Medical Board of Australia v Helmy (No. 2) (Occupational Discipline)
[2018] ACAT 19
•24 January 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MEDICAL BOARD OF AUSTRALIA v HELMY (No. 2) (Occupational Discipline) [2018] ACAT 19
OR 6/2017
Catchwords: OCCUPATIONAL DISCIPLINE – medical practitioner – unprofessional conduct – appropriate orders
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 65, 66, 67
Health Practitioner Regulation National Law (ACT) ss 3, 196, 225
Cases cited:Craig v The Medical Board of South Australia [2001] SASC 169
Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31
Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13
Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Helmy v Medical Board of Australia [2016] ACAT 97
Medical Board of Australia vHelmy [2017] ACAT 85
Medical Board v Tausif [2015] ACAT 4
NSW Bar Association v Evatt (1968) 117 CLR 177
Psychology Board of Australia v Sullivan [2017] ACAT 104
List of
Texts/Papers cited: Professor Ron Paterson, Independent Review of the use of chaperones to protect patients in Australia, February 2017
Tribunal: Senior Member B Meagher SC
Member R DaviesDate of Orders: 24 January 2018
Date of Reasons for Decision: 2 March 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 6/2017
BETWEEN:
MEDICAL BOARD OF AUSTRALIA
Applicant
AND:
DR MOHAMED HELMY
Respondent
TRIBUNAL: Senior Member B Meagher SC
Member Dr R Davies
DATE:24 January 2018
ORDER
The Tribunal orders that:
1.Orders 12, 13 and 14 made by Presidential Member G McCarthy on 24 April 2017 continue to apply in the proceeding, namely:
(a) The hearing shall take place in private (order 12);
(b) There shall be no public access to the Tribunal file, the transcript or the audio recordings of the hearing or any earlier directions or other hearings in the proceeding (order 13);
(c) Publication of the names or any identifying details of the patients or complainants and/or the medical records of the patients or complainants referred to in the application is prohibited,
with the exception for the purpose of the hearing before the Tribunal on 23 January 2018 that Mrs Helmy be permitted to attend the hearing.
2.The conditions (namely conditions 1-9) imposed by President M-T Daniel and Member Soo on 19 August 2016 in Helmy v Medical Board of Australia [ACAT] 97 (in proceeding OR 5/2016) be removed by the Medical Board of Australia pursuant to s 66(2)(g)(ii) of the ACT Civil and Administrative Tribunal Act 2008.
3.The orders sought by the Medical Board of Australia in the Amended Minute of Order be made, but with the amendments as agreed between the parties at the hearing on 23 January 2018, so that the orders of the Tribunal are as follows:
REPRIMAND
(i)That the practitioner be reprimanded.
CONDITIONS
(ii)That the practitioner be subject to the following conditions on his registration:
Gender restriction
(1)The practitioner must not practise as a medical practitioner until a practice location(s) is approved for the practitioner.
(2)After approval of a practice location(s) the practitioner must not have any contact with female patients or caregivers, from the date of the imposition of the conditions until six months after the practitioner has completed the education required in (10)-(14) below, and must only practise at approved practice location(s).
For the purposes of this condition, the following definitions apply:
‘Caregivers’ are defined as any female attending with a patient when the female is the only parent/guardian/caregiver attending with the patient.
‘Practise’ is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a medical practitioner in their profession. It is not restricted to the provision of direct clinical care and includes using the knowledge and skills of a medical practitioner in a direct non-clinical relationship with a client, working in management, administration, education, research, advisory, regulatory or policy development roles and any other roles that impact on safe, effective delivery of services in the medical profession.
‘Practice location’ means any location where the practitioner practises the profession including any place where the practitioner:
(a) is self-employed
(b) shares premises with other registered health practitioners
(c) is engaged by one or more entities under a contract of employment, contract for services or any other arrangement or agreement
(d) provides services for or on the behalf of one or more entities, whether in an honorary capacity, as a volunteer or otherwise, whether or not the practitioner receives payment from an entity for the services, or
(e) provides professional services at the residential premises of a patient.
