Re the Medical Practice Act 1992 and Dr. Aftab Aslam
[2004] NSWMT 1
•5 April 2004
New South Wales
Medical Tribunal
CITATION: Re the Medical Practice Act 1992 and Dr. Aftab ASLAM [2004] NSWMT 1 TRIBUNAL: Medical Tribunal PARTIES: FILE NUMBER(S): 40007 of 2003 CORAM: McGuire,DCJ - Gleeson, Dr M - Smith, Dr D - Badam, Dr A CATCHWORDS: LEGISLATION CITED: Medical Practice Act 1992 (NSW) CASES CITED: Richter v Walton (unreported) NSW Court of Appeal;
Rejfek v McElroy (1065) 112 CLR 517;
Bannister v Walter (1993) 30 NSWLR 699;
Briginshaw v Briginshaw(1938) 60 CLR 336DATES OF HEARING: DATE OF JUDGMENT: 5 April 2004 ORDERS: The Tribunal orders; (1)That the name of Aftab Aslam be removed from the Register of Medical Practitioners of New South Wales; (2)Pursuant to Section 63(5) of the Act, no application for a review of Order (1) be made until the expiration of 4 years from today; (3)That the practitioner pay the costs of the complainant of and incidental to the hearing of the complaint; (4)Exhibits returned.
JUDGMENT:
IN THE MEDICAL TRIBUNAL OF NEW SOUTH WALES
THE MEDICAL PRACTICE ACT 1992
DEPUTY CHAIRMAN: HIS HONOUR JUDGE J C McGUIRE
MEMBERS: DR M GLEESON PhD
DR D SMITH
DR A BADAM
REASONS FOR DETERMINATION
DATE: 5th April, 2004
Nature of Complaint
Pursuant to the Medical Practice Act 1992 (the Act), the Tribunal is enquiring into a complaint of the Health Care Complaints Commission (the Complainant) into professional conduct of Dr Aftab Aslam (the practitioner).
The complaint is that Dr Aftab Aslam (the practitioner), being a medical practitioner registered under the Act has been guilty of unsatisfactory professional conduct and/or professional misconduct within the meaning of Section 36 and Section 37 of the Act in that he:
(1) Has demonstrated a lack of adequate skill, judgment or care in the practice of medicine; and
(2) Has been guilty of improper or unethical conduct related to the practice of medicine.
At all relevant times the practitioner was employed as a locum medical practitioner at Blue Mountains District Hospital (the Hospital).
On 25th March, 2001 the practitioner treated Patient A (the patient) who was at the time 16 years of age, in the Emergency and Accident Department of the Hospital who presented with self-inflicted lacerations to both of her wrists.
1. On 26th March, 2001 at the Hospital, the practitioner inappropriately:
(a) invited Patient A to his motel room to talk and for coffee;
(b) gave Patient A his mobile phone number;
(c) gave Patient A the name of the motel in which he was staying, that is, the Colonial Motor Inn (the Motel);
(d) gave Patient A directions to the motel;
(e) gave Patient A the number of his room at the motel.
2. On 26th March, 2001 the practitioner inappropriately allowed Patient A to shower in his room at the motel, provided a meal for her and discussed issues with her that were personal to both Patient A and himself.
3. On 26th March, 2001 the practitioner had sexual intercourse with Patient A in his room at the motel.
Orders Sought
The Commissioner seeks, pursuant to Section 64 of the Act, a finding that the practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct in relation to his dealings with the patient and an order that he be deregistered.
Unsatisfactory Professional Conduct
Section 36 of the Act sets out the matters which constitute unsatisfactory professional conduct. It relevantly provides:
m) Other improper or unethical conductUnsatisfactory professional conduct of a registered medical practitioner includes inter alia:
Any other improper or unethical conduct relating to the practice or purported practice of medicine.
Section 37 of the Act sets out the meaning of professional misconduct:
- “ Professional misconduct of a registered medical practitioner means unsatisfactory professional conduct of a sufficiently serious nature to justify suspension of the practitioner from practising medicine or the removal of the practitioner’s name from the Register”.
The obligations of medical practitioners is as articulated by Priestly J A in Richter v Walton , an unreported Decision of the 15th July, 1993.
