examined on it.

8.           In his statement, the respondent dealt very briefly with the substance of the case against him, summarising the outcome. He said that he accepted that his treatment of the patient did not meet the standards set in the Good Medical Practice: A Code of Conduct for Doctors in Australia (Code). He said that he was embarrassed and remorseful that his treatment did not meet the standard.

9.           The bulk of his statement was devoted to training he had undertaken and changes and improvements in the keeping of clinical records and practice management in his practices. He devotes minimal attention to his past disciplinary history, referring to it as his “antecedents”.

10.         Also tendered in evidence was a statement by his employed practice manager for his two clinics which was described as a character reference. She also disclosed that she had been treated by him as a patient. She described changes and improvement in the administration and practices that had been implemented. She said that suspension of the respondent would have a detrimental effect on patients with serious health conditions

Submissions of the applicant

11.         The applicant submitted that the primary purpose in imposing a sanction was protection of the public. This was referred to by Mason P in Gayed v Walton [1997] NSWCA 121 at page 4:

In deciding what orders were appropriate in the circumstances, the Tribunal noted that it was required to take into account in the exercise of its protective jurisdiction, the maintenance of the standards of the medical profession, the maintenance of public confidence in the medical profession, and the protection of the community. The Tribunal recorded that it bore in mind the gravity of the consequences of an order removing the name of a medical practitioner from the register. I do not understand these principles to be challenged in the appeal.

12.         The applicant submitted that the conduct amounted to professional misconduct, that a period of suspension of nine months was appropriate in the circumstances, and a number of educational conditions should be imposed.

13.         The applicant asserted that the respondent had not shown remorse and lacked insight into the implications and consequences of his actions. Counsel also referred to the cross examination of patient K, describing it as repetitive, harassing and badgering; referring also to the strike out application initiated at the commencement of proceedings based on allegations of fraud which were not established.

14.         The applicant submitted that there was a high likelihood that the respondent would engage in future misconduct, since it could not be seen that previous disciplinary sanctions had resulted in any modification of his practices. Also relevant was his alleged lack of insight, which was an indication that repetition was likely. It was not submitted that he was unsuitable for practice at all: he was quite capable of complying with the Code, but had not put the time and effort into doing so. It was suggested that a period of suspension with additional conditions relating to auditing, monitoring and training would be likely to produce a change in attitude resulting in compliance with the Code. However, the sanction imposed should be more ‘serious’ in order to achieve the change sought.

Submissions of the respondent

15.         The respondent submitted that the conduct should be characterised as unsatisfactory professional performance.

16.         He agreed that the primary purpose of sanction was protective rather than punitive.

17.         The respondent noted that the primary decision had been publicly published, and that circumstance combined with a public reprimand would act as a sufficient deterrent to protect the public and uphold public confidence in the medical profession.

18.         He suggested that the following sanctions would be appropriate and effective.

(a) A public reprimand.

(b) Prohibition on conducting or supervising laser resurfacing.

(c) Attend a course in clinical record keeping.

(d) Random auditing at approximately 6 monthly intervals of clinical notes, consents and aftercare instructions.

19.         In written submissions, the respondent made reference to the respondent’s previous disciplinary history. This commenced with reference to a hearing in this Tribunal in 2015: The Medical Board of Australia v Al-Naser [2015] ACAT 15 in February 2015. The consent findings of the Tribunal in that case were dismissed in the submissions as involving different issues to the current proceedings and could be of little assistance in consideration of sanction. The analysis omits to mention that the consent orders included a finding of professional misconduct.

20.         The submissions continued in a similar vein.

Previous disciplinary history

21.         The following table has been prepared from information contained in the two affidavits of Siobhan Stoddart affirmed 29 June 2018 and 6 August 2019. The references given in the first column are to the Exhibit numbers of the relevant documents.

SS Ref

Description

SS 19

Notification 00185673 – Taken from letter written by AHPRA to respondent following meetings on 23 Jan 2012 and 22 Feb 2012. No indication of date of conduct.

Complaint by female patient. No case to answer re complaint of failure to examine, but case to answer re failure to keep adequate records. Decision of Performance and Professional Standards Panel to instruct respondent to keep better records.

SS 20

Notification number unknown. Orders by consent ACAT 4 Feb 15, Conduct between Feb 2012 and Oct 2012

A doctor employed by the respondent engaged in a sexual relationship with a patient. The respondent treated the patient despite existence of conflict of interest. Some of his behaviour inappropriate. He permitted the employee to remain in employment until the reporting of the situation.