‘Patient’ is defined as any individual awaiting, requiring, or receiving the professional services of the practitioner or a registered health practitioner within the same place of practice as the practitioner.
‘Contact with a patient’ includes consultation, interview, examination, assessment, prescribing for, advising, or otherwise treating a patient, whether it is in person or on a communication device.
‘Male’ is defined as any individual whose biological sex is that of a male, as well as all individuals whose gender identity or gender expression is that of a male.
‘Female’ is defined as any individual whose biological sex is that of a female, as well as all individuals whose gender identity or gender expression is that of a female
(3)The practitioner must comply with the Gender-based restriction protocol in force at the date these conditions are imposed and then as amended from time to time.
(4)Within 14 days of notice of these conditions being imposed the practitioner is to provide acknowledgement, on the approved form (GBR-1)) that:
they have read and understood the Gender-based restriction protocol
they are aware that they are not permitted to practise until such time as practice locations are approved
they understand the definition of ‘caregivers’, ‘patient’, ’practise’, ‘practice location’, ‘male’, ‘female’, and ‘contact’ as detailed in this condition, and
they are aware of the actions AHPRA may take for the purposes of monitoring compliance with the gender-based restriction.
Note:the review period for this condition be 18 months, or six months after the practitioner has completed the education required in (10)-(14) below, whichever is the earliest.
Supervised practice
(5)The Practitioner must be supervised by another registered health practitioner (the supervisor) when practising as a medical practitioner for a period of 24 months from the date of imposition of the conditions.
For the purposes of this condition, ‘supervised’ is defined as:
The Practitioner must consult with the supervisor who is always physically present in the workplace and available to observe and discuss the management of patients and/or performance of the Practitioner when necessary and otherwise at monthly intervals.
(6)Within 30 days of the notice of imposition of this condition, the Practitioner must, on the approved form (HPN10), nominate a primary supervisor and at least one alternate supervisor to be approved by the Board. The Practitioner must ensure that each nomination is accompanied by an acknowledgement, on the approved form (HPNA10), from each nominated supervisor that they are willing to undertake the role of supervisor and are aware that AHPRA will seek reports from them.
(7)In the event that no approved supervisor is willing or able to provide the supervision required the Practitioner must cease practice immediately and must not resume practice until a new supervisor has been nominated by the Practitioner and approved by the Board.
(8)Within 14 days of the notice of the imposition of these conditions, the Practitioner is to provide to AHPRA, on the approved form (HP10) acknowledgement that AHPRA may:
a.obtain information from relevant authorities (such as but not limited to Medicare)
b.obtain information and/or a report from the senior person at each place of place of practice on a monthly basis, and
c.obtain a report from the approved supervisor on a monthly basis to report on the areas identified requiring further education.
(9)Within 14 days of the notice of the imposition of these conditions, the Practitioner is to provide to AHPRA, on the approved form (HPS10), acknowledgement from the senior person at each place of practice that AHPRA may seek reports from them.
Note:the review period for this condition be 24 months.
Undertake education
(10)The Practitioner must undertake and successfully complete a program of education, approved by the Medical Board of Australia and including a reflective practice report, in relation to ethical behaviour and cultural awareness with a specific focus on the avoidance of boundary violations with female patients.
(11)Within 30 days of the notice of the imposition of these conditions, the Practitioner must make a nomination to undertake either one on one education or a formal education course (the education) as follows:
Formal education
On the approved form (HPN24), nominate for approval by the Board an education course, assessment or program (the education) addressing the topics required. The Practitioner must ensure:
(a) The nomination includes a copy of the curriculum of the education.
One on one education
On the approved form (HPN11):
b.nominate a person(s) to be approved by the Board to act as educator, and
c.provide acknowledgement that AHPRA will obtain a report from the approved educator at the conclusion of the education.
