Medical Board of Australia v Al-Naser (No. 3) (Occupational Discipline) - [2024] ACAT 9

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEDICAL BOARD OF AUSTRALIA v AL-NASER (No. 3) (Occupational Discipline) [2024] ACAT 9

OR 2/2022
Catchwords: OCCUPATIONAL DISCIPLINE – MEDICAL PRACTITIONER – sanction – principles to be followed in determining sanction

List of Legislation: ACT Civil and Administrative Tribunal Act 2008 s 39
Health Practitioner Regulation National Law (ACT) ss 3A, 5, 195, 196
Health Practitioner Regulation National Law (ACT) Act 2010 s 6
Health Practitioner Regulation National Law (NSW) 2009 s 3A

List of Cases: Craig v Medical Practitioners Board [2001] SASC 169
Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167
Medical Board of Australia v Al-Naser [2024] ACAT 7
Medical Board of Australia v Al-Naser (No 2) [2024] ACAT 8
Medical Board of Australia v Al-Naser [2019] ACAT 71 Medical Board of Australia v Al-Naser [2019] ACAT 111
Medical Board of Australia v Brown (Review and Regulation) (Corrected) [2023] VCAT 1075
Medical Board of Australia v Singh [2017] WASAT 33 (S)
Medical Practitioners Board of Victoria v Lai [2009] VSCA 109
Psychology Board of Australia v Asher (Costs) (Review and Regulation) (Corrected) [2020] VCAT 1281

Tribunal:Senior Member Prof T Foley (Presiding Member)
Senior Member Dr R Davies

Date of Orders:  29 January 2024
Date of Reasons for Decision:      29 January 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 2/2022
BETWEEN:
MEDICAL BOARD OF AUSTRALIA
Applicant

AND:
NATHEM AL-NASER
Respondent

TRIBUNAL:Senior Member Prof T Foley
Senior Member Dr R Davies

DATE:29 January 2024

ORDER

The Tribunal orders that:

Pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (ACT) (National Law), the respondent is reprimanded.
Pursuant to section 196(2)(e) of the National Law, the respondent’s registration is cancelled.
Pursuant to section 196(4)(a) of the National Law, the respondent is disqualified from applying for registration for a period of two years from the date of the Tribunal’s order.
Pursuant to section 196(4)(b)(i) of the National Law, the respondent is prohibited from providing, whether as an employee, contractor, manager, or volunteer, any health service as defined in section 5 of the National Law for a period of two years from the date of the Tribunal’s order. For the avoidance of doubt, the prohibition does not extend to managerial duties with respect to the respondent’s medical practices that do not involve the provision of health services to patients of the practices.
Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008:
(a)these reasons, and the reasons in Medical Board of Australia v Al-Naser [2024] ACAT 7 and Medical Board of Australia v Al-Naser (No 2) [2024] ACAT 8 are to be published, with the names of the patients, witnesses (other than the respondent and experts) and third parties anonymized; and
(b)there is no public access to the file of proceedings.
The respondent pay the applicant’s costs of these proceedings on a party/party basis at the Supreme Court of the ACT scale in an amount as agreed or assessed by the Tribunal.
………………………………

Senior Member Prof T Foley
For and on behalf of the Tribunal

REASONS FOR DECISION

In previous proceedings in this matter, the conduct in four grounds of the referral made by the Medical Board of Australia (the applicant or the Board) to the tribunal, alleging disciplinary breaches by Dr Nathem Al-Naser (the respondent), were found to be proved.[1]
[1] Medical Board of Australia v Al-Naser [2024] ACAT 7
In subsequent proceedings in respect of characterisation, the Tribunal found, pursuant to section 196(1)(b)(iii) of the Health Practitioner Regulation National Law (ACT) (National Law),[2] in respect of each of the four grounds in the Application for Disciplinary Proceedings, that the respondent has behaved in a way that constitutes professional misconduct.[3]
[2] Per Health Practitioner Regulation National Law (ACT) Act 2010, s 6, the Health Practitioner Regulation National Law, as scheduled to the Health Practitioner Regulation National Law Act 2009 (Qld) and as modified by schedule 1 to the Health Practitioner Regulation National Law (ACT) Act 2010, applies in the ACT
[3] Medical Board of Australia v Al-Naser (No 2) [2024] ACAT 8
The matter was set down for separate determination as to sanction.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the member who heard the application.