In ACAT consent finding of professional misconduct. Reprimand. Not to have for two years any actual or perceived role as a supervisor of staff in any practice he owns, has an interest in or works in. Med Bd to appoint a mentor for 12 months.

SS 21

Notification 00288372. Australian Health Practitioner Regulation Agency. Notice of Board Decision to Caution. 31 Jul 2015

“The Medical Board of Australia has decided to caution you to impress upon you your professional obligation to ensure the continuity of care for peri-operative patients. The Board also cautions you to ensure that informed and signed consent is obtained from a patient prior to any procedure or treatment and that the clinical records at all times contain copies of relevant signed consent forms.”

SS 22

Ref 00349950

Caution Issued dated 10 April 18

Respondent employs a patient for whom he issues a WC certificate and continues to treat. Conduct in 2016.

The Medical Board of Australia has decided to caution Dr Nathem AI-Naser to ensure in the future that he practises the profession in accordance with the Medical Board of Australia Good Medical Practice: A Code of Conduct for Doctors in Australia, in particular that he:

•           remains aware of and effectively maintains appropriate professional boundaries with patients; and

•           keeps accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners.

SS 23 & 24

Patient K March 2014

SS 25

Patient A – Notice of Decision to take immediate Action dated 21 Dec 2018. Notification received on 3 Oct 2018 regarding conduct commencing on 6 September 2018 regarding circumcision of male baby by respondent.

Decision subject to review. Decision by ACAT reported as Al-Naser v Medical Board of Australia [2019] ACAT 52. Finding by the Tribunal as follows at [6].

…the Tribunal formed a reasonable belief because of the objective evidence in relation to the practitioner’s conduct in obtaining inadequate informed consent, his inadequate documentation of the consultation and procedure and his inadequate follow up care of Patient A, that the practitioner poses a serious threat to persons and it is necessary to take immediate action to protect public health and safety.

SS 26

Not included. Reviewed 30 Oct 2019, decision reserved.

Consideration

22.         In his statement, the respondent says that he is a registered medical practitioner and member of the College of General Practitioners. He has been registered to practise in Australia since 1995. He owns and operates the Belconnen Medical Centre and the Conder Surgery in the suburb of Conder. Twenty seven people are employed in those two practices.

23.         Patient K was treated at a Laser Clinic in a shopping mall in Belconnen which ceased operation, he says, in March 2015. He now neither performs laser resurfacing treatments, nor supervises others performing such treatments.

24.         The hearing of the offences alleged continued over four days and were notable for a vigorous defence by the respondent. This included an application filed on 3 December 2018 six business days before the principal application was listed for hearing and which by that stage had gone through the usual directions hearings in preparation for hearing. This application sought orders that the principal application be dismissed with costs. The grounds were abuse of process due to fraud, improper purpose, delay, being based on a complaint that had been dismissed, and expert opinion which was based on a fraudulent complaint. Particulars were directed and hearing of the application was adjourned and dismissed at the end of proceedings.

25.         All grounds for the making of disciplinary orders were found to be made out. These reasons for decision relate to characterisation of the respondent’s conduct and appropriate sanction. It is not proposed to canvass the factual material that was dealt with at the hearing and in the decision which has been published, except where directly relevant to these reasons.

Characterisation

26.         Upon attending the respondent’s clinic on 6 March 2014 for treatment, patient K expected to be treated with a low powered laser and that a test patch would be done prior to treatment. This expectation was based on what she had been told at a preliminary consultation at the clinic on 3 March 2014. That treatment plan was changed to use of a more powerful machine and she was given inadequate information about what was to be done, and in particular what the effects of the treatment would be to her physical appearance. No care was taken to ensure that she understood the nature of the procedure or to obtain her informed consent.

27.         After the procedure she was allowed to leave the clinic without adequate aftercare instructions. When she complained later in the day, little concern was shown. She attended the clinic again the following day when the respondent’s attitude was dismissive and unconcerned. Other staff showed little interest.

28.         Although the contrary was claimed by the respondent, consents for the treatment undertaken were neither obtained nor signed. Record keeping was minimal and was not contemporaneous with the event recorded.

29.         Dr Molton who provided expert advice at the hearing, used the phrase “falls well below the standard expected” on more than one occasion in his report to describe the standards applied by the respondent in the clinic.