The Practitioner must ensure that the nomination of an educator is accompanied by acknowledgement, on the approved form (HPNA11), from the nominated educator and by an education plan outlining the form the education will take and how the topics of the education will be addressed.
(12)The education should consist of the equivalent of a subject or course at a tertiary level completed over a minimum of a three month period.
(13)The Practitioner must complete the education within 12 months of the notice of the Board's approval of the education.
(14)Within 30 days of the completion of the education, the Practitioner must to provide to AHPRA:
a.Evidence of successful completion of the education.
b.A reflective practice report demonstrating, to the satisfaction of the Board, that the Practitioner has reflected on the issues that gave rise to this condition and how the Practitioner has incorporated the lessons learnt in the education into the Practitioner's practice.
c.Evidence of having undertaken and successfully completed the formal assessment component of the education.
Note:the review period for this condition be 12 months, or on successful completion of the education required in (10)-(14) above, whichever is the earliest.
Other
(15)Within 14 days notice of the imposition of these conditions the Practitioner 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 (the senior person) at each a current place of practice. In providing this form, the practitioner acknowledges that:
a.AHPRA will contact the senior person and provide them with a copy of the conditions on the Practitioners registration or confirm that the senior person has received a copy of the conditions from the Practitioner, and
b.The Practitioner will be required to provide the same form:
i. within seven days of the commencement of practice at each and every subsequent place of practice, and
ii. within seven days of each and every notice of any subsequent alteration of these conditions.
(16)All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.
4.The parties are to provide an agreed Minute of Order to the Tribunal by 5.00pm on 24 January 2018 reflecting the orders made at the hearing on 23 January 2018.
The Tribunal notes
The reasons of the Tribunal for its decision in relation to the appropriate orders will be published in due course.
…………Signed……………..
Senior Member B Meagher SC
REASONS FOR DECISION
1.On 19 October 2017, the Tribunal found that the respondent had behaved in a manner that amounted to unprofessional conduct.[1] On 23 January 2018 a hearing was conducted to ascertain what orders should be made by the Tribunal under section 196(2) of the National Law.[2]
[1] Medical Board of Australia vHelmy [2017] ACAT 85
[2] Health Practitioner Regulation National Law (ACT)
2.Section 196(2) and (3) provide:
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 that registered the practitioner 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.
3.Reference was made in submissions by the respondent to sections 65 to 67 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) which provide:
65 Considerations before making orders on application for occupational discipline
(1) This section applies if the tribunal is considering an application for occupational discipline against a person (the subject person).
(2) The tribunal may make an order for occupational discipline in relation to the subject person if satisfied that a ground for occupational discipline exists against the person.
(3) In considering what occupational discipline to use against the subject person, the tribunal must consider the following:
(a)whether the person took reasonable steps to avoid the action (the contravention) that is the ground for occupational discipline;
(b)whether occupational discipline has previously been used against the person for a similar act;
(c)whether the person has taken steps to mitigate the effect of the contravention;
(d)the impact of the contravention on any other person;
(e)the likelihood that the person will act in a way that is a ground for occupational discipline in the future;
(f)whether the entity bringing the application has applied for particular occupational discipline to be used and, if so, the kind of occupational discipline applied for.
Example—par (c)
the person has changed a method of work or given a direction to staff to prevent further contraventions
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(4) The tribunal may consider any other relevant matter.
66 Orders for occupational discipline
(1) This section applies if the tribunal may make an order for occupational discipline in relation to the subject person.
Note Section 65 sets out when the tribunal may make an order.
(2) The tribunal may make 1 or more of the following orders for occupational discipline in relation to the subject person:
(a)reprimand the person;
(b)require the person to give a written undertaking;
(c)require the person to complete a stated course of training to the satisfaction of the regulatory body or another stated person;
(d)give the person a direction;
NoteFor directions that may be given, see s 67.