- “The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters, the trust of a patient placed in a doctor is considerable. In some cases, of which the present seems to be an example, the patient’s trust cannot help but be almost absolute. The doctor’s power in regard to the patient in such cases is also very great. I do not mean power in the abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain high standards; all this being very much in the public interest.”
The Tribunal must have regard to the gravity and importance of the matters which it is deciding in accordance with the principles stated in Briginshaw v Briginshaw (1938) 60 CLR 336 @ 360-363. At pages 261 and 362 Sir Owen Dixon stated:
Onus and Standard of Proof
The standard of proof to be applied by the Tribunal is that referred to in Rejfek v McElroy (1065) 112 CLR 517 @ 521. That standard was applied in Bannister v Walter (1993) 30 NSWLR 699 where it was held that the requirement is that the Tribunal be “be comfortably satisfied on the balance of probabilities”.
- “Except upon criminal issues to be proved by the Prosecution it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is obtained or established independently of the nature or consequent of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question, whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be proved by inexact proofs, indefinite testimony, or indirect inferences”.
Practitioner’s Background
Born on the 9th March, 1967 the practitioner entered upon his studies for a medical degree at the University of Queensland in 1987. He then moved to Pakistan where he completed his degree and graduated with a degree of MBBS in mid 1995.
He returned to live in Australia in September, 1995 and was employed at various hospitals in Tasmania, Victoria and New South Wales, where he gained experience in various facets of medical practice.
Of more recent times, he worked as a locum in several hospitals and was so engaged at the time of the events in question.
The practitioner experienced a disturbed marriage and is now divorced from the mother of his two small children. The stress associated with difficulties in accessing his children and concerns about their future caused him significant depression.
Criminal charges were preferred against him arising out of the patient’s complaints however they were no billed following a committal.
His personal life is now more stable and happy than it as been for some years. He is close to his family and is planning to marry his fiancé.
At present he is employed at Hawkesbury Hospital in the critical care unit. He is subject to supervision and to various conditions imposed by the New South Wales Medical Board.
The Evidence and the Tribunal Findings
Placed before the Tribunal are the documents tendered in a folder comprising Exhibit A. Suffice it to say this contains various statements of the patient, Records of Interview, witness statements, a number of medical reports, clinical notes and opinions from peer reviewers.
The Practitioner’s statements were admitted into evidence together with other material tendered.
The Patient gave oral evidence as did Dr Newman, Psychiatrist. The practitioner also gave evidence up to the point when his counsel, Mr Bozic SC, announced to the Tribunal at the commencement of the third day of hearing that the practitioner didn’t propose to give further evidence. At that stage the practitioner was in the course of being cross examined as to the circumstances surrounding the act of sexual intercourse. Mr Bozic stated:
“Your Honour, members of the tribunal, at the outset of this case I indicated to the tribunal that while professional misconduct was admitted, Dr Aslam wished to argue at the end of the case that the appropriate order was one other than deregistration. That is no longer the case. Dr Aslam accepts that the appropriate order is deregistration and that if the tribunal were so minded, that that order could be made to take effect forthwith.
Following from that, Dr Aslam does not wish, or propose to give further evidence and it follows further from that in relation to the material that I have tendered thus far, to the extent that there were witnesses whose statements were admitted subject to them being called for cross-examination, those statements I would seek leave to withdraw. To the extent that that leaves other material in the tender bundle, in the circumstances that I have outlined, it would not be appropriate for me to make any submissions in relation to that material, or indeed nor would I propose to make any submissions in relation to the material that has been tendered by the complainant and the evidence called by the complainant.”
“There’s nothing further that I would wish to say, in the sense that there are no submissions that I would wish to make. Where we proceed from here is that the evidence that has been tendered by the complainant is there for the tribunal to use in such manner as may be put in submission by my learned friend, or as the tribunal sees fit. In the circumstances, I do not see that it would be appropriate for me to make any submissions to the tribunal.”
It was the effect of the evidence before the Tribunal that as at March, 2001, the practitioner was working as a registrar at John Hunter Hospital, Newcastle. On his days off he performed locum work and on the evening of the 25th March, 2001 he was working as a locum at the Blue Mountains Hospital, Katoomba on the night shift.
A few days prior to 25th March, 2001, the patient, aged 16 (born 26th February, 1985), had left her parents’ home and was staying at the home of a friend, Jessica Wells.