The hearing

The matter in respect of the appropriate sanction was heard on 16 November 2023. The applicant was represented by Ms P Bindon of counsel. The respondent was represented by Mr D Crowe of counsel.
The Tribunal accepted into evidence the victim impact statement of AC, to which the respondent objected, subject to weight.
At the conclusion of the hearing, the Tribunal reserved its decision and indicated it would provide written reasons. These are those reasons.

The relevant law

Section 196 of the National Law provides:
196   Decision by responsible tribunal about registered health practitioner
(1)     After hearing a matter about a registered health practitioner, a responsible tribunal may decide—
(a)the practitioner has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following—
(i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii)the practitioner has behaved in a way that constitutes unprofessional conduct;
(iii)the practitioner has behaved in a way that constitutes professional misconduct;
(iv)the practitioner has an impairment;
(v)the practitioner’s registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner’s health profession information or a document that was false or misleading in a material particular; or
(2)     If a responsible tribunal makes a decision referred to in subsection (1) (b), the tribunal may decide to do one or more of the following—
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner’s registration, including, for example—
(i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or
(ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or
(iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or
(iv)a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or
(v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or
(vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons,
(c)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;
(d)suspend the practitioner’s registration for a specified period;
(e)cancel the practitioner’s registration.
(3)     If the responsible tribunal decides to impose a condition on the practitioner’s registration, the tribunal must also decide a review period for the condition.
(4)     If the tribunal decides to cancel a person’s registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to—
(a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or
(b)prohibit the person, either permanently or for a stated period, from doing either or both of the following—
(i)providing any health service or a specified health service;
(ii)using any title or a specified title.

Further evidence

The applicant tendered the victim impact statement of AC. The respondent objected to the tender and the Tribunal admitted it subject to weight. We allowed the tender as relevant to an assessment of objective seriousness of the proven misconduct, as per the Full Court of the Supreme Court of South Australia’s finding in Fittock v Legal Profession Conduct Commissioner (No 2) that such an assessment includes “the consequences for the client” of that conduct.[4] On this basis, the evidence of effect on AC is a relevant consideration.
[4] [2015] SASCFC 167 at [110]
The respondent tendered a series of references from fellow practitioners, and his professional and managerial staff. These statements were all dated in August 2023 and, as such, do not disclose cognisance of the respondent’s conduct being characterised as professional misconduct.

Submissions

The applicant and respondent each filed written submissions as to sanction and made further oral submissions and responded to the Tribunal’s questions. Much of this was helpful.
The applicant cautioned the Tribunal that there are significant differences between the criteria relevant in determining sanction in the National Law, and those provided for in the Health Practitioner Regulation National Law (NSW) 2009. We accept the clarifications made by the applicant that the considerations for sanction under the Health Practitioner Regulation National Law (NSW) 2009 (NSW Act) detailed by the respondent in paragraphs 8, 9, 11, 15, 16, and 18 are not applicable in the ACT.
The submission that the paramount consideration when exercising its disciplinary powers is the health and safety of the public is not correct.[5] In the ACT, the twin considerations are protection of the public and maintenance of public confidence in the profession.[6]
[5] Respondent’s outline of submissions on sanction dated 6 November 2023 at [8], citing NSW Act s 3A
[6] National Law s 3A
The submission that guidelines which provide restrictions on a practitioner’s practice are to be made “only if it is necessary to ensure health services are provided safely and are of appropriate quality” apply to the respondent is not correct.[7] Section 3A(2)(c) of the National Law does not apply to restrictions on an individual health professional.
[7] Respondent’s outline of submissions on sanction dated 6 November 2023 at [9], citing NSW Act s 3A(2) (emphasis in original)
The submission that “the only way a given restriction can be imposed” on the respondent’s practice is if there is “no other way of ensuring health services are provided safely and are of an appropriate quality” is not a proper reading of section 3A(2)(c) of the National Law.[8] The applicant submits, and we accept, the statement is neither a guiding principle, much less a jurisdictional requirement in the ACT. At its highest, it is a secondary guiding principle to which we have regard.
[8] Respondent’s outline of submissions on sanction dated 6 November 2023 at [11], see especially respondent’s outline of submissions on sanction dated 6 November 2023 at [18]
The submission that “it is erroneous to think the question of public confidence must be considered in each case” (citing the Victorian Court of Appeal in Medical Practitioners Board of Victoria v Lal (Lal)) is not a correct reading of the case law applicable in the ACT.[9] The applicant submits, and we accept, that the question of public confidence is always a consideration in discipline cases. Proceedings in Lal related to the exercise of the immediate action power under section 151(e), where different principles certainly do apply. These proceedings are under section 196(2) and questions of public confidence in the profession remain highly relevant.