(e)cancel or suspend the person’s licence or registration;
(f)disqualify the person from applying for a licence, or registration, of a stated kind for a stated period or until a stated thing happens;
(g)if a regulatory body may put conditions on the person’s licence or registration under an authorising law—direct the regulatory body to—
(i)put a condition on the person’s licence or registration; or
(ii)remove or amend a condition put on the person’s licence or registration;
(h)require the person to pay to the Territory or someone else a stated amount (not more than any amount prescribed by regulation);
(i)if the person gained financial advantage from the action that is the ground for occupational discipline—require the person to pay to the Territory an amount assessed as the amount of financial advantage gained by the person.
(3) If the ACAT cancels a person’s licence or registration, the ACAT may disqualify the person from applying for a licence or registration for a stated period or indefinitely.
(4) This section does not limit the orders the tribunal may make.
(5) In this section:
regulatory body means the entity responsible for issuing licences of the kind held by the subject person or for registering people in the occupation or profession in which the subject person is registered.
67 Kinds of directions for licensed and registered people
(1) The tribunal may give a direction under section 66 (2) (d) that the tribunal considers appropriate in a particular case.
(2) The directions the tribunal may give include a direction to comply with a requirement under an Act, a licence or registration, or to place a condition on a licence or registration.
(3)A direction must state the period within which the subject person must comply with the direction.
(4) The tribunal may, on application, extend the period for compliance stated in a direction either before or after the end of the stated period.
(5) The tribunal must not give a direction under section 66 (2) (d) that would result in inconsistency with an express requirement placed on the subject person’s licence or registration under the Act under which the person is licensed or registered.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
4.No further evidence was adduced by either party and the parties relied on the evidence adduced in the hearing in August 2017. There was no additional evidence from the respondent about his insight into the offending conduct or any particular hardship – other than the obvious – that might impact on him should the orders sought by the Board be made.
5.At the commencement of the hearing, attention was directed to the orders made by Presidential Member McCarthy on 24 April 2017 and in particular orders 12 to 14. They were to the effect that the hearing be in private and that there be no public access to the Tribunal file, the transcript, or the audio recordings of the hearing or any earlier directions or other hearings in the proceeding. In addition publication of the names or any identifying details of the patients or complainants and/or the medical records of the patients or complainants referred to in the proceedings was prohibited. In case there was any doubt that this still applied we made an order that these orders apply to this hearing and to the proceedings generally except that Mrs Helmy, the wife of the respondent was permitted to attend the hearing.
6.It was requested by both parties that once the orders to be made here were made, the conditions imposed by Presidential Member Daniel on 19 August 2016 in Helmy v the Medical Board [2016] ACAT 97 be removed under section 66(2)(g) of the ACAT Act. This was appropriate as these orders supersede the prior orders that were made on an appeal against an immediate action decision by the Board. Accordingly such an order was made.
7.The Board submitted that there should be orders that:
(1)The respondent be reprimanded[3] and for
(2)The imposition of conditions on the respondent's registration, namely:
(a) education of ethical behaviour and cultural awareness with a specific focus on the avoidance of boundary violations with female patients; and
(b) supervision of his practice; and
(c) prohibiting the respondent from treating female patients or patients under the age of 18 years attending with a female/guardian carer only.[4]
[3] In accordance with section 196(2)(a) of the National Law
[4] In accordance with section 196(2)(b)(i), (ii) and (iii) of the National Law
8.As was made clear by Ms Musgrove, counsel for the applicant Board, condition (c) was not intended to suggest any threat to a child but rather was designed to protect a female who was in effect unaccompanied by reason of the age of the patient she was attending with. During the course of the hearing an agreement was reached between the parties that omitted the reference to children and was made wider.
9.There was no opposition to any of the orders otherwise except in respect of the width of a definition of patient for the purposes of the gender prohibition and the proposed length of the gender prohibition. The definition was amended and that satisfied the respondent.
10.The applicant in its submissions provided a significant amount of authority setting out the considerations that must inform the Tribunal in making such orders. These principles were not in dispute. We agree with them and they are as follows.