On Sunday, 25th March, 2001, she lacerated her wrists and was taken by Jessica’s mother, Katherine Wells, to the Emergency Department of the hospital. Lacerations were observed to both of her arms. She was admitted and placed in a bed.
His Consultation Notes contain the following observations:The practitioner attended on the patient and engaged in conversation. She related to him finding him interesting and apparently sympathetic. There is no suggestion that at this point he was acting other than in a professional manner.
- “Patient presenting in A & E after having attempted to cut both wrists with a blade.
“Clinically Pt is depressed doesn’t see a future for herself.
“No plans for tomorrow
“Has had similar presentations in past
“According to pt –
o drugs used
“O/E Intelligent & articulate
GCS 15/15
“A/Serious suicide risk
- “D/Mental health team will R/V in 1/24”
At the practitioner’s instigation, the patient was interviewed by a Mental Health Team. At around 7-00 am the following morning, the practitioner had a further conversation with the patient in the course of which she asked the practitioner for directions to the railway station as she was to be discharged that day.
The practitioner indicated the location of the station and at the same time he pointed out that the railway station was near to the Colonial Motor Inn, the motel in which he was residing. He informed her of the number of his motel room and provided her with his mobile telephone number. In the course of that conversation the practitioner informed the patient that he had enjoyed talking to her and that if she wanted to talk to him about anything or just wanted a chat or a cup of coffee, that he would like to see her.
At about 1.30 pm that day the patient was discharged from hospital. She then proceeded to the practitioner’s motel room. He greeted her in his underwear, he having been asleep and invited her inside. She remained in his hotel room until about 7.00 pm.
In the time that she was in his room he permitted her to use the shower and provided a meal for her. A lengthy conversation ensued in the course of which he discussed matters personal to himself and to her.
In the course of a skylarking incident in the motel room, the patient hurt her neck and the practitioner proceed to massage her. He then engaged in sexual intercourse with the patient.
The patient gave an account of the sexual intercourse. She described the practitioner’s actions in massaging her, removing her bra, undoing her pants. During the act of sexual intercourse she lay passively with hands over her face. In answer to his enquiry she told him she was a virgin. At one point she screamed at him to stop however he didn’t desist.
The practitioner maintained that he had not provided the patient with the number of his motel room. He claimed that when he enquired of her as to how she ascertained his room number, she replied “I have my ways”. There was however evidence from the motel receptionist that between 8-00 am and 2-00 pm on the day in question she was working on the reception alone and that between 12-30 pm and 2-00 pm nobody made any enquiries as to where the practitioner was staying.
There was further evidence from people concerned with the cleaning of the motel room and the changing of the bed sheets that there was evidence of blood in the bed.
This evidence and the statement of the receptionist although not conclusive was corroborative of the patient’s account.
He agreed that sexual intercourse had occurred, however he maintained that the patient had fully co-operated in the act and indeed, she had initiated various sexual activities.
Even if the Tribunal were to accept this claim, is scarcely reduces the gravity of his appalling behaviour.
It is clear on the evidence that the practitioner was fully aware that the patient was a disturbed, 16 year old. Her history of previous self mutilation which was known to him and it was patently obvious that by reason of her age and her mental condition that she was vulnerable in the extreme.
Such was her mental state at the hospital that he referred her to the Mental Health Team and as stated, he had personally noted that she was a serious suicide risk.
The Tribunal considers it beyond question that for him to provide her with his mobile phone number and his motel room number that he was, in effect, inviting her to contact him for reasons unrelated to any clinical purpose. It would have been obvious that the girl related to him. There could be no reasonable explanation for these actions other than that he wished her to visit him.
The provision of his mobile phone number and his accommodation details and the implicit invitation for her to attend his motel room was grossly improper.
Within hours of his treatment of the patient, she attended his motel room. When she presented at his door bearing her suitcases it is patent that he should not have invited her inside garbed as he was in underwear nor indeed under any circumstances. This conduct and his invitation or consent for her to shower and the provision of a meal within the confines of his motel room, was a further example of serious impropriety.
He could have turned her away on her arrival and at any stage he could have asked her to leave.
To then massage this vulnerable 16 year old girl as she lay on his bed escalated his totally inappropriate behaviour.