30.         In the view of the Tribunal, the respondent showed little care or concern for patient K during her attendance for treatment. Her complaints were a matter of irritation rather than of concern to him. The opinion of the Tribunal is that his conduct was at the upper end of severity of breach of the standard expected.

31.         The Tribunal finds that the conduct constituted professional misconduct.

Consequences upon characterisation

32.         The applicant does not submit that the respondent is not a fit a proper person to hold registration. Rather its approach is that with a sufficiently robust penalty, time, and educational measures, the respondent will be able to return to a successful practice having modified his methods after gaining insight into the need for change.

33.         Counsel for the applicant returned to what she submitted was the respondent’s lack of insight on a number of occasions and has submitted that lack of insight produces an unacceptable risk of recurrence.

34.         The respondent’s disciplinary history is not good. Record keeping and recording patient details, obtaining informed consent, and adequate follow up are issues that have arisen on other occasions. He has shown a desire to achieve a treatment outcome without attention to necessary ancillary detail. The Tribunal agrees that lack of insight is a major problem for the respondent and has led to an unenviable rate of recurrence of disciplinary problems.

35.         Counsel for the respondent points to educational courses the respondent has taken, mentoring he has undertaken, and character references. The evidence tends to show that the respondent is capable of adherence to the rules and requirements of practice, but can omit steps which he presumably considers are unnecessary.

36.         It is difficult to detect any genuine remorse on the part of the respondent for the inadequacies in treatment of patient K. The statement he filed in relation to these proceedings contained the following formal statement which presumably was deemed necessary to be included:

6.  I accept that my treatment of [patient K] did not meet the standard set out in the ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’. I am embarrassed and remorseful that my treatment of [patient K] did not meet the standard expected of a reasonable medical practitioner.

37.         He makes no apology for his conduct, and expresses no concern for the distress caused to patient K as a result of it.

38.         Furthermore, the Tribunal found it necessary to comment adversely on the respondent’s credibility in its primary decision.

39.         Of perhaps greater concern are the findings of the tribunal which dealt with the immediate action application arising out of the patient A case in August this year: Al-Naser v Medical Board of Australia [2019] ACAT 71. At page 8, the Tribunal has already quoted from paragraph 6 of the tribunal’s decision relating to the belief it came to.

40.         Those findings made only months ago relate to the similar areas of practice in which findings were made by this Tribunal in three of the breaches alleged by the applicant. These were: the keeping of records, obtaining informed consent and inadequate follow up care.

41.         The respondent’s previous disciplinary history indicates a persistent willingness to ignore rules when convenient to do so, particularly in record keeping. Furthermore the evidence in this case indicates a high degree of callousness in the breaches of standards of care in relation to patient K found established by the Tribunal. This was particularly demonstrated by a failure to provide adequate advice on aftercare and to provide care itself when the opportunity arose on the following day when she complained to the respondent.

42.         The Tribunal agrees with the applicant’s submission that a strong message needs to be sent to the respondent that he cannot continue to ignore the standards of the profession that he practises in. His past disciplinary history and his treatment of patient K indicate that he has little insight into the consequences of breach of the Code. The Tribunal accepts that lack of insight is an indicator of the likelihood of further breaches. The Tribunal has mentioned lack of remorse in the respondent which of itself also can indicate the likelihood of further offending.

43.         The Tribunal considers the proposed period of suspension entirely appropriate in the circumstances together with the proposed conditions. The Tribunal makes the orders above. The suspension order should become effective in three weeks from the date of publication of this decision.

44.         The matter should be listed for directions relating to costs on a date to be fixed.

………………………………..

Senior Member G Lunney SC

For and on behalf of the Tribunal

HEARING DETAILS

FILE NUMBER:

OR 11/2018

PARTIES, APPLICANT:

Medical Board of Australia

PARTIES, RESPONDENT:

Nathem Al-Naser

COUNSEL APPEARING, APPLICANT

S Wright

COUNSEL APPEARING, RESPONDENT

W Sherwood

SOLICITORS FOR APPLICANT

Australian Government Solicitors

SOLICITORS FOR RESPONDENT

McInnes Wilson

TRIBUNAL MEMBERS:

Senior Member G Lunney SC, Member M Matheson

DATES OF HEARING:

12, 13, and 14 December 2018, and 9 August 2019