Principles
11.Section 3 of the National Law provides the objectives and guiding principles of the national registration and accreditation scheme to be applied when determining an application under the National Law to (relevantly) include:
(a)to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered (section 3(2)(a)); and
(b)restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality (section 3(3)(c)).
12.At common law the principles are set out in Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31 at [88][5]; where they are summarised as follows:
[5] Applied in Medical Board v Tausif [2015] ACAT 4 at [55] and Health Care Complaints Commission v Jamieson [2014] NSWCATOD 56
In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations:
(1) In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law.
(2) 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 - Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637,
(3) The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
(4) Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
(5) Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102; (2009) 74 NSWLR 523 at [83].
The Board’s position and our conclusions where the orders sought are unopposed
13.In its submissions, reference was made to the Board’s meeting on 15 November 2017. The members were identified. They are all doctors and appear to be locally based. It was stated that the ‘penalty’[6] is not punitive but protective and to assist the practitioner to practise as a medical practitioner at the appropriate and required standard.
[6] This has been described as a misnomer by the respondent’s counsel, Ms Oldfield and she preferred to speak of outcomes. She is right in so far as the orders are protective and not punitive but the expression ‘penalty’ is not used here to say otherwise
14.A reprimand must be recorded on the National Register.[7] It is the Board’s position, which we accept that “The issuing of the reprimand is a formal statement of the Tribunal's disapproval of the conduct engaged in by the practitioner, and sends a message to the broader profession and public that such conduct is unacceptable”[8]
[7] Section 225(j) of the National Law
[8] Psychology Board of Australia v Sullivan [2017] ACAT 104 at [95]
15.There was no contrary argument by the respondent. The conduct in this case requires such a reprimand in our view and we agree that it is an appropriate order.
16.The Board also submitted that the imposition of conditions was necessary as it offers a safe and suitable means by which the practitioner could resume practise where it will provide for the safety of the public and in particular to prospective female patients. The respondent did not argue that there should not be such conditions and accepted that it was appropriate to impose conditions providing for supervision, education and a gender restriction for a period. The only dissent related to the length of the gender restriction and the extension to females attending with a patient under 18. We agree in general that there should be such conditions for the reasons advanced. We will deal with the respondent’s two issues later.
17.In respect of the nature of the conditions to be imposed, the Board had commissioned a review of chaperone conditions and we were provided with a paper[9] that concluded they were unhelpful for various reasons. We accept that conclusion. No party sought to contradict it. For that reason the gender based restriction sought was designed to protect unaccompanied females.
[9] Independent Review of the use of chaperones to protect patients in Australia February 2017 by Professor Ron Paterson
18.In Helmy v Medical Board of Australia [2016] ACAT 97 Presidential Member Daniel had concluded that such a condition was unduly restrictive and instead imposed conditions requiring a chaperone.[10] That had the unintended effect of preventing the doctor from practising at all and he has not practised since that order was made. This information was provided in uncontroversial evidence in the substantive hearing. In the absence of a practical alternative, it was submitted that a time limited gender based restriction, with appropriate education and supervision would achieve the purpose of the National Law and protect the public. This was consistent with the opinion of Professor Paterson and we accept that
[10] This was prior to the paper referred to above
19.In Craig v The Medical Board of South Australia [2001] SASC 169 Doyle CJ at [42]-[43] referred to NSW Bar Association v Evatt (1968) 117 CLR 177. In that passage the High Court emphasised that the power of the Court to discipline a barrister was entirely protective and there was no element of punishment involved, even though it may have such an effect. Doyle CJ then observed that “sometimes the protection of the public will require the making of an order with a greater adverse effect on the practitioner than might be warranted if punishment alone were the relevant consideration.” We agree with this.
20.In respect of inappropriate conduct with female patients the Board referred to Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630. The Board acknowledged that the facts of that case were far more serious than was found in in this case but relied on the following statement at 638:
Female patients entrust themselves to doctors, male and female, for medical examination and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded to them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe.
