Medical Board of Australia v Tausif - [2015] ACAT 4

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEDICAL BOARD OF AUSTRALIA v TAUSIF
(Occupational Discipline) [2015] ACAT 4
OR 13/45, OR 14/39 and OR 14/44
Catchwords: OCCUPATIONAL DISCIPLINE – Health Practitioner – General Practitioner – prescribing controlled medicines without approval and inappropriately – inadequate record keeping – failing to make or record diagnosis – failing to provide adequate treatment plans – professional misconduct – contribution of lack of supervision and mentorship in ‘independent contractor’ practice – registration on conditions requiring supervision, restriction on prescribing controlled mediations, remedial courses, audit of clinical notes and further education

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 38(1), 39, 39(1), 42
Commonwealth of Australia Constitution Act s 71

Health Professionals Act 2004 s 18
Health Practitioner Regulation National Law (ACT) ss 3(2)(a), 5, 156(1)(a), 157, 160, 178(2)(c), 193, 196
Human Rights Act 2004 ss 16(2), 21
Medicines, Poisons and Therapeutics Goods Act 2008

Cases cited:               Russell v Russell (1976) 134 CLR 495
  R v Jovanovic [2014] ACTSC 98
  Scott v Scott [1913] AC 417
  Dickason v Dickason (1913) 17 CLR 50

London Regional Transport v Mayor of London [2001] EWCA (civ)1491
McPherson v McPherson [1936] AC 177
HCCC v Dr Della Bruna [2014] NSWCATOD 31
HCCC v Litchfield (1997) 41 NSWLR 630
Prakash v HCCC [2006] NSWCA 153

Texts cited:European Convention for the Protection of Human Rights and Fundamental Freedoms Article 10
Good Medical Practice: A Code of Conduct for Doctors in Australia 2.1.1, 2.1.2, 2.2.5, 3.3.2, 8.4.1, 8.4.4, 8.4.5, 2.2.3, 8.4.1, 8.4.4, 8.4.5, 2.1.1, 2.1.2, 2.2.3, 2.2.6, 3.3.2, 3.3.3, 3.3.4, 8.4.1, 8.4.4, 8.4.5
RACGP’s Standards for General Practices (4th ed.)

Tribunal: Professor T. Faunce – Presiding Member

Dr R. Davies – Member
Mr B. Pearcy – Member

Date of Orders: 16 January 2015
Date of Reasons for Decision: 16 January 2015

AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL )
NO:OR 13/45, OR 14/39 and OR 14/44
RE:THE MEDICAL BOARD OF AUSTRALIA
Applicant

AND:DR SYEDA TAUSIF
Respondent

TRIBUNAL: Professor T. Faunce – Presiding Member

Dr R. Davies – Member
Mr B. Pearcy – Member

DATE: 16 January 2015

ORDER

The Tribunal Orders that:

The respondent be registered as a health practitioner subject to the following conditions on her registration:
(a)the respondent’s practise in a General Practice or in a Public Hospital, be supervised by a Board-approved supervisor who is prepared to comply with Level 2 Supervision requirements as contained in the Board’s Guidelines for Supervision and who is willing to develop a written plan with the respondent to remedy her deficiencies. The supervisor is to inform the Board immediately if there is any concern in relation to the respondent’s compliance with the supervision compliance and other conditions of registration, clinical performance, health, or if the supervisor relationship ceases. In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are to be forwarded for approval by the Board within 21 days of the cessation of the original supervisory relationship. The nature of the supervisor’s reporting obligations must be approved in writing by the Board;
(b)the respondent must obtain approval of the Board in writing before changing the nature or place of her practice;
(c)the respondent is not to prescribe Schedule 8 medications unless specifically approved in writing by the Board to do so or until such time as restrictions are lifted in accordance with these orders. While so restricted the respondent should not to consult with patients with complex pain needs, substance abuse issues or patients who are known to be aggressive or demanding. The practitioner should immediately request referral of such patients to another practitioner. The practitioner’s Schedule 4 drug authority is to be restored by the Office of the Chief Pharmacist, ACT Health upon her commencing work in compliance with these arrangements as can be certified by a letter from the lead doctor of that practice;
(d)the respondent give written proof to the Board of having completed and satisfied, within such time as may be set by the Board, the requirements for any remedial courses specified by the Board including courses in prescribing practise, managing aggression in patients and treating anxiety disorders;
(e)two months after she returns to practise (or within a period deemed appropriate by the Board), the clinical notes of the respondent are to be subject to a random audit by the Board and thereafter at approximately 6 monthly intervals or as required by the Board. The respondent is not to seek a variation of this condition until there have been two such audits. Such audits shall assess the respondent’s compliance with relevant provisions of the Health Practitioner Regulation (ACT) 2010 (pt 4 and Sch 2) and the RACGP’s Standards for General Practices (4th ed) in particular Standard 1.7 ‘Content of Patient Health Records’;
(f)the respondent prepare for and attempt on at least two further occasions the Fellowship Examination for General Practice vocational registration,
(g)the respondent provide written proof to the Board of completing 6 sessions of education and training at the Specialist Alcohol and Drug Program (ACT Health) and 6 sessions at the Pain Management Unit (ACT Health) both such sessions to be approved by the Board;
(h)the costs of such remedial courses, sessions and audits shall be met by the respondent;
The Board inform the Tribunal in writing of any substantial breach of these orders on the understanding that if established, those breaches may result in immediate suspension of registration
At the satisfactory fulfilment of these orders and the expiry of 24 months from the date of her recommencement of work, the Board review the respondent’s practise for the lifting of all restrictions.
The order made on 16 January 2014 prohibiting the publication of any matters contained in documents filed with the tribunal or received in evidence in any hearing of this application, that identifies or tends to identify any patient of the respondent, is vacated. There is, therefore, no restriction from this date on publication of material pertaining to this case.