Consideration

[9] Respondent’s outline of submissions on sanction dated 6 November 2023 at [15]-[16], citing Medical Practitioners Board of Victoria v Lai [2009] VSCA 109

Given the Tribunal’s determination of professional misconduct under section 196(1)(b), it is open to the Tribunal to impose on the respondent any of the orders in section 196(2). The purpose of such orders is protective, that is to say protective of the public, and not punishment of the practitioner.[10]
[10] See Craig v Medical Practitioners Board [2001] SASC 169 at [41]
Medical Board of Australia v Singh (Singh) provides a useful list of factors the Tribunal should relevantly consider in determining the issue of such orders.[11] Relevantly, the factors important to consider here are:
(a)The need to protect the public against further misconduct by the respondent (specific deterrence).
(b)The need to protect the public, through general deterrence, of other practitioners from similar conduct.
(c)The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions.
(d)The respondent’s disciplinary history.
(e)An assessment of any remorse or insight shown by the respondent.
[11] [2017] WASAT 33 (S) at [30]
A number of these factors are interrelated, but we set out our thinking of the importance of each briefly below.
Specific deterrence
As to specific deterrence, the consideration for the Tribunal is how to sanction the respondent such that the public is protected from his further misconduct. Relevant here is the respondent’s prior disciplinary history, which strongly suggests the findings in this matter were not mere aberrations from his usual proper practice. A sanction which separates him from practice (that is, suspension or cancellation) can certainly have that immediate protective effect but some other means needs to be found to remove the risk of repetition when he returns to practice. We accept the applicant’s contention that the most relevant factor in this regard to the determination of these other means is the respondent’s insight into his behaviour.
General deterrence of other practitioners
Though often cited in criminal sentencing, the effectiveness of general deterrence (deterring other members of the public from similar offending) is of suspect validity in that such sentences often have little likelihood of coming to the attention of the public or of being seen as applicable to one’s own behaviour. But the situation is very different here. It is highly likely that other practitioners will become aware of the respondent’s professional misconduct, its serious characterisation, and the sanctions imposed. That sanction can send a strong message of deterrence to the profession.
Protect the public and maintain public confidence
The medical profession in Australia has an enviable and hard-won reputation for the high standard of care it provides and the high ethical conduct of its members. The findings in this matter can damage that public confidence. We accept the finding in Singh that the best way for this Tribunal to reinforce high professional standards and denounce transgressions is to impose a sanction that will “give an emphatic indication of its disapproval”.[12]
Respondent’s disciplinary history
[12] [2017] WASAT 33 (S) at [30]
The respondent’s disciplinary history is relevant on two counts. Firstly, the respondent has a lengthy and unenviable disciplinary history with sanctions or restrictions imposed by the applicant in its regulatory function or by the tribunal. This is relevant with respect to his specific deterrence as regards those sanctions imposed in the past which seemingly have not been effective in preventing reoccurrence. Like many disciplinary histories, it is difficult to accurately determine its precise details. In 2019 proceedings with respect to the respondent, the tribunal tabulated his then prior history to include five prior completed notifications in addition to the complaint then the subject of those proceedings.[13] That tribunal also identified a notification with respect to Patient A (the ‘circumcision decision’) then the subject of a review of an immediate action decision.[14] However, there were no further substantive proceedings with respect to that matter before the tribunal.
[13] Medical Board of Australia v Al-Naser [2019] ACAT 111 at [21]
[14] Medical Board of Australia v Al-Naser [2019] ACAT 71
In its submissions, the applicant identifies the same five notifications, together with two more recent cautions imposed on the respondent for breach of the gender‑based restrictions outlined below. Though the breaches which gave rise to these cautions do not suggest a deliberate flouting of the restriction protocol, they do raise concern about how effective conditions imposed on the respondent’s practice can be. The five notifications relate to varied conduct breaches not all of a kind similar to the unprofessional conduct proven here. But we accept the applicant’s submission that there are some prior boundary violation breaches and some record-keeping deficiencies which point to a potential higher risk that similar behaviour may reoccur and, more significantly, that prior sanctions have not been effective in changing behaviour.
Secondly the respondent’s disciplinary history is relevant because he has been severely constrained in the scope of his practice by restrictions previously imposed on his registration, either from immediate action decisions with respect to this conduct or in separate proceedings. These restrictions include:
(a)Requirements as to education, relevantly for maintaining proper clinical records, imposed since 4 December 2019 and, as far as we can determine, still in place.
(b)Requirements as to six-monthly auditing relating to poor record-keeping, imposed since 4 December 2019 and still in place.
(c)Requirements as to supervision and education as to prescribing of benzodiazepines, imposed since 17 October 2023 and still in place.
(d)Gender-based restrictions (an immediate action restriction in response to AC’s complaint) that the respondent not have contact with female patients, imposed since 27 May 2019 and still in place.
In totality, these are substantial restrictions which have meant personal and financial imposts on the respondent. Nonetheless, we accept they were essential for the protection of the public and the maintenance of public confidence in the profession. We accept the submission that the imposts may be a factor relevant to the length of any disqualification period.
Remorse or insight shown by the respondent
An assessment of the remorse shown by the respondent is difficult to gauge or to determine whether it is genuine. On the other hand, whether he has insight can more easily be assessed by looking to see whether he accepts the wrongness of his conduct and its adverse effects on AC and LB. The applicant points to written submissions made on behalf of the respondent seeking to minimise the seriousness of his conduct and its effect. The applicant says these are indicative of his own personal lack of insight. The respondent urges us to reject this argument saying those submissions are not his voice but are submissions made on his behalf for forensic purposes. We accept the summation of general principles with respect to disciplinary sanctioning in Singh that it is the practitioner’s professional conduct that attracts any sanction and not other conduct, including his manner of defending the action.[15] However, we cannot ignore that, even when there were findings that the alleged conduct was proven, submissions made on the respondent’s behalf with respect to characterisation seek to downplay the seriousness of that conduct. We accept the submission of the applicant that, as observed in Medical Board of Australia v Brown (Review and Regulation) (Corrected), “the extent to which [the applicant] can claim to have shown insight is limited by his non-admission of his conduct”.[16]
[15] [2017] WASAT 33 (S) at [25]-[26]
[16] [2023] VCAT 1075 at [106]