21.Whilst such a statement is obvious, it needs to be emphasised in considering what to do when such boundaries are breached. In the substantive hearing we were provided with the relevant practice standards and Code of Conduct. They make very clear what is expected. There can be no doubt that considerable vigilance is required to ensure that where such boundaries have been transgressed any continued practise by the doctor is accompanied by sufficient safeguards to reassure potential patients and the public at large that they are safe.
22.The Board correctly pointed out that in this case, whilst none of the witnesses came forward to give evidence, the Tribunal was satisfied that three women, unknown to each other, all felt that they had been inappropriately dealt with sexually and were sufficiently discomfited to inform the police and AHPRA. The Board also referred to the findings by the Tribunal that whatever the actual intention of the practitioner, the conduct admitted by the doctor including hugging, handholding and kissing was clearly contrary to the Code of Conduct and, whatever the doctors intention, amounted to sexual and intimate conduct that was clearly inappropriate. In addition it should be reiterated that we had observed that whilst we were not satisfied to the requisite standard that the doctor has an intention of sexual gratification, at best he had been reckless in repeating the conduct after an earlier complaint.
23.In respect of the need for education, the Board submitted that there was no evidence that the respondent had had any education about the boundary violation issues.[11] It was submitted that he had shown little insight in trying to justify the hug and kiss when giving evidence. This overlooks the fact that he was being accused of far worse conduct and whilst the justification was no excuse for breaching boundaries, it was not insignificant in resisting the more serious allegations. However, the doctor did not give evidence at the ‘penalty’ hearing. Bearing in mind our finding about his recklessness, we accept that based on the evidence available the respondent does not have such insight and that there is a need for the education asked for. This was not opposed.
[11] He had completed education about drugs of addiction in compliance with an earlier Board decision relating to patient JB
24.In respect of supervision, the Board referred to Psychology Board of Australia v Sullivan [2017] ACAT 104 at [97] and [100]. There at [97] supervision was seen as assisting the practitioner to practise safely while undertaking the formal course of study of ethics, developing an understanding on a personal level, and embedding changes to their practice to allow the practitioner to practise at the required standard into the future. The Board also referred to a similar order in Health Care Complaints Commission v Dr Saeid Saedlounia [2013] NSWMT 13 at [133]. The Board also referred to the breaches of an undertaking not to treat patients with a mental illness in respect of patient SV. The supervision condition was not opposed and we agree that it is appropriate.
25.The Board did not seek a costs order.
The respondent’s position
26.The respondent suggested that we might make orders under section 66 of the ACAT Act. Whilst that may be available if needed, the jurisdiction relied on by the Board was the power to make orders under section 198. It seems to us that the primary source of power is the Act that provides the jurisdiction and whilst the orders allowed by the ACAT Act could be relied on if needed, they are not. The respondent agreed with the principles to be applied.
27.The respondent argued that the orders must be supported by and referable to objective findings to ensure they do not become punitive or excessive. We agree that any orders must be based on findings we have made and meet the protective objects of the legislation as described above. However the outcome may, if required to ensure the protection of the public, have a serious adverse effect on the practitioner as we have described in [15] above.
28.The Practitioner does not oppose a reprimand.
29.The practitioner opposes the condition that the gender restriction extends to a female accompanying a child under 18. As it submits, there was no such complaint here. They all related to unaccompanied adult females. The condition implies that the practitioner may be unsafe with children. We agree with these submissions. As has been mentioned, the Board had not intended to widen the restriction due to any concern about safety of children but rather had in mind the risk to a female in the surgery where the only other person present might be a babe in arms. With encouragement from the Tribunal the parties conferred and found a way to delete this requirement whilst protecting such a female where the patient she was accompanying alone was in her care. Whilst this might be wider than would always be necessary, it covers a situation where there is any vulnerability because the patient was a person with the female as a guardian. In any event, the parties agreed with orders that dealt with this issue and the orders reflect this. We are satisfied that this is appropriate.