………………………………..
Professor T. Faunce – Presiding Member
for and on behalf of the Tribunal

REASONS FOR DECISION

This matter concerns a doctor, initially foreign trained, whose presumptively unsafe prescribing practices at two bulk-billing clinics in Canberra led the relevant Medical Board to suspend her registration to practise medicine. It raises significant issues about the extent to which a Tribunal addressing public protection and safety as required by section 3(2)(a) of the Health Practitioner Regulation National Law (ACT) (the National Law) and section 18 of the Health Professionals Act 2004 (ACT) (the HP Act) should consider not just the conduct of a registered practitioner but also the nature of the system in which he or she practises, including that system’s levels of training, supervision, mentorship and quality control.
The respondent was born in 1969 in Bangladesh, the daughter and eldest child of a retired garments factory owner and a retired college principal. She was raised in a traditional Muslim family and culture in which, as she put it, “women were not encouraged to be independent or to seek an education and become a professional”. At the age of 22 she was studying medicine at Sylhet Medical School. At the age of 23 she married her husband who is a doctor. They have two teenage children.
The respondent did a year’s internship at Sylhet hospital servicing 1 million people and then worked for five years (six days a week, eight hours a day) as one of two doctors providing free medical care for the Bangladesh Garments Manufacturers’ Association Health Centre. Amongst her duties she regularly prescribed antibiotics, antihypertensive, antidiabetic and antiepileptic but not opioid medications. While her husband worked as a doctor in New Zealand in 2000-2005 she studied for the United States Medical Licensure Exams (USMLE). In 2004 she sat and passed the Australian Medical Council written exams. In 2005 her husband obtained work at an Australian hospital and the respondent was able to observe under supervision in emergency, obstetrics and gynaecology and paediatrics. From 2006 she worked as an intern at Canberra Hospital and from 2007 as a Resident Medical Officer at Calvary Hospital. She then passed the Australian Medical Council clinical exams and received unconditional medical registration with the Medical Board of Australia. She worked as a general practitioner at the Gungahlin Medical Centre from December 2008 to March 2011. Dr Wayne Phan, the principal practitioner vetted her workload and patient distribution to suit her experience. Dr Syed was her co-supervisor and mentor. In 2011 her husband persuaded the respondent to join him in working for the Ginninderra and Phillip medical centres run by Primary Health Care Limited (Primary Health Care). The respondent received no direct clinical mentoring or supervision on commencing work with Primary Health Care. She was shown how the billing system worked on the computer and was required to see patients the same day.
On 29 August 2012 the Australian Health Practitioner Regulation Agency (AHPRA) received a notification from the ACT Chief Health Officer about the conduct of the respondent. The Medical Board of Australia as a result conducted a preliminary assessment in accordance with section 149(1)(a) of the National Law and took action to investigate under section 160 of the National Law.
That and further investigations revealed that the respondent had in a period between 2011 and 2012 prescribed controlled medicines, namely opioids, to different patients either without the approval of the Chief Health Officer as required by the Medicines, Poisons and Therapeutics Goods Act 2008, or at far larger doses and/or at shorter intervals than should have been required, where she knew the patient was a drug-dependent person concurrently with benzodiazepines and/or antipsychotics, analgesics or anti-depressants such as to cause a risk to patient safety, and where she had been given notice that approval was required. This conduct was also linked with other conduct that allegedly fell outside various sections of the Code of Conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia), namely: failing to take and record an adequate medical history (2.1.1, 2.1.2, 2.2.5, 3.3.2, 8.4.1, 8.4.4, 8.4.5); and failing to take notes or adequate notes (2.2.3, 8.4.1, 8.4.4, 8.4.5,), failing to consider the patient’s medical history (2.1.1, 2.1.2, 2.2.3, 2.2.6, 3.3.2, 3.3.3, 3.3.4, 8.4.1, 8.4.4, 8.4.5), failing to record details of patients requests for controlled medicines (2.1.2, 2.2.4, 2.2.5, 2.4.6, 3.2.5, 3.3.1, 3.3.2, 3.3.3, 3.3.4, 3.3.6, 3.3.7, 8.4.1, 8.4.4, 8.4.5), failing to make or record a diagnosis (2.1.2, 2.1.3, 2.2.3, 2.2.4, 2.2.5, 2.2.6, 3.2.5, 3.3.3, 3.3.4, 3.3.6, 3.3.7, 8.4.1, 8.4.4, 8.4.5), and failing to formulate or provide adequate treatment plan (2.1.2, 2.1.3, 2.1.4, 2.2.3, 2.2.4, 2.2.5, 2.2.6, 2.2.9, 2.2.10, 3.3.3, 3.3.4, 8.4.1, 8.4.4, 8.4.5).
The respondent was issued with a notice to show cause under section 157 of the National Law and after considering the respondent’s response, on 13 September 2012 the Medical Board of Australia decided to take immediate action under section 156(1)(a) to protect public health and safety by imposing the following condition on the respondent’s registration under section 178(2)(c): “Not to prescribe any S4 or S8 medications, including controlled medicines requiring Chief Health Officer Approval under the Medicines, Poisons and Therapeutic Goods Act 2008, pending further investigation into the matter”. The Board determined that the respondent’s responses to its notice to show cause demonstrated a lack of awareness of the seriousness of her practise patterns and lack of awareness of her professional obligations under the legislation. After an investigation, the Board filed an application for Disciplinary Action against the respondent with the Tribunal on 6 December 2013. Directions were made to ensure that relevant material was given to the tribunal and to each party.
On 7 February 2014 the Board became aware that the respondent may have been prescribing s4 and s8 medications in breach of her conditions and sought her prescribing history from the Department of Human Services (Medicare). As a result of that investigation, on 20 February 2014, the Board proposed to take immediate action and suspend the respondent’s registration. As a result of the respondent’s written submission to the Board on 26 February 2014 and verbal submission on 27 February 2014 the Board decided immediate action was not warranted, but that further information was required. On 5 March 2014 the respondent made a further written submission to the Board to lift the s4 restriction on her practise. The import of this submission was that the condition, covering as it did a large volume of routinely prescribed medications in effect constituted a suspension on practise. The Board refused to remove conditions on her registration on 27 March 2014. Then on 6 May 2014, the Board decided to suspend the respondent after considering the complaint about her writing an otherwise clinically appropriate script for an antibiotic (a s4 medication) on a prescription pad signed by Dr Wahab for a child with a suspected urinary tract infection, that prescription nonetheless being in breach of her conditions.
The matter was listed before this Tribunal as presently constituted on 3 June 2014, for hearing of an amended application for Disciplinary Action (‘the amended Application”) filed on 24 January 2014. Ms Tonkin of counsel appeared for the respondent instructed by the ACT Government Solicitor. Mr Tuscano of counsel appeared for the respondent instructed by Ken Cush & Associates.
On 2 June 2014, the ACT Government Solicitor filed notice that both counsel wished to advise the Tribunal of the following matters:
(a)the respondent intended to make admissions in respect of paragraphs 1-20 of the amended Application, with some minor amendments. The parties agreed to amend paragraph 1 so that “four occasions” reads “three occasions” (21 June 2011, 8 July 2011, 10 April 2012);
(b)the respondent intended to concede that the conduct alleged represents “professional misconduct” within the meaning of section 5 of the National Law;
(c)the respondent’s counsel was likely to request further time in which to make submissions about appropriate penalties/orders.