Additionally, throughout the Board’s investigation, and for much of the preparation for hearing, the applicant denied many of the particulars of the complaint. Specifically, he denied the particulars in Ground 2 that he failed to maintain professional boundaries in his treatment of AC. The Tribunal accepted the truth of the vast majority of those particulars in its findings on breach. It was not until the respondent’s affidavit of 16 February 2022 that there was any concession that his overall clinical management of AC had been poor. In his most recent affidavit of 6 November 2023, in anticipation of the sanction hearing, the respondent records his reflections since reading the Tribunal’s decision of 16 October 2023 on characterisation (it is noteworthy that all his referees had not seen this outcome). He says:
The mistakes I have made in the past cannot be undone, but I am determined to, and the way I conduct myself now is very different to the way I acted before I had time to reflect on the effects of my behaviour towards certain patients.
Determining a sanction that best ensures the respondent does not to repeat “those mistakes” is the challenge for the Tribunal.

Suspension or cancellation and disqualification

A sanction suspending the respondent from practice for a certain period versus cancellation of his registration and disqualifying him from practice for a certain period both meet the aim of removing him from patient care. But their difference is stark when the period of non-practice ends. In the case of suspension, even with the imposition of a series of conditions taking effect post-cancellation, as in the past, the practitioner’s return to practice will be automatic (provided the conditions are met to the satisfaction of the Board). In the case of cancellation, with its explicit understanding that he is currently unfit to practice, the practitioner must, at the end of the disqualification period, satisfy the Board he is now a fit and proper person to resume practice. Both these options go to the removal of risk that the Tribunal is seeking to minimise. If the Tribunal suspends the respondent, the assumption is that it is satisfied that the risk is no longer there at the end, that it has been removed or reduced by the period of non-practice and the conditions set for the return to practice. If the Tribunal cancels and disqualifies the respondent, that assumption is not made. Rather, it will be for the practitioner to positively satisfy the Board that the risk is gone. The applicant makes clear in its submissions that it expects this will be a substantial barrier to re-registration given that it says the respondent has an “inherent character flaw” that poses a risk to future patients. Following our findings as to breach, we cannot make the assumption that the risk of re-offending will be removed after any period of non-practice.