30.In the end the only issue that remained contentious was the length of the gender restriction. It was expressed to be operative until a review by the Board which was to be six months after the practitioner had completed the education requirement. The reference to review is defined by the National Law. It prevents the practitioner seeking to remove the condition before the allotted time but once that is done he may then seek to have it removed and if he has done what the conditions require it would have to be lifted barring any new complaint. This is explained by the definition in section 5 namely:
“review period”, for a condition or undertaking, means the period during which the condition may not be changed or removed, or the undertaking may not be changed or revoked, under section 125, 126 or 127
31.The education condition had a review period as follows
Note: the review period for this condition be 12 months, or on successful completion of the education required in (10) -(14) above, whichever is the earliest.
32.The education required needed to be of at least three months duration. The practitioner might complete his education inside the 12-month period and the review might thus be earlier.[12]
[12] the initial draft had said 18 months, but this was changed to 12 after the Board had read the submissions of the respondent
33.The review for the gender restriction was as follows:
Note: the review period for this condition be 18 months, or six months after the practitioner has completed the education required in (10) -(14) below, whichever is the earliest.
34.The longest time for the condition to remain was this 18 months but it could be less if the education requirement was completed earlier.
35.The written submissions of the practitioner were directed at an earlier draft where the effect would be that the review would be after 24 months. This coincides with the supervision condition which is for 24 months. However, in response to this the time was changed by the Board to be as set out in the orders we made.
36.The Board pointed out, with the changes now made, that the real time may be much less than 18 months.
37.The practitioner maintained opposition to the period being six months longer than the education period.
Oral arguments about the extra six months
38.The Board contended that it:
gives a level of oversight to ensure that the education is translating in to his practice in an effective and identifiable manner. So it just gives that level of review and support, but ultimately it is a matter for the respondent as to how quickly that review period is actually falling away because he has completed the education.
39.The practitioner argued:
The issue that we have with the concept of a review period, is…, there is some sort of a condition, an educational condition, which is then satisfied and then these orders seem to put in place a period beyond that satisfaction, during which Dr Helmy is prohibited from making an application to have that actually acknowledged and the condition removed or completed in the sense of an education. It is not really a review, it is a period of prohibition which, in light of the education, the gender based prohibition and the supervision orders taken cumulatively, we say to add in an extra six months, where we acknowledge you have satisfied all of the requirements, but we are just going to make you wait, it is a little bit of overkill. It is beyond what is required to protect the public because you have got the gender prohibition, you have got the supervision. If it is a Board approved education course and it is satisfied, he should be able to have the condition lifted, not have to wait an extra six months. There is no justification for why that extra time period is in there, if in fact it is a period where, under the Act, he is prohibited from making an application, as opposed to an administrative elbow room provision that allows for his application to be made, to have the condition removed and considered by the Board, and then approved.
40.It was explained by the Board that the education would cease on the review that would predate the gender restriction condition and that each condition had a separate review period. It was further said by the Board “that is to give Dr Helmy an opportunity to put in to practice what he has – well, the education component and then you have got a six month buffer, with that same six month review period for that condition.”
41.The practitioner argued that there was no need for the further buffer. As his counsel put it:
that if you have satisfied the education and the supervision remains in place in any event, why – what is the actual need for that buffer, as you call it. We simply say the buffer is something that we say is not justified in light of the combination of all of the other conditions that are in place… that there was no utility in preventing the practitioner from treating females when the education was completed.
42.The Board’s counsel further explained its position as follows:
Dr Helmy hasn’t been practising for quite some period of time. And in my submission, the six month extra gender restriction, over and above the educational requirement but linked to the completion of the education requirement, would give Dr Helmy the opportunity to re-establish his practice and to do so in an environment that isn’t actually going to cause him any potential issues. So he can focus on building his practice again, because he hasn’t been practising for an extended period of time. So he is starting his practice again; he’s got the education and that six months also gives him a period of reflection and a period of time to actually put in to practice what he has learnt in the education, before he then is exposed to the female patients after that six month period. So it is not only protecting the public but it is also presenting Dr Helmy with an opportunity to get very good practices in place, in his practice, so that he can meet the obligations of the guidelines and the requirement, and meet the expectations of the public with his practice, once he does start seeing the female patients again.