At the Tribunal hearing on 3 June 2014, the respondent agreed that she had at the relevant times been prescribing controlled medicines in dosages and/or frequencies that were unsafe, to patients she should have known were drug dependent, where her notes did not reveal a need for the prescription or implementation of a treatment plan, and/or concurrently with benzodiazepines, anti-depressants, anti-psychotics, anti-convulsants and/or prescription analgesia, such as to pose a risk to patients’ health.
The particulars from paragraphs 1 to 20 of the amended Application were agreed and admitted by the respondent. The respondent also did not contest a finding by the Tribunal that her conduct constituted “professional misconduct” within the inclusive definition given to that phrase in section 5 of the National Law.
The Tribunal was satisfied from her oral testimony on 3 June 2014 that the respondent registered health practitioner understood the consequences of agreeing to and admitting the particulars set out in paragraphs 1 to 20 of the amended Application.
Ms Tonkin submitted a disciplinary order was appropriate. She submitted that the expert opinions of Dr Briscoe and Dr Thomson and the evidence of Mr Fitzsimmons and Mr Logan gave sufficient grounds for the Tribunal to be satisfied as to the misconduct, given they had been accepted and not challenged by the respondent. She added that, notwithstanding the admission against the interest of the respondent, the Tribunal had to be satisfied on its own account. The Tribunal agreed with these propositions.
The Tribunal considered the material before it and found that the conduct of the respondent specified in paragraphs 1-20 of the amended Application and accepted by her, amounted to professional misconduct within the meaning of section 5 of the National Law.
The Tribunal found that the impugned conduct represented significant global problems with the respondent’s clinical competence and judgment. Of particular concern were the respondent’s unsafe prescribing (particularly on occasion unusually large amounts and to patients who appeared to be abusing the system due to addictions) of Schedule 8 medications and her failure to accept and utilise advice from colleagues about such patients, even when it was expressly written in clinical notes.
It was apparent to the Tribunal that the respondent’s professional problems appear to have gone undetected, uncorrected and unreported in the two practices in which she worked for approximately three years, the Ginninderra and Phillip practices of Primary Health Care. In considering what disciplinary orders should be made against her as a result of the Tribunal’s findings, it was relevant for the Tribunal to consider whether she received adequate mentoring and supervision in those practices, so that she could most effectively provide medical services to the public in a way that could (as required by the relevant legislation) guarantee their protection and safety.
A further hearing was scheduled for 22 July 2014, to obtain evidence about the nature of mentorship and supervision at the Phillip and Ginninderra practices of Primary Health and to get further information from the respondent relevant to the orders the Tribunal would make. The Board was seeking orders cancelling the respondent’s registration.
At the hearing on 22 July 2014 Mr Tuscano for the respondent confirmed the experts’ reports were not challenged and accepted that the conduct of the respondent amounted to professional misconduct. The professional misconduct related chiefly to the respondent’s practise in prescription of controlled medicines while working for Primary Health Care. In the course of the hearing it became clear to the Tribunal that it needed to hear more detailed evidence about the level of supervision and mentoring she received while working for Primary Health Care. That evidence was set to be received by the Tribunal on 20 November 2014.
At the hearing on 22 July 2014 the Tribunal required the respondent, despite considerable reluctance on her part, to inform the Tribunal of certain key financial elements of the contract she had signed with Primary Health Care. As a result of being so legally compelled, the respondent gave evidence that one of the conditions of her contract was that she would receive 50% of the bulk billing fee which was $36.00 per patient for other doctors at the practice. In her case, Medicare paid $10.00 less because she was a ‘non vocational’ doctor and had been exempted under section 19AB by the Department of Health and Ageing. Because of that reduction she was paid $8.00 for every patient that she saw. However, she was also paid a substantial retainer over and above the fee for each patient she saw. On average she had around 40-50 patient consultations per day. During the three years she worked for Primary Health Care she had approximately 30,000 patient consultations. The respondent disclosed the amount of the retainer she was paid on the understanding that the figure would not be disclosed by the Tribunal.