His conduct at this point constituted major breaches of the boundaries beyond which he should not have ventured and involved such serious impropriety as to amount to professional misconduct. For him to then proceed further and to engage in non consensual sexual intercourse compounded such gross misconduct so as to establish professional misconduct of the utmost gravity.
He would have been fully aware of the potentially devastating effect of his sexual exploitation of such a disturbed and vulnerable teenage girl.
The Tribunal holds no doubt, that at all stages from the time he gave her his phone number and motel address, he was completely aware that what he was doing involved gravely serious misconduct.
His exculpatory accounts and explanations as furnished in his two statements and in the evidence he gave were totally unconvincing and having regard to his action in declining to be further cross examined, he could not be seriously regarded as a witness of truth.
The patient’s version of events was consistent with the record of interview given to the police on the 28th March, 2001. The Tribunal observed her in the witness box where she was subjected to a searching cross examination and saw no reason to doubt the essential features of her account. She presented as an impressive witness. A frank and forthright young lady.
The Tribunal accepts without reservation her evidence as to the provision of the motel room number, and the occurrence of a non consensual act of sexual intercourse. Any conflict between her evidence and that of the practitioner is resolved in her favour.
Dr Louise Newman, a highly qualified psychiatrist and Director of the New South Wales Institute of Psychiatry, saw the practitioner at the request of the New South Wales Medical Board.
In the course of her assessment of the practitioner she formed the opinion that he had a clear understanding of the facts as he stated them to her. He told her he believed that what occurred had been inappropriate and constituted an error of judgement. He expressed regret for the incident conceding that it constituted an inappropriate, inter-reaction with a vulnerable young person.
She felt that at the time of her assessment, that Dr Aslam had a limited understanding of the particular vulnerabilities of the young patient and showed only a partial empathy to her situation.
This witness considered that he was a moderate risk of re-offending on the basis of her assessment of his partial insight into the events and his lack of sophisticated understanding of the boundary issues involved at the time of her assessment.
Dr Newman had expressed this opinion on the basis of accepting the practitioner’s account of consensual intercourse, however, when she was asked whether if his account was not reliable, this would illustrate anything about the extent of the practitioner’s insight into his wrongdoing. The effect of her response was that there are two possible answers. It might indicate a lack of insight or understanding. It is also possible that he fully understands what happened but is attempting to deliberately mislead her about that. She was unable to say which of these alternatives was accurate.
However, on the assumption that the history was unreliable it could indicate a higher risk of re-offending.
This Tribunal has serious doubts that the practitioner has any real insight into the impropriety of his conduct, and as at today it holds the opinion that there is a reasonable probability of the practitioner re-offending.
This situation could change and he could well gain the necessary insight and achieve rehabilitation.
The Tribunal is aware that the practitioner has sought counselling and has been under the care of Dr Lianos. He has recently attended five psycho-therapy sessions following a recommendation by Dr Newman, and intends to continue such counselling.
In making its findings and in determining the appropriate orders, the Tribunal must adhere to its primary responsibility, that is, the protection of the public. This involves upholding the proper standards of the medical profession and in turn maintaining the confidence of the public in the medical profession.
The Tribunal is comfortably satisfied on the balance of probabilities that the practitioner grossly breached his professional duty to the patient by:
(a) inviting Patient A to his motel room to talk and for coffee;
(b) giving Patient A his mobile phone number;
(c) Giving Patient A the name of the motel in which he was staying, that is, the Colonial Motor Inn;
(d) Giving patient A directions to the motel;
(e) Giving Patient A the number of his room at the motel;
(f) On 26th March, 2001, the practitioner inappropriately allowed Patient A to shower in his room at the motel, provided a meal for her and discussed issues with her that were personal to both Patient A and himself;
(g) Exploiting her to gain sexual gratification by an act of non consensual sexual intercourse.
This Tribunal is unanimously of the opinion that the practitioner has been guilty of professional misconduct within the meaning of Section 37 of the Act so as to justify the removal of his name from the Register.
The Tribunal orders:Orders
(1) That the name of Aftab Aslam be removed from the Register of Medical Practitioners of New South Wales;
(2) Pursuant to Section 63(5) of the Act, no application for a review of Order (1) be made until the expiration of 4 years from today;
(3) That the practitioner pay the costs of the complainant of and incidental to the hearing of the complaint.
(4) Exhibits returned.
2
3
1