43.The practitioner argued that:
…that the issue of allowing a period of time for Dr Helmy to consolidate the education that he has had on boundary violations, is not one that I understand is going to be easily fulfilled, if in fact he is prohibited from seeing any females. There is no issue seeing male patients. So I find it difficult to conceive how he can consolidate the specific learning that is required of him, which is about female boundaries when he is not allowed to see any female patients. So it is sort of when you put that in to a context, it is an arbitrary period of prohibition. Supervised practice allows him to do the consolidation that my friend is looking for.
44.The Board adopted a suggestion made by the Tribunal that “the difference between the first 12 months[13] and the next six months is that after the first 12 months[14] he has had the education and so the relationship between the supervisor and Dr Helmy is informed by that having happened and there is a capacity for the supervisor to reinforce the education over that period before then he is then permitted to see female patients.” It also submitted that theoretically the Doctor may have completed the education requirement before having established a place of practice and then otherwise start seeing female patients without having previously practised at all. Its counsel summarised this by saying:
So it gives that period of settling in and it also just gives that protection of the public, the female public for a period of time, whilst that supervisory relationship is being embedded and also tested to a degree, potentially, because it may be – well, I will leave it at that. But the supervisory relationship is actually going to need to be well in place for the supervisor to have the confidence that Dr Helmy can start seeing females again and he is ready to start dealing with that. And that six months is just a bit of a grace period to build up that relationship as well and to protect the female patients.
[13] or the lesser period contemplated by the education condition
[14] or such lesser period
Consideration
45.Given the apprehension that the findings, that we have made, engender, we would not have regarded the earlier blanket embargo for 24 months as being excessive. There was no direct evidence of hardship that might be caused by the condition but it is reasonable to infer that it would reduce the capacity of the practitioner in getting established again and reduce a potential source of income by preventing treatment of approximately 50% of the population. We are conscious of not preventing the practitioner from being able to practise at all bearing in mind the impact of the earlier chaperone conditions. We have no evidence that a condition as suggested by the Board will have that effect. In regard to the six month period between the end of the education period and the removal of the gender restriction, we accept the submission of the Board that there ought be beneficial effects of having the supervisor continue to reinforce the lessons learned in the education course and giving time to the practitioner to consolidate his learning and his practise before then lifting the embargo. The time periods in question are not intrinsically oppressive. It will mean that the practitioner might have to wait for at most about 18 months before he can treat females unaccompanied. Given the real risk to females revealed by our findings, we are of the view that this is not an excessive period and is necessary to protect the public. The combination of education, continuous supervision before and after the gender restriction, and the time away from treating females at all should be an effective means of providing for public safety and providing support for the practitioner to establish a practice armed with the guidance and learning provided by the supervisor and the education.
46.During the hearing we thanked counsel for their collaborative approach and assistance with the references to principle and we formally acknowledge that again here,
47.For these reasons we made the orders on 23 January 2018
………………………………..
Senior Member B Meagher SC
Delivered for and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
OR 6/2017
PARTIES, APPLICANT:
Medical Board of Australia
PARTIES, RESPONDENT:
Dr Mohamed Helmy
COUNSEL APPEARING, APPLICANT
Ms Musgrove
COUNSEL APPEARING, RESPONDENT
Ms Oldfield
SOLICITORS FOR APPLICANT
ACT Government Solicitor
SOLICITORS FOR RESPONDENT
Ken Cush and Associates
TRIBUNAL MEMBERS:
Senior Member B Meagher SC, Member R Davies
DATES OF HEARING:
23 January 2018
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