The Tribunal ordered that the respondent inform the Tribunal of other specific components of the contract she signed with Primary Health Care. It was as a result of this order, that the Tribunal discovered that the retainer contract, called ‘Sale of Practice’, was between the respondent, a company that she and her husband had incorporated (Syeda & Shaikh Pty Ltd) and Idameneo (No.123) Pty Ltd as trustee of the Artlu Unit Trust, a company incorporated in Australia and having its registered office at an address in Leichardt, NSW. The Tribunal also learned as a result of its order, that the respondent was required by that contract (clause 4.2(b)) to render medical services during five years “for no less than 45 hours per week for 48 calendar weeks per financial year.”
The respondent had also signed a document called ‘Performance Guarantee Incorporated Medical Practitioner’ by which the respondent agreed to carry out obligations under ‘Provision of Services to Incorporated Medical Practitioner.’ These obligations included paying over all income received to Idameneo Pty Ltd clause 4.2) including seeking payments from Medicare (clause 4.3), 50% of which were to be kept (plus a GST rate) by Idameneo Pty Ltd as remuneration for use of the premises (clause 6). The services and facilities agreed to be provided by the company as “reasonably necessary for the conduct of an incorporated medical practice” (clause 3.2(b)) did not include clinical supervision or mentoring.
The Tribunal also ordered (in the context of an application by a journalist for access to proceeding materials) that details of the disclosure relating to the amount of retainer received not be made public and not be communicated to any other party until such time as further evidence from the lead doctors of Primary Health Care had been obtained.
On 22 July 2014 Mr Tuscano informed the Tribunal that after the application before it had been filed, the respondent’s registration had been suspended because of an issue about whether she had complied with the condition placed on her registration by the Board in September 2012. There was a further investigation pending. This further investigation was not fully explained to the Tribunal, but appeared to require an expert report scrutinising the respondent’s prescription records and patient notes. Mr Tuscano submitted it would be better to hear and if possible, resolve all these matters at once on the next occasion. The Tribunal agreed with this course.
Mr Tuscano’s submission that the matter should be stood over for further submissions that would accord the respondent natural justice was agreed to by the Tribunal. The hearing was adjourned until 20 November 2014 at which time the Tribunal required the parties to present evidence in relation to the following matters:
(a)the professional background (including education, training, registration, employment history, ongoing professional education and mentoring) of the respondent;
(b)the practical continuing education and remedial course of action proposed by the parties in relation to the respondent;
(c)the nature of supervision and mentoring at the Ginninderra and Phillip practices where the respondent worked, particularly focusing on the appreciation of both senior staff and management at those practices of the respondent’s level of competence over three years, which patients she was allowed to see and what quality and safety checks were in place.
(d)the Tribunal required the Applicant to issue subpoenas to Mr Bateman, the Chief Executive officer of Primary Health Care, headquartered in Sydney, Dr Huston, the Chief Medical Officer of Primary Health, Dr Patrick Ajulo, the lead doctor at Ginninderra Medical Practice and Dr Khushbir Johar, the lead doctor at the Phillip Medical Practice, requiring them to attend the hearing to give evidence.
On 2 September 2014, after application by a journalist from the Canberra Times newspaper (an application that was opposed by the Respondent) the Presiding Member of this Tribunal sitting alone, permitted disclosure of all documents on the tribunal’s file in relation to this matter including documents related to this hearing and the hearing on 20 November 2014 (unless further orders are made on that date), with the following exceptions:
(a)disclosure shall not be made of the admission made by the Respondent under compulsion by the Tribunal of the specific amount of lump sum payment the Respondent received under her contract with Primary Health Care; and
(b)disclosure shall not be made of the Respondent’s contract with Primary Health Care when supplied to the Tribunal.