Sanction

Whether the repetition of a reprimand serves any good purpose (given the apparent lack of effect of the imposition of a reprimand or caution on at least three previous occasions) is somewhat mute, but as both parties expound its value, we make an order that the respondent be reprimanded pursuant to section 196(2)(a).
We are satisfied, for the reasons outlined above, that the period of the respondent’s removal from practice be one of cancellation not suspension. The respondent’s registration is therefore cancelled pursuant to section 196(2)(e).
We are satisfied, for the reasons outlined above, that the period of the respondent’s removal from practice needs to be a substantial one. In setting the period, we have taken into account the practice restrictions the respondent has been subject to for some years, as outlined above. The respondent is disqualified from applying for registration as a registered medical practitioner for a period of two years from the date of this order, pursuant to section 196(4)(a).
The parties have agreed on the terms of an order with respect to prohibiting the respondent practicing in a different guise and we accept these terms. The respondent is prohibited from providing, whether as an employee, contractor, manager, or volunteer, any health service as defined in section 5 of the National Law for a period of two years from the date of this order, pursuant to section 196(4)(b)(i). For the avoidance of doubt, the prohibition does not extend to managerial duties with respect to the respondent’s medical practices that do not involve the provision of health services to patients of the practices.

Costs

The respondent cites Psychology Board of Australia v Asher (Costs) (Review and Regulation) (Corrected) to the effect that there is no usual order as to costs in medical discipline matters, nor any guidance in the National Law.[17] Though, as the applicant correctly contends, it has been fully successful in that all four grounds alleged have been proven and found to constitute professional misconduct. The respondent made the point as to costs that the allegation that the breast examination conducted on LB was inconsistent with standard medical practice in 2004 was not found by the Tribunal. Nonetheless, we found that, overall, the respondent’s clinical performance in conducting that examination was deficient. It is our view that the investigation of what was standard medical practice in 2004 was a reasonably contested issue and we see no basis for an adjustment of the applicant’s costs merely because the view expressed by its expert was not favoured. Given this, we are satisfied that it is appropriate to make an order indemnifying the applicant for the costs of meeting its statutory obligation to bring these proceedings before the Tribunal. Section 195 of the National Law gives the Tribunal wide discretion as to an award of costs and we order the respondent pay the applicant’s costs as agreed or assessed on the ACT Supreme Court scale.

Publication

[17] [2020] VCAT 1281 at [33]-[37]

It is important for the purposes of general deterrence and the maintenance of public confidence in the medical profession that these reasons for decision (and those of the two prior proceedings as to breach and characterisation) are publicly available. However, it is important to protect the privacy of AC and LB with respect to what are very personal matters. As such, we make orders under section 39 of the ACT Civil and Administrative Tribunal Act2008 prohibiting publication of their identifying details.

Decision

The Tribunal orders that:
(a)Pursuant to section 196(2)(a) of the Health Practitioner Regulation National Law (ACT) (National Law), the respondent is reprimanded.
(b)Pursuant to section 196(2)(e) of the National Law, the respondent’s registration is cancelled.
(c)Pursuant to section 196(4)(a) of the National Law, the respondent is disqualified from applying for registration for a period of two years from the date of the Tribunal’s order.
(d)Pursuant to section 196(4)(b)(i) of the National Law, the respondent is prohibited from providing, whether as an employee, contractor, manager, or volunteer, any health service as defined in section 5 of the National Law for a period of two years from the date of the Tribunal’s order. For the avoidance of doubt, the prohibition does not extend to managerial duties with respect to the respondent’s medical practices that do not involve the provision of health services to patients of the practices.
(e)Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008:
(i) these reasons, and the reasons in xx and xx are to be published, with the names of the patients, witnesses (other than the respondent and experts) and third parties anonymized; and
(ii) there is no public access to the file of proceedings.
(f)The respondent pay the applicant’s costs of these proceedings on a party/party basis at the Supreme Court of the ACT scale in an amount as agreed or assessed by the Tribunal.
……………………………

Senior Member Prof T Foley

For and on behalf of the Tribunal

Date(s) of hearing:	16 November 2023
Counsel for the Applicant:	Ms P Bindon
Solicitors for the Applicant:	Mr T Ellison, Australian Government Solicitor
Counsel for the Respondent:	Mr D Crowe
Solicitors for the Respondent:	Ms A Li, HWL Ebsworth