Order 1 was stayed in relation to disclosure of the transcript, if any, of the hearing on 22 July 2014 until there had been redaction of the admission in that transcript made by the Respondent under compulsion by the Tribunal of the specific amount of lump sum payment the Respondent received under her contract with Primary Health Care.
The Tribunal prohibited the publication of all evidence given at the hearing of this matter on 3 June 2014 and 22 July 2014 until further order (after the next hearing of this matter on 20 November 2014). The Tribunal also prohibited the publication of matters contained in documents filed with the Tribunal or received in evidence by the Tribunal in this matter until further order (after the next hearing of this matter on 20 November 2014). The ‘publication’ prohibited until further order (after the next hearing of this matter on 20 November 2014) was ordered to include communication to any other persons including but not limited to, potential witnesses.
The reason for the decision was that this matter had been heard in public in accordance with section 38(1) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). Section 39(1) requires that the right to a public hearing can only be restricted to the extent of limiting publication where it is outweighed by “competing interests”. An order had been made on 16 January 2014 prohibiting publication of the names of the Respondent’s patients.
The Tribunal found that Mr Tierney for the Respondent made a compelling case that the “interests of justice” as specified in section 39(5)(c) of the ACAT Act would not be served by publication of information about the case prior to the 20 November 2014 hearing. Such publication could misrepresent the extent to which the Respondent was responsible for the professional misconduct, influence the testimony of potential witness and perhaps create a suspicion of bias in a matter where major issues on the extent of culpability were yet to be resolved.
Mr Hassell, however, made an equally strong case that there were insufficient ‘competing interests’ to completely prohibit disclosure. As Refshauge J pointed out in R v Jovanovic,[1] the common law has a long tradition of protecting the right of citizens to not only have a public trial (Scott v Scott[2]; Dickason v Dickason[3]), but to allow the media to have capacity to accurately and faithfully report court proceedings for the benefit of the majority of citizens who lack the time or capacity to personally attend those proceedings (R v Davis[4] ; R v Denbigh Justices; Ex p Williams[5]).
[1] [ 2014] ACTSC 98
[2][1913] AC 417
[3](1913) 17 CLR 50
[4](1995) 57 FCR 512 at 514
[5][1974] QB 759 at 765
The Tribunal held that section 39 of the ACAT Act must be read, by virtue of section 30 of the Human Rights Act 2004 (ACT)( the HR Act), in the light of the right to seek, receive and impart information specified in section 16(2) of the HR Act. Section 16(2) finds its equivalent in article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which has been described as an important right that is the “life blood of democracy” (London Regional Transport v Mayor of London[6]).
[6] [2001] EWCA (civ)1491 at [55]
The Tribunal also held that Section 39 of the ACAT Act must likewise be read in light of section 21of the HR Act which requires that:
21Fair trial
(1)Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2)However, the press and public may be excluded from all or part of a trial—
(a)to protect morals, public order or national security in a democratic society; or
(b)if the interest of the private lives of the parties require the exclusion; or
(c)if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.
(3)But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

Indeed, a strong first principles case can be made that the ‘judicial power of the Commonwealth” referred to in section 71 of the Commonwealth of Australia Constitution Act includes the implied right to a fair and public hearing before a competent, independent and impartial tribunal conforming to the rule of law. As Gibbs CJ stated in Russell v Russell[7]
This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for ‘publicity is the essential hall-mark of judicial as distinct from administrative procedure’ (Mc Pherson v McPherson[8]).
[7] (1976) 134 CLR 495 at 520:
[8][1936] AC 177 at 200
The Tribunal held it was important at this moment in Australian legal history to affirm the principle that hearings shall be not just conducted in public but with appropriate media scrutiny and communication to the general populace. As an example, Chief Justice French of the High Court of Australia has recently highlighted how significantly different courts and tribunals are in this respect from the closed operations of investment arbitrators whose role in challenging legislation may soon be increased as a result of mechanisms established by recent Trade and Investment agreements (Chief Justice French, Supreme and Federal Courts Judges’ Conference, 9 July 2014 Investor-State Dispute Settlement- A Cut Above the Courts?).
On 6 November 2014 at a directions hearing, the Tribunal ordered that the expert report of Dr Briscoe in the second matter involving suspension of the respondent concerning prescriptions, be provided to the solicitors for the respondent and the tribunal by close of business 10 November 2014, and that the solicitors for the practitioner have leave to raise natural justice issues if the report was not filed by that date, on 20 November 2014.
The Tribunal also ordered that the solicitors for the respondent have leave to request a further hearing after 20 November 2014 if the expert report on the second suspension matter raises unexpected complex issues, bearing in mind the problems for the respondent in delaying resolution of the matter, the substantial volume of material now provided to the solicitors for the respondent and the delay by the solicitors for the respondent in bringing this second matter before the tribunal.
The solicitors for the Board received a letter from the legal counsel for Primary Health Care on 31 October 2014. This stated:
I am instructed that Dr Bateman was to be on leave on the day he was subpoenaed to give evidence. In any event, on 26 September 2014, Primary wrote to the stock exchange giving notice that Dr Bateman was on sick leave and that Andrew Duff was taking on the role of Acting Managing Director in Dr Bateman's absence.
The Tribunal ordered that Dr Bateman provide a suitable medical certificate to be excused from giving evidence on 20 November 2014 and that he be apprised of the powers of the Tribunal in this respect under section 42 of the ACAT Act. That medical certificate was provided on 11 November 2014 by Dr Sanjay Nijhawan, Conjoint Lecturer UNSW National Head Clinical Development, Idameneo (No. 123) Pty Ltd (a Primary Health Care Limited company). On 12 November 2014 the Tribunal ordered that the subpoena 1345(j) issued on 27 August 2014 to Dr Edmund Bateman be set aside.
On 20 November, the Tribunal received into evidence the expert report of Dr Briscoe concerning the second matter which led to a suspension for the respondent. This concerned the prescription of Schedule 4 drugs despite a prohibition of such prescriptions (as well as Schedule 8 (opioid - type) prescriptions) and despite an attempt by the respondent in February 2014 to have that part of the condition lifted. The respondent’s concern about the condition was understandable. The Schedule 4 list comprises many commonly used medications such as antibiotics. Inability to prescribe such drugs would no doubt significantly impede the respondent’s capacity to work in a bulk-billing practice. Perhaps this was precisely the intention of the Board due, amongst other things as it became clear on the evidence, to the low levels of supervision and mentoring the respondent could expect in those practices. If this was the case, the Board should have contacted those in charge of those practices. Otherwise it seems disproportionate for the Board to have imposed a Schedule 4 prescription restriction on a doctor because of Schedule 8 prescription errors, given that a Schedule 4 restriction would make it extremely difficult, if not impossible, to effectively practise in the type of medical practices at Phillip and Ginninderra run by Primary Health Care.
It became clear on the evidence, that the respondent had organised that her husband who works at the Ginninderra practice of Primary Health Care, sign some prescription pads in advance, so that the respondent could continue to work at the Phillip practice. The Tribunal finds it unlikely that the respondent sought her husband’s assistance to review the medical records of the patients she saw before writing prescriptions. The Tribunal accepts that the prescriptions were clinically indicated. Indeed, the prescription of an antibiotic to a female child with a suspected urinary tract infection was so important that (in the absence of any reasonable alternative) it created a situation where commitment to basic medical ethics could have justified breaching the Medical Board’s Schedule 4 prohibition, provided a subsequent explanation had promptly been given to the Medical Board.
Instead however, the respondent appears to have evidenced a casual attitude to compliance with the Medical Board’s restrictions and with record keeping. This extends to the respondent not being capable of ascertaining readily what common prescription drugs are included on Schedule 4. The inability of the respondent to follow through with due compliance on the Medical Board’s conditions of suspension raises significant concerns about her level of professionalism.
The Tribunal accepts that a large part of the respondent’s problems arose in the case of each suspension, from the low levels of supervision and mentoring available in the Phillip and Ginninderra practices of Primary Health Care. Prior to joining these practices, the respondent had worked at a Gungahlin medical practice. The Lead Doctor at that practice let the respondent sit in on some of his consultations, then sat in on hers in the first week, then regularly supervised and mentored her in relation to her patient load and responsibilities.
The evidence the Tribunal received from Dr Johar and Dr Ajulo however, was that the AHPRA-certified ‘independent contractor’ nature of the contractual arrangements between doctors and Primary Health Care precluded much supervision and mentoring. The Tribunal was sceptical about certain aspects of this claim, as it was not clear that these doctors had the capacity, for example, to subcontract as would a fully independent contractor. Dr Johar admitted in evidence, that the Phillip practice does consider it has responsibilities to patients beyond those of specific doctors to specific patients in individual clinical encounters. Yet, training for new doctors in the Primary Health Care Ginninderra and Phillip practices, primarily consisted of training about the computer billing software. The Tribunal heard that in only 50% of the Primary Health Care practices was there a lead doctor. The supervision and mentoring responsibilities of the lead doctor were not specified and appear to consist of organising occasional in-house clinical meetings (that the respondent mostly couldn’t attend because she was rostered out of hours) and ad hoc interaction on clinical issues. The evidence was that other doctors at the practices were not aware of the restrictions on the respondent’s registration to practice.
The Tribunal formed the view, given the formulaic consistency of response, that these two witnesses were well prepared in relation to questions about whether incentives are created by Primary Health Care for doctors to see more patients. The Tribunal had a strong sense that there were underlying issues, and on evidence given at the hearing, certainly finds that at the Ginninderra and Phillip Primary Health Care practices at the times relevant to these proceedings, peer support and mentoring systems were next to absent and that the education/ professional development opportunities are recent and inconsistent, i.e., not equally available at both practices and not well supported or resourced.
The lead doctors at the Ginninderra and Phillip practices never received a letter from Primary Health Care advising them of the respondent’s restrictions on practise and how to assist her with them. Dr Johar did become aware of the respondent’s Schedule 8 prescription restrictions and had “a few chats” with her about it. Dr Ajulo became aware of the respondent’s Schedule 8 prescription restrictions after a phone call from an AHPRA official in May 2014, but did not see his contracted role as lead doctor as involving supervision or mentoring in such a situation. This is despite his admitting that if the respondent had a restriction on both Schedule 4 and Schedule 8 prescribing (which she did) “it would be difficult” to work in that practice. This implies that there was no general acknowledgement of responsibility to assist the respondent to comply with those restrictions whilst she was still working in those practices. An argument can be made that these aspects of professional practise at the Ginninderra and Phillips practices of Primary Health Care contravene the requirement for public protection and safety in section 18 of the HP Act.
One of the aspects of work at the Phillip and Ginninderra practices that appears to have impacted on the quality of the respondent’s practise was that patients who requested specifically to see her were placed down the queue from patients who walked through the door and asked to see the ‘first available’ doctor. The respondent felt that this system created a situation where patients with conditions with which she was familiar (including some from her initial practice at Gunghalin) did not return owing to the long waiting times. The evidence the Tribunal heard was that the system did not allow a doctor readily to request that an established patient be seen on occasion in the queue ahead of patients requesting the ‘first available’ doctor unless they had an ‘urgent’ condition or were a ‘recall’. If that is the case, an argument could be made that this arrangement could contravene the requirement for public protection and safety in section 18 of the HP Act.

It was also of concern to the Tribunal that the contracts between Primary Health Care and doctors accord the doctors a variable lump sum in advance and then a negotiated percentage (approximately 50%) of the doctor’s earnings. The contracts apparently didn’t have a requirement to either give, or receive, supervision or mentoring as part of their professional duties. If that is the case an argument could be made that the contracts contravene the requirement for public protection and safety in section 18 of the HP Act.
There is apparently a document setting out the responsibilities of a lead doctor working in a Primary Health Care practice. It is not clear it has been vetted for compliance with AHPRA standards. If that is the case, an argument could be made that the document contravenes the requirement for public protection and safety in section 18 of the HP Act.
The Tribunal was informed that the respondent had sat the General Practitioners’ Fellowship exam for vocational registration and only just failed. She had enrolled in an assertiveness course. It was clear from her evidence that although having a Schedule 4 and Schedule 8 restriction made it very difficult, she felt she had to try to keep working for Primary Health Care otherwise there would be severe financial consequences as a result of her contract with that company. If that is the case, an argument could be made that that contact contravenes the requirement for public protection and safety in section 18 of the HP Act.
The Respondent gave evidence that there had been two doctors working at the Ginninderra and Phillip practices who had seen a lot of Schedule 8 prescription requiring patients, including patients on opioid substitution therapy. When those two doctors left the practices, the respondent alleged that some of their patients seemed to gravitate to her. There appears to have been no effort made at those practices to prevent this relatively inexperienced doctor receiving such a difficult class of patients. If that is the case, an argument could be made that such a professional arrangement contravenes the requirement for public protection and safety in section 18 of the HP Act.

Dr Wahab, the respondent’s husband, gave evidence that the respondent had wished to stay at the Gungahlin practice with Dr Hassan. It was his idea, he admitted, that she work at the Phillip and Ginninderra practices of Primary Health Care.
The respondent admitted to professional misconduct in relation to both matters that are the subject of these proceedings. The Medical Board argued that an appropriate outcome was cancellation of registration. This was warranted, Mr Hassall for the Medical Board argued, not simply because of the unsafe way the respondent had administered and documented her Schedule 8 prescriptions, but also because of the way in which she attempted to circumvent the admittedly harsh Schedule 4 prescription restriction the Medical Board imposed. The respondent’s conduct does seem to have evinced a lack of assertiveness in standing up to dependent patients, a lack of due diligence in understanding and complying with the Medical Board’s restrictions and an inability to properly understand how to modify and document her professional conduct in regard to peer feedback.
Nonetheless, the Tribunal was not made aware of any complaints by patients about the respondent’s professional practise. Her non-Schedule 8 prescribing appears to have been clinically appropriate. The Tribunal also finds that the respondent’s professional problems were severely exacerbated by the lack of supervision and mentorship she experienced at the Ginninderra and Phillip practices of Primary Health Care. This lack of supervision and mentorship was not due to any fault by Dr Johar or Dr Ajulo. Rather, it was due to the contractual organisation of the relationships of doctors with the management of the practices. Specifically, it appears to have been due in large part to a failure of the leadership of Primary Health Care to engage properly in its governance arrangements with the requisite professional standards required for public protection and safety.
The respondent has been formally suspended from medical practise for half a year and informally for much longer (if the restriction on standard s4 prescriptions be considered a de-facto suspension). In the circumstances the Tribunal has decided that the respondent is not currently fit to practise in an unsupervised environment. This effectively means she is unable to work in a practice such as that organised by Primary Health Care at Ginninderra and Phillip that does not involve routine supervision and mentoring.
The principles which govern the orders and conditions the Tribunal should make in this situation as summarised in HCCC v Dr Della Bruna[9], require that the paramount consideration be protection of public health and safety. Protection of the profession’s ethical and clinical standards is also an important consideration (HCCC v Litchfield (1997) 41 NSWLR 630 at 637); as is public confidence in the profession (Prakash v HCCC[10]) and encouragement of professional compliance with appropriate standards (Prakash v HCCC[11]).
[9][2014] NSWCATOD 31 at [88]
[10][2006] NSWCA 153 at [91])
[11]at [91]).
The Tribunal finds there was no fundamental failing in the respondent’s initial medical training.
The Tribunal finds that the respondent demonstrated multiple problems with her capacity to understand and comply with regulatory requirements and professional standards, including history taking, record keeping and prescription practice.
The Tribunal finds that the respondent’s professional misconduct was substantially contributed to by the lack of clinical supervision and mentorship she experienced at the Primary Health Care Ltd practices at Phillip and Ginninderra (the respondent’s contract in this regard being with Idameneo (No.123) Pty Ltd as trustee of the Artlu Unit Trust).
The Tribunal is satisfied that if the respondent is able to find an accredited General Practice where a senior doctor is willing to supervise and mentor her (such as the Gungahlin practice of Dr Hassan), it would be appropriate for the respondent to return to work with restrictions on her practise to apply for a 24 month period (subject to review on a 6 monthly basis).
The Tribunal therefore orders that:
(1)the respondent be registered as a health practitioner subject to the following conditions on her registration:
(a)     the respondent’s practise in a General Practice or in a Public Hospital, be supervised by a Board-approved supervisor who is prepared to comply with Level 2 Supervision requirements as contained in the Board’s Guidelines for Supervision, and who is willing to develop a written plan with the respondent to remedy her deficiencies. The supervisor is to inform the Board immediately if there is any concern in relation to the respondent’s compliance with the supervision compliance and other conditions of registration, clinical performance, health, or if the supervisor relationship ceases. In the event that the approved supervisor is no longer willing or able to provide the supervision required, details of a replacement supervisor are to be forwarded for approval by the Board within 21 days of the cessation of the original supervisory relationship. The nature of the supervisor’s reporting obligations must be approved in writing by the Board;
(b)     the respondent must obtain approval of the Board in writing before changing the nature or place of her practice
(c)     the respondent is not to prescribe Schedule 8 medications unless specifically approved in writing by the Board to do so or until such time as restrictions are lifted in accordance with these orders. While so restricted the respondent should not to consult with patients with complex pain needs, substance abuse issues or patients who are known to be aggressive or demanding. The practitioner should immediately request referral of such patients to another practitioner. The practitioner’s Schedule 4 drug authority is to be restored by the Office of the Chief Pharmacist, ACT Health upon her commencing work in compliance with these arrangements as can be certified by a letter from the lead doctor of that practice;
(d)     the respondent give written proof to the Board of having completed and satisfied, within such time as may be set by the Board, the requirements for any remedial courses specified by the Board including courses in prescribing practise, managing aggression in patients and treating anxiety disorders;
(e)     two months after she returns to practise (or within a period deemed appropriate by the Board), the clinical notes of the respondent are to be subject to a random audit by the Board and thereafter at approximately 6 monthly intervals or as required by the Board. The respondent is not to seek a variation of this condition until there have been two such audits. Such audits shall assess the respondent’s compliance with relevant provisions of the Health Practitioner Regulation (ACT) 2010 (pt 4 and Sch 2) and the RACGP’s Standards for General Practices (4th ed) in particular Standard 1.7 ‘Content of Patient Health Records’;
(f)       the respondent prepare for and attempt on at least two further occasions the Fellowship Examination for General Practice vocational registration,
(g)     the respondent provide written proof to the Board of completing 6 sessions of education and training at the Specialist Alcohol and Drug Program (ACT Health) and 6 sessions at the Pain Management Unit (ACT Health) both such sessions to be approved by the Board;
(h)     the costs of such remedial courses, sessions and audits shall be met by the respondent;
(2)the Board inform the Tribunal in writing of any substantial breach of these orders and conditions on the understanding that if established, those breaches may result in immediate suspension of registration;
(3)at the satisfactory fulfilment of these orders and the expiry of 24 months from the date of her recommencement of work, the Board review the respondent’s practise for the lifting of all restrictions.
(4)the order made on 16 January 2014 prohibiting the publication of any matters contained in documents filed with the tribunal or received in evidence in any hearing of this application, that identifies or tends to identify any patient of the respondent, is vacated. There is, therefore, no restriction from this date on publication of material pertaining to this case.
………………………………..
Professor T. Faunce – Presiding Member
for and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	OR 13/45, OR 14/39 and OR 14/44
PARTIES, APPLICANT:	Medical Board of Australia
PARTIES, RESPONDENT:	Dr Syeda Tausif
COUNSEL APPEARING, APPLICANT	Ms Tonkin/ Mr Hassall
COUNSEL APPEARING, RESPONDENT	Mr Toscano
SOLICITORS FOR APPLICANT	ACT Government Solicitor
SOLICITORS FOR RESPONDENT	Ken Cush and Associates
TRIBUNAL MEMBERS:	Professor T. Faunce – Presiding Member Dr R. Davies – Member Mr B. Pearcy – Member
DATES OF HEARING:	3 June, 22 July, 2 September, 20 November 2014